The City of Cypress (the "city") finds and declares the following:
(1)
The
city seeks to discourage drivers from operating motor vehicles while
under the influence of alcohol and/or drugs.
(2)
The
city seeks to encourage careful and responsible conduct by persons
using public streets.
(3)
Driving
under the influence of alcohol and/or drugs is intentional wrongful
conduct.
(4)
Intentional
wrongful conduct by persons who operate motor vehicles imposes a burden
upon city services above and beyond the regular services normally
required for law enforcement.
(5)
Persons
who willfully conduct themselves in a manner which imposes an extraordinary
burden on the public resources by requiring an emergency response
by the police department, fire department, paramedics and other emergency
public services should bear a share of the costs of the emergency
services.
(6)
The
establishment of an emergency response cost recovery program is of
the utmost importance to the promotion of the general welfare and
safety of the people of the City of Cypress because it is designed
and intended to encourage safe and responsible conduct by requiring
such persons to pay part of the cost to the city for responding to
emergency incidents caused by their intentional wrongful conduct.
(Ord. No. 1101, 9-8-08)
There is hereby established an emergency response cost recovery
program (hereinafter the "program") in accordance with California
Government Code Sections 53150—53159, or as hereinafter amended,
which allows for the collection of emergency response costs against:
(1)
Any
person whose negligent operation of a motor vehicle, while under the
influence of an alcoholic beverage and/or drug proximately causes
any incident resulting in any emergency response; and
(2)
Any
person whose intentional wrongful conduct while in the operation of
a motor vehicle, proximately causes any incident resulting in an emergency
response.
(Ord. No. 1101, 9-8-08)
For the purpose of this part, unless the context clearly requires
a different meaning, the words, terms and phrases hereinafter set
forth shall have the meanings given them in this section:
means any person who operates a motor vehicle, and, when
so operating is subject to the law and any duty imposed by law in
the operation of said motor vehicle, and who does so over the legal
limit and under the influence of an alcoholic beverage or any drug,
or the combined influence of an alcoholic beverage and any drug.
means a situation proximately caused by a person that results in an emergency response including those incidents listed in section 20-28 below or any incident wherein costs can be recovered as authorized by law. This definition is not limited to traffic accidents by DUI suspects and includes such acts as the abandonment of a vehicle over active railroad tracks by a DUI suspect. On the other hand, an incident is more than a simple DUI arrest that does not require an emergency response, such as where a DUI suspect's car is involved in an accident with only minor damage and no injuries. (California Highway Patrol v. Superior Court (2006) 135 Cal. App. 4th 488, 500, 504)
means the assigned lieutenant or captain to the program by
the Chief of Police of the Cypress Police Department.
(Ord. No. 1101, 9-8-08)
(a)
A motorist
arrested for driving under the influence of alcohol and/or drugs ("DUI")
will be billed only if all of the following criteria are met:
(1)
A
person is driving under the influence. A person is under the influence
of an alcoholic beverage or any drug, or the combined influence of
an alcoholic beverage and any drug, when as a result of drinking an
alcoholic beverage or using a drug, or both, his or her physical or
mental abilities are impaired to a degree that he or she no longer
has the ability to operate a motor vehicle with the caution characteristic
of a sober person of ordinary prudence under the same or similar circumstances;
and
(2)
Negligent
operation of a motor vehicle is evidenced by either a collision or
the commission of a moving violation as defined under the Vehicle
Code, Section 21100, et seq.; and
(3)
The
incident evidenced by an accident or a moving violation was proximately
caused by driving under the influence of alcohol and/or drugs; and
(4)
The
incident necessitated an emergency response, which entailed the use
of emergency lights and siren by police or fire units responding to
the incident.
(b)
A person
who makes a false police report will be billed only if the following
criteria are met:
(1)
The
person is 18 years of age or older; and
(2)
The
person is convicted of making a false police report, in violation
of Section 148.3 of the Penal Code; and
(3)
The
false police report proximately causes an appropriate emergency response.
(c)
A person
will be billed for the following conduct:
(1)
Subject
to paragraphs (3) and (4) below, a person who enters into an area
that is closed to the public will be billed only if the following
criteria are met:
a.
The
person intentionally, knowingly and willfully enters into an area
that is closed or has been closed to the public by competent authority
for any reason, or an area that a reasonable person under the circumstances
should have known was closed to the public. Posting a sign, placing
a barricade, a restraining or retaining wall, roping off an area,
or any other device is sufficient indication that an area is closed
to the public due to danger of injury, for the public's safety, or
for any other reason; and
b.
An
emergency response is required to search for or rescue the person,
or if the person was operating a vehicle, any of his passengers, plus
the expense for the removal of any inoperable vehicle.
(2)
Subject
to paragraphs (3) and (4) below, a person who drives onto a road that
is covered by water will be billed only if the following criteria
are met:
a.
The
person drives a vehicle on a public street or highway that is temporarily
covered by a rise in water level, including ground water or overflow
of water, and that is barricaded by any of the means described in
subdivision (c)(1) above, because of flooding, and
b.
An
emergency response is required to remove from the public street or
highway, the driver, or any passenger in the vehicle that has become
inoperable.
(3)
Unless
otherwise provided by law, this subsection (c) shall apply to all
persons, regardless of whether the person is on foot, or is operating
a motor vehicle, bicycle, all-terrain vehicle, or any other vehicle
of any description.
(4)
This
section (c) shall not apply to any person who is authorized by the
landowner, lessor, or manager of the closed area, to be in the closed
area, and further shall have no application to any federal, state,
or local government official who is in the closed area as part of
his or her official duty, nor to any public utility performing services
consistent with its public purpose, nor to any person acting in concert
with a government authorized search or rescue. A person who was attempting
to rescue another person or an animal shall not be liable for expenses
of an emergency response under this subsection (c).
(Ord. No. 1101, 9-8-08)
The city will bill persons violating section 20-28 an amount not to exceed $12,000, or any additional amount subsequently authorized by Government Code Section 53155, but only for the direct costs to the city of the particular emergency response incident including, but not limited to:
(a)
Costs
of materials used by officers during the response to the emergency
response incident, including laboratory fees, costs of repairing or
replacing city property used, damaged or destroyed due to the person's
actions.
(b)
The
salary costs for the time spent by officers, at a rate established
by the city, for time spent: Traveling to and from the incident scene,
obtaining medical assistance, investigating the cause of the incident,
removing vehicles, conducting sobriety tests, transporting the person
from the scene and booking him or her and performing chemical tests
on the person, time spent during the arrest and detention of the person,
time spent writing customarily required reports (including all accident
and reports that are a consequence of the incident) and the follow-up
investigation necessary to complete those reports.
(c)
In accordance
with the California Court of Appeal's decision in California Highway
Patrol v. Superior Court (2006) 135 Cal. App. 4th 488, no amount will
be charged for an incident that does not require an emergency response,
such as where a DUI suspect's car is involved in an accident with
only minor damage and no injuries.
(Ord. No. 1101, 9-8-08)
(a)
Before
any sum for an emergency response incident is sought by the city from
a person, the city shall provide, through its finance department director
(or his or her designee), written notice via personal delivery, overnight
express or certified U.S. mail, return receipt requested, to the person
at his or her last known address explaining the basis behind the city's
determination that Government Code Section 53150 et seq. and the enforcement
procedures herein apply to the incident allegedly caused by the person.
That notice shall further provide, in substantially the following
form, the following:
If you contest these charges for any reason, please contact
me immediately in writing within 30 calendar days of the date of this
letter for a hearing concerning your responsibility for these charges.
Through this hearing, you can appeal this determination, but YOU MUST
RESPOND WITHIN Thirty CALENDAR DAYS FROM THE DATE OF THIS LETTER OR
YOU WILL WAIVE YOUR RIGHT TO CONTEST THIS DETERMINATION and the city
will proceed to collect this sum from you as authorized by law, including
Government Code Sections 53154 and 53159. You may also contact this
office within 30 calendar days of this letter to arrange a suitable
payment plan to be secured by a promissory note.
(b)
If no response is received by the person to the above notice within the period provided above, the city will treat the emergency response costs as a civil debt of that person which is collectible by the city in the same manner as a contract obligation. Therefore, the city need not wait until there is a conviction before billing the person, unless otherwise provided for in this Code or by law. However, if the person responds to the above notice within the time provided and contests the costs assessed against him or her in any way, then the City shall utilize the appeal procedure set forth under section 20-31, below, for any determination by the city that is not agreed upon by the city and the person, including the appropriate payment plan, if any, or time for payment requested by the person.
(c)
If the
emergency response cost bill is not paid within 60 days after the
initial bill is mailed by the city or if arrangements are not made
for partial payment during the sixty-day period, then the bill will
be considered delinquent and may be referred to a collection agency.
(d)
If the
person refuses to pay the city or collection agency, the city may
pursue recovery as provided by law. This action should generally not
be initiated until after any pending criminal charges have been adjudicated.
(1)
As
an alternative, in all appropriate cases, the city will seek to have
payment of the bill imposed as a condition of probation as permitted
by law.
(2)
As
an alternative, in all appropriate cases, where the person has not
made restitution, the city will request the department of motor vehicles
to place a hold on the person's vehicle registration as permitted
by law.
(e)
When
applicable, if a person whom the city believes is subject to emergency
response cost recovery is acquitted of the subject criminal charges
after a trial or if those charges against the person are dismissed
for lack of evidence, the city will, upon receipt of written proof
of the foregoing acquittal or dismissal, immediately cease any and
all collection efforts for any unpaid sums and refund any amount collected
from that person.
(Ord. No. 1101, 9-8-08)
(a)
Any
person receiving a bill under this policy may appeal the bill to the
program manager within 30 calendar days of the billing date by filing
with the finance department director (or his or her designee) a written
notice of appeal. After an appeal is made, the program manager will
review the bill to determine if the person meets each of the criteria
set forth in this program and applicable law to support being charged
for the incident and, if so, the program manager will also review
the bill for accuracy. If the bill is found to be in error in any
respect, then the bill will be corrected, or if appropriate, cancelled.
The decision of the program manager shall be rendered within seven
business days of the receipt of the written notice of appeal. Any
bill still in dispute after being appealed to the program manager
may then be appealed to the city manager.
(b)
Any
person aggrieved by the decision of the program manager shall have
the right to appeal the bill to the city manager by filing with the
city clerk within five business days after the decision of the program
manager, a written notice of appeal setting forth the grounds thereof.
The city manager, or a designated representative, shall schedule the
time and place for a hearing on the contested bill within 10 business
days following the filing of an appeal with the city clerk. The appellant
shall be given notice of said hearing at least 10 business days prior
to the hearing date. Said notice may be by personal service, overnight
express or by certified mail, return receipt requested.
(c)
At the
time and place set forth in said notice, or at any time to which the
matter may be continued by the mutual consent of the parties, the
city manager, or a designee who has no prior involvement in the matter,
shall hear the applicant and all witnesses together with any proper
documentary evidence offered in support of the appeal. The city manager,
or a designee, shall at the conclusion of the hearing make findings
of fact based upon the evidence submitted and determine whether grounds
exist for amending or canceling the bill. If, from the totality of
the evidence presented, the city manager, or a designee, finds grounds
exist for the amendment or cancellation of the bill, the amendment
or cancellation thereof shall be ordered. If, following the hearing,
the city manager, or a designee, determines from the totality of the
evidence presented that no proper grounds exist for the amendment
or cancellation of the bill, the appellant shall be ordered to pay
the bill in full within 30 days from that date.
(d)
The
foregoing action taken by the city manager, or a designee, shall be
final and conclusive.
(Ord. No. 1101, 9-8-08)
