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1 RICHARD A. LEVINE, ESQ. (CSB # 091671) SILVER, HADDEN, SILVER, WEXLER & LEVINE 2 1428 Second Street; Suite 200 P.O. Box 2161 3 Santa Monica, CA 90407-2161 (310) 393-1486 4 (310395-5801 (FAX) 5 Attorneys for Plaintiff Los Angeles Police Protective League 6 7 8 9 SUPERIOR COURT OF THE STATE OF CALlFORNIA FOR THE COUNTY OF LOS ANGELES 10 LOS ANGELES POLICE PROTECTIVE 11 LEAGUE, 12 Plaintiff, 13 vs. 14 CITY OF LOS ANGELES, a municipal corporation; CHARLES BECK, Chief of 15 Police, City of Los Angeles; and DOES I through XX, inclusive, 16 Defendants. ) Case No.: ) ) COMPLAINT FOR DECLARATORY ) RELIEF rc.C.p. §1060]; COMPLAINT ) FOR INJUNCTIVE RELIEF [C.c.P. ) §526] ) ) [UNLIMITED CIVIL ACTION] ) ) ) ) ) ) 17 18 -------------------------) 19 FIRST CAUSE OF ACTION 20 For a First Cause of Action by Plaintiff Los Angeles Police Protective League against 21 Defendants, City of Los Angeles, Charles Beck, Chief of Police for the City of Los Angeles and 22 Does I through XX, inclusive, for Declaratory Relief, Plaintiff alleges as follows: 23 1. At all times mentioned herein, Defendant City of Los Angeles was organized and 24 existing under the laws of the State of California and a local authority within the meaning of 25 California VehiCle Code Section 21 and employed peace officers in the Los Angeles Police 26 Department for the enforcement of California Vehicle Code and local ordinances and enactments 27 respecting the regulation and control of motor vehicles. 28 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1

Police union sues L.A. over vehicle-impound policy change

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The Los Angeles Police Protective League is suing the city of Los Angeles and LAPD Chief Charlie Beck over the change in policy in which officers are told not to impound the vehicles of many unlicensed drivers they stop for various reasons.

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Page 1: Police union sues L.A. over vehicle-impound policy change

1 RICHARD A. LEVINE, ESQ. (CSB # 091671) SILVER, HADDEN, SILVER, WEXLER & LEVINE

2 1428 Second Street; Suite 200 P.O. Box 2161

3 Santa Monica, CA 90407-2161 (310) 393-1486

4 (310395-5801 (FAX)

5 Attorneys for Plaintiff Los Angeles Police Protective League

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SUPERIOR COURT OF THE STATE OF CALlFORNIA

FOR THE COUNTY OF LOS ANGELES

10 LOS ANGELES POLICE PROTECTIVE

11 LEAGUE,

12 Plaintiff,

13 vs.

14 CITY OF LOS ANGELES, a municipal corporation; CHARLES BECK, Chief of

15 Police, City of Los Angeles; and DOES I through XX, inclusive,

16 Defendants.

) Case No.: ) ) COMPLAINT FOR DECLARATORY ) RELIEF rc.C.p. §1060]; COMPLAINT ) FOR INJUNCTIVE RELIEF [C.c.P. ) §526] ) ) [UNLIMITED CIVIL ACTION] ) ) ) ) ) ) 17

18 -------------------------)

19 FIRST CAUSE OF ACTION

20 For a First Cause of Action by Plaintiff Los Angeles Police Protective League against

21 Defendants, City of Los Angeles, Charles Beck, Chief of Police for the City of Los Angeles and

22 Does I through XX, inclusive, for Declaratory Relief, Plaintiff alleges as follows:

23 1. At all times mentioned herein, Defendant City of Los Angeles was organized and

24 existing under the laws of the State of California and a local authority within the meaning of

25 California VehiCle Code Section 21 and employed peace officers in the Los Angeles Police

26 Department for the enforcement of California Vehicle Code and local ordinances and enactments

27 respecting the regulation and control of motor vehicles.

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 1

Page 2: Police union sues L.A. over vehicle-impound policy change

1 2. Defendant, Charles Beck, at all tjmes mentioned herein was the Chief of Police for the

2 Defendant City of Los Angeles and charged ·with the general supervision, administration and

3 management of the Los Angeles Police Department.

4 3. At all times mentioned herein, Does 1 t11Iough XX, inclusive, were the agents, servants

5 and employees of Defendant City of Los Angeles, and doing the things hereinafter alleged were

6 acting within the scope of their authority as such agents, servants and employees with the

7 permission and consent of Defendant City. Plaintiff will amend this Complaint to allege the true

8 names and capacities of Does I through XX, inclusive, when ascertained.

9 4. Plaintiff, Los Angeles Police Protective League (hereinafter referred to as "Plaintiff'

10 or the "League") is, and all times mentioned herein was, an employee organization as defined in

n Government Code Section 3500 et seq, recognized to represent all police officers, police

12 detectives, sergeants and lieutenants employed by the City of Los Angeles with regard to all

13 matters concerning wages, hours and work conditions. At all time mentioned herein, Plaintiff's

14 represented members were sworn peace officers as defined in Penal Code Section 830.1 vested

15 with the responsibility of enforcement of all laws within the State of California.

16 5. At all times mentioned herein, California Vehicle Code Section 14607.6(c)(1) required

17 the impounding of a vehicle regardless of ownership in pertinent portion as follows:

18 "If a driver is unable to produce a valid driver's license on the

19 demand of a peace officer enforcing the provisions of this code, as

20 required by subdivision (b) of Section 12951, the vehicle shall be

21 impounded regardless oj ownership, unless a peace officer is

22 reasonably able, by other means, to verifY that the driver is properly

23 licensed. Prior to impounding a vehicle, a peace officer shall attempt

24 to verifY the license status of a driver who claims to be properly

25 licensed but is unable to produce a license on demand of the peace

26 officer." (Emphasis Added)

27 il

28 II

COMPLAlNT FOR DECLARATORY AND INJUNCTIVE RELIEF 2

Page 3: Police union sues L.A. over vehicle-impound policy change

6. At all times mentioned herein, California Vehicle Code Section 14602.6(a)(1) required

2 the impoundment of a vehicle for thirty (30) days upon the decision of a peace officer to

3 impound a vehicle driven by a person driving on a suspended, revoked license or restricted

4 driver's license, or a person who had never been issued a driver's license as follows:

5 "Whenever a peace officer determines that a person was driving a

6 vehicle while his or her driving privileged was suspended or

7 revoked, driving a vehicle while his or her driving is restricted

8 pursuant to Section 13352 or 23575 and the vehicle is not equipped

9 with a functioning, certified interlock device, or driving a vehicle

10 without ever having been issued a driver's license, the peace officer

11 may either immediately arrest that person and cause the removal and

12 seizure of that vehicle or, if the vehicle is involved in a traffic

] 3 collision, cause the removal and seizure of the vehicle without the

14 necessity of arresting the person in accordance with Chapter 10

15 (commencing with Section 22650) of Division 1]. A vehicle so

16 impounded shall be impounded/or 30 days." (Emphasis Added)

17 7. At all times mentioned herein, California Vehicle Code Section 21 preempted the field

18 of motor vehicle traffic regulation and prohibited local governmental authorities from enacting

] 9 ordinances or resolutions on the matters covered by the California Vehicle Code as follows:

20 "Except as otherwise expressly provided, the provisions of this code

21 are applicable and uniform throughout the state and in all counties

22 and municipalities therein, and_a local authority shall not enact or

23 enforce any ordinance or resolutions on the matters covered by this

24 code, including ordinances orresolutions that establish regulations or

25 procedures for, or assess a fine, penalty, assessment, or fee for a

26 violation of, matters covered bytms code, unless expressly authorized

27 by this code."

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELlEF - 3

Page 4: Police union sues L.A. over vehicle-impound policy change

8. On or about April 1 0,2012, Defendant Chief Beck issued Special Order No.7 entitled

2 " Community Caretaking Doctrine and Vehicle Impound Procedures-Established" which, inter

3 alia, mandated Los Angeles Police Officers a.) to apply Vehicle Code Section 22651 (p) as the

4 impound authority instead of Vehicle Code Section 14602.6 (a)(1) respecting a vehicle driven by

5 a unlicensed driver, which would include persons never having been issued a driver's license;

6 and b.) to release, in lieu of 30 day impoundment as othenvise required under Section 14602.6, a

7 vehicle driven by a unlicensed driver which would include persons never having been issued a

8 drivers license, as well as a vehicle driven by a person with a revoked or suspended license as

9 follows:

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U. UNLICENSED DRIVER AND DRIVER WITH A SUSPENDEDIREVOKED

LICENSE IMPOUND AUTHORITIES

A. Unlicensed Driver - No Priors. Section 22651 (P) VC shall be used as the impound authority for all vehicles being impounded when it has been deternlined that the driver was involved in the following and the officer issues a Traffic Notice to Appear citation, Form 04.50.00:

*

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Driving without a valid California Driver's License (unless the driver is a nonresident with a valid license or otherwise exempt under the Vehicle Code); or, Driving with an expired, withheld, or out-of-class California Driver's License.

Officers shall release the vehicle in lieu of impound provided all of the following conditions are met:

c.

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* *

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The registered owner or his/her designee has a valid California Driver's License or is a nonresident with a valid license or otherwise exempt under the Vehicle Code; The registered owner and licensed driver are immediately available; The registered owner authorizes the licensed driver to dlive the vehicle; and, The vehicle's registration is not expired over six (6) months

* * * Driver with SuspendedlRevoked License - No Priors. Section 14602.6(a)(1) VC (30-Day Hold) shal1 be used as the impound authority for all vehicles being impounded when it has been determined that the driver was involved in any of the following:

* *

Driving with a suspended or revoked Jicense; or, Driving with a restricted license pursuant to Section 13352 or 23575 VC, and the vehicle is not equipped with a functioning, celiified interlock

COMPLAINT FOR DEC LARA TORY AND INJUNCTIVE RELIEF 4

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device.

Officers shall release the vehicle in lieu of impound provided all of the following conditions are met:

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The registered owner or hislher designee has a valid California Driver's License or is a nonresident with a valid license or is otherwise exempt under the Vehicle Code; The registered owner and licensed driver are immediately available; The registered owner authorizes the licensed driver to drive the vehicle; and, The vehicle's registration is not expired over six (6) months.

* * * (A true and correct copy of Special Order No.7 is attached hereto as Exhibit

"A" and made a part hereof as though fully set forth) (Italics Added)

9. On February 11,2012, the Legislative Counsel Bureau for the California

Legislature concluded that a local government does not have authority to establish a policy

authorizing the release of an impounded vehicle driven by a driver who has never been issued a

license as set forth as follows:

"[B]ecause the Vehicle Code specifically addresses the impowidment of vehicles

driven by a person who has never been issued a driver's license and specifies

circumstances under which the impounded vehicle might be released prior to the end

of the mandatory 30-day impoundment period, it has preempted these matters and

a local government may not provide for the early release of that impounded vehicle

in circumstances not spec~fied in Section J 4602.6."

Accordingly, in our opinion, a local government does not have the authority to

establish a policy authorizing the release of an impounded vehicle driven by a driver who

has never been issued a driver's license and who does not have a prior conviction for

driving without a valid driver's license prior to the end of a 30-day impoundment period

under circumstances not specified in subdivision (b), (d), (f) or (h) of Section 14602.6 of

the Vehicle Code. (A true and correct copy of the February 11, 2012 Opinion by the

Legislative Counsel Bureau is attached hereto as Exhibit "B" aip. 6-7 and made a part

hereof as though fully set forth) (Emphasis Added)

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 5

Page 6: Police union sues L.A. over vehicle-impound policy change

10. By letter dated February 27, 2012, Los Angeles District Attorney Steve Cooley

2 advised Defendant Chief Beck that local law enforcement agencies may not adopt policies

3 prohibiting or restructuring the impoundment of vehicles driven by unlicensed drivers since such

4 policies are preempted by state law. (A true and correct copy of District Attorney Cooley's letter

5 dated February 27,2012 is attached hereto as Exhibit "c" and made a part hereof as though fully

6 set forth).

7 lL On or about February 28, 2012, the Los Angeles City Attorney's Office issued a

8 Wlitten legal opinion concluding, inter alia, that the Los Angeles Police Department is not

9 required to direct the impoundment of a vehicle driven by a never-licensed person under the

10 authority of Vehicle Code Section 14602.6, but could instead direct impoundment under Vehicle

11 Code Sections 22651 (P) or 14602.6, and that a 30 day impoundment is not required upon a

12 decision by a Police Officer to impound a vehicle driven by a person never licensed or by a

13 person whose license is suspended or revoked.

14 12. At all times mentioned herein, the stated legislative purpose for the mandatory

15 impoundment provisions of the California Vehicle Code are set forth in the Legislative findings

16 and declarations of Vehicle Code Section 14607.4 which provides in pertinent portion as

17 follows:

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"The legislature finds and declares all the following:

* * * (e) Californians l11ho comply with the law are frequently victims of traffic. accidents caused by unlicensed drivers. These innocent victims suffer considerable pain and property loss to hands of people who flaunt the law. The Department of Motor Vehicles estimates that 75 per cent of all drivers whose driving privilege has been withdrawn continue to drive regardless of the law ..

(f) It is necessary and appropriate to take additional steps to prevent unlicensed drivers from driving, including the civil forfeiture of vehicles used by unlicensed drivers. The state has a critical interest in enforCing its traffic laws and keeping unlicensed drivers Fom illegally driving. Seizing the vehicles used by unlicensed drivers serves a signtfzcant governmental and public interest, nameZv the protection of the health, safety and welfare of Californians from the harm of unlicensed drivers, who are involved in a disproportion number of traffic incidents and the avoidance of the associated destruction and damage to lives and property." (Emphasis Added)

COMPLAINT FOR DECLARA TORY AND INJUNCTIVE RELIEF 6

Page 7: Police union sues L.A. over vehicle-impound policy change

13. An actual and justiciable controversy has arisen and now exist, between Plaintiff

2 on one hand, and the Defendants on the other hand, as to whether Defendants' Special Order No.

3 7 requiring Plaintiffs represented peace officers to release vehicles operated by unlicensed

4 drivers or persons with suspended or revoked license, in lieu of a 30 day impound violates the

5 plain statutory language and legislative intent of California Vehicle Code, including Vehicle

6 Code Sections 14607.6(c)(1) and 14602.6(a)(l) and Vehicle Code Section 21 which generally

7 makes the impoundment of a vehicle operated by a unlicensed driver mandatory for a period of

8 thirty (30) days.

9 ]4. On or about February 10, 2012, Los Angeles Police Department Commander Jeri

10 Weinstein, Employee Relations Administrator, by letter to Tyler Izen, President of the League,

11 advised as to the proposed Special Order respecting the" Community Caretaking Doctrine and

12 Vehicle Impound Procedures". In a reply letter dated February 23, 2012 from Tyer Izen to

13 Commander Weinstein, the League challenged the legality of the provisions of Special Order No.

14 7 establishing a vehicle impound policy which was pre-empted by State law and would therefore

15 subject League represented officers to professional and legal conflict as well as civil liability

16 resulting from the implementation of Special Order No.7.

17 15. Such a judicial determination is necessary and appropriate in order that the parties

18 may ascertain their respective legal rights and duties where: (a) Plaintiffs represented peace

19 officers are now placed in a conflict between complying with their responsibilities as sworn law

20 enforcement officers to enforce the laws of the State of California, including the California

21 Vehicle Code provisions, while also required to comply with Orders and policies of their

22 Defendant employing agency, including Special Order No.7 issued by Defendant Police Chief

23 which contains directives inconsistent with the California Vehicle Code; (b) the enforcement of

24 Defend3Jlt Police Chief Special Order No.7 exposes Plaintiff s represented police officers to

25 liability for discriminatory enforcement and injuries to persons or property caused by unlicensed

26 drivers and/or damage to vehicles released by said Police Officers; and (c) Defendant Police

27 Chiefs Special Order jeopardizes the health, safety and welfare of motorists, including Patrol

28 Officers, from the harm of unlicensed drivers, who (unlicensed drivers), according to Vehicle

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 7

Page 8: Police union sues L.A. over vehicle-impound policy change

1 Code Section 14607.4(f) are involved in a disproportionate number of traffic incidents.

2 16. Pursuantto California Code of Civil Procedure Section 1060, Plaintiff seeks a

3 judicial determination as to whether Defendant Police Chiefs Special Order No. 7conflicts with

4 statewide statutory provisions on impoundment of vehicles driven by lmJicensed drivers,

5 including those provisions specified in Vehicle Code Sections 14601-14607.8, and therefore, as

6 a matter of law, the Special Order is invalid.

7 17. Such judicial determination is necessary and appropriate in order that the parties may

8 ascertain their respective legal rights and duties.

9 18. There are no effective administrative remedies available to Plaintiff to compel the

10 relief sought herein, and despite the demand by Plaintiff to Defendants to refrain from

11 implementing the Special Order, Defendants have failed to do so.

12 19. The successful prosecution of this action will result in the enforcement of important

13 rights affecting public interest in: (a) a significant benefit has been confen-ed on a large class of

14 persons; (b) the necessity and burden of private enforcement of the rights involved in this action

15 are as such as to make the award appropriate; and (c) attorney's fees should not, in the interest of

16 justice, be imposed upon the Plaintiff. As a result, Plaintiff is entitled to award of attorney's

17 fees under Section 1021.5 of the California Code of Civil Procedure.

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19 SECOND CAUSE OF ACTION

20 20. For a Second Cause of Action by Plaintiff Los Angeles Police Protective League

21 against Defendants City of Los Angeles, Charles Beck, Chief of Po}ice for the City of Los

22 Angeles and Does I tlrrough XX inclusive, for Injunctive Relief, Plaintiff realleges paragraphs 1

23 through 19 as herein above set forth and further alleges as follows:

24 21. Unless and until Plaintiff's request for injunctive relief, including a Temporary

')5 ~ Restraining Order, Preliminary Injunction and Permanent Injunction are granted by this Court

26 restraining and enjoining Defendants from enforcing Special Order No.7 pending a DeclaJatory

27 Adjudication as previously set forth, Plaintiff s represented peace officers will either be exposed

28 to civil and/or criminal liability for failure to enforce mandatory law enforcement obligations

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF . 8

Page 9: Police union sues L.A. over vehicle-impound policy change

1 under the California Vehicle Code respecting impoundment of vehicles driven by unlicensed

2 drivers, or alternatively, will be exposed to disciplinary and/or other administrative actions by

3 their Defendant employing agency for their failure to comply with Special Order No.7.

4 WHEREFORE, Plaintiff, Los Angeles Police Protective League, prays for the following

5 relief against Defendants City of Los Angeles, Charles Beck, Chief of Police for the CHy of Los

6 Angeles, Does I through XX inclusive as follows:

7 FIRST CAUSE OF ACTION

8 1) This Court render ajudicial determination as to whether Defendants' Special Order

9 No.7 requiring Plaintiff's represented peace officers to release vehicles driven by unlicensed

10 drivers in lieu of impound violates the California Vehicle Code, including Vehicle Code Sections

11 14607 .6( c)(l) and 14602.6(a)(1) which, upon a decision of a peace officer to impound a vehicle,

12 generally makes the impoundment of a vehicle operated by a unlicensed driver mandatory for a

13 period of thirty (30) days. ;

14 2) This Court award Plaintiff attorneys' fees pursuant to Section 1021.5 of the California

15 Code of Civil Procedure;

16 3) Plaintiff be awarded costs incurred herein;

17 4) This Court award such other and further reliefas its deems necessary and proper.

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20 SECOND CAUSE OF ACTION

21 1) This Court issue a Temporary Restraining Order, Preliminary Injunctiori and

22 Permanent Injunction ordering, restraining and enjoining Defendants and their agents, servants

23 and employees and representatives from enforcing Special Order No.7 pending this Court's

24 Declaratory Adjudication on the First Cause of Action;

25 2) Plaintiff be awarded its costs of suit incurred herein;

26 3) Plaintiff be awarded reasonable attorney's fees pursuant to Code of Civil Procedure

27 Section 1021.5; and

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COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 9

Page 10: Police union sues L.A. over vehicle-impound policy change

2 4) This Court award such other and further relief as it deems necessary and proper.

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DATED: April_, 2012

OlI47-pJd.wpd

SIL VER, HADDEN, SILVER, WEXLER & LEVINE

By: -'ru~C=H~A=RD=-A~.~L=E=V=m~E~"--------

Attorney for Los Angeles Police Protective League

COMPLAINT FOR DECLARA TORY AND INJUNCTIVE REUEF

Page 11: Police union sues L.A. over vehicle-impound policy change

- -- ~

VERIFICATION

2

3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES,

4 I have read the foregoing COMPLAINT FOR DECLARA TORY RELIEF [C.C.P. §1060); COMPLAINT FOR INJUNCTIVE RELJEF [C.C.P. §526], and know its contents.

5 I / I am a party to this action. The matters stated in the foregoing document are true of my

6 own knowledge except as to those matters which are stated on information and belief, and as to those matters I believe them to be true.

7 / _X _I I am ! _X -.! an Officer 1_/ a partner of * * , a party to this action, and am authorized to

8 make this verification for and on its behalf, and I make this verification for that reason. I X J I am informed and believe and on that ground allege that the matters stated in the foregoing -

9 document are true. I_I The matters stated in the foregoing document are true of my own knowledge except as to those matters which are stated on information and belief, and as to those

10 matter I believe them to be true.

11 / ~ I am one of the attorneys for ** a party to this action. Such party is absent from the county of aforesaid where such attorneys have their offices, and I make this verification for and

12 on behalf of that party for that reason. I am informed and believe and on that ground allege that the matters stated in the foregoing document are true.

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Executed on __________ , at _________ , California.

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

. / //SIGNATU' I ~. /. /'

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Page 12: Police union sues L.A. over vehicle-impound policy change

OFFICE OF THE CHIEF OF POLICE

SPECIAL ORDER NO. 7 April 10, 2012

APPROVED BY THE BOARD OF POLICE COMMISSIONERS ON FEBRUARY 28/ 2012

SUBJECT: COMMUNITY CARETAKING DOCTRINE AND VEHICLE IMPOUND PROCEDURES - ESTABLISHED

EFFECTIVE: APRIL 22, 2012

PURPOSE: The California State Legislature continues to recognize that driving a motor vehicle is a privilege

and not a right, as delineated in Section 14607.4 of the California Vehicle Code (VC). This Order establishes the procedures for impounding vehicles from unlicensed drivers, and drivers with suspended or revoked licenses encountered in the field, at the scene of traffic collisions and at driving under the influence (DUI) checkpoints., In addition, this Order provides guidance regarding the enforcement of VC Sections 22651 (p) "Unlicensed Driver, II and 14602.6 (a) (1) "30-Day Holds," and guidance on how to apply the "Community Caretaking Doctrine." However, this Order is not intended to preclude officers from impounding vehicles for non-license violations by using appropriate statutory authority. This Order establishes Section 4/222.05, Communi ty Caretaking Doctrine and Vehicle Impound Procedures, to the Department Manual.

PROCEDURE: Various sections of the California Vehicle Code authorize the impoundment of a motor vehicle driven

by an unlicensed driver or a driver with a suspended or revoked driver's license. However, State and federal court decisions have held that the' statutory authority to impound, alone, does not determine the constitutional reasonableness of the seizure under the Fourth Amendment of the united States Constitution. In evaluating the reasonableness of warrantless vehicle impounds, courts have focused on whether the impoundment was in accordance with the Community Caretaking Doctrine. Consequently, this Order clarifies the application of the Community Caretaking Doctrine and establishes the Department's impound procedures.

I. COMMUNITY CARETAKING DOCTRINE OVERVIEW. Officers shall be guided by the Community Caretaking Doctrine and the procedures set forth in this Order when deciding whether to impound a vehicle driven by an unlicensed driver, or a driver with a suspended or revoked license. The courts have ruled that this doctrine allows officers to impound a vehicle when doing so serves a community caretaking function. An impoundment based on the Community Caretaking Doctrine is likely warranted:

EXHIBIT .~'"

Page 13: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO. 7 -2- April 10, 2012

* When the vehicle is impeding traffic or jeopardizing public safety and convenience, such as when a vehicle is disabled following a traffic collision;

* When the vehicle is blocking a driveway or crosswalk or otherwise preventing the efficient movement of traffic (e.g., vehicle, pedestrian, bicycle);

* When the location of the stopped vehicle may create a public safety hazard (e.g., vehicle, pedestrian, bicyclist) i

* When the location of the vehicle, if left at the location, may make it a target for vandalism or theftj or,

* To prevent the immediate and continued unlawful operation of the vehicle (e.g., licensed driver not immediately available) .

The totality of circumstances, including the factors listed above, should be considered when deciding whether impoundment is reasonable under the Community Caretaking Doctrine and the Fourth Amendment. The decision to impound any vehicle must be reasonable and in furtherance of public safety.

II. UNLICENSED DRIVER AND DRIVER WITH A SUSPENDED/REVOKED LICENSE IMPOUND AUTHORITIES.

A. Unlicensed Driver -No Priors. section 22651(p} VC shall be used as the impound authority for all vehicles being impounded when it has been determined that the driver was involved in the following and the officer issues a Traffic Notice to Appear citation, Form 04.50.00:

* Driving without a valid California Driver's License (unless the driver is ~ nonresident with a valid license or otherwise exempt under the Vehicle Code) i or,

* Driving with an expired, withheld, or out-of-class California Driver's License.

Officers shall release the vehicle in lieu of impound provided all of the following conditions are met:

* The registered owner or his/her designee has a valid California Driver's License or is a nonresident with a valid license or otherwise exempt under the Vehicle Code;

* The registered owner and licensed driver are immediately available;

Page 14: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO. 7 -3- April 10, 2012

* The registered owner authorizes the licensed driver to drive the vehicle; and,

* The vehicle's registration is not expired over six (6) months.

Note: If the traffic stop i p conducted in the registered owner's residential driveway or a legal parking space in the immediate vicinity of the owner's residence, impounding the vehicle would not be appropriate. However, if the traffic stop is conducted in the driver's residential driveway or in the immediate vicinity of the driver's residence but the driver is not the registered owner, officers must consider the totality of the circumstances to determine if impoundment is reasonable.

The name and driver's license number of the licensed driver that the vehicle is being released to shall be documented in the narrative portion of the Traffic Notice to Appear that is' issued to the unlicensed driver. If it is determined that the registered owner knowingly allowed an unlicensed driver to operate the vehicle, he or she may be cited for section 14604(a) VC, "Non-Owner Driver of Vehicle."

When the vehicle cannot be released to a licensed driver, the vehicle shall be impounded pursuant to Section 22651(p) VC or, if the vehicle'S registration is expired over six (6) months, pursuant to Section 22651(0) VC, to prevent the immediate and continued unlawful operation as warranted under the Community Caretaking Doctrine. The Official Police Garage (OPG) tow should be requested when it is determined that the vehicle cannot be released.

Note: If it is determined that the vehicle will be impounded, use impound authority Section 14602.6(a) (1) VC (3D-Day Hold) if all of the following conditions are met:

* The driver has never been issued a driver's license by any jurisdiction (foreign or domestic) j and,

* The driver is unable to show proof of insurance or at-fault in the traffic collision or lacks proof of identification.

The reason to impound the vehicle shall not be based on whether the vehicle is properly insured.

Page 15: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO. 7 -4- April la, 2012

B. Unlicensed Driver - With Prior(s) . ~ection 14602.6{a} (1) VC (3D-Day Hold) shall be used as the impound authority when it has been determined that the driver has never been issued a driver's license by any jurisdiction (foreign or domestic) and has a prior misdemeanor conviction, failure to appear, or warrant for Section 1250D{a} VC.

Note: Section 22651(p) VC shall always be used as the impound authority if it has been determined that the driver has an expired, withheld or out of class driver's license and has a prior misdemeanor conviction, failure to appear, or warrant for 125DO(a), 14601, 14601:1, 14601.2, 14601.3, 14601.4, or 14601.5 VC.

If the driver is the registered owner and has a prior misdemeanor conviction: Officers shall document in the "Remarks" or "Narrative" section of the impound Vehicle Report, CHP 180 form, that the vehicle is eligible for vehicle forfeiture as delineated in Section 14607.6 VCr except if the driver's license expired within the preceding 30 days, then no such notation shall be made.

C. Driver with Suspended/Revoked License - No Priors. Section 14602.6(a) (I) ve (30-Day Hold) shall be used as the impound authority for all vehicles being impounded when it has been determined that the driver was involved in any of the following:

* Driving with a suspended or revoked license; or, * Driving with a restricted license pursuant to

Sections 13352 or 23575 ve, and the vehicle is not equipped with a functioning, certified interlock device.

Officers shall release the vehicle in lieu of impound provided all of the following conditions are met:

* The registered owner or his/her designee has a valid California Driver's License or is a nonresident with a valid license or is otherwise exempt under the Vehicle Codej

* The registered owner and licensed driver are immediately available;

* The registered owner authorizes the licensed driver to drive the vehicle; and,

* The vehicle's registration is not expired over six (6) months.

Page 16: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO.7 -5- April 10, 2012

Note: If the traffic stop is conducted in the registered owner's residential driveway or a legal parking space in the immediate vicinity of the owner's residence, impounding the vehicle would not be appropriate. However, if the traffic stop is conducted in the driver's residential driveway or in the immediate vicinity of the driver's residence but the driver is not the registered owner, officers must consider the totality of the circumstances to determine if impoundment is reasonable.

Officers impounding a vehicle under Section 14602.6(a) (1) VC shall either effect a custodial arrest of the driver or issue a Traffic Notice to Appear citation in the field. Vehicles impounded under this Section shall be impounded for 30 days, unless earlier release is authorized by the Area Auto detectives in accordance with Section 14602.6 VC.

The name and driver's license number of the licensed driver that the vehicle is being released to shall be documented in the narrative portion of the Traffic Notice to Appear that is issued to the unlicensed driver. If it is determined that the registered owner knowingly allowed an unlicensed drive~ to operate the vehicle, he or she may be cited for Section 14604(a} VC, "Non-Owner Driver of Vehicle./J

D. Driver with Suspended/Revoked License - With Prior(s). Section 14602.6(a) (I) VC (3D-Day Hold) shall be used as the impound authority for all vehicles being impounded when it has been determined that the suspended/revoked/restricted violator has a prior misdemeanor conviction, failure to appear, or warrant for Sections 12500(a), 14601, 14601.1, 14601.2, 14601.3, 14601.4, or 14601.5 VC.

Note: If the driver is the registered owner and has a prior misdemeanor conviction: Officers shall document in the "Remarks" or "Narrative n section of the impound Vehicle Report, that the vehicle is eligible for vehicle forfeiture as delineated in Section 14607.6 VC.

Page 17: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO. 7 -6- April 10, 2012

III. MISCELLANEOUS IMPOUNDS.

A. Impounding Vehicles Driven by Habitual Driving Under the Influence Offenders. section 14602.8(a) (1) ve authorizes an officer to impound a vehicle from a driver when it is determined that a person has been convicted of Section 23140 VC, Juvenile Driving Under the Influence of Alcohol; 23152 ve, Driving Under the Influence of Drugs or Alcohol; or 23153 VC, Causing Bodily Injury While Driving Under the Influence of Drugs or Alcohol, within the past 10 years and one or more of the following circumstances applies.

The officer shall immediately cause the removal and seizure of the vehicle that such a person was driving, under either of the following circumstances:

* The person was driving a vehicle with a blood alcohol content of 0.10 percent or more; or,

* The person driving the vehicle refused to submit to or complete a chemical test.

A vehicle impounded pursuant to the aforementioned section shall be impounded for one of the following time periods:

* 5 Days - If the person has been convicted once for violating Sections 23140, 23152 or 23153 VC i and the violation occurred within the preceding 1.0 years; or,

* 15 Days - If the person has been convicted two or more times for violating Sections 23140, 23152 or 23153 VC or any combination thereof, and the violations occurred within the preceding 10 years.

The vehicle shall be rele·ased to the registered owner or his or her designee prior to the end of the impoundment period only under conditions set forth in Sec~ion 14602.8(d) VC.

B. Citing or Arresting Unlicensed Drivers at Traffic Collision Scenes and Related Vehicle ~mpounds. For an unlicensed driver or driver with a suspended/revoked license at traffic collision scenes, the appropriate impound authority or release-at-scene protocol shall be utilized in accordance with Section II in this Order.

Page 18: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO. 7 -7- April 10, 2012

A driver involved in a traffic collision may be cited or placed under custodial arrest when the officer determines that the involved vehicle was operated by an unlicensed driver or a driver whose driving privilege was suspended or revoked.

The officer's determination shall be based upon witnesses' statements, a driver's admission and/or physical evidence. The related impound Vehicle Report shall contain the following;

* A full narrative listing all of the information/ elements to establish the driver'S offense; and,

* Names, addresses, telephone numbers and st'atements of witnesses that can establish the driver operating the vehicle.

If the traffic collision results in injuries, officers shall complete the Traffic Collision Report, CHP 555 form. However, if the traffic collision does not result in injuries and one of the parties is unlicensed, a Traffic Collision Report shall not be completed. The officer shall ensure an exchange of information is completed between the involved parties. Officers shall issue a Traffic Notice to Appear citation to the unlicensed driver and document the name, address and telephone number of the witnessing party or parties on the back of the "Golden Rod n copy of the issuing officer's Traffic Notice to Appear citation.

If the violator challenges the citation during a subsequent court proceeding, the issuing officer shall be responsible for contacting the witnessing parties and requesting their attendance in court.

When the unlicensed driver does not possess valid identification, officers shall advise the other involved party of the option to effect a private person's arrest. When a private person's arrest is ~ade, officers shall indicate a charge of Section 1250o(a) VC or 14601(a) VC, or other appropriate VC section(s) for driving when the privilege is suspended or revoked.

Page 19: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO. 7 -8- April 10. 2012

C. Impounding Vehicles at Driving Under the Influence Checkpoints. The following procedures apply if the driver's only offense is a violation of Section 12500 VC,even if the driver has a prior misdemeanor conviction, failure to appear, or warrant for 12500 VC. Officers shall make a reasonable attempt to identify the registered owner of the vehicle driven by an unlicensed driver. When the registered owner is present or able to respond to the scene prior to the conclusion of the DUI checkpoint operation, or the officer is able, without delay, to identify the registered owner and obtain his/her authorization to release the vehicle to a licensed driver at the scene, the vehicle shall be released to either the registered owner or the authorized licensed driver provided the following conditions are met:

* The registered owner or his/her designee has a valid California Driver's License or is a nonresident with a valid license or is otherwise exempt under the Vehicle Code; and,

* The registered owner authorizes the licensed driver to drive the vehicle.

The name and driver's license number of the licensed driver the vehicle is being released to shall be documented in the narrative portion of the Traffic Notice to Appear citation issued to the violator.

When the vehicle cannot be released to the registered owner or his or her designee, officers shall impound the vehicle under the authority of Section 22651(p} VC.

When the violator has a suspended or revoked driver's license, officers shall impound or release the vehicle as outlined in Section II "Unlicensed and suspended/Revoked Driver Impound Authorities" of this Order.

D. Impounding Vehicles When the Driver is Arrested. section 22651(h) (1) VC authorizes an officer to impound a vehicle from a driver who has been arrested and taken into physical custody. However, as noted in Section I of this Order, officers must also determine if the totality of the circumstances supports impoundment of the vehicle under the Community Caretaking Doctrine.

Page 20: Police union sues L.A. over vehicle-impound policy change

SPECIAL ORDER NO.7 -9- April 10, 2012

When a driver is arrested, the vehicle should not be impounded under the following circumstances:

* If the arrestee is the registered owner and the vehicle is parked in the arrestee's residential driveway or a legal parking space in the immediate vicinity of the arrestee's residence;

* If the vehicle is parked in a legal parking space where it is not posing a traffic hazard and is not likely to be a target of vandalism or theft; or,

* If a licensed passenger is present and not impaired or otherwise unable to lawfully operate the vehicle and is given permission by the registered owner.

Note: In situations other than those above, when community caretaking warrants impoundment, section 22651(h) (1) VC shall be used as the impound authority. If the driver arrested has prior DUI convictions, officers shall be guided by Section 14602.8 (al (1) VC.

Attached is the Vehicle Impound Chart, Form 15.23.06.

FORM AVAILABILITY: The Vehicle Impound Chart is available in LAPD E-Forms on the Department's Local Area Network (LAN). A copy of the form is attached for immediate use and , duplication.

AMENDMENT: This Order adds Section 4/222.05 to the Department Manual.

AUDIT RESPONSIBILITY: The Commanding Officer, Internal Audits and Inspections Division, shall review this directive and determine whether an audit or inspection shall be conducted in accordance with Department Manual Section 0/080.30.

c~ CHARLIE BECK Chief of police

Attachment

DISTRIBUTION ftDN

Page 21: Police union sues L.A. over vehicle-impound policy change

Los Ange es Police Department Vehicle rnpound Chart Community Caretaking Doctrine

Officers shall be guided by the Community Caretaking Doctrine and the Department's vehicle impound procedures. The decision to impound any vehicle should be based on the totality of circumstances and must be reasonable and in furtherance of public safety. The following are a few examples of when a vehicle may be impounded based on the Community Caretaking Doctrine:

• When the vehicle is impeding traffic or jeopardizing public safety and convenience; • When the vehicle is blocking a driveway or crosswalk or otherwise preventing the efficient movement of traffic

(vehicle, pedestrian, bicycle); • When the location of the stopped vehicle may create a public safety hazard (e.g., vehicle, pedestrian. bicycle); • When the location of the vehicle, if left al the location, may make it a target for vandalism or theft; or, • To prevent the immediate and continued unlawful operation of the vehicle.

Unlicensed Driver No prior(s) Release vehicle. Officers shall release the vehicle in lieu of impound if:

• Driving without a valid California Driver'S License (COL), unless the driver is a non-resident with a valid license or otherwise exempt under the California Vehicle Code (VC). (Issue citation or effect a custodial arrest)

* Driving with an expired COL. (Issue citalion)

• Driving with an 'withheld" COl. (Issue citation)

• Driving with an out-of-class COl. (Issue citation)

Unlicensed Driver With prior(s)

Driver has never been issued a driver's license (foreign or domestic) AND has prior misdemeanor conviction, failure to appear, or warrant for 12500(a) VC, (Issue citation or effect a custodial arrest) Driver has expired, withheld, or out-of-class COL AND has a prior misdemeanor conviction, I failure to appear, or warrant for 12500(a), . 14601,14601.1,14601.2,14601.3,14601.4 or 14601.5 VC. (Issue a citation)

Suspended/Revoked Drivers License No prior(s}

• Driving with a suspended or revoked CDL. • Drivina with a restricted COL pursuant to

Sectio-n 13352 or 23575 VC and the vehicle is not equipped with a functioning certified interlock device.

(Issue a citation or effect a custodial arrest)

SuspendedlRevoked Driver's License

With prior(s)

• Driving with a suspended or revoked COL. • Driving with a restricted COL pursuant to

Section 13352 or 23575 VC and the vehicle is not equipped with a functioning certified interlock device.

AND has prior misdemeanorconviclion, failure 10 appear, or warrant for 12500(a). 14601,14601.1,14601.2,14601.3,14601.4, or 14601.5 VC. (Issue a citation or effect a custodial arrest)

1. The RIO or his/her designee has a valid driver's license, is 1M MEDIA TEL Y AVAILABLE, AND the vehicle registration is not expired over 6 months, OR,

Note: Write the name and driver's license number of the person the vehicle is being released to on the narrative portion of the traffic citation.

2. The vehicle is stopped in the RiO's residential driveway or legal parking space in the immediate vicinity of RiO's residence. (If the driver is not the RIO, officer must consider totalily of circumstances to determine if impoundment is reasonable.)

Impound Vehicle; If the vehicle cannot be released based on the above, impound as follows:

}> Never been issued driver's license (foreign or domestic) AND any of the following: No insurance OR at fault in a traffic collision OR lacks proof of identification = 14602.6(a)(1} VC (30-day hold).

y Never been issued driver's license (foreign or domestic) AND has insurance AND satisfactory identification AND not at fault in a traffic collision = 22651(p) VC.

>- DrivinQ with an expired, withheld, or out-of-class CDL = 22651{PJ ve. Impound Vehicle:

Use Section 14602.6 (a)(1) VC, 3D-Day Hold as the impound authority. If prior misdemeanor conviction, document vehicle subject to forfeiture, per Section 14607.6 VC, in impound report.

Impound Vehicle: Use Section 22651(p) VC as the impound authoriiy.

• If prior misdemeanor conviction, document vehicle subject to forfeiture, per' Section 14607.6 VC, in the impound report.

Release vehicle. Officers shall release the vehicle in lieu of impound if:

1. The R/O or hislher designee has a valid driver's license, is IMMEDIATELY AVAILABLE, AND the vehicle registration is not expired over 6 months, OR,

. Note: Write the name and driver's license number of the person the vehicle is being released 10 on the narrative portion of the traffic citation. .

2. The vehicle is stopped in the RIO's residential driveway or legal parking space in the immediate vicinity of RiO's residence. (If the driver is no! the RIO, officer must consider totality of circumstances 10 determine if impoundment is reasonable)

Impound Vehicle: If the vehicle cannot be released based on the above, impound as follows:

~ Use Section 14602.6(a)(1) VG, 30·D~Hold, as the impound authority.

Impound Vehicle:

Use Section 14602.6(a)(1) VC, 3D-Day Hold as the impound authority.

• If the driver is the RiO and has a prior misdemeanor conviction, document vehicle subject 10 forfeiture, per Section 14607.6 VG, in the impound report.

Page 22: Police union sues L.A. over vehicle-impound policy change

Los An eles Police De artment Vehicle 1m ound Chart Unlicensed Driver or Suspended/Revoked

Driver at TIC Scenes

Unlicensed driver or driver with a suspended/revoked driver's license at scene of TIC with injuries & without injuries.

When the IYtiV.e~ls Arrested

Release Vehicle:

Release the vehicle according to the appropriate Unlicensed Driver or Suspended/Revoked Drivers license sections_

Impound Vehicle:

Irthe vehicle cannot be released, impound the vehicle according to the appropriate Unlicensed Driver or Suspended/Revoked license section listed above.

Document the following in the impound narrative:

» Information/elements to establish the drivers offense: and name. address, telephone number & statements of witnesses thaI can establish the driver o eralin the vehicle_

.. Releasexehicle:

D;iver'>ih,o is arr;~i-e(uor ofr~h5es oth~~,tB·?~.- • If the <lrrestee is ttje,registered owner)mp the vehicle is parked in (he arr-estee's

~~~:r~,Ii~~~i6~~.ffi~n~'~S and tak;~into c;c" . ,;.~~~~~~7~~ ~::~a~t~~2~~~k~l~;:$~~b.~~;~R . ..... .:;. . .......•.. , •. ;.>_ -: -:~F;

'". ,:-.,

Driver was convicted of Section 23140, 23152 or 23153 VC within the past 10 years AND one of the following:

• The person was driving a vehicle with a blood alcohol level of 0.10 percent or more; or,

• The person driving the vehicle refused to submit to, or com lelea chemical test

Driver with suspended/revoked driver's license at a DUI checkpoint.

15_23_06 (04/12)

·"·:''If.lhe venide is parked in aJegalparking s-p&:ce where it is not posing:,atratffc{i.~zardand.' Isilo! likely to be a target of vandalism odfiefi;OR ., •• " >, <Y'.·· .' '. If Et'ic~~'~~~ig?~s~~.~e; i.5 p~~~';fJt~[)~ h~t in,p~hl~.i,;~r.~therWise u'1,?bleip,Ia.\\iDIFy '. _operate ttre;ve~l~le,al}o Is·gl'ilen::R-efl11lsslon by:tn-f!'-remsiered owner. .',

,',:',.: ... ' :.,.:<"~~.~~:.>::-" ~ ~'\.~". ,',: :';t:")-:.".=.~:.:-:,....". . ...

impound Vehicle:

Impound Vehicle:

• Use Section 14602.8(a)(1) VC as the impound authority and hold the vehicle for one 01 the following time periods:

> 5 days - If the person has been convicted once for violating Section 23140, 23152, or. 23153 VC, within the preceding 10 years; or,

> 15 days - If Ihe person has been convicted two or more times of violating Sections 23140,23152, or 23153 ve, or any combination thereof, within the preceding 10 years .

Officers shall release or impound the vehicle according to the appropriate Suspended/Revoked Driver's License section listed in the chart

Page 23: Police union sues L.A. over vehicle-impound policy change

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Honorable Bill Emmerson

Room 4082, State Capirol

LEGISLATIVE COUNSEL lWREAU

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February 11, 20 12

UNLICENSED DRIVERS ~ #1200017

Dear Senator Enunerson;

You asked whether a local government has [he authority w establish a policy

authorizing the release of an impounded vehicle driven by a driver who has never been issued

a driver's license and who does not have a prior conviction for driving without a valid driver's

license prior to t:h~ end of a 3D-day impoundment period under circumstances nor specified in

subdivision (b), (d), (f), or (h) of Section 14602.6 of ,he Vehicle Code .

By way of background, subdivision (a) of Section 12500 of the Vehicle Code1

prohibits a person from driving a vehicle unless the person holds a valid driver's license;

Hence, a person wbose driver's licensea

has expired, or has been suspended or revoked, or a

person who has never been issued a driver's license, is prohibited from driving a vehide.

Subdivision (p) of Section 22651 ;mthorizes a peace officer to remove a vehicle "[w]hen the peace officer issues the driver of a vehicle a notice to appear for a violation of

Section 12500 ... and the vehicle is nor impounded pursuant to SeC[ion 22655.5.") The court

has interpreted [his provision as aurhori:dng, bur nor requiring, the impoundment of the

vehicle (Peopl~ v, Cm» (1996) 46 Cal.AppAth 367, 372-373; hereafter Green). Section 22651

does not spectfy a rime period for which the vehicle is to be impounded.

1 All fwilier secdon reff:rences aft: to [he Vehicle Code, unless otherwise sLated,

1 Section 310 defines "driver's license" as "a valid license to drive the type of mowr

vehicle or combination of vehicles for which a person is licensed under [the Vehicle Code] or by a

foreign. jurisdiction,"

1 Subdivision (p) of Section 22651 further prohibirs [he release of an impounded

vehicle, "exeep, upon presentation of the registered owner's or his or her agem's currently valid

driver's license to operare [he vehicle and proof of current vehicle registration, or upon order of a

COUrt."

Page 24: Police union sues L.A. over vehicle-impound policy change

Honorable Bill Emmerson -Request #1200017 - Page 2

In addition [0 subdivision (p) of Section 22651, Secrion 14602.6 also authorizes the impoundment of a vehicle driven by a specified group of peopJe.

q Section 14602.6

provides. in relevant part, as follows:

"14602.6. (a) (1) Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked. driving a vehicle while his or ber driving privilege is restricted pursuant to Section 13352 Of 23575 and the vehicle is not equipped with a Functioning, certified interlock device, or driving.a vebicle without ~ having been issued l! driver's license, the peace officer ~ either immediately arrest that petson and cause the removal and seizure of that vehicle Cf, if the vehicle is involved in a traffic conision, cause the removal and seizure of the vehicle

witham rhe necessity of arresting [he person in accordance with Chapter 10 (commencing with Secdon 22650) of Division 11. A vehicle so impounded shall be impounded for 30 days.

"(b) The registered and legal owner of a vehicle thar is removed and seized under subdivision (a) or their agents shall be provided the opponunity for a storage hearing to determine [he validity of, or consider .ill:lJ:: mitigating circumstances attendam ro the srorage, in accordance with Seerion 22852,

* 4 *

"(d) (1) An impounding agency shall release a vehicle to the registered owner or his or her agent prior to the end Q.[3Q days' impoundment under any of the following circumstances:

U(A) When the vehicle is a stoten vehicle. "(B) When the vehicle is subject to bailment and is driven by an

unlicensed etnployee of;:. business establishmenc, including 2 parking service or

repair garage. n(C) When the license of the driver was suspended 01' revoked for an

offense orher than those included in Anicle 2 (commencing v,rirh Section 13200) of Chapter 2 of Division 6 or Article 3 (commencing with Seerion 13350) of Chapter 2 of Division 6.

4 In addition co subdivision (p) ofSecticn 22651 and Section 14602.6, Section 14607.6 requires, except for specified circumstances, a peace officer to impound a vehicle driven by an unlicensed driver who has a previous misdemeanor conviction for violating subdivision (a) of Section 12500 (para. (1), subd. (c), Sec, 14607.6; California Highwlly PMroi v. Superior Court (2008) 162 CaLApp.4th J 144,1154; hereafter California Highway Patrol),

Page 25: Police union sues L.A. over vehicle-impound policy change

Honorable BiU Emmerson -Request#1200017 - Page 3

., (D) When the vehicle was seized under rhis secrion for an offense that

does not authorize the seizure of [he vehicle.

"(E) When the driver reinstates his or her driver's license or acquires a

driver's license llnd proper insurance .

. . " "(f) A vehicle removed and seized under subdivision (a) shall be released

to the legal owner of the vehicle or the legal owner's agent prior to the end of30

days' impoundment if a!l of the following <:anditions are mer: "(1) The legal owner is a motor vehicle dealer, bank, creelit union,

accepr;>.nce corporation, or orher licensed financial instimtion legal!y operating

ih this scate or is another person, not [he registered owner, holding a security

interest in the vehicle.

"(2) (A) The legal owner or rhe legal owner's agenr pays all rowing and storage fees related to ,he seizure of the vehicle. No lien sale processing fees

shall be charged to the legaJ owner who redeems rhe vehicle priorro (he 15th

day of impoundment. Neither (he impounding authority nor any person

having possession of the vehicle shall coHeet from the legal owner of the type

specified in paragraph (1), or the leg;:d owner's agent any adminisrrarive charges

imposed pursuant to Section 22850.5 unless the legal owner volunrarily

requested a posrsrorage hearing.

"(B) A person operating or in charge of a storage facility where vehicles

are stored pursuant to this section shall accept a valid bank credit card or cash

for payment of towing, storage, and related fees by a legal or registered owner

or [he owner's agent claiming the vehicle. A credit card shall be in the name of

the person presenring the card. 'Credit card' means' credit card' as defined in

subdivision (a) of Section 1747.02 of the Civil Code, except, for (he purposes of

this section, credir card does not include a credit card issued by a retail seifer.

"(C) A person operating or in charge of a srorage facility described in

subparagraph (B) who violates subparagraph (6) shalf be civilly liable to the

owner of the vehicle or to the person who tendered the fees fat four times the

amount of the towing, storage, and related fees, bur not to exceed five hundred

dollars ($500).

"(D) A person operating or in charge of a storage facility described in

subparagraph (B) shall have sufficient funds on the premises of the primary

storage faciliry during normal business hours to accommodate, and make

change in, a reasonable monetary transaction.

"(E) Credit charges for rowing and storage services shall comply with

Seer ion ] 748.1 of the Civil Code. Law enforcement agencies may include the

costs of providing for payment by credit when making agreemenrs with towing

companies on rates.

Page 26: Police union sues L.A. over vehicle-impound policy change

Honorable Bill Emmerson -Request #1200017 - Page 4

"(3) The legal owner or the legal owner's agent presents a copy of the assignmenr, as defined in subdivision (b) of Section 7500.1 of the Business and Professions Codel a release from the one responsible governmenral agency,

only if required by the agency; a government-issued photographic identification card; and anyone of rhe following, as determined by the legal owner or rhe Jegal owner's agent: a cenificare of repossession for the vehicle, a securiry agreement for the vehicle, or title, whether paper or electronic, showing proof of legal

ownership for the vehicle, Any documents presented may be originals, photocopies, or facsimile copies, or may be transmitted electronically. The law enforcement agency, impounding agency, or any other governmental agency, or any person acting on behalf of those agencies, shall nor require any documents

to be notarized. The law enforcement agency, impounding agency, or any person acring on behalf of those agencies may require the agent of the legal owner [Q produce a phorocopy or facsimile copy of its repossession agency

license or registration issued pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code, or [Q

demonstrate, to the satisfaction of the law enforcement agency, impounding agency, or any person acting on behalf of those agencies, that the agent is exempt from licensure pursuant to Secrion 7500.2 or 7500.3 of the Business and Professions Code.

"No adminisrrarive COStS aurhorized under subdivision (a) of Section 22850,5 shall be charged to the legal owner of the type specified in paragraph (1), who redeems the vehicle unless the legal owner voluntarily requests a poststorage hearing. No city, county, city and county, or state agency shall require a legal owner or a legal owner's agent to request apoHstorage hearing as a requirement for release of the vehicle to the legal owner or the legal

owner's agent. The law enforcement agency, impounding agency, of other governmental agency, or any person acting on behalf of those agencies, shall not

require any documents other than those specified in this paragraph. The law enforcement agency, impounding agency, or other governmental agency, ot any person acting en behalf of rhose agencies, shall nor require any documents to be

notarized. The legal owner or the legal owner's agent shall be given aeepy of any documems he or she is required to sign, except for a vehicle evidentiary

hold logbook. The law enforcement agency, impounding agency, or any person acting on behalf of those agencies, or any person in possession of the vehicle, may photocopy and rerain the copies of any documents presented by .he legal owner or legal owner's agent.

"( 4) A failure by a storage facility to comply with any applicable . conditions set fotth in this subdivision shall not affect the right of the legal

owner or rhe legal owner's agent to rerrieve tbe vehicle, provided all conditions

required of fhe Jegal owner or legal owner's 51gent under this subdivision are sarisfied,

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Honorable Bill Emmerson -Request # 1200017 - Page 5

•••

nth) (1) A vehicle removed and seized under subdivision (a) shall be

released to a rental car agency prior to the end g£ 30 days' impoundment if the

agency is either the legal owner or registered owner of the vehicle and the

agency pays all towing and storage fees related to the seizure of the vehicle.

• • <" (Emphasis added.)

Thus, under paragr<lph (1) of subdivision (a) of Section 14602.6, a peace officer

has the discretion to impound a vehicle driven by a person who has never held a valid driver's

!icen.sc. In exercising this discretion, an omcer must follow srandard criteria (Green, supra, at

pp.372-373). "If an officer decides to exercise this authority, the vehicle is subject to a 30-day impoundment" (California Highway Patrol, supra, at p. 1152; Samples v, Brown (2007) 146.

CaJ.App.4rh 787,801; hereafter SamplES). Subdivisions (d), (f), and (h) require the release of

an impounded vehicle prior to the 30-day period to the registered owner, legal owner, or

rental car agency that owns the vehicle, under specified circumsrances. In addition,

subdivision (b) of Section 14602,6 "direcrs the impounding agency t~ consider facts or

situarions that might reduce the culpability of the owner and warrant an early release ofihe im pounded vehicle" (Samples, supra, at pp. 801-802). Hence, a finding that the "vehicle

owner's lack of accual knowledge regarding the unlicensed status of the driver is also a

mitigating circumstance" warranting early release (Id., at p. 805).

Turning to the question posed, both subdivision (p) of Section 22651 and

Secrion 14602.6 3uchorize the impoundment of a vehicle driven by a person who has never

been issued a valid driver's license. While Section 14602.6 specifies it mandatory 3D-day impoundment period, subdivision (p) of Section 22651 does nor. However, subdivision (p)

of Section 22651 applies generally to vehicles driven by drivers in violation of Section 12500,

which includes drivers whose driver's licenses have expired, while Section 14602.6 applies

only to those vehicles driven by drivers whose licenses were suspended or revoked, or by drivers who were never issued a driver's license. It is a "long-standing principle of statutory

construction [that] a special srarure governs over a general" (People v, Jacksoll (2005) 129

Cal.App.4th 129, 170). Hence, in regard to a vehicle driven by a person who has never been

issued a driver's license, it is our opinion thar Section 14602.6 would control.

Pursuant to Section 21 of the Vehicle Code, the state has preempted the field of

motor vehicle traffic regulation (Zack's, Inc. v. City of Sausalito (2008) 165 Cal.App.4th 1163,

1183). Subdivision (a) of Seerion 21 prohibits local governmems from waning or enforcing

an ordinance or resolution on matters covered by the Vehicle Code unless expressly

authorized by the Vehicle Code. In this case, paragraph (1) of subdivision (a) of

Section 14602.6 specifically gives a peace officer the discretion to determine whethel' ro

impound a vehicle driven by a person who has never been issued a driver's license; but if the

vehicle is impounded, requires the vehicle to be impounded for 30 days. Subdivisions (d), (f), and (h) of Section 14602.6 prescribe specific circumstances under which the impounded

vehicle could be released prior to ~he end of the 3D-day impoundment period (see Samples,

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Honorable Bill Emmerson -Request #1200017 - Page 6

supra, at p. 804). In addition, subdivision (b) of Section 14602.6 directs the impounding

agency to consider facts and situations that might reduce the culpability of the owner,

warranting an early release of the vehicle (Id., at pp. 801-802).1 Hence. the Vehicle Code

covers matters related to the impoundment of vehicles driven by persons who have never

been issued a driver's license and circumstances under which the impounded vehicle may be

released prior to the end of the mandatory impoundment period. Accordingly, pursuant to

Section 21. a local government may nor establish a policy through an ordinance or resolution

authorizing the early release of those impounded vehicles under circumstances not specified

in Section 14602.6.

In summary. Secfion 14602.6 grants d. peace officer the discretion to determine

whether a vehicle driven by a person who has never been issued a driver's license is to be

i~pounded. In exercising this discretion, the peace officer must follow standard criteria,

which may be established by the local government. Once the decision to impound the vehicle

is made, the vehicle is teguired to be impounded for 30 days.

While subdivision (p) of Section 22651 also provides for the impoundment of a

vehicle driven in violation of subdivision (a) of Secrion 12500, Section 14602.6, as a more

specific statute, would govern the impoundment of vehicles driven by a person who had never

been issued a driver's license. Because the Vehicle Code specifkally addresses the

impoundmem of vehicles driven by a person who has never been issued a driver's license and

specifies circumstances under which the impounded vehicle might be released prior [0 the

end of the mandatory 3D-day impoundment period, it has preempted these matters and a

local government may nor provide for the early release of that impounded vehicle in

circumstances not specified in Section 146026. Accordingly, in our opinion, a local government does not have the authority to

establish a policy authorizing the rdease of an impounded vehicle driven by a driver who has

never beet) issued a driver's license and who does not have a prior convicrion for driving

without a valid driver's license prior to the end of a 3D-day. impoundment period under

I The mirigating circumstance does not need ro justify or excuse the wrongful conduct

of the unlicensed driver (Samples, supra, at p. 801).

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Honorable Bill Emmerson -Request #1200017 - Page 7

circumstances not specified in subdivision (b), (d), (f). or (h) of Section 14602.6 of (he Vehicle Code. .

WKYC:pba

Very (mIy yours,

Diane F. Boyer-Vine

Legislative Counsel

-[LIL'· - . /~. . '/// v . (I

v'

By William Chan Deputy Legislative Counsel

Page 30: Police union sues L.A. over vehicle-impound policy change

STEVE COOLEY lOS ANGELES COUNTY DISTRICT ATIORNEY

i 8000 Clara Shortridge Foltz Crlmlnal Justice Genter· 210 West Temple Street· Los Angeles, CA 90012·3210 • (213) 974-3501

February 27,2012

Chief Charles E. Beck Los Angeles Police Department 100 West 1 sf Street L~OS Angeles C~ifomia 90012 L\ ........

Dear . eck:

This letter is in response to requests from several members of the Los Angeles County Police Chiefs Association made to the Los Angeles County District Attorney's Office. We are responding to all Los Angeles County Police Chiefs. The question essentially is, "should law enforcement agencies adopt policies prohibiting or restructuring the impounding of vehicles driven by unlicensed drivers?" In our view, such policies are contrary to state law and likely would create risks both to public safety and to public treasuries.

Doctrine of Preemption. It is a general rule oflaw in California that when the Legislature enacts statutes that occupy a particular field of law, cities and counties may not deviate from state law. A local ordinance or regulation that conflicts with state law is invalid.

The statutory provisions on impounding vehicles, such as those in Vehicle Code (VC) sections 14601 through 14607.8 and 22650 through 22856 (removal of vehicles), constitute a comprehensive statutory scheme that occupies the law on impounding vehicles in California, allowing only those areas of1acal regulation expressly permitted by statute. (Example: VC §22660 authorizes local ordinances for the removal of abandoned vehicles.)

To the extent that any local policy on vehicle impoundment conflicts with state law, the policy would be invalid under the doctrine of preemption. (0 'Connell v. City of Stockton (2007) 41Cal. 4th 1067-68.)

Civil Liability. Government Code (GC) section 815.6 provides as follows: "Where apub/ic entity is under a ma:ndatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty ... "

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· Chief Charles E. Beck Los Angles Police Chief Page 2

VC §14607.6(c)(1), for example, states that if a driver is unable to produce a valid driver's license as required by V C § 12951 (b), "the vehicle shaH be impounded regardless of ownership," unless licensure can be otherwise established (exception: newly-ena.cted VC §2814.2 restricts impounds at sobriety checkpoints only). Therefore, when an unlicensed driver fails to produce a license on demand during a traffic stop or at an accident scene, the vehicle "shall" be impounded. Does this statute create a mandatory duty?

"ShaD' is mandatory and 'may' is permissive." (VC §15; People v. Standish (2006) 38 Cal. 4th 858, 869.) "The legislature's use of 'shall' instead of 'may' in this section [J4607.6(c)(J)] indicates that it understands the distinction between the two words and acts deliberately in choosing its vocabulary." (CHP v. Superior Court (2008) 162 Cal.App.4th

1144, 1154.)

Was the purpose of the mandatory impoundment provision of VC § 14607.6 to prevent damage to lives and property by unlicensed drivers? The Legislature found: "Californians who comply with the law are frequently victims of traffic accidents caused by unlicensed driver. These innocent victims suffer considerable pain and properly loss at the hands of people who flaunt the law."· (VC §14607.4(e).)

The legislature further found: "It is necessary and appropriate to take additional steps to prevent unlicensed drivers .from driving, including the civil forfeiture of vehicles used by unlicensed drivers. The state has a critical interest in enforcing its traffic laws and in keeping unlicensed drivers from illegally driving. Seizing the velticles used by unlicensed drivers serves a significant governmental and public interest, namely the protection of the health, safety and welfare of Californians from the harm ofrmlicensed drivers, wlto are involved in a disproportionate number of traffic incidents, and the avoidance of the associated destruction and damage to lives and property." (VC §14607.4(f).)

Under the foregoing authorities, the failure of an agency to comply with the mandatory duty created by VC §14607.6(c)(1) to impound vehicles when unlicensed drivers are unable to produce a license as required by VC §12951(b) may endanger civllliability on the part of the agency under GC §815.6 for property damage, injury and death resulting from the operation of a vehicle by an unlicensed driver following the deliberate failure of the agency to impound the vehicle.

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Chief Charles E.Beck Los Angles Police Chief Page 3·

We recommend seeking the advice of your City Attorney Of the civil counsel when considering changes to your impound policy.

Very truly yours,

~~ STEVE COOLEY District Attorney

ss

c: Mr. Richard Tefank, Executive Director Los Angles Police Commission