In previous posts, I’ve addressed the expedited scheduling requirements and opportunities for permanent release of motor vehicles seized pursuant to G.S. 20-28.3. Today, I’ll address the ways a motor vehicle may be released temporarily pending trial or final disposition of the underlying offense. Generally speaking, this temporary release permits a motor vehicle owner to obtain temporary possession of the vehicle conditioned on meeting certain prerequisites and agreeing to return the motor vehicle on the day of the forfeiture hearing. Read on for more.
Background. Whenever a person is charged with felony speeding to elude arrest pursuant to G.S. 20-141.5(b) or (b1), the motor vehicle driven is subject to seizure and forfeiture. This is also true in DWI cases where, at the date of offense, the defendant’s driver’s license was revoked for an impaired driving revocation or the defendant did not have a valid license nor insurance. Upon seizure, the vehicle is usually first towed to a local storage facility, then transferred to the facilities of a state contractor within a few days. There are fees for towing, as well as accruing fees for storage. Whether the motor vehicle is released to its owner, a lienholder, or forfeited to the county board of education, these towing and storage fees must be paid. Often, these fees are paid out of the proceeds of the sale of the vehicle. While expediting the underlying case towards resolution, or permanently releasing the vehicle before trial, are two ways to minimize these fees, another is temporary release of the vehicle until the forfeiture hearing.
Non-defendant motor vehicle owners. If the motor vehicle owner seeking temporary release of the motor vehicle is not the defendant in the underlying case, G.S. 20-28.3(e) permits them to seek release in both DWI and speeding to elude cases. Upon payment of all towing and storage fees incurred as a result of seizure and impoundment, the clerk shall release the vehicle to the non-defendant owner once the following five conditions have been met:
- The motor vehicle has been seized for not less than 24 hours;
- A bond in the amount equal to the fair market value of the vehicle is secured by cash deposit, or by a recordable deed of trust to real property, in the full amount, by a bail bond under G.S. 58-71-1(2), or by at least one solvent surety, payable to the county school fund and conditioned on return of the vehicle in substantially the same condition and without any new liens on the date of a properly noticed forfeiture hearing;
- Execution of either an impaired driving acknowledgement, in the case of a DWI seizure, or a speeding to elude arrest acknowledgement, in the case of a speeding to elude seizure;
- A check of the records of the NC DMV indicates that the requesting vehicle owner has not previously executed an impaired driving or felony speeding to elude acknowledgment naming the operator of the vehicle; and
- A bond posted to secure the release of this motor vehicle under this subsection has not previously been ordered forfeited under G.S. 20-28.5.
Non-defendant motor vehicle owners may initiate this hearing by filing AOC-CR-330A in impaired driving cases, or AOC-CR-330B in speeding to elude cases. Clerks may subsequently rule on the owner’s petition using AOC-CR-332A for impaired driving cases, or AOC-CR-332B for speeding to elude cases.
Defendant motor vehicle owners. When the motor vehicle owner is also the defendant in the underlying case, G.S. 20-28.3 only permits pretrial temporary release when the vehicle has been seized as part of a felony speeding to elude case. If a defendant vehicle owner’s vehicle has been seized as part of a DWI case, there is no avenue for temporary release of the vehicle pretrial. In speeding to elude cases, the clerk shall release the vehicle to the defendant owner, upon payment of all towing and storage fees incurred as a result of seizure and impoundment, once the following three conditions have been met:
- The motor vehicle has been seized for not less than 24 hours;
- A bond in the amount equal to the fair market value of the vehicle is secured by cash deposit, or by a recordable deed of trust to real property, in the full amount, by a bail bond under G.S. 58-71-1(2), or by at least one solvent surety, payable to the county school fund and conditioned on return of the vehicle in substantially the same condition and without any new liens on the date of a properly noticed forfeiture hearing; and
- A bond posted to secure the release of this motor vehicle under this subsection has not previously been ordered forfeited under G.S. 20-28.5.
A defendant motor vehicle owner may initiate this hearing by filing AOC-CR-333B, which also includes the clerk’s order either ordering temporary pretrial release of the vehicle or denying release.
Multiple owners. G.S. 20-28.2(a1)(3a) defines motor vehicle owner as “a person in whose name a registration card or certificate of title for a motor vehicle is issued at the time of seizure.” The DMV permits two individuals to be listed as motor vehicle owners on the title and registration. If one of the owners is the defendant in an impaired driving case where the vehicle was seized, the other may nonetheless apply for and obtain temporary possession of the vehicle pretrial. So long as they meet the definition of “motor vehicle owner” at the time of the vehicle seizure, G.S. 20-28.3(e) permits “a motor vehicle owner, other than the driver at the time of the underlying offense” to apply for temporary release of the vehicle. As a result, an owner meeting these requirements notwithstanding who else is listed as a named owner on the title would be able to obtain temporary possession of a vehicle pretrial in an impaired driving case.
Relationship with other methods of release. As discussed in an earlier post, defendant and non-defendant owners may petition the clerk for permanent release of the vehicle pretrial by establishing they are an “innocent owner” as defined by G.S. 20-28.2(a1)(2) or by establishing that the vehicle was improperly seized. If those petitions are denied, they may be reconsidered by the judge at the forfeiture hearing. Temporary release of a vehicle pretrial, in comparison, does not require the vehicle owner to establish either of these circumstances for release. If a petition for permanent release is denied, or if a vehicle owner may not be equipped at the time to show they are an “innocent owner” or that the vehicle was improperly seized, a motor vehicle owner may petition for temporary release of the vehicle. This way, they may at least obtain temporary possession and use of the vehicle in the interim, and reduce the amount of time the vehicle is in storage accruing storage fees.
Failure to return. The opportunity to obtain temporary possession of the vehicle pretrial comes with a penalty beyond an order of seizure if the vehicle owner does not return the motor vehicle or violates a condition of pretrial release of the vehicle: bond forfeiture. G.S. 20-28.3(e) and (e2)(2) direct that if the vehicle is not returned on the date of a properly noticed forfeiture hearing, or if any condition of pretrial release of the vehicle is violated, the court shall issue an order of seizure for the vehicle and shall order the bond forfeited. This means it is possible that the vehicle owner will forfeit the fair market value of the vehicle twice (less costs and any towing and storage fees) to the county school fund: once by forfeiting the bond posted, and again if the vehicle itself is ordered forfeited at the forfeiture hearing.
Temporary release and appeal. If an impaired driving case resulting in seizure of a motor vehicle is a misdemeanor, it will generally first be handled in district court. If a motor vehicle was temporarily released pending trial pursuant to G.S. 20-28.3(e) to a non-defendant owner, and the defendant appeals their conviction in district court, rather than proceeding with a forfeiture hearing, “the release of the vehicle continues, and the terms and conditions of the original bond remain the same pending the resolution of the underlying offense involving impaired driving in superior court” (G.S. 20-28.3(m)). If the defendant is convicted and the court holds a forfeiture hearing forfeiting the vehicle, and the defendant later timely appeals their conviction to superior court, the order of forfeiture is stayed, and the issue of forfeiture is then heard in superior court de novo (G.S. 20-28.5(e)).