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.)  




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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  :





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           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.