ARTICLES

Article 02. 3 Tips on How NOT to be Criminally Prosecuted
for Licensing or Transfer Fees

Published on LawLink
by Angela Berry, Attorney at Law
December 28, 2009

3 Tips on How NOT to be Criminally Prosecuted for Licensing or Transfer Fees. As we know, it is usually impractical or even impossible to precisely determine licensing or transfer of title fees during a sales transaction as the customer waits. It has become an accepted customary practice to "guesstimate" these fees.

When the DMV determines the exact amount, the dealer is then required to refund any "excess" charged. (Vehicle Code section 11713.4). Vehicle Code section 11713.4, while intended to guide dealers and protect consumers, is increasingly becoming a tool used by the DMV to get criminal prosecuting agencies to act.

The code section reads:

"If a purchaser of a vehicle pays to the dealer an amount for the licensing or transfer of title of the vehicle, which amount is in excess of the actual fees due for such licensing or transfer, or which amount is in excess of the amount which has been paid, prior to the sale, by the dealer to the state in order to avoid penalties that would have accrued because of late payment of such fees, the dealer shall return such excess amount to the purchaser, whether or not such purchaser requests the return of the excess amount."

The DMV has convinced some state criminal prosecutors to use this California Vehicle Code section to support theft prosecutions!

To pursue such charges, the dealer's intent is at issue since the prosecution must prove the dealer's specific intent to steal, which in the words of the Penal Code is, "to permanently deprive" the consumer of his/her property/money, that is the "excess amount". The prosecutor's theory, then, is that either:

1)   The dealership, upon entering a given contract with a customer,        purposefully overcharged on licensing fees and has no intent of        returning the excess amount, and in fact does not; or

2)    Even if there was no intent to permanently deprive the customer of         the excess at the time the contract was signed, the dealership         nonetheless, formed the intent to permanently deprive the customer         of that excess after the DMV declared the true amount, and then the         dealership in fact does not return the excess.

The following 3 Tips Can Help You Avoid this trap:

• " Keep good records. Some of the "delay" in the return of the excess can be attributable to the DMV. An owner of a dealership I recently represented was charged with several counts of theft when the DMV did an audit. They discovered that in a small percentage of the 32 customer files reviewed, the excess had not yet been paid even though the fees had been settled by the DMV. In the DMV's eyes the dealership was stealing! Essentially, the DMV had arbitrarily chosen a date they believed was too long for the return of the excess to occur. They then notified the District Attorney. What they failed to do was inform the Los Angeles District Attorney's Office that on some of the "offending" deals DMV itself took up to several months before settling the fees. Consider marking the deal jackets with the date the DMV settles the amount for easy reference should a problem arise. "
  
  
• Keep your accounting department on the ball. Maintain a regularly scheduled event (at least bi-monthly) for an internal audit of DMV settlements of fees so that customers can be reimbursed timely. "
  
  
• Know that the Vehicle Code does NOT provide a specific time period within which to return the excess and use good judgment. A successful defense to criminal charges includes showing that any "delay" in return of the excess was simply a lag in the accounting department, with no intent by the dealership to retain the excess. It is also vital to educate the prosecuting agency to make sure it knows that the Vehicle Code provides no guidance on the requisite time within which to return the excess, and as such, the DMV can arbitrarily choose a time period they believe is unreasonable and seek unfounded prosecutions.
  

Angela Berry-Jacoby is a California lawyer in good standing with the State Bar and carries an AV rating. She has been a lawyer for over 19 years and has been practicing criminal law exclusively her entire career. She is dedicated to guarding your rights and protecting your interests and liberty.

 
   Published Articles
   01. Dealing with a DUI
   02. Tips for Car Dealers