RD405 - Report of the Tolling Legislation Working Group, Chapter 839 of the 2010 Acts of Assembly - December 15, 2010


Executive Summary:
Chapter 839 of the 2010 Acts of Assembly (Chapter 839 or the Act) directed the Virginia Department of Transportation (VDOT), in consultation with the Virginia Department of Motor Vehicles (DMV), to convene a working group to i) examine the impact of increased development of toll roads in the Commonwealth of Virginia (Commonwealth or Virginia) on the ability of the courts to carry out the provisions of this act; ii) evaluate ways to improve processes for enforcing toll violation laws across the Commonwealth; and, iii) examine opportunities for alternative toll violation resolution, including the creation of an expedited hearing process. As provided in Chapter 839, the Executive Secretary of the Supreme Court of Virginia was included and consulted regarding issues affecting court administration or the judicial branch.

The VDOT Commissioner formed the Tolling Legislation Working Group (TLWG), comprised of toll facility operators, representatives of the court system and other interested parties. To assist the TLWG in meeting the objectives set forth by Chapter 839, three subcommittees (Data Collection and Research, Business Processes and Legislation) were established to address specific aspects of the toll enforcement issue. Appendix A provides the subcommittee assignments. This report represents the culmination of the TLWG’s efforts to date, including the contributions and recommendations of the three subcommittees. The legislative and business process recommendations in this report work hand-in-hand to achieve significant benefits necessary to improve the toll violation enforcement process in the Commonwealth.

The report provides background discussion on toll violations, the various types of toll facilities and toll collection methods used in the state, and a listing of toll facilities in the Commonwealth. Information is also provided regarding the current Code of Virginia statutes relating to toll violations and tolling enforcement, as well as toll violation processes employed by VDOT’s EZPass Customer Service Center (CSC). Finally, the report presents toll violation data and a discussion on the impacts of the anticipated increase in the development of toll facilities in the state on the court system.

The Data Collection and Research subcommittee chaired by Elizabeth River Crossings (ERC), looked at data provided by the VDOT CSC and estimates that more than 200,000,000 toll transactions were processed in the Commonwealth for the one-year period ending June 30, 2010. Of this amount, 1,914,000 toll violations (approximately one percent of all transactions) occurred. Of these violations, approximately 43,000 either have resulted or will result in summonses to be heard in court. Of the 1,871,000 violations that do not reach the summonses stage, approximately 28 percent (539,000) were not processed, as the toll facility may not have photo-monitoring capabilities or the license plate images taken by the photo-monitoring equipment were of poor quality and unreadable; approximately 34 percent (647,000) were processed through V-Tolling (as later explained in the report); approximately 15 percent (283,000) were first time violators who do not violate a second time within certain time limitations and were purged from the system; and the remaining 23 percent (approximately 445,000) violations were pursued through notices and ultimately summonses. Of the 445,000 violation notices that were sent, about 65,000 were returned to sender as being undeliverable and were not processed; 164,000 violations were paid through the first or second notices; and 173,000 notices were to violators who disregarded the two notices, but did not record a third violation within certain time limitations and were purged from the system; and the remaining 43,000 (representing an estimated 6,750 individuals) violations have resulted or will result in summonses to court.

Without changes to the current process, the future development of toll facilities, particularly all-electronic toll (AET) facilities, will result in an increase in the number of toll violations, to an estimated 4,000,000 each year by 2015, according to information from the Data Collection and Research subcommittee chaired by ERC. Ensuring that these violations can be effectively and efficiently processed is critical to the development of future toll facilities in the Commonwealth. It is forecasted that the number of violations that will become eligible for summonses will continue to significantly increase through 2015 as additional toll facilities are developed and become operational. (*1)

Also, according to information on violations and violators from the Data Collection and Research subcommittee chaired by ERC, the majority of violations were committed by toll road customers who are not considered persistent violators. Thirty-four percent of all violations were committed by toll road patrons who violated one time during the 12-month period. In total, 77 percent of all violations were committed by patrons who violated less than 10 times in the 12-month period. The remaining 23 percent of the violations were committed by only two percent of violators, who incurred on average 22 violations over the 12-month period. Put another way, 70 percent of violators violated only one time over the 12-month period, with 98 percent of violators violating less than ten times.

The findings and recommendations developed by the TLWG focused on efforts to refine the current toll violation process system through changes to the existing business rules and legislation, to dispose of as many of the toll violations through the V-Tolling process, and to encourage settlement of multiple toll violations through the first and second notice process, prior to the violators being issued summonses or prior to the cases reaching court. Appendix B provides a summary of the legislative and business process findings and recommendations.

Generally, legislative changes are being proposed to authorize the toll facility operators to levy charges to cover the costs associated with processing and mailing unpaid toll invoices for the first unpaid toll; allow the administrative fee to be levied on a first unpaid toll, if the unpaid toll invoice or bill remains unpaid after 30 days; provide that a hold may be placed on the issuance or renewal of a vehicle’s registration upon a finding by the court that a violator has two or more unpaid tolls and has failed to pay the required penalties, fees and unpaid tolls; and codify a pretrial settlement option with reduced civil penalties.

Recommended changes to the toll violation processing business rules are being proposed for consideration by VDOT, the CSC management, and the individual toll facilities to improve internal business operations. These proposed changes include increased use of the V-Tolling process and steps to encourage increased transponder usage by toll road patrons; eliminating the mailing of summons (in addition to serving them) to in-state toll violators as a cost saving measure; setting a time period for violations to accrue prior to the first notice being sent out (for example, a first notice could contain a single violation or multiple violations); inclusion of additional information with violation notices to educate violators of options to pay or consequences of non-payment; and several changes that will improve CSC management and offer additional alternatives, such as email for contacting customers to address account issues, and a special toll violation docket model currently being used in several general district courts to increase capacity for these cases. These recommended changes would be anticipated to lower processing costs for facilities and the costs that are passed onto violators.

The TLWG examined the effectiveness of alternative processes used to enforce tolling violations in other states where the obligation is on the vehicle owner to request an appeal for a court or administrative hearing, rather than all non-paying users proceeding to court, similar to the method under which parking tickets are pursued in Virginia. This process has been shown to significantly reduce the number of toll violation cases that proceed to court. The TLWG is recommending, as a continuing focus of the working group, a similar process be further evaluated prior to all electronic toll facilities becoming operational in the state, as well as continued investigation of the issue of implied consent. Consideration must be given to ensure that the right to due process is maintained and protected.

The creation of an expedited hearing process was also evaluated as an alternative to the current court process. DMV’s administrative hearing process was evaluated for use in handling toll violations. Implementation of an administrative hearing process for toll violations cases, anticipated to be significantly greater in number than the number of administrative hearings conducted by DMV, would require a significant investment in staffing, resources, and time. As a more cost effective and administratively feasible alternative to the administrative hearing process, the TLWG is recommending consideration of a special toll violation docket model currently being used in several general district courts to increase capacity for these cases. It is important to recognize, however, that while this approach would use the existing facilities and infrastructure of the courts, it would require a significant investment in staffing and resources for clerks to process the summonses and related papers for each violation and for judges to adjudicate the charged violations.

The TLWG also discussed how to improve the legislative processes for out-of-state violators. Currently, there is no legal authority to enforce out-of-state violations. One method discussed by the TLWG is to develop reciprocity agreements with our neighboring states and beyond, similar to those entered into by VDOT with other states for moving violations.

Finally, the TLWG recommends that the working group continue to meet on a regular basis to review the changes recommended and implemented as a result of this effort, to evaluate the actual impacts of new toll facilities coming online, and to continue to recommend legislative and business rule changes to refine this process. The TLWG recognizes that the proposals made in this report may not be sufficient to handle the increase in toll violation cases that will result from AET. Moreover, at present we are unable to reliably forecast the impact AET will have on specific jurisdictions because there are no AET facilities that are currently operational in Virginia. Finally it should be noted that this report does not address mechanisms to hold out-of-state toll violators accountable, as this will likely require negotiation of reciprocal agreements with other states.
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(*1) Assumes (1) existing facilities experience constant violation rates and (2) new All Electric Toll facilities will experience higher violation rates.