Florida Senate - 2009                                    SB 1652
       
       
       
       By Senator Gelber
       
       
       
       
       35-01242A-09                                          20091652__
    1                        A bill to be entitled                      
    2         An act relating to highway safety; creating the
    3         “Deputy Michael Callin, Michael Haligowski, and Deputy
    4         Ryan C. Seguin Memorial Traffic Safety Act”; amending
    5         s. 322.251, F.S.; requiring impoundment and
    6         immobilization information to be included with notice
    7         to a person whose driver license or driving privilege
    8         is being canceled, suspended, revoked, or
    9         disqualified; amending s. 322.34, F.S.; requiring
   10         impoundment and immobilization information to be
   11         included with notice to a person whose driver license
   12         or driving privilege is being canceled, suspended,
   13         revoked, or disqualified; requiring a law enforcement
   14         officer who determines that a motor vehicle is being
   15         driven by or is under the actual physical control of a
   16         person whose driver license or driving privilege is
   17         canceled, suspended, revoked, or disqualified to
   18         impound or immobilize the motor vehicle; providing for
   19         notice to the driver; providing for notice to
   20         registered owners of the motor vehicle and
   21         lienholders; providing for exceptions; providing for
   22         the Department of Highway Safety and Motor Vehicles to
   23         commence impoundment or immobilization at the scene
   24         where the motor vehicle was immobilized; providing
   25         procedures; providing for release of the motor
   26         vehicle; requiring department records to contain
   27         impoundment and immobilization information; providing
   28         for a lien under specified provisions for charges
   29         accrued for recovery, towing, or storage services;
   30         requiring notice to the owner, insurance company
   31         insuring the motor vehicle, and lienholders of record;
   32         providing for the owner’s right to a hearing;
   33         providing for sale of the motor vehicle free of liens
   34         after a certain timeframe; providing for distribution
   35         of proceeds from such sale; providing for certain fees
   36         and distribution of moneys collected; requiring the
   37         department to authorize release of the motor vehicle
   38         under certain circumstances; prohibiting operation of
   39         an immobilized motor vehicle; providing for an
   40         immobilized motor vehicle that is found being operated
   41         upon any street or highway in this state before
   42         release from immobilization to be seized and subject
   43         to forfeit; authorizing the department to contract
   44         with vendors; directing the department to inform the
   45         person whose driver license or driving privilege has
   46         been canceled, suspended, revoked, or disqualified
   47         that any motor vehicle driven by or under the actual
   48         physical control of that person is subject to
   49         impoundment and immobilization; authorizing the
   50         department to adopt rules; providing penalties for
   51         knowingly aiding a person whose driver license or
   52         driving privilege is canceled, suspended, revoked, or
   53         disqualified by providing a motor vehicle or
   54         authorizing use of a motor vehicle; directing the
   55         department to inform drivers whose license or driving
   56         privilege has been canceled, suspended, revoked, or
   57         disqualified and the motoring public of the provisions
   58         for impoundment and immobilization of motor vehicles
   59         under this act; providing effective dates.
   60         
   61  Be It Enacted by the Legislature of the State of Florida:
   62         
   63         Section 1. This act may be cited as the “Deputy Michael
   64  Callin, Michael Haligowski, and Deputy Ryan C. Seguin Memorial
   65  Traffic Safety Act.”
   66         Section 2. Subsection (1) of section 322.251, Florida
   67  Statutes, is amended to read:
   68         322.251 Notice of cancellation, suspension, revocation, or
   69  disqualification of license.—
   70         (1) All orders of cancellation, suspension, revocation, or
   71  disqualification issued under the provisions of this chapter,
   72  chapter 318, chapter 324, or ss. 627.732-627.734 shall be given
   73  either by personal delivery thereof to the licensee whose
   74  license is being canceled, suspended, revoked, or disqualified
   75  or by deposit in the United States mail in an envelope, first
   76  class, postage prepaid, addressed to the licensee at his or her
   77  last known mailing address furnished to the department. Such
   78  mailing by the department constitutes notification, and any
   79  failure by the person to receive the mailed order will not
   80  affect or stay the effective date or term of the cancellation,
   81  suspension, revocation, or disqualification of the licensee’s
   82  driving privilege. Notification of cancellation, suspension,
   83  revocation, or disqualification given by the department under
   84  this section shall also inform the person whose license or
   85  driving privilege is being canceled, suspended, revoked, or
   86  disqualified that any motor vehicle driven by or under the
   87  actual physical control of that person while the license or
   88  driving privilege is canceled, suspended, revoked, or
   89  disqualified is subject to impoundment and immobilization under
   90  s. 322.34.
   91         Section 3. Effective July 1, 2010, subsections (3), (4),
   92  and (8) of section 322.34, Florida Statutes, are amended, and
   93  subsection (11) is added to that section, to read:
   94         322.34 Driving while license suspended, revoked, canceled,
   95  or disqualified.—
   96         (3) In any proceeding for a violation of this section, a
   97  court may consider evidence, other than that specified in
   98  subsection (2) or subsection (11), that the person knowingly
   99  violated this section.
  100         (4) Any judgment or order rendered by a court or
  101  adjudicatory body that cancels, suspends, revokes, or
  102  disqualifies a person’s driver’s license, or any uniform traffic
  103  citation that cancels, suspends, or revokes, or disqualifies a
  104  person’s driver’s license, and any notice of cancellation,
  105  suspension, revocation, or disqualification of a person’s
  106  driver’s license by the department must contain a provision
  107  notifying the person that his or her driver’s license is being
  108  has been canceled, suspended, or revoked, or disqualified and
  109  must inform the person that any motor vehicle driven by that
  110  person while the license is canceled, suspended, revoked, or
  111  disqualified shall be impounded or immobilized pursuant to this
  112  section.
  113         (8)(a)1. If a law enforcement officer determines that a
  114  motor vehicle is being driven by or is under the actual physical
  115  control of a person whose driver’s license or driving privilege
  116  is canceled, suspended, revoked, or disqualified, the officer
  117  shall immediately impound the motor vehicle, immobilize the
  118  motor vehicle by installing an immobilization device on the
  119  motor vehicle, or immobilize the motor vehicle by removing the
  120  registration license plate. The officer shall serve notice of
  121  the impoundment or immobilization upon the driver. The notice
  122  shall include the location where the motor vehicle is being held
  123  and information on the procedures to have the motor vehicle
  124  released from impoundment or immobilization by a department
  125  approved vendor. A law enforcement agency or officer who
  126  proceeds in good faith to immobilize or impound a vehicle under
  127  this section is not responsible for any towing, immobilizing, or
  128  impounding fees. A law enforcement officer may immobilize the
  129  motor vehicle by removing the registration license plate and
  130  leave the scene of the impoundment or immobilization without
  131  completing the impoundment or immobilization process if the
  132  officer is ordered elsewhere by his or her superior officer or
  133  an emergency elsewhere or other exigent circumstance compels the
  134  officer to leave.
  135         2. If the officer determines the driver’s license is
  136  suspended for a failure to pay traffic infractions and the
  137  driver has not previously been warned of immobilization or
  138  impoundment, the officer shall provide a warning and shall not
  139  impound or immobilize the motor vehicle. The agency issuing the
  140  warning shall transmit the individual offender’s name to the
  141  department, which shall provide notice to the driver pursuant to
  142  paragraph (h).
  143         3. A law enforcement officer impounding or immobilizing a
  144  motor vehicle under subparagraph 1. shall notify the department
  145  or the department’s agent within 24 hours to effect impoundment
  146  or immobilization under this paragraph. If the officer removed
  147  the registration license plate, the plate shall be delivered to
  148  the department or the department’s agent. The department or the
  149  department’s agent shall remove and impound or immobilize the
  150  motor vehicle at another location; however, the impounding
  151  company shall not release the motor vehicle for immobilization
  152  at another location without proof that the immobilization vendor
  153  is approved by the department. The department is authorized to
  154  adopt by rule procedures for removal and immobilization of the
  155  motor vehicle by a department-approved vendor from the location
  156  where the motor vehicle was impounded or immobilized by the law
  157  enforcement officer under subparagraph 1.
  158         (b)1. A motor vehicle impounded or immobilized under
  159  paragraph (a) that, according to the records of the department,
  160  is owned by the person who was driving or in actual physical
  161  control of the motor vehicle when it was stopped and impounded
  162  or immobilized shall be released from impoundment or
  163  immobilization when the owner receives authorization for release
  164  of the motor vehicle under paragraph (e) and all costs of
  165  towing, impoundment, immobilization, and storage are paid.
  166         a. If department records show that the driver’s license
  167  cancellation, suspension, revocation, or disqualification is
  168  based on any criminal conviction, the motor vehicle must be
  169  removed to an impound lot or immobilized by installing an
  170  immobilization device and removed to another location.
  171         b. If department records show that the driver is designated
  172  a habitual traffic offender under s. 322.264 whose license has
  173  been revoked under s. 322.27(5) and whose driving privilege has
  174  not been restored, the motor vehicle must be removed to an
  175  impound lot or immobilized by installing an immobilization
  176  device and removed to another location.
  177         2. If department records show that the motor vehicle is
  178  owned or leased by a person other than the driver, the motor
  179  vehicle shall be released to the owner or lessee or the owner’s
  180  or lessee’s agent upon payment of all costs of towing,
  181  impoundment, immobilization, and storage.
  182         3. The department’s records shall reflect that the motor
  183  vehicle is impounded or immobilized.
  184         (c) Notice by certified mail shall be sent within 7
  185  business days after the date of storage of the motor vehicle to
  186  the registered owner, the insurance company insuring the motor
  187  vehicle notwithstanding the provisions of s. 627.736, and all
  188  persons of record claiming a lien against the motor vehicle. The
  189  notice shall state the fact of possession of the motor vehicle,
  190  that a lien as provided in s. 713.78(2) is claimed, that charges
  191  have accrued and the amount thereof, that the lien is subject to
  192  enforcement pursuant to law, that the owner or lienholder, if
  193  any, has the right to a hearing as set forth in s. 713.78(5),
  194  and that any motor vehicle that remains unclaimed or for which
  195  the charges for recovery, towing, or storage services remain
  196  unpaid may be sold free of all prior liens after 35 days if the
  197  motor vehicle is more than 3 years of age or after 50 days if
  198  the motor vehicle is 3 years of age or less.
  199         1. If attempts to locate the name and address of the owner
  200  or lienholder prove unsuccessful, the towing-storage operator
  201  shall, after 7 working days following the initial tow or
  202  storage, excluding Saturday and Sunday, notify the public agency
  203  of jurisdiction in writing by certified mail or acknowledged
  204  hand delivery that the towing-storage company has been unable to
  205  locate the name and address of the owner or lienholder, a
  206  physical search of the motor vehicle has disclosed no ownership
  207  information, and a good faith effort has been made. For purposes
  208  of this subparagraph, “good faith effort” means that the
  209  following checks have been performed by the company to establish
  210  a prior state of registration, if any, and for title:
  211         a. A check of the motor vehicle for any type of tag, tag
  212  record, temporary tag, or regular tag.
  213         b. A check of the law enforcement report for the tag number
  214  or other information identifying the motor vehicle if the motor
  215  vehicle was towed at the request of a law enforcement officer.
  216         c. A check of the trip sheet or tow ticket of the tow truck
  217  operator to determine whether a tag was on the motor vehicle at
  218  the beginning of the tow, if a private tow.
  219         d. If there is no address of the owner on the impound
  220  report, a check of the law enforcement report to determine
  221  whether an out-of-state address is indicated by the driver’s
  222  license information.
  223         e. A check of the motor vehicle for an inspection sticker
  224  or any other sticker or decal that might indicate a state of
  225  possible registration.
  226         f. A check of the interior of the motor vehicle for any
  227  papers that might be in the glove box, trunk, or other areas for
  228  a state of registration.
  229         g. A check of the motor vehicle for its vehicle
  230  identification number.
  231         2. Proceeds of the sale under this paragraph shall be used
  232  in the following order of priority:
  233         a. For payment of the costs of the sale, including payment
  234  of the cost of mailing and publication of notice.
  235         b. For payment of the costs of towing, impoundment,
  236  immobilization, and storage.
  237         c. For payment of the fees imposed under subparagraphs
  238  (d)1. and 2., in that order of priority.
  239         d. For payment of any valid claim made by any lienholder of
  240  record.
  241         e. For payment of any outstanding traffic-related fines or
  242  fees owed by the motor vehicle owner.
  243         f. Proceeds remaining after distribution under sub
  244  subparagraphs a.-e. shall be remitted to the owner of the motor
  245  vehicle.
  246         (d)1. The department shall collect a $35 processing fee
  247  prior to release to the owner of any motor vehicle impounded or
  248  immobilized under this subsection. Five dollars of the fee shall
  249  be distributed to the law enforcement agency that initiated the
  250  impoundment or immobilization. The remaining $30 shall be
  251  forwarded to the Department of Revenue, which shall:
  252         a. Deposit $10 of the fee into the State Transportation
  253  Trust Fund created under s. 206.46 to be used to carry out
  254  public transit responsibilities of the Department of
  255  Transportation under s. 341.041.
  256         b. Remit $5 of the fee to the Florida Law Enforcement
  257  Memorial Fund of the Florida State Lodge of the Fraternal Order
  258  of Police to be used to provide funds for the Law Enforcement
  259  Memorial Monument on the grounds of the Florida Capitol and to
  260  provide support to surviving colleagues and families of officers
  261  who have lost their lives serving the citizens of the state.
  262         c. Remit $5 of the fee to the Department of Highway Safety
  263  and Motor Vehicles for public service announcements warning
  264  motorists that any motor vehicle driven by a person whose
  265  license has been canceled, suspended, revoked, or disqualified
  266  is subject to impoundment or immobilization.
  267         d. Remit $10 of the fee to the state courts system for
  268  deposit into the Operating Trust Fund created under s. 25.3844.
  269         2. The department shall charge a reasonable fee, not to
  270  exceed $6, to the owner or lessee of the motor vehicle to cover
  271  the operational costs related to immobilizing or impounding
  272  motor vehicles. Fees collected under this subparagraph shall be
  273  deposited in the Highway Safety Operating Trust Fund of the
  274  Department of Highway Safety and Motor Vehicles.
  275         3. Notwithstanding any other law to the contrary, that
  276  portion of any outstanding fine or fee collected pursuant to
  277  this subsection which is not otherwise allocated by law or which
  278  is allocated to the General Revenue Fund shall be remitted by
  279  the Department of Revenue to the Operating Trust Fund created in
  280  s. 25.3844.
  281         4. Fees required under this paragraph for release of a
  282  motor vehicle, as well as fines and fees required for
  283  reinstatement of a person’s license and privilege to drive, may
  284  be satisfied by community service pursuant to s. 318.18(8) as
  285  authorized by the court. This subparagraph does not apply to the
  286  payment of costs of towing, impoundment, immobilization, and
  287  storage.
  288         (e) The department must authorize release of the motor
  289  vehicle to the owner upon payment of the fees imposed under
  290  paragraph (d); payment of all costs of towing, impoundment,
  291  immobilization, and storage as required under paragraph (c); and
  292  satisfaction of one of the following conditions:
  293         1. The license and driving privilege of the driver are
  294  reinstated;
  295         2. The clerk of court verifies that all outstanding traffic
  296  fines and related fees and costs owed by the driver have been
  297  satisfied;
  298         3. The motor vehicle has been sold and the title of the
  299  motor vehicle has been transferred;
  300         4. The driver submits to the department a statement that
  301  the family of the driver living in the same household has no
  302  other private or public means of transportation and at least one
  303  household member has a valid driver’s license that is not
  304  canceled, suspended, revoked, or disqualified, which statement
  305  is verified by the department using department records; or
  306         5. The motor vehicle has been sold pursuant to s. 713.78.
  307         (f) A motor vehicle immobilized under this subsection may
  308  not be operated in this state until released from immobilization
  309  by the department or the department’s agent. A motor vehicle
  310  immobilized under this subsection that is found being operated
  311  upon any street or highway in this state before being released
  312  by the department or the department’s agent shall be seized and
  313  removed from the street or highway and may be forfeited pursuant
  314  to ss. 932.701-932.704.
  315         (g) The department may contract with vendors to carry out
  316  the provisions of this subsection.
  317         (h) Notification of cancellation, suspension, revocation,
  318  or disqualification given by the department under s. 322.251
  319  shall also inform the person whose driver’s license or driving
  320  privilege is being canceled, suspended, revoked, or disqualified
  321  that any motor vehicle driven by or under the actual physical
  322  control of that person while the license or driving privilege is
  323  canceled, suspended, revoked, or disqualified is subject to
  324  impoundment and immobilization under this subsection.
  325         (i) The department may adopt rules pursuant to ss.
  326  120.536(1) and 120.54 to implement the provisions of this
  327  subsection. Upon the arrest of a person for the offense of
  328  driving while the person’s driver’s license or driving privilege
  329  is suspended or revoked, the arresting officer shall determine:
  330         1. Whether the person’s driver’s license is suspended or
  331  revoked.
  332         2. Whether the person’s driver’s license has remained
  333  suspended or revoked since a conviction for the offense of
  334  driving with a suspended or revoked license.
  335         3. Whether the suspension or revocation was made under s.
  336  316.646 or s. 627.733, relating to failure to maintain required
  337  security, or under s. 322.264, relating to habitual traffic
  338  offenders.
  339         4. Whether the driver is the registered owner or coowner of
  340  the vehicle.
  341         (b) If the arresting officer finds in the affirmative as to
  342  all of the criteria in paragraph (a), the officer shall
  343  immediately impound or immobilize the vehicle.
  344         (c) Within 7 business days after the date the arresting
  345  agency impounds or immobilizes the vehicle, either the arresting
  346  agency or the towing service, whichever is in possession of the
  347  vehicle, shall send notice by certified mail, return receipt
  348  requested, to any coregistered owners of the vehicle other than
  349  the person arrested and to each person of record claiming a lien
  350  against the vehicle. All costs and fees for the impoundment or
  351  immobilization, including the cost of notification, must be paid
  352  by the owner of the vehicle or, if the vehicle is leased, by the
  353  person leasing the vehicle.
  354         (d) Either the arresting agency or the towing service,
  355  whichever is in possession of the vehicle, shall determine
  356  whether any vehicle impounded or immobilized under this section
  357  has been leased or rented or if there are any persons of record
  358  with a lien upon the vehicle. Either the arresting agency or the
  359  towing service, whichever is in possession of the vehicle, shall
  360  notify by express courier service with receipt or certified
  361  mail, return receipt requested, within 7 business days after the
  362  date of the immobilization or impoundment of the vehicle, the
  363  registered owner and all persons having a recorded lien against
  364  the vehicle that the vehicle has been impounded or immobilized.
  365  A lessor, rental car company, or lienholder may then obtain the
  366  vehicle, upon payment of any lawful towing or storage charges.
  367  If the vehicle is a rental vehicle subject to a written
  368  contract, the charges may be separately charged to the renter,
  369  in addition to the rental rate, along with other separate fees,
  370  charges, and recoupments disclosed on the rental agreement. If
  371  the storage facility fails to provide timely notice to a lessor,
  372  rental car company, or lienholder as required by this paragraph,
  373  the storage facility shall be responsible for payment of any
  374  towing or storage charges necessary to release the vehicle to a
  375  lessor, rental car company, or lienholder that accrue after the
  376  notice period, which charges may then be assessed against the
  377  driver of the vehicle if the vehicle was lawfully impounded or
  378  immobilized.
  379         (e) Except as provided in paragraph (d), the vehicle shall
  380  remain impounded or immobilized for any period imposed by the
  381  court until:
  382         1. The owner presents proof of insurance to the arresting
  383  agency; or
  384         2. The owner presents proof of sale of the vehicle to the
  385  arresting agency and the buyer presents proof of insurance to
  386  the arresting agency.
  387  If proof is not presented within 35 days after the impoundment
  388  or immobilization, a lien shall be placed upon such vehicle
  389  pursuant to s. 713.78.
  390         (f) The owner of a vehicle that is impounded or immobilized
  391  under this subsection may, within 10 days after the date the
  392  owner has knowledge of the location of the vehicle, file a
  393  complaint in the county in which the owner resides to determine
  394  whether the vehicle was wrongfully taken or withheld. Upon the
  395  filing of a complaint, the owner may have the vehicle released
  396  by posting with the court a bond or other adequate security
  397  equal to the amount of the costs and fees for impoundment or
  398  immobilization, including towing or storage, to ensure the
  399  payment of such costs and fees if the owner does not prevail.
  400  When the vehicle owner does not prevail on a complaint that the
  401  vehicle was wrongfully taken or withheld, he or she must pay the
  402  accrued charges for the immobilization or impoundment, including
  403  any towing and storage charges assessed against the vehicle.
  404  When the bond is posted and the fee is paid as set forth in s.
  405  28.24, the clerk of the court shall issue a certificate
  406  releasing the vehicle. At the time of release, after reasonable
  407  inspection, the owner must give a receipt to the towing or
  408  storage company indicating any loss or damage to the vehicle or
  409  to the contents of the vehicle.
  410         (11) Any owner or lessee of a motor vehicle who knowingly
  411  allows, permits, or authorizes a person whose driver’s license
  412  or driving privilege has been canceled, suspended, revoked, or
  413  disqualified to drive the motor vehicle upon the streets or
  414  highways of this state or knowingly gives, leases, lends, or
  415  otherwise provides the motor vehicle to a person whose driver’s
  416  license or driving privilege has been canceled, suspended,
  417  revoked, or disqualified while such license or privilege is
  418  canceled, suspended, revoked, or disqualified commits a
  419  misdemeanor of the second degree, punishable as provided in s.
  420  775.082 or s. 775.083. The element of knowledge is satisfied if
  421  the owner or lessee has been previously charged under this
  422  subsection for providing a motor vehicle to the same person; the
  423  owner admits to knowledge of the cancellation, suspension,
  424  revocation, or disqualification of the driver’s license or
  425  driving privilege of the driver; or the owner received notice as
  426  provided in subsection (8) relating to the same driver.
  427         Section 4. The Department of Highway Safety and Motor
  428  Vehicles shall inform the motoring public of the changes to s.
  429  322.34, Florida Statutes, made by this act relating to
  430  impoundment or immobilization of a motor vehicle being driven by
  431  a person whose driver license is canceled, suspended, revoked,
  432  or disqualified and shall provide such information in newly
  433  printed driver license educational materials after July 1, 2009,
  434  and in public service announcements produced in cooperation with
  435  the Florida Highway Patrol.
  436         Section 5. During the period from July 1, 2009, to July 1,
  437  2010, the Department of Highway Safety and Motor Vehicles shall
  438  notify by mail persons whose driver license or driving privilege
  439  has been canceled, suspended, revoked, or disqualified of the
  440  changes to s. 322.34, Florida Statutes, made by this act
  441  relating to impoundment or immobilization of a motor vehicle
  442  being driven by such person; however, failure to receive such
  443  notification does not preclude, bar, or otherwise affect the
  444  impoundment or immobilization of a motor vehicle under s.
  445  322.34, Florida Statutes.
  446         Section 6. Except as otherwise expressly provided in this
  447  act, this act shall take effect July 1, 2009.