Senate BillNo. 1462


Introduced by Senator Huff

(Principal coauthors: Assembly Members Gatto and Lackey)

February 19, 2016


An act to amend Section 23612 of the Vehicle Code, relating to vehicles.

LEGISLATIVE COUNSEL’S DIGEST

SB 1462, as introduced, Huff. Vehicles: driving under the influence: drug testing.

Existing law 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 for driving under the influence of alcohol or drugs. Existing law provides that 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. Existing law authorizes an officer to use a preliminary alcohol screening test that indicates the presence or concentration of alcohol based on a breath sample as a further investigatory tool in order to establish reasonable cause to believe the person was driving a vehicle in violation of certain prohibitions against driving under the influence of alcohol or drugs.

This bill would authorize an officer to use a preliminary oral fluid screening test that indicates the presence or concentration of a drug or controlled substance as a further investigatory tool in order to establish reasonable cause to believe the person was driving a vehicle in violation of certain prohibitions against driving under the influence of drugs. The bill would authorize a local law enforcement agency to provide oral fluids testing for these purposes and would specify that this provision does not require a local law enforcement agency to provide or make an oral fluids test available for these purposes or for purposes of any other law. The bill would prohibit a state law enforcement agency from providing or making an oral fluids test available for these purposes or for purposes of any other law.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 23612 of the Vehicle Code is amended
2to read:

3

23612.  

(a) (1) (A) A person who drives a motor vehicle is
4deemed to have given his or her consent to chemical testing of his
5or her blood or breath for the purpose of determining the alcoholic
6content of his or her blood, if lawfully arrested for an offense
7allegedly committed in violation of Section 23140, 23152, or
823153. If a blood or breath test, or both, are unavailable, then
9paragraph (2) of subdivision (d) applies.

10(B) A person who drives a motor vehicle is deemed to have
11given his or her consent to chemical testing of his or her blood for
12the purpose of determining the drug content of his or her blood, if
13lawfully arrested for an offense allegedly committed in violation
14of Section 23140, 23152, or 23153. If a blood test is unavailable,
15the person shall be deemed to have given his or her consent to
16chemical testing of his or her urine and shall submit to a urine test.

17(C) The testing shall be incidental to a lawful arrest and
18administered at the direction of a peace officer having reasonable
19cause to believe the person was driving a motor vehicle in violation
20of Section 23140, 23152, or 23153.

21(D) The person shall be told that his or her failure to submit to,
22or the failure to complete, the required chemical testing will result
23in a fine, mandatory imprisonment if the person is convicted of a
24violation of Section 23152 or 23153, and (i) the suspension of the
25person’s privilege to operate a motor vehicle for a period of one
26year, (ii) the revocation of the person’s privilege to operate a motor
27vehicle for a period of two years if the refusal occurs within 10
28years of a separate violation of Section 23103 as specified in
29Section 23103.5, or of Section 23140, 23152, or 23153 of this
30code, or of Section 191.5 or subdivision (a) of Section 192.5 of
31the Penal Code that resulted in a conviction, or if the person’s
P3    1privilege to operate a motor vehicle has been suspended or revoked
2pursuant to Section 13353, 13353.1, or 13353.2 for an offense that
3occurred on a separate occasion, or (iii) the revocation of the
4person’s privilege to operate a motor vehicle for a period of three
5years if the refusal occurs within 10 years of two or more separate
6violations of Section 23103 as specified in Section 23103.5, or of
7Section 23140, 23152, or 23153 of this code, or of Section 191.5
8or subdivision (a) of Section 192.5 of the Penal Code, or any
9combination thereof, that resulted in convictions, or if the person’s
10privilege to operate a motor vehicle has been suspended or revoked
11two or more times pursuant to Section 13353, 13353.1, or 13353.2
12for offenses that occurred on separate occasions, or if there is any
13 combination of those convictions, administrative suspensions, or
14revocations.

15(2) (A) If the person is lawfully arrested for driving under the
16influence of an alcoholic beverage, the person has the choice of
17whether the test shall be of his or her blood or breath and the officer
18shall advise the person that he or she has that choice. If the person
19arrested either is incapable, or states that he or she is incapable,
20of completing the chosen test, the person shall submit to the
21remaining test. If a blood or breath test, or both, are unavailable,
22then paragraph (2) of subdivision (d) applies.

23(B) If the person is lawfully arrested for driving under the
24influence of any drug or the combined influence of an alcoholic
25beverage and any drug, the person has the choice of whether the
26test shall be of his or her blood or breath, and the officer shall
27advise the person that he or she has that choice.

28(C) A person who chooses to submit to a breath test may also
29be requested to submit to a blood test if the officer has reasonable
30cause to believe that the person was driving under the influence
31of a drug or the combined influence of an alcoholic beverage and
32a drug and if the officer has a clear indication that a blood test will
33reveal evidence of the person being under the influence. The officer
34shall state in his or her report the facts upon which that belief and
35that clear indication are based. The officer shall advise the person
36that he or she is required to submit to an additional test. The person
37shall submit to and complete a blood test. If the person arrested is
38incapable of completing the blood test, the person shall submit to
39and complete a urine test.

P4    1(3) If the person is lawfully arrested for an offense allegedly
2committed in violation of Section 23140, 23152, or 23153, and,
3because of the need for medical treatment, the person is first
4transported to a medical facility where it is not feasible to
5administer a particular test of, or to obtain a particular sample of,
6the person’s blood or breath, the person has the choice of those
7tests, including a urine test, that are available at the facility to
8which that person has been transported. In that case, the officer
9shall advise the person of those tests that are available at the
10medical facility and that the person’s choice is limited to those
11tests that are available.

12(4) The officer shall also advise the person that he or she does
13not have the right to have an attorney present before stating whether
14he or she will submit to a test or tests, before deciding which test
15or tests to take, or during administration of the test or tests chosen,
16and that, in the event of refusal to submit to a test or tests, the
17refusal may be used against him or her in a court of law.

18(5) A person who is unconscious or otherwise in a condition
19rendering him or her incapable of refusal is deemed not to have
20withdrawn his or her consent and a test or tests may be
21administered whether or not the person is told that his or her failure
22to submit to, or the noncompletion of, the test or tests will result
23in the suspension or revocation of his or her privilege to operate
24a motor vehicle. A person who is dead is deemed not to have
25withdrawn his or her consent and a test or tests may be
26administered at the direction of a peace officer.

27(b) A person who is afflicted with hemophilia is exempt from
28the blood test required by this section, but shall submit to, and
29complete, a urine test.

30(c) A person who is afflicted with a heart condition and is using
31an anticoagulant under the direction of a licensed physician and
32surgeon is exempt from the blood test required by this section, but
33shall submit to, and complete, a urine test.

34(d) (1) A person lawfully arrested for an offense allegedly
35committed while the person was driving a motor vehicle in
36violation of Section 23140, 23152, or 23153 may request the
37arresting officer to have a chemical test made of the arrested
38person’s blood or breath for the purpose of determining the
39alcoholic content of that person’s blood, and, if so requested, the
40arresting officer shall have the test performed.

P5    1(2) If a blood or breath test is not available under subparagraph
2(A) of paragraph (1) of subdivision (a), or under subparagraph (A)
3of paragraph (2) of subdivision (a), or under paragraph (1) of this
4subdivision, the person shall submit to the remaining test in order
5to determine the percent, by weight, of alcohol in the person’s
6blood. If both the blood and breath tests are unavailable, the person
7shall be deemed to have given his or her consent to chemical testing
8of his or her urine and shall submit to a urine test.

9(e) If the person, who has been arrested for a violation of Section
1023140, 23152, or 23153, refuses or fails to complete a chemical
11test or tests, or requests that a blood or urine test be taken, the
12peace officer, acting on behalf of the department, shall serve the
13notice of the order of suspension or revocation of the person’s
14privilege to operate a motor vehicle personally on the arrested
15person. The notice shall be on a form provided by the department.

16(f) If the peace officer serves the notice of the order of
17suspension or revocation of the person’s privilege to operate a
18motor vehicle, the peace officer shall take possession of all driver’s
19licenses issued by this state that are held by the person. The
20temporary driver’s license shall be an endorsement on the notice
21of the order of suspension and shall be valid for 30 days from the
22date of arrest.

23(g) (1) The peace officer shall immediately forward a copy of
24the completed notice of suspension or revocation form and any
25driver’s license taken into possession under subdivision (f), with
26the report required by Section 13380, to the department. If the
27person submitted to a blood or urine test, the peace officer shall
28forward the results immediately to the appropriate forensic
29laboratory. The forensic laboratory shall forward the results of the
30chemical tests to the department within 15 calendar days of the
31date of the arrest.

32(2) (A) Notwithstanding any other law, a document containing
33data prepared and maintained in the governmental forensic
34laboratory computerized database system that is electronically
35transmitted or retrieved through public or private computer
36networks to or by the department is the best available evidence of
37the chemical test results in all administrative proceedings conducted
38by the department. In addition, any other official record that is
39maintained in the governmental forensic laboratory, relates to a
40chemical test analysis prepared and maintained in the governmental
P6    1forensic laboratory computerized database system, and is
2electronically transmitted and retrieved through a public or private
3computer network to or by the department is admissible as evidence
4in the department’s administrative proceedings. In order to be
5admissible as evidence in administrative proceedings, a document
6described in this subparagraph shall bear a certification by the
7employee of the department who retrieved the document certifying
8that the information was received or retrieved directly from the
9computerized database system of a governmental forensic
10laboratory and that the document accurately reflects the data
11received or retrieved.

12(B) Notwithstanding any other law, the failure of an employee
13of the department to certify under subparagraph (A) is not a public
14offense.

15(h) A preliminary alcohol screening test that indicates the
16presence or concentration of alcohol based on a breath sample in
17order to establish reasonable cause to believe the person was
18driving a vehicle in violation of Section 23140, 23152, or 23153
19is a field sobriety test and may be used by an officer as a further
20investigative tool.

begin insert

21(i) A preliminary oral fluid screening test that indicates the
22presence or concentration of a drug or controlled substance based
23on a sample in order to establish reasonable cause to believe the
24person was driving a vehicle in violation of Section 23140, 23152,
25or 23153 is a field sobriety test and may be used by an officer as
26a further investigative tool.

end insert
begin delete

27(i)

end delete

28begin insert(j)end insert If the officer decides to use a preliminary alcoholbegin insert or oral
29fluidend insert
screening test, the officer shall advise the person that he or
30she is requesting that person to take a preliminary alcoholbegin insert or oral
31fluidend insert
screening test to assist the officer in determining if that person
32is under the influence of alcohol or drugs, or a combination of
33alcohol and drugs. The person’s obligation to submit to a blood,
34breath, or urine test, as required by this section, for the purpose of
35determining the alcohol or drug content of that person’s blood, is
36not satisfied by the person submitting to a preliminary alcoholbegin insert or
37oral fluidend insert
screening test. The officer shall advise the person of that
38fact and of the person’s right to refuse to take the preliminary
39alcoholbegin insert or oral fluidend insert screening test.

begin insert

P7    1(k) A local law enforcement agency may provide oral fluids
2testing for purposes of this section. This section does not require
3a local law enforcement agency to provide or make an oral fluids
4test available for purposes of this or any other law. A state law
5enforcement agency shall not provide or make an oral fluids test
6available for purposes of this section or any other law.

end insert


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