BILL ANALYSIS Ó SENATE COMMITTEE ON APPROPRIATIONS Senator Ricardo Lara, Chair 2015 - 2016 Regular Session SB 1462 (Huff) - Vehicles: driving under the influence: drug testing ----------------------------------------------------------------- | | | | | | ----------------------------------------------------------------- |--------------------------------+--------------------------------| | | | |Version: April 21, 2016 |Policy Vote: PUB. S. 4 - 1 | | | | |--------------------------------+--------------------------------| | | | |Urgency: No |Mandate: No | | | | |--------------------------------+--------------------------------| | | | |Hearing Date: May 9, 2016 |Consultant: Jolie Onodera | | | | ----------------------------------------------------------------- This bill meets the criteria for referral to the Suspense File. Bill Summary: SB 1462 would allow the use of an oral fluid screening test to determine the presence or concentration of drugs, to assist an officer in making a determination that a person was driving under the influence of drugs. Fiscal Impact: Local law enforcement agencies : Potentially major non-reimbursable local costs in the millions of dollars (Local Funds) statewide for screening kits, training, and associated operational costs. CHP : To the extent the California Highway Patrol (CHP) opts to utilize this investigatory tool, potentially significant one-time and ongoing costs potentially in the hundreds of thousands of dollars (Special Fund*/Federal Funds) to purchase the screening kits. To the extent the CHP seeks federal grant funding to purchase the screening kits would serve to mitigate SB 1462 (Huff) Page 1 of ? state costs. To the extent federal funding is not granted or is insufficient to cover total costs, these costs would be funded by state funds. The costs associated with training on the use of the tests are estimated to be minor and absorbable. DMV : Minor costs of less than $10,000 (Special Fund*) to distribute memoranda to the courts and law enforcement agencies. State prisons : Potentially significant increase in state costs (General Fund) for new commitments to state prison to the extent the use of oral fluid screening tests results in additional felony convictions to state prison. The CDCR indicates over 1,700 commitments in 2015 under the applicable DUI offenses. The number of additional commitments resulting from the bill cannot be known with certainly. For every one percent increase in annual commitments, costs are estimated at $500,000 (General Fund) assuming the contract bed rate of $29,000 per year. Local jails : Potentially major increase in local costs (Local Funds) for additional misdemeanor convictions that result in a greater number of sentences to county jail. The DMV data indicates nearly 118,000 convictions in 2015 for the DUI offenses applicable to this measure. Even a one percent increase in convictions would result in a significant impact to local jails. *Motor Vehicle Account Background: Existing law provides that it is unlawful for a 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 (VC) § 23152.) Existing law provides that it is unlawful for a person, while under the influence of any alcoholic beverage or drug, or while under the combined influence of any alcoholic beverage and 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. (VC § 23153.) SB 1462 (Huff) Page 2 of ? Under existing law, a preliminary alcohol screening test based on a breath sample in order to establish reasonable cause to believe the person was driving a vehicle in violation of specified DUI laws may be used by an officer. If the officer decides to use a preliminary alcohol screening test, the officer is required to advise the person that he or she is requesting that person take the test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of both. Existing law provides that a person's obligation to submit to a blood, breath, or urine test for the purposes of determining the alcohol or drug content of that person's blood is not satisfied by the person submitting to the preliminary test. The officer is required to advise the person of that fact and of the person's right to refuse to take the preliminary alcohol screening test. (VC § 23612.) This bill seeks to additionally authorize the use of preliminary oral fluid screening tests to assist officers in establishing reasonable cause to believe a person is driving under the influence of drugs. According to the U.S. Governmental Accounting Office (GAO) report to Congress, Drug-Impaired Driving - Additional Support Needed for Public Awareness Initiatives (February 2015): Various state and national-level data sources-including surveys, arrest data, drug-testing results, and crash data-provide limited information on the extent of drugged and drug-impaired driving in the United States. For example, based on preliminary results from a representative sample of weekend-nighttime and Friday daytime drivers, the National Highway Traffic Safety Administration's (NHTSA) 2013-2014 National Roadside Survey of Alcohol and Drug Use by Drivers (NRS) estimated that 20 percent of drivers would have tested positive for at least one drug, with marijuana being the most common drug. However, the survey does not capture the extent to which drivers were impaired by drugs. Arrest data and drug-testing results provide some information on drug-impaired driving, but these data are limited. For example, data for drug impairment may not be separated from that for alcohol impairment and drug testing is not standardized. According to NHTSA officials, currently available data on drug involvement in crashes are generally SB 1462 (Huff) Page 3 of ? unreliable due to variances in reporting and testing. The lack of a clear link between impairment and drug concentrations in the body makes it difficult to define drug impairment, which, in turn, exacerbates challenges related to enforcement and public awareness. Compared to alcohol, defining and identifying impairment due to drugs is more complicated due to the large number of available drugs and their unpredictable effects. For example, the NRS includes tests for 75 illegal prescriptions, and over-the-counter (OTC) drugs identified as potentially impairing. Additionally, law enforcement processes for obtaining samples for drug testing can be time consuming and result in a loss of evidence. For example, there is no validated device for roadside drug testing, and obtaining a search warrant to collect a blood sample to confirm the presence of drugs in a driver's system could take several hours, during which time the concentration of the drug in the driver's system could dissipate. Further, state officials identified limited public awareness about the dangers of drugged driving as a challenge. As a result, members of the public may drive while impaired without knowing the risks, potentially leading to collisions, injuries, and fatalities. Proposed Law: This bill would allow the use of an oral fluid screening test by a state or local law enforcement officer to determine the presence or concentration of drugs, to assist an officer in making a determination that a person was driving under the influence of drugs. Specifically, 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 is a field sobriety test and may be used in order to establish reasonable cause to believe the person was driving a vehicle in violation of specified driving under the influence offenses. States that if an officer decides to use an oral fluid screening test, the officer shall advise the person that he or she is requesting that person to take an oral fluid screening test to assist the officer in determining if that person is under the influence of alcohol or drugs, or a combination of alcohol and drugs. SB 1462 (Huff) Page 4 of ? States that a person's obligation to submit to a blood, breath, or urine test, as required after arrest, for the purpose of determining the alcohol or drug content of that person's blood, is not satisfied by the person submitting to an oral fluid screening test. The officer shall advise the person of that fact. Requires the officer to advise the person of his or her right to refuse to take the oral fluid screening test. Related Legislation: AB 1356 (Lackey) 2015 was substantially similar to this measure. AB 1356 failed passage in the Assembly Committee on Public Safety. Staff Comments: By authorizing the use of oral fluid screening tests, this bill could result in major costs to law enforcement agencies to purchase the oral fluid screening tests and provide officer training on their use. Costs would be dependent on the number of kits purchased, the number of officers trained to use the investigatory advice, and the associated operational activities required. To the extent the use of oral fluid screening tests leads to additional arrests and subsequent convictions for DUI offenses, this bill could result in additional costs for state and local incarceration of an unknown, but potentially significant amount. Staff notes there is currently no per se level at which a person is presumed intoxicated due to a controlled substance, and a standard level has not been established at which a person is presumed to be impaired. The lack of such a standard could lead to future cost pressure on the courts related to challenges brought forward on cases involving the use of these devices. SB 1462 (Huff) Page 5 of ? -- END --