                            OFFICE OF THE ATTORNEY GENERAL

                                      State of California


                                     JOHN K. VAN DE KAMP

                                        Attorney General


                           ______________________________________

                   OPINION           :
                                     :          No. 89-804
                  of                 :
                                     :          MARCH 8, 1990
       JOHN K. VAN DE KAMP           :

           Attorney General          :

                                     :

       RODNEY O. LILYQUIST           :

        Deputy Attorney General      :

                                     :

______________________________________________________________________________

           THE HONORABLE GENE L. TUNNEY, DISTRICT ATTORNEY OF SONOMA
COUNTY, has requested an opinion on the following question:

               May money deposited in the criminalistics laboratories fund of a county be used to
pay the fees of a privately operated laboratory performing chemical analyses for controlled
substances in connection with investigations of persons charged with being under the influence of
controlled substances by a city or county that obtains its analyses of solid-dose controlled substances
from the Department of Justice?

                                           CONCLUSION

                Money deposited in the criminalistics laboratories fund of a county may not be used
to pay the fees of a privately operated laboratory performing chemical analyses for controlled
substances in connection with a city or county investigation of persons charged with being under
the influence of controlled substances when the county is served by the criminalistic laboratories of
the Department of Justice insofar as analyses of solid-dose controlled substances are concerned.

                                            ANALYSES

                Health and Safety Code section 11372.51 provides:

                 "(a) Every person who is convicted of a violation of Section 11350, 11351,
         11351.5, 11352, 11355, 11358, 11359, 11361, 11363, 11364, 11368, 11375, 11377,
         11378, 11378.5, 11379, 11379.5, 11379.6, 11380, 11380.5, 11382, 11383, 11390,
         11391, or 11550 or subdivision (a) or (c) of Section 11357, or subdivision (a) of
         Section 11360 of this code, or Section 4230 of the Business and Professions Code
         shall pay a criminal laboratory analysis fee in the amount of fifty dollars ($50) for


   1
       All references hereafter to the Health and Safety Code are by section number only.

                                                  1.                                             89-804

       each separate offense. The court shall increase the total fine necessary to include this
       increment.

                "With respect to those offenses specified in this subdivision for which a fine
       is not authorized by other provisions of law, the court shall, upon conviction, impose
       a fine in an amount not to exceed fifty dollars ($50), which shall constitute the
       increment prescribed by this section and which shall be in addition to any other
       penalty prescribed by law.

                "(b) The county treasurer shall maintain a criminalistics laboratories fund.
       The sum of fifty dollars ($50) shall be deposited into the fund for every conviction
       under Section 11350, 11351, 11351.5, 11352, 11355, 11358, 11359, 11361, 11363,
       11364, 11368, 11375, 11377, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380,
       11380.5, 11382, 11383, 11390, 11391, or 11550, subdivision (a) or (c) of Section
       11357, or subdivision (a) of Section 11360 of this code, or Section 4230 of the
       Business and Professions Code, in addition to fines, forfeitures, and other moneys
       which are transmitted by the courts to the county treasurer pursuant to Section
       11502. The deposits shall be made prior to any transfer pursuant to Section 11502.
       The county may retain an amount of this money equal to its administrative cost
       incurred pursuant to this section. Moneys in the criminalistics laboratories fund
       shall, except as otherwise provided in this section, be used exclusively to fund (1)
       costs incurred by criminalistics laboratories providing microscopic and chemical
       analyses for controlled substances, in connection with criminal investigations
       conducted within both the incorporated or unincorporated portions of the county, (2)
       the purchase and maintenance of equipment for use by these laboratories in
       performing the analyses, and (3) for continuing education, training, and scientific
       development of forensic scientists regularly employed by these laboratories. Moneys
       in the criminalistics laboratory fund shall be in addition to any allocations pursuant
       to existing law. As used in this section, 'criminalistics laboratory' means a laboratory
       operated by, or under contract with, a city, county, or other public agency, including
       a criminalistics laboratory of the Department of Justice, (1) which has not less than
       one regularly employed forensic scientist engaged in the analysis of solid-dose
       controlled substances, and (2) which is registered as an analytical laboratory with the
       Drug Enforcement Administration of the United States Department of Justice for the
       possession of all scheduled controlled substances. In counties served by
       criminalistics laboratories of the Department of Justice, amounts deposited in the
       criminalistics laboratories fund, after deduction of appropriate and reasonable county
       overhead charges attributable to the collection thereof, shall be paid by the county
       treasurer once a month to the Controller for deposit into the State General Fund, and
       shall be excepted from the expenditure requirements otherwise prescribed by this
       subdivision.

               "The county treasurer shall, at the conclusion of each fiscal year, determine
       the amount of any funds remaining in the special fund established pursuant to this
       section after expenditures for that fiscal year have been made for the purposes herein
       specified. The county treasurer shall annually distribute those surplus funds in
       accordance with the allocation scheme for distribution of fines and forfeitures set
       forth in Section 11502." (Emphases added.)

The statutes listed in section 11372.5 define offenses involving the manufacture, cultivation,
possession, use, transportation, and sale of controlled substances. The list does not include Vehicle
Code offenses of driving a motor vehicle while under the influence of alcohol or controlled

                                                 2.                                               89-804

substances. Penal Code section 1463.14 provides a separate statutory scheme for funding the testing
of blood, breath and urine of drivers suspected of violating Vehicle Code sections 23103, 23104,
23152 and 23153 for alcoholic content or the presence of drugs.

               The question presented for resolution concerns the proper application of the
provisions of section 11372.5. May money in a county's criminalistics laboratories fund ("Fund")
be used to pay the fees of a private laboratory performing chemical analyses for controlled
substances in connection with investigations of persons charged with being under the influence of
controlled substances by a city or county that receives its analyses of solid-dose controlled
substances from the Department of Justice? We conclude that it may not.

                In analyzing section 11372.5, we are mindful of several well-established principles
of statutory interpretation. "[O]ur first task in construing a statute is to ascertain the intent of the
Legislature so as to effectuate the purpose of the law." (Dyna-Med, Inc. v. Fair Employment &
Housing Com. (1987) 43 Cal.3d 1379, 1386.) "In doing so we look first to the words of the statute,
giving them their usual and ordinary meaning." (Committee of Seven Thousand v. Superior Court
(1988) 45 Cal.3d 491, 501.) "Moreover, 'the various parts of a statutory enactment must be
harmonized by considering the particular clause or section in the context of the statutory framework
as a whole.'" (People v. Craft (1986) 41 Cal.3d 554, 560.) "The legislative history of the statute as
well as the historical circumstances of its enactment may be considered in determining the intent of
the Legislature." (People v. Jeffers (1987) 43 Cal.3d 984, 993.) "[R]eports of legislative
committees and commissions are part of a statute's legislative history and may be considered when
the meaning of a statute is uncertain." (Hutnick v. United States Fidelity & Guaranty Co. (1988)
47 Cal.3d 456, 465, fn. 7.) "It is reasonable to presume that the Legislature [acted] with the intent
and meaning expressed in the Legislative Counsel's Digest." (People v. Superior Court (Douglass)
(1979) 24 Cal.3d 428, 434.) "Interpretive constructions which render some words surplusage, defy
common sense, or lead to mischief or absurdity, are to be avoided." (California Mfrs. Assn. v.
Public Utilities Com. (1979) 24 Cal.3d 836, 844.)

              The Legislative Counsel's digest explains the purposes of the 1980 legislation (Stats.
1980, ch. 1222, § 1) which enacted section 11372.5. It states in part:

               "The California Uniform Controlled Substances Act presently authorizes
       fines to be imposed as punishment upon conviction of certain offenses relating to
       controlled substances. However, nothing in present law authorizes a fine or
       surcharge for support of laboratories performing controlled substance analysis in
       connection with criminal investigations.

               "This bill would require every person who is convicted of prescribed
       controlled substance offenses to pay an additional $50 as part of any fine imposed;
       the total fine would be increased to include the increment. The bill would authorize
       $50 fines to be imposed for such purpose with respect to offenses for which fines are
       not presently authorized. The bill would require the county treasurer to maintain a
       criminalistics laboratories fund. Fifty dollars of the fines, forfeitures, and fees for
       each conviction for any controlled substance offense would be deposited in this fund
       from fines, forfeitures, and other moneys transmitted by the courts to the county
       treasurer under the California Uniform Controlled Substances Act. Moneys in each
       county's criminalistics laboratories fund would be used to defray prescribed costs and
       programs of defined criminalistics laboratories providing controlled substances
       analysis for criminal investigations in the county, except that in counties served by
       criminalistics laboratories of the Department of Justice, such money, after deduction
       of county overhead charges, would be required to be paid monthly to the Controller

                                                  3.                                             89-804

        for deposit in the State's General Fund. Moneys not utilized for the purposes
        specified by the bill during any fiscal year would be distributed in the same manner
        as prescribed by law for distribution of moneys, forfeited bail, or fines received by
        any court under the California Uniform Controlled Substances Act."

                 Section 11372.5 was thus enacted to "defray prescribed costs and programs of defined
criminalistics laboratories providing controlled substances analysis for criminal investigations in the
county," shifting the expense from the public to the convicted criminals. We have found nothing
in the legislative history suggesting that local governments could not use Fund moneys to pay for
forensic analyses performed under contract in a private laboratory. The statute expressly defines
"criminalistics laboratory" to include "a laboratory operated . . . under contract with, a city, county,
or other public agency." Whether performed in their own laboratories or in private laboratories
pursuant to contracts, the local governments would be incurring the expenses which section 11372.5
was designed to cover. Historically local governments have contracted with private laboratories to
perform analyses of controlled substances, even when they have had their own laboratories or have
obtained forensic analyses from the Department of Justice.

               Two express limitations should be noted with respect to the reimbursement for costs
incurred by local governments pursuant to contracts with private laboratories. The laboratory must
have "one regularly employed forensic scientist engaged in the analysis of solid-dose controlled
substances," and the laboratory must be "registered as an analytical laboratory with the Drug
Enforcement Administration of the United States Department of Justice for the possession of all
scheduled controlled substances." Once these qualifications are met, Fund moneys may be used to
pay for the services rendered as specified in section 11372.5.

               The second express limitation in section 11372.5 is the exception for "counties served
by criminalistics laboratories of the Department of Justice." Under that exception if the county is
served by criminalistics laboratories of the Department of Justice all monies in the Fund, after
deducting overhead charges, must be paid into the State's General Fund. We must therefore
determine which counties are "served by" criminalistics laboratories of the Department of Justice
within the meaning of section 11372.5 to determine which counties are excluded from use of the
Fund for testing by this exception.

                 When section 11372.5 was enacted in 1980 (and now) a number of law enforcement
agencies in the large urban areas of the state had their own criminalistics laboratories. The law
enforcement agencies in other areas of the state have utilized the services of the criminalistics
laboratories of the Department of Justice for most of their criminalistics laboratory requirements.
This includes the testing of all substances suspected of being controlled substances before their
ingestion by human beings which we have referred to as "solid-dose" testing to distinguish it from
the testing of body fluids. One exception to the general practice is that the criminalistics laboratories
of the Department of Justice have not tested blood or urine samples of persons suspected by local
agencies of using or being under the influence of a controlled substance in violation of section 11550
for controlled substances. All local law enforcement agencies in the state have had to rely upon their
own criminalistics laboratories or contract with private laboratories for testing such blood or urine
samples for controlled substances.

                 We believe the Legislature had these practices in mind when it enacted section
11372.5. The proponents of the 1980 legislation were the local public agencies in the urban areas
of the state with their own laboratories, not the agencies in the counties being served by Department
of Justice laboratories. When the Legislature used the words "counties served by the criminalistics
laboratories of the Department of Justice" in the exception in section 11372.5 it referred to those
counties which do not have criminalistics laboratories maintained by local law enforcement agencies

                                                   4.                                            89-804

and rely upon the criminalistics laboratories of the Department of Justice for most of their
criminalistics laboratory requirements. With respect to those counties the statute requires all money
in the Fund (except overhead charges) to be paid into the State's General Fund.2

               We conclude that money deposited in the criminalistics laboratories fund of a county
may not be used to pay the fees of a privately operated laboratory performing chemical analyses for
controlled substances in connection with investigations of persons charged with being under the
influence of controlled substances by a city or county that obtains analyses of solid-dose controlled
substances from the Department.

                                              *****




  2
     In our view the fact that the Department of Justice provides computer links to its library to all
local law enforcement laboratories in the state does not mean that the counties with such laboratories
are "served by" the criminalistics laboratories of the Department of Justice within the meaning of
section 11372.5. Nor, in our view, does the fact that the criminalistics laboratories of the
Department of Justice do not test blood or urine samples of those suspected by local agencies of
using or being under the influence of controlled substances mean that counties are not "served by"
the criminalistics laboratories of the Department of Justice within the meaning of section 11372.5.

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