BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 1462 Hearing Date: April 19, 2016
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|Author: |Huff |
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|Version: |March 30, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|MK |
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Subject: Vehicles: Driving Under the Influence: Drug Testing
HISTORY
Source: We Save Lives
Prior Legislation: None
Support: The Association for Los Angeles Deputy Sheriffs;
The California Association of Code Enforcement
Officers; California Association of Highway Patrolmen;
The California College and University Police Chiefs
Association; California Narcotic Officers'
Association; California Police Chiefs Association
Inc.; Crime Victims United of California; The Los
Angeles Police Protective League; The Los Angeles
County Professional Peace Officers Association; The
Riverside Sheriffs Association
Opposition:None known
PURPOSE
The purpose of this bill is to allow for the use of a
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preliminary oral fluid screening test to establish reasonable
cause to believe a person was driving in violation of laws
prohibiting driving under the influence.
Existing law provides that it is unlawful for a person under the
age of 21 years who has 0.05% or more, by weight, of alcohol in
his or her blood to drive a vehicle. (Vehicle Code § 23140)
Existing law provides it is unlawful for any person who is under
the influence of any alcoholic beverage or drug, or under the
combined influence of any alcoholic beverage and drug, to drive
a vehicle. (Vehicle Code § 23152)
Existing law provides it is unlawful for a person, while driving
under the influence of any drug to drive a vehicle and
concurrently do any act forbidden by law, or neglect any duty
imposed by law in driving the vehicle, which act or neglect
proximately causes bodily injury to any person other than the
driver. (Vehicle Code § 23153(e))
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 or breath for the purpose of determining the
alcoholic content of his or her blood, if lawfully arrested for
a DUI offense. (Vehicle Code § 23612 (a))
Existing law provides 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 in violation of the
sections prohibiting driving under the influence is a field
sobriety test and may be used by an officer as a further
investigative tool. (Vehicle Code § 23162 (h))
This bill provides that a preliminary oral fluid screening test
that indicates the presence or concentration of a drug or
controlled substance based on a sample in order to establish
reasonable cause to believe the person was driving a vehicle in
violation of the sections prohibiting driving under the
influence is a field sobriety test and may be used by the
officer as a further investigative tool.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
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For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
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consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Given the shocking escalation in drug overdose related
deaths and increasing number of drugged driving
fatalities, this has become an urgent matter of public
safety. The alarming increase in drugged drivers is
clearly becoming a greater threat than drunk drivers.
The National Highway Traffic Safety Administration has
reported a decrease in alcohol consumption and an
increase in drug use by drivers in 2014.
http://www.leftlanenews.com/nhtsa-drunk-driving-down-dru
gged-driving-up-in-2014.html#ixzz44u6uzjBD
Drugged driving is a serious public health and safety
problem that is under-reported and under-enforced.
According to Mothers Against Drunk Driving, over 10
million Americans admitted to driving under the
influence of illicit drugs.
We lack the same kind of deterrents for drugged driving
as we do for drunk driving, yet highway safety hazards
and fatalities are increasing with widespread
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prescription and illicit drug abuse across all
demographics. Driving under the influence of drugs is
a growing problem nationally and in California. A 2014
National Highway Traffic Safety Administration report
found that between 2007 and 2014, the percentage of
drivers with drugs in their system on weekend nights
grew from 16% to 20% - including a 50% increase in
drivers with cannabis in their system. The same study
found that the prevalence of alcohol declined by 30%
over the same period, showing the success of increased
enforcement and educational efforts.
***
Currently, law enforcement lacks a roadside screening
device which can detect drugs in a motorist's system -
similar to field breathalyzers to detect alcohol.
SB 1462 allows law enforcement officers to use oral
fluid drug screening tests, proven to be highly
effective, when there is probable cause that a driver
is impaired and the driver has failed sobriety field
tests. Law enforcement now relies on blood tests to
measure drug presence and to indicate possible drug
impairment. Blood tests cannot measure drug levels at
the time of an incident because of legal and logistical
delays in collecting a blood sample. For drugs, this
is a serious problem. For example, 90% of marijuana's
THC is cleared from blood within the first hour after
smoking.
Oral fluid drug screening technology allows officers to
receive critical information in their evaluation of
impaired driving incident, though an oral fluid drug
screening test. Officers can produce more meaningful
impairment assessments and get drivers under the
influence off the road.
Police departments in Bakersfield, Fullerton, Los
Angeles and Sacramento tested oral swabs during 2013
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and 2014, with assistance from the California Office of
Traffic Safety and the National Highway Traffic Safety
Administration.
Kern's case is believed to be the first time oral swab
evidence has been used to get a DUI conviction in
California. "Kern was chosen as a pilot area for the
swab study for some decidedly sordid reasons, according
to Supervising Deputy District Attorney Michael
Yraceburn said.
"We have the most drunken drivers in Kern County. And
we have a methamphetamine problem. And that's one of
the reasons we were chosen unfortunately, the high
likelihood of catching people driving under the
influence of different substances," Yraceburn said. "A
lot of people have been watching our case. That's my
understanding."
Oral swabs do not replace blood tests, which deliver
more conclusive detail about the exact concentration of
legal and illegal substances in a person's blood.
However, oral swabs are the only way to quickly and
accurately test for the presence of six most common
drugs for abuse in a motorist's system. These are,
Amphetamine, Benzodiazepines, Cannabis (THC), Cocaine,
Methamphetamine, Opiates.
According to We Save Lives approximately 13 states
allow for oral fluid testing with California (LA pilot
program), Arizona, Nevada, Vermont and Tennessee
currently using oral fluid testing devices. The
program has been so successful in England and Wales
that it is being expanded to Ireland and the use of the
roadside devices will be phased in nationwide beginning
in 2016.
Oral fluid technology presents a solution to this
problem of drugged driving by allowing an opportunity
to provide roadside testing to detect the presence of
drugs at the time of the traffic stop before the drug
has had time to metabolize. Oral fluid testing is now
used internationally in Australia and Belgium among
other countries, and has been used to administer
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roadside tests in a pilot program by the City of Los
Angeles since 2012. The Los Angeles City Attorney's
office has cited that impaired driving cases filed
using oral fluid technology as evidence are pleading
out earlier than cases solely using blood tests. The
speed of test results from oral fluids allowed them to
be available at the time of filing the case, while
blood results were still pending at the crime lab.
2. Use of Preliminary Oral Fluid Screening Test
When a person is suspected of being DUI, an officer can use a
preliminary alcohol screening test to indicate the presence of
alcohol based on sample breath in order to establish reasonable
cause to believe a person was driving in violations of the
section prohibiting driving under the influence.
This bill would allow law enforcement to use a preliminary oral
fluid screening test that indicates the presence or
concentration of a drug or controlled substance based on a
sample in order to establish reasonable cause to believe the
person was driving in violation of sections prohibiting driving
under the influence.
3. No Per Se for Drugs
Unlike alcohol, there is no per se level at which a person is
presumed intoxicated because of a controlled substance because
the science has yet to be conclusive on what those levels should
be. Because a person can be deemed DUI at a .08% alcohol level
even if they are not showing other signs of intoxication, giving
a breathalyzer to a person who is not otherwise showing signs of
intoxication may not be inappropriate. However, because there
is not a per se level for controlled substances giving the oral
swab test without other reasonable suspicion is probably not
appropriate. The Committee may wish to consider whether it is
appropriate to amend this bill to require reasonable suspicion
of impairment before an oral swab test is given.
4. Technical Amendment
The Vehicle Code Section 23140 reference should be removed from
this bill because it only addresses people under 21 driving with
alcohol in their system not controlled substances.
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