BILL ANALYSIS                                                                                                                                                                                                    Ó




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                                      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  








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             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  








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                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  








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                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.)










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           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).)









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          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  








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          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. / 








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          6/29/16 15:50:41


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