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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