Office
of Legislative Counsel says LAPD is wrong on impounds
League asks Chief not to implement illegal policy
LOS ANGELES, February 13, 2012 - The
California Office of Legislative Counsel today issued a
legal opinion that a vehicle driven by a person
who has never been issued a driver's license
should be impounded for 30 days and not one day, as proposed by the LAPD. The
opinion holds that law enforcement's job is to initiate the criminal process,
not determine the application of penalty or consequences to the violator,
before initiation of enforcement action.
In
a seven-page opinion provided to state Senator Bill Emmerson, the California
Legislative Counsel opinion was very clear. Unlicensed driving is a crime in
California and Vehicle
Code Section 14602.6, which calls for vehicles to be impounded for up to 30
days, is part of the penalty structure the state legislature established for
punishment of unlicensed driving.
"It
is a 'long-standing principle of statutory construction [that] a special
statute governs over a general," wrote William Chan, Deputy Legislative Counsel
regarding the clarification as to which Vehicle Code authority should apply to
which situation. "Hence, in regard to a vehicle driven by a person who
has never been issues a driver's license, it is our opinion that Section
14602.6 would control." The legal opinion from the lawyers to the Legislature of the State of California is
consistent with what the city attorney has been successfully arguing on behalf
of the LAPD in federal court: The current impound policy and procedure is legal
and justified.
The
Legislative Counsel's references to the findings of the legislature are
instructive. They make it clear the 30-day hold was enacted to prevent damage
to lives and property by unlicensed drivers. The legislature stated, "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
vehicles 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 of unlicensed drivers, who are involved in a
disproportionate number of traffic incidents, and the avoidance of the
associated destruction and damage to lives and property."
In
contrast, another part of the vehicle code allowing removal of vehicles, Vehicle Code ยง 22651(p),
was enacted to allow officers to quickly remove vehicles from the streets; it
was not intended to address unlicensed drivers but as the opinion clearly
states, would be the appropriate section for drivers whose licenses had
expired.
Los
Angeles Police Chief Charlie Beck stated a recent interview,
"All of our procedures have been run through the city attorney's office, their
opinion is that what we are doing is absolutely legal, their opinion is that
either section can apply, their opinion is that progressive penalty makes the
most sense. I don't do things in a vacuum. I have not only met with the city
attorney on this, I've met with the district attorney on this, I've met with
community groups, I've met with immigration rights groups, I've met with our
elected officials, discussed this with members of the media. You know, there
has been a lot of discussion and a lot of thought and if I had any inkling that
what we were doing was illegal or, or a hazard to the public, I
wouldn't do it."
"With
the release of the California Legislative Counsel opinion that the policy is
illegal, we ask the Chief to stand by his words that if he had any inkling that
what he was doing was illegal or a hazard to the public, that he would not do
it," said Tyler Izen, President of the Los Angeles Police Protective League.
"The proposed policy change jeopardizes public safety and welfare, as
well as the safety of our officers, exposes the City and its officers to
liability and the modification directly conflicts with and undermines the
official position taken by the City of Los Angeles," added Izen.
Founded
in 1913, the Office of Legislative
Counsel is a nonpartisan public agency that drafts legislative proposals,
prepares legal opinions, and provides other confidential legal services to the
Legislature and others. The office also provides computer services, data
networking, and related customer services to the Legislature. The Legislative
Counsel of California is Diane F. Boyer-Vine.
Contact: Eric Rose (805)
624-0572 or Paul Haney
(626) 755-4759
Formed in 1923, the Los
Angeles Police Protective League (LAPPL) represents the more than 9,900
dedicated and professional sworn members of the Los Angeles Police Department.
The LAPPL serves to advance the interests of LAPD officers through legislative and
legal advocacy, political action and education. The LAPPL can be found on the
Web at www.LAPD.com.