BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair A
2011-2012 Regular Session B
2
0
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AB 2020 (Pan) 0
As Amended April 19, 2012
Hearing date: June 19, 2012
Vehicle Code
MK:mc
VEHICLES: DRIVING UNDER THE INFLUENCE:
CHEMICAL TESTS
HISTORY
Source: California District Attorneys Association
Prior Legislation: SB 1890 (Hurt) - Chapter 740, Stats. 1998
Support: California Peace Officers' Association; Sacramento
County Sheriff's Department; Sacramento County District
Attorney; California State Sheriffs' Association; Los
Angeles County District Attorney; Mothers Against Drunk
Driving; Crime Victims United of California
Opposition:California Public Defenders Association; California
Attorneys for Criminal Justice
Assembly Floor Vote: Ayes 68- Noes 0
KEY ISSUE
SHOULD THE OPTION OF PROVIDING URINE SAMPLES BE REMOVED AND BLOOD
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TESTS BE MANDATED FOR DETERMINING THE LEVEL OF DRUG INTOXICATION
WHEN A PERSON IS ACCUSED OF DRIVING UNDER THE INFLUENCE OF DRUGS?
PURPOSE
The purpose of this bill is to remove the option of providing
urine samples, and mandate blood tests, for determining the
level of drug intoxication when a person is accused of driving
under the influence of drugs.
Existing law provides that "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 vehicle under like
conditions. (California Vehicle Code � 312.)
Existing law 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 � 23612(a)(1)(A).)
Existing law 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
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influence. (California Vehicle Code � 23612(a)(1)(B).)
Existing law 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 � 23612(a)(1)(C).)
Existing law 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 of specified driving under the
influence provisions. (California Vehicle Code �
23612(a)(1)(D).)
Existing law 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 � 23612(a)(2)(A).)
Existing law 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 has that choice. (California Vehicle Code �
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23612(a)(2)(B).)
Existing law 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 �
23612(a)(2)(C).)
Existing law 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 � 23612(a)(3).)
Existing law 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
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may be used against him or her in a court of law. (California
Vehicle Code � 23612(a)(4).)
Existing law specifies that a person who is unconscious or
otherwise in a condition rendering him or her incapable of
refusal is deemed 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 � 23612(a)(5).)
Existing law states that a person who is afflicted with
hemophilia is exempt from the blood test required by this
section. (California Vehicle Code � 23612(b).)
Existing law 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 �
23612(c).)
Existing law 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 � 23612(d)(1).)
Existing law 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 then shall be deemed to have given his
or her consent to chemical testing of his or her urine and shall
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submit to a urine test. (California Vehicle Code �
23612(d)(2).)
Existing law 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 � 23612(e).)
Existing law 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 � 23612(f).)
Existing law 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 �
23612(g)(1).)
Existing law 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
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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 �
23612(g)(2)(A).)
This bill 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.
This bill requires that if a blood test is unavailable, then the
person is deemed to have given his or her consent to a urine
test.
This bill 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.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
("ROCA")
In response to the unresolved prison capacity crisis, since
early 2007 it has been the policy of the chair of the Senate
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Committee on Public Safety and the Senate President pro Tem to
hold legislative proposals which could further aggravate prison
overcrowding through new or expanded felony prosecutions. Under
the resulting policy known as "ROCA" (which stands for
"Receivership/Overcrowding Crisis Aggravation"), the Committee
has held measures which create a new felony, expand the scope or
penalty of an existing felony, or otherwise increase the
application of a felony in a manner which could exacerbate the
prison overcrowding crisis by expanding the availability or
length of prison terms (such as extending the statute of
limitations for felonies or constricting statutory parole
standards). In addition, proposed expansions to the
classification of felonies enacted last year by AB 109 (the 2011
Public Safety Realignment) which may be punishable in jail and
not prison (Penal Code section 1170(h)) would be subject to ROCA
because an offender's criminal record could make the offender
ineligible for jail and therefore subject to state prison.
Under these principles, ROCA has been applied as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress towards reducing prison
overcrowding by passing legislation which could increase the
prison population. ROCA will continue until prison overcrowding
is resolved.
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation.
On June 30, 2005, in a class action lawsuit filed four years
earlier, the United States District Court for the Northern
District of California established a Receivership to take
control of the delivery of medical services to all California
state prisoners confined by the California Department of
Corrections and Rehabilitation ("CDCR"). In December of 2006,
plaintiffs in two federal lawsuits against CDCR sought a
court-ordered limit on the prison population pursuant to the
federal Prison Litigation Reform Act. On January 12, 2010, a
three-judge federal panel issued an order requiring California
to reduce its inmate population to 137.5 percent of design
capacity -- a reduction at that time of roughly 40,000 inmates
-- within two years. The court stayed implementation of its
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ruling pending the state's appeal to the U.S. Supreme Court.
On May 23, 2011, the United States Supreme Court upheld the
decision of the three-judge panel in its entirety, giving
California two years from the date of its ruling to reduce its
prison population to 137.5 percent of design capacity, subject
to the right of the state to seek modifications in appropriate
circumstances. Design capacity is the number of inmates a
prison can house based on one inmate per cell, single-level
bunks in dormitories, and no beds in places not designed for
housing. Current design capacity in CDCR's 33 institutions is
79,650.
On January 6, 2012, CDCR announced that California had cut
prison overcrowding by more than 11,000 inmates over the last
six months, a reduction largely accomplished by the passage of
Assembly Bill 109. Under the prisoner-reduction order, the
inmate population in California's 33 prisons must be no more
than the following:
167 percent of design capacity by December 27, 2011
(133,016 inmates);
155 percent by June 27, 2012;
147 percent by December 27, 2012; and
137.5 percent by June 27, 2013.
This bill does not aggravate the prison overcrowding crisis
described above under ROCA.
COMMENTS
1. Need for This Bill
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
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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. Elimination of Urine Test for Suspected Driving Under the
Influence of Drugs
Under existing law, a person is deemed to have given his or her
consent to chemical testing of his or her blood or breath if
suspected of driving under the influence of alcohol and his or
her consent to chemical testing of his or her blood, breath, or
urine if suspected of driving under the influence of drugs.
This bill will eliminate the option for a urine test unless a
blood test is unavailable or the person is a hemophiliac or
using an anticoagulant under the direction of a physician.
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
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giving blood causes a greater risk (such as heart disease or
hemophilia). Prosecutors can use 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.
3. 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
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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.
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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 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.
4. Opposition
In opposition the California Public Defenders Association
states:
First, this is unnecessary because both scientific
literature and several published court decisions have
repeatedly and uniformly held that properly conducted
and timely urine tests can produce forensically
reliable measurements of virtually all drugs in a test
subjects 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 involved and the insult to physical
dignity. Since urine testing is sufficient to the task
it is difficult to imagine when the need for a blood
test would outweigh the 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
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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 test for
alcohol-based DUI was eliminated, but that still left
an alternative to "invasion by needle," namely the
breath test.
Moreover, the perceived problems with urine tests for
alcohol do not apply to drug tests. In particular, a
urine test for alcohol requires a voiding of the
bladder and a wait for at least 20 minutes before a
testable sample is collected. This is due to the
relatively short "half life" of alcohol in the blood
and the comparatively long time that alcohol can
accumulate in the bladder. Thus, the "stale" urine
must be voided, and a "fresh" sample collected
reflecting only the alcohol most recently in the
subject's blood. This concern does not apply to drug
testing because drugs normally have a much longer "half
life" and a preliminary voiding is not required.
Also, when testing urine for alcohol forensic experts
had to deal with the relatively wide range of the
partition ratio between blood alcohol and urine alcohol
in trying to calculate whether a prohibited level of
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alcohol in the blood is represented by the
concentration in the urine. The average ratio was
commonly represented as 1.3 to 1, but it was also
commonly accepted that the ratio could range down to .9
to 1 and up to 1.6 to 1 (and some scientific literature
articulated an even wider range). When trying to
establish a blood alcohol level as precise as .08% the
breadth of this range was a significant hurdle, often
requiring a measured level of .10 to .12% to be sure
the corresponding level in the blood was at least.08%.
The same difficulty is not presented in urine testing
for drugs. First, the known partition ratio for most
drugs between blood concentration and urine
concentration is not nearly as wide as it is for
alcohol. Secondly, drug intoxication is not pegged to
a specific numerical level, like it is for alcohol, so
partition ratio variability is less consequential.
Drugs affect different people differently and since
specific levels in the blood (in the minor to moderate
range) don't necessarily reflect influence it is
critical to evaluate driving behavior and physical
symptoms together with the measured level of drugs in
establishing prohibited drug influence during driving.
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