Amended in Senate April 21, 2016

Amended in Senate March 30, 2016

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 amended, 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.

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

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

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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
32privilege to operate a motor vehicle has been suspended or revoked
33pursuant to Section 13353, 13353.1, or 13353.2 for an offense that
34occurred on a separate occasion, or (iii) the revocation of the
35person’s privilege to operate a motor vehicle for a period of three
P3    1years if the refusal occurs within 10 years of two or more separate
2violations of Section 23103 as specified in Section 23103.5, or of
3Section 23140, 23152, or 23153 of this code, or of Section 191.5
4or subdivision (a) of Section 192.5 of the Penal Code, or any
5combination thereof, that resulted in convictions, or if the person’s
6privilege to operate a motor vehicle has been suspended or revoked
7two or more times pursuant to Section 13353, 13353.1, or 13353.2
8for offenses that occurred on separate occasions, or if there is any
9 combination of those convictions, administrative suspensions, or
10revocations.

11(2) (A) If the person is lawfully arrested for driving under the
12influence of an alcoholic beverage, the person has the choice of
13whether the test shall be of his or her blood or breath and the officer
14shall advise the person that he or she has that choice. If the person
15arrested either is incapable, or states that he or she is incapable,
16of completing the chosen test, the person shall submit to the
17remaining test. If a blood or breath test, or both, are unavailable,
18then paragraph (2) of subdivision (d) applies.

19(B) If the person is lawfully arrested for driving under the
20influence of any drug or the combined influence of an alcoholic
21beverage and any drug, the person has the choice of whether the
22test shall be of his or her blood or breath, and the officer shall
23advise the person that he or she has that choice.

24(C) A person who chooses to submit to a breath test may also
25be requested to submit to a blood test if the officer has reasonable
26cause to believe that the person was driving under the influence
27of a drug or the combined influence of an alcoholic beverage and
28a drug and if the officer has a clear indication that a blood test will
29reveal evidence of the person being under the influence. The officer
30shall state in his or her report the facts upon which that belief and
31that clear indication are based. The officer shall advise the person
32that he or she is required to submit to an additional test. The person
33shall submit to and complete a blood test. If the person arrested is
34incapable of completing the blood test, the person shall submit to
35and complete a urine test.

36(3) If the person is lawfully arrested for an offense allegedly
37committed in violation of Section 23140, 23152, or 23153, and,
38because of the need for medical treatment, the person is first
39transported to a medical facility where it is not feasible to
40administer a particular test of, or to obtain a particular sample of,
P4    1the person’s blood or breath, the person has the choice of those
2tests, including a urine test, that are available at the facility to
3which that person has been transported. In that case, the officer
4shall advise the person of those tests that are available at the
5medical facility and that the person’s choice is limited to those
6tests that are available.

7(4) The officer shall also advise the person that he or she does
8not have the right to have an attorney present before stating whether
9he or she will submit to a test or tests, before deciding which test
10or tests to take, or during administration of the test or tests chosen,
11and that, in the event of refusal to submit to a test or tests, the
12refusal may be used against him or her in a court of law.

13(5) A person who is unconscious or otherwise in a condition
14rendering him or her incapable of refusal is deemed not to have
15withdrawn his or her consent and a test or tests may be
16administered whether or not the person is told that his or her failure
17to submit to, or the noncompletion of, the test or tests will result
18in the suspension or revocation of his or her privilege to operate
19a motor vehicle. A person who is dead is deemed not to have
20withdrawn his or her consent and a test or tests may be
21administered at the direction of a peace officer.

22(b) A person who is afflicted with hemophilia is exempt from
23the blood test required by this section, but shall submit to, and
24complete, a urine test.

25(c) A person who is afflicted with a heart condition and is using
26an anticoagulant under the direction of a licensed physician and
27surgeon is exempt from the blood test required by this section, but
28shall submit to, and complete, a urine test.

29(d) (1) A person lawfully arrested for an offense allegedly
30committed while the person was driving a motor vehicle in
31violation of Section 23140, 23152, or 23153 may request the
32arresting officer to have a chemical test made of the arrested
33person’s blood or breath for the purpose of determining the
34alcoholic content of that person’s blood, and, if so requested, the
35arresting officer shall have the test performed.

36(2) If a blood or breath test is not available under subparagraph
37(A) of paragraph (1) of subdivision (a), or under subparagraph (A)
38of paragraph (2) of subdivision (a), or under paragraph (1) of this
39subdivision, the person shall submit to the remaining test in order
40to determine the percent, by weight, of alcohol in the person’s
P5    1blood. If both the blood and breath tests are unavailable, the person
2shall be deemed to have given his or her consent to chemical testing
3of his or her urine and shall submit to a urine test.

4(e) If the person, who has been arrested for a violation of Section
523140, 23152, or 23153, refuses or fails to complete a chemical
6test or tests, or requests that a blood or urine test be taken, the
7peace officer, acting on behalf of the department, shall serve the
8notice of the order of suspension or revocation of the person’s
9privilege to operate a motor vehicle personally on the arrested
10person. The notice shall be on a form provided by the department.

11(f) If the peace officer serves the notice of the order of
12suspension or revocation of the person’s privilege to operate a
13motor vehicle, the peace officer shall take possession of all driver’s
14licenses issued by this state that are held by the person. The
15temporary driver’s license shall be an endorsement on the notice
16of the order of suspension and shall be valid for 30 days from the
17date of arrest.

18(g) (1) The peace officer shall immediately forward a copy of
19the completed notice of suspension or revocation form and any
20driver’s license taken into possession under subdivision (f), with
21the report required by Section 13380, to the department. If the
22person submitted to a blood or urine test, the peace officer shall
23forward the results immediately to the appropriate forensic
24laboratory. The forensic laboratory shall forward the results of the
25chemical tests to the department within 15 calendar days of the
26date of the arrest.

27(2) (A) Notwithstanding any other law, a document containing
28data prepared and maintained in the governmental forensic
29laboratory computerized database system that is electronically
30transmitted or retrieved through public or private computer
31networks to or by the department is the best available evidence of
32the chemical test results in all administrative proceedings conducted
33by the department. In addition, any other official record that is
34maintained in the governmental forensic laboratory, relates to a
35chemical test analysis prepared and maintained in the governmental
36forensic laboratory computerized database system, and is
37electronically transmitted and retrieved through a public or private
38computer network to or by the department is admissible as evidence
39in the department’s administrative proceedings. In order to be
40admissible as evidence in administrative proceedings, a document
P6    1described in this subparagraph shall bear a certification by the
2employee of the department who retrieved the document certifying
3that the information was received or retrieved directly from the
4computerized database system of a governmental forensic
5laboratory and that the document accurately reflects the data
6received or retrieved.

7(B) Notwithstanding any other law, the failure of an employee
8of the department to certify under subparagraph (A) is not a public
9offense.

10(h) A preliminary alcohol screening test that indicates the
11presence or concentration of alcohol based on a breath sample in
12order to establish reasonable cause to believe the person was
13driving a vehicle in violation of Section 23140, 23152, or 23153
14is a field sobriety test and may be used by an officer as a further
15investigative tool.

16(i) A preliminary oral fluid screening test that indicates the
17presence or concentration of a drug or controlled substance based
18on a sample in order to establish reasonable cause to believe the
19person was driving a vehicle in violation of Sectionbegin delete 23140, 23152,end delete
20begin insert 23152end insert or 23153 is a field sobriety test and may be used by an
21officer as a further investigative tool.

22(j) If the officer decides to use a preliminary alcohol or oral
23fluid screening test, the officer shall advise the person that he or
24she is requesting that person to take a preliminary alcohol or oral
25fluid screening test to assist the officer in determining if that person
26is under the influence of alcohol or drugs, or a combination of
27alcohol and drugs. The person’s obligation to submit to a blood,
28breath, or urine test, as required by this section, for the purpose of
29determining the alcohol or drug content of that person’s blood, is
30not satisfied by the person submitting to a preliminary alcohol or
31oral fluid screening test. The officer shall advise the person of that
32fact and of the person’s right to refuse to take the preliminary
33alcohol or oral fluid screening test.



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