BILL ANALYSIS                                                                                                                                                                                                    



          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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