BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 366 (Wright)
As Amended April 1, 2013
Hearing date: April 23, 2013
Penal and Vehicle Codes
MK:mc
TRAFFIC FINES: ABILITY TO PAY
HISTORY
Source: Western Center on Law and Poverty
Prior Legislation: None
Support: Congress of Racial Equality of California; Legal
Barriers to Employment Project; East Bay Community Law
Center; Coalition of California Welfare Rights
Organizations; Asian Law Alliance; American Civil
Liberties Union; California Public Defenders
Association; California Attorneys for Criminal Justice
Opposition:Judicial Counsel of California
KEY ISSUES
SHOULD THE LAW CLARIFY THAT A COURT SHOULD CONSIDER A PERSON'S
ABILITY TO PAY?
SHOULD THE TIME FOR NOTICE BEFORE A COURT IMPOSES AN ASSESSMENT
OR SENDS INFORMATION TO DMV TO SUSPEND A LICENSE BE CHANGED FROM
10 DAYS TO 30 DAYS?
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(CONTINUED)
SHOULD A PERSON WHO HAS AGREED TO A PAYMENT PLAN OR COMMUNITY
SERVICE NOT HAVE HIS OR HER LICENSE SUSPENDED FOR A FAILURE TO PAY A
FINE?
WHEN A PERSON FAILS TO PAY A FINE ON TIME, SHOULD IT BE CLEAR THAT A
COURT CAN IMPOSE AN ASSESSMENT OF LESS THAN THE $300 MAXIMUM?
SHOULD THERE BE A PROCESS FOR A PERSON TO CHALLENGE A CIVIL
ASSESSMENT BY SHOWING GOOD CAUSE FOR FAILING TO APPEAR?
PURPOSE
The purpose of this bill is to make a number of changes that
clarify that a person's ability to pay a fine should be taken
into consideration, that a license should not be suspended when
a person has agreed to a payment plan or community service, and
a person should have the right to prove good cause for failure
to appear when a civil assessment has been imposed for that
failure to appear.
Existing law provides that an infraction is not punishable by
imprisonment and that a person charged with an infraction is not
entitled to a jury trial or a public defender. (Penal Code §
19.6.)
This bill provides that in any case when a person appears before
a traffic referee or judge of the superior court for
adjudication of an infraction violation, the court, upon request
of the defendant, shall consider the defendant's ability to pay.
Existing law sets forth the duties of the court, probation
officers, and probationers in determining the terms and
conditions of probation including providing that the court shall
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determine if there are any facts in mitigation that would be
served by granting probation. (Penal Code § 1203.)
This bill provides that circumstances in mitigation shall
include but are not limited to:
The payment of all or part of a traffic fine.
The payment of all or part of a civil assessment
imposed.
Participation in a court-ordered community service to
satisfy a traffic fine or civil assessment.
Existing law provides that any person convicted of an infraction
may, upon a showing that payment of the total fine would pose a
hardship on the defendant, be sentenced to perform community
service in lieu of the total fine that would be otherwise
imposed. (Penal Code § 1209.5.)
This bill clarifies that the community service shall be
performed in the defendant's county of residence or any other
county in the state chosen by the defendant.
This bill provides that the community service provision shall
apply to any of the following:
Convicted of an infraction.
Convicted of a misdemeanor for failure to appear or to
pay bail.
Upon whom a civil assessment has been imposed for
failure to appear in court.
This bill provides that if the court orders the defendant to
perform community service in lieu of part or all of the total
fine or civil assessment otherwise imposed, the performance of
that community service work is in lieu of the total fine, or
that percentage of the total fine specified by the court. The
court shall not order the defendant to perform community service
in lieu of the base fine and still require the defendant to pay
any assessments, penalties or additional moneys.
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Existing law provides that in addition to any other penalty in
an infraction, misdemeanor or felony the court may impose a
civil penalty up to $300 against any defendant who fails to
appear in court for any proceeding or fails to pay any portion
of the fine ordered by the court. (Penal Code § 1214.1.)
This bill provides that the court may impose a civil assessment
between $10 and $300 for failure to appear or pay a fine.
This bill provides that the civil assessment should be based on
the defendant's ability to pay and set according to a schedule
adopted by the Judicial Council.
This bill provides that a civil assessment shall not be imposed
for an infraction violation of the Vehicle Code in which the
defendant was not the driver of the vehicle.
Existing law provides that the assessment shall not become
effective until at least 10 calendar days after the court mails
a warning to the defendant and the court shall vacate the order
for the assessment if the person appears in time. (Penal Code §
1214.1(b).)
This bill provides that the assessment shall not take effect for
at least 30 days after the notice was mailed.
This bill also provides that the court shall vacate the
assessment if the defendant appears after the time specified and
there is evidence that the notice was not received, including
evidence that the defendant is homeless or does not have a fixed
address.
This bill provides that ability to post bail or to pay the fine
or civil assessment is not a prerequisite to filing a request
that the court vacate the assessment.
This bill provides that imposition of a civil assessment shall
not preclude a defendant from scheduling a court hearing on the
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underlying charge if the defendant is otherwise entitled to the
hearing.
Existing law provides that the assessment imposed shall be
subject to the due process requirements governing defense and
collection of civil money judgments generally. (Penal Code §
1214.1)
This bill provides that in addition to the above, the court
shall provide a process for a defendant to appear before a judge
and show good cause for failure to appear and not limit the
grounds for good cause for failure to appear. The court shall
waive the civil assessment when the defendant meets the good
cause standard for vacating a civil assessment.
Existing law provides that if any person has failed to pay a
fine within the time authorized by the court to pay a fine, the
magistrate or clerk of the court may give notice to DMV for any
violation. If the fine is later fully paid then the court shall
inform DMV. (Vehicle Code §§ 40509(b) and 40509.5(b).)
This bill provides also if an agreement to pay the fine in
installments or an agreement to perform community service is
signed then the court shall inform DMV.
This bill also provides that the court shall not require the
payment of the bill, the fine or civil assessment before the
person may request the court to vacate the civil assessment.
Existing law provides that the court shall warn the defendant of
the potential DMV action if a fine is not paid 10 days before
notifying DMV. (Vehicle Code § 40509.5 (d).)
This bill requires the court wait 30 days after the notice
before notifying DMV.
Existing law provides that in any case when a person appears
before a traffic referee or judge of the superior court for
adjudication of a violation of the Vehicle Code, the court, upon
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request of the defendant shall consider the defendant's ability
to pay and sets forth the process for making that determination.
If the court determines that the defendant has the ability to
pay all or part of the costs, the court shall set the amount to
be reimbursed and order the defendant to pay that sum to the
county in the manner in which the court believes reasonable and
compatible with the defendant's financial ability, or if the
defendant is placed on probation the court shall order the
probation officer to set the amount. In making a determination
of whether a defendant has the ability to pay, the court shall
take into account the amount of any fine imposed up on the
defendant and any amount the defendant has been ordered to pay
in restitution. (Vehicle Code
§ 42003(c).)
This bill would apply the above to any infraction, not just
Vehicle Code infractions.
This bill provides the court may conclusively presume that any
defendant who demonstrates that he or she is receiving public
benefits under one of the following programs does not have the
ability to pay:
Supplemental Security Income or State Supplementary
Payment;
CalWORKS;
Supplemental Nutrition Assistance Program;
County Relief, General Relief or General Assistance;
Cash Assistance Program for Aged, Blind and Disabled
Legal Immigrants;
In-Home Supportive Services;
Medi-Cal.
This bill provides that the court shall advise the defendant of
the right to have a determination of the ability to pay.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
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prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
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In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
Legal service programs across the state have reported
their low income clients are being trapped in a maze of
fines and assessments that lead to the suspension of
driver's licenses.
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Over the past several decades the Legislature has
adopted a series of surcharges and assessments that
fund a host of state, county and local programs. The
Assembly Public Safety Committee reported in 2011 that
assessments on a $500 fine were up to $1,453 extra. A
typical $100 fine can total up to $500.
The real world impact of these fines is significant.
In one case, a homeless father on GA got several
tickets for lack of insurance, failed to appear at the
hearings because he did not get the notices and
eventually was facing fines and assessments exceeding
$9,000. The judge allowed the father to pay off the
penalties at $100 a month but at that rate he will not
get his license back for more than 7 years.
Without a driver's license, a person cannot use a car
to go to work and in many cases cannot get a job
without a valid driver's license. Because some public
assistance programs require work participation as a
condition of aid (Cal Works, Cal Fresh, and General
Assistance), adults are being sanctioned for failure to
meet work requirements.
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Fines and assessments result in adults going without
driving privileges for lengthy periods. It undermines
their ability to keep and obtain employment that would
allow them to pay off the penalties. For other
families it means getting grant funds restored that
were cut because the adult was not in compliance with
program rules.
SB 366 clarifies court authority to use its discretion
to waive or reduce traffic fine assessments for low
income Californians. It allows community service in
lieu of paying fines to be performed in the person's
county of residence, not where the violation occurred.
It prohibits payment of assessments for failure to
appear as a condition for appearing before a judge on
the underlying traffic violation. Finally, it requires
courts to release a hold on a person's driver license
if they have complied with the order of the court.
2. Ability to Pay
This bill makes a number of clarifications in the Penal Code and
Vehicle Code to make it clear that the court should take into
consideration a person's ability to pay when determining a fine
or any additional civil assessments.
3. Release of Licenses
If a person fails to pay a Vehicle Code fine in full the court
notifies DMV and a person's license is suspended. The author
gives a number of examples of cases where this has happened
because of a person's inability to pay:
John, 30, is the only caretaker for his disabled,
elderly mother, and needs to drive her to her medical
appointments. However, his license is suspended
because of $4000 of fees from 3 tickets he got but
could not pay. He went to the court and got on a
payment plan, but the collections agency will not
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release the suspense on his license until the full
amount is paid-which at what the client can afford
($20/month), would take him 16 years. John wonders why
people who have DUI charges can get restricted licenses
for driving to medical appointments, but he cannot take
his mother to medical appointments while he is paying
off his traffic tickets.
Serena received a seat belt ticket in Hayward when she
was 19 years old. Shortly thereafter, she went to jail
for a minor crime and was unable to resolve the ticket.
Since Serena was released at age 20, she has been
working two jobs, taking night classes at Berkeley City
College, and paying for her own place. The fines from
the ticket are preventing her from getting her license.
Without a car as transportation, she is in danger of
losing her job and being unable to continue her
schooling.
Mr. Dane is living on a fixed income from SSI, and had
his license suspended after being unable to pay the
high fines on two traffic tickets. He is now unable to
visit his young children, who live over an hour away in
a place not accessible to public transportation.
Mr. Wieckowski, a delivery person for a local florist's
shop, had his license suspended because of two unpaid
tickets that he could not pay. He tried to go to court
to resolve the tickets, but the court would not allow
him to appear in front of a judge because of a civil
assessment fine. He cannot afford to pay a lump sum to
the collections agency, and if he is on a payment plan
he can afford, he will not have a license for months.
Without his license, Mr. Smith will lose his delivery
job, be unable to pay any of the fines, and be at risk
of homelessness.
This bill would provide that if a person has signed a payment
plan agreement or community service agreement in order to
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resolve a past due infraction fine, their license should no
longer be suspended. It also provides a longer notice time, 30
days instead of 10 days, before the court sends notice to DMV to
suspend the license. It also further clarifies that a person
who is on certain public assistance programs should not have to
prove any further that they do not have the ability to pay.
4. Civil Assessment
When a person fails to pay a fine in an infraction, misdemeanor
or felony, the court can impose an additional civil assessment
of up to $300. Existing law does not clearly provide a way for
a person to challenge the imposition of the assessment. The
author gives a number of examples of how this assessment can
cause additional problems for a person who is already struggling
to pay a fine or who never received notice of the original
ticket.
Mr. Jackson got a ticket while working as a truck
driver because his truck was overweight, which was the
fault of the company he worked for. His company said
they would take care of it, and didn't. Mr. Jackson
never received notice that he was being held personally
responsible for the fees, which the court knew since
the notice was returned to the clerk. A year later,
when he tried to renew his commercial driver's license,
he found out it was suspended, and tried to get a court
hearing. The court would not let him schedule a
hearing without paying a $300 civil assessment fee,
which he could not afford. As a result, Mr. Jackson
lost his job and is now homeless.
Ms. Black no longer drives. So she was surprised when
she got notice of several tickets that had been issued
to her old license number-none of which she had
received. Someone had used her name and racked up
fines and fees of over $3100. She went to traffic
court to try to explain the misunderstanding, but was
told she had to pay a $300 in civil assessment. She
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barely survives on her monthly income, so she could not
pay. She continues to receive notices and her health
is getting worse from the stress of being unable to
resolve these citations that are not hers.
Aaron's cousin had been using his Driver's License
number all over the state for many years, racking up
tickets wherever he went. Aaron did his best to clear
each of them up, and was able to retrace his cousin's
steps and deal with many of them. Eventually, his
cousin started giving a different address, and Aaron
didn't receive notice of any of 4 new tickets he
received until it came time to renew his license in
order to get a permanent job as a driver for the County
of Alameda. He went to the court in Contra Costa,
where the tickets were issued, but couldn't get on
calendar to dispute the tickets because of the civil
assessment fee, which he cannot pay. He has been
working for PG&E as a temporary employee and is on the
verge of getting hired permanently. But he will lose
his job if he doesn't have a license.
Roger is currently on public assistance and
participating in a workforce development program. He
is enrolled in a course that will enable him to be
certified as a commercial driver. He will not be able
to work in this field, however, because his license is
suspended due to a citation received for having food on
public transportation. At the time of the citation,
Roger was homeless and did not receive notices about
the ticket. The court eventually issued a bench
warrant and also imposed several civil assessments.
The client fears being arrested for the warrant, but
the court has refused to allow him to appear to address
his obligations. His only option is to pay the entire
amount owed, which he cannot afford while unemployed.
This citation is an insurmountable obstacle to Roger's
goals of employment and self-sufficiency.
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This bill makes it clear that the court can impose a minimum
assessment of $10 up to the maximum of $300. It also extends
the notice requirement from 10 to 30 days. The bill sets up a
process for a person to appear before a judge to challenge the
assessment and show good cause for failing to appear. If good
cause is shown, the court shall waive any assessment that was
imposed.
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