BILL ANALYSIS                                                                                                                                                                                                    Ó



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

          Bill No:    SB 881        Hearing Date:    April 19, 2016    
          
           ----------------------------------------------------------------- 
          |Author:    |Hertzberg                                            |
          |-----------+-----------------------------------------------------|
          |Version:   |March 17, 2016                                       |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Urgency:   |No                     |Fiscal:    |Yes              |
           ----------------------------------------------------------------- 
           ----------------------------------------------------------------- 
          |Consultant:|MK                                                   |
          |           |                                                     |
           ----------------------------------------------------------------- 


                           Subject:  Vehicles:  Violations



          HISTORY
          
          Source:Western Center on Law & Poverty  
                    American Civil Liberties Union-California  
                    A New Way of Life Reentry Project
                    California Public Defenders Association  
                    East Bay Community Law Center  
                    Lawyers' Committee for Civil Rights   
                    Legal Services for Prisoners with Children  


          Prior Legislation:SB 85 (Budget and Fiscal Review) Chapter 26,  
          Stats. 2015 
                         SB 405 (Hertzberg) Chapter 385, Stats. 2015
                         
          Support:  California Latinas for Reproductive Justice; Community  
                    Housing Partnership; Courage Campaign;  Drug Policy  
                    Alliance; Ella Baker Center for Human Rights; Forward  
                    Together; Law Foundation of Silicon Valley; Mental  
                    Health Advocacy Services; National Lawyers Guild;   
                    Prison Policy Initiative;  Rubicon Programs;  San  
                    Diego Volunteer Lawyer Program; W. Haywood Burns  
                    Institute

          Opposition:None known







          SB 881  (Hertzberg )                                       Page  
          2 of ?
          
          

                                                


          PURPOSE
          
          The purpose of this bill is to eliminate suspension of driver's  
          licenses as a means of collecting court-ordered debt associated  
          with non-safety traffic offenses.
          
          Existing law authorizes a court to notify the state Department  
          of Motor Vehicles (DMV) when an individual fails to pay a  
          traffic fine (FTP), fails to appear in court (FTA), or fails to  
          comply with a court order (FTC).  Existing law requires the  
          court to notify the DMV if the individual later pays the fine.   
          (Vehicle Code § 40509.5)

          Existing law requires DMV to suspend the driver's license of an  
          individual when DMV receives a notice from the court of an FTP  
          or FTA for that individual, until the individual's driving  
          record is cleared.  (Vehicle Code §§ 13365 et seq.)



          Existing law provides that, in addition to any other penalty in  
          infraction, misdemeanor, or felony cases, the court may impose a  
          civil assessment of up to $300 against a defendant who fails,  
          after notice and without good cause, to appear in court for  
          proceeding authorized by law or who fails to pay all or any  
          portion of a fine ordered by the court or to pay an installment  
          of bail.  This assessment shall be deposited in the Trial Court  
          Trust fund. (Penal Code § 1214.1 (a))

          This bill requires that the failure to appear be willful.

          Existing law provides that the $300 assessment shall not become  
          effective until at least 20 calendar days after the court mails  
          a warning to the defendant by first-class mail to the address on  
          the notice to appear to the defendant's last known address.  If  
          the defendant appears within the time specified in the notice  
          and shows good cause for the failure to appear or the failure to  
          pay a fine or installment of bail, the court shall vacate the  
          assessment. (Penal Code § 1241.1 (b))









          SB 881  (Hertzberg )                                       Page  
          3 of ?
          
          
          This bill deletes the language stating that if the person  
          appears within the 20 days the court shall vacate the  
          assessment.

          This bill provides that payment of bail, fines, penalties, fees,  
          or a civil assessment shall not be required to schedule a court  
          hearing on a pending underlying charge.

          Existing law provides that the $300 civil assessment shall be  
          subject to the due process requirements governing defense and  
          collection civil money judgements generally.  (Penal Code §  
          1241.1(d))

          This bill provides that the ability to pay the assessment shall  
          not be a prerequisite to arraignment, trial or other court  
          proceedings.

          This bill makes a number of changes and deletions so that  
          license suspension will no longer occur when a person has a  
          failure to appear for a non-safety related traffic offense.

          This bill provides that by July 1, 2017, at the request of the  
          suspended driver, DMV shall restore all driving suspensions that  
          were previously taken that would not be allowed under this bill.

          This bill specifically states that it does not apply to reckless  
          driving or driving under the influence cases.

                    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:   








          SB 881  (Hertzberg )                                       Page  
          4 of ?
          
          

                 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  
          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  








          SB 881  (Hertzberg )                                       Page  
          5 of ?
          
          
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS
          
          1.   Need for the Bill

          According to the author:
          
               A ticket in California for an infraction such as a  
               broken tail light, expired tags, or fare evasion, can  
               ultimately lead to a suspended driver's license if a  
               defendant does not pay or make a court appearance.  
               Studies show that people who lose their driver's  
               licenses often lose their jobs, too. That makes it  
               tougher for them to pay any fines or fees charged for  
               minor traffic offenses. In addition, unnecessary  
               driver's license suspensions add to the burden - and  
               costs - of state agencies, law enforcement, and courts.

               The American Association of Motor Vehicle  
               Administrators has recommended that states eliminate  
               the use of license suspensions to collect debt while  
               keeping suspensions in place for serious public safety  
               violations. SB 881 follows this recommendation by  
               eliminating the authority to suspend licenses for  
               non-public safety violations. SB 881 maintains all  
               other suspension authorities in the Vehicle Code. SB  
               881 explicitly declares that reckless and drunk driving  
               offenses are not included in this change. 
          
          2.   Background  

          The state Judicial Council annually adopts a uniform traffic  
          penalty schedule for all non-parking infractions outlined in the  
          Vehicle Code.  In addition to a base fine there are an  
          additional approximately 310% penalty assessments added to the  
          base fine.  For many individuals, a traffic violation can become  
          prohibitively expensive and can lead to a suspended driver's  
          license.  To address this concern, the 2015-16 budget agreement  
          authorized an 18-month traffic amnesty program for delinquent  
          debt.  Under this program, the $300 civil assessment imposed by  
          collection programs for an FTA or FTP is waived.  Individuals  








          SB 881  (Hertzberg )                                       Page  
          6 of ?
          
          
          then receive a 50% reduction in the total amount of  
          court-ordered debt owed for traffic infractions and certain  
          traffic misdemeanors as long as specified criteria are met.  In  
          addition, participants in the amnesty program, as well as  
          individuals currently making payments for the same violations  
          included in the amnesty program, can have their driver's  
          licenses reinstated.  Moreover, SB 405 (Hertzberg, Chapter 385,  
          Statutes of 2015) requires courts to allow individuals to  
          schedule court proceedings even if bail or civil assessment has  
          been imposed.
          
          2.   $300 Civil Assessment
          
          When a person fails to appear in addition to the fines, penalty  
          assessments and other penalties, the courts impose a civil  
          assessment of $300.  This bill would require that the failure to  
          appear be willful.  Currently, a court has no ability to waive  
          the civil assessment even if the court believes the person had a  
          valid reason to fail to appear.

          Under existing statute a person must pay the civil assessments  
          before challenging a traffic violation in court.   However,  
          California Rules of Court, rule 4.105 provides for appearances  
          at arraignment and trial in infraction cases without prior  
          deposit of bail and includes provisions requiring that courts  
          consider the totality of the circumstances in determining bail  
          amounts for infractions.

          This bill makes it clear in statute that the ability to pay the  
          civil assessment shall not be required to schedule a court  
          hearing on the pending underlying charge.

          3.  No Suspended License for a Failure to Appear
          
          Under existing law a person who fails to pay a traffic citation  
          is found to be guilty of failing to appear. The court then  
          notifies the DMV and the person's license is suspended or they  
          can't renew their license until they take care of paying their  
          fines.  This bill removes the ability to suspend or deny a  
          driver's license for failing to appear on a non-safety traffic  
          violation.    It will not impact the more serious violations  
          that have as part of their punishment a license suspension.










          SB 881  (Hertzberg )                                       Page  
          7 of ?
          
          
          According to one of the sponsors the Western Center on Law and  
          Poverty:

               While WCLP has long advocated for policies to reduce  
               poverty in California by increasing public benefit  
               assistance, expanding affordable housing opportunities  
               and ensuring that all Californians have access to  
               affordable health care, in recent years we have begun  
               to work on changing policies that reduces family income  
               due to the cost of debt and traps them in poverty. 

               As with all our work, this new direction is a  
               reflection of the issues that low income families bring  
               into local legal service programs for resolution. In  
               2012, we began to hear that CalWORKs families were not  
               able to succeed in their welfare to work activities  
               because they did not have a driver's license. The lack  
               of a license made it hard to get to work and school on  
               time. The lack of a license was a major barrier to  
               employment because many employers will not hire a  
               person without a license or one who has had their  
               license suspended. As we talked with legal service  
               partners across the state we learned that the issues  
               related to license suspensions were widespread and also  
               linked to an inability to pay court ordered debt due to  
               traffic tickets.

               In 2015 a coalition of legal service organizations,  
               including WCLP, published a report, Not Just a Ferguson  
               Problem, How California Courts are Driving  
               Inequality.<1> The report documented that more than 4  
               million Californians had been cited by courts for  
               failure to appear in traffic court (FTA) or failure to  
               pay a traffic ticket (FTP). Under California's Vehicle  
               Code a person with an FTA or an FTP can have their  
               license suspended and the license is not restored until  
               all the fees, fines and assessments are paid off in  
               full. As the report documented, many people lost their  
               jobs when they got their license suspended and could  
               not get a new one. Thus the license suspension did not  
               -----------------------
               <1>
           The report can be viewed at  
          http://wclp.org/wp-content/uploads/2015/04/Not-Just-a-Ferguson-Pr 
          oblem-How-Traffic-Courts-Drive-Inequality-in-California.pdf. 







          SB 881  (Hertzberg )                                       Page  
          8 of ?
          
          
               have the desired impact of encouraging cooperation with  
               the courts but actually impeded cooperation. 

               The report also stated that most California courts  
               would not let a person contest an FTA or an FTP until  
               they paid all the money they owed in advance to the  
               court. Thus even if a person had good cause for not  
               appearing or not paying they could not tell the judge  
               unless they had the money to get their day in court.  
               The effect of these so-called "Pay to Play" rules  
               effectively created two systems of justice in  
               California: If one has resources they could see a judge  
               and have their day in court but if they did not have  
               the resources they did not get their day in court and  
               were saddled with hundreds or even thousands of dollars  
               in debt that they could do nothing about 

               The Not Just a Ferguson Problem report garnered  
               widespread media coverage which resulted in immediate  
               action by all three branches of state government. The  
               Governor proposed and passed an amnesty program that  
               reduced court ordered debt and allowed people to  
               immediately get their license restored.<2> The Chief  
               Justice responded by passing urgency regulations that  
               allowed some persons to see judges without paying all  
               their debts in advance.<3> The Legislature approved the  
               Governor's amnesty plan and unanimously passed Senator  
               Hertzberg's SB 405 to further limit the "pay to play"  
               -----------------------
               <2>
           For more information on amnesty see the Judicial Council's  
          webpage at http://www.courts.ca.gov/ trafficamnesty.htm or the  
          advocate's website Backontheroadca.org. 
               <3>
           The Judicial Council passed an expedited rule of court (Rule  
          4.105) in early June that can be found at  
          http://www.courts.ca.gov/documents/2015-07-08_2015-06-08_mtg_rule 
          -4_105.pdf . The Judicial Council later amended Rule 4.105 in  
          October. This rule can be viewed at  
          https://jcc.legistar.com/View.ashx?M=F&ID=4069617  
          &GUID=142F9D7F-438B-4DEC-B837-CC0791C4663E. 











          SB 881  (Hertzberg )                                       Page  
          9 of ?
          
          
               practice.<4>

               The response to the new amnesty program has been  
               strong. The Judicial Council has reported more than a  
               half a million hits to the webpage on amnesty and in  
               the first few months of the program nearly 40,000  
               persons were in the process of having their driver's  
               license renewed.<5> We believe the reason for the  
               success of the program is that it provides discounts on  
               debt that is seen by our clients as an insurmountable  
               burden and, perhaps most importantly, it immediately  
               restores the driving privilege to persons who agree to  
               make payments on the debt. Combined, amnesty  
               participation reduces the stress many of our clients  
               experience daily and provides an opportunity to escape  
               from their current situation. 

               Despite all these impressive accomplishments the fact  
               remains that thousands of Californians continue to be  
               caught up in traffic ticket debt every week. The fees,  
               fines and assessments are as high as ever. Persons  
               continue to have their licenses suspended simply  
               because they are poor. People are being arrested and  
               jailed for driving on a suspended license because they  
               have no other choice. 

               SB 881 proposes a fundamental shift in state policy  
               that will reduce the negative consequences from minor  
               traffic infractions. The bill proposes to eliminate  
               license suspensions as a punishment for failure to  
               appear for or pay minor traffic tickets. While state  
               law has many grounds for suspending a license, SB 881  
               ONLY eliminates the authority for failures to appear or  
               failures to pay under Vehicle Code section 13365. There  
               -----------------------
               <4>
           The text of SB 405 can be viewed at  
          http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_ 
          id= 201520160SB405. 
               <5>
           The Judicial Council provided an statutorily mandated update on  
          the first quarter of amnesty activity in March 2016. The data  
          can be viewed at  
          http://newsroom.courts.ca.gov/news/traffic-amnesty-provides-relie 
          f-to-thousands-of-californians 







          SB 881  (Hertzberg )                                       Page  
          10 of ?
          
          
               are many reasons why the time has come to end this  
               practice.



                                      -- END -