Senate File 356 - Introduced SENATE FILE BY COMMITTEE ON TRANSPORTATION (SUCCESSOR TO SSB 1266) Passed Senate, Date Passed House, Date Vote: Ayes Nays Vote: Ayes Nays Approved A BILL FOR 1 An Act relating to department of transportation administrative 2 procedures by establishing a procedure to remove a conviction 3 relating to the operation of a motor vehicle from a driving 4 record based on identity theft and requiring verification of 5 status in regards to the driver's license of a foreign 6 national. 7 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 8 TLSB 1388SV 83 9 jm/nh/5 PAG LIN 1 1 Section 1. Section 321.196, subsection 1, Code 2009, is 1 2 amended to read as follows: 1 3 1. Except as otherwise provided, a driver's license, other 1 4 than an instruction permit, chauffeur's instruction permit, or 1 5 commercial driver's instruction permit issued under section 1 6 321.180, expires five years from the licensee's birthday 1 7 anniversary occurring in the year of issuance if the licensee 1 8 is between the ages of seventeen years eleven months and 1 9 seventy years on the date of issuance of the license. If the 1 10 licensee is under the age of seventeen years eleven months or 1 11 age seventy or over, the license is effective for a period of 1 12 two years from the licensee's birthday anniversary occurring 1 13 in the year of issuance. A licensee whose license is 1 14 restricted due to vision or other physical deficiencies may be 1 15 required to renew the license every two years. If a licensee 1 16 is a foreign national who is temporarily present in this 1 17 state, the license shall be issued only for the length of time 1 18 the foreign national is authorized to be present asdetermined1 19 verified by the department, not to exceed two years. 1 20 Sec. 2. NEW SECTION. 321.200A APPLICATION FOR REMOVAL OF 1 21 RECORD == IDENTITY THEFT == POSTCONVICTION RELIEF. 1 22 1. As used in this section, "identify theft" means the 1 23 same as provided in section 715A.8. 1 24 2. If a record of conviction for a violation of this 1 25 chapter or other law regulating the operation of a vehicle on 1 26 the highways of this state is entered against a person as the 1 27 result of identity theft committed against the person, the 1 28 person may make a written application to the department to 1 29 have the record of conviction removed from the records of the 1 30 department. Prior to issuing a ruling the department may 1 31 investigate the application. The department may deny or 1 32 approve the application at the discretion of the department. 1 33 If the department issues an approval of the application, the 1 34 person may commence postconviction proceedings pursuant to 1 35 section 822.3A. If the department denies approval of the 2 1 application the person may not proceed under section 822.3A. 2 2 The department shall not remove the record from the 2 3 department's records until the department receives an order 2 4 granting relief under chapter 822. 2 5 3. Upon receiving an order granting relief under chapter 2 6 822, the department shall rescind any administrative sanction 2 7 imposed upon the person as a result of the conviction, unless 2 8 the person would be subject to the sanction despite the 2 9 removal of the record of conviction. The department may 2 10 impose a new sanction if removal of the record of conviction 2 11 would result in a lesser or different sanction. 2 12 4. This section does not preclude a person from seeking 2 13 postconviction relief in other matters permitted by law. 2 14 5. The approval or denial of an application is not subject 2 15 to contested case proceedings or further review as provided in 2 16 chapter 17A. 2 17 6. The department may adopt rules pursuant to chapter 17A 2 18 to implement this section. 2 19 Sec. 3. Section 822.3, Code 2009, is amended to read as 2 20 follows: 2 21 822.3 HOW TO COMMENCE PROCEEDING == LIMITATION. 2 22AExcept for proceedings commenced under section 822.3A, a 2 23 proceeding is commenced by filing an application verified by 2 24 the applicant with the clerk of the district court in which 2 25 the conviction or sentence took place. However, if the 2 26 applicant is seeking relief under section 822.2, subsection 1, 2 27 paragraph "f", the application shall be filed with the clerk 2 28 of the district court of the county in which the applicant is 2 29 being confined within ninety days from the date the 2 30 disciplinary decision is final. All other applications must 2 31 be filed within three years from the date the conviction or 2 32 decision is final or, in the event of an appeal, from the date 2 33 the writ of procedendo is issued. However, this limitation 2 34 does not apply to a ground of fact or law that could not have 2 35 been raised within the applicable time period. Facts within 3 1 the personal knowledge of the applicant and the authenticity 3 2 of all documents and exhibits included in or attached to the 3 3 application must be sworn to affirmatively as true and 3 4 correct. The supreme court may prescribe the form of the 3 5 application and verification. The clerk shall docket the 3 6 application upon its receipt and promptly bring it to the 3 7 attention of the court and deliver a copy to the county 3 8 attorney and the attorney general. 3 9 Sec. 4. NEW SECTION. 822.3A PROCEEDINGS INVOLVING 3 10 IDENTITY THEFT == DEPARTMENT OF TRANSPORTATION APPROVAL. 3 11 1. If the department of transportation issues an approval 3 12 of an application to remove a record pursuant to section 3 13 321.200A, a proceeding is commenced by filing an application 3 14 verified by the applicant with the clerk of the district court 3 15 in the county where the conviction occurred, or with the clerk 3 16 of the district court where the applicant resides. The 3 17 application filed with the clerk must include a copy of the 3 18 application for removal submitted pursuant to section 321.200A 3 19 and a certified copy of the approval issued by the department 3 20 of transportation. 3 21 2. The application must be filed with the clerk of the 3 22 district court within one year from the date the department of 3 23 transportation issued the approval pursuant to section 3 24 321.200A. 3 25 3. Facts within the personal knowledge of the applicant 3 26 and the authenticity of all documents and exhibits included in 3 27 or attached to the application must be sworn to affirmatively 3 28 as true and correct. 3 29 4. The clerk of the district court shall deliver a copy of 3 30 the application to the department of transportation, the 3 31 attorney general, the clerk of the district court and county 3 32 attorney where each conviction approved for removal occurred, 3 33 and the clerk of the district court where the applicant 3 34 resides. 3 35 5. The clerk of the district court shall also provide a 4 1 copy of any order entered pursuant to section 822.6 or section 4 2 822.7 to the department of transportation, the attorney 4 3 general, and any clerk and county attorney entitled to receive 4 4 a copy of the application under subsection 4. 4 5 6. The supreme court may prescribe the form of the 4 6 application and verification. 4 7 Sec. 5. Section 822.6, Code 2009, is amended to read as 4 8 follows: 4 9 822.6 DETERMINATION OF RELIEF. 4 10 1. Within thirty days after the docketing of the 4 11 application, or within any further time the court may fix, the 4 12 state shall respond by answer or by motion which may be 4 13 supported by affidavits. At any time prior to entry of 4 14 judgment the court may grant leave to withdraw the 4 15 application. The court may make appropriate orders for 4 16 amendment of the application or any pleading or motion, for 4 17 pleading over, for filing further pleadings or motions, or for 4 18 extending the time of the filing of any pleading. In 4 19 considering the application the court shall take account of 4 20 substance regardless of defects of form. If the application 4 21 is not accompanied by the record of the proceedings challenged 4 22 therein, the respondent shall file with its answer the record 4 23 or portions thereof that are material to the questions raised 4 24 in the application. 4 25 2. When a court is satisfied, on the basis of the 4 26 application, the answer or motion, and the record, that the 4 27 applicant is not entitled to postconviction relief and no 4 28 purpose would be served by any further proceedings, it may 4 29 indicate to the parties its intention to dismiss the 4 30 application and its reasons for dismissal. The applicant 4 31 shall be given an opportunity to reply to the proposed 4 32 dismissal. In light of the reply, or on default thereof, the 4 33 court may order the application dismissed or grant leave to 4 34 file an amended application or direct that the proceedings 4 35 otherwise continue. Disposition on the pleadings and record 5 1 is not proper if a material issue of fact exists. 5 2 3.TheExcept as provided in subsection 4, the court may 5 3 grant a motion by either party for summary disposition of the 5 4 application, when it appears from the pleadings, depositions, 5 5 answers to interrogatories, and admissions and agreements of 5 6 fact, together with any affidavits submitted, that there is no 5 7 genuine issue of material fact and the moving party is 5 8 entitled to judgment as a matter of law. 5 9 4. In proceedings commenced under section 822.3A, the 5 10 court may grant a motion by the applicant for summary 5 11 disposition of the application for any conviction if the 5 12 respective county attorney in the county where the conviction 5 13 approved for removal occurred, affirmatively indicates the 5 14 state has no resistance to the application. 5 15 EXPLANATION 5 16 This bill establishes a procedure to remove a conviction 5 17 relating to the operation of a motor vehicle from a driving 5 18 record which was entered due to identity theft and requires 5 19 verification of status in regards to the driver's license of a 5 20 foreign national. 5 21 The bill specifies that the department of transportation is 5 22 authorized to issue a driver's license to a foreign national 5 23 only for the length of time the foreign national is authorized 5 24 to be present in the United States as verified by the 5 25 department, not to exceed two years. Current law specifies 5 26 the department is to determine the length of time a foreign 5 27 national is authorized to be present in the United States. 5 28 Under the bill, if a record of conviction for a violation 5 29 of Code chapter 321 or other law regulating the operation of a 5 30 vehicle on the highways of this state is entered against a 5 31 person as the result of identity theft, the person may make a 5 32 written application to the department of transportation to 5 33 have the record of conviction removed from the records of the 5 34 department. 5 35 The bill provides that the department of transportation may 6 1 deny or approve the application at the discretion of the 6 2 department. If the department approves the application the 6 3 applicant may commence postconviction proceedings pursuant to 6 4 new Code section 822.3A created in the bill. The approval or 6 5 denial of an application is not subject to contested case 6 6 proceedings or further review as provided in Code chapter 17A. 6 7 Under the bill, if the department of transportation issues 6 8 an approval to remove a record, a postconviction proceeding is 6 9 commenced by filing an application verified by the applicant 6 10 with the clerk of the district court in the county where the 6 11 conviction occurred, or with the clerk of the district court 6 12 where the applicant resides. The application for 6 13 postconviction relief must be filed with the clerk of the 6 14 district court within one year from the date the department of 6 15 transportation issued the approval. The bill provides that 6 16 the clerk of the district court shall deliver a copy of the 6 17 application for postconviction relief to the department of 6 18 transportation; the attorney general; the clerk of the 6 19 district court and the county attorney where each conviction 6 20 approved for removal occurred; and the clerk of the district 6 21 court where the applicant resides. 6 22 In the postconviction proceedings the court may grant a 6 23 motion by the applicant for summary disposition of the 6 24 application for any conviction if the respective county 6 25 attorney in the county where the conviction approved for 6 26 removal occurred, affirmatively indicates the state has no 6 27 resistance to the application. 6 28 If postconviction relief is granted under the bill, the 6 29 department of transportation shall rescind any administrative 6 30 sanction entered against the person as a result of the 6 31 conviction, unless the person would be subject to the sanction 6 32 despite the removal of the record of conviction. The 6 33 department may impose a new sanction if removal of the record 6 34 of conviction would result in a lesser or different sanction. 6 35 LSB 1388SV 83 7 1 jm/nh/5