BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2147 Hearing Date: June 21, 2016
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|Author: |Eggman |
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|Version: |April 14, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|MK |
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Subject: Vehicles: Impoundment: Prostitution
HISTORY
Source: Author
Prior Legislation:AB 14 (Fuentes)
AB 1751 (Fuentes) - 2008, Vetoed
AB 1724 (Jones) - 2008, Vetoed
Support: California District Attorneys Association; California
Police Chiefs Association; California State Sheriffs'
Association; The San Joaquin County District
Attorney's Office
Opposition:California Attorneys for Criminal Justice
Assembly Floor Vote: 76 - 1
PURPOSE
The purpose of this bill is to specify 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.
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Existing law provides that any person who maintains or commits
any public nuisance for which the punishment is not otherwise
prescribed, or who willfully omits performing any legal duty
relating to the removal of a public nuisance, is guilty of a
misdemeanor punishable by up to 6 months in the county jail
and/or a fine up to $1000. (Penal Code § 372.)
Existing law authorizes a local county, city or city and county
to adopt a five-year pilot program for declaring a motor vehicle
used in prostitution and related offenses to be a nuisance.
(Vehicle Code § 22659.5.) An ordinance adopted pursuant to
Vehicle Code Section 22659.5 shall have the following features:
Where the defendant is arrested and taken into custody, the
arresting officer may remove the vehicle from a public highway
or public land. The owner may retrieve the vehicle through proof
of registration and payment of applicable fees and costs.
(Vehicle Code §§ 22651 and 22850 et seq.)
The nuisance provisions apply only if the defendant was
convicted of a specified offense, or a lesser included offense
as part of a plea bargain.
The defendant can be ordered not to use the vehicle again for
purposes of committing prostitution or a related offense.
Violation of such an order may result in impoundment of the
vehicle for up to 48 hours.
Existing law provides that any person who maintains or commits
any public nuisance for which the punishment is not otherwise
prescribed or who willfully omits performing any legal duty
relating to the removal of a public nuisance is guilty of a
misdemeanor punishable by up to six months in the county jail
and/or a fine up to $1000. (Penal Code § 372)
Existing law prohibits any person from dumping or causing to be
dumped any waste matter, including rocks or dirt, in or upon any
public or private highway or road, without the consent of the
owner, or in or upon any public park or other public property,
without the consent of the state or local agency having
jurisdiction over the highway, road, or property. The penalty is
an infraction with a penalty of $250-$1000 plus penalty
assessments for a first offense. (Penal Code § 374.3.)
Existing law provides that dumping commercial quantities of
waste in violation of Penal Code Section 374.3 is a misdemeanor,
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punishable by imprisonment in the county jail for up to six
months and a mandatory fine of between $1000 and $3000 for a
first conviction, between $3000 and $6000 for a second
conviction, and between $6000 and $10,000 for a third or
subsequent conviction. (Penal Code § 374.3(h).)
Existing law defines commercial quantities of waste as either
waste generated in the course of a business or trade, or an
amount equal to one cubic yard. (Penal Code § 374.3 (h).)
Existing law authorizes the impoundment and, in specific
instances, civil forfeiture of a motor vehicle when the
registered owner has multiple convictions for misdemeanor
illegal dumping of waste matter. (Vehicle Code § 23112.7.)
Existing law 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. (Vehicle Code § 14607.6 (a).) 3)
Existing law 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. (Vehicle Code § 14607.6 (c)(2).)
Existing law 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
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may release and not impound the vehicle. (Vehicle Code § 14607.6
(c)(3).)
Existing law provides a registered or legal owner of record at
the time of impoundment may request a hearing to determine the
validity of the impoundment, as specified. (Vehicle Code §
14607.6 (c)(4).)
Existing law 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. (Vehicle Code
§ 14607.6 (c)(5).)
This bill 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.
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 solicitation 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
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
sexual services.
This bill specifies that the impoundment procedures shall apply
to offenders buying or purchasing sexual services.
This bill 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:
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o 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;
o 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;
o 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;
o Mandates the notice include all of the
following information: The name, address, and
telephone number of the agency providing the notice;
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; The authority and purpose for
the removal of the vehicle; and, 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.
o 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;
o 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
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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;
o 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:
§ The driver of the impounded vehicle
was arrested without probable cause;
§ The vehicle is a stolen vehicle;
§ The vehicle is subject to bailment
and was driven by an unlicensed employee of a
business establishment, including a parking
service or repair garage;
§ 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;
§ 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 vehicle to
engage in solicitation of prostitution,; and
§ 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.
o 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
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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;
o 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;
o 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 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;
o 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;
o 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;
o 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;
o 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;
o States a vehicle removed and seized under an
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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:
§ The legal owner is a motor vehicle
dealer, bank, credit union, acceptance
corporation, or other licensed financial
institution legally operating in this state, or
is another person who is not the registered owner
and holds a security interest in the vehicle;
§ The legal owner or the legal owner's
agent pays all towing and storage fees related to
the seizure and impoundment of the vehicle;
§ 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;
§ 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;
§ 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
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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
§ A failure by a storage facility to
comply with any 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.
This bill 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;
This bill 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;
This bill 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;
This bill 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
This bill 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
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related to the seizure and impoundment.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates were housed in the State's 34 adult
institutions, which amounted to 140.0% of design bed capacity,
and 8,864 inmates were housed in out-of-state facilities.
(Defendants' December 2014 Status Report in Response to February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
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demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
At this very moment, there are more than 100,000
children in the U.S. being exploited by sex
traffickers. Sex trafficking among minors is only
growing in California and continues to exploit the
lives of children. Despite recent attempts to fight
back against sex trafficking, the number of children
being exploited continues to rise and sex traffickers
continue to operate in California almost unimpeded. So
far, efforts have concentrated on the traffickers,
while there has not been a correspondingly robust
effort targeting the other half of the market for
exploited children-the demand side, the people who buy
children for sex and perpetuate demand. The demand is
an inseparable part of the problem, yet buyers do not
face criminal penalties as harsh as traffickers, and
penalties have not kept pace with awareness.
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An example: Currently the law allows for the impounding
of a vehicle belonging to a solicitor of
prostitution-either the buyer or seller, if and only if
authorized by local ordinance.
Impounding a vehicle isn't just punishment; it also
hurts the ability of a given sex trafficker to take
children, to move them around the country or across
borders, and to deliver them to buyers. This could be
an important tool in fighting sex trafficking, but it
is limited by the requirement that there be a local
ordinance.
AB 2147 would empower law enforcement to penalize sex
traffickers and their clientele by eliminating the
requirement for a local ordinance, allowing a law
enforcement agency to impound the vehicle of a
solicitation offender without authorization by a local
ordinance.
2. O'Connell v. City of Stockton
In O'Connell v. City of Stockton (2007) 41 Cal.4th 1061 the
California Supreme Court overturned a Stockton ordinance
allowing forfeiture to the city of any vehicle used to solicit
prostitution or to obtain or attempt to obtain controlled
substances. The court held that the ordinance was preempted by
state law. As to the Stockton drug forfeiture provisions, the
court ruled that the comprehensive nature of the Uniform
Controlled Substances Act, which includes vehicle forfeiture
(Health & Safety. Code § 11469 et seq.), manifest the
Legislature's intent to preclude local regulation. Further, the
Stockton ordinance conflicted with state law because it provided
for penalties in excess of those prescribed by the Legislature.
As to the prostitution related forfeiture provisions, the court
held that the Vehicle Code preempted local ordinances. Vehicle
Code Section 21 expressly states that "no local authority shall
enact or enforce any ordinance on the matters covered by [the
Vehicle Code] unless expressly authorized therein." Vehicle Code
Section 22659.5, subdivision (a), sets out the limits and
requirements for local ordinances declaring vehicles used in the
solicitation of prostitution to be nuisances. Such ordinances
can only be enacted as five-year pilot programs. Allowed
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ordinances can include provisions ordering the defendant not to
use the vehicle again and allowing forcible removal of the
vehicles. "Section 22659.5 contains no language, however, that
would allow a local entity such as the City [of Stockton] here
to seize and forfeit a vehicle that, through its use in
soliciting prostitution, has created a public nuisance."
(O'Connell v. City of Stockton, supra, 41 Cal.4th 1061, 1074.)
3. Current 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 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
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Vehicle Code § 22659.5. Additionally, the bill limits the
solicitation offenses to buyers rather than persons selling
sexual services. The procedures are identical to those that
must currently be adopted by a local ordinance.
4. Support
According to the San Joaquin District Attorney's Office:
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 AB 2147 Page 8 impound vehicles belonging
to sex purchasers, providing an additional penalty
designed to curtail the demand and impede the
purchasers repeated conduct.
5. Opposition
The California Attorneys for Criminal Justice opposes this bill
stating:
A vehicle is "property" and accordingly, the Due
Process clauses of the Federal and State Constitutions
apply to their seizure. A person's property may not be
confiscated by the state without notice and an
opportunity to be heard. In most cases the hearing
must be the property taken before the defendant is
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provided a hearing pursuant to the due process clause.
There is nothing in these acts that is "unusual" such
that it would trigger a constitutional seizure of a
vehicle prior to a noticed hearing. See Bryte v. City
of La Mesa 207 Cal. App. 3d 687 (1989)
The use of a collateral hearing, such as a hearing at
the arresting agency is insufficient to satisfy due
process requirements, whether before or after such a
seizure of property.
Further, the seizure of a vehicle not registered to the
actor at issue is also a violation of the State and
Federal Constitutions as well as causing undue harm to
an otherwise completely innocent citizen. This person
would then be deprived of their property of ran unknown
period of time after taking of the vehicle, left unable
to take children to school, shop for groceries or go to
their place of worship.
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