BILL ANALYSIS                                                                                                                                                                                                    



          SENATE COMMITTEE ON APPROPRIATIONS
                             Senator Ricardo Lara, Chair
                            2015 - 2016  Regular  Session

          SB 1462 (Huff) - Vehicles:  driving under the influence:  drug  
          testing
          
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          |Version: April 21, 2016         |Policy Vote: PUB. S. 4 - 1      |
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          |Urgency: No                     |Mandate: No                     |
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          |Hearing Date: May 9, 2016       |Consultant: Jolie Onodera       |
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          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  







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            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.)










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          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  








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          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. 








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                 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.









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