BILL ANALYSIS �
SB 50
Page 1
Date of Hearing: June 26, 2012
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 50 (Correa) - As Amended: June 20, 2012
SUMMARY : States that it is unlawful to operate a motor vehicle
with any amount of a controlled substance in the driver's
system. Specifically, this bill :
1)States that it is unlawful for any person to drive a vehicle
with a controlled substance in his or her blood.
2)Provides that it is a rebuttable presumption that the person
had a controlled substance in his or her blood at the time of
driving a vehicle if the person had any measurable amount of a
controlled substance in his or her blood at the time of the
performance of a chemical test within three hours after
driving.
3)Clarifies that a controlled substance does not include a
controlled substance or narcotic drug when administered by or
under the direction of a person licensed by the state to
dispense, prescribe, or administer controlled substances. The
defendant shall bear the burden of showing that the exception
applies.
4)Makes legislative findings that include:
a) The problem of drugged driving continues to rise in
California and poses a substantial threat to public safety.
b) According to the National Highway Traffic and Safety
Administration, 30 percent of all drivers who were killed
in motor vehicle crashes in California in 2010 tested
positive for drugs, an increase since 2006.
c) Research shows that drugs have an adverse effect on
judgment, reaction time, motor skills, and memory that are
all critical skills for safe and responsible driving.
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d) Drugged driving is a problem not widely recognized by
the public, but increases in crashes, fatalities, and
injuries demonstrate that immediate action is needed to
reduce the number of impaired drivers on our roads.
e) Because there is currently no established impairment
level for illegal hardcore drugs and other drugs used
illegally, prosecuting drug impairment driving cases can be
difficult. Establishing a zero tolerance for illegal drug
use while driving will assist in prosecuting these cases
and advance public policy.
EXISTING LAW :
1)States it is unlawful for any person who is under the
influence of alcohol, or under the combined influence of
alcohol and any drug, to drive a vehicle. �Vehicle Code
Section 23152(a).]
2)Provides that it is unlawful for any person who has a blood
alcohol concentration (BAC) of 0.08% or more, by weight, of
alcohol in his or her blood to drive a vehicle. �Vehicle Code
Section 23152(b).]
3)States that in any prosecution for driving under the influence
(DUI) it is a rebuttable presumption that the person had 0.08%
BAC at the time of the performance of a blood alcohol test
within three hours after the driving. �Vehicle Code Section
23152(b).]
4)Provides that it is unlawful for any person who is addicted to
the use of any drug to drive a vehicle �Vehicle Code Section
23152(c).]
5)States that cocaine, morphine, opium extracts, specified
opiates, amphetamines, methamphetamine, and phencyclidines,
and specified immediate precursors to amphetamine,
methamphetamine, and PCP, and others are classified as
Schedule II Controlled Substances. �Health and Safety Code
(HSC) Section 11055.]
6)Provides that narcotic drugs containing nonnarcotic medicinal
ingredients are included on Schedule V's list of controlled
substances. Included on this list are substances containing
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codeine and opium which contain one or more non-narcotic
medicinal ingredients in sufficient proportions to confer upon
the compound valuable medicinal qualities other than those
possessed by the narcotic drug alone. (HSC Section 11058.)
This includes not more than 200 milligrams of codeine per 100
millileters or per 100 grams; not more than 100 milligrams of
opium per 100 millileters or per 100 grams. �HSC Section
11055(c).]
7)Specifies what medical practitioners may write or issue a
prescription for drugs. (HSC Section 11150.)
8)States that any person who possesses any controlled substance,
as specified, or any controlled substance which is a narcotic
drug, unless upon the written prescription of specified
medical practitioners, shall be punished by imprisonment in
the state prison for 16 months, 2 or 3 years. �HSC Section
11350(a).]
9)Defines a "controlled substance analog" as a substance the
chemical structure of which is substantially similar to the
chemical structure of a controlled substance classified on
Schedule II or Schedule III; or a substance which has, or is
represented as having, a stimulant, depressant or
hallucinogenic effect on the central nervous system similar
to, or greater than, the effect of a controlled substance
classified on Schedule II or Schedule III. �HSC Section
11401(b).]
10)Makes it unlawful for any person to use, or be under the
influence of specified controlled substances, or narcotic
drugs classified in Schedules III, IV, or V, except when
administered under the direction of a person licensed by the
state to prescribe controlled substances. �HSC Section
11550(a).] Provides that it shall be the burden of the
defense to show that it comes within the exception.
Conviction of a violation of this statute is a misdemeanor
punishable by a term of not less than 90 days nor more than
one year in the county jail.
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Research from
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the Office of National Drug Control Policy and National
Highway Traffic Safety Administration has identified drugged
driving as a growing and hazardous problem.
"Drugged driving is not widely recognized by the public,
however increases in injuries, crashes and fatalities among
drivers testing positive for illegal drugs emphasizes the
danger of this problem.
"Drugs can have an adverse effect on judgment, reaction time,
motor skills and memory - all of which are vital skills for
safe and responsible driving. Though state and local law
enforcement agencies are making efforts to better train
officers to detect drugged driving, the prosecution of drug
impaired drivers is often difficult and complicated under
California Law.
"SB 50 creates a zero tolerance law for driving under the
influence of illegal drugs, giving law enforcement the tools
they need to prosecute drugged drivers and helping keep
Californian roads safe."
2)Existing Law Allows the Prosecution of DUI of Drugs : Under
existing law, prosecutors can charge a Vehicle Code Section
23152(a) violation, DUI of alcohol or under the combined
influence of alcohol and a drug. However, in such a case, it
is necessary for the prosecutor to prove that the person's
driving was impaired.
"For a defendant to be guilty of driving while under the
influence of drugs in violation of Vehicle Code Section
23152(a), 'the drug(s) must have so far affected the nervous
system, the brain, or the muscles of the individual as to
impair to an appreciable degree the ability to operate a motor
vehicle in a manner like that of an ordinarily prudent and
cautious person in full possession of his or her faculties',"
citing People v. Enriquez , 42 Cal. App. 4th at p. 665; Gilbert
v. Municipal Court , 73 Cal. App. 3d at p. 727. "Driving while
under the influence of drugs involves a greater degree of
impairment of an individual's faculties, and in that respect
is not similar to merely being under the influence of drugs."
� People v. Canty , 32 Cal. 4th 1266 (2004).]
If the arresting officer's testimony and any other evidence
indicates to the prosecutor that he or she will be able to
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prove that ingestion of a controlled substance affected the
nervous system, the brain, or the muscles of the individual as
to "impair to an appreciable degree the ability to operate a
motor vehicle in a manner like that of an ordinarily prudent
and cautious person in full possession of his or her
faculties" (Id.), there is no reason that such a case would
not be charged. Although arguably the 0.08% BAC presumption
with respect to alcohol requires less work and thus makes a
successful prosecution easier, many cases have been
successfully prosecuted in the absence of evidence as to BAC
level. If the person's driving is impaired and the evidence
of such impairment is credible, there is no reason that an
experienced prosecutor would refuse such a case.
3)Crime Laboratories Have Different Equipment and Capabilities :
It is similarly unclear whether all crime laboratories have
equipment and analysts sophisticated enough to detect the
difference between the presence of heroin and a similar
measurable amount of a legally-prescribed opiate drug such as
codeine, hydrocodone, and others. As stated in the DOJ
report, "Not all forensic laboratories are created equal.
What one laboratory may be able to detect may not be possible
in another due to the lack of sophisticated equipment.
Therefore, a 'measurable amount' in one laboratory may be
different in another. To define a 'measurable amount', a
laboratory needs to determine an appropriate 'detection limit'
(a limit established using a particular technical procedure
and analytical instrument, below which detection is not
possible). 'Detection limits' are related to the 'sensitivity
of the assay' and may be appropriate for a particular
controlled substance for one laboratory but not another
laboratory. Additionally, established 'cut-off limits', also
known as the threshold (the defined concentration of a
substance in a specimen at or above which the test is called
positive and below which it is called negative) are not
standardized either. Even if the term 'Any Measurable Amount'
was applied to the prohibition rule, until uniformly accepted
limits were established the word ANY would be meaningless.
Therefore, without establishing uniform detection and cutoff
limits, the meaning of 'measurable amount' is ambiguous and
could be construed differently creating an untenable
situation, which could result in the law being applied
inequitably."
Thus, it is possible for a person who routinely takes, e.g.,
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Tylenol with Codeine, to have sufficient quantities in his or
her system to have that legal drug register as heroin or its
metabolites. Such a person is unlikely to have impaired
driving due to the presence of a therapeutic amount of the
prescription drug in his or her system, yet still be subjected
to an invasive chemical test in the form of a blood draw,
potential criminal charges, and the necessity of taking all of
the procedural steps to get the arrest record expunged. This
problem is complicated by the fact that this bill does not
require proof of impairment. If the driver was not impaired
and was taking a drug pursuant to a medical prescription, what
is the nexus between the conduct and the crime?
Persons with serious illnesses may take a number of different
drugs; even if this bill carved out an exception for legally
prescribed drugs, is it reasonable to require a seriously ill
person to carry on his or her person copies of all prescribed
drugs? This bill does not have an exception for prescribed
drugs and presumable, if the bill became law, chronic pain
patients, and many others taking certain medications under a
doctor's care would be unable to drive. Depriving thousands
of citizens of the privilege to drive to their doctor
appointments, chemotherapy, etc., is unreasonable and unlikely
to survive the rational basis test imposed by the courts.
4)Threshold Levels May Vary According to the Laboratory Used:
There are no established standards in California for various
controlled substances; it has been suggested that few, if any,
laboratories have the equipment or resources to test as low as
zero or just above the zero level. Additionally, what may be
an appropriate detection limit for one laboratory (also
referred to as "sensitivity of the assay") is a limit
established using a particular technical procedure and
analytical instrument below which detection is not possible
for a controlled substance may be inappropriate for another
laboratory using different procedures and instruments.
Additionally, established cut-off limits, known as "threshold
limits" are the defined concentration of a substance in a
specimen at or above which the test will be called positive
and below which the test is called negative. These threshold
limits are not standardized either, creating a possible
situation of differing results as to the same specimen
depending upon which laboratory is requested to perform the
analysis. Therefore, without establishing uniformly accepted
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detection and cut-off limits, the meaning of the specified
amounts could be meaningless and also could be construed
differently depending upon the particular laboratory
conducting the analysis. This potential creates an untenable
situation, which could easily result in the law - which
appears to be well-intentioned - being applied inequitably and
in an arbitrary or discriminatory manner and also creates a
problem for law enforcement and for the prosecution - if
evidence is introduced that a certain specimen is considered
positive by one laboratory but negative by another, the
defendant has an obvious reasonable doubt argument.
The United States Department of Transportation (US DOT) is
attempting to initiate an effort to establish voluntary
national standards for forensic labs that will specify the
minimum equipment, procedures, qualifications and training
necessary for forensic laboratories. According to the US DOT,
the problem of differing quality of tests between different
laboratories is a major issue that needs to be resolved. The
US DOT is working with several of the national toxicology
associations regarding this problem.
5)Laboratory Interpretation Depends on Complex Set of Factors :
According to "Drug Testing in a Drug Court Environment"
(United States Department of Justice, Office of Justice
Programs, May 2000), "Although drug test results are
frequently reported in terms of 'positive' or 'negative', in
reality, the determination of the presence or absence of a
particular drug in the system is not always a black-and-white
determination. Ultimately, for a drug court program, a
positive or negative result reflects the presence or absence
of certain drug metabolites in the sample at a concentration
above or below the established cutoff concentration. How the
laboratory interprets such results and the court responds to
them depends upon a complex set of factors requiring an
understanding of:
a) "The biological process that affects the length of time
different drugs stay in the human body;
b) "Interactions of one drug with another;
c) "Distribution and elimination rates of the drugs in
question;
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d) "The participant's drug history and other physical
characteristics;
e) "The capacity of the testing procedures to identify
potential adulteration (e.g., flushing or water loading)
that may affect the test results; and,
f) "The effect of other variables, such as the individual's
health, physical condition, and duration of drug use, on
the test analysis."
6)False Negative and False Positive Results : According to an
article by B.M. Kapur, Director of Clinical Laboratory,
Addiction Research Foundation, Toronto, Ontario, Canada,
January 2003, the tests for drugs in a person's system can
yield either false negative or false positive results.
(http://www.unodc.org/unodc/bulletin/bulletin_1993-01-01_2_page
005.html#s008.) The following are portions of the analysis
supporting this conclusion. It is of particular note that one
therapeutic dose of valium is detected for three to four days.
Therefore, this bill's presumption that the driver had an
amount equal to or greater than the measurable substance at
the time of a chemical test done within three hours after the
driving may not be based upon accurate scientific evidence.
If some drugs, or their metabolites, remain in the system for
days or weeks after their ingestion, this bill proposes
testing for past chemical ingestion which could not possibly
still affect the driving.
a) False negatives : A positive or negative result is
highly dependent on the sensitivity of the drug detection
method. A false negative occurs when the drug is present
but is not found because the detection limit of the method
used is too high or the absolute quantity of the drug in
the specimen is too low.
Large amounts of fluids consumed prior to obtaining a sample
for analysis can affect detection of drugs in urine
samples. Under conditions of dilution, although the
absolute amount of drug or metabolite excreted may be the
same over a period of time, the final concentration per
milliliter will be reduced and may give a false-negative
result. Acidity levels in the urine may also affect the
excretion of the drug into the urine. In some cases,
elimination is enhanced; in others, the drug is reabsorbed.
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Several measures can be used to decrease the likelihood of
obtaining a false-negative result. First, sensitivity of
the method can be enhanced by analyzing for the metabolites
of the drug in question. For example, Heroin use is
determined by the presence of the heroin metabolite,
morphine. Increasing the specimen volume used for analysis
or treating it with chemicals can also make laboratory
methods more sensitive. Studies in the author's laboratory
have shown that one 5 mg dose of valium is usually detected
for three to four days. When these improved methods are
utilized, however, sensitivity can be increased so that the
same dose can be detected for up to 20 days. One
significant drawback of such high sensitivity is that
estimates of when the drug was taken are far less accurate.
b) False positives : A false positive occurs if results
show that the drug is present when in fact it is not.
False-positive tests are obtained if an interfering drug-or
substance is present in the biological fluid and it
cross-reacts with the reagents. As discussed in the
previous section on immunoassays, an initially positive
test based on immunoassay technique should always be
confirmed with a non-immunoassay method. A confirmed
positive finding only implies that the urine sample
contains the detected drug and nothing more.
Sometimes false positives are attributable to ingested
substances such as asthma or allergy medication. Some
authors have suggested that employees subject to drug
screening should refrain from using certain brands of
over-the-counter medication because they have caused false
positives. Some natural substances such as herbal teas and
poppy seeds can also give positive responses to screens.
These may be analytically true positives but they need to
be distinguished from those due to illegal drug use. In
some instances, false positives have been the result of
mistakes or sabotage in the chain of custody for urine
samples.
In another article, it was reported that "a positive test
result does not automatically mean the person uses illegal
drugs. In fact, positive results are sometimes triggered by
other, legal substances. Certain over-the-counter
medications, for example, can cause a positive reading for
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amphetamines. So when the GC/MS confirmation test comes
back positive, it is important for a doctor, nurse, or
other specialist to review the results and determine if
illicit drugs are indeed the culprit.
6-acetylmorphine (6-AM) is a heroin metabolite and also
called "6-monoacetylmorphine" (6-MAM). 6-AM is rapidly
metabolized to morphine and will not likely be detected in
most urine specimens. But, of course, morphine will likely
be detected after recent heroin use. Because codeine is a
naturally occurring alkaloid in the opium poppy juice that
is the source of morphine and heroin, it too might be in
the urine of heroin users.
Codeine is rapidly metabolized and excreted in urine as
codeine, morphine, or both. Morphine is a metabolite of
codeine, but the reverse is not true so ingestion of
morphine will not account for the presence of codeine.
The chemical names for the most-common forms of amphetamines
are "d-amphetamine" and "d-methamphetamine."
�http://onpointhealth.smartsontap.com/health/drug-testing.ht
ml]
7)Length of Presence of Drug In System : According to a United
States Department of Justice publication �United States
Department of Justice, Office of Justice Programs, "Drug
Courts Program Office", Prepared by the Drug Court
Clearinghouse and Technical Assistance Project, "Drug Testing
in a Drug Court Environment", (May 2000)], the following drugs
remain in the system for up to three days or longer:
Amphetamine/In urine: one to two days; Opiates: three days
(including heroin, morphine, codeine). The article states,
"May be longer for chronic users"; and Propoxyphene (Darvon,
etc.): six hours to two days. Thus, at the time of the test
of a driver, the chemical test administered may prove only
past conduct unrelated to the driving in question.
8)The Time It Takes for a Drug to Be Eliminated from the System :
According to a report issued by the United Nations Office on
Drugs and Crime, "Drugs vary by their elimination half-lives,
which is the time required for the blood levels to decline by
50% (see table 1). The half-life of a drug is heavily
influenced by a variety of factors, including the individual's
age, sex, physical condition and clinical status. A
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compromised liver and the concurrent presence of another
disease or drug have the potential of enhancing the toxic
effects of the drug by slowing down the elimination process.
Under different clinical conditions, however, the process may
be speeded up. Therefore, great variation may be found in the
half-lives of the same drug.
"Approximately six half-lives are required to eliminate 99% of
any drug. Because the half-life of cocaine is relatively
short, averaging one hour, only six hours are needed for the
elimination of 99% of the drug. Cocaine metabolites have a
longer half-life and can be detected for a considerably longer
period of time through urine drug assays. Compared with
cocaine, phenobarbital has a much longer half-life (80 to 120
hours), so that at least 480 hours, or 20 days, are required
to eliminate 99% of the drug. Since there is much variation
in the half-lives of different drugs and the absolute amount
of drug present can be very small, it is crucial that the
appropriate body fluid for analysis is selected for testing.
"Elimination of ethanol follows a different pattern. Its levels
decline almost linearly over time. The average elimination
rate is between 15 mg/100 ml and 20 mg/100 ml (0.015-0.02 per
cent) per hour, although rates of between 10 mg/100 ml and 30
mg/100 ml (0.01-0.03 per cent) per hour have also been
observed. In the alcoholic patient, the elimination rate is
generally higher. In forensic calculations, a rate of 15
mg/100 ml (0.015%) per hour is usually used."
Table 1
Drug Half-Lives and Approximate Urine Detection Periods
------------------------------------------------------------------
| | | |
| | Half-life a/ | Detection period |
| | | |
| Drug | | |
| | | |
|------------------------+---------------+-------------------------|
|Methamphetamine |12-34 hours |2-3 days |
| | | |
|------------------------+---------------+-------------------------|
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|Amphetamine (metabolite |7-34 hours | |
|of methamphetamine) | | |
| | | |
|------------------------+---------------+-------------------------|
|Heroin |60-90 minutes |Minutes |
| | | |
|------------------------+---------------+-------------------------|
|Morphine (metabolite of |1.3-6.7 hours | |
|heroin) | | |
| | | |
|------------------------+---------------+-------------------------|
|Phencyclidine. (PCP) |7-16 hours |2-3 days |
| | | |
|------------------------+---------------+-------------------------|
|Cocaine |0.5-1.5 hours |A few hours |
| | | |
|------------------------+---------------+-------------------------|
|Benzoyltegonine |5-7 hours |3-5 days |
|(metabolite of cocaine) | | |
| | | |
|------------------------+---------------+-------------------------|
|"-9-Tetrahydrocannabinol|14-38 hours |90 per cent fall in 1 |
| | |hour (blood) |
| | | |
|------------------------+---------------+-------------------------|
|"-9-Tetrahydrocannabinol| |Depending on use, |
|ic acid (marijuana | |anywhere between a few |
|metabolite in urine) | |days and many weeks |
| | | |
|------------------------+---------------+-------------------------|
|Alcohol (ethanol) |Blood levels |1.5-12 hours, depending |
| |fall by an |on the peak blood level; |
| |average of |urine is typically |
| |15-18 mg/ 100 |positive for an |
| |ml/hour |additional 1-2 hours |
| | | |
------------------------------------------------------------------
-----------------------------------------------------------------
|Source-R. C. Baselt, Disposition of Toxic Drugs and Chemicals in |
|Man, 2nd ed. (Davis, California, Biomedical Publications, 1982). |
|-----------------------------------------------------------------|
|a/ The detection period is dose-dependent. The larger the dose, |
|the longer the period that the drug or, metabolite can be |
|detected in the urine. |
-----------------------------------------------------------------
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9)Argument in Support : According to the Orange County Board of
Supervisors, "Under current law, to probe drug-based
violations of Vehicle Code sections 23152 and 23153, the
prosecution must prove that as a result of taking a drug, a
driver's mental or physical abilities are so impaired that he
or she is no longer able to drive a vehicle with the caution
of a sober person using ordinary care under similar
circumstances. A common defense argument in Driving Under the
Influence of Drugs (DUID) cases is that there is insufficient
evidence to support the conclusions that poor driving and/or
objective signs of impairment are the result of taking a drug.
This argument is supported by the fact that there are few
controlled studies in the area of drug impaired driving and
the current literature in this area appears to be unsettled.
Although there are numerous studies in progress at this time,
DUID drivers are reaping the benefit of the current reality
and continuing to place the public at risk by driving vehicles
with drugs in their system."
10)Argument in Opposition : According to the Drug Policy
Alliance , "The mere presence of a controlled substance or the
detectable metabolites thereof in a person's bloodstream does
not, in and of itself, constitute intoxication or impairment
by, or being under the influence of, a controlled substance.
Many common illicit drugs stay in the blood system for a day
or two after being consumed and long after the period of
intoxication has ended and the effect that would impair proper
driving have worn off."
11)Related Legislation:
a) AB 2020 (Pan), 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. AB 2020 is awaiting
a hearing in the Senate Appropriations Committee.
b) AB 2552 (Torres), recasts provisions of driving under
the influence of drugs. The bill previously contained
provisions virtually identical to this bill that were
removed prior to a hearing in this committee. AB 2552 is
awaiting a hearing in the Senate Public Safety Committee.
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12)Prior Legislation :
a) AB 1215 (Benoit), of the 2007-08 Legislative Session,
would have stated that it is unlawful for any person to
drive or be in actual physical control of a vehicle on a
highway or on premises to which the public has access when
the person has a measurable amount in his or her blood or
urine of controlled substances. AB 1215 failed passage in
this committee.
b) AB 2673 (Bogh), of the 2005-06 Legislative Session,
would have made it unlawful to drive with a measurable
amount of any controlled substance in the driver's blood.
AB 2673 would have defined a controlled substance as having
the same meaning as set forth in the Federal Controlled
Substances Act. AB 2673 failed passage in this committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Orange County Board of Supervisors
Orange County District Attorney's Office
Opposition
California DUI Lawyers Association
Drug Policy Alliance
Analysis Prepared by : Gabriel Caswell / PUB. S. / (916)
319-3744