BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Gloria Romero, Chair S
2007-2008 Regular Session B
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SB 839 (Calderon)
As Amended April 19, 2007
Hearing date: April 24, 2007
Health and Safety Code, Vehicle Code
SM:mc
FIREWORKS
HISTORY
Source: California Department of Forestry and Fire Protection
Prior Legislation: AB 2310 (Torrico) - failed on Senate floor
AB 2039 (Tran) - referred to Assembly Government
Operations Committee, never heard
AB 923 (Chavez) - 2006, referred to Assembly
Government Operations Committee, never heard
AB 1295 (Bermudez) - 2005, held in Assembly
Appropriations
Support: Unknown
Opposition:None known
KEY ISSUES
SHOULD PENALTIES FOR POSSESSION AND TRANSPORTATION OF DANGEROUS
FIREWORKS BE REVISED, AS SPECIFIED?
SHOULD A FUND BE ESTABLISHED FROM THE PROCEEDS OF ALL FINES AND
FEES COLLECTED IN RELATION TO DANGEROUS FIREWORKS VIOLATIONS AND
THIS FUND BE EARMARKED FOR ENFORCEMENT OF DANGEROUS FIREWORKS
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LAWS?
(CONTINUED)
SHOULD COMMERCIAL DRIVERS WHO TRANSPORT 10,000 POUNDS GROSS WEIGHT
OF DANGEROUS FIREWORKS WITHOUT AUTHORITY TO DO SO HAVE THEIR
COMMERCIAL DRIVER'S LICENSE SUSPENDED FOR THREE YEARS?
SHOULD THE STATE FIRE MARSHAL BE AUTHORIZED TO LEVY A FEE ON SALE OF
SAFE AND SANE FIREWORKS TO FUND ENFORCEMENT OF DANGEROUS FIREWORKS
LAWS?
PURPOSE
The purpose of this bill is to (1) revise penalties related to
dangerous fireworks violations, as specified; (2) authorize the
State Fire Marshal to appoint arson bomb investigators, as
specified; (3) require the State Fire Marshal to evaluate data
collection methods relating to fires, damages and injuries
related to fireworks; (4) require the State Fire Marshal to
develop a model ordinance for streamlined enforcement of
fireworks laws; (5) require the State Fire Marshal to give
notice to businesses regarding transportation of fireworks, as
specified; (6) create a State Fire Marshal Fireworks Enforcement
and Disposal Fund, as specified; (7) to require the state Fire
Marshal to acquire and use statewide mobile dangerous fireworks
destruction units to collect and destroy seized dangerous
fireworks; (8) to authorize the State Fire Marshal to impose a
fee on safe and sane fireworks, as specified; and (9) to
allocate fines and fees, as specified, between local authorities
and the Fireworks Enforcement and Disposal Fund, to be used for
costs of handling and destroying dangerous fireworks.
Existing law states that the State Fire Marshal, his or her
salaried deputies, or any chief of a fire department, or his or
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her authorized representatives, any fire protection agency, or
any other public agency authorized by statute to enforce the
State Fire Marshal's regulations, may seize any fireworks
described in this part. The State Fire Marshal, any chief of a
fire department, any fire protection agency, or any other public
agency authorized to enforce the State Fire Marshal's
regulations may charge any person, firm, or corporation, whose
fireworks are seized pursuant to this section, an amount which
is sufficient to cover the cost of transporting, storing, and
handling the seized fireworks. When the State Fire Marshal,
other enforcing officer or agency described in this section, or
a court determines that a person's firm's or corporation's
fireworks are illegally or erroneously seized, or if legal
proceedings do not result in a conviction for violation of any
provision of this part, any funds collected pursuant to this
section shall be refunded, or if charged but unpaid, canceled.
(Health and Safety Code 12721.)
This bill would authorize the State Fire Marshal to appoint
arson bomb investigators and employees as may be required to
carry out the provisions of fireworks statutes, as specified.
This bill provides that on or before July 1, 2008, the State
Fire Marshal shall identify and evaluate methods to capture more
detailed data relating to fires, damages, and injuries caused by
both dangerous fireworks and safe and sane fireworks. These
evaluation methods shall include a cost analysis related to
capturing and reporting the data.
This bill provides that the Office of the State Fire Marshal
shall consult with public safety agencies and other stakeholders
as deemed necessary by the State Fire Marshal and develop a
model ordinance that permits local jurisdictions to adopt a
streamlined enforcement and administrative fine procedures
related to the possession of fireworks. These procedures shall
be limited to civil fines and as authorized pursuant to Section
53069.4 of the Government Code. The model ordinance shall
include provisions for reimbursing the Office of the State Fire
Marshal for the costs associated with the disposal of seized
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fireworks.
Existing law states any person who violates fireworks statutes,
as specified, or any regulations issued pursuant to existing
law, is guilty of a misdemeanor, punishable by a fine of not
less than $500 nor more than $1,000; by imprisonment in the
county jail for not exceeding one year; or both. (Health and
Safety Code 12700.)
This bill provides, except as to a person who holds and is
operating within the scope of a valid license, as specified:
A person who possesses a gross weight, including
packaging, of less than 25 pounds of unaltered dangerous
fireworks, as defined, is guilty of a public offense
punishable by a fine of not less than $500 or more than
$1,000, or by imprisonment in the county jail for up to one
year, or both.
Upon a second or subsequent conviction, a person shall
be punished by a fine of not less than $1,000 or by
imprisonment in the county jail not exceeding one year or
both.
Existing law states any person who violates existing law
involving any dangerous fireworks item, as defined, or any
combination of any dangerous fireworks items, having the total
net weight of explosive material of 7,500 grains or more, is
guilty of a public offense, and upon conviction thereof shall be
punished by imprisonment in the state prison or in the county
jail for not more than one year; by a fine of not more than
$5,000; or by both the fine and imprisonment. (Health and
Safety Code 12702(c).)
This bill provides, except as to a person who holds and is
operating within the scope of a valid license, as specified:
A person who possesses a gross weight, including
packaging, of not less than 25 pounds or more than 100
pounds of unaltered dangerous fireworks, as defined, is
guilty of a public offense, punishable by a fine of not
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less than $1,000 or more than $5,000, and by imprisonment
in the county jail for up to one year.
A person who possesses a gross weight, including
packaging, of not less than 100 pounds or more than 5,000
pounds of unaltered dangerous fireworks, as defined, is
guilty of a public offense, punishable by a fine of not
less than $5,000 or more than $10,000, and by imprisonment
in the county jail for not exceeding one year, or by 16
months, 2 or 3 years in the state prison.
A person who possesses a gross weight, including
packaging, of more than 5,000 pounds of unaltered dangerous
fireworks, as defined, is guilty of a public offense,
punishable by a fine of not less than $10,000 or more than
$50,000, and by either imprisonment in the county jail for
not exceeding one year or by 16 months, 2 or 3 years in the
state prison.
Existing law provides that:
Any person who violates fireworks statutes, as
specified, by selling, giving, or delivering any dangerous
fireworks to any person under 18 years of age is guilty of
a misdemeanor and upon a first conviction shall be punished
by a fine of not less than $500 nor more than $1,000; by
imprisonment in the county jail for not exceeding one year;
or both. (Health and Safety Code 12702(a).)
Upon any second or subsequent conviction of the offense,
the person shall be punished by the penalties of a fine of
not less than $500 nor more than $1,000 and by imprisonment
in the county jail for one year. The person shall not be
granted probation and the execution of the sentence imposed
upon the person shall not be suspended by the court.
(Health and Safety Code 12702(b).)
This bill provides:
A person who violates fireworks statutes, as specified,
by selling, giving, or delivering any dangerous fireworks
to any person under 18 years of age is guilty of a
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misdemeanor and upon a first conviction, the penalty would
remain the same as in existing law, i.e., by a fine of not
less than $500 nor more than $1,000; by imprisonment in the
county jail for not exceeding one year; or both.
Upon a second or subsequent conviction of the offense,
the person shall be punished by an additional fine of
$5,000, or by imprisonment in the county jail for up to one
year, or both. The person shall not be granted probation
and the execution of the sentence imposed upon the person
shall not be suspended by the court.
This bill requires that, except for a person who holds and is
operating within the scope of a valid license, as specified:
The State Fire Marshal shall, in conjunction with the
Department of Motor Vehicles, develop regulations and
procedures to temporarily suspend the commercial motor
vehicle license of a person who is operating a commercial
motor vehicle while transporting unaltered dangerous
fireworks, as defined, having a gross weight, including
packaging, of 10,000 pounds or more.
A driver of a commercial motor vehicle shall not operate
a commercial motor vehicle for three years if the driver is
convicted of transporting unaltered dangerous fireworks, as
defined, having a gross weight, including packaging, of
10,000 pounds or more, as specified.
This bill requires that the State Fire Marshal, at least once a
year and in consultation with the Attorney General, shall serve
notice to any individual or business known to supply fireworks
that any unauthorized shipments of fireworks into California
will result in an immediate report to federal authorities with a
request for any relevant federal prosecution.
This bill provides that fines and forfeitures imposed by or
collected in any court of this state, as a result of citations
issued by a public safety agency, for fireworks violations, as
specified, shall be deposited, as soon as practicable after the
receipt of the fine or forfeiture, with the county treasurer of
the county in which the court is situated. Amounts deposited
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pursuant to this section shall be paid at least once a month as
follows:
Sixty-five percent to the Treasurer, by warrant of the
county auditor drawn upon the requisition of the clerk or
judge of the court, for deposit in the State Fire Marshal
Fireworks Enforcement and Disposal Fund, as defined, on
order of the Controller.
Thirty-five percent to the local public safety agency in
the county in which the offense was committed to reimburse
the local public safety agency for expenses, including, but
not limited to, the costs for handling, processing,
photographing, and storing seized dangerous fireworks.
This bill provides that if a person charged with a violation
fireworks statutes, as specified, is released and the magistrate
fixes an amount of bail that in his or her judgment is
reasonable and sufficient for the appearance of the defendant,
the amount of that bail equals or exceeds the minimum fine
described in Section 12700, and the defendant pays the amount of
that bail, the magistrate may:
At the time the case is called for arraignment before
the magistrate, if the defendant does not appear, either
in person or by counsel, the magistrate may declare the
bail forfeited, and may, in his or her discretion, order
that no further proceedings shall be had in the case.
Upon the making of the order that no further
proceedings be had, all sums deposited as bail shall
immediately be paid into the county treasury for
distribution as specified.
This bill requires that, to carry out the disposal of dangerous
fireworks, the state Fire Marshal shall acquire and use
statewide mobile dangerous fireworks destruction units to
collect and destroy seized dangerous fireworks from local and
state agencies.
This bill provides that if dangerous fireworks are seized
pursuant to a local ordinance that provides for administrative
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fines or penalties and these fines or penalties are collected,
the local government entity collecting the fines or penalties
shall forward 65 percent of the collected moneys to the
Controller for deposit in the State Fire Marshal Fireworks
Enforcement and Disposal Fund, as specified.
This bill requires that the State Fire Marshal establish
regulations to assess a fee for every dollar of Safe and Sane
fireworks sold in California to be deposited in the State Fire
Marshal Fireworks Enforcement and Disposal Fund and that, in
determining the appropriate amount of the fees, the State Fire
Marshal shall consult with the fireworks industry.
This bill would establish the State Fire Marshal Fireworks
Enforcement and Disposal Fund in the State Treasury.
All of the moneys collected for fines related to
specified violations of fireworks laws shall be deposited
in the fund and shall be available, upon appropriation by
the Legislature, to the State Fire Marshal for the
exclusive use in statewide programs for the enforcement,
prosecution related to, disposal, and management of seized
dangerous fireworks, and for the education of public safety
agencies in the proper handling and management of dangerous
fireworks.
All of the moneys collected in relation to the sale of
safe and sane fireworks, as specified, shall be deposited
in the fund and is hereby appropriated, without regard to
fiscal years, to the State Fire Marshal for the exclusive
use in statewide programs for the enforcement, prosecution
related to, disposal, and management of seized dangerous
fireworks, and for the education of public safety agencies,
local fire departments, and fire protection agencies in the
proper handling and management of dangerous fireworks.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION ("ROCA")
IMPLICATIONS
California currently faces an extraordinary and severe prison
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and jail overcrowding crisis. California's prison capacity is
nearly exhausted as prisons today are being operated with a
significant level of overcrowding.<1> In addition, California's
jails likewise are significantly overcrowded. Twenty California
counties are operating under jail population caps. According to
the State Sheriffs' Association, "counties are currently
releasing 18,000 pre and post-sentenced inmates every month and
many counties are so overcrowded they do not accept misdemeanor
bookings in any form, . . . ."<2> In January of this year the
Legislative Analyst's office summarized the trajectory of
California's inmate population over the last two decades:
During the past 20 years, jail and prison
populations have increased significantly. County
jail populations have increased by about 66
percent over that period, an amount that has been
limited by court-ordered population caps. The
prison population has grown even more dramatically
during that period, tripling since the
mid-1980s.<3>
The level of overcrowding, and the impact of the population
crisis on the day-to-day prison operations, is staggering:
As of December 31, 2006, the California Department
of Corrections and Rehabilitation (CDCR) was
estimated to have 173,100 inmates in the state
prison system, based on CDCR's fall 2006
population projections. However, . . . the
department only operates or contracts for a total
of 156,500 permanent bed capacity (not including
out-of-state beds, . . . ), resulting in a
shortfall of about 16,600 prison beds relative to
the inmate population. The most significant bed
--------------------
<1> Analysis of the 2007-08 Budget Bill: Judicial and Criminal
Justice, Legislative Analyst's Office (February 21, 2007).
<2> Memorandum from CSSA President Gary Penrod to Governor,
February 14, 2007.
<3> California's Criminal Justice System: A Primer.
Legislative Analyst's Office (January 2007).
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shortfalls are for Level I, II, and IV inmates, as
well as at reception centers. As a result of the
bed deficits, CDCR houses about 10 percent of the
inmate population in temporary beds, such as in
dayrooms and gyms. In addition, many inmates are
housed in facilities designed for different
security levels. For example, there are currently
about 6,000 high security (Level IV) inmates
housed in beds designed for Level III inmates.
. . . (S)ignificant overcrowding has both
operational and fiscal consequences. Overcrowding
and the use of temporary beds create security
concerns, particularly for medium- and
high-security inmates. Gyms and dayrooms are not
designed to provide security coverage as well as
in permanent housing units, and overcrowding can
contribute to inmate unrest, disturbances, and
assaults. This can result in additional state
costs for medical treatment, workers'
compensation, and staff overtime. In addition,
overcrowding can limit the ability of prisons to
provide rehabilitative, health care, and other
types of programs because prisons were not
designed with sufficient space to provide these
services to the increased population. The
difficulty in providing inmate programs and
services is exacerbated by the use of program
space to house inmates. Also, to the extent that
inmate unrest is caused by overcrowding,
rehabilitation programs and other services can be
disrupted by the resulting lockdowns.<4>
As a result of numerous lawsuits, the state has entered into
several consent decrees agreeing to improve conditions in the
state's prisons. As these cases have continued over the past
several years, prison conditions nonetheless have failed to
improve and, over the last year, the scrutiny of the federal
courts over California's prisons has intensified.
---------------------------
<4> Analysis 2007-08 Budget Bill, supra, fn. 1.
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In February of 2006, the federal court appointed a receiver to
take over the direct management and operation of the prison
medical health care delivery system from the state. Motions
filed in December of 2006 are now pending before three federal
court judges in which plaintiffs are seeking a court-ordered
limit on the prison population pursuant to the federal Prison
Litigation Reform Act. Medical, mental health and dental care
programs at CDCR each are "currently under varying levels of
federal court supervision based on court rulings that the state
has failed to provide inmates with adequate care as required
under the Eighth Amendment to the U.S. Constitution. The courts
found key deficiencies in the state's correctional programs,
including: (1) an inadequate number of staff to deliver health
care services, (2) an inadequate amount of clinical space within
prisons, (3) failures to follow nationally recognized health
care guidelines for treating inmate-patients, and (4) poor
coordination between health care staff and custody staff."<5>
This bill does not appear to aggravate the prison and jail
overcrowding crisis outlined above.
COMMENTS
1. Stated Need for This Bill
According to the author:
The [State Fire Marshal] (SFM) is authorized by
statute to enforce regulations concerning illegal
fireworks and to see to their disposal. However, the
SFM does not have the staffing nor funding necessary
to dispose of fireworks in a manner which complies
with federal and state environmental protection laws .
Large numbers of fireworks are seized by fire
department and law enforcement agencies without any
criminal action being pursued. The authority for cost
----------------------
<5> Primer, supra, fn. 4.
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recovery by a local agency is provided in statute but
very few agencies have pursued this option. Current
law regarding the illegal importation, sale, and use
of illegal fireworks is confusing to public safety
(police and fire) officials as well as the judicial
system. Public safety agencies are often unsure of
the charges that should be filed against people who
commit these crimes. Local agencies have told the SFM
it is difficult to receive cooperation for prosecution
by the city or district attorneys because the law is
unclear and in most instances the crime is considered
a misdemeanor, making cost recovery more difficult.
Based on information obtained from law enforcement
gang units, some organized gangs have reverted to the
sale of illegal fireworks to obtain money prior to
July 4th. Revenue obtained by these illegal sales is
reported to be from eight to ten times the purchase
costs.
Often fireworks that are illegal in California are
legal in surrounding states therefore most of the
large quantities of fireworks imported illegally into
California are from these states. In order to reduce
the flow of illegal fireworks into California it is
necessary to develop regulations to suspend a
commercial motor vehicle license of a person who is
transporting dangerous fireworks having a gross weight
of 10,000 pounds or more and if convicted, the license
shall be revoked for a period of three years.
This bill will reduce state costs associated with the
seizure, storage and destruction of illegal fireworks
by:
1) increasing penalties and fines associated with
the possession, use, sale, and transportation of
illegal, dangerous fireworks; and
2) establishing a long-term solution to the seized
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fireworks problem by creating a fair enforcement and
management program as is required by the United
States Environmental Protection Agency (U.S. EPA),
in order to eliminate a possible $700,000 debt to
the federal government.
Strengthening the penalties would help reduce the flow
of illegal fireworks into the state, reduce the amount
of these dangerous fireworks being seized and stored
by local public safety agencies, and reduce the ever
increasing threat to public health and the environment
from the storage of these fireworks.
CAL FIRE and the SFM have been working with the author
and industry to create laws to protect lives and the
environment of California from the dangers of illegal
fireworks. Together they have come up with amendments
to assure that goal is accomplished.
2. What This Bill Would Do
Current law, which prohibits possession and sale of dangerous
fireworks, as defined, delineates penalties based on the net
weight of the explosive material contained in the fireworks.
According to the sponsor, to determine the net weight involves
cutting into the fireworks to remove the explosive powder, which
makes current law both dangerous and impractical to enforce.
This bill addresses that problem by revising the statutes which
regulate dangerous fireworks to refer to gross weight, including
packaging. The sponsors estimate that 25 pounds gross weight of
fireworks would net no more than 7,500 grains of explosive
materials. 7,500 grains equals one pound.
The sponsors also state that, although current law provides for
up to one year in jail for most offenses involving dangerous
fireworks, and potential prison time for possession or sale of
larger quantities, these offenses are rarely enforced as a
criminal matter. This bill creates heavier fines for specific
offenses, detailed below, and directs that the proceeds of those
fines be divided with 35% going to the "local public safety
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agency in the county in which the offense was committed to
reimburse the local public safety agency for expenses,
including, but not limited to, the costs for handling,
processing, photographing, and storing seized dangerous
fireworks," and 65% going to a State Fire Marshal Fireworks
Enforcement and Disposal Fund, for use in enforcing fireworks
statutes.
This bill also requires the State Fire Marshal to establish
regulations, in consultation with the fireworks industry, to
assess a fee for every dollar of safe and sane fireworks sold.
These fees would also be distributed according to the allocation
formula, and for the purposes set forth above.
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Penalties for offenses related to dangerous fireworks would be
revised as follows:
Possession Current Penalty SB 839
-----------------------------------------------------------------
|Up to 7500 grains |Minimum $500 up to |1st offense: Up to |
|explosive materials |$1,000 fine and/or 1 |25 lbs gross weight, |
|(Health & Safety |yr jail |same penalty |
|Code 12700.) | |2d offense: minimum |
| | |$1,000 fine and up |
| | |to 1 yr jail, or |
| | |both. |
|---------------------+---------------------+---------------------|
|7500 or more grains |Up to 1 yr jail, |25 lbs - 100 lbs |
|explosive material |fine of $5,000, or |gross weight: |
|(Health & Safety |16 mos, 2 or 3 yrs |minimum fine of |
|Code 12702(c).) |state prison |$1,000, up to |
| | |$5,000, and up to 1 |
| | |yr jail. |
|---------------------+---------------------+---------------------|
| | |100 lbs - 5,000 lbs. |
| | |gross weight: |
| | |minimum fine $5,000, |
| | |up to $10,000, up to |
| | |1 yr. jail or 16 |
| | |mos., 2 or 3 yrs |
| | |state prison |
|---------------------+---------------------+---------------------|
| | |5,000 lbs - minimum |
| | |fine of $10,000 up |
| | |to $50,000, up to 1 |
| | |yr jail or 16 mos., |
| | |2, or 3 yrs state |
| | |prison. |
-----------------------------------------------------------------
Providing to Minors Current Penalty SB 839
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-----------------------------------------------------------------
|Any amount (Health & |1st offense: minimum |1st offense: same as |
|Safety Code |$500 up to $1,000 |current law |
|12702(a), (b).) |fine and/or 1 yr |2d offense: same |
| |jail |penalties as 1st |
| |2d offense: same |offense plus an |
| |penalties but no |additional fine of |
| |probation or |$5,000 and no |
| |suspended sentence. |probation or |
| | |suspended sentence |
| | | |
-----------------------------------------------------------------
Vehicle Code
This bill also requires the Department of Motor Vehicles, in
conjunction with the State Fire Marshal to:
develop regulations and procedures to temporarily
suspend the commercial motor vehicle license of a
person who is operating a commercial motor vehicle
while transporting dangerous fireworks having a gross
weight of 10,000 pounds or more. A driver of a
commercial motor vehicle shall not operate a
commercial motor vehicle for three years if the driver
is convicted of transporting dangerous fireworks
having a gross weight of 10,000 pounds or more.
According to the sponsor, the possession of less than 100 pounds
of dangerous fireworks is likely intended for personal use.
Possession of more than 100 pounds, up to more than 10,000
pounds, increases the likelihood that the fireworks are intended
for resale on the black market, thus the proposed new penalties
are designed to increase as the likelihood of "transportation
and possession for sale" increases.
WOULD ADJUSTING PENALTIES RELATED TO DANGEROUS FIREWORKS LAWS TO
RELY MORE ON FINANCIAL PENALTIES THAN JAIL TIME MAKE THOSE LAWS
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MORE ENFORCEABLE?
SHOULD THE PROCEEDS OF FINES IMPOSED BE ALLOCATED BETWEEN STATE
AND LOCAL OFFICIALS EARMARKED FOR ENFORCEMENT OF ILLEGAL
FIREWORKS OFFENSES?
3. Bail Forfeiture Provision
This bill contains a proposal to allow judges, in cases where a
person is arrested for any violation of statute relating to
dangerous fireworks, and the person is subsequently released on
bail, where that bail amount is equal to or more than the
minimum fine required, to order the bail forfeited and, at the
court's discretion, "order that no further proceedings be had."
COULD THIS ENCOURAGE CRIMINAL DEFENDANTS TO JUMP BAIL?
4. Proposed Amendment
The bill adds this provision both to the Health and Safety Code
and to the Vehicle Code. In the proposed Health and Safety Code
section, an exemption is specified for drivers who are
appropriately licensed to carry these fireworks. The proposed
Vehicle Code section fails to provide this exemption. The
author may wish to consider amending the bill to either delete
the proposed Vehicle Code section, since it is redundant to the
proposed Health and Safety Code section or amend the proposed
Vehicle Code section to also include the exemption.
5. Related Legislation
AB 476 (De La Torre) 2007/08 Session - Fireworks. This bill
would make numerous changes to fireworks laws. Pending in
Assembly Government Operations Committee, no hearing set.
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