BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2147


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          Date of Hearing:  April 5, 2016
          Counsel:               Gabriel Caswell


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY


                       Reginald Byron Jones-Sawyer, Sr., Chair





          AB  
                    2147 (Eggman) - As Introduced  February 17, 2016






          SUMMARY:  Specifies that vehicle impoundment programs which are  
          related to solicitation of prostitution offenses, currently  
          authorized under existing state law, do not need to be  
          authorized by a local ordinance.  Specifically, this bill:  


          1)Provides that a vehicle used in the commission of a crime  
            related to prostitution by a person buying or attempting to  
            buy sexual services is a nuisance subject to an impoundment  
            period of up to 30 days.  
             a)   Specifies that a motor vehicle is a public nuisance  
               subject to seizure by a local law enforcement agency and an  
               impoundment period of up to 30 days when the motor vehicle  
               is used in the commission or attempted commission of a  
               violation solicition by a person buying or attempting to  
               buy sexual services if the owner or operator of the vehicle  
               has had a prior conviction for the same offense within the  
               past three years; and 
             b)   The vehicle may only be impounded pursuant to a valid  
               arrest by a local law enforcement agency of the driver for  
               a violation of solicitation for buying or attempting to buy  








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               sexual services.


          2)Specifies that the impoundment procedures shall apply to  
            offenders buying or purchasing sexual services.  
          3)Imposes the same procedures for impoundment, storage, and  
            release of the vehicle as are provided under the  
            ordinance-authorizing provisions under existing law, as they  
            apply to solicitation of prostitution offenses, without the  
            requirement that an ordinance be passed in order to authorize  
            local authorities to make use of the impounding authority. The  
            following procedures shall apply:


             a)   Requires that within two working days after impoundment,  
               the impounding agency shall send a notice by certified  
               mail, return receipt requested, to the legal owner of the  
               vehicle, at the address obtained from the department,  
               informing the owner that the vehicle has been impounded; 

             b)   States the notice shall also include notice of the  
               opportunity for a post-storage hearing to determine the  
               validity of the storage or to determine mitigating  
               circumstances establishing that the vehicle should be  
               released.  The impounding agency shall be prohibited from  
               charging for more than five-days' storage if it fails to  
               notify the legal owner within two working days after the  
               impoundment when the legal owner redeems the impounded  
               vehicle;

             c)   Provides that the impounding agency shall maintain a  
               published telephone number that provides information 24  
               hours per day regarding the impoundment of vehicles and the  
               rights of a legal owner and a registered owner to request a  
               hearing; 

             d)   Mandates the notice include all of the following  
               information:

               i)     The name, address, and telephone number of the  
                 agency providing the notice;









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               ii)    The location of the place of storage and description  
                 of the vehicle, that shall include, if available, the  
                 model or make, the manufacturer, the license plate  
                 number, and the mileage;

               iii)   The authority and purpose for the removal of the  
                 vehicle; and,

               iv)    A statement that in order to receive a post-storage  
                 hearing, the owners, or their agents, shall request the  
                 hearing in person, writing, or by telephone within 10  
                 days of the date appearing on the notice.

             e)   States the post-storage hearing shall be conducted  
               within 48 hours of the request, excluding weekends and  
               holidays.  The public agency may authorize one of its own  
               officers or employees to conduct the hearing if that  
               hearing officer is not the same person who directed the  
               seizure of the vehicle.  Failure of the legal and the  
               registered owners, or their agents, to request or to attend  
               a scheduled hearing shall satisfy the post-storage hearing  
               requirement;

             f)   Requires the agency employing the person who directed  
               the storage to be responsible for the costs incurred for  
               towing and storage if it is determined in the post-storage  
               hearing that reasonable grounds for the storage are not  
               established.  Any period during which a vehicle is  
               subjected to storage under an ordinance adopted pursuant to  
               this bill shall be included as part of the period of  
               impoundment;

             g)   States the impounding agency shall release the vehicle  
               to the registered owner or his or her agent prior to the  
               end of the impoundment period under any of the following  
               circumstances:

               i)     The driver of the impounded vehicle was arrested  
                 without probable cause;

               ii)    The vehicle is a stolen vehicle;









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               iii)   The vehicle is subject to bailment and was driven by  
                 an unlicensed employee of a business establishment,  
                 including a parking service or repair garage;

               iv)    The driver of the vehicle is not the sole registered  
                 owner of the vehicle and the vehicle is being released to  
                 another registered owner of the vehicle who agrees not to  
                 allow the driver to use the vehicle until after the end  
                 of the impoundment period;

               v)     The registered owner of the vehicle was neither the  
                 driver nor a passenger of the vehicle at the time of the  
                 alleged violation, or was unaware that the driver was  
                 using the vehicle to engage in solicitation of  
                 prostitution,; and 

               vi)    A spouse, registered domestic partner, or other  
                 affected third party objects to the impoundment of the  
                 vehicle on the grounds that it would create a hardship if  
                 the subject vehicle is the sole vehicle in a household.  
                 The hearing officer shall release the vehicle where the  
                 hardship to a spouse, registered domestic partner, or  
                 other affected third party created by the impoundment of  
                 the subject vehicle, or the length of the impoundment,  
                 outweigh the seriousness and the severity of the act in  
                 which the vehicle was used.

             h)   Provides that notwithstanding any provision of law, if a  
               motor vehicle is released prior to the conclusion of the  
               impoundment period because the driver was arrested without  
               probable cause, neither the arrested person nor the  
               registered owner of the motor vehicle is responsible for  
               towing and storage charges nor shall the motor vehicle be  
               sold to satisfy those charges;

             i)   Requires that the registered owner or his or her agent  
               be responsible for all towing and storage charges related  
               to the impoundment except as otherwise provided;

             j)   States no lien sale processing fees shall be charged to  
               the legal owner who redeems the vehicle prior to the 15th  
               day of impoundment.  Neither the impounding authority nor  








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               any vehicle having possession of the vehicle shall collect  
               from the legal owner fees associated with towing a storage,  
               as specified, unless the legal owner voluntarily requests a  
               post-storage hearing; 

             aa)  Provides a person operating or in charge of a storage  
               facility where vehicles are stored, as specified, shall  
               accept a valid bank credit card or cash for payment of  
               towing, storage and related fees by a legal or registered  
               owner or the owner's agent claiming the vehicle.  A credit  
               card or debit card shall be in the name of the person  
               presenting the card.  The term "credit card" does not  
               include one issued by a retail seller and is defined in the  
               Civil Code; 

             bb)  Requires that if a person operating or in charge of a  
               storage facility, as specified, does not allow for the use  
               of a credit card or cash, he or she shall be civilly liable  
               to the owner of the vehicle or the person who tendered the  
               fees for four times the amount of the towing, storage, and  
               related fees not to exceed $500; 

             cc)  Mandates a person operating or in charge of the storage  
               facility, as specified, must have sufficient funds on the  
               premises during normal business hours to accommodate, and  
               make change for a reasonable monetary transaction;

             dd)  States credit charges for towing and storage services  
               shall comply with relevant sections of the Civil Code.  Law  
               enforcement agencies may include the costs of providing for  
               payment by credit when making agreements with towing  
               companies on rates. ;

             ee)  States a vehicle removed and seized under an ordinance  
               adopted pursuant to this bill shall be released to the  
               legal owner of the vehicle or the legal owner's agent prior  
               to the end of the impoundment period if all of the  
               following conditions are met:

               i)     The legal owner is a motor vehicle dealer, bank,  
                 credit union, acceptance corporation, or other licensed  
                 financial institution legally operating in this state, or  








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                 is another person who is not the registered owner and  
                 holds a security interest in the vehicle;

               ii)    The legal owner or the legal owner's agent pays all  
                 towing and storage fees related to the seizure and  
                 impoundment of the vehicle;

               iii)   The legal owner, or his or her agent, presents to  
                 the law enforcement agency, impounding agency, person in  
                 possession of the vehicle or any person acting on behalf  
                 of those agencies, a copy of the assignment, as  
                 specified, a release from the one responsible  
                 governmental agency, a government-issued photographic  
                 identification card and any one of the following as  
                 determined by the legal owner or his or her agent:  a  
                 certificate of repossession for the vehicle; a security  
                 agreement for the vehicle, and; title showing proof of  
                 ownership, as specified; 

               iv)    The law enforcement agency, impounding agency, or  
                 any person acting on behalf of those agencies may require  
                 the agent of the legal owner to produce a photocopy or  
                 fax of its repossession agency license or registration  
                 issued pursuant to the Business and Professions Code.   
                 Any document may be originals, photocopies or faxes or  
                 may be transmitted electronically and need not be  
                 notarized;  

               v)     Administrative costs, as specified, shall not be  
                 charged to the legal owner, as specified, unless he or  
                 she requests a post-storage hearing.  No agency may  
                 require a post-storage hearing as a requirement for  
                 release of a vehicle.  Copies of all documents must be  
                 provided to the legal owner except for the vehicle  
                 evidentiary log book.  The legal owner shall indemnify  
                 and hold harmless a storage facility from any claims  
                 arising out of the release of the vehicle to the legal  
                 owner or his or her agent and from any damage to the  
                 vehicle after its release, including the reasonable costs  
                 associated with defending any such claims; and  

               vi)    A failure by a storage facility to comply with any  








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                 applicable conditions set forth in this bill shall not  
                 affect the right of the legal owner or his or her agent  
                 to retrieve the vehicle if all the conditions are met, as  
                 specified. 

             ff)  States a legal owner, or his or her agent, who meets the  
               requirements for release of a vehicle, as specified, shall  
               not be required to request a post-storage hearing as a  
               requirement for release of the vehicle to the legal owner  
               or the legal owner's agent;

             gg)  Provides a legal owner, or his or her agent, who meets  
               the requirements for release of a vehicle, as specified,  
               shall not release the vehicle to the registered owner of  
               the vehicle or an agent of the registered owner unless the  
               registered owner is a rental car agency, until after the  
               termination of the impoundment period;

             hh)  States prior to relinquishing the vehicle, the legal  
               owner may require the registered owner to pay all towing  
               and storage charges related to the seizure and impoundment;

             ii)  Provides a vehicle removed and seized pursuant to an  
               ordinance adopted pursuant to this bill shall be released  
               to a rental car agency prior to the end of the impoundment  
               period if the agency is either the legal owner or  
               registered owner of the vehicle and the agency pays all  
               towing and storage fees related to the seizure and  
               impoundment of the vehicle; and

             jj)  States the owner of a rental vehicle that was seized  
               under an ordinance adopted pursuant to this bill may  
               continue to rent the vehicle upon recovery of the vehicle.   
               However, the rental car agency shall not rent another  
               vehicle to the driver of the vehicle that was seized until  
               the impoundment period has expired.  The rental car agency  
               may require the person to whom the vehicle was rented to  
               pay all towing and storage charges related to the seizure  
               and impoundment.











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          EXISTING LAW:  


          1)Permits local jurisdictions to adopt local ordinances  
            permitting impoundment of vehicles for violations of  
            prostitution, pimping, and pandering offenses in the same  
            manner with the same procedural protections as provided in  
            this bill.  (Veh. Code § 22659.5.)  

          2)States notwithstanding any other provision of law and except  
            as provided in this provision, a motor vehicle is subject to  
            forfeiture as a nuisance if it is driven on a California  
            highway by a driver with a suspended or revoked license, or by  
            an unlicensed driver, who is a registered owner of the vehicle  
            at the time of impoundment and has a previous misdemeanor  
            conviction for driving on a suspended or revoked license.   
            (Veh. Code § 14607.6, subd. (a).)

          3)Prohibits a peace officer from impounding a vehicle, as  
            specified, if the license of the driver expired within the  
            preceding 30 days and the driver would otherwise have been  
            properly licensed.  (Veh. Code § 14607.6, subd. (c)(2).)

          4)Provides that a peace officer may exercise discretion in a  
            situation where the driver without a valid license is an  
            employee driving a vehicle registered to the employer in the  
            course of employment.  A peace officer may also exercise  
            discretion in a situation where the driver without a valid  
            license is the employee of a bona fide business establishment  
            or is a person otherwise controlled by such an establishment  
            and it reasonably appears that an owner of the vehicle, or an  
            agent of the owner, relinquished possession of the vehicle to  
            the business establishment solely for servicing or parking of  
            the vehicle or other reasonably similar situations, and where  
            the vehicle was not to be driven except as directly necessary  
            to accomplish that business purpose.  In this event, if the  
            vehicle can be returned to or be retrieved by the business  
            establishment or registered owner, the peace officer may  
            release and not impound the vehicle.  (Veh. Code § 14607.6,  
            subd. (c)(3).)

          5)Provides a registered or legal owner of record at the time of  








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            impoundment may request a hearing to determine the validity of  
            the impoundment, as specified.  (Veh. Code § 14607.6, subd.  
            (c)(4).)

          6)States if the driver of a vehicle impounded, as specified, was  
            not a registered owner of the vehicle at the time of  
            impoundment, or if the driver of the vehicle was a registered  
            owner of the vehicle at the time of impoundment but the driver  
            does not have a previous conviction for driving on a suspended  
            or revoked license, the vehicle shall be released pursuant to  
            the Vehicle Code and is not subject to forfeiture.  (Veh. Code  
            § 14607.6, subd. (c)(5).)

          FISCAL EFFECT:  Unknown



          COMMENTS: 


          1)Author's Statement:  According to the author, "Human  
            trafficking is modern day slavery and, currently in the United  
            States, there are more than 100,000 American minors being  
            exploited in the domestic minor sex trafficking industry.  
            Unfortunately, sex trafficking among minors is only growing in  
            California and continues to exploit the lives of children,  
            leaving no city or county immune to the horrors of this  
            industry. 


            "Although steps have been taken to address sex trafficking  
            within the past few years, the exploiters who sell these  
            minors and the sex buyers are still fully operating in  
            California. The sex buyers in particular perpetuate a violent,  
            exploitative industry often without serious fines or  
            sentencing. These sex buyers are committing a crime when they  
            choose to participate in human trafficking and it must be  
            addressed with penalties and awareness to fully and  
            successfully combat human trafficking from all sides. 


            "AB 2147 will give cities and counties the option to impound  








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            vehicles of sex buyers upon arrest regardless of whether or  
            not the city or county has adopted a local ordinance allowing  
            it. However, this bill includes provisions to allow a spouse,  
            registered domestic partner, or other affected third party  
            subjects to retrieve the vehicle on that grounds that it would  
            create hardship."

          2)Vehicle Code Section 22659.5 Currently Authorizes the Same  
            Procedures with Local Approval:  Existing law authorizes local  
            jurisdictions to adopt ordinances declaring vehicles used in  
            the commission of prostitution to be impounded as a public  
            nuisance.  Vehicle Code Section 22659.5 was enacted in 1993  
            and allowed a local government to impound a vehicle after a  
            conviction for prostitution, as specified, for up to 48 hours.  
             AB 1332 (Gotch), Chapter 485, Statutes of 1993, declared  
            legislative intent as follows:  



          "The Legislature hereby finds and declares that under the Red  
            Light Abatement Law every building or place used for, among  
            other unlawful purposes, prostitution is a nuisance which  
            shall be enjoined, abated, and prevented, and for which  
            damages may be recovered.   It is recognized that in many  
            instances vehicles are used in the commission of acts of  
            prostitution and that if these vehicles were subject to the  
            same procedures currently applicable to buildings and places,  
            the commission of prostitution in vehicles would be vastly  
            curtailed.   The Legislature, therefore, intends to enact a  
            five-year pilot program in order to ascertain whether  
            declaring motor vehicles a public nuisance when used in the  
            commission of acts of prostitution would have a substantial  
            effect upon the reduction of prostitution in neighborhoods,  
            thereby serving the local business owners and citizens of our  
            urban communities." 
            In 2009, the pilot program was extended to be a statewide  
            program which permitted the same provisions and procedures in  
            this bill to be adopted by local ordinance through passage of  
            AB 14 (Fuentes), Chapter 210, Statutes of 2009.


            This bill would carve out the solicitation of prostitution  








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            offenses from pimping and pandering offenses.  The programs  
            for solicitation would be authorized under state law, while  
            programs for pimping and pandering would continue to need  
            local authorization under Veh. Code § 22659.5.  Additionally,  
            the bill limits the solicitation offenses to buyers rather  
            than persons selling sexual services.  


          3)O'Connell vs. City of Stockton:  In July of 2007, the  
            California Supreme Court ruled that Vehicle Code Section  
            22659.5 pre-empted local ordinances on the subject of vehicle  
            impoundment and forfeiture for specified crimes.  (O'Connell  
            vs. City of Stockton (2007) 41 Cal.4th 1061, 1068.)  The  
            Stockton ordinance at issue, the "Seizure and Forfeiture of  
            Nuisance Vehicles", authorized impoundment and/or forfeiture  
            "of any vehicle used to solicit an act of prostitution, or to  
            acquire or attempt to acquire any controlled substance if  
            found by a preponderance of evidence."  (O'Connell at 1069.)   
            Local ordinances that "duplicate, contradict or enter into an  
            area totally occupied" by general state law are  
            unconstitutional and preempted by the general state law.   
            (Sherwin Williams Co. vs. City of Los Angeles (1993) 4 Cal.4th  
            893, 897.)



          First, the Court found the Uniform Controlled Substances Act  
            (UCSA) impliedly occupied the entire field of drug sentencing  
            and penalties including forfeiture of a vehicle.  The UCSA  
            requires forfeiture of a vehicle only upon proof beyond a  
            reasonable doubt of the vehicle's use to facilitate certain  
            serious drug crimes.  (H. and Saf. Code § 11469; O'Connell at  
                                                                               1081.)  Second, the Court held that Vehicle Code Section  
            22659.5(a) expressly pre-empted the provision related to  
            vehicle forfeiture for solicitation.  As noted above, the  
            Vehicle Code provision does not authorize forfeiture and only  
            allows for impoundment after conviction for a period of 48  
            hours.  (Veh. Code § 22659.5, subd. (b).)  Moreover, Vehicle  
            Code Section 21 prohibits local governments from enacting  
            ordinances on matters included by the Vehicle Code unless  
            otherwise specified.  Hence, because state law occupies the  
            entire field of drug sentencing and penalties and specified  








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            Vehicle Code sections expressly speak to the issue of vehicle  
            impoundment for prostitution, conflicting local ordinances are  
            pre-empted and unconstitutional.  (Calif. Const., Article XI,  
            § 7.)

          The California Supreme Court asked the parties involved in this  
            case to brief issues regarding federal and state  
            constitutional guarantees of substantive and procedural due  
            process for pre-conviction impoundment and forfeiture.   
            Ultimately, however, because the Court ruled the Stockton  
            ordinance was pre-empted by state law, the Court did not  
            resolve the issues of due process.  (O'Connell at 1068, fn.  
            1.)  It is important to note the issue of due process still  
            remains and may be litigated in the future.
          4)Argument in Support:  According to The San Joaquin District  
            Attorney's Office, "[we] support your efforts set forth in  
            Assembly Bill 2147.  This bill would allow for the impoundment  
            of vehicles belonging to sex purchasers, including those  
            arrested for purchasing sex, or attempting to purchase sex,  
            from children who are victims of human trafficking. The number  
            of children who become victims of human trafficking is  
            staggering, on a local, statewide and national level. These  
            victims are our children, our future, deserving of dignity and  
            respect which they do not encounter when they are repeatedly  
            purchased and abused on a daily basis. The act of purchasing  
            sex should not simply be considered an act of prostitution,  
            the extent of this crime runs much deeper and the mind set  
            surrounding these criminal acts must change.


            "In many instances, those who purchase, or attempt to  
            purchase, sex from another, whether a child or an adult, can  
            only be arrested and prosecuted for a misdemeanor offense.  
            These offenses carry little or no consequence. Assembly Bill  
            2147 would provide a mechanism to impound vehicles belonging  
            to sex purchasers, providing an additional penalty designed to  
            curtail the demand and impede the purchasers repeated conduct.


            "We support Assembly Bill 2147 and applaud the authoring of  
            this bill as it will be one more method of addressing the  
            human trafficking epidemic."








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          5)Argument in Opposition:  According to The California State  
            Sheriffs' Association, "AB 2147 would limit existing law that  
            allows for the impound of a vehicle used in the commission of  
            a prostitution offense to the party buying or attempting to  
            buy sexual services.  


            "Under existing law, a local government may adopt an ordinance  
            declaring a motor vehicle to be a nuisance subject to an  
            impoundment period of up to 30 days when the motor vehicle is  
            involved in the commission of a crime related to prostitution  
            or illegal dumping if the owner or operator of the vehicle has  
            a prior conviction for the same offense within the past three  
            years.  This law applies to both the soliciting sexual  
            services as well as the person providing the sexual services.   



            "We do not see a need to limit the application of this law.   
            It is appropriate to allow for the impoundment of a vehicle if  
            it is used in the commission of attempted commission of a  
            prostitution offense inasmuch as it may deter or prevent  
            future criminality.  We also do not believe this law is too  
            harsh given that, in order for a vehicle to be impounded  
            pursuant to this authority, a person must be arrested for an  
            offense for which he or she has a prior conviction in the last  
            three years."


          6)Prior Legislation:


             a)   AB 14 (Fuentes), Chapter 210, Statutes of 2009,  
               authorized cities or counties to adopt local ordinances  
               declaring a motor vehicle to be a public nuisance subject  
               to impoundment for not more than 30 days upon a valid  
               arrest of a person who uses the vehicle in the commission  
               or attempted commission of specified prostitution crimes or  
               illegal commercial dumping and has one prior conviction for  
               either of those crimes.








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             b)   AB 1724 (Jones), of the 2007-08 Legislative Session,  
               would have authorized a city, county, or a city and county  
               to adopt an ordinance declaring, under specified  
               conditions, a motor vehicle used in the commission or the  
               attempted commission of an act that constitute the illegal  
               dumping of commercial quantities of waste matter upon a  
               public or private highway or road a public nuisance subject  
               to seizure and 30-day impoundment.  AB 1724 was vetoed.

             c)   AB 1145 (Huff), of the 2007-08 Legislative Session,  
               would have authorized vehicle seizure and forfeiture when  
               the owner of the vehicle uses it in connection with the  
               commission of a crime of vandalism, as specified.  AB 1145  
               failed passage in this Committee.


          

















          REGISTERED SUPPORT / OPPOSITION:




          Support








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          California District Attorneys Association 


          San Joaquin District Attorney's Office




          Opposition


          California State Sheriffs' Association 



          Analysis Prepared  
          by:              Gabriel Caswell / PUB. S. / (916) 319-3744