BILL ANALYSIS Ó
AB 1829
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Date of Hearing: April 5, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1829 (Levine) - As Amended March 17, 2016
SUMMARY: Conforms advisement provisions of the Penal Code
related to boating under the influence, to existing provisions
in the Penal Code and Harbors and Navigation Code.
Specifically, this bill:
1)Requires that persons arrested for boating under the influence
be advised that a criminal complaint may be filed against him
or her for operating a vessel or water-related device while
under the influence of an alcoholic beverage or any drug, or
both.
2)Provides that persons arrested for boating under the influence
be notified that they have a right to refuse chemical testing.
3)Specifies that persons arrested for boating under the
influence be informed that the officer has the authority to
seek a search warrant compelling him or her to submit a blood
sample
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4)States that persons arrested for boating under the influence
be advised they do not have a right to have an attorney
present before stating whether he or she will submit to the
chemical testing, before deciding which chemical test or tests
to take, or during the administration of the chemical test or
tests chosen.
EXISTING LAW:
1)Provides that the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no warrants
shall issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched and the persons or things to be seized. (U.S.
Const., 4th Amend.; Cal. Const., art. I, § 13.)
2)Defines a "search warrant" as a written order in the name of
the people, signed by a magistrate and directed to a peace
officer, commanding him or her to search for a person or
persons, a thing or things, or personal property, and in the
case of a thing or things or personal property, bring the same
before the magistrate. (Pen. Code, § 1523.)
3)Specifically authorizes the issuance of a search warrant when
all of the following apply:
a) A sample of the blood of a person constitutes evidence
that tends to show a violation of specified boating under
the influence provisions.
b) The person from whom the sample is being sought has
refused an officer's request to submit to, or has failed to
complete, a blood test as required.
c) The sample will be drawn from the person in a
reasonable, medically approved manner. (Pen. Code, § 1524,
subd. (a)(16).)
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4)States that a search warrant may also be issued upon any of
the following grounds:
a) When the property was stolen or embezzled.
b) When the property or things were used as the means of
committing a felony.
c) When the property or things are in the possession of any
person with the intent to use them as a means of committing
a public offense, or in the possession of another to whom
he or she may have delivered them for the purpose of
concealing them or preventing them from being discovered.
d) When the property or things to be seized consist of any
item or constitute any evidence that tends to show a felony
has been committed, or tends to show that a particular
person has committed a felony.
e) When the property or things to be seized consist of
evidence that tends to show that sexual exploitation of a
child, or possession of matter depicting sexual conduct of
a person under the age of 18 years, has occurred or is
occurring.
f) When there is a warrant to arrest a person.
g) When a provider of electronic communication service or
remote computing service has records or evidence, showing
that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
means of committing a misdemeanor public offense, or in the
possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing their
discovery.
h) When a provider of electronic communication service or
remote computing service has records or evidence showing
that property was stolen or embezzled constituting a
misdemeanor, or that property or things are in the
possession of any person with the intent to use them as a
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means of committing a misdemeanor public offense, or in the
possession of another to whom he or she may have delivered
them for the purpose of concealing them or preventing their
discovery.
i) When the property or things to be seized include an item
or any evidence that tends to show a violation of the Labor
Code, as specified.
j) When the property or things to be seized include a
firearm or any other deadly weapon at the scene of, or at
the premises occupied or under the control of the person
arrested in connection with, a domestic violence incident
involving a threat to human life or a physical assault.
aa) When the property or things to be seized include a
firearm or any other deadly weapon that is owned by, or in
the possession of, or in the custody or control of, a
person described in subdivision (a) of Section 8102 of the
Welfare and Institutions Code.
bb) When the property or things to be seized include a
firearm that is owned by, or in the possession of, or in
the custody or control of, a person who is subject to the
prohibitions regarding firearms under specified provisions
of the Family Code.
cc) When the information to be received from the use of a
tracking device constitutes evidence that tends to show
that either a felony or a misdemeanor violation of the Fish
and Game Code, or a misdemeanor violation of the Public
Resources Code.
dd) When a sample of the blood of a person constitutes
evidence that tends to show a violation of misdemeanor
driving under the influence and the person from whom the
sample is being sought has refused an officer's request to
submit to, or has failed to complete, a blood test.
ee) When the property or things to be seized are firearms or
ammunition or both that are owned by, in the possession of,
or in the custody or control of a person who is the subject
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of a gun violence restraining order. This final provision
does not go into effect until January 1, 2016. (Pen. Code,
§ 1524, subd. (a).)
5)Provides that a search warrant cannot be issued but upon
probable cause, supported by affidavit, naming or describing
the person to be searched or searched for, and particularly
describing the property, thing, or things and the place to be
searched. (Pen. Code, § 1525.)
6)Requires a magistrate to issue a search warrant if he or she
is satisfied of the existence of the grounds of the
application or that there is probable cause to believe their
existence. (Pen. Code, § 1528, subd. (a).)
7)Prohibits a person from operating a vessel or manipulate water
skis, an aquaplane, or a similar device while under the
influence of an alcoholic beverage, any drug, or the combined
influence of an alcoholic beverage and any drug. (Harb. &
Nav. Code, § 655, subd. (b).)
8)Prohibits a person from operating any recreational vessel or
manipulating any water skis, aquaplane, or similar device if
the person has an alcohol concentration of 0.08 percent or
more in his or her blood. (Harb. & Nav. Code, § 655, subd.
(c).)
9)Prohibits a person from operating any vessel other than a
recreational vessel if the person has an alcohol concentration
of 0.04 percent or more in his or her blood. (Harb. & Nav.
Code, § 655, subd. (d).)
10)Authorizes a peace officer who arrests a person for boating
under the influence to ask that person to submit to chemical
testing of his or her blood, breath, or urine for the purpose
of determining the drug or alcohol content of the blood.
(Harb. & Nav. Code, § 655.1.)
11)Provides that an officer shall also advise persons arrested
for driving under the influence that he or she does not have
the right to have an attorney present before stating whether
he or she will submit to a test or tests, before deciding
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which test or tests to take, or during administration of the
test or tests chosen, and that, in the event of refusal to
submit to a test or tests, the refusal may be used against him
or her in a court of law. (Pen. Code, § 23612, subd. (a)(4).)
FISCAL EFFECT: Unknown.
COMMENTS:
1)Author's Statement: According to the author, "AB 1829
clarifies existing law and removes obsolete language regarding
the arrest of a person suspected of operating a boat or vessel
under the influence of alcohol and/or drugs."
2)Background: According to the background submitted by the
author, "AB 1829 clarifies that an officer who arrests a
person on suspicion of operating a vessel or watercraft while
under the influence shall inform the person that he or she may
be charged with a crime, has the right to refuse chemical
testing, and that the officer has the authority to seek a
search warrant to compel a blood draw if the person refuses to
submit to, or fails to complete, a blood test. All of these
items reflect current California law.
"Given recent changes to case law and state statute, the
Harbors and Navigation Code contains obsolete language
regarding the arrest of a person suspected of operating a boat
or vessel under the influence of alcohol and/or drugs.
Specifically, existing law requires an officer to inform a
person arrested for boating under the influence that a refusal
to submit to, or failure to complete, the required chemical
testing may be used against the person in a court of law and
that the court may impose increased penalties for that refusal
or failure, upon conviction, despite the fact that neither of
those statements is accurate.
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"Vehicle Code Section 23612 provides that a person arrested
for driving under the influence shall submit to chemical
testing or face sanctions for the refusal to submit. The fact
that the person refused testing can also be used as an
aggravating factor when he or she is being sentenced for a
conviction of driving under the influence. Conversely,
despite the fact that similar language exists in the Harbors
and Navigation Code, there is no analogous sanction for a
person suspected of boating under the influence, largely
because there is no comprehensive licensing scheme or implied
consent standard."
3)AB 538 (Levine): Earlier this session, the legislature
passed, and the governor signed AB 539 (Levine), Chapter 118,
Statutes of 2015. This new law authorizes the issuance of a
search warrant when all of the following apply:
a) A sample of the blood of a person constitutes evidence
that tends to show a violation of specified boating under
the influence provisions;
b) The person from whom the sample is being sought has
refused an officer's request to submit to, or has failed to
complete, a blood test as required; and
c) The sample will be drawn from the person in a
reasonable, medically approved manner. (Pen. Code, § 1524,
subd. (a)(16).)
This bill conforms the notification requirements placed upon
law enforcement to the provisions implemented by AB 539.
4)Missouri v. McNeely: In Missouri v. McNeely (2013) 133 S.Ct.
1552, the United States Supreme Court held that the natural
dissipation of alcohol in the bloodstream does not constitute
an exigency in every drunk-driving investigation sufficient to
justify conducting a blood test without a warrant. Rather,
the court directed that the matter be determined on a
case-by-case assessment of the totality of the circumstances,
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in which the dissipation element is a factor in evaluating
whether an exigency exists. "In those drunk-driving
investigations where police officers can reasonably obtain a
warrant before a blood sample can be drawn without
significantly undermining the efficacy of the search, the
Fourth Amendment mandates that they do so." (Id. at p. 1561.)
Before the McNeely decision, the California Supreme Court had
applied older U.S. Supreme Court precedent, Schmerber v.
California (1966) 384 U.S. 757, and held that the evanescent
nature of blood alcohol created exigent circumstances and
sufficient rationale for permitting warrantless chemical
testing following a DUI arrest. (See People v. Superior Court
(Hawkins) (1972) 6 Cal.3d 757, 761.)
When Missouri v. McNeely was decided, there was nothing in the
statute listing the types of evidence that may be obtained by
means of a search warrant that would authorize a warrant for a
DUI blood draw unless the crime under investigation was a
felony. The Legislature subsequently amended the statute
pertaining to grounds for the issuance of a search warrant to
allow law enforcement to obtain one on this basis. (Pen.
Code, § 1524, subd. (a)(13).)
However, the amendment to the statute did not cover misdemeanor
offenses involving boating under the influence.
5)Boating Accident Statistics: According to a 2013 report by
the California State Parks Division of Boating and Waterways,
between 2009 and 2013 32% of all boating fatalities in the
state involved alcohol. (See 2013 California Recreational
Boating Accident Statistics, p. 17,
http://dbw.ca.gov/Reports/BSRs/2013/2013_AccidentStats_CA_05_08
_2014.pdf .)
6)Advisement Regarding Presence of Attorney: This bill states
that persons arrested for boating under the influence be
advised they do not have a right to have an attorney present
before stating whether he or she will submit to the chemical
testing, before deciding which chemical test or tests to take,
or during the administration of the chemical test or tests
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chosen. Advising a criminal defendant that they do not have a
right to have their attorney present and that they cannot
consult an attorney seems contrary to public policy.
However, this provision is consistent with existing law.
Existing California law states that an officer shall advise
persons arrested for driving under the influence that "he or
she does not have the right to have an attorney present before
stating whether he or she will submit to a test or tests,
before deciding which test or tests to take, or during
administration of the test or tests chosen, and that, in the
event of refusal to submit to a test or tests, the refusal may
be used against him or her in a court of law." (Pen. Code, §
23612, subd. (a)(4).) Therefore, this provision of the bill
is consistent with existing California law.
7)Argument in Support: According to the California State
Sheriffs' Association, "We are pleased to sponsor your
measure, Assembly Bill 1829, which would clarify existing law
to provide that an officer who arrests a person on suspicion
of operating a vessel or watercraft while under the influence
shall inform the person that he or she may be charged with a
crime, has the right to refuse chemical testing, and that the
officer has the authority to seek a search warrant to compel a
blood draw if the person refuses to submit to, or fails to
complete, a blood test.
"Vehicle Code Section 23612 provides that a person arrested
for driving under the influence shall submit to chemical
testing or face sanctions for the refusal to submit. The fact
that the person refused testing can also be used as an
aggravating factor when he or she is being sentenced for a
conviction of driving under the influence. Conversely,
despite the fact that similar language exists in the Harbors
and Navigation Code, there is no analogous sanction for a
person suspected of boating under the influence, largely
because there is no comprehensive licensing scheme or implied
consent standard.
"Additionally, recent United Supreme Court case law (Missouri
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v. McNeely (2013) S.Ct.1552) has altered the process whereby
an officer can compel a blood draw in connection with the
arrest of a person suspected of operating a motor vehicle or
vessel while under the influence of alcohol and/or drugs. To
address both of the above situations, the Harbors and
Navigation code should be updated to accurately reflect
existing statute and case law."
8)Prior Legislation:
a) AB 53p (Levine) Chapter 118, Statutes of 2015, allowed
law enforcement to obtain a search warrant to test the
blood of a person suspected of operating a marine vessel
while under the influence of drugs and/or alcohol.
b) AB 1014 (Skinner), Chapter 872, Statutes of 2014,
provided, in pertinent part, that a search warrant may be
issued when the property or things to be seized are
firearms or ammunition that are in the custody or control
of, or is owned or possessed by, a person who is the
subject of a gun violence restraining order.
c) SB 717 (DeSaulnier), Chapter 317, Statutes of 2013,
authorized the issuance of a search warrant to allow a
blood draw to be taken from a person in a reasonable,
medically approved manner as evidence that the person has
violated specified provisions relating to driving under the
influence, and the person has refused a peace officer's
request to submit to, or failed to complete a blood test.
REGISTERED SUPPORT / OPPOSITION:
Support
AB 1829
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California State Sheriffs' Association
Opposition
None
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744