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 an infraction.

By expanding the scope of existing crimes, 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 no reimbursement is required by this act for a specified reason.

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 an infraction.

By expanding the scope of existing crimes, 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 no reimbursement is required by this act for a specified reason.

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 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.

By expanding the scope of and penalties for existing crimes, 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 no reimbursement is required by this act for a specified reason.

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 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.

By expanding the scope of and penalties for existing crimes and by increasing the administrative duties of local peace officers, crimes, this bill would impose a state-mandated local program.

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 drivers 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 persons 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.

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, operating, or riding as a passenger in a vehicle upon specified lands, or driving, operating, or riding as a passenger aboard a boat, vessel, or aircraft, 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. 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 drivers 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 persons license, and issue a temporary license.

This bill would provide that a person under 21 years of age who has any detectible amount of delta-9-tetrahydrocannabinol in his or her body would be subject to the same license suspension. 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.

Existing law makes it an infraction to drink any alcoholic beverage while driving a motor vehicle upon any highway or on other specified lands.

This bill would instead make driving or operating a vehicle upon any highway or drinking an alcoholic beverage or smoking or ingesting marijuana or any marijuana product while driving, operating, or riding as a passenger in a vehicle upon specified lands, or driving or operating driving, operating, or riding as a passenger aboard a boat, vessel, or aircraft while drinking any alcoholic beverage, aircraft, punishable as either an infraction or a misdemeanor. The bill would also make driving or operating a vehicle, boat, vessel, or aircraft while smoking or ingesting marijuana or marijuana products an offense punishable as an infraction or a misdemeanor. The bill would authorize a court to order a defendant to attend drug or alcohol education and counseling classes and complete a state-licensed driving-under-the-influence program in addition to those penalties.

By creating new crimes, 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.

Existing law makes it an infraction to drink any alcoholic beverage while driving a motor vehicle upon any highway or on other specified lands.

This bill would instead make driving or operating a vehicle upon any highway or specified lands, or driving or operating a boat, vessel, or aircraft while drinking any alcoholic beverage, punishable as either an infraction or a misdemeanor. The bill would also make driving or operating a vehicle, boat, vessel, or aircraft while smoking or ingesting marijuana or marijuana products an offense punishable as an infraction or a misdemeanor. The bill would authorize a court to order a defendant to attend drug or alcohol education and counseling classes in addition to those penalties.

By creating new crimes, 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 no reimbursement is required by this act for a specified reason.

Date of Hearing: July 19, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

SBPCA Bill Id:SB 65

Author:(Hill) – As Amended Ver:May 11, 2017

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill prohibits the smoking or ingestion of marijuana, or any marijuana product while driving, or while riding as a passenger in a motor vehicle on a highway, or on any lands, as specified, and makes a violation an infraction punishable by a fine of $70.

FISCAL EFFECT:

Additional moderate nonreimbursable enforcement costs to local law enforcement agencies, partially offset by fine revenue.

COMMENTS:

1. Background. Current law prohibits drivers and passengers of motor vehicles from consuming any alcoholic beverage or possessing any open container of alcohol while on a highway, or any lands, as specified. Current law also prohibits drivers and passengers of motor vehicles from possessing an open container or package of marijuana or marijuana products, treating violations as infractions punishable by up to a $250 fine.
2. Purpose. According to the author, “In 2012, the California Office of Traffic Safety (OTS) released a study of weekend nighttime drivers that found more California drivers tested positive for marijuana than alcohol. Over the last 10 years DMV data is available, the two most recent years show that for the first time, drugged drivers and drug combined with alcohol drivers are killing more Californians than alcohol impaired drivers.”

SB 65 makes use of marijuana while driving laws consistent with drinking while driving. It also makes using marijuana while driving an infraction consistent with drinking while driving and it creates an infraction for passengers in a car to smoke marijuana consistent with passenger drinking while driving.

Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081

Date of Hearing: July 11, 2017

Chief Counsel: Gregory Pagan

ASSEMBLY COMMITTEE ON PUBLIC SAFETY

Reginald Byron Jones-Sawyer, Sr., Chair

SBPCA Bill Id:SB 65

Author:(Hill) – As Amended Ver:May 11, 2017

SUMMARY: Prohibits the smoking or ingestion of marijuana while driving, or while riding as a passenger in a motor vehicle, and makes a violation punishable as an infraction. Specifically, this bill:

1. Prohibits the smoking or ingestion of marijuana, or any marijuana product while driving, or while riding as a passenger in a motor vehicle on a highway, or on any lands, as specified.
   
2. Makes smoking or ingesting marijuana by a driver or passenger in a motor vehicle an infraction punishable by a fine of $70.

EXISTING LAW:

1. Provides that except in cases where a different punishment is prescribed, ever offense to be declared an infraction is punishable by a fine not to exceed two hundred fifty dollars ($250). (Pen. Code, § 19.8, subd. (b).)
   
2. States that an infraction is not punishable by imprisonment. A person charged with an infraction shall not be entitled to a jury trial. A person charged with an infraction shall not entitled to have a public defender or other counsel appointed at public expense to represent him of her she is arrested and not released on his or her promise to appear, his or her own recognizance, or a deposit of bail. (Pen. Code, § 19.6.)
   
3. Prohibits drivers and passengers of motor vehicles from consuming any alcoholic beverage or possessing any open container of alcohol while on a highway, or any lands, as specified. (Veh. Code, §§ 23221 and 23222.)
   
4. Allows persons 21 or over to possess not more than 28.5 grams of marijuana and allows those individuals to smoke or ingest marijuana. (Health and Saf. Code, § 11362.1.)
   
5. Prohibits drivers and passengers of motor vehicles from possessing an open container or package of marijuana or marijuana products, treating violations as infractions punishable by up to a $250 fine. (Health and Saf. Code § 11362.3.)
   
6. Punishes possession of not more than one ounce of marijuana by those under 18 as an infraction, requiring four hours of drug education and up to 10 hours of community service for first-time offenders. (Health and Saf. Code, § 11357.)
   
7. Provides that possession of not more than one ounce of marijuana by 18 to 21 year olds as an infraction with a $100 fine. (Health and Saf. Code, § 11357.)
   
8. Requires the Judicial Council to annually adopt a uniform traffic penalty schedule which shall be applicable to all non-parking infractions as specified in the Vehicle Code, unless in a particular case before the court the judge or authorized hearing officer specifies a different penalty……In establishing a uniform traffic penalty schedule, the Judicial Council shall classify the offenses into four or fewer penalty categories, according to the severity of the offenses, so as to permit convenient notice and payment of the scheduled penalty. (Veh. Code, §40310.)
   

FISCAL EFFECT: Unknown

COMMENTS:

1. Author's Statement: According to the author," SB 65 makes our marijuana while driving laws consistent with drinking while driving. It makes using marijuana while driving an infraction consistent with drinking while driving and it creates an infraction for passengers in a car to smoke marijuana consistent with passenger drinking while driving. From 2007 to 2014, the number of nighttime weekend drivers in the U.S. with marijuana in their system increased nearly 50%. In 2012, the California Office of Traffic Safety (OTS) released a study of weekend nighttime drivers that found more California drivers tested positive for marijuana than alcohol. Over the last 10 years DMV data is available, the two most recent years show that for the first time, drugged drivers and drug combined with alcohol drivers are killing more Californians than alcohol impaired drivers. The AAA Foundation for Traffic Safety’s Washington Study found that the percentage of drivers involved in fatal crashes who recently used marijuana more than doubled between 2013 and 2014. “Washington serves as an eye-opening case study for what other states may experience with road safety after legalizing the

drug.”

1. Accident Risks of Marijuana vs. Alcohol: A recent comprehensive review of studies on the health effects of cannabis by the National Academies of Sciences, Engineering, and Mathematics found that, when controlling for confounding factors like alcohol, driving under the influence of cannabis was associated with a 20% - 30% (1.2 – 1.3 times) increased likelihood of a motor vehicle crash. A 2015 NHTSA study of police-reported crashes found that THC-positive drivers, when adjusted for the effects of other risk factors like alcohol, age, gender, and race, were not significantly more likely to be in a crash. For comparison to alcohol, when adjusted for age and gender, drivers with a 0.03 breath alcohol content (BrAC) level were 20% (1.2 times) more likely to be in a crash, drivers at 0.05 BrAC are about twice as likely, and drivers at the legal alcohol limit of 0.08 BrAC are about 4 times as likely. However, according to the National Institute on Drug Abuse, research suggests that risk factors for marijuana use when combined with either alcohol, cocaine, or benzodiazepines are greater than either drug individually.

REGISTERED SUPPORT / OPPOSITION:

Support

ACIC-Property Casualty Insurance Association of America

Association for Los Angeles County Deputy Sheriffs

Association of Deputy District Attorneys

Automobile Club of Southern California

California Association of Code Enforcement Officers

California College and University Police Chiefs Association

California District Attorneys Association

California Driving Under the Influence Treatment Programs

California Medical Association

California Narcotics officers Association

California Police Chiefs Association

Foundation for Advancing Alcohol Responsibility

Los Angeles County District Attorney's Office

Los Angeles County Probation Officers Union AFSCME Local 685

Los Angeles County Professional Peace Officers Association

Los Angeles Police Protective League

Peace Officers Research Association of California

San Diego County District Attorney's Office

Town of Los Gatos

Opposition

California Attorneys for Criminal Justice

California Public Defenders Association

Analysis Prepared by: Gregory Pagan / PUB. S. / (916) 319-3744

 THIRD READING  

Bill No: SB 65

Author:

:

Vote:

SENATE TRANS. & HOUSING COMMITTEE: 10-0, 4/4/17

AYES: Beall, Cannella, Atkins, Bates, Gaines, McGuire, Mendoza, Morrell, Roth, Wiener

NO VOTE RECORDED: Allen, Skinner, Wieckowski

SENATE PUBLIC SAFETY COMMITTEE: 7-0, 4/25/17

AYES: Skinner, Anderson, Bradford, Jackson, Mitchell, Stone, Wiener

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

SUBJECT:

SOURCE: Author

DIGEST:

This bill prohibits the smoking or ingestion of marijuana while driving or while riding as a passenger in a motor vehicle, making violations punishable as an infraction.

ANALYSIS:

Existing law:

1. Prohibits drivers and passengers of motor vehicles from consuming any alcoholic beverage or possessing any open container of alcohol while on a highway.
2. Prohibits the operation of a vehicle while under the influence of any alcoholic beverage (0.08% or higher blood alcohol content), drug, or combination, treating violations as misdemeanors.
   
3. Allows persons 21 or over to possess not more than 28.5 grams of marijuana and allows those individuals to smoke or ingest marijuana.
4. Prohibits drivers and passengers of motor vehicles from possessing an open container or package of marijuana or marijuana products, treating violations as infractions punishable by up to a $250 fine.
   
5. Allows for the use of medical marijuana by qualified patients under the Compassionate Use Act of 1996 and those with a medical identification card issued by the Department of Health Services, but does not authorize smoking in a motor vehicle.
   

This bill:

1. Prohibits smoking or ingesting marijuana or any marijuana product while driving or while riding as a passenger in a motor vehicle on a highway.
2. Requires that the consumption of marijuana or the consumption of alcohol in a motor vehicle by the driver or a passenger be treated as an infraction.

Comments

1. Purpose. According to the author, the purpose of this bill is to bring laws regulating marijuana use while driving in line with current laws regulating alcohol use while driving. This bill does so by prohibiting marijuana consumption while driving or riding as a passenger in a motor vehicle, consistent with current law prohibiting the consumption of alcohol while driving or riding in a motor vehicle. The author states that this bill is necessary to help address the increased traffic fatalities associated with drugged driving. According to the 2013-14 National Highway Traffic Safety Administration’s (NHTSA’s) National Roadside Survey, 12.6% of weekend, nighttime drivers tested positive for THC, which is up from 8.6% in 2007.
   
2. Prop. 64: Plugging a gap. The passage of Proposition 64 in 2016 legalized recreational marijuana possession and use, with certain restrictions, for people 21 and older. The proposition language specifically declares that it should not be interpreted to permit possession of an open container of marijuana while driving or, similarly to California’s medical marijuana laws, to permit smoking or ingesting marijuana while driving or riding as a passenger in any transportation vehicle. However, the proposition only specifies a penalty for the open container provision, but does not provide a penalty for smoking or ingesting marijuana while driving or riding as a passenger. This bill fills that gap by treating consumption violations by drivers and passengers as infractions.
   
3. Crash risks of marijuana vs. alcohol. A recent comprehensive review of studies on the health effects of cannabis by the National Academies of Sciences, Engineering, and Mathematics found that, when controlling for confounding factors like alcohol, driving under the influence of cannabis was associated with a 20% - 30% (1.2 – 1.3 times) increased likelihood of a motor vehicle crash. A 2015 NHTSA study of police-reported crashes found that THC-positive drivers, when adjusted for the effects of other risk factors like alcohol, age, gender, and race, were not significantly more likely to be in a crash. For comparison to alcohol, when adjusted for age and gender, drivers with a 0.03 breath alcohol content (BrAC) level were 20% (1.2 times) more likely to be in a crash, drivers at 0.05 BrAC are about twice as likely, and drivers at the legal alcohol limit of 0.08 BrAC are about 4 times as likely. However, according to the National Institute on Drug Abuse, research suggests that risk factors for marijuana use when combined with either alcohol, cocaine, or benzodiazepines are greater than either drug individually.
   
4. Medical exemption. This bill does not provide an exemption for medical marijuana users and California medical marijuana laws do not authorize smoking medical marijuana in a vehicle that’s being operated. However, in some cases, medical users may use marijuana to help them drive, for example by treating anxiety or back pain. This bill would not prohibit such users from medicating prior to driving, but would prohibit users from medicating while driving. Either way, users would still be subject to current law which prohibits driving under the influence of any drug and prohibits having an open container of marijuana in the vehicle. An exemption while driving may be helpful for frequent medical marijuana users who have built up a functional tolerance and spend regular periods of time in a vehicle, but an exemption, and driving in general, may be especially risky for infrequent or new users who receive a prescription.
   
5. Significant amendments. This bill has been significantly amended from prior versions to remove major provisions, including a zero tolerance policy for persons under 21, misdemeanor-level violation penalties, and court-ordered drug-education classes.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/22/17)

Alcohol Justice

Association of California Insurance Companies

California Alcohol Policy Alliance

California Association of Driving Under the Influence Treatment Programs

California District Attorneys Association

California Medical Association

California Police Chiefs Association

Crime Victims United of California

The Foundation for Advancing Alcohol Responsibility

The Office of the District Attorney of San Diego County

Peace Officers Research Association of California

The Town of Los Gatos

OPPOSITION: (Verified 5/22/17)

California Attorneys for Criminal Justice

ARGUMENTS IN SUPPORT: Writing in support of an earlier version of this bill, the California Medical Association, California Police Chiefs Association, and the Peace Officers Research Association of California see it as the correction of an oversight in Proposition 64, establishing a penalty for ingesting marijuana while driving. The town of Los Gatos writes in support that this bill is consistent with their smoking regulations which prohibit smoking in public places in order to create a safe and welcoming environment.

ARGUMENTS IN OPPOSITION: Writing in opposition to this bill, the California Attorneys for Criminal Justice (CACJ) express concerns about creating penalties for passengers who use marijuana. They argue that it is premature to regulate passenger use and state that studies have not concluded that any amount marijuana use by a passenger is a public safety hazard.

Prepared by:

5/24/17 13:26:02

**** END ****

SENATE COMMITTEE ON PUBLIC SAFETY

Senator Nancy Skinner, Chair

2017 - 2018 Regular

Bill No: SB 65 Hearing Date: April 25, 2017

Subject: Vehicles: Alcohol and Marijuana: Penalties

HISTORY

Source: California District Attorneys Association

Prior Legislation: Proposition 64, November 19, 2016

AB 266 (Bonta) Chapter 689, Stats. 2014

Support: Association for Los Angeles Deputy Sheriffs; California Association of Code Enforcement Officers; California Association of Driving Under the Influence Treatment Programs; California College and University Police Chiefs Association; California Medical Association; California Narcotic Officers Association; California Police Chiefs Association; Foundation for Advancing Alcohol Responsibility; Los Angeles County Professional Peace Officers Association; Los Angeles Police Protective League; Peace Officers Research Association of California; Riverside Sheriffs’ Association; Town of Los Gatos

Opposition: ACLU (unless amended); California Attorneys for Criminal Justice; California NORML; California Public Defenders Association; Drug Policy Alliance

PURPOSE

The purpose of this bill is to make it illegal to drive while smoking or ingesting marijuana or for a passenger to do so and to make it illegal for a person under 21 to drive with any marijuana in his or her system.

Existing law prohibits drivers and passengers of motor vehicles from consuming any alcoholic beverage or possessing any open container of alcohol while on a highway. (Vehicle Code §§ 23221 and 23222)

Existing law allows police officers to request preliminary alcohol screening tests (breathalyzers) of drivers under 21 suspected of having a blood alcohol concentration (BAC) equal to or greater than 0.01%, or chemical lab screening of blood, breath, or urine if a screening device is not available. (Vehicle Code § 23136)

Existing law prohibits the operation of a vehicle while under the influence of any alcoholic beverage or to drive with a .08% or higher blood alcohol content. (Vehicle Code § 23152)

Existing law allows persons 21 or over to possess not more than 28.5 grams of marijuana and allows those individuals to smoke or ingest marijuana. (Health and Safety Code § 11362.1)

Existing law prohibits drivers and passengers of motor vehicles from possessing an open container or package of marijuana or marijuana products, treating violations as infractions punishable by up to a $250 fine. (Health and Safety Code § 11362.3)

Existing law punishes possession of not more than one ounce of marijuana by those under 18 as an infraction, requiring four hours of drug education and up to 10 hours of community service for first-time offenders. (Health and Safety Code § 11357)

Existing law punishes possession of not more than one ounce of marijuana by 18 to 21 year-olds as an infraction with a $100 fine. (Health and Safety Code § 11357)

This bill provides creates a zero tolerance for marijuana for people under 21 providing that a person under 21 years of ages is prohibited from driving with a detectable amount quantity of delta-9-tetrahydrocannabinol (THC).

This bill provides that the zero tolerance does not apply to a person under 21 who has in his or her possession a physician’s recommendation of medical cannabis.

This bill if a peace officer believes a person under 21 to be driving a Vehicle with marijuana in his or her system the officer shall request the person to take a chemical field test to determine the presence of THC.

This bill provides that if the person refuses or fails to take the chemical test or the chemical field test reveal any detectible quantity of THC in the person than the officer, acting on behalf of DMV, shall serve the person with a notice of suspension of the person’s driving privilege.

This bill defines a “chemical field test” as 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 THC in the body of the test subject.

This bill defines a “detectible quantity” as a blood plasma concentration of THC 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 milliliter.

This bill provides that a person should not smoke or ingest marijuana or any marijuana product while driving or riding as a passenger in a vehicle.

This bill provides that the penalty is an infraction which is the current penalty for drinking while driving.

This bill also provides that in addition to other penalties the court, in its discretion, may order a person to attend and complete a state-licensed driving-under-the-influence program.

COMMENTS

1. Need for This Bill

According to the author:

Under current law, California motorists can be arrested for driving under the influence of alcohol, marijuana or other drugs, if they are unable to drive with the caution and care of a sober person. A basic offense is usually charged as a misdemeanor. There's no standard for marijuana impairment like the .08 blood alcohol content threshold used for drunk driving because technology for a roadside test of marijuana use is still being developed. But a law enforcement officer or a trained drug recognition expert working with police may deem a motorist marijuana impaired.

With the passage of Prop 64., motorists may be cited for an infraction for having an open container or package of marijuana in a vehicle as a result of provisions in the initiative that attempted to make laws on marijuana use and possession while driving consistent with laws on use and possession of alcohol while driving.

Unfortunately, nothing in Prop. 64 or pre-existing law expressly prohibits smoking or ingesting marijuana while driving – leaving law enforcement officers with limited options if a driver is spotted smoking or ingesting marijuana products. SB 65 would make it an infraction for anyone to smoke or consume marijuana in any form while driving a vehicle, consistent with the law on drinking while operating a vehicle.

2. Driving While Smoking

Existing law makes it an infraction to drink alcohol while driving or riding as a passenger in a vehicle. This bill would expand that infraction to include smoking marijuana while driving or riding in a vehicle. This is consistent with Health and Safety Code Section 11362.3 which states that nothing in the section allowing the recreational use of marijuana shall be construed to permit a person to “ smoke or ingest marijuana or marijuana products while driving , operating a motor vehicle, boat, vessel, aircraft or other vehicle used for transportation. (Health and Safety Code § 1132.3 (a)(7))

The bill adds a provision that states the court can order a person to attend a driving-under-the influence program. The practical reality is this will likely not happen because a person charged with an infraction will likely just pay their fine. However, if they ask for a court trial it is possible that a judge could order the program at that time.

3. Zero Tolerance for Under 21 Years of Age

There is a currently a zero tolerance for people under 21 years of age. The presence of alcohol in a person under 21 leads to the license suspension. This bill adds a zero tolerance for marijuana in a driver under 21 years of age making it illegal for a person under 21 to have a detectable quantity of marijuana in his or her body.

1. Detectable Quantity

This bill a “detectible quantity” as a blood plasma concentration of THC 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 milliliter.

1. Chemical field tests

The author’s office states that the chemical field tests can detect as 5 nanograms per litter of THC and thus set the zero tolerance amount in this bill at that level. The Drug Policy Alliance and other opponents argue that these field tests are imprecise. Drug Policy Alliance states in part:

First, field chemical tests, including oral swab tests, fail to demonstrate whether a driver is impaired. A recent report by the AAA foundation for Traffic Safety noted that pers se THC standard, including the zero tolerance standard for persons under 21 years of age proposed in this bill, are so unscientific that they both under and over punish drivers. Meaning that they fail to detect some people who are actually impaired and punish some drivers who are not. Thus, the chemical tests proposed in this bill will waste taxpayer dollars and result in administrative penalties that unnecessarily interfere with the lives of people who are driving safety.

Second, chemical testing, including oral fluid tests, like many other forensic disciplines is highly technical and imperfect. There are a host of problems with drug testing techniques and analyses, including: the substantial risk of false positive results, false negative results, specimen contamination; and chain of custody, storage and retesting issues. These problems are made worse when chemical tests are performed in the field.

Are the roadside chemical tests ready for a zero tolerance law?

1. Timeliness

Proposition 64 just recently passed and even before that happened there were already people studying marijuana and its impact on driving.

The University of California, San Diego houses the Center for Medicinal Cannabis Research. AB 266 (Bonta), Chapter 689, Statutes of 2014, required the Bureau of Medical Cannabis Regulation to contract with the California Marijuana Research Program, known as the Center for Medicinal Cannabis Research, to develop a study that identifies the impact that cannabis has on motor skills. The Center for Medicinal Cannabis Research is currently engaged in that clinical study. The title of the study is “A Randomized, Controlled Trial of Cannabis in Healthy

Volunteers Evaluating Simulated Driving, Field Performance Tests and Cannabinoid Levels.” As part of the study, volunteers will inhale smoked cannabis with either 0% (placebo), 6.7%, or 12.6% Δ9-THC at the beginning of the day, and then complete driving simulations, iPad-based performance assessments, and bodily fluid draws (e.g., blood, saliva, breath) before the cannabis smoking and hourly over the subsequent 7 hours after cannabis smoking. (http://www.cmcr.ucsd.edu/index.php/2015-11-20-20-52-15/active-studies/62-ab266) The purpose of the study is to determine (1) the relationship of the dose of Δ9-THC on driving performance and (2) the duration of driving impairment in terms of hours from initial use, (3) if saliva or expired air can serve as a useful substitute for blood sampling of Δ9-THC in judicial hearings and (4) if testing using an iPad can serve as a useful adjunct to the standardized field sobriety test in identifying acute impairment from cannabis. (Id.) Proposition 64 provides the University of California San Diego Center for Medicinal Cannabis Research will continue to receive $2,000,000 annually for research on understanding the efficacy and adverse effects of marijuana.

In addition, Proposition 64 provides a couple of funding streams for CHP to address driving under the influence, including driving under the influence of marijuana. The source of the revenue streams is the money that will be generated by taxing marijuana (The Marijuana Tax Fund). One revenue stream is a fixed amount of $3,000,000 a year for four years starting in fiscal year 2018-2019. That money is for CHP “to establish and adopt protocols to determine whether a driver is operating a vehicle while impaired, including impairment by the use of marijuana or marijuana products, and to establish and adopt protocols setting forth best practices to assist law enforcement agencies.” (Health and Saf. Code § 34019, subd. (c).) The language of Proposition 64 allows CHP to use those funds to hire personnel to establish the protocols for driving under the influence. In addition, the department may make grants to public and private research institutions for the purpose of developing technology for determining when a driver is operating a vehicle while impaired, including impairment by the use of marijuana or marijuana products. (Health and Saf. Code § 34019, subd. (c).) Proposition 64 provides a second funding stream to CHP from the Marijuana Tax Fund. The money generated by taxing marijuana will go to a variety of entities to ensure effective implementation of the Proposition 64 and to address policy concerns surrounding the use of marijuana. After the mandatory disbursals from the Marijuana Tax Fund are made each year, the remaining money will be disbursed to specified entities on a percentage basis.

Should we await the results of these studies and CHP recommendations before we set a zero tolerance level for marijuana in people under 21 years of age.

4. Argument in Support

The California Police Chiefs Association support this bill stating:

The current lack of tools for law enforcement to both identify and measure marijuana-impaired driving, coupled with the lack of statute addressing drugged driving, sends the message to the public that drugged driving is not as serious of an issue as drunk driving. This lack of recognition simply does not match the facts. The national High way Traffic Safety Administration’s 2012 nation Roadside Survey of Alcohol and Drug use by Drivers founds that the proportion of total drug-positive nighttime weekend drivers increased from 16.3 percent in 2007 to 20.0 percent in 2013-14. By comparison, in 2013-14, about 1.5 percent of weekend drivers had blood alcohol concentrations at or above the legal limit of .08 breath alcohol concentration (BAC) and 8.3 percent of drivers had a measurable amount of alcohol in their systems.

5. Argument in Opposition

The ACLU opposes this bill unless it is amended stating:

SB 65 also seeks to expand the zero tolerance law for consuming alcohol while driving for people under 21 years old to apply to consumption of marijuana. This part of SB 65 would require drivers under 21 to submit to a roadside chemical test for the presence of marijuana and would result in immediate license suspension for refusal to take such a test or a positive result on such a test.

Given that it remains illegal for people under 21 to consume marijuana, we understand the desire to apply the zero tolerance law for underage drinking and driving to consumption of marijuana as well. However, we do not believe that the roadside chemical tests for the presence of marijuana are sufficiently reliable to serve as the basis for a license suspension and other legal consequences.

Current tests are used as one form of field sobriety test, to aid an officer in assessing whether someone is under the influence of drugs sufficient to establish probable cause for a blood draw. SB 65 would elevate their use from a preliminary screening device to detect potential impairment to proof of the presence of marijuana in the driver’s system. To our knowledge, these tests cannot distinguish between trace levels of marijuana that might be the result of second hand smoke and levels that would be indicative that the driver himself or herself consumed the marijuana within a short period of time. While it is illegal for a person under 21 to personally consume marijuana, we should not punish young drivers who are inadvertently exposed to marijuana through second hand smoke.

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SENATE COMMITTEE ON TRANSPORTATION AND HOUSING

Senator Jim Beall, Chair

2017 - 2018 Regular

Bill No: SB 65 Hearing Date: 4/04/2017

SUBJECT: Vehicles: alcohol and marijuana: penalties

DIGEST: This bill establishes a zero tolerance marijuana policy for drivers under 21 and prohibits the consumption of marijuana by the driver or passenger of a motor vehicle, making violations punishable as an infraction or misdemeanor with imprisonment and a state-licensed driving-under-the-influence program.

ANALYSIS:

Existing law:

1. Prohibits drivers and passengers of motor vehicles from consuming any alcoholic beverage or possessing any open container of alcohol while on a highway.
2. Allows police officers to request preliminary alcohol screening tests (breathalyzers) of drivers under 21 suspected of having a blood alcohol concentration (BAC) equal to or greater than 0.01%, or chemical lab screening of blood, breath, or urine if a screening device is not available.
   
3. Punishes drivers under 21 who have a BAC of 0.01%, or who refuse to take any screening test, with a one-year license suspension and a $100 fee upon reissuance.
   
4. Prohibits the operation of a vehicle while under the influence of any alcoholic beverage (0.08% or higher blood alcohol content), drug, or combination, treating violations as misdemeanors.
   
5. Allows persons 21 or over to possess not more than 28.5 grams of marijuana and allows those individuals to smoke or ingest marijuana.
6. Prohibits drivers and passengers of motor vehicles from possessing an open container or package of marijuana or marijuana products, treating violations as infractions punishable by up to a $250 fine.
   
7. Punishes possession of not more than one ounce of marijuana by those under 18 as an infraction, requiring four hours of drug education and up to 10 hours of community service for first-time offenders.
8. Punishes possession of not more than one ounce of marijuana by 18 to 21 year-olds as an infraction with a $100 fine.
9. Allows for the use of medical marijuana by qualified patients under the Compassionate Use Act of 1996 and those with a medical identification card issued by the Department of Health Services, but does not authorize smoking in a motor vehicle.
   

This bill:

1. Prohibits drivers and passengers of motor vehicles from smoking or ingesting marijuana or any marijuana product on a highway.
2. Provides that the consumption of marijuana or the consumption of alcohol in a motor vehicle by the driver or a passenger may be treated as an infraction or misdemeanor.
3. Provides that misdemeanor charges may lead to imprisonment on days other than days of employment for the defendant and that, in addition, a court may order the defendant to complete a state-licensed driving-under-the-influence program.
4. Allows police officers to request a chemical field test (oral swab for saliva) of drivers under the age of 21 suspected of having any level of delta-9-tetrahydrocannabinol (THC) in their body or a chemical lab screening of blood, breath, or urine if a field device is not available.
5. Punishes drivers under 21 who have any detectable level of THC in their body or who refuse to take any screening test with a one-year license suspension or revocation.
6. Excludes persons under 21 who have authority to use medical marijuana from the zero tolerance THC policy.
   

COMMENTS:

1. Purpose. According to the author, the purpose of this bill is to bring laws regulating marijuana use while driving in line with current laws regulating alcohol use while driving. This bill does so by prohibiting marijuana consumption while driving or riding as a passenger in a motor vehicle, consistent with current law prohibiting the consumption of alcohol while driving or riding in a motor vehicle. Further, the law extends the strict alcohol restrictions on drivers under 21 to marijuana, resulting in a year license suspension or revocation if any level of delta-9-tetrahydrocannabinol (THC) is detected in the driver. The author states that this bill is necessary to help address the increased traffic fatalities associated with drugged driving. According to the 2013-14 National Highway Traffic Safety Administration’s (NHTSA’s) National Roadside Survey, 12.6% of weekend, nighttime drivers tested positive for THC, which is up from 8.6% in 2007.
2. Prop. 64: Plugging a gap. The passage of Proposition 64 in 2016 legalized recreational marijuana possession and use, with certain restrictions, for people 21 and older. The proposition language specifically declares that it should not be interpreted to permit possession of an open container of marijuana while driving or, similarly to California’s medical marijuana laws, to permit smoking or ingesting marijuana while driving or riding as a passenger in any transportation vehicle. However, the proposition only specifies a penalty for the open container provision, but does not provide a penalty for smoking or ingesting marijuana while driving or riding as a passenger. This bill fills that gap by treating consumption violations by drivers and passengers as infractions or misdemeanors, at the discretion of the court.
3. Crash risks of marijuana vs. alcohol. A recent comprehensive review of studies on the health effects of cannabis by the National Academies of Sciences, Engineering, and Mathematics found that, when controlling for confounding factors like alcohol, driving under the influence of cannabis was associated with a relatively low 20% - 30% (1.2 – 1.3 times) increased likelihood of a motor vehicle crash. A 2015 NHTSA study of police-reported crashes found that THC-positive drivers, when adjusted for the effects of other risk factors like alcohol, age, gender, and race, were not significantly more likely to be in a crash. For comparison to alcohol, when adjusted for age and gender, drivers with a 0.03 breath alcohol content (BrAC) level were 20% (1.2 times) more likely to be in a crash, drivers at 0.05 BrAC are about twice as likely, and drivers at the legal alcohol limit of 0.08 BrAC are about 4 times as likely.
4. Zero tolerance for drivers under 21. This bill suspends or revokes the license of any driver under the age of 21 found to have any detectable amount of THC in their body while driving for one year and up to three years depending on past offenses, regardless of impairment. It excludes patients with a valid medical license. This could include THC from recent indirect exposure. In such a case, where a driver is exposed to secondhand smoke, presumably by a legal consumer, the committee may wish to consider whether they should be subject to a zero tolerance policy. Further, unlike alcohol, oral fluid screening devices for THC such as the Dräger DrugTest 5000 can yield positive results up to 24 – 44 hours after consumption. The committee may wish to consider whether a driver under 21 should lose their license for a year if they consumed marijuana the day before.
5. Sensitivity of roadside devices. Current roadside devices for detecting THC, such as the Dräger DrugTest 5000, allow for screening THC at or above a particular cutoff point in a binary, non-quantitative manner from oral fluids or cheek swab. According to independent testing, attempts at detecting amounts below that level resulted in a relatively high number of false negatives, where the device’s low sensitivity did not detect THC but a lab analysis later confirmed the presence of THC. The bill allows for the use of a chemical lab test if a field test is not available. If an officer has reason to suspect the driver consumed marijuana, but the field test shows negative, they may order a chemical analysis anyway as they would if they didn’t have the roadside device in the first place. The committee may wish to consider whether a roadside device is sensitive enough to warrant using, especially if establishing a zero tolerance law.
   
6. Infraction or misdemeanor. Current law already prohibits operating a vehicle under the influence of any drug, marijuana included. Impairment can be determined by field sobriety tests followed by chemical lab tests. This bill prohibits the act of consuming marijuana in a motor vehicle by a driver or passenger, making it punishable as an infraction or misdemeanor and extends this punishment to alcohol. As written, a driver or passenger could go to jail for smoking marijuana or drinking alcohol in a motor vehicle, regardless of blood alcohol content or impairment. The committee may wish to consider which scenarios drivers or passengers would be charged with a misdemeanor over an infraction and whether those scenarios are already covered by current law regarding impairment.
   
7. Double Referral. This bill was referred to this committee and the Senate Public Safety Committee.

Related Legislation:

SB 698 (Hill, 2017) — would make it illegal to have a certain combination of alcohol and controlled substances while driving a vehicle.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

POSITIONS: (Communicated to the committee before noon on Wednesday,

March 29^th, 2017.)

SUPPORT:

Alcohol Justice

Association of California Insurance Companies (ACIC)

California Alcohol Policy Alliance

California Association of Driving Under the Influence (DUI) Treatment Programs (CADTP)

California District Attorneys Association

California Medical Association

California Police Chiefs Association

Crime Victims United of California (CVUC)

The Foundation for Advancing Alcohol Responsibility

Peace Officers Research Association of California (PORAC)

The Town of Los Gatos

OPPOSITION:

California Attorneys for Criminal Justice

California Chapter of the National Organization for the Reform of Marijuana Laws

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