BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2011-2012 Regular Session               B

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          AB 2383 (Ammiano)                                          3
          As Amended May 14, 2012
          Hearing date: June 12, 2012
          Vehicle Code
          MK:dl

                               VEHICLES: PUBLIC RECORDS:

                             ACCESS BY CERTAIN OFFICIALS  


                                       HISTORY

          Source:  City and County of San Francisco

          Prior Legislation:  None

          Support: Unknown

          Opposition:None known

          Assembly Floor Vote:  Ayes 75 - Noes 0



                                         KEY ISSUE
           
          SHOULD THE CITY ATTORNEY OF SAN FRANCISCO BE PERMITTED TO OBTAIN 
          COPIES OF FULL-FACE ENGRAVED PICTURES OR PHOTOGRAPHS OF INDIVIDUALS 
          DIRECTLY FROM THE DEPARTMENT OF MOTOR VEHICLES FOR THE PURPOSES OF 
          PERFORMING FUNCTIONS RELATED TO CITY AND COUNTY OPERATIONS?






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                                       PURPOSE

          The purpose of this bill is to allow the City Attorney of San 
          Francisco to obtain copies of full-face engraved pictures or 
          photographs of individuals directly from DMV for the purposes of 
          performing functions related to city and county operations.

           Existing law  provides except where a specific provision of law 
          prohibits the disclosure of records or information or provides 
          for confidentiality, all records of the Department of Motor 
          Vehicles (DMV) relating to the registration of vehicles, other 
          information contained on an application for a driver's license, 
          abstracts of convictions, and abstracts of accident reports 
          required to be sent to DMV in Sacramento, except for abstracts 
          of accidents where, in the opinion of a reporting officer, 
          another individual was at fault, shall be open to public 
          inspection during office hours. All abstracts of accident 
          reports shall be available to law enforcement agencies and 
          courts of competent jurisdiction. (Vehicle Code §1808)
           
          Under existing law  the residential addresses of certain public 
          employees and their families are confidential.  (Vehicle Code § 
          §1808.4 and 1808.6 - began in 1977.)

           Existing law  states that all residence addresses in any record 
          of the DMV are confidential and shall not be disclosed to any 
          person, except a court, law enforcement agency, or other 
          governmental agency, or as authorized in section 1808.22 of the 
          Vehicle Code.  (Vehicle Code §§ 1808.21 - added in 1989.)
           
           Existing law  states that any person may seek suppression of any 
          DMV registration or driver's license record if he or she can 
          show that he or she is the subject of stalking or a threat of 
          death or great bodily injury.  The suppression will be for a 
          period of one year renewable for two more one year periods.  
          (Vehicle Code § 1808.21(d).)

           Existing law  provides that the release of such confidential 
          information, for all other persons specified, is a misdemeanor 




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          and punishable by a fine of up to $5,000 and/or by up to one 
          year in a county jail.  (Vehicle Code § 1808.45.)

           Existing law  provides that a record of DMV containing a 
          confidential home address shall be open to public inspection as 
          provided in Vehicle Code Section 1808 if the address is 
          completely obliterated or otherwise removed from the record.  
          The home address shall be withheld from public inspection for 
          three years following the termination of office or employment 
          except with respect to a retired peace officer, his or her home 
          address shall be withheld from public inspection permanently 
          upon request of confidentiality at the time the information 
          would otherwise be opened. (Vehicle Code §1808.4 (e).)

           Existing law  provides that the Attorney General, district 
          attorneys, law enforcement agencies, city attorneys prosecuting 
          misdemeanors, public defenders and public defender investigators 
          shall have access, including, but not limited to, telephone 
          access, to DMV records.  (Vehicle Code § 1810.5)

           Existing law  provides that a license shall bear a full-face 
          engraved picture or photograph of the licensee.  The DMV shall 
          not, unless requested by the licensee distribute or sell the 
          licensee's picture or photograph or any information pertaining 
          to the licensee's picture or physical characteristics to any 
          private individual, other than the licensee, or to any firm, 
          co-partnership, association, or corporation. (Vehicle Code § 
          12800.5)

           Existing law  provides that all DMV records relating to the 
          physical or mental condition of any person, and convictions of 
          any offense involving the use or possession of controlled 
          substance not arising from circumstances involving a motor 
          vehicle, are confidential and not open to public inspection. 
          (Vehicle Code § 1808.5)

           Existing law  provides that the Department of Real Estate, as a 
          department individually, or through its staff, may obtain copies 
          of fullface engraved pictures or photographs of individuals 




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          directly form DMV for the purposes of enforcing the Real Estate 
          Law or the Subdivided Lands Law. (Vehicle Code § 1808.51)

           This bill  provides that the city attorney of a city and county 
          and his or her investigators for the purposes of performing 
          functions related to city and county operations may also obtain 
          copies of fullface engraved pictures or photographs of 
          individuals directly from DMV.


                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
                                      ("ROCA")
          
          In response to the unresolved prison capacity crisis, since 
          early 2007 it has been the policy of the chair of the Senate 
          Committee on Public Safety and the Senate President pro Tem to 
          hold legislative proposals which could further aggravate prison 
          overcrowding through new or expanded felony prosecutions.  Under 
          the resulting policy known as "ROCA" (which stands for 
          "Receivership/Overcrowding Crisis Aggravation"), the Committee 
          has held measures which create a new felony, expand the scope or 
          penalty of an existing felony, or otherwise increase the 
          application of a felony in a manner which could exacerbate the 
          prison overcrowding crisis by expanding the availability or 
          length of prison terms (such as extending the statute of 
          limitations for felonies or constricting statutory parole 
          standards).  In addition, proposed expansions to the 
          classification of felonies enacted last year by AB 109 (the 2011 
          Public Safety Realignment) which may be punishable in jail and 
          not prison (Penal Code section 1170(h)) would be subject to ROCA 
          because an offender's criminal record could make the offender 
          ineligible for jail and therefore subject to state prison.  
          Under these principles, ROCA has been applied as a 
          content-neutral, provisional measure necessary to ensure that 
          the Legislature does not erode progress towards reducing prison 
          overcrowding by passing legislation which could increase the 
          prison population.  ROCA will continue until prison overcrowding 
          is resolved.





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          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On May 23, 2011, the United States Supreme Court upheld the 
          decision of the three-judge panel in its entirety, giving 
          California two years from the date of its ruling to reduce its 
          prison population to 137.5 percent of design capacity, subject 
          to the right of the state to seek modifications in appropriate 
          circumstances.  Design capacity is the number of inmates a 
          prison can house based on one inmate per cell, single-level 
          bunks in dormitories, and no beds in places not designed for 
          housing.  Current design capacity in CDCR's 33 institutions is 
          79,650.

          On January 6, 2012, CDCR announced that California had cut 
          prison overcrowding by more than 11,000 inmates over the last 
          six months, a reduction largely accomplished by the passage of 
          Assembly Bill 109.  Under the prisoner-reduction order, the 
          inmate population in California's 33 prisons must be no more 
          than the following:

                 167 percent of design capacity by December 27, 2011 
               (133,016 inmates);
                 155 percent by June 27, 2012;
                 147 percent by December 27, 2012; and




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                 137.5 percent by June 27, 2013.
               
          This bill does not aggravate the prison overcrowding crisis 
          described above under ROCA.


                                      COMMENTS


          1.  Need for This Bill  

          According to the author:

               The San Francisco City Attorney's Office had been 
               classified by the DMV to have full access to records at 
               the law enforcement level.  This level of access was in 
               effect since 1990 without incident or challenge.  The 
               City Attorney's Office operated with this level of 
               access for twenty-one years and strictly complied with 
               all DMV security protocols.  In 2011, the DMV 
               reclassified the City Attorney's Office access to an 
               access level limited to address and phone data.   

                Prior to 2011, the San Francisco City Attorney's office 
               utilized DMV records in a number of ways to fulfill 
               their role as legal counsel for all city departments 
               and agencies. The San Francisco City Attorney's Office 
               serves as legal counsel for all city departments and 
               agencies, including those that operate with county 
               functions.  In the course of executing duties in its 
               unique role, the City Attorney's Office accesses DMV 
               records to more effectively personally serve parents in 
               child dependency cases as required by state law (see 
               Welfare and Institutions Code sec. 300 et.seq.) for the 
               County Human Services Agency, establish security 
               protocols for threatened employees, and identify 
               individuals in fraud cases.  AB 2383 restores the San 
               Francisco City Attorney's access to DMV records. This 
               bill will authorize the San Francisco City Attorney's 




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               Office to have the same access to DMB records as the 
               Department of Real Estate. 









































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          2.   Access to DMV Photos  
            
           Existing law generally prohibits access to DMV records; however, 
          statute excepts from this prohibition law enforcement officials, 
          which statute identifies as the Attorney General, district 
          attorneys, law enforcement agencies and city attorneys 
          prosecuting misdemeanor violations of state law upon 
          authorization of a district attorney and makes exception for 
          public defenders and public defender investigators.  There is 
          also an exemption for the Department of Real Estate to obtain 
          copies of fullface photographs of people from DMV.

          The San Francisco City Attorney previously had access to DMV 
          files.  However, last year, following an internal audit, DMV 
          determined the access, which the city attorney used for purposes 
          other than prosecution of criminal actions, was not appropriate 
          and revoked the city attorney's access.  DMV notes that the city 
          attorney can still access DMV records by going through the 
          city's law enforcement agencies.  This bill would allow the San 
          Francisco City Attorney to get photographs from DMV.   According 
          the background from the author, the San Francisco City Attorney 
          uses DMV photographs in the following circumstances:

                 To serve the legal process for the Human Services 
               Agency. The City Attorney's office often serves parents 
               with notice of dependency hearings, which are often 
               contentious hearings. The DMV license photos are 
               particularly useful in serving parents who may be trying to 
               evade the process.

                 To establish a security protocol for a threatened 
               employee. DMV license photos are heavily relied upon to 
               create an effective DO NOT ADMIT notice to protect the 
               safety of an employee at the workplace while litigators 
               apply for restraining orders.

                 To conduct surveillance on individuals whose activities 
               are under investigation. When investigating an employee or 
               private individuals for wrongdoing of all kinds, the DMV 




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               license photos identify the appearance of the person who is 
               not known. Many surveillance assignments pertain to workers 
               compensation fraud and a multitude of personal injury 
               claimants and plaintiffs who falsely claim injury or a 
               degree of injury. Surveillance is the only tool to 
               establish the falsehood of their representation. DMV 
               license photos are critical in performing surveillance in 
               these cases. 

                 To investigate facts and allegations pertinent to 
               litigation filed against city and county departments, 
               employees, public officials, and agencies. In this 
               capacity, DMV license photos are used to investigate the 
               conduct and commercial activities of private businesses and 
               individuals in determining whether they have harmed the 
               city and county or broken the laws, and therefore made 
               themselves subject to penalties in litigation or other 
               enforcement proceedings.



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