BILL ANALYSIS Ó
AB 2811
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Date of Hearing: April 19, 2016
Counsel: Gabriel Caswell
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
2811 (Chávez) - As Amended March 15, 2016
SUMMARY: Removes the prior conviction requirement for the
impoundment of a vehicle upon an arrest for a prostitution
related arrest if the police officer has probable cause to
believe that the victim is a minor or a victim of human
trafficking as specified.
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).)
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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
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:
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1)Author's Statement: According to the author, "We need to
equip cities and counties with the ability to fight against
the sexual exploitation of our children. If a city or county
sees the need to impound vehicles as a deterrent and effective
tool to reduce the sexual exploitation of its minor, they
should be able to do so."
2)Vehicle Code Section 22659.5 Currently Authorizes the Similar
Procedures with Local Approval, when the Offender has a Prior
Offense: 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
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AB 14 (Fuentes), Chapter 210, Statutes of 2009.
This bill would remove the prior conviction requirement for
the impoundment of a vehicle upon an arrest for a prostitution
related arrest if the police officer has probable cause to
believe that the victim is a minor or a victim of human
trafficking as specified.
3)Reason for Inclusion of Prior Offenses: The underlying
legislation, as passed by AB 14 (Fuentes), Chapter 210,
Statutes of 2009 specified that impoundment may occur upon the
arrest of an offender when there is a prior related
conviction. The reason for the inclusion of the prior
conviction is that the statute authorizes a 30-day impoundment
upon the arrest of an alleged offender. The interested
parties negotiated this provision because an arrest is not
proof of wrongdoing. In fact, the alleged offender is
innocent until proven guilty. However, the interested parties
felt that persons arrested for prostitution or dumping related
offenses when the alleged offender had a prior conviction of
the same offense made a much stronger case that they were in
fact a nuisance engaged in prostitution or dumping offenses.
This bill would eliminate the requirement of a prior. First,
this elimination does not meet the specifications that the
person is engaged in the alleged offense repeatedly, and thus
a public nuisance. Second, the impoundment of the alleged
offender's vehicle is based solely on the arrest of the
officer and not the conviction of the offender in a court of
law. The impoundment of the vehicle upon the arrest without a
prior could result in a person engaging in lawful activity,
the sufferance of an impound, and the alleged offender not
being adjudicated guilty or not guilty prior to the 30-day
impoundment running. The inclusion of the prior offense makes
it far more likely that the alleged offender is actually
engaged in illegal activity giving rise to the impoundment.
4)O'Connell vs. City of Stockton: In July of 2007, the
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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. (Health 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
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.
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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.
5)Argument in Support: According to The City of Oakland, "On
behalf of the City of Oakland we are writing as the sponsor of
AB 2811 (Chavez) Vehicles: Nuisance Abatement.
"The City of Oakland has been an active leader in the Bay Area
region and State when it comes to addressing the commercial
sexual exploitation of children. We were one of the first
cities to work with the young victims to help offer
counselling services, help clear their criminal records, and
actively enforce existing laws to punish the johns involved in
this insidious practice.
"However, the problem persists. To my dismay, Oakland has a
thriving underage sex market, and is the epicenter of a
trafficking triangle between San Francisco and Contra Costa
counties. 46% of all prosecuted human trafficking cases in
California came from the Alameda District Attorney's office.
In addition, 80% of reported human trafficking cases in
California occurred in the Bay Area, Los Angeles and San
Diego. These are three areas that experience the most human
trafficking in the US.
"The numbers of children that are forced into sex trafficking
each year is shocking. Rape, abuse, isolation, emotional,
physical, and psychological trauma are just some conditions
these young victims face. While we recognize that putting an
end to human trafficking is a multifaceted effort we believe
that greater enforcement efforts are not only required, but
desperately needed. AB 2811 is a crucial piece of legislation
that will provide another tool to cities, should they pass a
local ordinance, which will allow them to impound the cars of
johns who try to purchase sex from minors.
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"As opposed to more traditional means of reprimanding these
individuals, AB 2811 will provide a forceful deterrent that
will prevent 'johns' from seeking to purchase sex in the
future, while at the same time signaling to the public at
large that this will not be tolerated."
6)Argument in Opposition: According to the American Civil
Liberties Union, "AB 2811 is a bill that would remove the
requirement that a person have a previous conviction for a
specified crime before that person's car can be impounded as a
nuisance following a subsequent arrest for the same crime. We
believe this bill may raise due process concerns and we
strongly caution against removing the prior conviction
requirement from the existing statute.
"Under current law, a person's car can be impounded following
an arrest for certain prostitution-related offenses or illegal
dumping offenses, if the car is alleged to have been used in
the commission or attempted commission of the crime for which
the person was arrested, and, more importantly, if the person
has been convicted of the same offense within the three
preceding years.
"The existing statute already raises constitutional concerns,
as it permits a city or county to deprive a person of his or
her property based only on an arrest and without an
opportunity for the person to be heard prior to the initial
deprivation. A mere arrest is not proof that a person has
actually committed a crime or that a person's vehicle is a
nuisance, and any undertaking by the government to take a
person's property in this context should, with few exceptions,
be preceded by the ability of the owner of the property to be
heard prior to the actual seizure or taking, and should
likewise be preceded by a conviction.
"The existing statute helps to assuage some of the above
concerns by adding a requirement that before a person's car
can be impounded, the person must, within the immediately
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preceding three years, have been convicted of the same crime
for which he or she is currently being arrested. While
certain types of prostitution-related activities may create a
nuisance, for instance if a person repeatedly returns to a
community to solicit prostitution or to pander, it has been
argued that a person who attempts to engage in such an
activity on just one occasion only marginally contributes to a
general nuisance, given that the single act will not likely
adversely affect the community in a significant manner. Yet
even the requirement of a prior conviction, does not cure all
of the concerns with the lack of a current conviction, as even
evidence of a prior conviction does not prove that a person is
guilty of a current crime.
"While this bill attempts to address people who commit crimes
against minors or victims of human trafficking, it
simultaneously makes it easier to deprive a minor or a victim
of human trafficking from their own vehicles. AB 2811 permits
impoundment following an arrest for the crime of prostitution,
in addition to the crime of soliciting prostitution or
pandering. Thus, if the person engaging in the act of
prostitution is a minor or a victim of human trafficking, that
person could likewise be deprived of a vehicle. Depriving a
minor or a victim of human trafficking, or any person engaged
in prostitution for that matter, from his or her vehicle could
have profound negative consequences, particularly if such a
person is trying to get away from an abuser. Getting rid of
the prior conviction requirement would only make impoundment
easier and could result in a person with no conviction history
losing access to his or her only means of transportation,
which could not only prevent the person from leaving an
abuser, as described above, but could also prevent the person
from taking his or her children to school or doctors'
appointments, attending classes or treatment, or going to a
lawful place of employment.
"In the face of all of these existing concerns, getting rid of
the requirement of a prior conviction, even if an alleged
victim is a minor or a victim of human trafficking, will only
create new problems without a commensurate benefit. For these
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reasons, we must oppose AB 2811."
7)Related Legislation: AB 2147 (Eggman), 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.
AB 2147 is on third reading on the Assembly Floor.
8)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.
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.
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REGISTERED SUPPORT / OPPOSITION:
Support
City of Oakland
Commercial Sexual Exploitation of Children
Opposition
American Civil Liberties Union
California Attorneys for Criminal Justice
Analysis Prepared
by: Gabriel Caswell / PUB. S. / (916) 319-3744