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1 EG1SI ATIV1: LO1INSE1. UHHE OF I r G I !> I. rt T 1 V b llli.

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Dune i: Boyer-Vine Siatc Capitol. Suite 3021


Sacramento. California 95814
r.uirr Hi' I'L l ils

JeflreyA D.Land TELEr«ONS (916)341-8000 .-V,..,


Daniel A. Wcitzman f*cslMIt[ Wl61 "341-8020 0 ■■■- ■
imi*m i www.legislativesounsel.ca.gov ' T '
FftinciFAi defuties email adrninistralion@legislativecoimsel.ca.gov _Lj£CZ $l&tl'V(>
Alvin D Gress <Sr^ 1
Michael J Kersten Counsel
Kirk< Louie ^-Ui r

;:;;:"*"" California
Cindy M. Cardullo
Edward Ned Cohen
Ben P:. Dale
Dcbra Zidich Gibbons
Patricia Han Joigensen , , 9Q «nn7
Michael R. Kelly May ZV, ZUU /
Diana G. Lim
Romulo 1. Lope;
Robert A. Pratt

jdfThom Honorable Gilbert A. Cedillo


Richard B Weisbcrg n nnn o /"* *. 1
Room 5100, State Capitol

Paul Antilla
Saiuiago Avila-Gomez

sconA BaxLer
Vanessa 3. Bedford
DRIVER'S LICENSE; VEHICLE IMPOUNDMENT - #0711154
Carrie [.. Brown
Ann M. Burastero
EileenJ. Buxtoo

Gw>-nnae l. Byrd t-j Senator Cedillo-


SergioE Cyrpio i-'Cai OLIiaLUl V^CUillO.
William Oian

Emilia cmrer You have asked, if a peace officer lawfully stops a motor vehicle on the highway and
Byron D Datnianijr. r It Z> 1
. Christopher Dawson the driver of the motor vehicle is an unlicensed driver, whether those facts alone are sufficient
Stephen G Dehrer
unda b. Dozier iustification for the peace officer to cause the impoundment of the motor vehicle.
KristaM. Ferns J l r ,
shanmr. Rsher Subdivision (a) of Section 12500 of che Vehicle Code' prohibits a person from
driving a motor vehicle upon a highway unless the person holds a valid driver's license issued
charioiie l. Hasse under the Vehicle Code or the person is expressly exempted from that prohibition. A person
Mdevs. He±r so licensed ts required to have the driver's license in his or her immediate possession at all times
Thomas R Heucr . . , . . , . . , . . , . . fit-'
Russell h. Holder when driving a motor vehicle upon a highway. A person is required to present the valid drivers

MananM Johnston license issued to him or her for examination upon the demand of a peace officer enforcing the
LoriAmjfflKf* Vehicle Code (Sec. 12951). A person who fails to hold a valid driver's license or fails to present
his or her driver's license for examination upon the demand of a peace officer is guilty of a
misdemeanor (subds. (b) and (h), Sec. 40000.11), and is subject to a fine not exceeding one
thousand dollars ($1,000), imprisonment in the county jail not exceeding six months, or both
SraAAMacia. such finc ancl imp^sonment (Sec. 42002).
Mariana Matin
Anthony P Marque?
Francisco A. Martin
Christine N. Maaiccia
Fred A Mes=erer
Cecilia A. Moddelmog
William I:. Moddelmog
Sheila R. Mohan
Abel Munoz

Man c.perez All further section references are to the Vehicle Code, unless otherwise indicated.
MichaelPinkmon For purposes of the Vehicle Code, "'[h]ighway' is a way or place of whatever nature,
Panda Gates Rhodes publicly maintained and open to the use of the public for purposes of vehicular traffic. Highway
Deborah J. Rotenberg ■ ij _"/C i en \
MichelleI samorc includes street. (Sec. 360.)
For purposes of this opinion, "unlicensed driver" means a driver who is driving while
his or her license is suspended, revoked, or expired, or who has never been issued a driver's license.
Mark Franklin Terry r r
Bradley N. Webb
Armin G Yazcii
lack Zorman
Honorable Gilbert A. Cedillo — Request #0711154 — Page 2

In addition to a person being subject to a fine and imprisonment for driving without
a valid driver's license, statutory authority exists for the impoundment or forfeiture of the
motor vehicle that is driven by an unlicensed driver (Sees, 14602,6 and 14607.6; para. (1), subd.
(h), and subd. (p), Sec. 22651).5
As to the impoundment of a motor vehicle, Section 14602.6 provides, in pertinent
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 her driving privilege is restricted pursuant to
Section 13352 or 23575 and the vehicle is not equipped with a functioning,
certified interlock device, or driving a vehicle without ever having been issued a
driver's license, the peace officer may either immediately arrest that person and
cause the removal and seizure of that vehicle or, if the vehicle is involved in a
traffic collision, cause the removal and seizure of the vehicle without the necessity
of arresting the person in accordance with Chapter 10 (commencing with
Section 22650) of Division 11. A vehicle so impounded shall be impounded for
30 days.
"(2) The impounding agency, within two working days of impoundment,
shall send a notice by certified mail, return receipt requested, to the legal owner
of the vehicle, at the address obtained from the department, informing the owner
that the vehicle has been impounded. Failure to notify the legal owner within two
working days shall prohibit the impounding agency from charging for more than
15 days' impoundment when the legal owner redeems the impounded vehicle.
The impounding agency shall maintain a published telephone number that
provides information 24 hours a day regarding the impoundment of vehicles and
the rights of a registered owner to request a hearing.
"(b) The registered and legal owner of a vehicle that is removed and seized
under subdivision (a) or their agents shall be provided the opportunity for a
storage hearing to determine the validity of, or consider any mitigating
circumstances attendant to, the storage, in accordance with Section 22852.

Various statutes provide enhanced sanctions for driving without a license under
particular factual situations (see Ch. 4 (commencing with Sec. 14600), Div. 6).
Section 14607.4 contains legislative findings and declarations regarding the state's
interest in enforcing its traffic laws and keeping unlicensed drivers from illegally driving, including
the statement that "[sjeizing 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."
Honorable Gilbert A. Cedillo — Request #0711154 — Page 3

"(c) Any period in which a vehicle is subjected to storage under this section
shall be included as part of the period of impoundment ordered by the court
under subdivision (a) of Section 14602.5.
"(d) (1) An impounding agency shall release a vehicle to the registered
owner or his or her agent prior to the end of 30 days' impoundment under any of
the following circumstances:
"(A) When the vehicle is a stolen vehicle.
"(B) When the vehicle is subject to bailment and is driven by an unlicensed
employee of a business establishment, including a parking service or repair
garage.

"(C) When the license of the driver was suspended or revoked for an
offense other than those included in Article 2 (commencing with Section 13200)
of Chapter 2 of Division 6 or Article 3 (commencing with Section 13350) of
Chapter 2 of Division 6,
"(D) When the vehicle was seized under this section for an offense that
does not authorize the seizure of the vehicle.
"(E) When the driver reinstates his or her driver's license or acquires a
driver's license and proper insurance,
"(2) No vehicle shall be released pursuant to this subdivision without
presentation of the registered owner's or agent's currently valid driver's license to
operate the vehicle and proof of current vehicle registration, or upon order of a
court.

Accordingly, Section 14602.6, in pertinent part, authorizes a peace officer who


determines that a person is driving a vehicle without ever having been issued a driver's license,
or on a suspended or revoked license, to either immediately arrest the person and cause the
removal and seizure of the vehicle or, if the vehicle is involved in a traffic collision, cause the
removal and seizure of the vehicle without the necessity of arresting the person. A vehicle
impounded under this authority is required to be impounded for 30 days (para. (1), subd. (a),
Sec. 14602.6). Provisions are made for notifying the registered and legal owner and providing a
storage hearing (para. (2), subd. (a), and subd. (b), Sec, 14602,6). The section also requires the
impounding agency to release a vehicle to the registered owner prior to the end of the
mandatory 30 days' impoundment under the circumstances set forth under paragraph (1) of

A California court of appeal has held that Section 14602.6 is not unconstitutional on
its face, in response to claims of vagueness, a violation of the separation of powers doctrine, and a
violation of the equal protection clause (Samples v. Brown (2007) 146 Cal.App.4th 787, mod, and
rehg. den. 2007 Cal.App. LEXIS 112).
Honorable Gilbert A. Cedillo — Request #0711154 — Page 4

subdivision (d), including when the driver reinstates his or her driver's license or acquires a
driver's license and proper insurance (see subpara. (E), para. (1), subd. (d), Sec. 14602.6),
When the person driving a motor vehicle does not have a driver's license, the
removal of the motor vehicle can occur pursuant to paragraph (1) of subdivision (h), and
subdivision (p) of Section 22651, which provide as follows:

"22651. Any peace officer, as defined in Chapter 4,5 (commencing with


Section 830) of Title 3 of Part 2 of the Penal Code, or any regularly employed
and salaried employee, who is engaged in directing traffic or enforcing parking
laws and regulations, of a city, county, or jurisdiction of a state agency in which a
vehicle is located, may remove a vehicle located within the territorial limits in
which the officer or employee may act, under any of the following circumstances:

"(h) (1) When an officer arrests any person driving or in control of a vehicle
for an alleged offense and the officer is, by this code or other law, required or
permitted to take, and does take, the person into custody.

"(p) When the peace officer issues the driver of a vehicle a notice to appear
for a violation of Section 12500,[7) 14601, 14601.1, 14601.2, 14601.3, 14601.4,
14601,5, or 14604 and the vehicle has not been impounded pursuant to Section
22655,5. Any vehicle so removed from the highway or any public lands, or from
private property after having been on a highway or public lands, shall not be
released to the registered owner or his or her agent, except upon presentation of
the registered owner's or his or her agent's currently valid driver's license to
operate the vehicle and proof of current vehicle registration, or upon order of a
court.

See discussion below.


'Sections 14601, 14601.1, 14601.2, 14601.3, 14601.4, 14601.5, and 14604 involve,
among other offenses, driving when a driving privilege is suspended or revoked, or knowingly
allowing a person to drive a motor vehicle when the legal owner of the motor vehicle has not
determined that the person possesses a valid driver's license. Section 22655.5 permits a peace office
to remove a vehicle from public or private property when the officer has probable cause to believe
that the vehicle was used as a means to commit a public offense, the vehicle itself is evidence tending
to show a crime has been committed, or the vehicle contains evidence that cannot be readily
removed tending to show a crime has been committed.
Honorable Gilbert A, Cedillo — Request #0711154 — Page 5

Section 22651, therefore, authorizes a defined peace officer and certain city, county,
or state employees to remove a vehicle located within the territorial limits in which the officer
or employee may act, under enumerated circumstances. Paragraph (1) of subdivision (h) of
that section allows for the removal of a vehicle upon the custodial arrest of a person. The
authorized removal of a motor vehicle under subdivision (p) of Section 22651 for the failure to
have a driver's license has been characterized by the courts as an impoundment of that vehicle
(People v. Salcero (1992) 6 Cal.App.4th 720, 723(hereafter Salcero)),
Regarding the forfeiture of a motor vehicle pursuant to impoundment, Section
14607.6 provides, in pertinent part, as follows:

"14607.6. (a) Notwithstanding any other provision of law, and except as


provided in this section, a motor vehicle is subject to forfeiture as a nuisance if it
is driven on a highway in this state by a driver with a suspended or revoked
license, or by an unlicensed driver, who is a registered owner of the vehicle at the
time of impoundment and has a previous misdemeanor conviction for a violation
of subdivision (a) of Section 12500 or Section 14601, 14601.1, 14601.2, 14601.3,
14601.4, or 14601.5.
"(b) A peace officer shall not stop a vehicle for the sole reason of
determining whether the driver is properly licensed.
"(c) (1) If a driver is unable to produce a valid driver's license on the
demand of a peace officer enforcing the provisions of this code, as required by
subdivision (b) of Section 12951, the vehicle shall be impounded regardless of
ownership, unless the peace officer is reasonably able, by other means, to verify
that the driver is properly licensed. Prior to impounding a vehicle, a peace officer
shall attempt to verify the license status of a driver who claims to be properly
licensed but is unable to produce the license on demand of the peace officer.
"(2) A peace officer shall not impound a vehicle pursuant to this subdivision
if the license of the driver expired within the preceding 30 days and the driver
would otherwise have been properly licensed.
"(3) A peace officer may exercise discretion in a situation where the driver
without a valid license is an employee driving a vehicle registered to the employer
in the course of employment. A peace officer may also exercise discretion in a
situation where the driver without a valid license is the employee of a bona fide
business establishment or is a person otherwise controlled by such an
establishment and it reasonably appears that an owner of the vehicle, or an agent
of the owner, relinquished possession of the vehicle to the business establishment
solely for servicing or parking of the vehicle or other reasonably similar situations,
and where the vehicle was not to be driven except as directly necessary to
accomplish that business purpose. In this event, if the vehicle can be returned to
or be retrieved by the business establishment or registered owner, the peace
officer may release and not impound the vehicle.
Honorable Gilbert A, Cedillo — Request #0711154 — Page 6

"(4) A registered or legal owner of record at the time of impoundment may


request a hearing to determine the validity of the impoundment pursuant to
subdivision (n),
"(5) If the driver of a vehicle impounded pursuant to this subdivision was
not a registered owner of the vehicle at the time of impoundment, or if the driver
of the vehicle was a registered owner of the vehicle at the time of impoundment
but the driver does not have a previous conviction for a violation of subdivision
(a) of Section 12500 or Section 14601, 14601.1, 14601.2, 14601.3, 14601,4, or
14601.5, the vehicle shall be released pursuant to this code and is not subject to
forfeiture.
"(d) (1) This subdivision applies only if the driver of the vehicle is a
registered owner of the vehicle at the time of impoundment. Except as provided
in paragraph (5) of subdivision (c), if the driver of a vehicle impounded pursuant
to subdivision (c) was a registered owner of the vehicle at the time of
impoundment, the impounding agency shall authorize release of the vehicle if,
within three days of impoundment, the driver of the vehicle at the time of
impoundment presents his or her valid driver's license, including a valid
temporary California driver's license or permit, to the impounding agency. The
vehicle shall then be released to a registered owner of record at the time of
impoundment, or an agent of that owner authorized in writing, upon payment of
towing and storage charges related to the impoundment, and any administrative
charges authorized by Section 22850.5, providing that the person claiming the
vehicle is properly licensed and the vehicle is properly registered. A vehicle
impounded pursuant to the circumstances described in paragraph (3) of
subdivision (c) shall be released to a registered owner whether or not the driver
of the vehicle at the time of impoundment presents a valid driver's license.
"(2) If there is a community property interest in the vehicle impounded
pursuant to subdivision (c), owned at the time of impoundment by a person
other than the driver, and the vehicle is the only vehicle available to the driver's
immediate family that may be operated with a class C driver's license, the vehicle
shall be released to a registered owner or to the community property interest
owner upon compliance with all of the following requirements:
"(A) The registered owner or the community property interest owner
requests release of the vehicle and the owner of the community property interest
submits proof of that interest.
"(B) The registered owner or the community property interest owner
submits proof that he or she, or an authorized driver, is properly licensed and
that the impounded vehicle is properly registered pursuant to this code.
"(C) All towing and storage charges related to the impoundment and any
administrative charges authorized pursuant to Section 22850.5 are paid.
"(D) The registered owner or the community property interest owner signs
a stipulated vehicle release agreement, as described in paragraph (3), in
Honorable Gilbert A. Cedillo — Request #0711154 — Page 7

consideration for the nonforfeiture of the vehicle. This requirement applies only
if the driver requests release of the vehicle.
"(3) A stipulated vehicle release agreement shall provide for the consent of
the signator to the automatic future forfeiture and transfer of title to the state of
any vehicle registered to that person, if the vehicle is driven by a driver with a
suspended or revoked license, or by an unlicensed driver. The agreement shall be
in effect for only as long as it is noted on a driving record maintained by the
department pursuant to Section 1806.1.
"(4) The stipulated vehicle release agreement described in paragraph (3)
shall be reported by the impounding agency to the department not later than 10
days after the day the agreement is signed.
"(5) No vehicle shall be released pursuant to paragraph (2) if the driving
record of a registered owner indicates that a prior stipulated vehicle release
agreement was signed by that person.

Thus, subdivision (a) of Section 14607.6 provides that a motor vehicle is subject to
forfeiture as a nuisance if it is driven on a highway in the state by a driver with a suspended or
revoked license, or by an unlicensed driver, who is the registered owner at the time of
impoundment but has a previous misdemeanor conviction for a violation of specified provisions
of the Vehicle Code relating to driving without a valid driver's license.
Subdivision (c) of Section 14607,6 requires the vehicle to be impounded if a driver is
unable to produce a valid driver's license on the demand of a peace officer enforcing the Vehicle
Code, unless the peace officer is reasonably able to verity that the driver is properly licensed, or
unless other specified circumstances are determined. If the driver is not a registered owner of
the vehicle at the time of impoundment, or if the driver of the vehicle is a registered owner of
the vehicle at the time of impoundment but the driver does not have a prior conviction for one
of the listed misdemeanor violations relating to driving without a valid driver's license, the
vehicle is required to be released and is not subject to forfeiture (para. (5), subd. (c), Sec.
14607.6).
Subdivision (d) of Section 14607.6 provides for the release of a motor vehicle
impounded under that section in specified instances when the driver of the motor vehicle is the
registered owner of the vehicle at the time of the impoundment.

Section 14607.8 requires a court to inform a defendant who is convicted of a first


misdemeanor violation of an offense listed in subdivision (a) of Section 14607.6 that, pursuant to
the section, a motor vehicle is subject to forfeiture as a nuisance if it is driven on a highway in this
state by a driver with a suspended or revoked license, or by an unlicensed driver, who is a registered
owner of the vehicle and has a previous misdemeanor conviction for one of those offenses.
Honorable Gilbert A, Cedillo — Request #0711154 — Page 8

Thus, Sections 14602.6, 22651, and 14607.6, on their face, authorize a peace officer
to order the impoundment of a motor vehicle based on the fact that the driver of that motor
vehicle is an unlicensed driver. However, recent federal and state judicial decisions indicate that
this statutory authority alone is not constitutionally sufficient for the impoundment of a motor
vehicle (see United States v. Coccia (1st Cir. 2006) 446 F.3d 233, cert, denied 166 U.S. 769
(hereafter Coccia); Miranda v. City of Cornelius (9th Cir. 2005) 429 F.3d 858 (hereafter Miranda);
People v. Williams (2006) 145 Cal.App.4th 756 (hereafter Williams)),
In Coccia, supra, at page 236, a psychiatrist prepared an order directing that the
defendant be taken from the psychiatrist's property by ambulance for involuntary commitment
and psychiatric evaluation because the defendant was considered a danger to himself and
others. After the defendant was taken away, the police officers arranged to have the defendant's
car towed from the psychiatrist's property to the police department's impoundment lot. A
subsequent inventory search of the vehicle revealed knives, a replica pistol, and a rifle case. The
rifle case was searched after a search warrant was obtained, and found to contain an assault rifle
and approximately 1,300 rounds of ammunition (Ibid.). The defendant, on appeal from a
conviction for the unlawful possession of firearms, challenged the towing of the vehicle from the
psychiatrist's property as an unreasonable seizure in violation of the Fourth Amendment to the
United States Constitution (Id., at p. 237). The government's response to that challenge was
that the decision by the police officers to impound the car was a reasonable exercise of the police
officers' community caretaking function (Ibid.).
In this regard, the court in Coccia set forth, at pages 237 and 238, the following
discussion:

"Generally, a law enforcement officer may only seize property pursuant to a


warrant based on probable cause describing the place to be searched and the
property to be seized, (citations omitted]. There are, however, exceptions to this
requirement, including the community caretaking exception, [citations omitted].
The community caretaking exception recognizes that the police perform a
multitude of community functions apart from investigating crime. In performing
this community caretaking role, police are expected to aid those in distress,
combat actual hazards, prevent potential hazards from materializing and provide
an infinite variety of services to preserve and protect public safety.' .., [citations
omitted.] Relevant here, the community caretaking function encompasses law
enforcement's authority to remove vehicles that impede traffic or threaten public
safety and convenience, [citations omitted.]" (Emphasis added.)

The court further noted that:

"[CJourts, including this one, have frequently held that impoundments of


vehicles for community caretaking purposes are consonant with the Fourth
Amendment so long as the impoundment decision was reasonable under the
circumstances ... and not [based] exclusively on the suspicion of criminal
activity." (Id., at p. 239.)
Honorable Gilbert A, Cedillo — Request #0711154 — Page 9

The court held that the impoundment of the motor vehicle did not violate
Massachusetts law and was consistent with the community caretalcing doctrine (Coccia, supra,
at p. 241). In finding that the seizure of the vehicle was consistent with that doctrine, several
justifiable reasons for the tow were asserted by the court, including, but not limited to, the
possibility of theft or vandalism to the vehicle and its belongings, avoidance of a future
confrontation between the defendant and the doctor, and the lack of any obvious alternative
means for removing the vehicle (Id., at p. 240). In conclusion, the court found that the officers
acted reasonably under the Fourth Amendment by towing the defendant's car from the
doctor's property (Id., at p. 241).
In Miranda, supra, at page 858, the United States Court of Appeals for the Ninth
Circuit considered a case out of Oregon in which a police officer impounded a vehicle from the
owner's driveway after the officer suspected the driver was impaired or improperly licensed
based on slow and poor driving observed by the officer. The defendant drove the vehicle into
her driveway when the officer pulled her over (Id., at p. 861). Upon learning that the defendant
did not have a driver's license, the officer cited her for driving without a license, and cited her
husband for permitting the operation of a vehicle by an unlicensed driver. Pursuant to a city
ordinance that authorized an officer to tow a vehicle without prior notice if the officer has a
reasonable belief that the driver is operating without a valid driver's license, the officer had the
vehicle towed. The court held that "under the special circumstances of this case, the
impoundment of [the] vehicle was an unreasonable seizure not justified by the community
caretaking doctrine because the police have no duty to protect a vehicle parked on the owners'
property and there was no reason to believe that impoundment would prevent any threat to
public safety from its unlawful operation beyond the brief period during which the car was
impounded." (Id., at p. 860). Citing South Dakota v. Opperman (1976) 428 U.S. 364 (hereafter
Opperman), the Miranda court recognized that police in their community caretaking function

The Opperman court, supra, at pages 368 and 369, described this police function as
follows:

"In the interests of public safety and as part of what the Court has called
'community caretaking functions,' (citations omitted) automobiles are frequently
taken into police custody. Vehicle accidents present one such occasion. To permit
the uninterrupted flow of traffic and in some circumstances to preserve evidence,
disabled or damaged vehicles will often be removed from the highways or streets at
the behest of police engaged solely in caretaking and traffic-control activities.
"Police will also frequently remove and impound automobiles which violate
parking ordinances and which thereby jeopardize both the public safety and the
efficient movement of vehicular traffic, [fn. omitted] The police authority to seize
and remove from the streets vehicles impeding traffic or threatening public safety
and convenience is beyond challenge."
Honorable Gilbert A, Cedillo — Request #0711154 — Page 10

may impound vehicles that "jeopardize public safety and the efficient movement of vehicular
traffic" (Miranda, supra, at p. 864). Whether an impoundment is warranted under this doctrine
depends upon the location of the vehicle and the police officer's duty to prevent it from creating
a hazard to other drivers or being a target for theft or vandalism (Id,, at p. 864), The court
emphasized "... that the decision to impound pursuant to the authority of a city ordinance and
statute does not, in and of itself, determine the reasonableness of the seizure under the Fourth
Amendment as applied to the states by the Fourteenth Amendment" (Id., at p. 864),
As the court in Miranda further explained, the question for the court upon review of
a state-approved search or seizure is not whether the search or seizure is authorized by state
law, but rather whether the search or seizure is reasonable under the Fourth Amendment. The
court elaborated as follows:

"An impoundment may be proper under the community caretaking


doctrine if the driver's violation of a vehicle regulation prevents the driver from
lawfully operating the vehicle, and also if it is necessary to remove the vehicle
from an exposed or public location [citations omitted] ('After determining that
neither Gutierrez nor Cervantes possessed a valid driver's license, the officers
advised them that they were free to go, but that they could not drive the
Cadillac.'); [citations omitted] ('Upon ascertaining that neither occupant was
properly licensed to drive, the decision not to let the vehicle continue on its
journey was quintessentially reasonable,'). The violation of a traffic regulation
justifies impoundment of a vehicle if the driver is unable to remove the vehicle
from a public location without continuing its illegal operation.
"On the other hand, a decision to impound a vehicle that is not consistent
with the police's role as 'caretaker' of the streets may be unreasonable." (Miranda,
supra, at p, 865.)

Upon viewing the evidence, the court in Miranda, supra, at page 868, determined that
the impoundment was an unreasonable seizure because the impoundment did not satisfy any
acceptable purpose under the community caretaking doctrine.
In Williams, supra, at pages 759 and 760, the California Court of Appeal, Second
Appellate District, reviewed a case in which a peace officer stopped a man for driving without a

The ruling by the Ninth Circuit Court in Miranda, although persuasive and entitled to
great weight by the courts of this state, is not binding on the courts of this state even though the
ruling is based on federal questions, including questions of unlawful search or seizure under the
Fourth Amendment (People v. Madrid (1992) 7 Cal.App.4th 1888, 1895, cert, denied 508 U.S. 915;
In re Whiteborn (1969) 1 Cal.3d 504, 511, fn. 2; People v. Estrada (1965) 234 Cal.App.2d 136, 145).
The Miranda decision, however, is binding on the lower federal courts in the Ninth Circuit,
including California (hitman v. Massachusetts Mut. Life Ins. Co. (11th Cir. Fla. 1987) 825 F.2d 1506,
1509).
Honorable Gilbert A. Cedillo — Request #0711154 — Page 11

seat belt who parked his car following that stop at the curb in front of his residence. The man
presented the peace officer with a valid driver's license (Id,, at p. 759). The peace officer placed
the man under arrest on an outstanding arrest warrant and impounded his car under paragraph
(1) of subdivision (h) of Section 22651 because "the driver in control of that vehicle was being
arrested" (Id., at pp. 759-760). The car was legally parked and not a traffic hazard, although it
was located some distance away from the curb. The court observed that the peace officer
admitted that the car could have been locked and left where the man parked it, but the peace
officer did not give the man the opportunity to do so, and immediately decided to impound the
car (Ibid.).
As in the Coccia and Miranda cases, the Williams court emphasized that the
impoundment must serve the community caretaking function rationale of Opperman, which
depends on the location of the vehicle and the police officer's duty to prevent the vehicle from
creating a hazard to other drivers or being a target for vandalism or theft (Williams, supra, at
pp.761, 763). As the court noted, the statutory authorization for the impoundment may
constitute a standard policy guiding the peace officer's discretion, but it does not end the
inquiry, and the peace officer must assert a community caretaking justification for the
impoundment (Id., at p. 763). The court observed the following, at pages 762 and 763, when it
concluded that a community caretaking justification did not exist:

"No community caretaking function was served by impounding appellant's


car. The car was legally parked at the curb in front of appellant's home. The
possibility that the vehicle would be stolen, broken into, or vandalized was no
greater than if [the peace officer] had not stopped and arrested appellant as he
returned home. In this regard, it is significant that other cars were parked on the
street and that it was a residential area. The prosecution made no showing that
the car was blocking a driveway or crosswalk, or that it posed a hazard or
impediment to other traffic. Because appellant had a valid driver's license and the
car was properly registered, it was not necessary to impound it to prevent
immediate and continued unlawful operation. (Cf. People v. Benites (1992) 9
Cal.App.4th 309 [11 Cal. Rptr. 2d 512] [impoundment proper where neither
driver nor passenger had valid driver's license]; People v. Burch (1986) 188
Cal.App.3d 172 [232 Cal. Rptr. 502] [impoundment proper where car's
registration tag was expired and driver's license was suspended].) No other
justification that would further a community caretaking function was offered or
supported by evidence. Indeed, [the officer] admitted he decided to impound the
car simply because he was arresting appellant and almost always impounded the
cars of drivers he arrested. The prosecution simply did not establish that
impounding appellant's car served any community caretaking function. It
therefore failed to establish the constitutional reasonableness of the seizure [of
the car] and subsequent inventory search."

Williams was decided in 2006. The decision in Williams neither cites nor discusses the
1992 decision in Salcero by the California Court of Appeal, Third Appellate District, but does
Honorable Gilbert A. Cedillo — Request #0711154 — Page 12

cite the decision in People v. Benites (1992) 9 Cal.App.4th 309 (hereafter Benites) by the
California Court of Appeal, Fifth District. In Salcero, the California Court of Appeal reinstated
a complaint dismissed by the magistrate because of a search of the defendant's tote bag. A
peace officer stopped the defendant for a traffic violation. The defendant did not have a driver's
license. The peace officer cited the defendant and told the defendant he was free to leave, but
that the car and its contents were impounded and would be inventoried. The defendant asked
for his tote bag, and when told it was to be opened, appeared nervous. The peace officer
"...wanted to inventory the bag before he decided whether to release it and testified that before
opening the bag, he felt clothes and a hardness inside of it" (Id., at p. 722). The officer found a
cellophane package containing 12 ounces of cocaine. The defendant was arrested and taken
into custody and the car impounded pursuant to subdivision (p) of Section 22651. In 1991 and
1992, subdivision (p) of Section 22651 read as follows:

"22651. Any peace officer, as defined in Chapter 4.5 (commencing with


Section 830 of Title 3 of Part 2 of the Penal Code; or any regularly employed and
salaried employee, who is engaged in directing traffic or enforcing parking laws
and regulations, of a city or a county in which a vehicle is located, may remove a
vehicle located within the territorial limits tn which the officer or employee may
act, under any of the following circumstances:

"(p) When the peace officer issues the driver of a vehicle a notice to appear
for a violation of Section 12500, 14601, 14601.1, or 14601.2 and there is no
passenger in the vehicle who has a valid driver's license and authorization to
operate the vehicle. Any vehicle so removed from the highway or any public
lands shall not be released to the registered owner or his or her agent, except
upon presentation of the registered owner's or his or her agent's currently valid
driver's license to operate the vehicle and proof of current vehicle registration, or
upon order of a court.

In Salcero, the court stated, "The officer could properly impound the car when he
discovered defendant had no driver's license, (Veh. Code, §. 22651, subd. (p),) There is no
evidence he abused his discretion in doing so" (Id., at p. 723), The court did not state that there
was no passenger, but presumably there was none; that fact and subdivision (p) of Section
22651, as it read at the time of the arrest, were evidently sufficient in the court's view to
authorize impoundment. The court did not mention the community caretaking doctrine.

See, respectively, Chapter 189 of the Statutes of 1991 and Chapter 1242 of the
Statutes of 1992.
Honorable Gilbert A. Cedillo — Request #0711154 — Page 13

In Benites, the defendant driver was arrested with a passenger for various felonies
after a routine traffic stop. Neither the defendant nor his passenger had a valid driver's license;
both had suspended driver's licenses. The deputy sheriff decided to impound the car and
conduct an inventory search, which resulted in the discovery of a loaded shotgun and other
evidence. The defendant moved to suppress the evidence, based on a claim that the officer's
decision to impound the vehicle was improper and therefore the evidence seized in the
inventory search had to be excluded (Id., at p. 312). The impoundment was done pursuant to
subdivision (p) of Section 22651 (Id., at p. 327), which at the time of the arrest read as it did in
1992 (see Ch. 1008, Stats. 1988).
The court in Benites found that the deputy's impoundment of the vehicle was
reasonable under the circumstances (Id., at p. 327). The officer had testified that, after he
learned that the passenger lacked a valid license, he felt impoundment was his only option based
on the circumstances: the van and trailer were parked off the highway approximately three
miles from Jamestown and any public phones; it was a dark, lonely, and isolated stretch of road;
there was the possibility that the defendant would simply drive off once the officer left; it was
very late at night; and the van and trailer could be vandalized if left on the highway (Id., at p.
326). Further, the court held that "[w]hile the department lacked a written policy on
impoundment, the deputies are clearly given parameters under which to exercise their
discretion pursuant to Vehicle Code section 22651, subdivision (p)" (Id., at pp. 327-328). As in
Salcero, the court did not discuss the community caretaking doctrine. However, in our opinion,
the facts found by the court in Benites would meet the requirements of that doctrine permitting
an impoundment of the vehicle under the Fourth Amendment to the Constitution of the
United States.
In Williams, the respondent, citing Colorado v. Bertine (1987) 479 U.S. 367, argued
that the seizure was permissible because it was conducted according to statutory criteria,
namely paragraph (1) of subdivision (h) of Section 22651 of the Vehicle Code. The court
rejected this argument, stating as follows:

This argument was accepted in People v. Miller (2006) 2006 Cal.App. Unpub. LEXIS
6721, in an unpublished opinion. The court in Miller stated as follows:

"California courts, including this one, have recognized Vehicle Code section
22651 provides standardized criteria for impounding a vehicle within the meaning of
Colorado v. Bertine. (People v. Green (1996) 46 Cal.App.4th 367, 373, 375; People v.
Benites, supra, 9 Cal.App.4th at pp. 327-328; People v. Salcero (1992) 6 Cal.App.4th
720, 723.) Other statutes may similarly provide the required criteria for
impoundment. It was not necessary that the Nevada City Police Department have
any additional policy establishing further standard criteria. An officer's discretion to
impound is not limitless in the absence of such additional police department policy,
but is guided by the standards of section 22651 and other related statutes."
(Emphasis added.)
(continued...)
Honorable Gilbert A. Cedillo — Request #0711154 — Page 14

"... However, Bertine did not abandon the community caretaking function
rationale of Opperman. Indeed, Bertine cited Opperman and the community
caretaking purposes articulated therein. (Bertine, supra, 479 U.S. at pp. 371-372.)
The Bertine court noted that the Boulder police exercised their discretion to
impound Bertine's van 'in light of standardized criteria, related to the feasibility
and appropriateness of parking and locking a vehicle rather than impounding it.'
(Id., at pp. 375-376.) The court further explained that the officers acted
according to a Boulder police directive establishing 'several conditions that must
be met before an officer may pursue the park-and-lock alternative. For example,
police may not park and lock a vehicle where there is reasonable risk of damage or
vandalism to the vehicle or where the approval of the arrestee cannot be obtained.
[Citation.] not only do such conditions circumscribe the discretion of individual
officers, but they also protect the vehicle and its contents and minimize claims of
property loss'. [Citation.]
"Clearly, Bertine does not validate any impoundment that falls within
Vehicle Code section 22651. The impoundment must still serve a community
caretaking function. At best, the statute may constitute a standardized policy
guiding officers' discretion. It does not, however, end the inquiry. By [the
officer's] own admission, he impounded appellant's car simply because he was
taking appellant into custody. [The officer] did not assert any community
caretaking justification for the impoundment, and in light of the evidence at the
hearing, no such justification existed." (Id., at pp. 167-168.)

Based on the reasoning and holding of the court in Williams, the lack of any
discussion of the community caretaking function in Salcero, the facts and discussion of
justification in Benites, and the recent federal cases of Coccia and Miranda, we conclude that the
community caretaking justification must be met in order for a peace officer to validly exercise
his or her statutory authority to impound a vehicle after citing the driver for being an
unlicensed driver, when there is no basis for a seizure of the vehicle under the Fourth
Amendment to the United States Constitution.
A remaining issue is whether there is any basis under the Fourth Amendment for a
seizure of the vehicle in connection with a forfeiture pursuant to a violation of subdivision (a) of
Section 14607.6. As discussed above, subdivision (a) of Section 14607.6 provides that a motor
vehicle is subject to forfeiture as a nuisance if it is driven on a highway in the state by a driver
with a suspended or revoked license, or by an unlicensed driver, who is the registered owner at

(...continued)

Under Rule 8.1115 of the California Rules of Court, except for certain circumstances
not relevant to this opinion, an opinion of a California court of appeal that is not certified for
publication or ordered published may not be cited or relied on by a court or a party in any other
action.
Honorable Gilbert A. Cedillo — Request #0711154 — Page 15

the time of impoundment and who has a previous misdemeanor conviction for a violation of
specified provisions of the Vehicle Code relating to driving without a valid driver's license (see
fn. 9). In addition to stating the vehicle is subject to forfeiture, paragraph (6) of subdivision (e)
of Section 14607.6 provides that "[a]ll right, title, and interest in the vehicle shall vest in the
state upon the commission of the act giving rise to the forfeiture."
In People v. One 1986 Cadillac Deville (1999) 70 Cal. App.4th 157, at page 163, the
court held that the trial court had discretion to deny forfeiture under Section 14607.6, even
though the vehicle is "subject to forfeiture." Further, under paragraph (1) of subdivision (d) of
Section 14607.6, even if the driver of the impounded vehicle was a registered owner at the time
of the impoundment, the impounding agency is required to authorize release of the vehicle if,
within three days of impoundment, the driver of the vehicle at the time of impoundment
presents his or her valid driver's license, including a valid temporary California driver's license
or permit, to the impounding agency. The implicit policy of the statute is to permit a cure,
which is also consistent with the statute's characterization of the problem that the statute
addresses: the vehicle driven by an unlicensed driver is "subject to forfeiture as a nuisance ..."
(subd. (a), Sec. 14607.6). In general, the remedy for nuisance is abatement, and when the driver
becomes licensed, the nuisance is, in effect, abated (People v. One 1986 Cadillac Deville, supra, at
p. 162).
The district attorney in People v. One 1986 Cadillac Deville argued "that discretion to
deny forfeiture is inconsistent with a purpose of the statute, to deter those convicted of a public
offense involving driving without a license from driving with an invalid license" (Id., at p. 162).
Finding the argument unpersuasive, the court stated the following:

"Regardless of the possibility of avoiding forfeiture, there is a significant


deterrent in the costs and inconvenience inherent in impoundment and retention
of the vehicle and participation in litigation to retrieve it. Moreover, there is no
assurance the court will exercise its discretion to return the vehicle in any
particular case. Mitigating or aggravating factors bear on the decision, e.g.,
whether the driver knew the license was invalid." (Id,, at p. 163.)

In Sanders v. United States (5th Cir. 1953) 201 F.2d 158, the court held there was no
violation of the Fourth Amendment when there is no need for a search warrant and the title to
the property has passed to the United States by forfeiture (Id., at p. 159), In Sanders v. United
States, the claimant requested return of an automobile seized by an officer of the United States
who saw the property used in violation of the Internal Revenue Code (Ibid.). The Internal
Revenue Code violation related to using the automobile to remove or conceal alcohol in respect
whereof a tax was imposed (then 26 U.S.C. Sec, 3116), The Internal Revenue Code provided
that no property right existed in such property as a matter of law (then 26 U.S.C. Sec, 3321),
However, in People v. Board (1932) 216 Cal, 1, the California Supreme Court stated that even if
a statute declares that a forfeiture takes place on the commission of the offense, the forfeiture is
not fully and completely operative and effective, and the title of the state is inchoate or
incomplete until such time as there is a judicial determination of the forfeiture (Id., at p. 3).
Honorable Gilbert A, Cedillo — Request #0711154 — Page 16

The seizure of property is subject to Fourth Amendment scrutiny even though no


search within the meaning of the amendment has taken place (Soldal v. Cook County (1992) 506
U.S. 56, 68). There are three categories of property that are subject to seizure: pure
contraband, proceeds of criminal activity, and the tools of the criminal trade. The first category
encompasses items such as adulterated food, sawed-off shotguns, narcotics, and smuggled
goods. The mere possession of these objects, constitutes a crime (see One 1958 Plymouth Sedan
v. Pennsylvania (1965) 380 U.S. 693, 699), The second category encompasses not only stolen
property, but the earnings of various illegal transactions (see United States v, 92 Buena Vista Ave.
(1993) 507 U.S. 111). The third category includes tools or instrumentalities that a wrongdoer
has used in the commission of a crime, also known as "derivative contraband" (see One 1958
Plymouth Sedan v. Pennsylvania, supra, at p. 699).
The Fourth Amendment does not require the police to obtain a warrant before
seizing an automobile from a public place when they have probable cause to believe that it is
forfeitable contraband {Florida v. White (1999) 526 U.S. 559, 566). In Florida v. White, the police
officer observed respondent White using his car to deliver cocaine, and thereby had probable
cause to believe the car was subject to forfeiture under the Florida Contraband Forfeiture Act.
Several months later at the respondent's place of employment, when arresting the respondent
on charges unrelated to the drug transactions, without a warrant the officer seized the
respondent's automobile in accordance with that act (Id., at p. 562). That act in relevant part
provided, "Any contraband article, vessel, motor vehicle, aircraft, other personal property, or
real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in,
upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken
or is taking place, may be seized and shall be forfeited" (Id., at p. 562 fn, 1). However, the
holding in Florida v. White should not be read as a general endorsement of warrantless seizures
of anything a state chooses to call "contraband," whether or not the property happens to be in
public when seized (Id., at p. 566).

A violation of subdivision (a) of Section 14607.6 does not come within any of the
above-described categories of contraband, nor does it fall within the scope of either Sanders v.
United States or Florida v. White. Forfeiture under subdivision (a) of Section 14607,6 is
discretionary, not mandatory, and the purpose is not deterrence or punishment, but to permit
abatement (People v. One 1986 Cadillac Deville, supra, at p, 162). Further, a seizure of the vehicle
for a violation of that section is not needed to provide evidence to prove the crime. Thus, we
conclude that there is no basis under the Fourth Amendment to seize a vehicle pursuant to a
violation of subdivision (a) of Section 14607.6,
In summary, the "community caretaking functions" allow the police to impound a
motor vehicle in order to ensure that the location or operation of the motor vehicle does not
jeopardize the public safety and the safety of the vehicle. As the United States Supreme Court
has indicated, "The authority of police to seize and remove from the streets vehicles impeding
traffic or threatening public safety and convenience is beyond challenge" (Opperman, supra, at p.
369). As discussed above, whether the impoundment of a motor vehicle is authorized when the
only offense is being an unlicensed driver depends upon whether the impoundment is
Honorable Gilbert A. Cedillo — Request #0711154 — Page 17

reasonable under the community caretaking function rationale of the Opperman court, and not
simply whether there is statutory authorization for the impoundment (Williams, supra, at p.
762).
In a situation where there is a lawful stop of a motor vehicle by a peace officer and
the driver is an unlicensed driver, and the peace officer is unable to readily and lawfully remove
the vehicle to a place that does not impede traffic or threaten public safety, or is unable to place
the vehicle in a safe location, a peace officer may be justified in impounding the vehicle under
the community caretaking function and Section 14602.6, 14607.6, or 22651. However, based
on the recent cases of Coccia, Miranda, and Williams, if, for instance, following a lawful stop, an
appropriate person, other than the unlicensed driver, possessed a valid driver's license and was
readily available to remove the motor vehicle so that it did not pose a threat to the flow of traffic
or public safety and could be removed to a safe place and the peace officer, based on his or her
observations, was confident that the unlicensed driver would not continue to drive the vehicle,
the impoundment of the vehicle would not serve a community caretaking function, and
therefore would not be justified.
It is, therefore, our opinion that if a peace officer lawfully stops a motor vehicle on
the highway and the driver of the motor vehicle is an unlicensed driver, that alone is not
sufficient justification for the peace officer to cause the impoundment of the motor vehicle. In
addition to a statutory authorization to impound under Section 14602.6, 14607.6, or 22651 of
the Vehicle Code, constitutional restrictions upon the seizure of property require that the
officer have a justification under the community caretaking doctrine, as discussed above, in
order to validly impound the motor vehicle.

Very truly yours,

Diane F. Boyer-Vine
Legislative Counsel

By
Thomas R. Heuer
Deputy Legislative Counsel

TRH:dIb