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AB-702 Driving under the influence: chemical tests.(2017-2018)

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Date Published: 07/05/2017 09:00 PM
AB702:v97#DOCUMENT

Amended  IN  Senate  July 05, 2017
Amended  IN  Assembly  March 27, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 702


Introduced by Assembly Member Lackey
(Coauthors: Assembly Members Chávez and Cunningham)
(Coauthor: Senator Bates)

February 15, 2017


An act to amend Sections 23578 and 23612 of, and to repeal and add Section 23577 of, the Vehicle Code, relating to driving under the influence.


LEGISLATIVE COUNSEL'S DIGEST


AB 702, as amended, Lackey. Driving under the influence: chemical tests.
(1) When a person is convicted of violating specified driving-under-the-influence (DUI) provisions, and at the time of the arrest leading to that conviction the person willfully refused a peace officer’s request to submit to, or willfully failed to complete, a specified chemical test, existing law requires a court to impose additional penalties, as specified.
This bill would make it a crime for a person to willfully refuse to submit to, or willfully fail to complete, a breath test after being lawfully arrested for a violation of specified offenses. The bill would specify that this crime does not apply to a person who has submitted to and completed a blood test, as specified. By creating a new crime, this bill would impose a state-mandated local program.
(2) When a person is convicted of violating specified DUI provisions, existing law requires a court to consider a concentration of alcohol in a person’s blood of 0.15% or more, by weight, or the refusal of the person to take a chemical test as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.
This bill would change the provision described above to no longer require a court to consider a person’s refusal to take a chemical test as a special factor.
(3) 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 or breath for the purpose of determining the alcoholic or drug content of his or her blood if lawfully arrested for driving under the influence of alcohol or drugs. Existing law requires a person to be told that his or her failure to submit to, or the failure to complete, the required chemical test will result in a fine, mandatory imprisonment if convicted of specified DUI offenses, and suspension or revocation of his or her driving privilege, as specified. Existing law exempts a person afflicted with hemophilia or a heart condition, as specified, from this blood test requirement and instead requires him or her to submit to, and complete, a urine test.
This bill would repeal the presumption that a person consents to submit to chemical testing of his or her blood or breath and would instead require a motor vehicle driver who is lawfully arrested for a specified DUI offense to submit to chemical testing of his or her blood or breath for the purpose of determining the alcoholic or drug content of his or her blood. The bill would require a peace officer to advise the person, as specified, that he or she has the choice of taking a chemical test, person that he or she is entitled to a number of constitutional protections as to the manner in which the testing will occur, but that failure to take a blood or urine test will may result in suspension or revocation of his or her driving privilege, and refusal to take a breath test will may result in the same penalty and a fine or mandatory imprisonment if the person is convicted of a specified DUI offense. The bill would require a person exempted from the blood test requirement because of hemophilia or a heart condition, as specified, to submit to, and complete, a breath test or a urine test, as specified.
Because this bill would impose new requirements on peace officers, it would impose a state-mandated local program.
(4) The bill would also make legislative findings and declarations about the privilege of driving on public streets and highways in California and reasonable conditions imposed on that privilege.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that with regard to certain mandates no reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that, if the Commission on State Mandates determines that the bill contains costs so mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 The Legislature finds and declares all of the following:
(a) Driving on public streets and highways in California is a privilege subject to reasonable conditions.
(b) Requiring a person who is lawfully arrested for a violation of Section 23140, 23152, or 23153 of the Vehicle Code to submit to a chemical test to determine the alcoholic or drug content of his or her blood or face suspension or revocation of his or her license is a reasonable condition imposed on the privilege of driving.
(c) Requiring a person who is lawfully arrested for a violation of Section 23140, 23152, or 23153 of the Vehicle Code to submit to a breath test to determine the alcoholic or drug content of his or her blood or face penal consequences for refusing to submit to the breath test is a reasonable condition imposed on the privilege of driving.
(d) The imposition of the reasonable conditions described in subdivisions (b) and (c) may be viewed as an implied consent law.
(e) A person who obtains his or her driver’s license in California, if informed of these reasonable conditions at the time of obtaining the license, may be viewed as having provided advance consent to the chemical tests.

SEC. 2.

 Section 23577 of the Vehicle Code is repealed.

SEC. 3.

 Section 23577 is added to the Vehicle Code, to read:

23577.
 (a) It is a crime for a person to willfully refuse to submit to, or willfully fail to complete, a breath test pursuant to Section 23612 after being lawfully arrested for a violation of Section 191.5 of the Penal Code or Section 23152 or 23153 of this code. A person shall be punished as follows:
(1) If the person has no prior convictions for Section 191.5 of the Penal Code or Section 23152 or 23153 of this code, the punishment shall be the same as imposed under Sections 23536 and 23538 for persons convicted of violating Section 191.5 of the Penal Code or Section 23152 or 23153 of this code.
(2) If the person has one or more prior convictions for Section 191.5 of the Penal Code or Section 23152 or 23153 of this code, the punishment shall be the same as imposed under Sections 23540 and 23542 for persons convicted of violating Section 191.5 of the Penal Code or Section 23152 or 23153 of this code.
(b) This Section does not apply to a person who has submitted to and completed a blood test pursuant to Section 23612 after being lawfully arrested for a violation of Section 191.5 of the Penal Code or Section 23152 or 23153 of this code.

SEC. 4.

 Section 23578 of the Vehicle Code is amended to read:

23578.
 In addition to any other provision of this code, if a person is convicted of a violation of Section 23152 or 23153, the court shall consider a concentration of alcohol in the person’s blood of 0.15 percent or more, by weight, as a special factor that may justify enhancing the penalties in sentencing, in determining whether to grant probation, and, if probation is granted, in determining additional or enhanced terms and conditions of probation.

SEC. 5.

 Section 23612 of the Vehicle Code is amended to read:

23612.
 (a) (1) (A) A person who drives a motor vehicle in California shall submit to and complete chemical testing of his or her blood or breath for the purpose of determining the alcoholic or drug content of his or her blood, if lawfully arrested for an offense allegedly committed in violation of Section 23140, 23152, or 23153, or be subject to the consequences described in subparagraphs (C) and (D). If a blood or breath test, or both, are unavailable, paragraph (2) of subdivision (d) applies.
(B) The testing shall be conducted following 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.

(C)A peace officer shall give the person the following advisement before conducting a chemical test: “You are now under arrest for driving under the influence of alcohol or drugs. Because you have been lawfully arrested for driving under the influence, you now have the choice of either submitting to and completing chemical testing to determine the alcoholic or drug content of your blood or be subject to the following consequences: (i) the suspension of your privilege to operate a motor vehicle for a period of one year, (ii) the revocation of your 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 the Vehicle Code, or of Section 191.5 or subdivision (a) of Section 192.5 of the Penal Code that resulted in a conviction, or if your privilege to operate a motor vehicle has been suspended or revoked pursuant to Section 13353, 13353.1, or 13353.2 of the Vehicle Code for an offense that occurred on a separate occasion, or (iii) the revocation of your 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 the Vehicle 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 your privilege to operate a motor vehicle has been suspended or revoked two or more times pursuant to Section 13353, 13353.1 or 13353.2 of the Vehicle Code for offenses that occurred on separate occasions, or if there is any combination of those convictions, administrative suspensions, or revocations. Your refusal may also be used as evidence of guilt in a criminal trial or administrative proceeding, regardless of number of previous convictions you have suffered.”

(C) A peace officer shall give the person the following advisement before conducting a chemical test: “You have been arrested for unlawfully driving under the influence. You are entitled to a number of constitutional protections as to the manner in which you are tested to determine if you are unlawfully driving under the influence. You are required to take a breath test to determine your blood alcohol level. If you refuse to take this test, or intentionally fail to provide a proper breath sample, this will be used against you in future court hearings and you may be subject to criminal prosecution and licensing sanctions for the refusal. You can consent to having a blood test instead of a breath test. A breath sample is not retained. If you desire a sample that will be retained, you must request a blood test. If you refuse a breath test, no blood can be taken from you without a lawfully issued warrant or in the absence of specific, lawful circumstances. If the warrant is obtained, or specific lawful circumstances exist, you may be taken against your will to a local hospital or clinic and we will draw blood from you. No criminal action will be taken against you for refusing to submit to a blood test without a warrant, but you may face licensing sanctions.” If blood cannot be drawn from the person because of a medical reason, a peace officer shall give the following advisement: “If you cannot complete the blood test, you must submit to and complete urine testing to determine the drug or alcohol content of your blood or face the licensing sanctions.”
(D) A person who willfully refuses a peace officer’s request to submit to, or willfully fails to complete, a breath test after a lawful arrest for an offense allegedly committed in violation of Section 191.5 of the Penal Code or Section 23140, 23152, or 23153 of this code is also subject to the penalties described in Section 23577.
(2) (A) If the person is lawfully arrested for driving under the influence of an alcoholic beverage, after the person has been advised pursuant to subparagraph (C) of paragraph (1), a peace officer shall tell the person the following: “As previously indicated, you have been lawfully arrested for driving under the influence of an alcoholic beverage and you are now required to submit to and complete a blood or breath test to determine the alcoholic content of your blood. Will you now take a chemical test and, if so, do you wish to take a breath test or a blood test?” If the person refuses to take either test, a peace officer shall tell the person the following: “If you refuse to take a breath test, you are subject to a fine or mandatory imprisonment if you are convicted of a violation of Section 23152, 23153, or 23577 of the Vehicle Code and you will also be subject to the license suspension or revocation I previously told you about. If you refuse to take a blood test, you will not be subject to a fine or mandatory imprisonment, but you are subject to the license suspension or revocation I previously told you about. However, if you submit to and complete either a breath test or a blood test, you will not be subject to any consequence for refusing a chemical test.” If the person chooses a breath test, but is incapable of completing the breath test, the peace officer shall tell the person the following: “You must submit to a blood test or face the license suspension or revocation I previously told you about.” If the person chooses a blood test, but is incapable of completing the blood test, the peace officer shall tell the person the following: “You must submit to a breath test or face the license suspension or revocation I previously told you about, and a fine or mandatory imprisonment if you are convicted of a violation of Section 23152, 23153, or 23577 of the Vehicle Code.” If a blood test 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, and if the officer has a clear indication that a blood test will reveal evidence of the person being under the influence, then after the person has been advised pursuant to subparagraph (C) of paragraph (1), a peace officer shall tell the person the following: “As previously indicated, you have been lawfully arrested for driving under the influence of drugs or the combined influence of alcohol and drugs and you are required to submit to and complete a blood test to determine the drug or alcohol content of your blood. Will you now take a blood test?” If the person refuses to take a blood test, the person shall be told: “If you refuse to take a blood test, you will not be subject to a fine or mandatory imprisonment, but you are subject to the license suspension or revocation I previously told you about.” If the person arrested is incapable of completing the blood test, a peace officer shall tell the person the following: “If you cannot complete the blood test, you must submit to and complete urine testing to determine the drug or alcohol content of your blood or face the license suspension or revocation I previously told you about.” If the person refuses to take a required urine test, the person shall be told: “If you refuse to take a urine test, you will not be subject to a fine or mandatory imprisonment, but you are subject to the license suspension or revocation I previously told you about.” If the person refuses to take a blood or urine test, the person is subject to the consequences for refusing to take a blood test described in subparagraph (C) of paragraph (1). The peace officer shall state in his or her report the facts that provide the officer a clear indication that a blood test or urine test will reveal evidence of the person being under the influence of a drug or the combined influence of an alcoholic beverage and a drug.
(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 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. However, if only a blood test or a urine test is available, the officer shall tell the person the following: “You must submit to a blood test or a urine test or face the license suspension or revocation that I previously told you about.”
(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, a breath test if arrested for driving under the influence of an alcoholic beverage, a urine test if arrested for driving under the influence of a drug, or a breath test and a urine test if arrested for driving under the combined influence of an alcoholic beverage and a drug.
(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, a breath test if arrested for driving under the influence of an alcoholic beverage, a urine test if arrested for driving under the influence of a drug, or a breath test and a urine test if arrested for driving under the combined influence of an alcoholic beverage and a drug.
(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. If the only available test is the breath test and, after being advised pursuant to subparagraph (C) of paragraph (1) of subdivision (a), the person refuses to take the breath test, a peace officer shall tell the person the following: “If you refuse to take a breath test, you are subject to a fine or mandatory imprisonment if you are convicted of a violation of Section 23152, 23153, or 23577 of the Vehicle Code.” If the only available test is either a blood test or a urine test, a peace officer shall not tell the person that refusal will subject the person to a fine or mandatory imprisonment.
(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 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) If the officer decides to use a preliminary alcohol screening test, the officer shall advise the person that he or she is requesting that person to take a preliminary alcohol 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, 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 screening test. The officer shall advise the person of that fact and of the person’s right to refuse to take the preliminary alcohol screening test.

SEC. 6.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution for certain costs that may be incurred by a local agency or school district because, in that regard, this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.
However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.