BILL ANALYSIS �
AB 2020
Page 1
Date of Hearing: April 10, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2020 (Pan) - As Introduced: February 23, 2012
SUMMARY : Removes the option of providing urine samples, and
mandates blood tests, for determining the level of drug
intoxication when a person is accused of driving under the
influence of drugs. Specifically, this bill :
1)Deletes the option for persons alleged to be driving under the
influence of drugs to choose a chemical test of his or her
urine for the purpose of determining the drug content of his
or her blood. The bill would require blood tests where
available.
2)Requires that if a blood test is unavailable, then the person
is deemed to have given his or her consent to a urine test.
3)Requires that if the person is lawfully arrested for driving
under the influence of a drug or the combined influence of an
alcoholic beverage and any drug, the person only has the
choice of either a blood or breath test. This bill would
delete the option of a urine test, except as required as an
additional test.
EXISTING LAW
1)States 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 an offense allegedly committed in violation of driving
under the influence. If a blood or breath test, or both, are
unavailable, then the person shall submit to the remaining
test in order to determine the presence, by weight, of alcohol
in the person's blood or if both are unavailable the person
shall submit a urine test. �California Vehicle Code Section
23612(a)(1)(A).]
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2)States 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 urine for the purpose of determining the drug
content of his or her blood, if lawfully arrested for an
offense allegedly committed in violation of driving under the
influence. �California Vehicle Code Section 23612(a)(1)(B).]
3)Specifies that the testing shall be incidental to a lawful
arrest and administered at the direction of a peace officer
having reasonable cause to believe the person was driving a
motor vehicle in violation of driving under the influence.
�California Vehicle Code Section 23612(a)(1)(C).]
4)Requires that the person shall be told that his or her failure
to submit to, or the failure to complete, the required
chemical testing will result in a fine, mandatory imprisonment
if the person is convicted of a violation of driving under the
influence, and the suspension of the person's privilege to
operate a motor vehicle for a period of one year, the
revocation of the person's privilege to operate a motor
vehicle for a period of two years if the refusal occurs within
10 years of a separate violation specified driving under the
influence provisions. �California Vehicle Code Section
23612(a)(1)(D).]
5)States that if the person is lawfully arrested for driving
under the influence of an alcoholic beverage, the person has
the choice of whether the test shall be of his or her blood or
breath and the officer shall advise the person that he or she
has that choice. If the person arrested either is incapable,
or states that he or she is incapable, of completing the
chosen test, the person shall submit to the remaining test. If
a blood or breath test, or both, are unavailable, then the
person shall submit to the remaining test in order to
determine the presence, by weight, of alcohol in the person's
blood or if both are unavailable the person shall submit a
urine test. �California Vehicle Code Section 23612(a)(2)(A).]
6)Provides if the person is lawfully arrested for driving under
the influence of any drug or the combined influence of an
alcoholic beverage and any drug, the person has the choice of
whether the test shall be of his or her blood, breath, or
urine, and the officer shall advise the person that he or she
AB 2020
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has that choice. �California Vehicle Code Section
23612(a)(2)(B).]
7)States that a person who chooses to submit to a breath test
may also be requested to submit to a blood or urine test if
the officer has reasonable cause to believe that the person
was driving under the influence of a drug or the combined
influence of an alcoholic beverage and a drug and if the
officer has a clear indication that a blood or urine test will
reveal evidence of the person being under the influence. The
officer shall state in his or her report the facts upon which
that belief and that clear indication are based. The person
has the choice of submitting to and completing a blood or
urine test, and the officer shall advise the person that he or
she is required to submit to an additional test and that he or
she may choose a test of either blood or urine. If the person
arrested either is incapable, or states that he or she is
incapable, of completing either chosen test, the person shall
submit to and complete the other remaining test. �California
Vehicle Code Section 23612(a)(2)(C).]
8)States that if the person is lawfully arrested for an offense
allegedly committed in violation of driving under the
influence, and, because of the need for medical treatment, the
person is first transported to a medical facility where it is
not feasible to administer a particular test of, or to obtain
a particular sample of, the person's blood, breath, or urine,
the person has the choice of those tests that are available at
the facility to which that person has been transported. In
that case, the officer shall advise the person of those tests
that are available at the medical facility and that the
person's choice is limited to those tests that are available.
�California Vehicle Code Section 23612(a)(3).]
9)States that the officer shall also advise the person that he
or she does not have the right to have an attorney present
before stating whether he or she will submit to a test or
tests, before deciding which test or tests to take, or during
administration of the test or tests chosen, and that, in the
event of refusal to submit to a test or tests, the refusal may
be used against him or her in a court of law. �California
Vehicle Code Section 23612(a)(4).]
10)Specifies that a person who is unconscious or otherwise in a
condition rendering him or her incapable of refusal is deemed
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not to have withdrawn his or her consent and a test or tests
may be administered whether or not the person is told that his
or her failure to submit to, or the noncompletion of, the test
or tests will result in the suspension or revocation of his or
her privilege to operate a motor vehicle. A person who is dead
is deemed not to have withdrawn his or her consent and a test
or tests may be administered at the direction of a peace
officer. �California Vehicle Code Section 23612(a)(5).]
11)States that a person who is afflicted with hemophilia is
exempt from the blood test required by this section.
�California Vehicle Code Section 23612(b).]
12)Provides that a person who is afflicted with a heart
condition and is using an anticoagulant under the direction of
a licensed physician and surgeon is exempt from the blood test
required by this section. �California Vehicle Code Section
23612(c).]
13)States that a person lawfully arrested for an offense
allegedly committed while the person was driving a motor
vehicle in violation of driving under the influence may
request the arresting officer to have a chemical test made of
the arrested person's blood or breath for the purpose of
determining the alcoholic content of that person's blood, and,
if so requested, the arresting officer shall have the test
performed. �California Vehicle Code Section 23612(d)(1).]
14)States that if a blood or breath test is not available the
person shall submit to the remaining test in order to
determine the percent, by weight, of alcohol in the person's
blood. If both the blood and breath tests are 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. �California Vehicle Code Section 23612(d)(2).]
15)Provides that if the person, who has been arrested for a
violation of driving under the influence refuses or fails to
complete a chemical test or tests, or requests that a blood or
urine test be taken, the peace officer, acting on behalf of
the department, shall serve the notice of the order of
suspension or revocation of the person's privilege to operate
a motor vehicle personally on the arrested person. The notice
shall be on a form provided by the department. �California
Vehicle Code Section 23612(e).]
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16)States that if the peace officer serves the notice of the
order of suspension or revocation of the person's privilege to
operate a motor vehicle, the peace officer shall take
possession of all driver's licenses issued by this state that
are held by the person. The temporary driver's license shall
be an endorsement on the notice of the order of suspension and
shall be valid for 30 days from the date of arrest.
�California Vehicle Code Section 23612(f).]
17)Provides that the peace officer shall immediately forward a
copy of the completed notice of suspension or revocation form
and any driver's license taken into possession, with the
report required to the department. If the person submitted to
a blood or urine test, the peace officer shall forward the
results immediately to the appropriate forensic laboratory.
The forensic laboratory shall forward the results of the
chemical tests to the department within 15 calendar days of
the date of the arrest. �California Vehicle Code Section
23612(g)(1).]
18)States that notwithstanding any other provision of law, a
document containing data prepared and maintained in the
governmental forensic laboratory computerized database system
that is electronically transmitted or retrieved through public
or private computer networks to or by the department is the
best available evidence of the chemical test results in all
administrative proceedings conducted by the department. In
addition, any other official record that is maintained in the
governmental forensic laboratory, relates to a chemical test
analysis prepared and maintained in the governmental forensic
laboratory computerized database system, and is electronically
transmitted and retrieved through a public or private computer
network to or by the department is admissible as evidence in
the department's administrative proceedings. In order to be
admissible as evidence in administrative proceedings, a
document described in this subparagraph shall bear a
certification by the employee of the department who retrieved
the document certifying that the information was received or
retrieved directly from the computerized database system of a
governmental forensic laboratory and that the document
accurately reflects the data received or retrieved.
�California Vehicle Code Section 23612(g)(2)(A).]
FISCAL EFFECT : Unknown
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COMMENTS :
1)Author's Statement : According to the author, "Under current
law, DUI offenders suspected of being under the influence of
drugs or the combination of drugs and alcohol can opt for a
blood or urine test. While the urine test used to be an option
for those suspected of driving under the influence of only
alcohol, the test was removed as an option in 1998 because of
its unreliability. However, the test is still an option for
those driving under the influence of drugs or the combination
of drugs and alcohol. This minor loophole results in more DUI
court cases being dismissed because of unreliable urine tests,
and puts the safety of the public at risk. Tighter DUI laws
mean safer citizens and safer communities. AB 2020 is a
necessary piece of legislation to ensure that DUI drug and
combination drug and alcohol offenders can be accurately
prosecuted."
2)Definition of Drugs for Purposes of DUI : "Drug" means any
substance or combination of substances, other than alcohol,
that could so affect the nervous system, brain, or muscles of
a person as to impair, to an appreciable degree, his or her
ability to drive a vehicle in the manner that an ordinarily
prudent and cautious person, in full possession of his or her
faculties, using reasonable care, would drive a similar under
like conditions. (California Vehicle Code Section 312.)
3)Invasiveness of Blood Tests : When determining the
appropriateness of chemical tests for persons suspected of
criminal activity it is the duty of policy makers to balance
the invasiveness of the procedures with the level of
information which can be obtained. In this case the balance
is between the additional information which can be garnered
from a blood test (in lieu of a urine test) versus the
invasiveness of a needle drawing blood from an accused
individual (in lieu of providing a urine sample). According
to the opponents: blood, breath, and urine tests are all
searches under the 4th Amendment. They argue that invasive
searches of the interior of the body require special
justification and a balancing of the need against the medical
risk involved and the insult to physical dignity. Special
consideration should be given to persons suffering from
medical conditions in which giving blood causes a greater risk
(such as heart disease or hemophilia). Prosecutors can use
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evidence of drugs in the system with other evidence gained at
the scene, such as field sobriety tests or poor driving by the
defendant. The exact level of intoxication is not the only
evidence in a DUI case. Proponents have cited studies which
state that blood tests are much more specific in determining
the level of drugs than urine tests, due to the way drugs are
metabolized in the human body.
4)Argument in Support : According to the California District
Attorneys Association , "Since 1992, California drivers
arrested for DUI-drug have been deemed to have given consent
to having their blood or urine tested to determine their level
of impairment. However, urine tests are widely acknowledged
as an inaccurate and unreliable measure of drug levels in a
person's system. According to the National Institute of Drug
Abuse, urine tests can prove that a driver has recently used a
drug, but cannot distinguish the level of the drug in the
driver's system. Drug concentrations are absorbed into urine
and fatty tissues at varying rates depending on the person
consuming the drug. These concentrations are also 'subject to
dilution, depending on the volume of liquid consumed, and
therefore cannot be reliably used to assess impairment.'
"According to the California Bureau of Forensic Services,
'Quantitation of the drug(s) found in urine samples is of no
value for drugs other than alcohol?Due to the variability of
absorption, distribution, metabolism, excretion and
elimination of drugs between individuals no correlation can be
made between the presence of a drug in the urine and levels of
drug in blood." For example, levels or marijuana found in a
urine test could indicate that the driver is either a chronic
user or has recently used the drug, but do not indicate how
recently the drug was used, or if the driver was actually
under the influence at the time of arrest. A blood test, on
the other hand, can indicate the level of intoxication
experienced by the driver at the time of arrest.
"Many DUI defense attorneys advise drivers to opt for a urine
test because it is the most unreliable indicator of
drug-related impairment, and thus makes it easier to challenge
in court. As a result, more DUI cases go on trial when a
urine test is used to the ambiguity of the test results. This
has the effect of crowding California's already congested
court system. Urine tests also allow persons who illegally
drive while under the influence of drugs to go unpunished due
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to the lack of reliable evidence, when a blood test could have
confirmed intoxication. One must also consider the benefit of
helping to ensure that innocent people are not convicted
because an unreliable test is allowed to remain in use.
Taxpayers would be better served by eliminating the urine test
option, thus cutting court costs by keeping minor DUI cases
out of the courtroom."
5)Argument in Opposition: According to the California Public
Defenders Association , "When an individual is arrested for
driving under the influence of drugs and alcohol the implied
consent law requires him to submit to a blood or urine test
since a breath test will test for alcohol only. AB 2020 would
delete the option of a urine test for drugs, thus denying the
arrestee any choice and subjecting him to a compulsory blood
draw.
"First, this is unnecessary because both scientific literature
and several published court decision have repeatedly and
uniformly held that properly conducted and timely urine tests
can produce forensically reliable measurement of virtually all
drugs in a test subject system. Secondly, Fourth Amendment
jurisprudence has consistently held that blood, breath, or
urine tests are searches, and that invasive searches of the
interior of the body require special justification and a
balancing of need against the medical risk and invasiveness
involved in sticking a needle into someone's vein. Previous
judicial approval of blood tests has almost always been based
on the legal availability of other tests which were rejected
by the arrestee or the temporary unavailability of those
alternatives through no fault of the police. When warrantless
forcible blood draws are permitted the courts require not only
probable cause and physical custody of the subject but a
showing of exigency, non-brutal methods, and proper medical
safeguards. Since we know that urine testing is available and
scientifically reliable it is hard to see how the required
'exigency' can be established.
"While some in law enforcement might prefer a blood draw because
they erroneously perceive it to be more accurate than urine -
as long as urine tests meet the threshold for scientific
reliability that preference alone should not outweigh the
arrestees' legitimate privacy interests in his physical safety
and integrity. It is true that several years ago the urine
tests for alcohol-based DUI was eliminated, but that still
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left an alternative to 'invasion by needle,' namely the breath
test."
6)Related Legislation: AB 2552 (Torres), would make it a crime
for a person who has any level of cannabinoids or synthetic
cannabinoid compound, as defined, in his or her blood or urine
to drive a vehicle. AB 2552 is set for hearing in Assembly
Public Safety on April 24, 2012.
7)Prior Legislation : SB 1890 (Hurtt), Statutes of 1998, chapter
740, deleted the requirement that a person who is lawfully
arrested for driving a vehicle, or operating a water-related
vessel or device or aircraft while under the influence of an
alcoholic beverage be offered the choice to submit to a urine
test. The bill continued to require the urine test option to
be available in these instances under specified circumstances
or if the person is arrested for driving or operating a
vehicle, water-related vessel or device, or aircraft while
under the influence of a combination of drugs and alcohol or
drugs only.
REGISTERED SUPPORT / OPPOSITION :
Support
California District Attorneys Association
Crime Victims United
Mothers Against Drunk Driving (California)
Sacramento County District Attorney, Jan Scully
Opposition
California Public Defenders Association
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744