Later this summer, we will be publishing a new Administration of Justice Bulletin, The Law of Vehicle Seizure and Forfeiture in North Carolina. It will cover the different circumstances in which law enforcement may seize vehicles and judges may order them forfeited. This post is a preview of two circumstances that will be included in the bulletin. One circumstance is when the vehicle is used as part of an offense related to a controlled substance. Another circumstance is when a vehicle is used to unlawfully transport nontaxpaid alcoholic beverages. Read on for the preview.
Drug Offenses (G.S. 90-112)
Applicability
Vehicles used as part of an offense related to controlled substances are subject to seizure and forfeiture. If a vehicle is used to unlawfully conceal, convey, or transport any unlawful controlled substance, it is subject to seizure and forfeiture. This also applies to any money, raw material, products, and equipment of any kind which are acquired, used, or intended for use in selling, purchasing, manufacturing, compounding, processing, delivering, importing, or exporting a controlled substance.
Vehicles subject to forfeiture pursuant to G.S. 90-112 may be ordered seized by any district or superior court with jurisdiction over the vehicle, may be seized without process if the seizure is incident to an arrest or search pursuant to a search warrant, or may be seized without process when the property has been the subject of a prior judgment in favor of the State in a criminal injunction or forfeiture proceeding under the North Carolina Controlled Substances Act (Article 5 of Chapter 90).
A vehicle is not subject to seizure if the driver hired the vehicle, and its use is generally offered to the public for hire, unless the owner or other person in charge of the vehicle was a consenting party or aware of the violation. The vehicle is also not subject to seizure if it was unlawfully in the possession of a person other than the owner in violation of state or federal law, if the violation is not a felony, or if the vehicle is subject to the interest of a security interest holder who had no knowledge or consent to the violation.
Vehicle Storage
A vehicle seized pursuant to this subsection is deemed to be in the custody of the law-enforcement agency that seized it and shall not be “repleviable.” (Replevin actions are otherwise known as “claim and delivery” actions, and are civil actions to recover personal property that is being unlawfully held). The seizing agency may place the vehicle under seal, remove the vehicle to a place it designates, or request that the N.C. Department of Justice take custody of the vehicle and move it to an appropriate location for disposition. In any event, the vehicle must be held in safekeeping until an order of disposition is entered by the judge.
Pretrial Release
Any vehicle seized pursuant G.S. 90-112 must be held in safekeeping as provided by law until a judge enters a disposition order. The vehicle may not be returned on either a permanent or temporary basis before final disposition or the forfeiture hearing.
Forfeiture Hearings
Vehicles subject to forfeiture under this authority are to be forfeited pursuant to the procedures for the forfeiture of vehicles used to unlawfully transport nontaxpaid alcohol as found in G.S. 18B-504 (discussed below). At a forfeiture hearing, a third-party claimant may achieve return or mitigation of the forfeiture if they can prove three things: (1) they must show that they have an interest in the vehicle obtained in good faith; (2) that they had no knowledge or reason to believe that it was being used or would be used in violation of controlled substance law; and (3) that their interest is in an amount in excess or equal to the fair market value of the vehicle.
If the vehicle is ordered forfeited, the law enforcement agency with custody of the vehicle has three options. It may retain the vehicle for official use, transfer the vehicle to the N.C. Department of Justice upon their application and the judge’s approval for official use, or sell the vehicle as surplus upon determination by the director of the law-enforcement agency that the vehicle is of no further use to the agency for use in official investigations. Any proceeds after deducting the cost of the sale are paid to the county board of education in the county where the vehicle was seized. If the vehicle has been modified to increase its speed, it may only be used in the performance of official duties or disposed of as junk.
Transporting Nontaxpaid Alcohol in Violation of ABC Law (G.S. 18B-504)
Applicability
When any conveyance is used to transport nontaxpaid alcoholic beverages in violation of ABC laws, it is subject to seizure and forfeiture. “ABC law” or “ABC laws” means any statute or statutes in Article 2C of Chapter 105, and the rules issued by the North Carolina Alcoholic Beverage Commission. The only exception is when the vehicle was used unlawfully by someone other than the owner, and the owner did not consent to the unlawful use.
Seizures pursuant to this authority are initiated by law enforcement applying to a judge for an order authorizing the seizure. This order may only be issued after criminal process has been issued for an ABC law violation in connection with the vehicle. The order of seizure must describe the vehicle and contain the facts establishing probable cause to believe the vehicle is subject to forfeiture.
Vehicle Storage
In these cases, storage of the vehicle is the responsibility of the law enforcement agency that seized the vehicle. If the officer with custody of the vehicle is satisfied it will be returned at trial, the officer may release the vehicle to the owner upon receiving a bond for its fair market value, which is subject to forfeiture to the court if the vehicle is not returned for trial.
Pretrial Release
Any time before an order for forfeiture is entered, the owner of a seized vehicle or the holder of an interest in the vehicle may apply to any judge that has jurisdiction to hear the underlying offense for return of the vehicle. If the judge finds the interested party or owner did not consent to the unlawful use of the vehicle, the judge has three options: (1) return the vehicle if it is not needed for trial; (2) return the vehicle after resolution of the case; or (3) if the vehicle has been sold, pay the interest holder a sum from the sale of the vehicle.
Forfeiture Hearings
The outcome of the forfeiture hearing depends on several factors. If the vehicle is otherwise unlawful to possess, or if ownership of the vehicle is uncertain and ownership has not been determined after the vehicle is held for that purpose, it must be forfeited. If the owner or possessor of the vehicle is found guilty, the judge may order the vehicle forfeited. Finally, if the owner or possessor is acquitted or the charges dismissed, the judge must order the vehicle returned. If the vehicle is also needed as evidence at an administrative hearing, any release order is delayed until the North Carolina Alcoholic Beverage Control Commission (hereinafter the Commission) determines the property is no longer needed for an administrative hearing.
When issuing a forfeiture order, the judge also may decide how to dispose of the vehicle. The judge may order that the vehicle be sold at public auction or sold at an auction after notice to certain named individuals or groups if only a limited number of people would have use for the vehicle. The judge also may order the vehicle delivered to a named State or local law enforcement agency if the vehicle is not suited for sale (with preference given in the following order: the agency that seized the vehicle, the Alcohol Law Enforcement Division, the Commission, the local board of the jurisdiction in which the vehicle was seized, and the Department of Justice). Finally, the judge also may order the vehicle destroyed if it would otherwise be unlawful to possess and it could not be used or is not wanted for law enforcement. If the vehicle is sold, the proceeds go to the county board of education in which the property is seized. Those proceeds are reduced by any interest of an innocent party and the costs of storage and sale.