Police spokesperson Liz Wylie said the police department and City Attorney Jannie Quinn are reviewing conflicting laws and court cases that pertain to the practice.
"All officers have been directed NOT to tow unless we need to for the sake of the community safety/well-being," Wylie said in an e-mail.
Wylie stressed that the new practice is not set in stone.
In San Francisco, San Jose and Oakland, police have implemented similar, permanent policies. It's often the result of advocacy for immigrants who can't get licenses, who are seen as unfairly treated by such policies, especially at DUI checkpoints. Wylie said that it was a review of case law that triggered Mountain View's moratorium, not advocacy for the rights of immigrants, who are involved in the majority of such cases.
Contrary to the impression being spread on fliers posted around town, unlicensed drivers are not being allowed to drive away from traffic stops. Police will now have the option to have a licensed driver quickly pick the car up, or to allow unlicensed drivers to leave the car behind and leave the scene by other means, Wylie said. If a driver can't be identified, they are brought in for fingerprinting, Wylie said.
"All of the officers are fully capable of making an appropriate decision on their own, taking into account the totality of the circumstances at hand at that moment regarding that specific case," Wylie said. "Generally speaking, we aren't towing very often right now."
County traffic courts saw 17,000 unlicensed driving cases in 2009. More will be spared over impound fees at the tow yard, over $1,500 at one Mountain View yard. But unlicensed drivers will continue to face fines of up to $1,200 in traffic court.
"It's certainly not like a slap on the wrist," said Jay Boyarsky, the county chief assistant district attorney, of the traffic court fine.
Mike Fortes of Fortes Brothers Towing said he didn't agree with the idea of letting unlicensed drivers off the tow hook.
"It almost encourages people not try and go get their license," he said. "If I don't have a license, I shouldn't be driving."
He added that unlicensed drivers probably don't have insurance to pay for an accident.
But those who have advocated for the rights of immigrants see it differently.
"Traditionally, immigrant rights activists have said that most immigrants can't get licenses but are generally law abiding," Boyarsky said. It is said that "they live here and work here and have to drive. Driving without a license is the only criminal thing they do. We are punishing them when they can't get a license."
During the moratorium, City Attorney Quinn said the city is reviewing two court cases: Miranda v. Cornelius (a 2005 federal court case) and People v. Williams (a 2006 California court case).
In the Cornelius case, a car driven by an unlicensed teen accompanied by a parent was towed even though it was parked in the owner's driveway during the traffic stop. The court ruled against the City of Cornelius, saying, "police officers may impound vehicles that jeopardize public safety and the efficient movement of vehicular traffic. Whether an impoundment is warranted under this community caretaking doctrine depends on the location of the vehicle and the police officers' duty to prevent it from creating a hazard to other drivers or being a target for vandalism or theft."
The Williams case also pointed to this "community caretaking doctrine," which Quinn has recommended that Mountain View police use when making a decision to tow.
"An unlicensed driver who doesn't have a licensed person with them — it may very well serve a caretaking perspective to tow that car," Quinn said.
The case law seems to go against the spirit of a 1995 bill authored by state Sen. Quentin Kopp that raised penalties for serious traffic violations through the use of towing. Another 1995 law, Proposition 187, prevents immigrants without residency from obtaining driver's licenses.
In an e-mail, Fortes pointed to a federal court case that concluded just last week, Salazar v. City of Maywood, in which the 9th Circuit Court of Appeals ruled that impounding a car driven by an unlicensed driver for 30 days "is warranted to protect Californians from the harm caused by unlicensed drivers." But Quinn said that the court decided not to formally publish that opinion and "put it in the law books as public opinion. I can't use it in a court of law."
In Mountain View, vehicle impound fees for unlicensed driving can add up to over $1,500, Fortes said, including tow yard fees and a $150 fee from the police department.
Some have accused cities and tow yards of making money on the backs of immigrants with the practice. Many don't even pick up their cars because the owner simply can't afford it or the car is worth less than the fees. After 30 days, tow companies can auction the car off to pay for the expense of storing and towing the car.
It might sound like easy money, but it's not, Fortes said, adding that it would be harder to pay for diesel fuel, rent and healthcare for his 24/7 workforce under the new practice.
Fortes said he brings in about three cars a month that were driven by unlicensed drivers. Towing duty is shared by a half dozen tow agencies that Mountain View police rotate through, he said. Towing companies also pick up abandoned cars at the request of police, and it sometimes costs tow companies to dispose of them.
Fortes said he hadn't felt any decline in business from the new practice yet. According to news reports, other tow companies have had to lay off drivers after police stopped automatically having cars towed.
Misdemeanor or infraction?
Boyarsky said police departments county-wide are being asked to stop issuing misdemeanor citations to those caught driving without a license — in cases in which no other crime is being committed. Boyarsky said only 2,700 of the 17,000 unlicensed driving cases in 2009 involved a person committing other serious crimes.
If it weren't a misdemeanor, prosecutors and public defenders would no longer be tied up with thousands of relatively minor cases in traffic court, saving money, Boyarsky said. And it is already typical practice to turn a misdemeanor for unlicensed driving into an infraction in court when no other crime has occurred, Boyarsky said. The difference is that it would be done "on the front end."
Wylie said Mountain View police are also studying that recommendation.