BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1829| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- CONSENT Bill No: AB 1829 Author: Levine (D) and Achadjian (R) Amended: 3/17/16 in Assembly Vote: 21 SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/14/16 AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8 ASSEMBLY FLOOR: 79-0, 4/21/16 (Consent) - See last page for vote SUBJECT: Vessels: operation under the influence of alcohol or drugs: chemical testing SOURCE: California State Sheriffs' Association DIGEST: 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. ANALYSIS: 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 AB 1829 Page 2 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. (Penal Code § 1523.) 3) Authorizes, specifically, 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).) 1) 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 AB 1829 Page 3 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 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 AB 1829 Page 4 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 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).) 2) 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.) AB 1829 Page 5 3) 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).) 4) Prohibits a person from operating a vessel or manipulating 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).) 5) 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).) 6) 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).) 7) 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.) 8) 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 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).) AB 1829 Page 6 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. 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. Background 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 AB 1829 Page 7 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 provisions to existing law. FISCAL EFFECT: Appropriation: No Fiscal Com.:YesLocal: Yes SUPPORT: (Verified 6/27/16) California State Sheriffs' Association (source) OPPOSITION: (Verified6/27/16) None received ASSEMBLY FLOOR: 79-0, 4/21/16 AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NO VOTE RECORDED: Ridley-Thomas Prepared by:Mary Kennedy / PUB. S. / AB 1829 Page 8 6/29/16 15:50:41 **** END ****