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SB-65 Vehicles: alcohol and marijuana: penalties.(2017-2018)

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Date Published: 04/17/2017 09:00 PM
SB65:v96#DOCUMENT

Amended  IN  Senate  April 17, 2017
Amended  IN  Senate  March 27, 2017
Amended  IN  Senate  March 20, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 65


Introduced by Senator Hill
(Principal coauthor: Assembly Member Low)

December 29, 2016


An act to amend Sections 13388, 13557, 23136, 23220, and 23221 of the Vehicle Code, relating to vehicles.


LEGISLATIVE COUNSEL'S DIGEST


SB 65, as amended, Hill. Vehicles: alcohol and marijuana: penalties.
Existing law makes it an infraction to drink any alcoholic beverage while driving a motor vehicle upon any highway or on other specified lands. Existing law also prohibits a driver or passenger from drinking any alcoholic beverage while in a motor vehicle upon a highway, and makes a violation of this provision punishable as an infraction.
This bill would instead make drinking an alcoholic beverage or smoking or ingesting marijuana or any marijuana product while driving, or while riding as a passenger in, a motor vehicle being driven upon a highway or upon specified lands punishable as either an infraction or a misdemeanor. an infraction. The bill would authorize a court to order a defendant to attend and complete a state-licensed driving-under-the-influence program in addition to those penalties.
Existing law provides that a person under 21 years of age who has a blood alcohol concentration of 0.01% or more while operating a motor vehicle shall have his or her driver’s license suspended by the department for no less than one year. Existing law provides the procedure for the arresting officer, acting on behalf of the Department of Motor Vehicles, to serve a notice of order of suspension, seize the person’s license, and issue a temporary license.
This bill would provide that a person under 21 years of age who has any detectible amount quantity, as defined, of delta-9-tetrahydrocannabinol in his or her body would be subject to the same license suspension, except as specified. The bill would make other conforming changes.
By expanding the scope of and penalties for existing crimes and by increasing the administrative duties of local peace officers, this bill would impose a state-mandated local program.
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.

 Section 13388 of the Vehicle Code is amended to read:

13388.
 (a)  If a peace officer lawfully detains a person under 21 years of age who is driving a motor vehicle, and the officer has reasonable cause to believe that the person is in violation of Section 23136, the officer shall request that the person take a preliminary alcohol screening test to determine the presence of alcohol in the person, or a chemical field test to determine the presence of delta-9-tetrahydrocannabinol in the person, if a preliminary alcohol screening test device or chemical field test is immediately available. If a preliminary alcohol screening test device or chemical field test is not immediately available, the officer may request the person to submit to chemical testing of his or her blood, breath, or urine, conducted pursuant to Section 23612.
(b) (1) If any of the following occurs, the officer shall proceed as specified in paragraph (2):
(A) The person refuses to take, or fails to complete, the preliminary alcohol screening test or chemical field test, or refuses to take or fails to complete a chemical test if a preliminary alcohol device or chemical field test is not immediately available.
(B) The person takes the preliminary alcohol screening test and that test reveals a blood-alcohol concentration of 0.01 percent or greater, or if the results of a chemical test reveal a blood-alcohol concentration of 0.01 percent or greater.
(C) The chemical field test or the results of the chemical test reveal any detectible quantity of delta-9-tetrahydrocannabinol in the person.
(2) (A) The officer, acting on behalf of the department, shall serve the person with a notice of an order of suspension of the person’s driving privilege.
(B) The officer shall take possession of any driver’s license issued by this state which is held by the person. When the officer takes possession of a valid driver’s license, the officer shall issue, on behalf of the department, a temporary driver’s license. 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 issuance, or until receipt of the order of suspension from the department, whichever occurs first.
(C) The officer immediately shall forward a copy of the completed notice of order of suspension form, and any driver’s license taken into possession under subparagraph (B), with the report required by Section 13380, to the department. For the purposes of this paragraph, “immediately” means on or before the end of the fifth ordinary business day after the notice of order of suspension was served.
(c) For the purposes of this section, the following definitions apply:
(1) “Preliminary alcohol screening test device” means an instrument designed and used to measure the presence of alcohol in a person based on a breath sample.
(2) “Chemical field test” means a chemical test, including an oral swab saliva test, that is designed to be used in the field and indicates, without laboratory testing, the presence of delta-9-tetrahydrocannabinol in the body of the test subject.
(3) “Detectible quantity” means a blood plasma concentration of delta-9-tetrahydrocannabinol of five nanograms per milliliter or higher as indicated by a chemical test, or a positive indication on a binary chemical field test that has a detection threshold of not less than five nanograms per millileter.

SEC. 2.

 Section 13557 of the Vehicle Code is amended to read:

13557.
 (a) The department shall review the determination made pursuant to Section 13353, 13353.1, or 13353.2 relating to a person who has received a notice of an order of suspension or revocation of the person’s privilege to operate a motor vehicle pursuant to Section 13353, 13353.1, 13353.2, 13382, or 23612,. The department shall consider the sworn report submitted by the peace officer pursuant to Section 23612 or 13380 and any other evidence accompanying the report.
(b) (1) If the department determines in the review of a determination made under Section 13353 or 13353.1, by a preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation:
(A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged violation was of Section 23136, that the person was lawfully detained.
(C) The person refused or failed to complete the chemical test or tests after being requested by a peace officer.
(D) Except for the persons described in Section 23612 who are incapable of refusing, the person had been told that his or her privilege to operate a motor vehicle would be suspended or revoked if he or she refused to submit to, and complete, the required testing.
(2) If the department determines, by a preponderance of the evidence, that any of the facts required under paragraph (1) were not proven, the department shall rescind the order of suspension or revocation and, if the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to Section 13551. The determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.
(3) If the department determines in the review of a determination made under Section 13353.2, by the preponderance of the evidence, all of the following facts, the department shall sustain the order of suspension or revocation, or if the person is under 21 years of age and does not yet have a driver’s license, the department shall delay issuance of that license for one year:
(A) The peace officer had reasonable cause to believe that the person had been driving a motor vehicle in violation of Section 23136, 23140, 23152, 23153, or 23154.
(B) The person was placed under arrest or, if the alleged violation was of Section 23136, the person was lawfully detained.
(C) The person was driving a motor vehicle under any of the following circumstances:
(i) When the person had 0.08 percent or more, by weight, of alcohol in his or her blood.
(ii) When the person was under 21 years of age and had 0.05 percent or more, by weight, of alcohol in his or her blood.
(iii) When the person was under 21 years of age and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test, or other chemical test.
(iv) When the person was under 21 years of age and had any detectible quantity of delta-9-tetrahydrocannabinol in his or her body, as measured by a chemical field test or chemical laboratory test. determined pursuant to Section 13338.
(v) When the person was driving a vehicle that requires a commercial driver’s license and the person had 0.04 percent or more, by weight, of alcohol in his or her blood.
(vi) When the person was on probation for a violation of Section 23152 or 23153 and had a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test.
(4) If the department determines that any of those facts required under paragraph (3) were not proven by the preponderance of the evidence, the department shall rescind the order of suspension or revocation and, if the person is otherwise eligible, return or reissue the person’s driver’s license pursuant to Section 13551. For persons under 21 years of age, the determination of the department pursuant to paragraph (3) is final unless a hearing is requested within 10 days of the determination, which hearing shall be conducted according to Section 13558. For persons over 21 years of age, the determination of the department upon administrative review is final unless a hearing is requested pursuant to Section 13558.
(c) The department shall make the determination upon administrative review before the effective date of the order of suspension or revocation.
(d) The administrative review does not stay the suspension or revocation of a person’s privilege to operate a motor vehicle. If the department is unable to make a determination on administrative review within the time limit in subdivision (c), the department shall stay the effective date of the order of suspension or revocation pending the determination and, if the person’s driver’s license has been taken by the peace officer pursuant to Section 13382, 13388, 13389, or 23612, the department shall notify the person before the expiration date of the temporary permit issued pursuant to Section 13382, 13388, 13389, or 23612, or the expiration date of any previous extension issued pursuant to this subdivision, in a form that permits the person to establish to any peace officer that his or her privilege to operate a motor vehicle is not suspended or revoked.
(e) A person may request and be granted a hearing pursuant to Section 13558 without first receiving the results of an administrative review pursuant to this section. After receiving a request for a hearing, the department is not required to conduct an administrative review of the same matter pursuant to this section.
(f) A determination of facts by the department under this section has no collateral estoppel effect on a subsequent criminal prosecution and does not preclude litigation of those same facts in the criminal proceeding.

SEC. 3.

 Section 23136 of the Vehicle Code is amended to read:

23136.
 (a) Notwithstanding Sections 23152 and 23153, it is unlawful for a person under 21 years of age who has a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, or any detectible quantity of delta-9-tetrahydrocannabinol in his or her body, as measured by an oral swab saliva test or other chemical field test, to drive a vehicle. However, this section shall not be a bar to prosecution under Section 23152 or 23153 or any other law.
(b) A person shall be found to be in violation of subdivision (a) if the person was, at the time of driving, under 21 years of age, and the trier of fact finds that the person had consumed an alcoholic beverage or smoked or ingested marijuana or marijuana products and was driving a vehicle with a blood-alcohol concentration of 0.01 percent or greater, as measured by a preliminary alcohol screening test or other chemical test, or any detectible quantity of delta-9-tetrahydrocannabinol in his or her body, as measured by a chemical field test or other chemical test.
(c) (1) Any person under 21 years of age who drives a motor vehicle is deemed to have given his or her consent to a preliminary alcohol screening test, chemical field test, or other chemical test for the purpose of determining the presence of alcohol or delta-9-tetrahydrocannabinol in the person, if lawfully detained for an alleged violation of subdivision (a).
(2) The testing shall be incidental to a lawful detention and administered at the direction of a peace officer having reasonable cause to believe the person was driving a motor vehicle in violation of subdivision (a).
(3) The person shall be told that his or her failure to submit to, or the failure to complete, a preliminary alcohol screening test, chemical field test, or other chemical test as requested will result in the suspension or revocation of the person’s privilege to operate a motor vehicle for a period of one year to three years, as provided in Section 13353.1.
(d) The prohibition in subdivision (a) relating to delta-9-tetrahydrocannabinol shall not apply to a person under 21 years of age who has in his or her possession a physician’s recommendation for medical cannabis that complies with Article 25 (commencing with Section 2525) of Chapter 5 of Division 2 of the Business and Professions Code or an identification card issued pursuant to Section 11362.71 of the Health and Safety Code.
(e) As used in this section, “detectible quantity” means a blood plasma concentration of delta-9-tetrahydrocannabinol of five nanograms per milliliter or higher as indicated by a chemical test, or a positive indication on a binary chemical field test that has a detection threshold of not less than five nanograms per millileter.

SEC. 4.

 Section 23220 of the Vehicle Code is amended to read:

23220.
 (a) A person shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while driving a motor vehicle on any lands described in subdivision (c).
(b) A person shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while riding as a passenger in any motor vehicle being driven on any lands described in subdivision (c).
(c) As used in this section, “lands” means those lands to which the Chappie-Z’berg Off-Highway Motor Vehicle Law of 1971 (Division 16.5 (commencing with Section 38000)) applies as to off-highway motor vehicles, as described in Section 38001.
(d) (1) A violation of subdivision (a) or (b) may be punished as an infraction or a misdemeanor. shall be punished as an infraction.

(2)The court may order a defendant convicted of a misdemeanor and sentenced to a term of imprisonment in a county jail to be imprisoned on days other than days of regular employment for the defendant, as determined by the court.

(e) In addition to the penalties specified in this section, the court may, in its discretion, order the defendant to attend and complete a state-licensed driving-under-the influence program.

SEC. 5.

 Section 23221 of the Vehicle Code is amended to read:

23221.
 (a) A driver shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while driving a motor vehicle upon a highway.
(b) A passenger shall not drink any alcoholic beverage or smoke or ingest marijuana or any marijuana product while in a motor vehicle being driven upon a highway.
(c) A violation of this section may be punished as an infraction or a misdemeanor. shall be punished as an infraction.

(d)The court may order a defendant convicted of a misdemeanor and sentenced to a term of imprisonment in a county jail to be imprisoned on days other than days of regular employment for the defendant, as determined by the court.

(e)

(d) In addition to the penalties specified in this section, the court may, in its discretion, order the defendant to attend and complete a state-licensed driving-under-the-influence program.

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.