BILL ANALYSIS Ó 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.) SB 125 (EMMERSON) Page 2 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 SB 125 (EMMERSON) Page 4 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 SB 125 (EMMERSON) Page 5 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 SB 125 (EMMERSON) Page 6 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 SB 125 (EMMERSON) Page 7 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 SB 125 (EMMERSON) Page 8 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 SB 125 (EMMERSON) Page 9 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.