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Seizure of Vehicles in DWI Cases

May 2nd, 2011
By Shea Denning

Three bills introduced in the General Assembly this session provide for seizure and forfeiture of motor vehicles involved in certain motor vehicle offenses. House Bill 451 provides for seizure of motor vehicles driven by persons charged with driving while license revoked if the person has two or more prior convictions for driving while license revoked. House Bill 427 and Senate Bill 271 provide for seizure of vehicles driven by defendants charged with felony speeding to elude. Each bill provides for forfeiture of the vehicles, subject to certain exceptions, upon conviction. H 451 and S 271 incorporate procedures set forth in G.S. 20-28.3, which currently govern the seizure and forfeiture of vehicles in certain impaired driving cases, while H 427 amends G.S. 20-141.5 to set forth offense-specific procedures for seizure and forfeiture.

Given this proposed legislation, I thought it might be worthwhile to review the seizure and forfeiture of motor vehicles driven in impaired driving offenses. Certain vehicles driven by repeat DWI offenders have been subject to forfeiture upon conviction since enactment of the Safe Roads Act in 1983. However, exceptions for vehicles used by other family members and vehicles subject to liens resulted in infrequent use of the penalty as initially drafted. See James C. Drennan and Ben F. Loeb, Jr, Motor Vehicles, in North Carolina Legislation 1997 245 (John L. Saxon, ed. 1997). That changed, however, with the enactment of S.L. 1997-379, which required law enforcement officers to seize motor vehicles subject to forfeiture and limited the ability of non-defendant owners to reclaim such motor vehicles. Id.

G.S. 20-28.3 currently provides that a motor vehicle driven by a person charged with an offense involving impaired driving is subject to seizure if at the time of the violation (1) the driver’s license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation or (2) the person was not validly licensed and was not covered by an automobile liability policy.

According to this report to the General Assembly, from October 1, 2009 until September 30, 2010, more than 4,000 motor vehicles were seized from drivers charged with impaired driving offenses. Of those, 3,596 were impounded by one of the three contractors authorized to tow, store, and sell such vehicles pursuant to a contract with the state’s Department of Public Instruction:  Tarheel Specialties, Eastway Wrecker Services and Martin Edwards and Associates.

Most of these vehicles were sold under the expedited sales provisions in G.S. 20-28.3(i), which permits sale of the vehicle before the underlying criminal case is resolved and without a court order. A motor vehicle valued at $1500 or less may be sold after ninety days from the date it was seized. In addition, a seized motor vehicle may be sold any time outstanding towing and storage costs exceed 85 percent of the vehicle’s fair market value. Such a vehicle also may be sold with the consent of all the motor vehicle owners. Any net proceeds from such a sale are deposited with the clerk of court in the county where the charges are pending. When (as is typically the case) there are no net proceeds, this is the end of the process, and no forfeiture order is entered. In fact, only 71 of the more than 4,000 motor vehicles seized in 2009-2010 were ordered forfeited by the courts.

Net proceeds from the sale of forfeited vehicles as well as a portion of storage proceeds are paid to the county schools in the county in which the motor vehicle was ordered forfeited. G.S. 20-28.5(b). County schools received $348,401 in proceeds from October 1, 2009 through September 30, 2010. An additional $90, 868 was deposited with clerks of court to be paid to county schools upon entry of an order of forfeiture. Contractors retained about $1.1 million in proceeds for storage.

Of course, vehicles aren’t seized from repeat DWI offenders for the purpose of generating revenue.  Instead, the measure is aimed at “keeping impaired drivers and their cars off the roads.” State v. Chisholm, 135 N.C. App. 578, 584 (1999). Indeed, the National Highway Traffic Safety Administration concluded in a 2011 Highway Safety Countermeasure Guide that vehicle impoundment for DWI offenders “reduces recidivism while the vehicle is in custody and to a lesser extent after the vehicle has been released.” (NHTSA Guide at 1-34). NHTSA reported that “[a]n evaluation of California’s impoundment law found both first-time and repeat offenders whose vehicles were impounded had fewer subsequent arrests for driving with a suspended license and fewer crashes.” Id. at 1-35.

Owners of motor vehicles driven by another person in the commission of an impaired driving offense as well as lienholders may secure release of seized motor vehicles before they are sold or ordered forfeited upon satisfying certain conditions and by paying towing and storage costs (which may never be waived). A defendant-owner may secure a motor vehicle’s early release only by demonstrating that his or her license was not revoked for a prior impaired driving revocation, see G.S. 20-28.3(e2), or—presumably—by demonstrating that he or she had a valid license and/or insurance (if this condition is the basis for the seizure). I say “presumably,” because when G.S. 20-28.3(a)(2) (the no license/no insurance basis for seizure) was enacted in 2006, no corresponding amendments were made to G.S. 20-28.3(e2) to allow a defendant to reclaim a seized vehicle by demonstrating that he or she in fact was licensed and/or insured.  Arguably, however, affording a defendant the right to make such a showing is required by due process, and a court could construe the statute accordingly.

For readers who want to know more about DWI vehicle seizure and the process for reclaiming seized vehicles, the AOC has published this guide containing answers to frequently asked questions.

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5 Responses to “Seizure of Vehicles in DWI Cases”

  1. Alan says:

    My son was charged with DWI and his car was taken and sold. At the time he was arrested he had a revoked license for a drinking under 21 conviction. He was charged in 2006 and pleaded guilty in 2009. He was one month away from having his license re-instated at the time he was charged with DWI. There was no breathalyzer for the driving under 21 conviction, so he should have never pleaded guilty. The lawyer and DA agreed he should have never been convicted of drinking under 21 and driving since the law says odor of alcohol alone can’t be used for conviction. The lawyer and DA also concluded the earlier conviction did not involve implied consent. My son pleaded guilty to DWI and received a level 3 conviction with the driving while license revoked as an aggravating factor. The judge, lawyer and DA all agreed his car should not have been forfeited and sold.

    The problem is what to do now. I could find nothing in law that addressed what the state must do if the car was taken and sold wrongly. Why is the burden on the person who lost their car and not the state? The car was sold for much less than it was worth. What do you do?

    Article XI of the NC Constitution allows for the following punishments:

    Section 1. Punishments.
    The following punishments only shall be known to the laws of this State: death, imprisonment, fines, suspension of a jail or prison term with or without conditions, restitution, community service, restraints on liberty, work programs, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State. (1995, c. 429, s. 2.)

    Taking someones car seems to be a punishment before being convicted and does not appear to include any of the punishments listed.

    • mitch says:

      I bet you knew your son was driving on a suspended license. So who’s fault is it, and if it was your car they could/should have charged you with allowing an unlicensed to driver to operate a motor vehicle. Sounds to me as though your son has a drinking problem. Two stops for alcohol violations in 5 years. Maybe you should be happy men and women are out there protecting the rest of your community. Hats off to officers for taking there vehicles. First time offenders not so much, but you do it a second time…haha…your loss!!!

  2. Alan says:

    I guess never mind. Even if they are in error you still have to pay towing and storage charges which is for more than half of what vehicle was sold for. This is really fair!!!
    20‑28.4. Release of impounded motor vehicles by judge.
    (a) Release Upon Conclusion of Trial. – If the driver of a motor vehicle seized pursuant to G.S. 20‑28.3:
    (1) Is subsequently not convicted of an offense involving impaired driving due to dismissal or a finding of not guilty; or
    (2 The judge at a forfeiture hearing conducted pursuant to G.S. 20‑28.2(d) fails to find that the drivers license was revoked as a result of a prior impaired driving license revocation as defined in G.S. 20‑28.2; and
    (3) The vehicle has not previously been released to a lienholder pursuant to G.S. 20‑28.3(e3), the seized motor vehicle or insurance proceeds held by the clerk of court pursuant to G.S. 20‑28.2(c1) or G.S. 20‑28.3(h) shall be released to the motor vehicle owner conditioned upon payment of towing and storage costs. The court shall not waive the payment of towing and storage costs. The court shall include in its order notice to the owner of the seized motor vehicle still being held, that within 30 days of the date of the court’s order, the owner must make payment of the outstanding towing and storage costs for the motor vehicle and retrieve the motor vehicle, or give notice to Division of Motor Vehicles requesting a judicial hearing on the validity of any mechanics’ lien on the motor vehicle for towing and storage costs.
    (b) Notwithstanding G.S. 44A‑2(d), if the owner of the seized motor vehicle does not obtain release of the vehicle within 30 days from the date of the court’s order, the possessor of the seized motor vehicle has a mechanics’ lien on the seized motor vehicle for the full amount of the towing and storage charges incurred since the motor vehicle was seized and may dispose of the seized motor vehicle pursuant to Article 1 of Chapter 44A of the General Statutes. Notice of the right to a judicial hearing on the validity of the mechanics’ lien given to the owner of the motor vehicle in open court in accordance with subsection (a) of this section or delivery to the owner of the vehicle of a copy of the court’s order entered in accordance with subsection (a) of this section shall satisfy the notice requirement of G.S. 44A‑4(b). (1997‑379, s. 1.3; 1998‑182, s. 4; 2001‑362, s. 8; 2004‑128, s. 4.)

  3. doc says:

    Is the seizure of a vehicle against due process?

    doc

    • b4b4 says:

      Wow. Imagine you had a 100,000 car. you would have to post 200,000 just ti=o get it out? Whats with the clause that the victim has to be 19 yo or younger)

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