BILL ANALYSIS �
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THIRD READING
Bill No: AB 2020
Author: Pan (D)
Amended: 4/19/12 in Assembly
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/19/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
ASSEMBLY FLOOR : 68-0, 5/17/12 - See last page for vote
SUBJECT : Vehicles: driving under the influence:
chemical tests
SOURCE : California District Attorneys Association
DIGEST : This bill removes 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.
ANALYSIS : Existing law provides that a person who is
lawfully arrested for driving under the influence of a drug
or the combined influence of an alcoholic beverage and drug
has a choice of whether a chemical test to determine
his/her drug or drug and alcohol level shall be a blood,
breath, or urine test. If the person chooses to submit to
a breath test, he/she may also be requested to submit to a
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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. Existing law exempts a person
who is afflicted with hemophilia, or a heart condition and
is using anticoagulant, from the blood test.
This bill deletes the option for persons alleged to be
driving under the influence of drugs to choose a chemical
test of his/her urine for the purpose of determining the
drug content of his/her blood. This bill requires blood
tests where available.
This bill requires that if a blood test is unavailable,
then the person is deemed to have given his/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 deletes the option of a urine test, except as
required as an additional test.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/8/12)
California District Attorneys Association (source)
California Peace Officers' Association
California State Sheriffs' Association
Crime Victims United of California
Los Angeles County District Attorney
Mothers Against Drunk Driving
Sacramento County District Attorney
Sacramento County Sheriff's Department
OPPOSITION : (Verified 8/8/12)
California Public Defenders Association
California Attorneys for Criminal Justice
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ARGUMENTS IN SUPPORT : 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."
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
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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 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.
ARGUMENTS 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 were rejected by the arrestee or the
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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
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
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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.
ASSEMBLY FLOOR : 68-0, 5/17/12
AYES: Achadjian, Alejo, Allen, Atkins, Beall, Bill
Berryhill, Block, Blumenfield, Bonilla, Bradford,
Brownley, Buchanan, Butler, Charles Calderon, Campos,
Carter, Chesbro, Conway, Cook, Davis, Dickinson,
Donnelly, Eng, Feuer, Fong, Fuentes, Furutani, Beth
Gaines, Galgiani, Garrick, Gatto, Gordon, Grove, Hagman,
Halderman, Hall, Harkey, Hayashi, Roger Hern�ndez, Hill,
Huber, Hueso, Huffman, Jeffries, Jones, Knight, Logue,
Ma, Mansoor, Mendoza, Miller, Mitchell, Monning, Morrell,
Nestande, Nielsen, Pan, V. Manuel P�rez, Portantino,
Silva, Smyth, Solorio, Swanson, Torres, Valadao, Wagner,
Williams, John A. P�rez
NO VOTE RECORDED: Ammiano, Cedillo, Fletcher, Gorell,
Lara, Bonnie Lowenthal, Norby, Olsen, Perea, Skinner,
Wieckowski, Yamada
RJG:k 8/8/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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