Patterico's Pontifications

9/19/2007

A Misleading Choice of Words in the L.A. Times

Filed under: Crime,Dog Trainer,Immigration,Law — Jack Dunphy @ 1:41 am



[Guest post by Jack Dunphy]

In my column that ran on Tuesday on National Review Online, I addressed the recent confusion in the LAPD over impounding cars driven by unlicensed drivers, and I speculated on the motives behind the department’s brief moratorium on such impounds. I neglected to include in the column the sly and no doubt deliberately misleading choice of words used by the L.A. Times in covering the matter. In a September 12 story on the LAPD’s decision to lift the moratorium, Times writer Richard Winton wrote this:

[LAPD Chief William] Bratton had said last week that the moratorium would remain in effect until next Tuesday, when he would ask for minor changes to the department’s policy relating to the ability of officers to impound vehicles for 30 days, as state law allows. The practice has long been a contentious issue in debates over illegal immigration. [Emphasis mine.]

Winton is suggesting that officers have the option not to impound these cars. This is false. State law does not allow these cars to be impounded, it mandates it. Section 14602.6(a)(1) of the California Vehicle code reads as follows:

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. [Emphasis mine.]

Having failed to enact legislation granting driver’s licenses to illegal aliens, the open-borders lobby is trying to institute a de facto legalization through incremental changes to laws and policies. By implying that the LAPD has the option not to impound cars driven by unlicensed drivers, the L.A. Times is inviting public pressure to change its policy. But it’s not merely a matter of policy, it’s a matter of law.

— Jack Dunphy

UPDATE FROM PATTERICO: I’m not an expert on police procedure on this area, as I have never been called upon in court to justify or defend the impounding of a vehicle. But my initial reading of the quoted passage alone doesn’t convince me that it necessarily mandates impounding vehicles. It seems to say only that vehicles that are impounded, must be impounded for 30 days.

I’ll defer to Jack on the policies and practices of LAPD officers, and it may be that the law mandates impounding vehicles — whether through another statutory provision, or through a court interpretation of the above language. Again, I’m not familiar with this issue. I invite commentary from anyone who is.

32 Responses to “A Misleading Choice of Words in the L.A. Times”

  1. September 18th, from a Drudge Report link:
    NEW YORK (Reuters) – The Los Angeles metropolitan area led the nation in traffic jams in 2005, with rush-hour drivers spending an extra 72 hours a year on average stuck in traffic, according to a study released on Tuesday.

    If all the cars operated by illegal aliens were were seized in the LA area, that extra 72 hours per year stuck in traffic (nearly a standard two week vacation) would probably drop to 20 hours per year. Furthermore, the uninsured motorist premium, which is hundreds of dollars per year, would also significantly drop. With all that extra time and money, people could afford Hillary’s health care!

    Perfect Sense (b6ec8c)

  2. I read the quoted section differently. The Section says “the peace officer may…”, it does not say the “the peace officer shall…” Am I missing something?

    artwebster (e18f1f)

  3. There are two options listed for the police officer – 1/ immediately arrest the driver and impound the car or 2/ if an accident impound the car even without arresting the driver. In both cases the car is seized.

    Bryce (ac1cb9)

  4. Matter of law? They don’t need your stinking laws they have friends in Congress.

    Buzzy (9d4680)

  5. “There are two options listed for the police officer”

    And it doesn’t say they “shall” do either of them, but “may.”

    dicew (10527e)

  6. I think artwebster #2 is right. The section does not appear to be mandatory. The officer “may” exercise either of the two options to seize the car.

    A quick search indicates that the Legislature understands it this way as well. For example, see the digest to AB 1132 from 2005 (vetoed), which proposed to amend that section:

    . . . the peace officer is authorized to 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

    AB 1132

    A floor analysis for the bill similarly states:

    EXISTING LAW :

    1)Authorizes a peace officer who determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked or without ever having been issued a driver’s license, to either immediately arrest that person and cause the removal and seizure of that vehicle or, if the vehicle has been involved in a traffic collision, cause the removal and seizure of the vehicle.

    Asm Floor Analysis

    Itsme (a98686)

  7. The law says the cops can impound if they want to.

    Wesson (fd354d)

  8. Mr. Dunphy seems to include a similar “sly and misleading” choice of words in his NRO article:

    At issue is a provision in the California Vehicle Code that gives police officers the authority to impound cars driven by unlicensed drivers.

    ?

    Itsme (a98686)

  9. We can talk about what the law says until we are blue in the face. As a California prosecutor I know peace officers exercise field discretion in deciding whether to tow the car when they encounter such persons. I have, more than once, read reports where they did not tow the car and made the guy take the bus or call a friend. Sadly, in one of those cases the driver and his friends went on to commit an armed robbery later that night (but not with car, they found a licensed driver – no joke).

    David (c893f6)

  10. Does anybody else remember the occasion a few years ago when the illegal aliens in LA went on “strike” to show what a powerful economic force they were ? Traffic dropped to 1970 levels and the city became livable for a few days. I think they quickly realized the effect on the rest of us because they have never threatened another “strike.” I don’t recall any economic consequences, by the way. I spent years patching these people up after they drove their uninsured cars into the ditch, or each other, or stepped out into Coast Highway to take a pee and got hit. And, of course, never got paid.

    Mike K (86bddb)

  11. Based on what the law states, my view is that removal of the car is optional, however, if you don’t tow it, what is to prevent the unlicensed person from driving away when the officer leaves the scene? I think an officer not towing the car under these circumstances is derelict in their duties. As a side note, I am retired because I was struck not once but twice by unlicensed illegal aliens.

    Retired vice cop (6aaa33)

  12. At the risk of sounding overly legalistic, the rules of statutory construction, used by all judges when attempting to determine legislative intent, rely upon the presence of certain words to guide them. For instance, the presence of words such as “must”, “shall”, or “mandatory” in a statute signal that no discretion exists in the implementation of its provisions. On the other hand, use of the words “may” or “should” are understood to allow a range of options as to intepretation and/or enforcement.

    Ms. Judged (becd1d)

  13. An issue not addressed is, is it constitutional to require a 30 day hold for a car impounded under Veh. Code § 14206.2(a)(1)? That is, while it is appropriate & constitutional to impound a car because (a) the driver is unlicensed (for whatever the reason) & (b) the car cannot be safely left at the location where the stop occurred, shouldn’t the car be released to the lawful owner (or his agent) as soon as the the impound & police administrative fees have been paid & the owner shows up to take the car (assuming owner is licensed driver, the car’s registration is up to date, car is insured, etc.)?

    Look at it this way. Lets say cop stops a driver who is not the car’s registered owner, & discovers that the driver’s Cal. driver’s license had expired. The cop cites the driver for driving with an expired license & then impounds the car because the car cannot safely be left at the location where the stop occurred. Impounding the car would be constitutional under the “community caretaker” exception to the Fourth Amendment. Miranda v. City of Cornelius (9th Cir.2005) 429 F.3d 858. But in this case the car is impounded under Veh. Code § 22651(p) and NOT § 14602.6(a)(1) — the driver’s license was expired, not suspended or revoked or restricted per VC § 13352 or 23575. And since the car was impounded under § 22651(p), the registered owner can immediately go to the police station, pay the relevant administrative fees, get a release from the police, then go directly to the impound yard & upon payment of the impound yard fees, proof of car’s ownership & valid license, the car’s owner will get the car back — the same day it was impounded even.

    Take these same facts except that the car driver’s (who is not the owner) had his license suspended per a prior DUI conviction. The car will then be impounded under § 14206.2(a)(1). Even though he’s willing to pay the administrative & impound fees, has proof of ownership, current registration, car is insured & is a licensed driver, the car’s owner cannot get the car back for 30 frickin’ DAYS!

    The refusal to release the car immediately to the car’s owner I would say violates the Fourth Amendment since there is no justification for continuing to hold the car once the fees have been paid, etc. The mandatory 30 day hold also comes down hardest on the poor while enabling impound yards to reap a windfall — the impound yard’s daily storage fees for a 30 day hold can easily exceed the value of many cars &/or the owner’s financial ability to reclaim his car. And lost of a car, of course, frequently has major collateral consequences to persons’ lives. So the poor don’t reclaim their cars which the impound yards then turn around & sell to pay for the storage fees. And if the car’s sale brings in more money than what was owed, guess who pockets the difference? The impound yards.

    It is true that illegal aliens are more likely to suffer the effects of the mandatory 30 day hold — illegals often don’t have driver’s licenses or the money to get a car back after a 30 day impound. But a desire to punish illegals doesn’t in my view justify a law mandating a 30 day hold.

    But the attitude of many seems to be that since § 14206.2(a)(1) affects primarily the poor & illegals, why should anyone care.

    DWC (06ea11)

  14. Web Reconnaissance for 09/19/2007…

    A short recon of what’s out there that might draw your attention, updated throughout the day…so check back often….

    The Thunder Run (59ce3a)

  15. the law says “may”. that’s not a command, it’s an authorization.

    I suppose one could argue that “may either [x] or [y]” is a command to do one of the two (because either / or implicitly excludes other alternatives), but you could also argue that if the legislature wanted to issue a command, it would have said “must either [x] or [y]”.

    the latter is, in my view, a stronger argument. reading “may” as a command rather than an authorization makes “may” and “must” equivalent, and provides no way for the legislature to authorize, outside of convoluted phrasing (“is authorized to” is a convoluted longhand for “may”, and it would be much better if the legislature didn’t need to use phrases which alienate non-lawyers).

    aphrael (e0cdc9)

  16. But the attitude of many seems to be that since § 14206.2(a)(1) affects primarily the poor & illegals, why should anyone care.

    Or they just possibly think that letting someone who isn’t allowed to drive borrow your car is a bad idea.

    Taltos (c99804)

  17. I’ll completely agree with your update, Patterico. There is no way this language mandates vehicles be impounded:

    …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.

    Jack, do you stand by your assertion or are you withdrawing it?

    Christoph (92b8f7)

  18. The L.A.SLIMES its just the west coasts version of the NEW YORK SLIMES not mauch differnece between them

    krazy kagu (e08c0e)

  19. As used in this section “may” is a “shall” because the officer can do one of two things:
    A) Arrest the person and tow their car or B) Tow the car if it’s involved in a crash.

    If the car isn’t involved in a crash, see A).

    Therefore, “may” equals “shall” as used in this section.

    It’s not rocket-science folks…

    thebronze (17f671)

  20. Ms. Judged #12:

    #

    At the risk of sounding overly legalistic, the rules of statutory construction, used by all judges when attempting to determine legislative intent, rely upon the presence of certain words to guide them. For instance, the presence of words such as “must”, “shall”, or “mandatory” in a statute signal that no discretion exists in the implementation of its provisions. On the other hand, use of the words “may” or “should” are understood to allow a range of options as to intepretation and/or enforcement.

    ————————-

    As a matter of fact, that rule is codified at the begining of most if not all California codes. For the Vehicle Code, it’s here:

    15. “Shall” is mandatory and “may” is permissive.
    Sec. 15, Veh. C.

    Itsme (1558a5)

  21. aphrael #15:

    I believe you are correct. The proper drafting for a mandatory action would be:

    “The officer shall do either of the following:

    (1)
    (2)

    In addition, the Legislature often uses this sort of precatory language when it wants to avoid imposing a mandate. As in reimbursable state-mandated program.

    Itsme (1558a5)

  22. the bronze #19:

    Right, the officer can do one of two things. There’s nothing that says he or she is required to do either one.

    Itsme (1558a5)

  23. #13…
    It would also seem that the 30-day impound would have 8th Amendment consequences?
    Of course, (snark alert) we could just delegate this problem to nk, and he could conduct summary executions in the field.

    Another Drew (8018ee)

  24. PS on my #21:

    Technically, it’s permissive language, not precatory language. For any sticklers out there.

    Itsme (396dde)

  25. It seems clear to me that if the officer decides to arrest the driver for whatever reason he has no choice but to impound the automobile as there is no may before the word and in the phrasing of Section 14602.6(a)(1) of the California Vehicle Code. The may comes before either, not after.

    Jose Sanchez (8b7c3d)

  26. My comment should have read:

    ..there is no may after the word and. Sorry.

    Jose Sanchez (8b7c3d)

  27. If he arrests he has to impound. And if he impounds it has to be for 30 days. In the case of a collision he is permitted to impound without arrest. Seems pretty clear to me. There’s discretion there but it’s the kind of discretion which distinguishes peace officers from soldiers.

    nk (474afa)

  28. Sorry Jose and NK, I believe you’re both wrong. There is no requirement to impound. It is permissive language: “The peace officer may either … or … ”

    See my post #6, for example.

    If the officer exercises the discretion to impound, it must be for 30 days.

    Itsme (396dde)

  29. PS to NK:

    See also the provisions governing the authority to remove vehicles generally. Every one of them in this chapter authorizes, but does not require, a peace officer to remove a vehicle under certain circumstances.

    For example:

    22651. Any peace officer … 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.
    (2) When an officer serves a notice of an order of suspension or revocation pursuant to Section 13388.

    Vehicle Code

    It looks like Section 14602.6, which appears in the area of the Vehicle Code governing violations of licensing provisions, basically authorizes the officer to impound the car without having to perform an arrest.

    Itsme (396dde)

  30. Sorry, every one of them in that chapter.

    Itsme (396dde)

  31. thebronze, at 19:

    I don’t think that’s right, as I addressed in my comment. For one thing, the linguistic construction “may either [x] or [y]” is, in everyday use, parsed as “may (either [x] or [y])”; I can see no good reason to use an unnatural parsing in this case. This is especially true because your proposed rule would leave the legislature with no way to say “may (either [x] or [y])”, whereas parsing that the natural way leaves the legislature able to say “must either (x) or (y)”.

    aphrael (e0cdc9)

  32. aphrael #31:

    You are correct, sir. (madam?)

    In fact, if one wants to be truly compulsive (ahem), one could look at the way the language came about in the first place.

    Sec. 14602.6 was added to the Vehicle Code in 1994:

    14602.6. (a) Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked or without ever having been issued a license, the peace officer may immediately arrest that person and cause the removal and seizure of that vehicle in accordance with Chapter 10 (commencing with Section 22650) of Division 11. A vehicle so impounded shall be impounded for 30 days.

    Bill digest:

    (10) Existing law allows a vehicle to be impounded when, among other things, the driving privilege of the driver has been suspended or revoked for specified offenses and there is no
    passenger in the vehicle who has a valid driver’s license and authorization to operate the vehicle.

    The bill would expand the scope of specified offenses and would remove the restriction that there must be no passenger able to operate the vehicle before a vehicle may be impounded
    under the above circumstances. This bill would specifically authorize a peace officer to immediately arrest any person who is driving a vehicle while his or her driving privilege is suspended or revoked or when the person is driving without ever having been issued a driver’s license and to cause the removal and seizure of the vehicle. The bill would provide for a 30-day impoundment on that vehicle subject to a hearing.

    SB 1758

    Then it was amended the next year to add the second phrase:

    14602.6. (a) Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked or without ever having been issued a 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.

    Bill digest:

    (2) Existing law authorizes a peace officer to arrest a person and cause the removal and seizure of the person’s vehicle when the officer has determined that the person was driving the vehicle while the person’s driving privilege was suspended or revoked or without ever having been issued a driver’s license. A vehicle so impounded is required to be impounded for 30 days.

    This bill would authorize the officer to remove and seize the vehicle, without the necessity of arresting the person, when the vehicle in the above situation has been involved in a traffic collision.

    SB 833

    Itsme (8393b5)


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