new impoundment report 072110

8/9/2019 New Impoundment Report 072110

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Report on Impoundment of Vehicles

Driven by Undocumented Immigrants in the City of Santa BarbaraJuly 31, 2010 (typos and minor errors corrected from 7/23/10 version)

Russell Trenholme

The author wishes to thank Belen Seara, Executive Director of PUEBLO and PUEBLOEducation Fund board members Greg Prieto and Arthur Stevens for help with thisreport. The content and conclusions are the sole responsibility of the author. There has

been no independent proofreading, and there are probably some remaining errors. Letme know if you discover any. The Excel spreadsheets and statistical analysis discussed in

the report may be obtained by emailing me, [email protected]

Background

According to documents provided to PUEBLO by the Santa Barbara Police Department(SBPD) under the Public Records Law, the department issued 2,911 citations for

unlicensed driver (CVC 12500) from the beginning of 2007 until mid-August 2009.Almost all of these citations resulted in 30-day impoundments of the vehicles driven atthe time of the citation. This is because the department has a mandatory impound orNo license, no car, no exception policy which departmental documents state is thecornerstone policy of the departments traffic section. The overwhelming majority ofthe impounded vehicles were driven by undocumented immigrants who, since 1993, havebeen prohibited from obtaining a California drivers license.

A 30-day impoundment is a very severe penalty. The driver is typically deprived of ameans of getting to work for a month. In addition, the driver not only must pay a largefine for the 12500 citation, but also must pay over $1,500 in towing and impoundment

charges plus an administrative fee to the department before the vehicle can berecovered. The impoundment program is viewed by most Latinos as aimed at theircommunity.

The SBPD cites the following law (CVC 14602.6 (a)(1)) to justify these impoundments:

14602.6. (a) (1) Whenever a peace officer determines that a person was driving avehicle while his or her driving privilege was suspended or revoked, driving avehicle while his or her driving privilege is restricted pursuant to Section 13352 or23575 and the vehicle is not equipped with a functioning, certified interlockdevice, or driving a vehicle without ever having been issued a drivers license, thepeace officer may either immediately arrest that person and cause the removal andseizure of that vehicle or, if the vehicle is involved in a traffic collision, cause theremoval and seizure of the vehicle without the necessity of arresting the person inaccordance with Chapter 10 (commencing with Section 22650) of Division 11. Avehicle so impounded shall be impounded for 30 days.


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CVC 14602.6 is part of the Safe Streets Act of 1994 which was intended to severelypunish drunk drivers and similar serious traffic offenders whose licenses had beenrevoked or suspended (guilty of violating CVC 14601). Note the wording that stipulatesthat the law also applies to unlicensed drivers who have never been issued a license. Itdoes not apply to unlicensed drivers who previously had been issued valid licenses, thus

it does not apply to all unlicensed (12500) drivers.

In 1994, almost all Hispanic immigrants living in California, including undocumentedimmigrants, were in possession of valid California drivers licenses which were availableindependently of immigration status until 1993. At that time, the ranks of never-licenseddrivers consisted principally of those who, for being underage or possessing physical ormental handicaps, were deemed incapable of safe driving. However, after 1993, as thedrivers licenses of undocumented immigrants came to expire year-by-year withoutpossibility of renewal, and as new immigrants crossed the border without visas, thenumber of unlicensed immigrant drivers grew rapidly. The result was that, in recentyears, the overwhelming majority of unlicensed (including never-licensed in California)

drivers have been undocumented immigrants rather than the mentally or physicallyhandicapped persons who constituted the unlicensed driver group prior to 1994. In fact,these undocumented immigrant drivers came to greatly exceed the group that was the realtarget of the law: the serious offenders (14601 drivers) whose licenses had beensuspended or revoked, typically for drunk driving so that now less than 20% of impoundsare of vehicles driven by suspended or revoked drivers. (These issues are discussed inmore detail in Appendices III and IV).

This report lists five problems in the way the SBPD handles impoundments. These comeout of an analysis of departmental procedures and actions as revealed by the documentsturned over to PUEBLO. A list of recommendations follows the discussion of theseproblems. Appendices discuss the statistical analysis, legal issues, and the lack offoundation for the widely-held view that undocumented immigrants are dangerousdrivers.

Problem 1: The Santa Barbara Police are illegally impounding vehicles driven by

previously-licensed drivers whose licenses have expired.

Many undocumented immigrants entered the country legally with valid visas, obtainedvalid California licenses, but then overstayed their visas. As their licenses expire, with nopossibility of renewal, these newly unlicensed drivers become subject to punishment forviolation of CVC 12500. This is also true of undocumented immigrants who had obtainedvalid licenses prior to 1993. However, vehicles driven by such persons are not subject toimpoundment under CVC 14602.

The Santa Barbara Police Department mandatory tow policy is in violation of CVC14602 which only sanctions 30-day impounds of vehicles driven by never licenseddrivers. In fact, the SBPD treats all unlicensed drivers (12500s), whether or notpreviously licensed, as subject to having their vehicle impounded for 30 days, and all


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unlicensed drivers are treated the same as the serious offenders (14601s) whose licenseshave been revoked or suspended. All departmental documents and forms reflect thiserror, treating a 12500 citation as automatic grounds for a 30-day impoundment. Forexample, the report sheets used at DUI checkpoints, and for various patrols, treat a 12500violation as one of the two possible reasons for an impound (the other being 14601). This

is not a gray area of legal interpretation. The State Attorney General issued a reportcritical of the Maywood Police Department, and the report explicitly criticizes thedepartment for failing to check whether the driver had ever been issued a license.

Problem 2: The Fourth Amendment requirement that the police only impound

vehicles that are creating public safety issues is consistently ignored by the SBPD.

The 9th Circuit Court of Appeals (which governs California) recently ruled thatmandatory impoundment is in violation of the Fourth Amendment (Miranda v City ofCornelius http://caselaw.findlaw.com/us-9th-circuit/1075130.html ). An impoundmentmust be justified through the community caretaking doctrine. Police cannot simply

claim to be following a state law (whose constitutionality is currently before the samecourt) because impoundment under CVC 14602.6 is discretionary (may not shall isthe operative word). In the Miranda v Cornelius case, the vehicle driven by an unlicenseddriver was safely parked in a private driveway when it was impounded. The SantaBarbara police have been known to impound a car safely parked in aprivate garage whenthe police officer did not even observe the unlicensed driver driving the car. This isclearly contrary to the Miranda decision, as the 9th Circuit Courts comments in a recentcase in Glendale, make clear: Our recent decision in Miranda v. City of Cornelius, 429F.3d 858, 865 (9th Cir.2005), held that the government has the power to seize vehicles ifthe driver is unable to remove the vehicle from a public location without continuing itsillegal operation. This failure to distinguish public and private locations is only oneextreme example of the failure of the SBPD to follow the community caretaking doctrinein deciding whether an impound is justified. Legal issues are discussed further inAppendix III.

Problem 3: There is strong evidence that immigrants are being

illegally targeted by some officers on Saturation and Directed Patrols

Number of 12500 Impounds: Because of the departments mandatory impound policy,it is possible to estimate the number of 30-day impoundments by simply adding up thenumber of 14601 and 12500 citations issued. The department provided 12500 and 14601citation data to PUEBLO for all of 2007 and 2008 and for the first seven and one halfmonths of 2009 (see Appendix I). This data indicates that 599 vehicles driven by revokedor suspended drivers (14601s) were impounded whereas 2,911 vehicles driven byunlicensed drivers (12500s) were impounded (83%). When we look at the statistics onother categories of citationscitations for moving violations, for equipment violations,drunk driving arrests we find that a 12500 citation is the most common citation givenby the Santa Barbara Police Department over the past two years, exceeding the total of allthe various moving and equipment citations combined. It appears that impoundingvehicles driven by undocumented immigrants is the principal activity of the traffic


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section. Moreover, the increase in 12500 citations is notable: from 912 in 2007 to 1377 in2008 and a projected total of 1678 for 2009. This is a 51% increase from 2007 to 2008and an 81% increase for the first seven months of 2009 over the first seven months of2008 (the only months for which we received complete 2009 data). 1

Among the data turned over by the department are report sheets for each checkpointconducted during 2007, 2008 and part of 2009, for each DUI Saturation Patrolconducted during 2008 and part of 2009, and for Directed Patrols conducted during thesame period (these two types of patrols are discussed below). We were also given datasummarizing, by month, all 12500 and 14601 citations during 2008 and most of 2009.2008 is the only year for which we have comparable statistics for each category. The datashows that 1198 12500 citations were issued during 2008. However, the checkpoints,Saturation Patrols, and Directed Patrols, jointly total only 296 12500 citations. Thus 902,or 75%, of the 12500 citations issued (during 2008) are unaccounted for by the reportsheets provided PUEBLO. I was told that these 12500 citations were issued duringroutine patrol activities for which no report sheets are filed. So our analysis is limited to

what happened at checkpoints, or during Saturation and Directed Patrols as revealed bythe report sheets we did receive.

Sobriety Checkpoints: Checkpoints have been a focus of protests and complaints byHispanic drivers because of their intrusiveness and because of the perception that theirprimary focus often appears to be on impoundment rather than drunk driving.Checkpoints were sanctioned by the California and U.S. Supreme Courts as justifiableexceptions to the Fourth Amendment prohibition on unwarranted searches and seizuresbecause of the crisis posed by drunk drivers. Both courts recognized that sobrietycheckpoints areprima facie in violation of the Fourth Amendment, but ruled that suchcheckpoints could be conducted provided adequate safeguards to minimize theirintrusiveness were put into place. In its split decision, the U.S. Supreme Court acceptedthe checkpoint procedures used in the State of Michigan. According to these procedures,drivers licenses were only checked when the driver of the vehicle stopped at the

checkpoint showed evidence of intoxication. The California Supreme Court imposed anumber of restrictions on how checkpoints are to be conducted (known as Ingersollguidelines); for example, checkpoints were to be publicly announced in advance, stopshad to be independent of officer discretion (for example, every car, or every other car, isstopped); vehicles had to be given an opportunity to turn around and avoid passingthrough the checkpoint, checkpoints were to be conducted at times and places wheredrunk driving has been a problem, etc.

1

The zeal with which the impoundment program has been pursued by the Santa Barbara PoliceDepartment is attested to by the expenditure of taxpayer money to promote the program through thedistribution of badges, stickers, ball caps, bumper stickers, T-shirts, coffee cups, press kits, andpamphlets, as well as the production of television commercials designed to build public support for theprogram. Here is a specific comment from one police document: The artwork will show a vehicle behind atow truck with a motor officer and his motorcycle next to the truck. The inscription will say, No License-No vehicle Santa Barbara Police Department STOP team. This logo was to be reproduced on 300 T-shirts,50 Polo shirts, 100 Tote bags, 50 baseball hats, 2500 pens and a white banner which would read, SantaBarbara DUI Checkpoint.


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A recent widely published study by The Investigative Reporting Program at U.C.Berkeley ( http://californiawatch.org/public-safety/car-seizures-dui-checkpoints-prove-profitable-cities-raise-legal-questions ) revealed that throughout California checkpointshave focused not on apprehending drunk drivers but on impounding vehicles driven by

undocumented immigrants, and that these impoundments are an important source offunding for police departments through the imposition of administrative fees. The studyfound that in some jurisdictions impoundments of 12500-driven vehicles occur at seventimes the rate at which drunk drivers are arrested. The administrative fees are typicallyused to fund overtime pay for police, thus creating an incentive to police officers tomaximize impounds. This is also the case in Santa Barbara where administrative fees areused to fund police overtime for the Directed Patrols which show the highest rates of12500 impoundments.

In Santa Barbara, conformity to the Ingersoll guideline requiring prior notification of acheckpoint is perfunctory and ineffective. The department simply sends an email to major

news organizations which ignore them: the notice of an upcoming checkpoint neverreaches the public. In addition, checkpoints are set up in such a manner that it is verydifficult for drivers to anticipate and avoid them. However, these failures have aninteresting consequence. Since drivers enter checkpoints unknowingly without possibilityof exiting, vehicles stopped at checkpoints represent a relatively unbiased sample ofvehicles and drivers on the road at night during the hours in which checkpoints areconducted. In particular, the data received by PUEBLO on checkpoint stops providesgood estimates of the percentage of 14601 (revoked or suspended) and 12500(unlicensed) drivers who are driving at night. The checkpoint data indicate that thesepercentages are quite low: only 4/10 of 1% for 14601 drivers, and 1.2% for 12500drivers. (In the case of 14601 drivers, only 46 vehicles out of 12,344 checkpoint stops;and only 155 12500-driven vehicles. The percentage of DUI drivers discovered is only6/10 of 1%. Rather than focusing on the abuse of checkpoints (the principal focus of theUC Berkeley investigative report), this report focuses on impoundments resulting frompatrol activity.

Saturation Patrols and Directed Patrols and Potential Targeting of 12500 Drivers:

Given these low percentages, it is surprising to find that 5.6% of the vehicles stoppedduring night-time Saturation Patrols received 12500 citations, as did 18.5% of thedrivers stopped on night-time Directed Patrols.

2These high percentages suggest that

patrol officers have found a way of identifying and targeting target unlicensed drivers.Since the vast majority of 12500 drivers are undocumented immigrants, the easiest wayof targeting an unlicensed driver is to target an undocumented immigrant. This may bedone by racial profilingnot easy during a late night patrol; by focusing patrol activityon immigrant neighborhoods; or by focusing attention on the type of vehicles typicallydriven by undocumented immigrants.

2 Directed Patrols were originally supported by state grants used to implement thedepartments STOP program which targets unlicensed drivers. These patrols are nowself-funded through the administrative fees collected from impoundments.


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The latter method can be quite effective, since in a wealthy community like SantaBarbara, the overwhelming majority of older, low-value vehicles are driven by thepoorest segment of the population: unlicensed immigrants. It is not only a question ofpoverty, however. Since undocumented immigrants know that they face a substantial risk

of having their vehicles impounded for 30-days and the recovery cost exceeds $1500,they rationally conclude that it is better to drive a junker (carcacha) which can beabandoned in case of impoundment if they lack the funds to recover the vehicle.

The Santa Barbara Police Department strongly denies profiling immigrants. But profilingis an emotionally-fraught term, with strong connotations of prejudice based on racialcharacteristics. Even the notorious Sheriff of Maricopa County in Arizona, Joe Arpaio,denies profiling. As just noted there is a much more effective means of identifyingundocumented immigrant drivers.

From a legal standpoint, the issue of identification of these drivers is besides-the-point.

The Fourth Amendment has consistently been interpreted by the courts as allowing for astop to check documents in one case: evidence of a probable violation of the law.Typically, the law involved in a traffic stop would be a traffic law: the driver is observedspeeding, observed making an illegal turn, driving without required lights, etc. Theseinfractions are classified on police reports as either moving or equipment violations. Inaddition, a vehicle may also be observed driving in a manner that suggests intoxication(the criteria are spelled out by the National Highway Traffic Safety Administration). It isnot legal to apply a stricter standard to an older vehicle that the officer assumes belongsto an undocumented immigrant.

3If unlicensed drivers are being legally stopped at very

high rates, then they must be committing traffic offenses at very high rates comparedwith other drivers. Despite all the stereotyping of the dangerous unlicensed driver bythe police, this seems highly unlikely. The lack of any factual basis for these stereotypesis discussed in Appendix IV.

In fact, a common observation is that unlicensed immigrant drivers are timid and carefulbecause they are afraid of being stopped and having their vehicles seized and impoundedfor 30 days. But we dont have to rely on anecdotal evidence. If unlicensed driversalmost all of whom are undocumented immigrantsare really especially bad drivers whoare stopped for legitimate reasons, then they would be receiving a proportionately largenumber of moving and equipment citations. Patrols with a high rate of 12500 impoundsshould be giving out traffic citations (for moving or equipment violations) at a similarlyhigh rate. But, in fact, the patrols that impounded the highest percentage of 12500

3The Federal Government is investigating the Maricopa, Arizona, Sheriffs department for selective

enforcement various laws, including minor traffic offenses. Almost all those detained are Hispanics. From arecent story: Thursday's operation would mark the 17th time Arpaio has deployed hundreds of deputiesand volunteer posse members in an area of the Valley to root out illegal immigrants. Deputies typically takea "zero tolerance" approach to traffic offenseshttp://www.azcentral.com/community/phoenix/articles/2010/07/29/20100729joe-arpaio-immigration-sweep.html#ixzz0vES2KfIgIt is not legal to concentrate strict enforcement of traffic laws (e.g. driving slightly over the speed limit) oncertain ethnic groups, regardless of the motivation. Traffic laws must be applied impartially.


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vehicles actually gave out fewer moving or equipment citations! But if these 12500drivers are not being stopped for traffic violations, then they are being stopped illegally.The high rate of 12500 impounds on many Saturation Patrols and Directed Patrolssuggests that some police have found a way of targeting unlicensed immigrant driversand unlawfully stopping them.

PUEBLO received usable report sheets for 50 Saturation Patrols that took place during2008 and the first six months of 2009. During a majority of the patrols (29 patrols), 332vehicles were stopped, 58 citations were given for moving and equipment violations(17% of stops), 5 suspended or revoked (14601) drivers were cited, but not a singleunlicensed (12500) driver was encountered. In statistical terms, the modal percentage of12500 citations is zero, and the median percentage is also zero. This is what we wouldexpect if undocumented immigrants are average drivers who form a very low percentage(1.2% if we accept checkpoint statistics) of night-time driversthat is, if undocumentedimmigrants are not being illegally targeted for traffic stops during patrols. The policerunning these patrols appear to be acting in keeping with the law.

The overall 6.5% rate of 12500 citations on Saturation Patrols came from the remaining21 patrols which have a combined 12500 rate of 11.4%. These 21 patrols stopped 370cars and cited 42 drivers for 12500 but instead of giving out more moving and equipmentcitations as would be expected if the stops were legal, they gave far fewer moving andequipment citations than the zero 12500 patrols: such citations occurred during only 10%of their stops versus 17% during the 29 patrols that found zero 12500s. It certainly,doesnt look as if the 12500 drivers were stopped because of dangerous driving.

The evidence from the Directed Patrol data is even stronger. We have usable data forDirected Patrols in 2008, and 102 in 2009 (through November). Altogether there were539 12500 impoundments in 2,895 vehicle stops for a rate of more than 18.6%. But thedistribution is highly skewed, with a relatively low peak and some extreme high 12500%outliers pushing up the mean (average). The modal (most common) percentage of 12500stops is zero (the same as with Saturation Patrols). Twenty-two patrols with 277 stopsgave 89 moving or equipment citations, cited 12 drivers for suspended or revoked license(14601), but did not encounter or cite a single unlicensed (12500) driver. In contrast,there were another 22 patrols with 184 stops that cited half or more of the vehicles theystopped for 12500 (102 in all). And these high 12500 percent patrols had a lowerstoppercentage for traffic violations than the 22 patrols that encountered zero 12500 drivers.The high 12500 patrols only impounded 7 cars for 14601. It is hard to believe that thecars of these unlicensed drivers were stopped for legal reasons (probable cause of a lawviolation) during these 22 high 12500% patrols.

To get further insight into the high 12500 citation rates during Directed Patrols, wecompiled statistics by individual officers. We focused on the 21 (of 38) officers who ranat least two patrols in order to have a sufficient basis for comparison. These keyofficersmay be divided into four groups or clusters based on their 12500 citation rate (per stop).The first cluster (which forms the lowest quintile of the key consists of four officers with12500 rates of 3% to 7%. The second cluster consists of 9 officers with 12500 citation


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rates from 9% to 13%. The third cluster consists of 4 officers with 12500 citation ratesfrom 17% to 23%. The last cluster consists of the four officers with the highest 12500citation rates, ranging from 33% to 48%. This group represents the highest quintile of thedistribution. In fact these four officers ran 19 of the 22 patrols with 12500 stop ratesgreater than 50%. If all the patrols were operated under the same conditions, including

stop procedures, the distribution of the 12500 rates would approximate a normaldistribution, and we can use standard statistical methods to calculate the probability ofvarious stop rates. These calculations are explained in Appendix II.

Further evidence that unlicensed drivers are being targeted on patrols comes from acomparison of 14601 (suspended or revoked) and 12500 (unlicensed) citation rates. Sinceneither offense is visible until the drivers license is checked, in the absence of profilingor targeting we would expect the ratio of 12500 to 14601 citations to be relativelyconstant, or for the percentage of 14601s to increase relative to 12500s on patrols(because of the proven bad driving of revoked and suspended drivers and also becausepatrol officers carry hotsheets identifying them; looking for these drivers is a primary

mission of Direct Patrols). But the opposite is the case.

During checkpoints, which randomly sample the population of night drivers, there arethree times as many 12500 citations as 14601 citations (1.2% versus 0.4%). In otherwords, 75% of impounds at checkpoints were 12500s, only 25% 14601s. But instead of arelative increase in 14601s as the result of hot sheets, 14601s actually declined to just13% of the total during Directed Patrols, and 12500s climbed from 75% to 87%. Thus theratio of 12500s to 14601s increased from 3:1 to almost 7:1. It is difficult to think of anyexplanation for the relative increase in in 12500 citations during Directed Patrols otherthan that immigrant drivers (who constitute the vast majority of unlicensed drivers) arebeing identified then illegally stopped for a drivers license check.

The patrol report sheets thus provide strong evidence that some officers are not followinglegal stop procedures and that, by one means or another, these officers are targetingundocumented immigrants. In Appendix II, there is a more technical discussion of thestatistical evidence for targeting. It is possible to show that the distribution of 12500 stopson Directed Patrols is so skewed that it is a statistical impossibility that certain officerscould have legally stopped so many 12500 drivers by chance if the drivers werefollowing consistent procedures. On the other hand, the statistics for the low 12500%officers are consistent with a normal distribution, and are highly probably given a 1.3%mean 12500 rate as indicated by checkpoint data.

One possible reason for the high 12500 impoundment rate found during Directed Patrolsis that the program is self-funded; that is, the overtime pay for the officers sent out onDirected Patrols is paid for by the administrative fee charged when impounded cars arerecovered. If so, it is perhaps not surprising to discover that officers on Directed Patrolscite a far higher percentage of 12500 drivers than officers on other patrols (e.g.,Saturation Patrols) or at sobriety checkpoints.


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Problem 4: Officers with suspiciously high 12500 stop rates are sent out on

Directed Patrols much more often than the officers with low 12500 stop rates

If we look at the individual statistics for the four high 12500% officers just mentioned(the fifth quintile of the key officer distribution), we find that they are sent out on patrol

much more than the officers with the lowest 12500 stop rates (the first quintile): 71patrols in the case of the high 12500 officers compared with only 16 patrols for the low12500 officers. Could this be the result of the departments emphasis on impoundments?Or perhaps is it perhaps because the 12500% officers are producing the revenue (throughthe Administrative Fees collected when cars are recovered from impound) to pay theovertime of Directed Patrol officers?


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Problem 5: Inadequate reporting serves to cover-up potential illegal impounds

The evidence just presented from Saturated Patrol and Directed Patrol data stronglysuggests that some patrol officers are targeting undocumented immigrant drivers fordrivers license checks and likely impounds. Eyewitness accounts are hard to obtain.

Undocumented immigrants almost never contest impounds because fear of deportationcauses them to remain silent. Better documentation is the best way for the department toidentify over-zealous officers who are making illegal stops and would serve as a deterrentto abuse.

Another problem is the lack of any departmental training or clear guidelines on legalvehicle stop procedures. PUEBLO asked the Santa Barbara Police Department for alldocuments relating to stop procedures; none were provided. It appears that there are nowritten guidelines or directives regarding permissible traffic stops.

The report sheets are incomplete in important respects. First, they fail to record a reason

for a stop that leads to an impound. The reports provide no information on where thestops occurred; in fact, even overall patrol locations (and checkpoint locations) are neverindicated on the reports so there is no way of confirming that the locations were locationswith high accident or drunk driving incidents as recommended by the National HighwayTraffic Safety Administration.

The State Attorney Generals investigative report on the Maywood Police Departmentcontains language that applies word-for-word to the Santa Barbara Police Department:

Review of Department impound records and other police reports revealed therepeated failure to articulate, with sufficient detail, the facts supporting reasonablesuspicion for stops. When a traffic stop results in a citation and impound, it isstandard police practice for the citing officer to note the initial reason for thetraffic stop (the applicable code violation and short narrative) in the officersreport. few drivers who were subjected to impounds were cited for anypurported violations that led to the stop; rather the majority of citations wereissued solely for the violation of driving without a valid drivers license. This lackof information regarding the reasonable suspicion required for the stops is highlyirregular and supports a strong inference that the Maywood Police Departmentengaged in a pattern or practice of conducting unlawful traffic stops. (pp. 13-14)

The Attorney Generals report also criticized the sketchy manner in which reports arecompleted, a problem that also characterizes Santa Barbara patrol reports:

The Maywood Police Department has accepted poor and insufficient reportwriting by officers. (p. 24)

Since immigrants are afraid to speak out, the best restraint on illegal stops is strongoversight by the department, and such oversight depends on complete documentation of


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stops. Without this information, the department can simply claim that profiling is againstdepartment policy and that it has no knowledge of profiling.

Because reports may also be falsified, the State Attorney General recommended thatMaywood patrol cars be equipped with video cameras to record what took place during a

traffic stop.

The problem goes far beyond the deficiency of Saturation and Directed Patrol reports,however. Statistics reveal that (during 2008, the only year for which we have fullstatistics for all categories) about 75% of 12500 citations are unaccounted for byCheckpoint, Saturation Patrol, or Directed Patrol stops. These unaccounted for 902 12500citations are not covered by any reports! According to my conversation with SergeantRivas, head of the Traffic Section, these missing impounds result from normal daytimepatrol activity which is not documented by report sheets. It is essential that alltrafficstops resulting in 12500 citations be fully documented; it is not sufficient to focus only ofSaturation and Directed Patrols.


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Specific Recommendations Relating to Reports, Forms, and Procedures

1. Create a new report form to be used for each 12500 or 14601 citation not arising

from a checkpoint. The report should give the location of the stop and the legaljustification for the stop. Normally, a legal probable cause results in a moving orequipment citation. In the case of an impoundment of a car driven by a driver citedfor 12500, the report should note: 1. whether the 12500 driver offered any evidenceof having a current or expired non-California drivers license or an expiredCalifornia drivers license , or claimed to have had one, and how the decision toimpound was arrived at despite this evidence, and 2. The reasons the car was towedrather than being turned over to a licensed driver or safely parked.

2. Install and use video cameras to record stops. This is far less costly than in the past,and in the short run, cameras could be installed in the cars of officers withsuspiciously high rates of stops of 12500 drivers.

3.

All checkpoint and Saturation or Directed Patrol reports should indicate the locationof the checkpoint or of the area covered by the patrol. All 12500 or 14601 citationsissued during a checkpoint that occur as a result of stops of vehicles outside thecheckpoint itself should be individually documented as in recommendation 1 above.

4. Clear written guidelines should be provided as to the legally justifiable reasons for atraffic stop. Officers whose citation activity is abnormal with respect to the largenumber of 12500 citations or low numbers of moving and equipment citationsrelative to stops should be questioned as to their stop procedures and steps should betaken to ensure that all stops are legally justified.


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Appendix I

Discussion of Documents Received Under The Public Records Act

The statistics discussed in this report were complied from documents delivered toPUEBLO by the Santa Barbara Police Department in response to a request under the

Public Records Act. These include reports for each checkpoint conducted during 2008and part of 2009, for each DUI Saturation Patrol conducted during 2008 and part of2009, and for Directed Patrols conducted during the same period. (We asked for allsuch reports, and if any are missing, they would be insufficient to affect the analysis.)

Scanned samples of Checkpoint, Saturation Patrol, and Directed Patrol report sheetsfollow this introduction. A discussion of how discrepancies were handled follows thesample the sample of each type of report sheet. Finally, there is a scanned copy ofDocument 000224 giving the monthly statistics for 12500 and 14601 citations.

All original documents are held in the PUEBLO office and copies of the original

spreadsheets are available for further analysis.


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Saturation Patrol Report Sheets

Sample (0 12500s in 8 stops: 0 is the modal number of stops on Saturation Patrols)

Saturation patrol report sheets have an entry entitled Total Number of Impound Towswith the further comment (Including DUIs arrested for 12500/14601). Immediatelybelow this entry are two entries, one for the number of 14601 tows and one for thenumber of 12500 tows. In principle, the numbers entered for the two types of tows shouldtotal to the listed total number of impound tows, but in four cases (000111, 000118,000125, and 000137) the total is one less. Where there is an entry for a DUI arrest weassume that it involved either a 14601 or 12500 tow, but the officer failed to record


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which probably explains the shortfall. We used the data separately entered for 14601 and12500 tows in these cases and did not attempt to judge whether the unlisted impound wasfor 14601 or 12500. This results in a small underestimation of the total number ofimpounds. In one case, however, (000110), the total number of impound tows is given as2, but no tows for 14601 or 12500 are given below, and in this case there was only one

DUI arrest. This report (000110) was simply omitted as being too confusing for analysis.Thus, it is likely that a small number of impound tows (maximum 6) have been omitteddue to careless recording.

There is also an entry for the total number of 12500 and 12601 citations. This almostalways equals the total of the number of 12500 and 14601 impounds entered. However,in three cases (000132, 000092, and 000103) there is one more entry in the citation totalthan the total of separately listed 14601s and 12500s. This may indicate that a citationwas given but that the vehicle wasnt towed. Since we are interested in impound tows, weused the separately listed numbers of 14601 and 12500 tows rather than the citationfigures. Finally, in one case (000083), the total number of impound tows was given as 5,

the total number of separately listed 12500 and 14601 tows is also 5, but only 4 citationswere issued. However, there was one DUI arrest which probably explains the missingcitation.

In summary, in only one case did the discrepancies result in omitting the SaturationPatrol report.


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Directed Patrol Report Sheets

Sample (63% of stops were 12500; this is a Fifth Quintile officer)


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A second Direct Patrol report sheet is reproduced because it graphically illustrates thepressure to produce impoundments. Patrol officer 7 says Sorry! ong side a frownyface just below his 0 tally of impounds. This despite the fact that he gave an above-average percentage of moving and equipment citations. Officer 7 has typical 12500 stats,with an average at the median (12%) when the high outliers are excluded.

In general, the same protocol was used in analyzing Directed Patrol report sheets as forSaturation Patrol report sheets. The totals given separately for 14601 and 12500 impoundtows are used, even if their total is less than the listed total of 14601/12500 citations.There are five cases like this: 000501, 000493, 000454, 000415, and 000343. It ispossible that in some a citation was issued but the vehicle was not towed; or perhaps it is


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simply sloppy record keeping. Since the principal interest is in impounds, the keynumbers are the numbers given for each type of impound. Report 000446 shows 3impound tows, but only 2 citations; this looks like sloppy is presumably sloppy recordkeeping. Report 000437 shows a total of 4 impound tows but the separate entries onlytotal to 3; again this looks like is sloppy recording. Similarly with 000409 which shows a

total of 2 tows, but 3 12500 tows. Since we have clear separate totals for 12500 and14601 impounds, these reports were used in calculating statistics. The only reporteliminated from the Directed Patrol analysis is 000433 which does not list the number oftraffic stops making it impossible to calculate 12500s or 14601s as a percentage of stops.


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Checkpoint Report Sheets

Sample (less than 1% of the 540 checkpoint stops were 12500-driven vehicles)

One checkpoint report was eliminated due to confusing entries: 0000069 shows a total of6 14601/12500 impound tows in 308 stops but only indicates only 1 12500 tow and no14601 tows (under the entry that separates the two). Although the 1.9% overall impoundrate is in general agreement with the rate found on other patrols, it was decided to dropthe report since it is impossible to know how many of the remaining 5 tows were 14601sand how many 12500s.


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There is also some indication from other data that checkpoints occurred on 5/6/07 and on4/23/09 but we received no reports for those dates. Nevertheless, we have clear data on37 checkpoints conducted from January 20, 2007 to July 19, 2009 and these form thebasis of the analysis.

Another potential source of confusion on the checkpoint report sheets is that there is anentry for total number of traffic stops and another entry for total number of vehiclesthrough checkpoint. It turned out that the first entry refers to cars stopped outside of thecheckpoint or pulled out of the checkpoint line because of some obvious violation. Thesecond entry is for the actual number of cars through the checkpoint. In addition to the12,344 vehicles indicated to have passed through the 37 checkpoints, the reports showthat another 297 vehicles were stopped outside the checkpoints. Since the 12500s are notdistinguished as to whether they was discovered in the checkpoint line or outside it, wefelt compelled to include all 12500s, including 12500s arising outside of checkpoints, butwe did not add 297 to the checkpoint total in calculating the frequency of 12500s. Thishas the effect of raising (we dont know how much) the calculated percentage of 12500s

discovered at checkpoint stops.


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12500 and 14601 Citations by Month from January 2007 to Mid-August 2009


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Appendix II

Statistical Analysis

The data from the stat sheets was tabulated and entered onto spread sheets which werethen analyzed using standard statistical functions provided with Excel. These spread

sheets may be obtained by emailing the author of this report at [email protected] spreadsheets may be available from Greg Prieto who is writing his dissertation atUCSB on related material. Greg may be contacted through PUEBLO.

The estimate of the frequency of 12500 drivers on the road at night is based on the 1.3%(actually 0.012557) 12500 rate observed during 12,652 checkpoint stops. It assumes thatcheckpoint stops approximate a random sampling of the drivers on the road at night. Totest this assumption, we ran the Excel Statistics Descriptive Data module on the datafrom the 34 checkpoints; these are treated as samples from the underlying population.The mean of these samplesis a little higher than the overall mean, 1.6%. This resultsfrom 8 checkpoints (almost 25%) with much higher than expected 12500 rates. We ran a

99.9% confidence interval on this mean (which gives the range of means that occur bychange with a probability greater than one in a thousand). This revealed that there is99.9% probability that the population mean lies between 0.08% and 2.4%. Eightcheckpoints fell outside the upper bound of this range, with one at 4% and one at 5%which indicates that these checkpoints are atypicalperhaps because they were locatedin or near immigrant neighborhoods or were conducted earlier in the day when thepercentage of undocumented immigrant drivers is expected to be higher. The 1.3% figureis more accurate than the 1.46% figure because it is derived from the pool of allcheckpoint stops, but the closeness of the two means and the very tight confidenceinterval support use of checkpoint data in estimating the percentage of 12500 drivers onthe road at night.

To better understand the statistical analysis of Directed Patrol stops that follows, webegin by reviewing the conditionsthat would obtain if the patrols were conducted in alegal and unbiased manner. The four key assumptions are:

1. Grant-funded patrols are operated under requirements that insure relative uniformitywith respect to patrol areas and patrol mission;2. Patrol officers apply a consistent set of standards to traffic stops;3. These standards comply with state and federal law regarding legal traffic stops;4. The same stop standards are applied to immigrant drivers as to other drivers..

Given these four assumptions (which are consistent with the claims of the Santa BarbaraPolice Department), the citations for 12500 given on a patrol will be distributedaccording to a binomial distribution. That is, the percentage of 12500 drivers on the roadduring the usual patrol hours (generally 10 P.M. to 4 A.M.) who commit trafficinfractions justifying stops will form the mean of the distribution and the probabilities ofvarious numbers of 12500s relative to a given number of stops during a patrol can becalculated statistically. Similarly, the probability of various numbers of 12500 citationsrelative to total stops by an individual officer can be calculated.


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If 12500 drivers commit traffic infractions at a rate approximating that of all drivers, themean should be close to the 1.3% frequency of 12500 drivers observed at checkpoints.The actual mean 12500% on Directed Patrols is much higher: 18.6%. If all these 12500stops are legal then 12500 drivers are exceedingly dangerous drivers, committing movingand equipment violations at 12 times the rate expected from their 2.3% frequency on the

road at night.

Whether the stops are legal or not (that is, excluding assumptions 3 and 4), we can test tosee whether patrols are run under uniform conditions. (These tests are independent of anyassumptions about the true mean number of 12500 drivers on the road at night; thenapply whether or not 18.6% approximates the true mean.) If patrols are run in accord withassumptions 1 and 2, then the distribution of 12500 stop percentages should approximatethe textbook statistical model of selecting white and black balls (sight unseen) from avery large urn. This produces a binomial distribution (which approximates a normaldistribution given the large numbers involved). The distribution would be symmetricalaround the mean (which, if stops are legal, would be the percentage of 12500 drivers

committing traffic infractions relative to all drivers committing traffic infractions thatjustify a stop). By testing to see whether the actual observed distributions fit the model ofa binomial distribution, we can see whether the distribution is consistent withassumptions 1 and 2. We ran the standard Excel Descriptive Statistics Module on the 203Directed Patrols for which we were given usable data for 2008 and 2009. The mean stoprate per patrol is 21.7%. (Again, this is the mean rateper patrolrather than the 18.6%frequency found from pooling all Directed Patrol stops. It is higher because thedistribution is skewed high by a number of high 12500% patrols.)

A binomial distribution is symmetrical about the mean, the median equals (or at leastapproximates) the mean and the mode, and the skewness measure will be low (below0.344 according to statistical theory). In fact, the Excel Descriptive Statistics Data revealsthat the actual distribution is highly positively skewed (0.798): the median is 0.1847(compared with the mean of 21.7%), and the modal frequency is zerothere were morepatrols with no 12500 stops than any other frequency. Compared with a symmetricaldistribution, there were a disproportionate number of patrols with a very high rate (up to75%) of stops that resulting in 12500 impoundments. This is confirmed by a histogramand by a plot of the z-values of the patrol stop rates . The graphs clearly reveal theskewness, with a number of patrols in the far right tail. These statistics are inconsistentwith the assumption of a binomial distribution and indicate a lack of uniform stopprocedures. It also suggests that the high 12500% outliers are illegally targeting of 12500drivers for stops. And the fact that the modal 12500 stop rate is zero suggests that the18.6% mean results from illegal stops of undocumented immigrant drivers. Furtherevidence against the assumption that 12500 drivers are much worse than average isdiscussed in IV.

We then repeated the statistical tests by looking at the traffic stops conducted by the 21keyofficers who ran patrols (officers who ran only one Directed Patrol were excluded).If these officers were following uniform procedures we would expect high and low 12500rates to be randomly distributed among the officers. However, the distribution of


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12500%s per stop, grouped by key officer, is even more skewed than the data forindividual patrols. The mean (average percent of 12500s citations by officer) is 0.1679(16.8%), but the median number is only 0.1176 (11.8%).4 The skewness is 1.2719 whichagain indicates an unexpectedly long right tail (i.e., some officers with improbably high12500 rates). The z-value plot confirms this, with the 12500 rates of Fifth Quintile

Officers 17, 18, 19, and 20 extreme outliers at 33%, 34%, 37%, and 48%, respectively.In fact, 19 of the 22 patrols with 12500 rates of 50% or greater were operated by one ofthese four officers. The histogram shows the outliers well to the right of the rest of thedistribution.

Again we tested to see whether this is just an unlikely statistical anomaly. The four FifthQuintile officers had 33% or more 12500 stops. Assume that the distribution is abinomial distribution about the mean of 0.1679 (16.8%) for the 21 officers stop rates.(Grouping patrols by key officer produces a slightly different mean than the aggregatefrequency of 18.6%.) We then used the binomial function BINOMDIST in Excel tocalculate the probability that at least one of the 20 officers would have encountered k or

more 12500 drivers among the n cars stopped on the officers patrolswhere k is thenumber encountered by the officer and n is the number of stops. (The calculation uses the0.1679 mean as the probability of encountering a 12500 driver using the supposedlystandard procedures assumed for Directed Patrols. The calculations are explained indetail below.)

The Fifth Quintile outliers are Officers 17, 18, 19, and 20. Assuming a binomialdistribution (reflecting uniform conditions), what is the probability of one of the 21 keyofficers encountering as many as 62 12500 drivers in 190 stops? The answer is0.000001528, less than one in 640,000. Are we to believe that Officer 17, with thisprobability against his 12500 stop rate, was conducting only legal stops?

What is the chance of one of the 21 officers encountering as many as 164 12500 driversin 488 stops? The answer is zero to beyond 9 decimal places, or less than one in a trillion(due to the large number of stops). But Officer 18 cited 164 drivers for 12500 during his488 stops.

What is the chance of one of the 21 officers encountering as many as 40 12500 driversamong 109 stops? The answer is 0.00001064 or less than one in 98 thousand. But Officer19 (with a 37% rate of 12500s) did cite 40 drivers for 12500 during the 109 stops hemade.

And what is the chance that one of the 21 officers would encounter 20 12500 driversamong 42 stops? Because of the smaller sample size, the probability is a little larger,0.000075585 or less that one in 13 thousand. Officer 20 encountered 20 12500 driversduring his 42 patrol stops.

4 The reason the mean for the key officers is lower than the overall mean is that the high 12500 officersmade many more stops than average thus pushing the overall percentage above the mean for patrols sortedby officer. The means using the individual 12500 rates weighs all key officers equally, thereby reducing thedisproportionate effect of the high 12500 officers.


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And what is the probability that any selection of four officers out of 20 would jointlyproduce such extremely high 12500 rates? The odds against this happening areastronomical, and provide further grounds for rejecting the assumption that uniformprocedures are followed during Directed Patrol stops.

What about the four officers with the lowest 12500 citation rates (The First Quintile)? Wecalculated the probabilities that one of the 21 officers would produce 12500 rates as lowor lower than those of each of the officers in First Quintile (Officers 1, 2, 26, and 3).Converted to percentages, these are (respectively) 18% (one in 6), 86% (almost one),62% (one in 2), and 3% (1 in 33). These odds suggest that only Officer 3 exhibited a12500 stop rate that suggests non-conformity to the hypothesized standard that producedthe 16.8% average.

However, the 12500 stop rates of these four officers are completely consistent withfollowing legal standards for stops, with the 12500 stops forming a binomial distribution

about the 1.3% mean found for checkpoint stops? If 1.3% is the true mean (given uniformand legal stop procedures and average infraction rates by 12500 drivers), then the 12500stop percentages they encountered have probabilities all are extremely close to 1(certainty); that is, it is almost certain that at least one officer out of 20 would encounterthe number of 12500 drivers during n stops that were found by each of the four officers.On the other, the probability of the four highest 12500 officers obtaining the 12500 ratesthey did falls to zero to beyond nine decimal places if the true mean is close to 1.3%.

Most of the statistics cited in this report are straight-forward Excel functions or wereproduced by the Correlation, Descriptive Statistics, or Histogram modules in the ExcelData Analysis Pak.

Technical Discussion: The calculation of the probabilities associated with the possibilityof an officer who follows a uniform set of procedures obtaining some of the extremeresults found in the data were calculated using the POWER and BINOMDIST functions.(Many of the calculations were done using a Spanish-language version of Excel and thefunction names are in Spanish. However, their English translations are obvious.) Weillustrate the procedure using the Directed Patrol stats for Officer 17 who cited 62 out of190 cars stopped for a 12500 violation. First, we calculate the probability that an officerstopping 190 cars using standard procedures (with a mean group 12500 rate of 16.8%(0.1679) of stops) would not encounter as many as 62 12500 drivers. This is calculatedby BINOMDIST(61, 190, 0.1679, TRUE). (61 rather than 62 is used because the functioncalculates the probability of encountering 61 or fewer 12500 drivers from a stop of 190vehicles.) This probability is 0.999999927. Next, we calculate the probability of thisoccurring for all 21 officers. The probability of it occurring for the first officer is0.999999927; for the second the same; and for both the first and the second, 0.9999999272, and so on, and for all 21, 0.999999927

21. This is calculated by the function POWER:

POWER(BINOMDIST(61, 190, 0.19255, TRUE), 21) which equals 0.99999848. Thenthe probability of at least one officer out of 21 encountering 62 125002 is just theprobability of all 21 officers notencountering more than 63 12500s in 190 stops or 1-


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0.99999848 = 0.99999270.000001528. Inverting, this is one chance in 654,270. Theentire formula is

1-POWER(BINOMDIST(61,190,0.1679,TRUE),21)

In the case of testing the possibility of a low 12500 stop rate, we are interested in theprobability of one in 21 officers encountering a number of 12500s equal to or less thanthe number encountered on the stops. We begin by calculating this for a single officer (inthis case, we use Officer 3s stats): BINOMDIST(8, 116, 0.1679, TRUE) or0.001456884. The probability of a single officer failing to encounter as few as 8 12500drivers in 116 stops is 1-0.001456884 = 0.99854312. The calculation is:1-BINOMDIST(8,116,0.1679,TRUE). But the failure has to occur 21 times to insure thatno officer gets as few as 8 12500s in 116 stops. This is calculated by POWER((1-BINOMDIST(8,116,0.1679,TRUE) 21)) and the probability associated with at least oneofficergetting as few as 8 12500s in 116 stops is 1 minus this number, or 0.030152914.

These probabilities use the mean rate of 12500s found on Directed Patrols, 16.8%. Theprobabilities of various outcomes assumes the validity of that mean, which is over tentimes higher than the mean percentage of 12500s found at checkpoints. The very lowprobabilities associated with this artificially high mean demonstrates the the likelihood oftargeting is very high even if the percentage of 12500 drivers committing traffic offensesat night relative to the total number of offenses is as high as 16.8%--which seems highlyunlikely.

We also calculated various 12500 stop-rate probabilities using the mean percentage of12500 drivers derived from checkpoint data, 1.3% (actually 0.012557). These reveal thefour highest 12500 officers to be even more extreme outliers, with odds of the 12500 stoprates they produced to be less than 1 in 100 trillion. The analysis also shows that the fourlowest 12500 officers produced results that would be expected of at least one of 21officers given a 1.3% frequency of 12500 drivers on the road at night.


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Appendix III

Discussion of Legal Issues Relating to Impoundment

The principal abuse uncovered in Santa Barbara is lack of legal justification for many ofthe traffic stops that result in a 30-day car impoundment. The Fourth Amendment

prohibition on unwarranted searches and seizures has been interpreted by the courts asrequiring that police have reasonable suspicion to believe that a traffic law has beenviolated or other criminal conduct is occurring to justify a traffic stop. (United States v.Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1104-05). In addition, CVC 14607.6 states thatan officer shall not stop a vehicle for the sole reason of determining whether the driver isproperly licensed. If State and Federal law were being followed in Santa Barbara, wewould expect relatively few 12500 impoundments to result from traffic patrols, whichlegally can stop drivers and issue a citation only when there is evidence that a traffic law(or other law) has been violated.

A major concern of the Santa Barbara Police Department has been driving under the

influence (DUI). DUI drivers may be encountered at sobriety checkpoints, when they areinvolved in an accident, or when they violate a traffic law by careless or reckless driving.(The only arbitrary stops permitted by law are those occurring at carefully regulatedsobriety checkpoints, permitted by a 6-3 decision of United States Supreme Court in1993. The justices struggled with Fourth Amendment issues, but allowed sobrietycheckpoints as an exception due to the serious public danger of drunk driving.)Careless driving that gives evidence of impairment, according to the National HighwayTraffic Safety Administration Manual, falls under four categories: problems inmaintaining proper lane position, speed and braking problems, vigilance problems, andjudgment problems. When this driving behavior is observed, it is standard practicethroughout the country for the driver to be cited for careless driving or some related

moving offense, followed by administering field sobriety test or other means ofdetermining whether he or she is legally DUI. However, in the City of Santa Barbara,report sheets generated during patrols show no correlation (in the case of Directed Patrolsthere is a negative correlation) between citations for moving or equipment violations orfield sobriety tests administered and citations for driving without a license (12500). Acareful analysis of statistics generated from the reports provides strong evidence thatmany cars are being stopped without evidence that a traffic law is being broken or othercriminal conduct is occurring. And further statistical analysis establishes that these stopsare the result of targeting immigrant drivers.

History of CVC 14602.6

During the late 1980s and early 1990s, a national campaign to crack down on drunkdriving resulted in the passage, in 1994, of legislation known as the Safe Streets Act.CVC 14602.6 is part of this legislation. Its intention was to stop those convicted of drunkdriving and similarly serious offenses from driving after their licenses had beensuspended or revoked. But also referred to drivers who have never been licensed. Here isthe wording of 14602.6(a)(1):


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14602.6. (a) (1) Whenever a peace officer determines that a person was driving avehicle while his or her driving privilege was suspended or revoked, driving avehicle while his or her driving privilege is restricted pursuant to Section 13352or 23575 and the vehicle is not equipped with a functioning, certified interlockdevice, or driving a vehicle without ever having been issued a drivers license, the

peace officer may either immediately arrest that person and cause the removal andseizure of that vehicle or, if the vehicle is involved in a traffic collision, cause theremoval and seizure of the vehicle ( )

1without the necessity of arresting the

person in accordance with Chapter 10 (commencing with Section 22650) ofDivision 11. A vehicle so impounded shall be impounded for 30 days.

The reason drivers who have never been issued a drivers license were included wasbecause state law had spelled out conditions under which the state could refuse a license(CVC 12806): alcoholism or drug addiction; lapses of consciousness, and physical or

mental disabilities that could affect the safe operation of a motor vehicle. But during thissame period a radical change in the pool of unlicensed drivers occurred.

Fourth Amendment Considerations Regarding Impoundment

CVC 14602.6 makes impoundment discretionary (an interpretation endorsed by the StateAttorney General in the Maywood report). When a 12500 citation is issued, and thedriver has no record of a previous serious traffic offense, and the car can be (or has been)safely parked, there is no justification for towing and 30-day impoundment. Theseactions, executed automatically, impose great hardship of members of the immigrantcommunity, and poison community relations. Of course, if a vehicle constitutes a safety

hazard, the police are authorized to remove it under the community caretaking doctrine.

A careful legal discussion of the relevant issues constitutional issues is found in anopinion issued by the Legislative Counsel of California (Drivers License: VehicleImpoundment #0711154) dated May 29, 2007. The key conclusion is this:

Based on the reasoning and holding of the court in Williams, the lack of anydiscussion of the community caretaking function is Salcero, the facts anddiscussion of justification inBenites, and the recent federal cases ofCoccia andMiranda, we conclude that the community caretaking justification must be met inorder for a peace office to validly exercise his or her statutory authority toimpound a vehicle after citing the driver for being an unlicensed driver, whenthere is no basis for a seizure of the vehicle under the Fourth Amendment to theUnited States Constitution.

After the Attorney Generals investigation of the Maywood Police Department, thedepartment implemented the reports recommendations and according to the MaywoodPolice Department, officers are trained that to the maximum extent possible, that theyexercise not to impound; and to park the car instead or to have a licensed driver take it.


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There is no reason the Santa Barbara Police Department could not adopt a similar policywhich is in accord with opinions of both the Legislative Counsel and the State AttorneyGeneral.

At this time (July 2010), the constitutionality of CVC 14602 itself is being challenged

with the case of Salazar v City of Maywood et al before the 9

th

Circuit Court of Appeals.(The plaintiffs brief is found athttp://www.lccr.com/6%2024%2009%20Salazar%20v.%20City%20of%20Maywood%20amicus%20brief.pdf.

14602.6: Meaning of without ever having been issued a drivers license

The Santa Barbara Police Department impounds cars for 30-days citing the authority ofCVC 14602.6. However, 14602.6 does not apply to unlicensed drivers who had ever beenissued a drivers license. It was written to explicitly exclude those who showed drivingcompetence through having obtained a valid license in the past. Thus it clearly does not

apply to undocumented immigrants who previously had drivers licenses. This is a largegroup that includes those who had licenses before 1994 when undocumented immigrantswere denied renewals, and also to those who entered the United States with a valid visa,obtained licenses, but could not renew them because their visas had expired. There is noevidence that the SBPD recognizes that the law used to justify 30-day impoundments(14602.6) does not apply to these drivers. In contrast, the City of Los Angeles recognizesthat an expired California license prevents 30-day seizure. If the driver has an expiredCalifornia license, no matter how old, the vehicle is not subject to 30-day seizure. Infact, the Attorney Generals report on Maywood severely criticized the department fortowing and impounding cars of unlicensed drivers who had valid foreign licenses or validor expired out-of-state licenses.


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Appendix IV

The Myth of the DangerousUnlicensed Driver

Some categories of validly licensed drivers have demonstrably higher accident rates; forexample, drivers over age 75 or under age 20. It is possible, that immigrants have moreaccidents, but despite the widespread perception that this is true, there is no evidence toback this opinion. No doubt that some persons are denied drivers licenses because thestate have evidence that these persons, for reasons of physical or mental incapacity, maybe potentially dangerous. Before 1994, such persons (along with underage drivers)formed the overwhelming majority of never-licensed drivers, and there is a study whichconfirms that this group does seem to have more accidents. But the group of unlicenseddrivers is very different today than at that time. The unlicensed driver group is nowdominated by undocumented immigrants not by these deemed to be potentially

dangerous.

Until 1993, immigrants whether or not legally in this country, could qualify for aCalifornia Drivers license by passing the usual tests. In 1993, voter backlash againstundocumented immigration led to passage of a law denying drivers licenses o those whocould not prove legal residence in the United States. As the licenses of undocumentedimmigrants expired, and as new immigrants arrived in the state, the numbers ofunlicensed drivers rapidly increased.

The legislative findings in support of the Safe Streets Act are found in CVC 14607.4. Theprincipal justifications for impoundment were given as of all drivers involved in fatal

accidents, more than 20 percent are not licensed to drive and a driver with a suspendedlicense is four times as likely to be involved in a fatal accident as a properly licenseddriver. The DMV website contains a 1997 report, Unlicensed Driving: A MajorCalifornia Safety Problem, in which it is stated that 8.8% of drivers at sampled locationshad suspended or revoked licenses and 3.3% had no record of any drivers license.However, the estimated percentages are taken from information gathered during the

years 1987-1992years when undocumented immigrants were eligible for drivers

licenses. The statistics thus indicate that during 1987-1992, 73% of those driving withoutvalid licenses had had their licenses suspended or revoked. The 17% that had no record ofever having been issued a drivers license consisted of persons who could not obtain alicense due to physical or mental impairments, to minors, or to persons who lacked a

sense of social responsibility. We would expect such persons to be substandard, perhapsdangerous, drivers. We can call this group the bad 12500s.

During the subsequent 15 years, as the drivers licenses of undocumented immigrantsexpired, and as new immigrants ineligible for licenses arrived in California, the pool ofunlicensed drivers (relative to drivers whose licenses had been suspended or revoked)sharply increased. We can get an idea of how much by looking at statistics from stops atcheckpoints (since these approximate a random sample of cars being driven at the time).


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PUEBLO was given data on 37 checkpoints involving 12,652 vehicles conducted in thecity from 1/20/07 through 7/19/09. These provide a good estimate of the percentage of14601 (revoked or suspended) drivers versus 12500 (unlicensed drivers) during the pastfew years. Checkpoint statistics reveal that only 25% of towed cars involve 14601 versus75% for 12500. Thus the percentage of 14601s in the pool has decreased from 73% to

25% over the period since undocumented immigrants were denied licenses. Increasedpolice attention to drunk driving and tougher suspension/revocation standards imposed bythe Safe Streets legislation (as well as defining DUI at a lower blood alcohol level andincreasing sobriety checkpoints) undoubtedly increased the pool of 14601s which makesthe drop in the relative percentage of 14601s even more striking. Simple arithmeticsuggests a four to five times increase in the size of the unlicensed driver pool, withundocumented immigrants now forming the overwhelming majority of 12500 drivers; theold bad 12500 group may now be as low as 5%, with undocumented immigrantsforming 95% of the 12500s.

Given this radical change in the composition of the unlicensed driver pool since 1993

when undocumented immigrants were denied the right to a new license, it is bothincorrect and unjust to cite accident statistics for the bad 12500 unlicensed drivers from1987-1992 to justify the impoundment of cars being driven by undocumentedimmigrants. There is simply no evidence that undocumented immigrant drivers constituteany particular hazard, and certainly nothing to equate the quality of their driving with thatof those whose licenses have been revoked or suspended for drunk driving.

Police departments have also tried to justify the importance of impounding immigrantscars by citing a 1997 study that claims that unlicensed drivers are dangerous and thatimpoundment is an effective deterrent (David J. DeYoung, An Evaluation of theSpecific Deterrent Effect of Vehicle Impoundment on Suspended, Revoked and

Unlicensed Drivers in California.) Although DeYoung mentions the two groups (DWU-driving while unlicensed, and DWSdriving while suspended or revoked), he neverdiscusses differences between the two. His principal conclusion is that impoundmentunder the new 1994 law is effective because DWU and DWS drivers as a group hadhigher rates of accidents and traffic convictions in 1994 (before the new law went intoeffect) than did drivers whose cars were impounded in 1995 after the law was in effect.There are three problems with this conclusion:

1. With 20% of drivers licenses expiring every year, there would have been a largeincrease in unlicensed immigrant drivers no longer able to renew their licenses; inaddition, it has been estimated that hundreds of thousands of new undocumentedimmigrants arrived in the state during this period and these persons wereineligible for drivers licenses regardless of their driving ability. Hence, ifunlicensed immigrant drivers were relatively good drivers, the new, larger 1995unlicensed driver pool would be expected to have a lower accident and infractionrate than the 1994 pool that only consisted of those who lacked licenses forreasons unrelated to immigration status (suspended or revoked drivers and bad12500s).


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2. It is quite possible that the impoundment of vehicles driven by suspended orrevoked drivers actually did deter drinking while driving; if so, the lawaccomplished its goal of reducing accidents and convictions through its effect onpotential drunk driverseven if it had no effect on unlicensed undocumentedimmigrant drivers. The effect on the driving habits of potential suspended and

revoked (14501) offenders alone can explain the improvement in accident andconviction rates from 1994 to 1995.3. Finally, the study fails to control for other variables which may have changed

from 1994 to 1995; a single correlation is never sufficient to indicate a causalrelation.

There is no attempt in DeYoungs 33-page report to separate the effects of impoundmenton 12500 offenders from those on 14601 offenders even though it is clear from thediscussion that these statistics were readily available. The conflation of these two verydifferent groups is apparent from DeYoungs use of the misleading label disqualifieddrivers for both types of drivers.

DeYoung and Michael Gebers conducted another study for the DMV in 2002 (AnExamination of the Characteristics and Traffic Risk of Drivers Suspended/Revoked forDifferent Reasons). The new study concluded that the revoked and suspended drivers inthemselves form a heterogeneous group with very different accident rates. They state:This law [14602.6] and others, should be modified to better reflect the nature and risk ofthe suspended/revoked offenders to whom they apply.However, there are even moreserious problems with the current suspension/revocation laws, as the findings on the risksof drivers suspended/revoked for failing to pay child support point out. This group, whichis suspended/revoked for reasons completely unrelated to their driving, has the lowestcrash risk of any suspended/revoked group, and poses little more risk on the highways

than the validly licensed drivers. They go on to recommend, The current vehicleimpoundment law, CVC 14602.6, should be rewritten to more rationally reflect the risksof the suspended/revoked drivers it includes and excludes from its provisions.

It is strange that the authors fail to apply exactly the same reasoning to unlicensed

drivers. DeYoung and Gebers never consider or even mention statistics for 12500(unlicensed) drivers. Again, there is absolutely no evidence that undocumentedimmigrants are dangerous drivers. Because unlicensed drivers fear being stopped bypolice patrols and then having their vehicle impounded, they are generally cautiousdrivers who strive not to provide any reason for a stop. In contrast, there is substantialevidence that drivers over age 80 or under age 18 are potentially dangerous but no onesuggests that they should be automatically barred from obtaining licenses.

If, as the DMV states in its 2008 Strategic Plan, its goal is licensing drivers to protectconsumers and promote traffic safety then all persons driving vehicles in the stateshould not only be required to have a drivers license but should be eligible to obtain one.As long as that is not the case, it is irresponsible for authorities to speak about the dangerof the unlicensed driver based on a stereotype supported by statistics dating from aperiod when undocumented immigrants were eligible for licenses. 30-day impoundment


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should be reserved (as noted by DeYoung and Gebers) for truly dangerous drivers such asthose whose licenses were suspended or revoked for drunk driving.