BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 881


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          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:  









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          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.








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          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.











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          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  








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            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  








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               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.











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             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  








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            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).); 









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             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.  








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            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  








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            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  








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            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.  









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          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  








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            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  








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            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.









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          "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:









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          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








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          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








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          Opposition


          


          California Police Chiefs Association, Inc.


          California State Association of Counties





          Analysis Prepared by:David Billingsley / PUB. S. / (916)  
          319-3744