BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    SB 405        Hearing Date:    April 28, 2015    
          
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          |Author:    |Hertzberg                                            |
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          |Version:   |April 6, 2015                                        |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|MK                                                   |
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            Subject:  Vehicles:  Infraction and Misdemeanor Violations:   
 
                                       Amnesty



          HISTORY
          
          Source:   Western Center on Law and Poverty
                    A New Way of Life Reentry Project
                    East Bay Community Law Center
                    Lawyers Committee for Civil Rights
                    Legal Services for Prisoners with Children
                         

          Prior Legislation:SB 366 (Wright) held Senate Appropriations  
          2014
                         AB 2724 (Bradford) held in Assembly  
          Appropriations 2014
                         AB 1358 (Fuentes) Ch. 662, Stats. 2011
                              SB 857 (Committee on Budget and Fiscal  
          Review) Ch. 720, Stats. 2010

          Support:  ACLU; American Friends Service Committee; Ella Baker  
                    Center for Human Rights; California Association of  
                    Highway Patrolmen; California Attorneys for Criminal  
                    Justice;  California Catholic Conference, Inc.;  








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                    California Immigrant Policy Center; California In-Home  
                    Supportive Services Consumer Alliance; California  
                    Partnership; Courage Campaign; California Public  
                    Defenders Association; Los Angeles Community Action  
                    Network;  Personal Insurance Federation of California;  
                     PICO California; Rubicon Programs; St. Mary's Center;  
                     Western Regional Advocacy Project

          Opposition:None known
                                                
          PURPOSE
          
          The purpose of this bill is to allow people who participate in  
          an amnesty program to pay off existing fines and have their  
          driver's licenses reinstated.

          Existing law provides that an infraction is not punishable by  
          imprisonment and that a person charged with an infraction is not  
          entitled to a jury trial or a public defender.  (Penal Code §  
          19.6.)

          Existing law sets forth the duties of the court, probation  
          officers, and probationers in determining the terms and  
          conditions of probation including providing that the court shall  
          determine if there are any facts in mitigation that would be  
          served by granting probation.  (Penal Code § 1203.)

          Existing law provides that any person convicted of an infraction  
          may, upon a showing that payment of the total fine would pose a  
          hardship on the defendant, be sentenced to perform community  
          service in lieu of the total fine that would be otherwise  
          imposed.  (Penal Code § 1209.5.)

          Existing law provides that in addition to any other penalty in  
          an infraction, misdemeanor or felony the court may impose a  
          civil penalty up to $300 against any defendant who fails to  
          appear in court for any proceeding or fails to pay any portion  
          of the fine ordered by the court.  (Penal Code § 1214.1.)

          Existing law provides that the assessment shall not become  
          effective until at least 10 calendar days after the court mails  
          a warning to the defendant and the court shall vacate the order  
          for the assessment if the person appears in time.  (Penal Code §  








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          1214.1(b).)

          Existing law provides that the assessment imposed shall be  
          subject to the due process requirements governing defense and  
          collection of civil money judgments generally. (Penal Code §  
          1214.1)

          Existing law provides that if any person has failed to pay a  
          fine within the time authorized by the court to pay a fine, the  
          magistrate or clerk of the court may give notice to DMV for any  
          violation.  If the fine is later fully paid then the court shall  
          inform DMV.  (Vehicle Code §§ 40509(b) and 40509.5(b).)

          Existing law provides that in any case when a person appears  
          before a traffic referee or judge of the superior court for  
          adjudication of a violation of the Vehicle Code, the court, upon  
          request of the defendant shall consider the defendant's ability  
          to pay and sets forth the process for making that determination.  
           If the court determines that the defendant has the ability to  
          pay all or part of the costs, the court shall set the amount to  
          be reimbursed and order the defendant to pay that sum to the  
          county in the manner in which the court believes reasonable and  
          compatible with the defendant's financial ability, or if the  
          defendant is placed on probation the court shall order the  
          probation officer to set the amount.  In making a determination  
          of whether a defendant has the ability to pay, the court shall  
          take into account the amount of any fine imposed up on the  
          defendant and any amount the defendant has been ordered to pay  
          in restitution.  (Vehicle Code 
          § 42003(c).)

           Existing law  allows a person owing a fine or bail that is  
          eligible for amnesty under this program to pay to the superior  
          or juvenile court 70 percent of the total fine or bail, or $100  
          for an infraction or $500 for a misdemeanor, either amount of  
          which must be accepted by the court in full satisfaction of the  
          delinquent fine or bail.  The one-time, voluntary amnesty  
          program is to be conducted in accordance with Judicial Council  
          guidelines for a period of not less than 120 days, and not  
          longer than six months from the date the court initiated the  
          program.  (Vehicle Code
          § 42008.5.)
           








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           Existing law requires each county to establish a one-time  
          infraction amnesty program for fines and bail providing relief  
          to individuals who are financially unable to pay traffic bail or  
          fines with due dates prior to January 1, 2009, thereby allowing  
          courts and counties to resolve older delinquent cases and focus  
          limited resources on collecting on more recent cases.  Fifty  
          percent of the fine or bail shall be paid under the amnesty  
          program.  Payment of a fine or bail under these amnesty programs  
          shall be accepted beginning January 1, 2012, and ending June 30,  
          2012.  The Judicial Council shall adopt guidelines for the  
          amnesty program no later than November 1, 2011, and each program  
          shall be conducted in accordance with Judicial Council  
          guidelines.  (Vehicle Code § 42008.7.)

          This bill provides that a county that establishes a one-time  
          amnesty program for fines and bail shall conduct the program in  
          accordance with guidelines provided by the Judicial Council  
          which shall be adopted by March 1, 2016.  Prior to the adoption  
          of those guidelines each program shall be initially conducted in  
          accordance with the Judicial Council guidelines created in  
          accordance with Vehicle Code § 42008.7)

          This bill provides that unless agreed otherwise by the court and  
          the county, the government entities that are responsible for the  
          collection of delinquent court-ordered debt shall be responsible  
          for the implementation of the amnesty program as to that debt.

          This bill provides that commencing January 1, 2016, until  
          January 1, 2018, each amnesty program shall accept in full  
          satisfaction of any eligible fine or bail, of which the due date  
          for payment was on or before January 1, 2013, the following  
          amounts:

                 80% of the fine or bail if the person has income that  
               exceeds 200% of the federal poverty level.
                 50% of the fine or bail if the person has income that is  
               greater than 150% of, but not more than 200% of the federal  
               poverty level.
                 20% of the fine or bail if the person has income that is  
               not more than 150% of the federal poverty level.

          This bill provides that nothing shall limit the court's ability  
          to issue an earnings withholding order or to order the person to  








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          perform community services in lieu of paying the amounts  
          specified.

          This bill provides that DMV shall restore the driving privilege  
          of a participant in the amnesty program whose driver's license  
          was suspended due to failure to pay fines.

          This bill provides that DMV shall provide a notice to each  
          person's whose license has been suspended regarding his or her  
          potential eligibility for the amnesty program.

          This bill provides that no criminal action shall be brought  
          against a person for a delinquent fine or bail paid under the  
          amnesty program.

          This bill provides that each court or county implementing an  
          amnesty program shall file, not later than one year after  
          establishing the program a written report with the Judicial  
          Council with information about the number of cases resolved, the  
          amount of money collected and the operating costs of the amnesty  
          program.

          This bill sunsets January 1, 2018.






                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight 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  








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          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 February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 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).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          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.










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          COMMENTS
          1.  Need for This Bill
          
          According to the author:

               Due to an increase in fines and fees and reduced  
               access to courts, a staggering number of Californians  
               have suspended driver licenses. These suspensions make  
               it harder for people to retain employment, harm credit  
               ratings, and raise public safety concerns. The loss of  
               the ability to drive is a threat to a family's  
               economic security.

               Suspended licenses can trap working poor in an  
               impossible situation: unable to reinstate their  
               licenses without gainful employment and unable to  
               access employment without a license, keeping people in  
               cycles of poverty that are difficult to overcome. A  
               New Jersey study found that when a license was  
               suspended, 42% of drivers lost their jobs. Of those,  
               45% were unable to find a new job and 88% of persons  
               with suspended licenses reported a reduction in their  
               income. This jeopardizes economic stability in the  
               state and limits the workforce available. Employers  
               are affected by having to internalize the cost to  
               replace workers and face the challenge of finding  
               qualified workers with valid driver licenses. 
                                                     
               By imposing fees that cannot be paid and effectively  
               creating permanent license suspensions, the system  
               also threatens public safety. Those with suspended  
               licenses often drive without insurance; if there is an  
               accident they don't have coverage. 

               The Governor has proposed a Traffic Amnesty program in  
               the 2015-16 Budget for $10 billion of uncollected  
               court-ordered debt. However, any such attempt to  
               collect, through an amnesty program or otherwise,  








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               requires the ability to pay, one which is generally  
               lacking without the ability to drive.  
           
          2.  Amnesty Program Under This Bill
          
          This bill provides that a county which establishes an amnesty  
          from January 1, 2016 until January 1, 2018 for fines and bail  
          that were due on or before January 1, 2013 shall follow the  
          guidelines adopted by Judicial Council.  The entity in a county  
          that is in charge of collections shall run the program and the  
          bill sets forth the amount of the fines that shall be collected.  
           A person who had their license suspended who participates in  
          the program shall have their license reinstated.

          While this bill talks about an amnesty program it does not  
          clearly state that a county may adopt an amnesty program.  This  
          should be clarified.

          Amnesty programs under this bill would apply to fines due on or  
          before January 1, 2013.  Is this the appropriate time frame?




          3.  Federal Poverty Level
          
          Under this bill, the payments under the amnesty program shall be  
          made as follows:

                 80% of the fine or bail if the person has income that  
               exceeds 200% of the federal poverty level.
                 50% of the fine or bail fi the person has income that is  
               greater than 150% of, but not more than 200% of the federal  
               poverty level.
                 20% of the fine or bail if the person has income that is  
               not more than 150% of the federal poverty level.

          Is the federal poverty level the appropriate measure in  
          California? Would the supplemental poverty level be more  
          appropriate since it should more accurately recognize the cost  
          of living in California?

          4.  License Reinstated








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          This bill provides that DMV shall reinstate the license of a  
          participant in the amnesty program whose license was suspended  
          under Vehicle Code Section 13365.  The intent is that the  
          license suspension will be removed as soon as the participant  
          signs up for the amnesty program but this should be clarified.   
          The remaining issue is what if a participant stops making  
          payments as part of the amnesty program, should their license be  
          suspended again? How will that work?

          5.  Notice by DMV

          This bill provides that DMV shall provide notice to each person  
          whose driver's license has been suspended under Vehicle Code  
          Section 13365 for failure to pay fines regarding his or her  
          potential eligibility for the amnesty program.  The sponsors  
          believe past amnesty programs have not been totally successful  
          because of a lack of notice and believes that DMV notice in  
          multiple languages should help that.

          This is not a mandatory amnesty program, is DMV supposed to send  
          it to everyone with a suspended license even if only a few  
          counties adopt the amnesty program or just those in the impacted  
          counties?  Do people with suspended licenses keep their  
          addresses current with DMV so that they will receive notice?

          6.  Report
          
          This bill requires those counties participating in the amnesty  
          programs to file a written report with Judicial Council  
          including the number of cases involved, the amount of money  
          collected and the operating costs of the program. The Judicial  
          Council shall then submit a report to the legislation  
          summarizing the information from the various programs.
           
          7.  Sunset

          The amnesty programs under this bill will remain in effect only  
          until January 1, 2018.


                                      -- END -
          








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