BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1829|
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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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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. /
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6/29/16 15:50:41
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