BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1829       Hearing Date:    June 14, 2016    
          
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          |Author:    |Levine                                               |
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          |Version:   |March 17, 2016                                       |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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           Subject:  Vessels:  Operation Under the Influence of Alcohol or  
 
                              Drugs:  Chemical Testing



          HISTORY

          Source:   California State Sheriffs' Association

          Prior Legislation:AB 538 (Levine) - Chapter 118, Stats. 2015  
                         SB 717 (DeSaulnier) - Chapter 317, Stats. 2013 

           Support: Unknown

          Opposition:    None known


          Assembly Floor Vote:                    79 - 0
          
          PURPOSE
          

          This bill requires that a person stopped for boating under the  
          influence be informed that a criminal complaint may be filed  
          against them, that a warrant may be sought to obtain a blood  
          sample and that they do not have the right to have an attorney  
          present during chemical testing.
          







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          Existing law 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.) 

          Existing law 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. (Penal Code § 1523.) 

          Existing law 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. (Penal Code, § 1524 (a)(16).) 

          Existing law 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  








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          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 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. 
          k) 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. 
          l) 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. 
          m) 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. 
          n) 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  








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          has refused an officer's request to submit to, or has failed to  
          complete, a blood test. 
          o) 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 of a  
          gun violence restraining order. (Penal Code § 1524 (a).)

          Existing law 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. (Penal Code § 1525.) 6

          Existing law 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. (Penal Code § 1528 (a).) 

          Existing law 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.  
          (Harbors & Navigation Code, § 655  (b).) 

          Existing law 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. (Harbors  & Navigation  
          Code, § 655(c).) 

          Existing law 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.  
          (Harbors & Navigation Code, § 655 (d).) 

          Existing law 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.  
          (Harbors & Navigation Code, § 655.1.) 

          Existing law 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  








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          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. (Penal Code, § 23612  (a)(4).)

          This bill 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. 

          This bill provides that persons arrested for boating under the  
          influence be notified that they have a right to refuse chemical  
          testing. 

          This bill 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 

          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 chosen.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past several years this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  
          state's ability to provide a constitutional level of 
          health care to its inmate population and the related issue of  
          prison overcrowding, this Committee has applied its "ROCA"  
          policy as a content-neutral, provisional measure necessary to  
          ensure that the Legislature does not erode progress in reducing  
          prison overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   








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                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In December of 2015 the administration reported that as "of  
          December 9, 2015, 112,510 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.0% of design bed  
          capacity, and 5,264 inmates were housed in out-of-state  
          facilities.  The current population is 1,212 inmates below the  
          final court-ordered population benchmark of 137.5% of design bed  
          capacity, and has been under that benchmark since February  
          2015."  (Defendants' December 2015 Status Report in Response to  
          February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge  
          Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)  One  
          year ago, 115,826 inmates were housed in the State's 34 adult  
          institutions, which amounted to 140.0% of design bed capacity,  
          and 8,864 inmates were housed in out-of-state facilities.   
          (Defendants' December 2014 Status Report in Response to February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).)  
           
          While significant gains have been made in reducing the prison  
          population, the state must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  








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               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.




          COMMENTS
          
          1.  Need for This Bill
          
          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.

               AB 1829 clarify 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.

               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  








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               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.

          2.  Search Warrant for BUI

          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. (Penal Code, § 1524 (a)(16).) 

          This bill conforms the notification requirements placed upon law  
          enforcement to the provisions implemented by AB 539. 



          
          3.  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, 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.  








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          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.  
          (Penal Code, § 1524 (a)(13).) However, the amendment to the  
          statute did not cover misdemeanor offenses involving boating  
          under the influence. 
          
          4.  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_2 
          014.pdf .) 6) 
          
          5.  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 chosen. While 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, 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." (Penal Code, § 23612 (a)(4).) Therefore, this provision of  
          the bill conforms the boating while under the influence  








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          provisions to existing law.



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