BILL ANALYSIS Ó
AB 2740
Page A
Date of Hearing: April 19, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2740 (Low) - As Amended March 15, 2016
SUMMARY: Creates a per se standard for driving under the
influence of marijuana. Specifically, this bill:
1)Provides that it is a crime for a person who has 5 ng/ml or
more of delta 9-tetrahydrocannabinol in his or her blood to
drive a vehicle.
2)Additionally makes it an offense for a person, while having 5
ng/ml or more of delta 9-tetrahydrocannabinol in his or her
blood, to drive a vehicle and concurrently do any act
forbidden by law, or neglect any duty imposed by law in
driving the vehicle, when the act or neglect proximately
causes bodily injury to a person other than the driver.
3)Establishes a rebuttable presumption for each of those
offenses that the person had 5 ng/ml or more of delta
9-tetrahydrocannabinol in his or her blood at the time of
driving the vehicle if the person had 5 ng/ml or more of delta
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9-tetrahydrocannabinol in his or her blood at the time of the
performance of a chemical test within two hours of the
driving.
4)Requires corroborating evidence, as specified, in addition to
a level of 5 ng/ml or more of delta 9-tetrahydrocannabinol in
the driver's blood, for a conviction for either of those
offenses.
EXISTING LAW:
1)Provides that it is unlawful for any person who is under the
influence of any alcoholic beverage or drug, or under the
combined influence of alcoholic beverage and drugs, to drive a
vehicle. (Veh. Code, § 23152 subd. (a).)
2)Provides that it is unlawful for any person who is addicted to
the use of any drug to drive a vehicle. (Veh. Code, § 23152
subd. (c).)
3)States that the fact that any person charged with driving
under the influence of any drug or under the combined
influence of alcohol and any drug that he or she is, or has
been, entitled to use under the laws of this state shall not
constitute a defense against any violation of the driving
under the influence laws. (Veh. Code, § 23630.)
4)States that it is unlawful for any person who has 0.08% or
more by weight of alcohol in his or her blood to drive a
vehicle. (Veh. Code, § 23152 subd. (b).)
5)Provides that it is unlawful for any person who is addicted to
the use of any drug to drive a vehicle. (Veh. Code, § 23152
subd. (c).)
6)States legislative intent that a person be subject to enhanced
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mandatory minimum penalties for multiple offenses within a
period of 10 years, regardless of whether the convictions are
obtained in the same sequence as the offenses had been
committed. (Veh. Code, § 23217.)
7)States that if a person is convicted of a first violation of
driving under the influence of alcohol, or drugs, or the
combined influence of alcohol and drugs, that person shall be
punished by imprisonment in the county jail for not less than
96 hours, at least 48 hours of which shall be consecutive, nor
more than six months, and by a fine of not less than $390 nor
more than $1,000. (Veh. Code, § 23536 subd. (a).) Further
states that the person's privilege to drive a motor vehicle
shall be suspended. (Veh. Code, § 2356 subd. (c).)
8)Provides that if a person is convicted of driving under the
influence of alcohol, or drugs, or the combined influence of
alcohol and drugs, and the offense occurred within ten years
of a separate violation of driving under the influence, that
person shall be punished by imprisonment in the county jail
for not less than 90 days nor more than one year and by a fine
of not less than $390 nor more than $1,000. States that the
person's privilege to drive a motor vehicle shall be
suspended. (Veh. Code, § 23540 subd. (a).)
9)Provides that if a person is convicted of a violation of
driving under the influence of alcohol, or drugs, or the
combined influence of alcohol and drugs, and the offense
occurred within ten years of a separate violation of driving
under the influence, that person shall be punished by
imprisonment in the county jail for not less than 120 days nor
more than one year, and the person's privilege to drive a
motor vehicle shall be revoked. (Veh. Code , § 23546 subd.
(a).)
10)Provides that in prosecution for driving under the influence
(DUI), it is a rebuttable presumption that the person had
0.08% or more blood alcohol concentration (BAC) level at the
time of driving the vehicle if his or her BAC level is 0.08%
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at a chemical test performed within three hours after the
driving. (Veh. Code, § 23152.)
11)Provides that in a prosecution for DUI, it is a presumption
affecting the burden of proof that if the person had 0.05%, by
weight, of alcohol in his or her blood, it shall be presumed
that the person was not under the influence of an alcoholic
beverage at the time of the alleged offense. (Veh. Code, §
23610 subd. (a)(1).)
12)States that if there was, at that time, 0.05% or more but
less than 0.08%, by weight, of alcohol in the person's blood,
it shall be presumed that the person was not under the
influence of an alcoholic beverage, but the fact may be
considered with other competent evidence in determining
whether the person was under the influence of an alcoholic
beverage at the time of the alleged offense. (Veh. Code, §
23610 subd. (a)(2).)
13)Provides that if there was at that time 0.08% or more, by
weight, of alcohol in the person's blood, it shall be presumed
that the person was under the influence of an alcoholic
beverage at the time of the alleged offense. (Veh. Code, §
23610 subd. (a)(3).)
14)States that in any county where the board of supervisors has
approved, and the Department of Alcohol and Drug Programs has
licensed, a program or programs pursuant to law, the court
shall also impose as a condition of probation that the driver
shall enroll and participate in, and successfully complete a
licensed driving-under-the-influence program , in the driver's
county of residence or employment, as designated by the court.
(Veh. Code, § 23538 subd. (b).)
15)Provides that the court shall refer a first offender whose
blood-alcohol concentration was less than 0.20%, by weight, to
participate for at least three months or longer, as ordered by
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the court, in a licensed program that consists of at least 30
hours of program activities, including those education, group
counseling, and individual interview sessions described by
law. (Veh. Code § 23538 subd. (b)(1).)
16)States that the court shall refer a first offender whose
blood-alcohol concentration was 0.20% or more, by weight, or
who refused to take a chemical test, to participate for at
least six months or longer, as ordered by the court, in a
licensed program that consists of at least 45 hours of program
activities, including those education, group counseling, and
individual interview sessions described by law. (Veh. Code, §
23538 subd. (b)(2).)
17)States that the court shall order a person to participate in
an alcohol and drug problem assessment program pursuant to
law, inclusive, and the related regulations of the State
Department of Alcohol and Drug Programs, if the person was
convicted of a violation of a DUI, as specified, that occurred
within 10 years of a separate DUI, as specified, that resulted
in a conviction. (Veh. Code, § 23646 subd. (b)(1).)
18)Provides that a court may order a person convicted of a DUI,
as specified, to attend an alcohol and drug problem assessment
program pursuant to this article. (Veh. Code, § 23646 subd.
(b)(2).)
19)States that a preliminary alcohol screening test that
indicates the presence or concentration of alcohol based on a
breath sample in order to establish reasonable cause to
believe the person was driving a vehicle under the influence
of alcohol is a field sobriety test and may be used by an
officer as a further investigative tool. (Veh. Code, § 23612,
subd. (h).)
20)Specifies that if the officer decides to use a preliminary
alcohol screening test, the officer shall advise the person
that he or she is requesting that person to take a preliminary
alcohol screening test to assist the officer in determining if
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that person is under the influence of alcohol or drugs, or a
combination of alcohol and drugs. The person's obligation to
submit to a blood, breath, or urine test, as required if
arrested for driving a vehicle under the influence of alcohol
or drugs, for the purpose of determining the alcohol or drug
content of that person's blood, is not satisfied by the person
submitting to a preliminary alcohol screening test. The
officer shall advise the person of that fact and of the
person's right to refuse to take the preliminary alcohol
screening test. (Veh. Code, § 23612, subd. (i).)
21)States that a person who drives a motor vehicle is deemed to
have given his or her consent to chemical testing of his or
her blood or breath for the purpose of determining the
alcoholic content of his or her blood, if lawfully arrested
for an offense allegedly committed in violation driving under
the influence of drugs or alcohol. If a blood or breath test,
or both, are unavailable, then the person shall give urine.
(Veh. Code, § 23612, subd. (a)(1)(A).)
22)Provides that a person who drives a motor vehicle is deemed
to have given his or her consent to chemical testing of his or
her blood for the purpose of determining the drug content of
his or her blood, if lawfully arrested driving under the
influence of drugs or drugs and alcohol. If a blood test is
unavailable, the person shall be deemed to have given his or
her consent to chemical testing of his or her urine and shall
submit to a urine test. (Veh. Code, § 23612, subd. (a)(1)(B).)
23)States that the testing shall be incidental to a lawful
arrest and administered at the direction of a peace officer
having reasonable cause to believe the person was driving a
motor vehicle in violation of specified driving under the
influence offenses. (Veh. Code, § 23612, subd. (a)(1)(C).)
24)Specifies that the person shall be told that his or her
failure to submit to, or the failure to complete, the required
chemical testing will result in a fine, mandatory imprisonment
if the person is convicted of a violation driving under the
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influence or driving under the influence causing injury, and
(i) the suspension of the person's privilege to operate a
motor vehicle for a period of one year, (ii) the revocation of
the person's privilege to operate a motor vehicle for a period
of two years if the refusal occurs within 10 years of a
separate violation of specified offenses, or if the person's
privilege to operate a motor vehicle has been suspended or
revoked pursuant to the Department of Motor Vehicles (DMV)
administrative action for driving under the influence of
alcohol for an offense that occurred on a separate occasion,
or (iii) the revocation of the person's privilege to operate a
motor vehicle for a period of three years if the refusal
occurs within 10 years of a two or more separate violations of
specified offenses, or if the person's privilege to operate a
motor vehicle has been suspended or revoked pursuant DMV
administrative action for driving under the influence of
alcohol for an offense that occurred on a separate occasion,
or if there is any combination of those convictions,
administrative suspensions, or revocations. (Veh. Code, §
23612, subd. (a)(1)(D).)
25)States that if the person is lawfully arrested for driving
under the influence of an alcoholic beverage, the person has
the choice of whether the test shall be of his or her blood or
breath and the officer shall advise the person that he or she
has that choice. If the person arrested either is incapable,
or states that he or she is incapable, of completing the
chosen test, the person shall submit to the remaining test. If
a blood or breath test, or both, are unavailable, then the
individual shall provide urine. (Veh. Code, § 23612, subd.
(a)(2)(A).)
26)Provides that if the person is lawfully arrested for driving
under the influence of any drug or the combined influence of
an alcoholic beverage and any drug, the person has the choice
of whether the test shall be of his or her blood or breath,
and the officer shall advise the person that he or she has
that choice. (Veh. Code, § 23612, subd. (a)(2)(B).)
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27)States that a person who chooses to submit to a breath test
may also be requested to submit to a blood test if the officer
has reasonable cause to believe that the person was driving
under the influence of a drug or the combined influence of an
alcoholic beverage and a drug and if the officer has a clear
indication that a blood test will reveal evidence of the
person being under the influence. The officer shall state in
his or her report the facts upon which that belief and that
clear indication are based. The officer shall advise the
person that he or she is required to submit to an additional
test. The person shall submit to and complete a blood test. If
the person arrested is incapable of completing the blood test,
the person shall submit to and complete a urine test. (Veh.
Code, § 23612, subd. (a)(2)(c).)
28)Requires that the officer advise the person 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. (Veh. Code, §
23612, subd. (4).)
29)Specifies that a person lawfully arrested for an offense
allegedly committed while the person was driving a motor
vehicle under the influence, may request the arresting officer
to have a chemical test made of the arrested person's blood or
breath for the purpose of determining the alcoholic content of
that person's blood, and, if so requested, the arresting
officer shall have the test performed. (Veh. Code, § 23612,
subd. (d)(1).)
30)States that if a blood or breath test is not available, the
person shall submit to the remaining test in order to
determine the percent, by weight, of alcohol in the person's
blood. If both the blood and breath tests are unavailable, the
person shall be deemed to have given his or her consent to
chemical testing of his or her urine and shall submit to a
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urine test. (Veh. Code, § 23612, subd. (d)(2).)
31)Provides that if the person, who has been arrested for
specified violations of driving a motor vehicle under the
influence of alcohol or drugs, refuses or fails to complete a
chemical test or tests, or requests that a blood or urine test
be taken, the peace officer, acting on behalf of the
department, shall serve the notice of the order of suspension
or revocation of the person's privilege to operate a motor
vehicle personally on the arrested person. (Veh. Code, §
23612, subd. (e).)
FISCAL EFFECT: Unknown
COMMENTS:
1)Author's Statement: According to the author, "With the recent
enactment of new laws formalizing the distribution of medical
marijuana, and the anticipated voter initiative legalizing
recreational use of marijuana, we are going to see a dramatic
increase in the number of persons driving under the influence
of marijuana, which will drastically impact public safety.
The state must be prepared to address these developments.
Every day there are more and more people driving on the road
after using marijuana. In 2012, the California Office of
Traffic Safety (OTS) released a study of weekend nighttime
drivers that found more California drivers tested positive for
marijuana than alcohol. AB 2740 prepares the state for new
regulations and protects public safety by creating a per se
prohibition on driving while having a specified amount of THC
in the blood that is similar in intent and effect to making it
unlawful to drive with a blood alcohol level of .08% or
higher."
2)Toxicologists Cannot Produce an Accurate Per Se Drug
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Impairment Standard: Opponents' most persuasive arguments are
that per se limits do not indicate that a driver is actually
under the influence at the time they are operating a vehicle.
If a defendant is to be punished for driving under the
influence, they should actually be under the influence at the
time of they were operating a motor vehicle. Otherwise,
drivers are merely being convicted of driving under the
influence for having ingested a substance (legally or
illegally) at some point prior to driving.
According to a 2011 National Highway Transportation and Safety
Administration, Drug Recognition Expert Training Manual,
"Toxicology has some important limitations. One limitation is
that, with the exception of alcohol, toxicology cannot produce
'per se' proof of drug impairment. That is, the chemist can't
analyze the blood or urine and come up with a number that
'proves' the person was or wasn't impaired." (emphasis added).
Additionally, The National Highway Transportation Safety
Administration also noted in a 2015 report that "specific drug
concentration levels cannot be reliably equated with a
specific degree of driver impairment."<1> As the bill relates
to the presence of THC (marijuana) in the system of a driver,
"It is difficult to establish a relationship between a
person's THC blood or plasma concentration and performance
impairing effects. It is inadvisable to try and predict
effects based on blood THC concentrations alone, and currently
impossible to predict specific effects based on THC-COOH
concentrations<2>."
The presence of drugs in the system of a driver is helpful
when evaluating whether or not a person is driving under the
--------------------------
<1> National Highway Transportation Safety Administration,
Roadside Survey of Alcohol and Drug Use by Drivers (February
2015).
<2>
http://www.nhtsa.gov/People/injury/research/job185drugs/cannabis.
htm
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influence. However, that evidence is far from conclusive.
Under current law evidence of drug use can be used to argue
that a driver was under the influence at the time they drove a
vehicle. This bill would state that a person is in fact
guilty if they have the proscribed amounts in their system at
the time they were driving, with any subjective determination
made by the officer that there was some "corroborating
evidence" that the alleged offender was driving under the
influence. The science appears conflicted on this issue and
it is not clear that a driver would necessarily be impaired at
these levels.
3)The "Corroborating Evidence" Standard in this Bill is a
Pretext to Convict a Person for Driving Under the Influence
Based Solely on a Per Se Standard, Regardless of their Actual
Level of Impairment at the Time they were Driving: The bill
provides a vague and illusory "corroborating evidence"
provision. The provision reads as follows:
"A person may not be convicted of the offense described in
this subdivision based solely on the blood test described
in paragraph (2). Corroborating evidence independent of the
blood test that the person's physical or mental ability to
drive a vehicle has been impaired is required for
conviction, and may include, but is not limited to, mental
or physical signs of impairment, poor performance on one or
more field sobriety tests, unsafe or inattentive driving,
incriminating statements by the person, or testimony of
other witnesses about the person's driving or sobriety."
However, this standard is merely a pretext to convict
defendants solely on the basis of being at or above the per se
limit. Failing to signal when making a right hand turn could
be "corroborating" evidence under this standard.
Additionally, the corroborating evidence need not rise to a
level of actually proving anything. It's merely a threshold
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showing to allow the evidence that the person had 5 nanograms
of delta 9-tetrahydrocannabinol in his or her blood at the
time of the performance of a chemical test within two hours of
the driving. If that threshold standard is met, then the
accused may be convicted of driving under the influence based
on the per se chemical test, regardless of whether he or she
was actually under the influence at the time he or she was
operating a motor vehicle.
Generally, corroborating evidence is evaluated by a finder of
fact, a jury, with the entire body of evidence, to determine
whether or not an offender is guilty or not guilty of a crime.
Corroborating evidence of guilt, whether circumstantial or
direct evidence, is viewed as to whether it proves a defendant
guilty "beyond a reasonable doubt" amongst all of the evidence
in a particular case. This bill would apply this illusory
"corroborating evidence" standard as a mere formality to open
an evidentiary door, and allow a criminal defendant to be
convicted of a crime solely on the evidence that he or she had
5 nanograms of delta 9-tetrahydrocannabinol in his or her
blood at the time of the performance of a chemical test within
2 hours of the driving.
The corroborating evidence provision of this bill would not
require the arresting officer to actually make a determination
as to whether the driver is actually under the influence. If
that were the case, then the existing law should remain intact
and this bill is unnecessary. The officer should take the
time to make an objective determination, based on his or her
observations, as to whether an alleged offender is actually
under the influence at the time he or she is driving. The
entire body of evidence should be presented to the jury,
including any chemical tests. A jury should not be told that
the person driving is under the influence of marijuana simply
because they had 5 nanograms of THC in their system at the
time of a chemical test. This legislation makes that
determination solely on whether the person had 5 nanograms of
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delta 9-tetrahydrocannabinol in his or her blood at the time
of the performance of a chemical test within two hours of the
driving.
4)The Effect of Drugs On an Individual's Ability to Drive is Not
Well Understood: Research has established that there is a
close relationship between BAC level and impairment. Some
effects are detectable at very low BACs (e.g., .02 grams per
deciliter, or g/dL) and as BAC rises, the types and severity
of impairment increase. (Drug Impaired Driving Understanding
the Problem & Ways to Reduce It (2009), National Highway
Transportation Safety Administration, pp. 2-3.)
The behavioral effects of other drugs are not as well understood
compared to the behavioral effects of alcohol. Certain
generalizations can be made: high doses generally have a
larger effect than small doses; well-learned tasks are less
affected than novel tasks; and certain variables, such as
prior exposure to a drug, can either reduce or accentuate
expected effects, depending on circumstances. However, the
ability to predict an individual's performance at a specific
dosage of drugs other than alcohol is limited. Most
psychoactive drugs are chemically complex molecules whose
absorption, action, and elimination from the body are
difficult to predict. Further, there are considerable
differences between individuals with regard to the rates with
which these processes occur. (Drug Impaired Driving
Understanding the Problem & Ways to Reduce It (2009), National
Highway Transportation Safety Administration, pp. 2-3.)
The presence of a drug in a person's blood sample might indicate
a drug that was affecting the individual at the time the
sample was taken, or it might indicate a drug that was
consumed at some point in the past and was no longer affecting
the individual at the time the sample was taken. The length
of time that a drug or its metabolite is present in a given
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biological sample is often called its detection time. This may
vary depending on the dose (amount), route of administration
(injected, inhaled etc.) and elimination rate (how long it
takes the body to get rid of the substance). The presence of
a drug metabolite in a biological fluid may or may not reflect
consumption of the drug recently enough to impair driving
performance. (Drug Toxicology for Prosecutors, American
Prosecutors Research Institute (2004), p. 8.)
There are additional factors that complicate the determination
of the effects on drugs on driving impairment. There are
individual differences in absorption, distribution, and
metabolism. Some individuals will show evidence of impairment
at drug concentrations that are not associated with impairment
in others. Wide ranges of drug concentrations in different
individuals have been associated with equivalent levels of
impairment. In certain instances drugs can be detected in the
blood because of accumulation. Blood levels of some drugs or
their metabolites may accumulate with repeated administrations
if the time-course of elimination is insufficient. (Drug
Impaired Driving Understanding the Problem & Ways to Reduce It
(2009), National Highway Transportation Safety Administration,
p. 3.) Because of these factors, specific drug concentration
levels cannot be reliably equated with effects on driver
performance.
5)Conflicting Evidence on Per Se Standards for Driving Under the
Influence of Drugs: Under existing law, if a person's driving
is impaired by being under the influence of a drug, he or she
can be arrested and charged under Vehicle Code Section
23152(a). A preliminary alcohol screening test is not
determinative of blood alcohol content, but is a field
sobriety test which may be used as a further investigative
tool in order to establish reasonable cause to believe a
person was driving a vehicle while under the influence of
alcohol. (See Vehicle Code § 23612 subd. (h).) If the
officer decides to use the preliminary alcohol screening test,
the officer shall advise the person that he or she is being
asked to take the test to assist the officer in determining if
he or she is under the influence of alcohol or drugs, or a
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combination of alcohol and drugs. The person's obligation to
submit to a chemical analysis of his or her blood, breath, or
urine is not satisfied by the person submitting to a
preliminary alcohol screening test. (Veh. Code § 23612 subd.
(i).)
If the preliminary alcohol screening test indicates that there
is no alcohol present, this may be an indicator of driving
under the influence of drugs, taken together with other
factors which provided the peace officer with the reasonable
cause to stop the driver, such as erratic driving, failure of
other field sobriety tests, etc. Existing law provides that a
person who chose a breath test may also be requested to submit
to a blood or urine test if the officer has reasonable cause
to believe that the person was driving under the influence of
a drug, or under the combined influence of alcohol and a drug,
and if the officer has a clear indication that a blood or
urine test will reveal evidence of the person being under the
influence. (Vehicle Code § 23612 subd. (a)(2)(C).) That
section also requires the officer to state in his or her
report the facts upon which that belief and clear indication
are based.
Although existing law provides the opportunity to obtain a blood
or urine test that will reveal if the person is under the
influence of drugs or under the combined influence of alcohol
or drugs, the bill's sponsor has stated that law enforcement
experiences significant difficulty obtaining filings or
prosecutions in cases in which the driver had detectable
amounts of drugs in his or her system, but did not have the
requisite 0.08% blood alcohol concentration in conjunction
with the drugs.
This bill seeks to change the standards for determining
whether a driver was under the influence at the time he or she
was pulled over by law enforcement. The new standards would
be per se amount of delta 9-tetrahydrocannabinol. This means
that if a driver was operating a motor vehicle with the
specified amount of delta 9-tetrahydrocannabinol in their
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system they would be automatically determined as driving under
the influence, so long as there were any subjective
corroborating evidence such as not following a traffic law.
Previous bills on this issue have sought to ban the presence
of any measurable amount of any of these substances in the
system of a driver at the time they are pulled over by law
enforcement. Proponents of this legislation argue that these
amounts are congruent with acceptable standards of impairment
while operating a motor vehicle. Opponents argue that these
amounts are not indicative of impairment and may represent
residual amounts of narcotics in the system of drivers. The
opponents object on the basis that these amounts may indicate
that the person used the specified substance, but that the per
se amounts do not indicate that a person was under the
influence. Proponents counter that it is too difficult to
convict a person of drugged driving if law enforcement has to
prove that the defendant is under the influence based on
observations (including observed driving), field sobriety
tests, and chemical tests. They would prefer that the
chemical tests stand alone, and that a conviction should
result if a specified drug is present at a specified level in
the system of the driver.
6)The Time it Takes for a Drug to Be Eliminated from the System :
According to a report issued by the United Nations Office on
Drugs and Crime:
Drugs vary by their elimination half-lives, which is
the time required for the blood levels to decline by
50%. The half-life of a drug is heavily influenced by
a variety of factors, including the individual's age,
sex, physical condition and clinical status. A
compromised liver and the concurrent presence of
another disease or drug have the potential of enhancing
the toxic effects of the drug by slowing down the
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elimination process. Under different clinical
conditions, however, the process may be speeded up.
Therefore, great variation may be found in the
half-lives of the same drug.
Approximately six half-lives are required to eliminate
99% of any drug. Because the half-life of cocaine is
relatively short, averaging one hour, only six hours
are needed for the elimination of 99% of the drug.
Cocaine metabolites have a longer half-life and can be
detected for a considerably longer period of time
through urine drug assays. Compared with cocaine,
phenobarbital has a much longer half-life (80 to 120
hours), so that at least 480 hours, or 20 days, are
required to eliminate 99% of the drug. Since there is
much variation in the half-lives of different drugs and
the absolute amount of drug present can be very small,
it is crucial that the appropriate body fluid for
analysis is selected for testing.
Elimination of ethanol [alcohol] follows a different
pattern. Its levels decline almost linearly over time.
The average elimination rate is between 15 mg/100 ml
and 20 mg/100 ml (0.015-0.02 per cent) per hour,
although rates of between 10 mg/100 ml and 30 mg/100 ml
(0.01-0.03 per cent) per hour have also been observed.
In the alcoholic patient, the elimination rate is
generally higher. In forensic calculations, a rate of
15 mg/100 ml (0.015%) per hour is usually used.
( http://www.unodc.org/unodc/en/data-and-analysis/bulleti
n/bulletin_1993-01-01_2_page005.html )
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7)Standard of Proof: "For a defendant to be guilty of driving
while under the influence of drugs in violation of Vehicle
Code Section 23152(a), 'the drug(s) must have so far affected
the nervous system, the brain, or the muscles of the
individual as to impair to an appreciable degree the ability
to operate a motor vehicle in a manner like that of an
ordinarily prudent and cautious person in full possession of
his or her faculties," citing People v. Enriquez , 42 Cal. App.
4th at p. 665; Gilbert v. Municipal Court, 73 Cal. App. 3d at
p. 727. "Driving while under the influence of drugs involves
a greater degree of impairment of an individual's faculties,
and in that respect is not similar to merely being under the
influence of drugs." [ People v. Canty , 32 Cal. 4th 1266
(2004).]
This bill, in establishing a "per se" standard that would
presume a person was under the influence if he or she had a
specified amount of a drug, in his or her system, would
effectively abolish the standard of proof set forth in the
above-cited cases. Is it reasonable to presume that a person
is in violation of the law prohibiting driving under the
influence of drugs if the drugs have not "impaired to an
appreciable degree the ability to operate a motor vehicle in a
manner like that of an ordinarily prudent and cautious person
in full possession of his or her faculties?" ( Canty, supra.)
8)No Exceptions for Prescription Medications: This bill fails
to include any exception for the ingestion of prescription
medications. Opponents of this legislation have indicated
that people who use marijuana medicinally and at heavier
levels can have much higher THC levels than the proscribed
nanograms in the bill and that they are not under the
influence. Additionally, findings suggest that higher blood
THC levels, such as those likely to be found in frequent users
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like medical marijuana patients, do not necessarily correlate
with functional impairment.<3> These measurements are the
residual effects of medicinal use. The author should consider
an exception to the per se requirements for holders of
prescriptions. Those drivers could still be convicted of
driving under the influence under the current system of
enforcement, based on a totality of the circumstances
(officer's observations, observed driving, field sobriety
tests, and chemical tests).
9)Argument in Support: According to the Kern County District
Attorney, "The prevalence of persons driving under the
influence of marijuana endangers the public, and if California
voters approve the anticipated initiative to legalize the
recreational use of marijuana, the problem will be
exacerbated. Here in Kern County, we see drivers impaired by
delta-9 THC frequently. Unfortunately, one such driver ran a
red light and killed a retired patrol officer, and is not
facing trial for second degree murder.
"AB 2740 is a necessary and commonsense amendment to
California law by establishing a per se limit for driving
under the influence of marijuana. A National Highway Traffic
Safety Administration study of persons driving under the
influence in the year 2013-2014 revealed a significant
increase in the percentage of the weekend nighttime drivers
driving with illegal drugs in their system. "The drug showing
the greatest increase from 2007 to 2013/14 was marijuana
(THC). The percentage of THC-positive drivers increased from
806 percent in 2007 to 12.6 percent in 2013/14, a proportional
increase of 47%." In 2012, the California Office of Traffic
Safety (OTS) released a study of weekend nighttime drivers
that found more California drivers tested positive for
--------------------------
<3> B.R. Nordstrom & C.L. Hart, Assessing Cognitive Functioning
in Cannabis Users: Cannabis Use History an Important
Consideration, 31 Neuropsychopharmacology 2798-2799 (2006).
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marijuana (7.4 percent) than alcohol (7.3 percent).
"AB 2740 would help address some of the problems that arise in
proving (and deterring persons from) driving under the
influence of marijuana by creating a per se prohibition on
driving while having a specified amount of THC in the blood
that is similar in intent and effect to the provision of
Vehicle Code section 21352(b) making it unlawful to drive with
a blood alcohol level greater than 0.08 percent."
10)Argument in Opposition: According to Consortium Management
Group (CMG), "CMG recognizes that it is responsible policy to
try to keep impaired drivers off the road and expects that at
some point, the science of marijuana will be sophisticated
enough to provide a defensible measurement of impairment.
Unfortunately, that time is not now.
"There are three overarching challenges that must be met
before an appropriate policy can be crafted.
"First, 5 ng/ml of THC does not measure impairment. Unlike
blood alcohol levels, which have decades of research
validating their correlation to intoxication, there are few
studies seeking to validate a similar correlation between THC
and impaired driving and the results of those studies are
inconclusive. Even the National Highway Traffic Safety
Administration admits that not enough is known about cannabis,
especially what levels of intoxication or impairment is
conclusive.
"Second, there is currently no practical way to test for the
THC level of a driver when he or she is pulled over by law
enforcement. Unlike a breathalyzer that accurately measures
blood alcohol content, testing for THC must be conducted by a
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blood test that cannot be administered roadside. The test
must be done in a clinical setting by a medical professional,
and the results often are not known for up to a week.
"Third, unlike alcohol, THC is known to remain in the body for
up to 4 weeks following ingestion of cannabis. In some cases,
the presence of THC can continue to exceed 5 ng/ml for a day
or more, long after the psychoactive effects of the THC have
worn off. When THC can be detected in the blood for days or
weeks and when the psychoactive effects that might cause
impairment wear off in 6-8 hours after ingestion, the current
technology and the knowledge base about THC and its effect on
driving are not adequate to begin establishing a DUI
measurement for cannabis. It is likely that under AB 2740, a
number of drivers would be charged with a cannabis DUI based
on the presence of THC, even though they were not impaired
while they were driving.
"We anticipate that the technology and the knowledge base will
catch up and at that time, developing a legitimate DUI policy
for cannabis would be appropriate."
11)Related Legislation: AB 1571 (Lackey) requires the court to
consider a blood alcohol concentration (BAC) of .08 or more,
in combination with the presence of specified drugs, as an
aggravating factor that may justify enhancing the terms and
conditions of probation, for first time driving under the
influence (DUI) offenders. AB 1571 is before this committee
today.
12)Prior Legislation:
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a) AB 1356, Lackey, of the 2015-2016 Legislative Session,
would have allowed the use of an oral fluids screening test
to determine the presence or concentration of drugs, to
assist the officer in making a determination that a person
was driving under the influence of drugs. AB 1356 failed
passage in Assembly Public Safety.
b) AB 2500 (Frazier), of the 2013-2014 Legislative Session,
would have made it unlawful for a person to drive a motor
vehicle if his or her blood contained specified amount of
various designated controlled substances. As originally
introduced, the bill would have made it unlawful to drive
with any "detectable" amount of various designated
controlled substances, including
delta-9-tetrahydrocannabinol of marijuana. It was modified
to incorporate specified measurable amounts - with the
amounts varying depending on the substance. The designated
amount triggering criminal punishment for
delta-9-tetrahydrocannabinol was of 2 nanograms, or more,
per milliliter of whole blood. AB 2500 failed passage in
the Assembly Public Safety Committee.
c) SB 289 (Correa), of the 2013-2014 Legislative Session,
would have created a zero tolerance for drugged driving per
se standard. SB 289 failed passage in Senate Public Safety
Committee.
d) AB 2552 (Torres), Chapter 753, Statutes of 2012, was
originally a zero tolerance for drugged driving per se
standard bill but was amended in the Assembly to modify the
penal code to allow the tracking of charges for drugged
driving as distinguished from driving under the influence
of alcohol.
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e) AB 1215 (Benoit), of the 2007-2008 Legislative Session,
created a zero tolerance for drugged driving per se
standard. AB 1215 failed passage in the Assembly Public
Safety Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California District Attorneys Association
Kern County District Attorney's Office
Santa Clara County District Attorney's Office
Opposition
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American Civil Liberties Union
California Attorneys for Criminal Justice
Consortium Management Group
Drug Policy Alliance
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744