BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
SB 126 S
Senator Runner B
As Amended April 27, 2005
Hearing Date: May 10, 2005 1
Government Code 2
AMT:cjt 6
SUBJECT
Emergency Services: Liability for Incidents Caused by
Willful Flight from Police
DESCRIPTION
This bill would make a person liable for the emergency
response costs incurred by a public entity when responding
to an incident caused by the person's willful flight from
police pursuit in a motor vehicle. The public entity could
only recover after restitution was made to victims of the
incident.
BACKGROUND
In 1985, the Legislature established that a person who
negligently operates a motor vehicle, boat, or aircraft
while under the influence of alcohol or drugs, or who
operates such a vehicle in an intentionally wrongful
manner, and causes an incident that requires an emergency
response, is liable for the costs of that response. The
legislative history reflects that the bill was intended to
address "traffic incidents" that arose from such conduct.
[Senate Judiciary Committee analysis, SB 735 (Royce), March
14, 1985.]
In 2001, AB 415 (Runner) proposed that similar liability
should attach to a person convicted of willfully fleeing or
attempting to evade police pursuit in a motor vehicle. The
author intended that liability under the bill would extend
to the costs of the pursuit as well as the emergency
(more)
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response costs for any resulting traffic incident. The
Senate Public Safety Committee analysis questioned whether
liability should attach for "basic police services."
[Senate Public Safety Committee analysis, SB 415 (Runner),
June 19, 2001.] The Senate Public Safety analysis also
noted that the liability proposed under the bill was twice
as high as existing liability for incidents caused by
driving under the influence. The bill failed in the Senate
Public Safety Committee.
The author has now introduced SB 126 (Runner) for the same
general purposes as the 2001 bill, but seeks to establish
liability at an amount equal to existing liability for
incidents caused by driving under the influence.
CHANGES TO EXISTING LAW
Existing law provides that a person who operates a motor
vehicle, boat, or civil aircraft while under the influence
of alcohol or a drug, and proximately causes an incident
which results in an emergency response, is liable to the
public agency for up to $12,000 of the expense of the
emergency response. [Govt. Code 53150-53155.]
Existing law provides that a person whose intentionally
wrongful conduct in operating such vehicles causes an
incident which results in an emergency response is liable
to the public agency for up to $12,000 of the expense of
the emergency response. [Govt. Code 53150-53155.]
Existing law provides that any person who intentionally,
knowingly, and willfully enters into an area that has been
closed to the public is liable for the expenses of an
emergency response required to search for and rescue the
person; if the person drove a vehicle into the area, the
person is also liable for the costs of removing the
inoperable vehicle. [Govt. Code 53159(b).]
Existing law provides that a person who drives a vehicle
onto a public street that has been temporarily covered by a
rise in water level, and has been barricaded or roped off,
is liable for the expenses of an emergency response to
remove the person, other passengers, and/or the inoperable
vehicle from the public street. [Govt. Code 53159(c).]
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Existing law provides that liability for the above actions
shall be in addition to, and not in limitation of, any
other liability, fines, or fees imposed by law. [Govt.
Code 53159(g).]
Existing law makes it a criminal offense to willfully flee
or attempt to evade a pursuing police officer while
operating a motor vehicle. [Vehicle Code 2800.1,
2800.2, 2800.3.]
This bill would make a person who is convicted of willfully
fleeing or attempting to elude a pursuing police officer
while operating a motor vehicle (under Vehicle Code
Sections 2800.1, 2800.2, and 2800.3) liable for up to
$12,000 for emergency response costs that resulted from an
incident caused by the person's actions.
This bill would not permit a public agency to recover under
this section until after restitution is made to any victim
or victims of the incident.
COMMENT
1.Stated need for the bill
The author states:
Motor vehicle pursuits are very costly to law
enforcement agencies. They require law
enforcement to use extensive equipment, personnel
and resources not typically used when responding
to other crimes. Examples include: aircraft,
spike strips, extraordinary wear and damage to
patrol vehicles.
Currently, taxpayers assume the financial
obligation for these costly pursuits. This bill
would make the offender liable for some of the
costs associated with the pursuit and reimburse
local law enforcement and/or the State for some
of the expenses incurred. In addition, this bill
would serve as a deterrent for those who might
attempt to evade the police in the future.
The author notes that high speed pursuits have increased
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by 49% since 1999, and collisions by 142%. In 2003, the
author indicates the California Highway Patrol (CHP) was
involved in 1,779 pursuits, 448 of which resulted in some
form of traffic collision.
2.Whether "emergency response costs" should include the
costs of pursuit
The author has indicated that this bill would make a
person liable not only for the costs of an emergency
response to a traffic incident caused by a police
pursuit, but also for costs incurred by public entities
during the pursuit itself, including helicopters, "spike
strips," mileage costs for patrol vehicles, and personnel
time. Opponent California Public Defenders Association
(CPDA) responds that making a person liable for the costs
of his or her own pursuit would "violate traditional
legal bars to ordering restitution for what is a core
governmental function." Opponent ACLU agrees that "[t]he
financial costs of general police services should
generally be the responsibility of the state and not of
the individual defendant."
It is well established that a police department may not
recover restitution from a convicted person for "expenses
associated with the costs of performing its regular
duties." [People v. Rugamas (2001) 93 Cal.App.4th 518,
523.] This means a department may not receive
compensation from a convicted person for the department's
costs in investigating criminal activity, or apprehending
and prosecuting a suspect. [People v. Torres (1997) 59
Cal.App.4th 1, 7; Rugamas, 93 Cal.App.4th at 523; People
v. Baker (1974) 39 Cal.App.3d 550, 559.] It may,
however, recover "its out-of-pocket loss resulting from
unusual expenses directly incurred because of defendant's
conduct," like medical expenses for treating a defendant
who suffered injuries during his or her apprehension.
[Rugamas, 93 Cal.App.4th at 523.]
Emergency response costs recoverable under existing
liability statutes are defined as "the reasonable and
necessary costs of providing police, firefighting, search
and rescue, and emergency medical services at the scene
of an incident , and salaries of people who respond to the
incident ." [Govt. Code 53159 (a)(1) (emphasis added).]
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The legislative history of those statutes indicates that
the incidents in question are "traffic incidents" that
"require the response of several police, fire, and
paramedic units, as well as emergency public works
personnel to complete immediate repairs of traffic
signals, signs, and roadways." [Senate Committee on
Judiciary analysis, SB 735 (Royce), March 14, 1985.]
According to CPDA, Legislative Counsel issued an opinion
in 1988 "which holds that 'emergency response' is limited
to official action made necessary to deal with accidents
or injury[, and] ? does not encompass ordinary law
enforcement activities."
SHOULD IT BE CLARIFIED THAT THE COSTS INCURRED IN
RESPONSE TO AN "INCIDENT" RESULTING FROM A POLICE PURSUIT
DO NOT INCLUDE THE COSTS OF THE PURSUIT ITSELF? (See
Comment 6.)
If public entities were permitted to recover for the
costs of pursuit, the ACLU notes that defendants who
engage in similar violations could be subjected to
different response costs according to distinct pursuit
policies in different jurisdictions. It states some
jurisdictions may permit police pursuit when a suspect's
alleged actions involve a minor infraction, and argues
that "[c]harging defendants for the cost of an
unnecessary and inappropriate police chase is bad public
policy."
3.The author states this bill provides a new statutory
remedy
Existing law provides that a person whose "intentionally
wrongful conduct" while operating a motor vehicle causes
an incident resulting in an emergency response may be
held liable for the costs of that emergency response.
[Govt. Code 53150.] But the author notes that
"intentionally wrongful conduct" is defined in the
statute as conduct that is intended to injure another
person or property. [Govt. Code 53156.] Since willful
flight from a pursuing police officer does not
necessarily involve an intent to cause injury, the
remedies provided under this bill do not merely repeat
existing remedies.
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4.CPDA argues, perhaps incorrectly, that SB 126 would
violate the Constitution
CPDA states this bill would violate constitutional due
process rights because it allows a public agency to
recover costs based on a criminal conviction rather than
"a binding [civil] court judgment." But the author's
staff correctly responds that imposing liability based on
a defendant's conviction for evading police pursuit
(instead of civil liability) actually narrows the scope
of potential liability under the bill. While civil
liability must only be shown to be "more likely than
not," criminal liability must be proven "beyond a
reasonable doubt."
CPDA also states that this bill's imposition of liability
based entirely on a criminal conviction "arguably
constitutes double jeopardy under the Fifth Amendment or
an 'excessive fine' under the Eighth Amendment." The
Senate Committee on Pubic Safety analysis does indicate
that:
A person convicted of evading an officer will ?
face criminal penalties up to $10,000 plus
penalty assessments which currently are
approximately 250% of the fine. In addition a
person will be liable for any court ordered
restitution.
But it is not a double punishment or an excessive fine to
impose civil liability on top of criminal fines and
restitution when the remedies are cumulative and tailored
to the harm perpetrated. [People ex rel. Bill Lockyer v.
Fremont Life Ins. Co. (2002) 104 Cal. App. 4th 508, 533.]
The liability that would be established in this bill
does not appear to violate these requirements.
CPDA has informed the author that it will withdraw its
opposition if the bill is amended to specify that
emergency response costs are only available to a public
entity pursuant to a court order "at the restitution
hearing following conviction pursuant to Penal Code
section 1202.4."
5.Whether the bill would have any beneficial or deterrent
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effect
Although the liability that would be imposed under the
bill does not apparently violate the Constitution, the
Senate Public Safety Committee analysis raises a more
pertinent question: "If additional civil penalties are
added for the response costs to evading a police officer,
would a person realistically be solvent enough to pay any
damages arising from injuries to a victim?" Given the
other costs for which a person convicted of evading
police pursuit may already be held liable, it is unclear
how often recovery under this bill would be possible.
It is also unlikely that a person who is wealthy enough
to pay costs to public entities under SB 126 - after
paying criminal penalties, restitution, and civil
liability to victims - would be deterred from evading
police pursuit by this bill. Given the serious potential
downsides of such a pursuit, including risks to the
fleeing person's personal safety and risks of criminal
penalties, it is unlikely that the potential for this
type of civil liability would impact a person's decision
to flee.
6.Author's amendment
The following amendment is proposed to address the
question raised in Comment 2.
On page 2, line 7, after the period, insert:
The pursuit or attempted apprehension of a person
who is fleeing or attempting to evade a police
officer does not constitute an "incident that
results in an emergency response" under this
section.
Support: Association for Los Angeles Deputy Sheriffs;
California Association of Joint Powers Authorities;
California Fire Chiefs Association; California State
Sheriffs' Association; Fire Districts Association of
California; Los Angeles County Sheriff's Department;
Los Angeles Police Protective League; Peace Officers
Research Association of California; Riverside
Sheriff's Association
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Opposition: ACLU; California Public Defenders Association
HISTORY
Source: Author
Related Pending Legislation: AB 305 (Mountjoy), failed in
Assembly Public Safety, would have
increased penalties for willfully
fleeing police pursuit in a motor
vehicle.
SB 317 (Margett), to be heard in
Senate Approps on May 9, would
increase penalties for crime of
willfully fleeing police pursuit in a
motor vehicle.
SB 718 (Aanestad & Romero), failed in
Senate Public Safety, would have
prevented peace officers from
initiating a motor vehicle pursuit,
except upon reasonable suspicion that
the suspect had committed a violent
felony.
SB 719 (Romero & Margett), to be
heard in Senate Judiciary on May 10,
would require law enforcement
agencies to adopt, promulgate, and
require periodic training, under a
pursuit policy. It would establish
minimum guidelines for pursuit
policies, and require data regarding
pursuits to be reported to CHP. It
would require actions to raise public
awareness of penalties for evading
police pursuit. It would also
incorporate increased penalties for
willfully evading police pursuit,
taken from SB 317 (Margett).
SB 1015 (Romero), taken off calendar
by author in Senate Public Safety,
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would have added willful flight from
a pursuing police officer in a motor
vehicle, which causes death or
serious injury, to the list of
"serious felonies."
Prior Legislation: AB 415 (Runner, 2001), failed in
Senate Public Safety, would have made a
person who was convicted of fleeing police
pursuit liable for emergency response costs
if he or she proximately caused an incident
that resulted in an emergency response. The
bill would have made such a person liable for
twice the response costs that could then be
imposed on a person who caused an incident by
driving under the influence.
SB 735 (Royce), Chapter 337, Statutes of
1985, establishes that a person operating a
motor vehicle, boat, or civil aircraft under
the influence of alcohol or drugs, or with
intentionally wrongful conduct, who
proximately causes an incident that results
in an appropriate emergency response, is
liable for the emergency response costs.
Prior Vote: Senate Public Safety Committee 4-1
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