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