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:
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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