Bill Text: CA AB1356 | 2015-2016 | Regular Session | Amended

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Bill Title: Vehicles: driving under the influence: drug testing.

Spectrum: Bipartisan Bill

Status: (Failed) 2016-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1356 Detail]

Download: California-2015-AB1356-Amended.html

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BILL NUMBER: AB 1356	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 29, 2015

INTRODUCED BY   Assembly  Member   Lackey
  Members   Lackey   and Gatto 

                        FEBRUARY 27, 2015

   An act to amend Section 23612 of the Vehicle Code, relating to
vehicles.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 1356, as amended, Lackey. Vehicles: driving under the
influence: drug testing.
   Existing law provides 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 for the purpose of determining the drug content of his or
her blood, if lawfully arrested for driving under the influence of
alcohol or drugs. Existing law provides that if a blood test is
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.  Existing law authorizes an officer to use a
preliminary alcohol screening test that indicates the presence or
concentration of alcohol based on a breath sample as a further
investigatory tool in order to establish reasonable cause to believe
the person was driving a vehicle in violation of certain prohibitions
against driving under   the influence of alcohol or drugs.
 
   This bill would provide 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 oral fluids for the purpose of determining the drug
content of his or her blood or oral fluids, if lawfully arrested for
driving under the influence of drugs. If a blood test or oral fluid
test is unavailable, the person would be deemed to have given his or
her consent to chemical testing of his or her urine and would be
required to submit to a urine test.  
   By requiring local law enforcement to provide for oral fluids
testing in connection for purposes of determining if a driver is
driving under the influence of drugs, this bill would impose a
state-mandated local program.  
   This bill would authorize an officer to use a preliminary oral
fluid screening test that indicates the presence or concentration of
a drug or controlled substance based on a sample as a further
investigatory tool in order to establish reasonable cause to believe
the person was driving a vehicle in violation of certain prohibitions
against driving under the influence of drugs. The bill would
authorize a local law enforcement agency to provide oral fluids
testing for these purposes, and would specify that this provision
does not require a local law enforcement agency to provide or make an
oral fluids test available for these purposes or for purposes of any
other law. The bill would prohibit a state law enforcement agency
from providing or making an oral fluids test available for these
purposes or for purposes of any other law. 
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 23612 of the Vehicle Code is amended to read:
   23612.  (a) (1) (A) 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 Section 23140, 23152, or 23153. If a blood
or breath test, or both, are unavailable, then paragraph (2) of
subdivision (d) applies.
   (B) 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 oral fluids  for the purpose of determining the drug
content of his or her  blood or oral fluids,  
blood,  if lawfully arrested for an offense allegedly committed
in violation of Section 23140, 23152, or 23153. If a blood test is
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.
   (C) 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 Section 23140, 23152, or 23153.
   (D) 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 Section 23152 or 23153, and (i) the suspension of
the person's privilege to operate a motor vehicle for a period of one
year, (ii) 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 Section 23103 as specified in
Section 23103.5, or of Section 23140, 23152, or 23153 of this code,
or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal
Code that resulted in a conviction, or if the person's privilege to
operate a motor vehicle has been suspended or revoked pursuant to
Section 13353, 13353.1, or 13353.2 for an offense that occurred on a
separate occasion, or (iii) the revocation of the person's privilege
to operate a motor vehicle for a period of three years if the refusal
occurs within 10 years of two or more separate violations of Section
23103 as specified in Section 23103.5, or of Section 23140, 23152,
or 23153 of this code, or of Section 191.5 or subdivision (a) of
Section 192.5 of the Penal Code, or any combination thereof, that
resulted in convictions, or if the person's privilege to operate a
motor vehicle has been suspended or revoked two or more times
pursuant to Section 13353, 13353.1, or 13353.2 for offenses that
occurred on separate occasions, or if there is any combination of
those convictions, administrative suspensions, or revocations.
   (2) (A) 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 paragraph (2) of subdivision (d) applies.
   (B) 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, oral fluids,  
blood  or breath, and the officer shall advise the person that
he or she has that choice.
   (C) A person who chooses to submit to a breath test may also be
requested to submit to a blood test  or oral fluids 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 test  or oral fluids 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
officer shall advise the person that he or she is required to submit
to an additional test. The person shall submit to and complete a
blood  test or oral fluids  test. If the person
arrested is incapable of completing the blood  test or oral
fluids  test, the person shall submit to and complete a
urine test.
   (3) If the person is lawfully arrested for an offense allegedly
committed in violation of Section 23140, 23152, or 23153, 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, oral fluids,   blood 
or breath, the person has the choice of those tests, including a
urine test, 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.
   (4) 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.
   (5) 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.
   (b) A person who is afflicted with hemophilia is exempt from the
blood test required by this section, but shall submit to, and
complete,  an oral fluids test or  a urine test.
   (c) 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, but
shall submit to, and complete,  an oral fluids test or
 a urine test.
   (d) (1) A person lawfully arrested for an offense allegedly
committed while the person was driving a motor vehicle in violation
of Section 23140, 23152, or 23153 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.
   (2) If a blood or breath test is not available under subparagraph
(A) of paragraph (1) of subdivision (a), or under subparagraph (A) of
paragraph (2) of subdivision (a), or under paragraph (1) of this
subdivision, 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.
   (e) If the person, who has been arrested for a violation of
Section 23140, 23152, or 23153, 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.
   (f) 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.
   (g) (1) 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 under subdivision (f), with the report
required by Section 13380, to the department. If the person submitted
to a  blood, oral fluids,   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.
   (2) (A) Notwithstanding any other 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.
   (B) Notwithstanding any other law, the failure of an employee of
the department to certify under subparagraph (A) is not a public
offense.
   (h) A preliminary alcohol screening test that indicates the
presence or concentration of alcohol based on a breath sample in
order to establish reasonable cause to believe the person was driving
a vehicle in violation of Section 23140, 23152, or 23153 is a field
sobriety test and may be used by an officer as a further
investigative tool. 
   (i) A preliminary oral fluid screening test that indicates the
presence or concentration of a drug or controlled substance based on
a sample in order to establish reasonable cause to believe the person
was driving a vehicle in violation of Section 23140, 23152, or 23153
is a field sobriety test and may be used by an officer as a further
investigative tool.  
   (i) 
    (j)  If the officer decides to use a preliminary alcohol
 or oral fluid  screening test, the officer shall advise
the person that he or she is requesting that person to take a
preliminary alcohol  or 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. The person's
obligation to submit to a blood,  oral fluids, 
breath, or urine test, as required by this section, for the purpose
of determining the alcohol or drug content of that person's blood, is
not satisfied by the person submitting to a preliminary alcohol 
or oral fluid  screening test. The officer shall advise the
person of that fact and of the person's right to refuse to take the
preliminary alcohol  or oral fluid  screening test. 
   (k) A local law enforcement agency may provide oral fluids testing
for purposes of this section. This section does not require a local
law enforcement agency to provide or make an oral fluids test
available for purposes of this or any other law. A state law
enforcement agency shall not provide or make an oral fluids test
available for purposes of this section or any other law.