Suppose a North Carolina city adopts an ordinance establishing a local speed limit of 25 miles per hour for all city streets that are not otherwise marked. Signs are posted on city streets reflecting the 25 mile per hour limit. Absent this ordinance, state law would provide for a speed limit of thirty-five miles per hour inside the municipal corporate limits. The city’s municipal code provides that violations of its provisions are not governed by G.S. 14-4, which otherwise would render the violation of a local ordinance regulating traffic an infraction. The municipal code also states that speeding on a city street is punishable by a civil penalty of $75 and requires that payment be made to the town hall. A local law enforcement officer stops a car that is traveling 40 miles per hour on a city street. May the officer issue a civil citation to the driver, requiring payment of the $75 penalty? May the officer cite the driver for speeding in violation of state law, an infraction? May the officer choose between these two methods of enforcement?
Tag Archives: city ordinance
The News and Observer reported Sunday on the Hamlet Police Department’s seizure of vehicles from drivers charged with low-level traffic offenses and the subsequent selling of those vehicles as scrap in what the reporter characterized as a “series of questionable and off-the-books transactions handled by the police.” A story in today’s paper states that the State Bureau of Investigation will look into “possible forgery and/or misuse of court orders” related to those seized vehicles. According to the News and Observer, some of the court orders provided to the salvage yard appeared to be pre-signed in blank, with vehicle-specific information added later.
The Hamlet situation raises a number of thorny legal issues—too many to cover in a single post. The one I want to address here lies at the very heart of this controversy: Are police officers authorized to seize and impound motor vehicles driven by defendants who are cited for low-level traffic offenses?
The answer, which may come as a surprise to anyone who has ever received a ticket and driven (perhaps not merrily) home afterwards, is that yes, sometimes they may.
We’re talking here about misdemeanor traffic offenses, and not about motor vehicles used to transport drugs, to drive while impaired by a person already revoked for impaired driving, or to feloniously flee from police. Specific statutory authority permits police to seize vehicles in those more serious cases. See G.S. 90-112; G.S. 20-28.3; G.S. 20-141.5.
So where’s the authority to seize vehicles from drivers who are cited for, say, driving without insurance, a Class 1 misdemeanor under G.S. 20-313 (reclassified as a Class 3 misdemeanor for offenses on or after December 1, 2013).
City ordinance. Cities and towns may adopt ordinances that prohibit the abandonment of motor vehicles on public streets or on property within the city. G.S. 160A-303. A municipality may enforce such an ordinance by removing and disposing of abandoned motor vehicles according to the procedures in G.S. 160A-303.
Vehicles that pose a hazard. One category of vehicles that is considered “abandoned” are those determined by law enforcement to be a hazard to the motoring public. G.S. 160A-303(b1)(4). A law enforcement officer who stops a car that is being driven without the automobile insurance required by law may be concerned about the risks of allowing the driver to drive away from the scene after he is cited. The officer reasonably may deem such driving hazardous to the public. Indeed, the court of appeals in State v. Brill, No. COA07–1143. 2008 WL 2096785, 190 N.C. App. 674 (2008) (unpublished), determined that an officer’s decision to have the defendant’s vehicle towed was reasonable and accorded with the department’s towing policy. The officer in Brill testified that he was required to have an uninsured vehicle towed because: “(1) if he did not, ‘and it was involved in an accident, [he] could be held liable for the damages since [he] knew the vehicle had no insurance[;]’ (2) if operators did not have insurance and ‘if they were involved in an accident, they would have no insurance policy to cover the damages to their vehicle or other innocent individuals who [were] part of that accident[;]’ and (3) the Department of Motor Vehicles requires drivers to have valid insurance in order to operate vehicles on the public streets.” Id. at *4. The Brill court also noted that before the officer had the defendant’s vehicle towed, he gave the defendant the option of making his own arrangements for towing.
An officer might have similar concerns about allowing a driver who is not licensed or a driver whose license is revoked to drive away after being cited. One of the options short of towing available to an officer in such a circumstance is to allow the driver to contact a properly licensed friend who may remove the vehicle from the roadway (assuming the vehicle is insured).
It strikes me as a stretch to consider the driving of a motor vehicle with an expired registration plate or by a person with a recently expired driver’s license to be hazardous to the motoring public. Likewise, I’m not convinced that the driving of a motor vehicle with windows that do not satisfy the state’s window-tinting restrictions would constitute a hazard so as to justify the vehicle’s seizure and impoundment. Thus, regardless of the city’s ordinance and police department policy, I doubt that motor vehicles driven by persons charged with many traffic law misdemeanors may lawfully be towed under the theory that they have been abandoned.
Vehicles left on a street in violation of parking law. Another category of vehicles that are deemed abandoned are those left on a street or highway in violation of a law or ordinance prohibiting parking. G.S. 160A-303(b1)(1). Those vehicles likewise may be towed pursuant to a city ordinance prohibiting abandoned vehicles. In circumstances in which a cited driver who is not permitted to drive away from the scene can contact another person to drive or tow away the vehicle, the driver likely can avoid towing on this basis.
City must give notice. A motor vehicle abandoned in violation of a city ordinance may be moved to a storage garage or area. When this occurs, the city must give notice to the owner in accordance with G.S. 20-219.11(a) and (b). This statute requires that when a vehicle with a valid plate or registration is towed, the authorizing person must immediately notify the last known registered owner of the vehicle of the following:
1. a description of the vehicle
2. the place where the vehicle is stored
3. the violation with which the owner is charged, if any
4. the procedure the owner must follow to have the vehicle returned to him, and
5. the procedure the owner must follow to request a probable cause hearing on the towing.
If the vehicle is registered in North Carolina, this notice must be provided within 24 hours.
Right to a hearing. The city also must provide a hearing procedure for the owner. If the city operates in a way (as was apparently the case in Hamlet) that it is responsible for collecting towing fees, it must (1) provide by contract or ordinance for a schedule of reasonable towing fees; (2) provide a procedure for a prompt fair hearing to contest the towing; (3) provide for an appeal to district court from that hearing; (4) authorize release of the vehicle at any time after towing by posting of a bond or paying of the fees due, and (5) provide a sale procedure similar to that provided in G.S. 44A-4, 44A-5, and 44A-6 (governing enforcement of liens on personal property by sale).
When the city contracts with a towing company that itself collects the fee, the post-towing hearing procedures in Article 7A of Chapter 20 apply. Those procedures provide, upon the vehicle owner’s written request, for a hearing before a magistrate to determine if probable cause for the towing existed. G.S. 20-219.11(c).
Reported Irregularities. Though towing arising from relatively minor motor vehicle offenses is permissible in the circumstances discussed above, the report on the Hamlet seizures and sales indicates that no such procedures were followed. City leaders said they had no policy for storing vehicles (and thus presumably no fee schedule), and owners who attempted to retrieve their vehicles reportedly were turned away.
