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AB-2717 Driving under the influence: blood tests.(2017-2018)

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Date Published: 06/13/2018 09:00 PM
AB2717:v97#DOCUMENT

Amended  IN  Senate  June 13, 2018
Amended  IN  Assembly  May 08, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2717


Introduced by Assembly Members Lackey and Cooley Member Lackey
(Coauthor: Assembly Member Bonta)

February 15, 2018


An act to amend Section 26200 of the Business and Professions Code, relating to cannabis. An act to amend Sections 23577, 23578, and 23612 of the Vehicle Code, relating to driving under the influence.


LEGISLATIVE COUNSEL'S DIGEST


AB 2717, as amended, Lackey. Cannabis: local control: city responsibility for county regulatory function. Driving under the influence: blood tests.
Under existing law, a person who drives a motor vehicle is deemed to have given his or her consent to chemical testing of his or her blood, breath, or urine, as specified, for the purpose of determining the alcoholic or drug content of his or her blood if lawfully arrested for one of specified driving-under-the-influence offenses. The United States Supreme Court, in Birchfield v. North Dakota (2016) 136 S.Ct. 2160, held that the Fourth Amendment to the United States Constitution permitted warrantless breath tests incident to arrests for drunk driving, but did not permit warrantless blood tests incident to arrests for drunk driving, and held that a motorist cannot be punished criminally for his or her refusal to submit to a blood test. The court held that administrative penalties could be imposed for a refusal to submit to a blood test for those purposes.
This bill would amend statutory law to comport with the Birchfield decision. The bill would repeal the imposition of criminal penalties for the refusal by a person to submit to or complete a blood test for the purpose of determining the alcoholic or drug content of his or her blood if lawfully arrested for one of specified driving-under-the-influence offenses. The bill would clarify that a person is required to be told that his or her failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in administrative suspension or revocation by the Department of Motor Vehicles of the person’s privilege to operate a motor vehicle, as specified.

The Control, Regulate and Tax Adult Use of Marijuana Act of 2016 (AUMA), an initiative measure enacted by the approval of Proposition 64 at the November 8, 2016, statewide general election, authorizes the consumption of nonmedicinal cannabis by persons over 21 years of age, referred to as adult-use cannabis, and provides for the licensure and regulation of certain commercial adult-use cannabis activities. The Medicinal and Adult-Use Cannabis Regulation and Safety Act (MAUCRSA), among other things, consolidates the licensure and regulation of commercial medicinal and adult-use cannabis activities. MAUCRSA establishes the administrative and enforcement responsibilities of the Bureau of Cannabis Control, within the Department of Consumer Affairs, and the Director of Consumer Affairs with regard to that act. MAUCRSA requires a city to have full power and authority to enforce MAUCRSA and the regulations promulgated by the bureau or any licensing authority for facilities issued a state license that are located within the city, if delegated by the state. MAUCRSA requires the city to assume complete responsibility for any regulatory function pursuant to MAUCRSA within the city limits that would otherwise be performed by the county or any county officer or employee without liability, cost, or expense to the county.

This bill, instead, would require a city to assume from the county complete responsibility for any regulatory function relating to licensees located within the jurisdictional boundaries of the city that would otherwise be performed by the county, a county officer or employee, including the functions of a county agricultural commissioner, a county sealer of weights and measures, a county that was certified as a certified unified program agency by the Secretary for Environmental Protection to implement a specified unified hazardous waste and hazardous materials management regulatory program, and a county health officer, regardless of whether the state delegates to the city full power and authority to enforce MAUCRSA and promulgated regulations. By imposing additional duties on cities, this bill would create a state-mandated local program. The bill would authorize a city to contract in writing with the county in which it is located to arrange for the county to fulfill any of the city’s regulatory functions relating to licensees located within the jurisdictional boundaries of the city.

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 no reimbursement is required by this act for a specified reason.

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YESNO   Local Program: YESNO  

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


SECTION 1.

 Section 23577 of the Vehicle Code is amended to read:

23577.
 (a) If any a person is convicted of a violation of Section 23152 or 23153, and at the time of the arrest leading to that conviction that person willfully refused a peace officer’s request to submit to, or willfully failed to complete, the chemical test or breath or urine tests pursuant to Section 23612, the court shall impose the following penalties:
(1) If the person is convicted of a first violation of Section 23152, notwithstanding any other provision of subdivision (a) of Section 23538, the terms and conditions of probation shall include the conditions in paragraph (1) of subdivision (a) of Section 23538.
(2) If the person is convicted of a first violation of Section 23153, the punishment shall be enhanced by an imprisonment of 48 continuous hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and the execution of that sentence is not stayed.
(3) If the person is convicted of a second violation of Section 23152, punishable under Section 23540, or a second violation of Section 23153, punishable under Section 23560, the punishment shall be enhanced by an imprisonment of 96 hours in the county jail, whether or not probation is granted and no part of which may be stayed, unless the person is sentenced to, and incarcerated in, the state prison and execution of that sentence is not stayed.
(4) If the person is convicted of a third violation of Section 23152, punishable under Section 23546, the punishment shall be enhanced by an imprisonment of 10 days in the county jail, whether or not probation is granted and no part of which may be stayed.
(5) If the person is convicted of a fourth or subsequent violation of Section 23152, punishable under Section 23550 or 23550.5, the punishment shall be enhanced by imprisonment of 18 days in the county jail, whether or not probation is granted and no part of which may be stayed.
(b) The willful refusal or failure to complete the chemical breath or urine test required pursuant to Section 23612 shall be pled and proven.
(c) The penalties in this section do not apply to a person who refused to submit to or complete a blood test pursuant to Section 23612. This section does not prohibit imposition of administrative actions involving driving privileges.

SEC. 2.

 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, or the refusal of the person to take a chemical breath or urine 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.

SEC. 3.

 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 for the purpose of determining the drug 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 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 breath or urine testing will result in a fine, fine and mandatory imprisonment if the person is convicted of a violation of Section 23152 or 23153, and 23153. The person shall also be told that his or her failure to submit to, or the failure to complete, the required breath, blood, or urine tests will result in (i) the administrative suspension by the department of the person’s privilege to operate a motor vehicle for a period of one year, (ii) the administrative revocation by the department 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 administrative revocation by the department 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 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 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 reasonable cause to believe that a blood 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 those beliefs 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. If the person arrested is incapable of completing the blood 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 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, 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, 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 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.

SECTION 1.Section 26200 of the Business and Professions Code is amended to read:
26200.

(a)(1)This division shall not be interpreted to supersede or limit the authority of a local jurisdiction to adopt and enforce local ordinances to regulate businesses licensed under this division, including, but not limited to, local zoning and land use requirements, business license requirements, and requirements related to reducing exposure to secondhand smoke, or to completely prohibit the establishment or operation of one or more types of businesses licensed under this division within the local jurisdiction.

(2)This division shall not be interpreted to supersede or limit existing local authority for law enforcement activity, enforcement of local zoning requirements or local ordinances, or enforcement of local license, permit, or other authorization requirements.

(b)This division shall not be interpreted to require a licensing authority to undertake local law enforcement responsibilities, enforce local zoning requirements, or enforce local licensing, permitting, or other authorization requirements.

(c)A local jurisdiction shall notify the bureau upon revocation of any local license, permit, or authorization for a licensee to engage in commercial cannabis activity within the local jurisdiction. Within 10 days of notification, the bureau shall inform the relevant licensing authorities. Within 60 days of being so informed by the bureau, the relevant licensing authorities shall begin the process to determine whether a license issued to the licensee should be suspended or revoked pursuant to Chapter 3 (commencing with Section 26030).

(d)For facilities issued a state license that are located within the jurisdictional boundaries of a city, the city shall have full power and authority to enforce this division and the regulations promulgated by the bureau or any licensing authority, if delegated by the state.

(e)Notwithstanding Sections 101375, 101400, and 101405 of the Health and Safety Code or any contract entered into pursuant thereto, or any other law, and regardless of whether a delegation is made by the state pursuant to subdivision (d), a city shall assume complete responsibility for any regulatory function relating to licensees located within the jurisdictional boundaries of the city that would otherwise be performed by the county or any county officer or employee, including, without limitation, any functions of the county agricultural commissioner, sealer of weights and measures, a county that was certified as a certified unified program agency by the Secretary for Environmental Protection to implement the unified program specified in Chapter 6.11 (commencing with Section 25404) of Division 20 of the Health and Safety Code within the jurisdiction, or county health officer, without liability, cost, or expense. to the county. A city may contract in writing with the county in which it is located to arrange for the county to fulfill any of the city’s regulatory functions relating to licensees located within the jurisdictional boundaries of the city.

(f)This division does not prohibit the issuance of a state temporary event license to a licensee authorizing onsite cannabis sales to, and consumption by, persons 21 years of age or older at a county fair or district agricultural association event, provided that the activities, at a minimum, comply with the requirements of paragraphs (1) to (3), inclusive, of subdivision (h), that all participants are licensed under this division, and that the activities are otherwise consistent with regulations promulgated and adopted by the bureau governing state temporary event licenses. These temporary event licenses shall only be issued in local jurisdictions that authorize such events.

(g)This division, or any regulations promulgated thereunder, shall not be deemed to limit the authority or remedies of a city, county, or city and county under any provision of law, including, but not limited to, Section 7 of Article XI of the California Constitution.

(h)Notwithstanding paragraph (1) of subdivision (a) of Section 11362.3 of the Health and Safety Code, a local jurisdiction may allow for the smoking, vaporizing, and ingesting of cannabis or cannabis products on the premises of a retailer or microbusiness licensed under this division if all of the following are met:

(1)Access to the area where cannabis consumption is allowed is restricted to persons 21 years of age and older.

(2)Cannabis consumption is not visible from any public place or nonage-restricted area.

(3)Sale or consumption of alcohol or tobacco is not allowed on the premises.

SEC. 2.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because a local agency or school district has the authority to levy service charges, fees, or assessments sufficient to pay for the program or level of service mandated by this act, within the meaning of Section 17556 of the Government Code.