BILL ANALYSIS Ó SB 881 Page 1 Date of Hearing: June 28, 2016 Counsel: David Billingsley ASSEMBLY COMMITTEE ON PUBLIC SAFETY Reginald Byron Jones-Sawyer, Sr., Chair SB 881 (Hertzberg) - As Amended May 2, 2016 As Proposed to be Amended in Committee SUMMARY: Makes changes to existing law relating to suspended licenses for individuals who have failed to pay (FTP) a traffic fine or failed to appear (FTA) in court. Specifically, this bill: SB 881 Page 2 1)Prohibits the court from imposing a civil assessment for a FTP or FTA, unless the defendant willfully fails to appear or pay. 2)Provides that the ability to pay the $300 assessment shall not be a prerequisite to arraignment, trial, or other court proceedings. 3)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. 4)Requires a county or court "comprehensive collection programs" to provide payment plans based on the debtor's ability to pay, as specified. 5)Prohibits a county or court from initiating driver's license suspension or hold actions as part of a comprehensive collection program. 6)Repeals provisions that require the Department of Motor Vehicles (DMV) to suspend a person's driver's license upon notification from the court of a FTP or FTA. 7)Directs DMV to restrict an individual's privilege to operate a vehicle to driving for employment or medical purposes for a period of six months upon notice from the court that the individual has an FTA on specified vehicle offenses. SB 881 Page 3 8)Allows the restriction on driving privileges to be removed if the individual appears in court, resolves the case, or otherwise satisfies the court's order. 9)Requires DMV to restore all driving privileges suspended as a result of a FTA or FTP by July 1, 2017. 10)Provides that the bill applies to commercial driver's licenses, as well as Class C or M licenses (common and motorcycle licenses). 11)Specifies that the court must notify DMV if a person has satisfied court orders related to a FTA or FTP, if the court previously notified DMV of that person's FTA or FTP. 12)Prohibits DMV from suspending a driver's license upon notice from a court of a person's FTA or FTP. 13)Specifies that the bill does not apply to license suspensions that are related to specified reckless driving or driving under the influence violations. SB 881 Page 4 EXISTING LAW: 1)States that if that an individual has a specified failure to appear or failure to pay, DMV shall suspend the person's driving privilege. (Veh. Code, § 13365.) 2)Specifies that a suspension for an FTA or FTP shall not be effective before a date 60 days after the date of receipt, by the department, of the notice given as specified, and the notice of suspension shall not be mailed by DMV before a date 30 days after receipt of the specified notice. (Veh. Code, § 13365, subd. (b).) 3)States that DMV shall not issue or renew a driver's license to any person when a license previously issued to the person has been suspended until the expiration of the period of the suspension, unless cause for suspension has been removed. (Veh. Code, § 12807, subd. (a).) 4)States that the department shall, before issuing or renewing any license, check the record of the applicant for notices of failure to appear in court filed with it and shall withhold or shall not issue a license to any applicant who has violated his or her written promise to appear in court unless the department has received a certificate issued by the magistrate or clerk of the court hearing the case in which the promise was given showing that the case has been adjudicated or unless the applicant's record is cleared as provided. (Veh. Code, § 12808, subd. (b).) 5)Provides that the court may impose a civil assessment of up to SB 881 Page 5 three hundred dollars ($300) against a defendant who fails, after notice and without good cause, to appear in court or who fails to pay all or any portion of a fine ordered by the court. (Pen. Code, § 1214.1, subd. (a).) 6)States that payment of bail, fines, penalties, fees, or a civil assessment shall not be required in order for the court to vacate the assessment at the time of appearance. Payment of a civil assessment shall not be required to schedule a court hearing on a pending underlying charge. (Pen. Code, § 1214.1, subd. (b)(2).) 7)Provides rules for counties to operate comprehensive collection program to collect delinquent fines. (Pen. Code, §, 1463.007.) 8)Specifies that a comprehensive collection program engages in each of the following activities: a) Attempts telephone contact with delinquent debtors for whom the program has a phone number to inform them of their delinquent status and payment options; b) Notifies delinquent debtors for whom the program has an address in writing of their outstanding obligation within 95 days of delinquency; c) Generates internal monthly reports to track collections data, such as age of debt and delinquent amounts SB 881 Page 6 outstanding; d) Uses Department of Motor Vehicles information to locate delinquent debtors; and e) Accepts payment of delinquent debt by credit card. 9)Specifies that a comprehensive collection program engages in at least five of the following activities: a) Sends delinquent debt to the Franchise Tax Board's Court-Ordered Debt Collections Program. b) Sends delinquent debt to the Franchise Tax Board's Interagency Intercept Collections Program. c) Initiates driver's license suspension or hold actions when appropriate. d) Contracts with one or more private debt collectors to collect delinquent debt. e) Sends monthly bills or account statements to all delinquent debtors. SB 881 Page 7 f) Contracts with local, regional, state, or national skip tracing or locator resources or services to locate delinquent debtors. g) Coordinates with the probation department to locate debtors who may be on formal or informal probation. h) Uses Employment Development Department employment and wage information to collect delinquent debt. i) Establishes wage and bank account garnishments where appropriate. j) Places liens on real property owned by delinquent debtors when appropriate. aa) Uses an automated dialer or automatic call distribution system to manage telephone calls. 10)Allows the clerk of the court to accept a payment and forfeiture of at least 10 percent of the total bail amount for each infraction violation of the Vehicle Code prior to the date on which the defendant promised to appear, or prior to the expiration of any lawful continuance of that date, or upon receipt of information that an action has been filed, and prior to the scheduled court date, if specified circumstances SB 881 Page 8 exist. 11)Specifies that when a clerk accepts an agreement for payment and forfeiture of bail in installments, the clerk shall continue the appearance date of the defendant to the date to complete payment and forfeiture of bail in the agreement. (Veh. Code, § 40510.5, subd. (b).) 12)Provides that for the purposes of reporting violations of the Vehicle Code to the Department of Motor Vehicles under Section 1803, the date that the defendant signs an agreement to pay and forfeit bail in installments shall be reported as the date of conviction. (Veh. Code, § 40510.5, subd. (d).) 13)States that when the defendant fails to make an installment payment, the court may charge a failure to appear or pay and impose a civil assessment as specified. (Veh. Code, § 40510.5, subd. (e).) 14)States that payment of a bail amount under this section is forfeited when collected and shall be distributed by the court in the same manner as other fines, penalties, and forfeitures collected for infractions. (Veh. Code, § 40510.5, subd. (f).) 15)Requires courts to allow a defendant to appear for arraignment and trial without deposit of bail on traffic infraction violations of the Vehicle Code. (Rule of Court 4.105, subd. (b).) except: a) Courts must require the deposit of bail when the defendant elects a statutory procedure that requires the deposit of bail (Rule of Court 4.105, subd. (c)(1).); SB 881 Page 9 b) Courts may require the deposit of bail when the defendant does not sign a written promise to appear as required by the court (Rule of Court 4.105, subd. (c)(2).); and c) Courts may require a deposit of bail before trial if the court finds, based on the circumstances of a particular case, that the defendant is unlikely to appear as ordered without a deposit of bail and the court expressly states the reasons for the finding. (Rule of Court 4.105, subd. (c)(3).) 16)States that courts must inform defendants of the option to appear in court without the deposit of bail in any instructions or other materials courts provide for the public that relate to bail for traffic infractions, including any website information, written instructions, courtesy notices, and forms. Courts must implement this subdivision as soon as reasonably possible but no later than September 15, 2015. (Rule of Court 4.105, subd. (d).) FISCAL EFFECT: Unknown COMMENTS: 1)Author's Statement: According to the author, "Millions of Californians cannot afford the cost of even minor traffic violations. Current law allows the courts to suspend those peoples' driving right for failure to pay. Most of these folks are not unwilling to pay their debts, but simply unable. SB 881 Page 10 Taking one's license - and generally one's ability to find and retain work - does nothing to enforce collection of court-ordered debt. In fact, 88% of people with a suspended license lose their income. The practice costs taxpayers by crowding county jails, reduces state revenues, and is not an effective debt collection tool for low-income Californians." 2)Existing Penalty Assessments: There are penalty assessments and fees added on to the base fine the court imposes on a defendant for a traffic ticket or criminal conviction. Base Fine: $ 100 Penal Code 1464 state penalty on fines: 100 ($10 for every $10) Penal Code 1465.7 state surcharge: 20 (20% surcharge) Penal Code 1465.8 court operation assessment: 40 ($40 fee per offense) Government Code 70372 court construction penalty: 50 ($5 for every $10) Government Code 76000 penalty: 70 ($7 for every $10) Government Code 76000.5 Maddy EMS penalty: 20 ($2 for every $10) Government Code 76104.6 DNA fund penalty: 10 ($1 for every $10) Government Code 76104.7 addt'l DNA fund penalty: 40 ($4 for every $10) Government Code 70373 conviction assessment 30 ($30 or $35) Total Fine with Assessments: $480 3)Imposition of Civil Assessment When an Individual Misses a Court Date or Fails to Pay Fine: If a person a person misses a court date or a deadline to pay a traffic ticket, the court SB 881 Page 11 can add up to $300 to the original fine. (Pen. Code, § 1214.1.) This amount is referred to as a "civil assessment" and may only be imposed if the person gets notice and still does not pay or appear within a specified time. This bill would add the requirement that the failure to appear or to pay is "willful" in order for a court to add the civil assessment up to $300. 4)DMV Suspension of Driver's License Because of FTP or FTA: When people with tickets do not pay a fine on time or fail to appear in court, traffic courts notify the DMV. That notification results in a DMV suspension of the person's driver's license. The consequences of unpaid fines and a suspended driver's license are significant. First and foremost, a suspended license is a significant barrier to employment - many people lose their jobs or are denied jobs due solely to the lack of a license. Bad credit reports stemming from unpaid tickets can keep a family from being able to rent or buy a home. People without licenses cannot get auto insurance and cannot legally drive, whether for school, work, childcare, or medical appointments. These are steep penalties for an offense like making a left turn at the wrong time and not having money to pay the full fine. The following section will address the impact of court-ordered debt and license suspensions. (Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in California. http://www.lccr.com/wp-content/uploads/Not-Just-a-Ferguson-Prob lem-How-Traffic-Courts-Drive-Inequality-in-California-4.20.15.p df) The loss of the ability to drive is a major threat to economic security, particularly for people who already have little or no income. For those who are employed, the suspension might cause them to lose their job once they can no longer drive on the job or no longer have reliable transportation to work. For those who are unemployed, not having a license can be an SB 881 Page 12 insurmountable barrier to finding work: a license is often needed for commuting, particularly as jobs are increasingly located outside of inner-city areas; many jobs require driving as part of the work responsibilities; and even for non-driving jobs, employers often require applicants to have a valid driver's license as an indicator of reliability or responsibility. (Id.) 5)Use of Driver's License Suspension to Collect Revenues: Given the impacts that a license suspension has on an individual's license, such a suspension is a significant incentive to pay fines and fees which have been imposed by the court. However, the same reasons that the suspension of a driver's license provide an incentive to pay, create negative impacts on those individuals who are not in a financial position to pay the fines and fees imposed by the court. Individuals lacking the ability to pay the fine experience a punishment that results in further economic disruption which makes it even less likely that they will be able to pay in the future. There is concern that if an individual's license can no longer be suspended for a failure to pay, there will be a drop in revenue collected on outstanding fines. If that is the case, it is appropriate for the Legislature to evaluate whether the drop in revenue is worth avoiding further economic disruption for Californians caused by suspension of their driving privileges for failure to pay the fine. Avoiding the negative economic consequences of a license suspension might allow individuals to meet the economic obligations of their outstanding court fines. Even without the ability to suspend a driver's license for FTP, the courts have other tools ensure payment of fines from individuals that are working and bringing in income. Courts can pursue recovery through Franchise Tax Board. Wage garnishment and liens are available. Courts are also authorized to operate comprehensive collection programs to collect delinquent fines. SB 881 Page 13 6)As Proposed to be Amended in Committee: The following amendments are proposed to be adopted in Committee: a) Direct DMV to restrict an individual's privilege to operate a vehicle to driving for employment or medical purposes for a period of six months upon notice from the court that the individual has an FTA on specified vehicle offenses. b) Allow the restriction on driving privileges to be removed if the individual appears in court, resolves the case, or otherwise satisfies the court's order. 7)Argument in Support: According to The Western Center on Law & Poverty, "The current system of license suspensions is not working. The DMV reports that 612,000 Californians currently have a license suspended solely for having an FTA or FTP. Millions of Californians have unresolved FTAs or FTPs that could lead to their license being suspended at any time. If license suspension was an effective tool for encouraging cooperation, the state would not have such high numbers. The truth is the tickets are too expensive, the civil assessments only make matters worse and that for millions of Californians they simply can't afford to make the payments. "The current practice results in racially and economically disproportionate outcomes that are significant and troubling. A coalition of legal service organizations did a regression analysis of DMV data by zip codes of persons who had a suspended driver license due solely to having an FTA or FTP. The data showed that African Americans were 60 more likely than their portion of the state's population to have their license suspended and that Latinos were 20 percent more likely to have their license suspended. Our data analysis shows that in areas with high poverty levels that there are literally thousands of license suspensions in single zip codes. Impacts like these destroy trust in law enforcement and the courts and SB 881 Page 14 cause crippling and enduring financial hardship. "Legal service organizations also made Public Record Act requests of law enforcement agencies on the number of stops, arrests and incarcerations for driving on a suspended license that was suspended due to an FTA or FTP. The Los Angeles County Sheriff reported that in a two year period 23,000 people were arrested for driving on a suspended license for FTA or FTP. Of those persons arrested, 31 percent were African American even though they constitute just 8 percent of the county's population. In San Francisco, more than 10,000 persons were arrested for driving on a suspended license and 46 percent of them were African American. "Suspending licenses should only be done to punish serious traffic safety violations. The American Association of Motor Vehicle Administrators (AAMVA) published a best practices guide in 2013 entitled Best Practices top Reducing Suspended Drivers. In its' findings it says: "Some studies have shown that suspending driving privileges for non-highway safety related reasons is not effective. The costs of arresting, processing, administering, and enforcing social non-conformance related driver license suspensions create a significant strain on budgets and other resources and detract from highway and public safety priorities. "The AAMVA called for a nationwide change in the use of license suspensions: "Eliminating driver license suspensions for non-highway safety violations will significantly reduce the burden on departments of motor vehicles (DMV's), law enforcement, the courts and society. DMV's for example, incur exorbitant costs to create, program systems and process these newly legislated suspension types. "There are serious legal and constitutional issues with the use of license suspensions to collect exorbitant fines, fees and SB 881 Page 15 assessments. The Department of Justice Civil Rights division sent a letter to the heads of all 50 state courts outlining the impacts from using courts to generate revenue: "Individuals may confront escalating debt; face repeated, unnecessary incarceration for nonpayment despite posing no danger to the community; lose their jobs; and become trapped in cycles of poverty that can be nearly impossible to escape." 8)Argument in Opposition: According to The California State Association of Counties, "CSAC has serious concerns with the approach of SB 881, which does not address the complexity of the current collections system, but instead takes away a tool the courts use to collect the fines and fees they are mandated by law to collect. In addition, SB 881 requires the Department of Motor Vehicles (DMV( by July 2017, to restore all driving privileges that have been suspended due to a note of a Failure to Appear (FTA) or Failure to Pay (FTP. This provision eliminates any incentive for individuals to pay outstanding debt for traffic violations they received and failed to pay. "SB 881 does not address the fact that individuals will still have burdensome court ordered debt that they cannot afford to pay. The unpaid debt can be passed on to the vehicle registration affecting the individual's ability to register their vehicle and possibly impacting their ability to have valid car insurance. "Over the last decade California has grappled with the increased costs of traffic fines and fees, and the disproportionate impact that these penalties have on low-income families. While the state Judicial Council annually adopts a uniform traffic penalty schedule for traffic infractions, there are approximately 310% additional penalty assessments added to these base fines to support various state and local government programs and services. As additional assessments have been added to penalties, the default rate has increase. SB 881 Page 16 "With that said, CSAC understands the importance of creating a penalty fee system that provides a reasonable process for individuals to satisfy their financial obligations ordered by the court. That is why CSAC is partnering with the Judicial Council for a federal grant that looks at developing a system focusing on an individual's ability to pay and alternatives for court imposed debt." 9)Related Legislation: a) SB 405 (Hertzberg), Chapter 385, Statutes of 2015, required courts to allow individuals to schedule court proceedings, even if bail or civil assessment has been imposed, and clarifies the traffic amnesty program. b) SB 85 (Committee on Budget and Fiscal Review), Chapter 26, Statutes of 2015, authorized an 18-month traffic amnesty program, beginning October 1, 2015, for delinquent debt. 10)Prior Legislation: a) SB 366 (Wright), of the Legislative Session of 2013-2014, would have given courts more discretion to consider defendants ability to pay in setting fines and fees. SB 366 was held in the Senate Appropriations Committee. b) AB 2724 (Bradford), of the Legislative Session of 2013-2014, would have allowed defendants to get their driving privileges back when the driver's license had been suspended for failing to pay a fine, if they agree to pay in installments. AB 2724 was held in the Assembly Appropriations Committee. REGISTERED SUPPORT / OPPOSITION: SB 881 Page 17 Support AIDS Legal Referral Panel Asian Americans Advancing Justice, California American Civil Liberties Union of California California Association of Local Conservation Corps California Department of Insurance California Immigrant Policy Center California Latinas for Reproductive Justice California Public Defender's Association Community Housing Partnership Drug Policy Alliance East Bay Community Law Center SB 881 Page 18 Ella Baker Center for Human Rights Forward Together Haywood Burns Institute Inland Empire Immigrant Youth Coalition Law Foundation of Silicone Valley Legal Aid Association of California Legal Services for Prisoners with Children National Lawyers Guild, San Francisco Bay Area Chapter OneJustice Root & Rebound Safer Streets LA San Diego Volunteer Lawyer Program Western Center on Law and Poverty SB 881 Page 19 Opposition California Police Chiefs Association, Inc. California State Association of Counties Analysis Prepared by:David Billingsley / PUB. S. / (916) 319-3744