BILL ANALYSIS �
SENATE TRANSPORTATION & HOUSING COMMITTEE BILL NO: SB 125
SENATOR MARK DESAULNIER, CHAIRMAN AUTHOR: Emmerson
VERSION: 4/25/11
Analysis by: Jenifer Gress FISCAL: yes
Hearing date: April 26, 2011
SUBJECT:
Vehicle impoundment: toll evasion
DESCRIPTION:
This bill defines a "chronic evader of toll payments" and
authorizes a law enforcement officer to impound the vehicle
registered to such a person until all outstanding tolls and all
required penalties are paid to the issuing agency.
ANALYSIS:
Toll Evasion
Existing law makes every vehicle using a toll bridge or toll
highway liable for any tolls or other charges and prohibits a
person from evading or attempting to evade the payment of those
tolls or charges.
There are two methods for enforcing toll evasion. First, a law
enforcement officer directly observes a driver evading toll
payment and issues a citation to the driver. Violations
enforced in this manner are subject to criminal penalties, and
the failure to pay the toll and associated penalty will result
in the court issuing a failure to pay or a failure to appear.
If delinquent in resolving the citation, the court may order the
Department of Motor Vehicles (DMV) to suspend the driver's
license and, possibly, issue a warrant for the driver's arrest.
Second, a tolling agency that employs cameras or other automated
devices captures the license plate number of alleged toll
violators, uses the license plate number to determine the
identity of the registered owner of the vehicle, and then issues
a notice of toll evasion violation to that person. These
violations are subject to civil penalties, and failure to pay
may result in the tolling agency requesting DMV to place a hold
on the vehicle's registration. (This bill only applies to civil
penalties issued by a tolling agency.)
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If a vehicle is found, by automated devices, by visual
observation, or otherwise, to have evaded a toll, a toll
operator shall issue to the registered owner of the vehicle a
notice of toll evasion violation within 21 days of the
violation. The notice must describe the violation, the
approximate time and location of the violation, the vehicle
license plate number, a clear and concise explanation of the
procedures to contest the violation, and if practicable, the
registration expiration date and the make of the vehicle. If
the registered owner fails to respond to the notice of toll
evasion, the tolling agency will then issue a notice of
delinquent toll evasion violation.
Toll evasion penalties include any late payment penalty,
administrative fee, fine, assessment, and costs of collection.
Existing law limits toll evasion violation penalties to $100 for
the first offense, $250 for a second within one year, and $500
for each additional violation within one year.
Impoundment
Existing law allows a vehicle to be towed and impounded under
numerous circumstances, including for such reasons as the
vehicle is impeding the use of a road or private driveway or is
posing some danger to itself or to public safety, or the driver
is unable to operate the vehicle or poses some danger to public
safety. Some specific circumstances that relate to this bill
include the following:
When a vehicle is found or operated upon a highway, public
land, or an offstreet parking facility and either the
registration has been expired at least six months or the
registration card, identification card, temporary receipt,
license plate, special plate, or registration sticker was not
issued for that vehicle, was falsified or altered, or was not
otherwise lawfully used on that vehicle.
When a vehicle, other than a rented vehicle, is found upon a
highway or public land, and it is known that the vehicle has
been issued five or more notices of parking violations.
When an officer arrests a person driving or in control of a
vehicle for an alleged offense and the officer takes the
person into custody.
This bill :
SB 125 (EMMERSON) Page 3
Defines a "chronic evader of toll payments" as a person who
has been issued one or more notices of delinquent toll evasion
and whose vehicle is not currently registered or who has been
issued 76 or more notices of delinquent toll evasion
violations .
Authorizes a law enforcement officer to impound, or cause to
be impounded, the vehicle registered to a chronic evader of
toll payments until all outstanding tolls and all required
penalties are paid to the issuing agency.
Provides that the removal and storage of a vehicle impounded
due to delinquent toll evasion violations is subject to the
same processes for removal and storage of vehicles impounded
for other reasons allowed under existing law.
Requires that a notice of a toll evasion violation inform the
recipient that repeated unpaid toll evasion violations will
subject the vehicle to impoundment.
COMMENTS:
1.Purpose . By allowing law enforcement to impound vehicles
involved in repeated toll evasion violations, this bill aims
to ensure more timely payment of tolls and penalties and to
reduce the number of toll evasion violations. The author
explains that, under current law, when a person fails to pay a
toll, a tolling agency issues a notice of toll evasion to the
registered owner of the vehicle. Violations are observed
using on-road cameras that capture digital images of rear
license plates. The notice of toll evasion carries a penalty
amount in addition to the required toll amount. The amounts
for tolls and penalties vary by tolling agency.
Failure to pay the notice of toll evasion results in issuance
of a notice of delinquent toll evasion and an increased
penalty. If the toll and penalty is still not paid, the
tolling agency may request DMV to place a "hold" on the
vehicle's registration, preventing the registered owner from
renewing the vehicle's registration until outstanding tolls
and penalties are paid in full. Tolling agencies may also use
collection agencies to collect delinquent tolls and penalties
or pursue a civil judgment through the court.
The author further explains that while these remedies may be
effective, it can take over a year for the tolling agency to
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collect delinquent tolls and penalties. Under this bill,
chronic toll violators who are stopped by law enforcement
could have their vehicle impounded until delinquent tolls and
penalties are paid in full, resulting in more timely payment
of tolls and penalties and discouraging toll evasion.
2. Other remedies to collect on delinquent toll evasion
violations . Existing law authorizes tolling agencies to
pursue several avenues to collect delinquent tolls and
penalties, including using a collection agency, requesting
DMV to place a "hold" on the vehicle's registration, and
obtaining a civil judgment through a court. According to
the sponsor, most tolling agencies use a combination of
these remedies. For example, if a toll violator fails to
respond to a notice of delinquency, tolling agencies will
usually employ the services of a collection agency. If the
collection agency is not able to collect and the tolling
agency determines that the vehicle's registration is set to
expire soon, the tolling agency will then request DMV to
place a hold on the vehicle's registration for the
violation, preventing the registered owner from renewing
the registration until the violation is resolved. At this
stage, the tolling agency is attempting to collect the
delinquent tolls and penalties through both a collection
agency and the DMV simultaneously.
One limitation to placing a hold on a vehicle's registration
for each delinquent violation is that the maximum number of
holds that DMV will place, regardless of the type of
violation, is 75. The sponsor argues that this cap limits the
extent to which it may collect the full amount that the toll
violator owes a tolling agency. One tolling agency reports
that it has issued 2,922 notices of toll violations against 29
violators and 1 violator has accumulated over 700 violations.
In addition to being unable to collect the total amount in
tolls and penalties from chronic toll evaders, some violators
are late in renewing their vehicle registration and some fail
to renew altogether. The same tolling agency reports that 29
percent of violators who have holds placed on their
registration, have allowed their registration to lapse, and
are operating without valid registration.
A third avenue that tolling agencies may pursue to collect
delinquent tolls and penalties is a civil judgment, an option
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the Transportation Corridor Agencies and the Orange County
Transportation Authority have exercised in Orange County.
Existing law allows a tolling agency to seek a civil judgment
if more than $400 in unpaid tolls, penalties, and fees have
accrued by a person. In this situation, a court may order
liens to be placed on the toll violator's property or assets,
his or her wages may be garnished, or other steps to satisfy
the judgment, as determined by the court. The sponsor has not
yet pursued a civil judgment but indicates that it likely will
in the future.
One question the committee may wish to consider is the extent
to which these existing remedies are sufficient or appropriate
for the collection of unpaid tolls and penalties or whether
they might be enhanced in some manner.
3.Same treatment for parking violations ? The sponsor argues
that it is simply seeking the same remedy for toll evasion
that exists for parking violations. The authority to impound
vehicles due to unpaid parking citations was added to statute
in 1967, before DMV was authorized to place holds on a
vehicle's registration for unpaid parking citations, which was
added in 1975. It does not appear that law enforcement
impounds vehicles for unpaid parking citations very
frequently, if at all. Local law enforcement tends to
immobilize vehicles with unpaid parking citations by "booting"
them, and CHP does not impound for parking, primarily because
parking violations do not constitute a threat to public
safety. No case law exists regarding impoundment for unpaid
parking violations, which may suggest that the authority is
not used. Taken together, while impoundment due to delinquent
toll evasion citations may appear similar on its face to what
currently exists in statute for unpaid parking citations, it
is not clear that they are similar in practice given other
remedies, such as booting vehicles and denying registration to
one's vehicle, that have since been authorized in law.
4.Nexus to "public health and safety ?" When determining whether
or not it is appropriate to impound a vehicle, even under
circumstances where impoundment is allowed by law, a standard
that is often employed concerns the extent to which leaving
the vehicle constitutes a health or safety risk. For example,
in a case where an officer arrested a driver and then decided
to impound the driver's vehicle specifically because the
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driver was arrested, the court found that, even though statute
allows an officer to remove a vehicle when he arrests the
driver, the officer nonetheless acted improperly because the
vehicle was lawfully parked in front of the driver's home.
Its removal therefore, did not further the police officer's
"community caretaking function."
In another case examining whether an officer's order to remove
a vehicle he considered illegally parked was proper, the court
considered, in part, whether removal in that instance served
as a punishment for an alleged offense or in the interest of
public safety, concluding:
"Imposition of these burdens and costs cannot be justified
as a means of deterring illegal parking. The punishment for
illegal parking is a fine, which is normally imposed by
affixing a ticket to the windshield. The costs and burdens
on the car owner associated with a tow can only be
justified by conditions that make a tow necessary and
appropriate, such as that the car is parked in the path of
traffic, blocking a driveway, obstructing a fire lane or
appears abandoned. A tow may also be appropriate where
there are no current registration stickers and police can't
be sure that the owner won't move or hide the vehicle,
rather than pay the fine for illegal parking."
One question the committee may wish to consider is whether
toll evasion meets a "public health and safety" standard that
warrants the expenditure of law enforcement resources when
other remedies are available to toll operators.
5.Workability ? Several issues exist that cast doubt on whether
the impoundment of vehicles for toll evasion is feasible or
will succeed in achieving the author's and sponsor's
objectives.
Officer unlikely to check a vehicle's registration. If a law
enforcement officer stops a driver for an alleged traffic
violation, such as speeding, the officer is stopping the
driver and checks that driver's license. According to CHP, an
officer does not typically check the vehicle's registration.
Only in instances where the officer suspects the vehicle or
the license plate is stolen or the registration has expired
does the officer check the vehicle's registration. There are
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several reasons for this. First, the officer is focused on
the driver and the violation that the driver allegedly
committed, because any citation issued would be to the driver,
regardless of whether or not that person is the registered
owner of the vehicle. Second, officers seek to minimize the
amount of time they spend on the side of the road both for
their own safety and so that they may return to their patrol
and respond to other incidents. An event that can result in
the injury or death of an officer is another driver hitting
the officer's car while it is parked on the side of the road
during a traffic stop.
If, however, an officer does check a vehicle's registration,
he or she would be able to see whether there is a hold on the
vehicle's registration, as well as a small number of
violations, but it would not be able to ascertain whether the
number of toll evasion violations associated with that vehicle
totaled 76 or more. To determine whether the vehicle is
associated with 76 or more delinquent toll violations, the
officer would have to contact the dispatch office and request
the dispatcher to view the vehicle's complete record. The
dispatcher would then have to manually count the number of
delinquent toll violations reported on the vehicle's record to
determine whether or not there were 76 or more, a
time-intensive process that prevents the dispatcher from
responding to other calls that may bear a more direct
relationship to public safety. Finally, there is some lag
time between the time a violator pays a toll violation and the
time the payment is reflected on the vehicle's registration
with DMV. Because of this, the bill puts law enforcement in
the position of possibly impounding a vehicle that has fewer
than 76 delinquent violations.
Driver vs. Vehicle: who committed the offense? Because the
camera captures only the images of the vehicle and only those
violations reflected on a vehicle's registration may be
subject to impoundment, an officer that stops a driver for an
alleged traffic violation will not be able to determine
whether that driver is the person who committed at least 76
instances of toll evasion. In this situation, an officer will
either opt not to impound the vehicle or impound the vehicle
and risk leaving an innocent driver without transportation.
For all of these reasons, it is very unlikely that an officer
would check the vehicle's registration for the purpose of
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determining toll violations or cause a vehicle to be
impounded.
6.Exempting trailer or semi-trailer: a double standard . This
bill exempts the registered owner of a "trailer or
semitrailer" from the definition of "chronic evader of toll
payments" at the request of one company - Maersk - an
intermodal freight company who leases truck chassis to drivers
who evade tolls. Maersk is the registered owner of the
chassis, to which a license plate is affixed, but it does not
want to be responsible for toll evasion committed by drivers
to which it leases its chassis. That the registered owner may
be a different entity than the driver of a vehicle involved in
the movement of freight is the same dilemma faced for the
registered owners of passenger vehicles who may not have been
driving the vehicle when it was allegedly involved in toll
evasion. If it is acceptable to impound a passenger vehicle
when its driver is not known to be the one who committed toll
evasion, why is it not acceptable to do the same with a
vehicle involved in the movement of freight? Maersk has
knowledge of who it leased its chassis to and has the ability
to collect from its drivers. The committee may wish to
consider an amendment to delete this exemption from the bill.
7.Amendments . Given that the cap that DMV places on the number
of holds that may be placed on a vehicle's registration limits
the extent to which a tolling agency is able to collect for
delinquent toll evasion violations, given the challenges faced
by law enforcement in determining whether a vehicle stopped
met the numerical threshold of 76 toll evasion violations when
considering impoundment as well as whether a driver stopped
for a different violation was the person who committed the 76
toll evasion violations, and given the questionable nexus to
public safety, the committee may wish to consider the
following amendments:
Delete the authority to impound if the vehicle was
involved in 76 or more toll evasion violations;
Require instead DMV to remove its cap on the number of
holds that may be placed on a vehicle's registration to
strengthen existing remedies before authorizing more severe
mechanism of impoundment;
Allow for immediate impoundment upon the expiration of
registration, rather than waiting six months as required by
current law, but require that the vehicle be involved in at
least 10 toll evasion violations to ensure that impoundment
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is applied to chronic evaders.
8.Re-refer to Rules Committee . This bill was amended to
authorize impoundment after it was referred to this committee.
Because the Public Safety Committee typically deals with
bills relating to impoundment, the motion in this committee
should be to pass the bill and re-refer it to the Rules
Committee for consideration of reference to the Public Safety
Committee.
POSITIONS: (Communicated to the Committee before noon on
Wednesday,
April 20, 2011)
SUPPORT: South Bay Expressway (sponsor)
California Association of Highway Patrolmen
California New Car Dealers Association
Golden Gate Bridge Highway and Transportation
District
Metropolitan Transportation Commission
OPPOSED: None received.