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