Seizure of Vehicles in DWI Cases

Tag Archives: motor vehicles

Seizure of Vehicles in DWI Cases

Posted on May 2, 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is subject to seizure if at the time of the violation (1) the driver’s license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation or (2) the person was not validly licensed and was not covered by an automobile liability policy.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.

Category: Motor Vehicles, Procedure, Uncategorized | Tags: DWI, forfeiture, impaired driving, motor vehicles, vehicle forfeiture

Who’s Driving?

Posted on October 18, 2010 by Shea Denning

The New York Times recently published this piece on Google cars that drive themselves. And we’re not just talking about steering a straight line down the interstate. One car even navigated the hairpin turns on San Francisco’s famously curvy Lombard Street.

The cars use navigation systems and software capable of sensing nearby objects and reacting to their presence. Google cars reportedly have driven 1,000 miles without human intervention and more than 140,000 miles with “only occasional human control.”

The Times notes that autonomous vehicles create “thorny legal issues” since the laws governing motor vehicles generally pin responsibility for their safe and lawful operation upon the driver–not the vehicle. Apparently the presence in the Google cars of a driver capable of overriding any error avoids any problem with California law.

The operation of an autonomous vehicle without a human driver apparently would violate North Carolina law as well. G.S. 20-163 prohibits a person driving or in charge of a motor vehicle from leaving it “stand[ing} unattended” on a public highway or public vehicular area without first stopping the engine, setting the brake, and, upon a grade, turning the front wheels to the curb or side of the highway. Violation of this provision is negligence per se. Watts v. Watts, 252 N.C. 352 (1960).

North Carolina law considers driving to be an exclusively human act, though not one that requires that a vehicle be in motion. The term driver is defined in G.S. 20-4.01(7) as being synonymous with the term “operator,” defined in G.S. 20.4.01(25). Cognates of both words (such as drive, driving, operate, operating) also share the same meaning. An operator is “[a] person in actual physical control of a vehicle which is in motion or which has the engine running.”

A defendant’s purpose for taking actual physical control of a car is not relevant to consideration of whether he was driving. State v. Fields, 77 N.C. App. 404 (1985). Thus, in the criminal prosecution of defendants for offenses of which driving is an element, there is no requirement that the State establish that the vehicle was in motion with the defendant behind the wheel or that the defendant cranked the car for purposes of driving it. Id. In State v. Fields, a law enforcement officer came upon a vehicle sitting in the right hand lane of the road. The vehicle was motionless and defendant was seated behind the wheel. The vehicle’s owner was seated on the passenger side. Both the defendant and the passenger testified at trial that the passenger had been driving and stopped the vehicle on the street so that they could use the bathroom. The defendant got back into the driver’s seat of the car and cranked it because he was cold. The court found that this constituted sufficient evidence of driving in the prosecution of defendant for the offense of driving while impaired.

Driving can be established by circumstantial as well as direct evidence. In State v. Dula, 77 N.C. App. 473 (1985), the court found sufficient evidence to justify the inference that defendant was driving where the driver of another car saw black tire marks on the highway, dust in the air, and a car, with its headlights on, lying on its top in a field near the highway. The driver of the other car stopped at the scene and found the defendant in the overturned car, the doors of which were closed and the windows rolled up. He did not see anyone else in the area. The investigating officer saw tire marks leading from the black marks on the highway across the highway shoulder and field to where the overturned car was. The officer could not open the car doors. Testimony from a witness for the defendant that the witness was driving the car and fled the scene did not render the State’s evidence insufficient.

Likewise, in State v. Riddle, 56 N.C. App. 701 (1982), the court found circumstantial evidence of driving sufficient to warrant submission of the case to the jury where the defendant was seen getting out of the car immediately after the collision and no one else was seen in or near the car. Defendant said that his friend had been driving and left the scene of the accident, running through the woods. A witness and law enforcement officers checked the woods and discovered no evidence to support the defendant’s claim.

Defendant claimed that the driver of the car left through the driver’s side door, but an investigating law enforcement officer was unable to open the door because of the damage it sustained during the collision. When the wrecker driver arrived, defendant pulled the keys to the car out of his pocket and handed them to the wrecker driver.

The court reached a different conclusion in State v. Ray, 54 N.C. App. 473 (1981), finding insufficient evidence to support the impaired driving charge where the only evidence that defendant was driving was that he was sitting “halfway [in] the front seat.” In Ray, an officer responded to an accident call and saw the defendant seated in a car that had hit two parked cars. There was no evidence that the car had been operated recently or evidence that the motor was running.

Solely for the prosecution of parking violations, it is presumed that a vehicle was parked and left upon a street or place by the person or entity in whose name the vehicle is registered. See G.S. 20-162.1.

The Times reports that autonomous cars are “years from mass production,” but when and if they do hit the marketplace, they’ll doubtless require reconsideration of North Carolina laws founded on the notion that vehicles end up where they do as a result of human direction.

Category: Crimes and Elements, Motor Vehicles, Uncategorized | Tags: autonomous cars, driving, Google, motor vehicles, self-driving cars

Local Government Authority to Regulate Traffic

Posted on September 13, 2010 by Shea Denning

[Editor’s note: This post originally appeared here, on the School of Government’s local government blog. For an update on local government authority to regulate cell phone use by drivers, see this post.]

Questions frequently arise regarding whether cities and counties may lawfully adopt ordinances regulating traffic. For instance, may a city or county allow the operation of golf carts on streets within its boundaries? May a city adopt an ordinance defining speeding as violation of city code, punishable by a fine? May a city prohibit the use of mobile telephones by drivers within its jurisdiction?

The answer to these questions hinges upon a two-part inquiry. First, is the local government authorized to regulate in this area? Second, is the proposed ordinance consistent with state and federal law?

The general ordinance-making powers of cities and counties are defined in G.S. 160A-174 and G.S. 153A-121. Cities and counties may adopt ordinances regulating acts “detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the [city or county].” G.S. 153A-121; 160A-174.

G.S. 160A-296 provides that cities have general authority and control over (which includes the power to regulate the use of) the public streets, sidewalks, alleys, and bridges within their jurisdictions, except to the extent that authority and control is vested in the Board of Transportation. Several additional provisions in Chapter 160A expressly permit local regulation of traffic. See, e.g., G.S. 160A-300 (permitting cities to regulate pedestrian or vehicular traffic on public streets, sidewalks, alleys and bridges within the city); G.S. 160A-300.1 (permitting cities to install red light cameras and impose civil penalties for running a red light in violation of G.S. 20-158); G.S. 160A-300.6 (authorizing cities, notwithstanding contrary provisions of state law, to allow and regulate the operation of golf carts on public streets); G.S. 160A-301 (allowing cities to regulate parking).

Counties are in a different posture, however, as G.S. 153A-121(b) specifies that counties’ general ordinance-making powers do not confer authority to “regulate or control vehicular or pedestrian traffic on a street or highway under control of the Board of Transportation.” Since all public roads in the county are state-controlled, counties can only regulate in this area as specifically authorized by other provisions of state law.

The state’s motor vehicle laws expressly authorize local regulation of certain traffic activities. See G.S. 20-141 (authorizing local authorities to set higher or lower speed limits on certain streets within their jurisdictions); G.S. 20-158 (permitting local authorities to erect traffic signs and signals); G.S. 20-169 (authorizing local authorities to enact ordinances that: (1) regulate heavy or continuous traffic by signaling device; (2) establish one-way streets; (3) regulate use of the highways by processions or assemblages; (3) set speed limits in public parks; and (4) authorize law enforcement or emergency vehicles to preempt traffic signals).

When a proposed vehicle regulation is expressly sanctioned by state statute, such as the regulation of golf carts on public streets, see G.S. 153A-245 and 160A-300.6 (discussed here), the inquiry ends, and the local government may act pursuant to the statutorily conferred authority.

In contrast, when the regulation satisfies a generally permissible purpose but is not expressly authorized, the local government must consider whether the proposed regulation is consistent with state law. See G.S. 160A-174(b). And while there are obvious ways in which regulation may conflict with state or federal law, such as by permitting conduct expressly forbidden by state or federal law or by regulating a verboten subject, there are two other, less intuitive, ways in which local regulation may be deemed inconsistent.

First, a local ordinance may not – absent an express grant of authority – define and punish an act that already defined as a crime or infraction under state law. G.S. 160A-174(b)(6). An example of this type of inconsistent regulation was highlighted a few years ago when the News and Observer reported that police officers in the City of Raleigh exercised unbridled discretion in determining whether to cite speeding drivers for a violation of state law or, instead, a violation of the city’s ordinance regulating the same conduct. Being cited for a city ordinance violation versus a state law infraction or misdemeanor pursuant to G.S. 20-141 was thought to be a more favorable outcome for drivers, as it required no appearance in court and carried no risk of collateral license or insurance consequences. Shortly after the story, as reported here, the Raleigh city attorney acknowledged that the city lacked authority to regulate speeding in this manner and reported that city police officers had been instructed to discontinue the practice.

Second, a local ordinance may not regulate a field for which a state or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation. G.S. 160A-174(b)(5).

So let’s suppose that instead of prohibiting speeding, a city wants adopt an ordinance banning mobile phone use by drivers within in jurisdiction, with an exception for emergency situations. (The Town of Chapel Hill considered such regulation earlier this year. You can read town attorney Ralph Karpinos’ thoughtful analysis regarding the town’s authority here.) May a city do that? The proposed ordinance regulates an act that arguably is detrimental to the safety of city citizens so it falls within the city’s general ordinance-making power. No state or federal law expressly prohibits local regulation of mobile phone use by drivers. And while state law prohibits mobile phone use by drivers under eighteen and by school bus drivers, and bans texting or emailing while driving, it doesn’t impose an outright ban on drivers’ mobile phone use. Thus, the proposed ordinance would not define an offense with the same elements of a state (or federal) offense. The determinative question is whether the field is preempted.

If the regulatory scheme “is so complete in covering the field that it is clear any regulation on the [local] level would be contrary to the statewide regulatory purpose” then local regulation is preempted pursuant to G.S. 160A-174(b)(5). Craig v. County of Chatham, 356 N.C. 40, 46 (2002). There is no requirement that the local regulation be expressly barred—the completeness of the scheme is sufficient to establish preemption.

Do the three state statutes regulating mobile phone use by drivers constitute a complete and integrated regulatory scheme? One provision of G.S. 20-137.4—the statute banning mobile phone use by school bus drivers—indicates they do not. G.S. 20-137.4(e) specifies that “[n]o local government may pass any ordinance regulating the use of mobile telephones or additional technology associated with a mobile telephone by operators of school buses.” If regulation of mobile phone use by drivers is preempted from local legislation, then G.S. 20-137.4(e) is surplusage, an interpretation disfavored by rules of statutory construction.

On the other hand, the mobile phone use statutes comprise a portion of the extensive vehicle equipment regulation codified in Part 9 of Article 3 of Chapter 20. The first provision of Part 9, G.S. 20-115, provides that “local authorities shall have no power or authority to alter said limitations [regarding vehicle size, weight, construction, and equipment] except as express authority may be granted in this Article.” This comprehensive scheme for regulating equipment associated with vehicles favors a view that the field is preempted. Also relevant is that local regulation of mobile phone use by drivers may subject drivers to different rules in different jurisdictions, an outcome inconsistent with the generally uniform nature of motor vehicle regulation. See Craig, 356 N.C. at 48 (2002) (considering risk of different, conflicting rules in different jurisdictions relevant to inquiry regarding whether local ordinances regulating swine farms were preempted by statewide swine farm regulation crafted to balance the interests of swine farmers and adjoining landowners).

Given the arguments in favor of and opposed to preemption with respect to regulation of the use of mobile phones in vehicles, I won’t hazard a guess as to whether a court would consider such an ordinance preempted if challenged.

Category: Motor Vehicles, Uncategorized | Tags: cell phones, local government, motor vehicles, preemption, traffic offenses

Breaking or Entering a Motor Vehicle

Posted on March 26, 2010 by Jeff Welty

Under G.S. 14-56, it is a Class I felony to “break[] or enter[] any . . . motor vehicle . . . containing any . . . thing of value” with the intent to commit larceny or any felony. It sounds straightforward enough, but I was recently asked whether breaking into a toolbox affixed behind the cab of a pickup truck violates the statute. That led me to several other interesting issues, and my interlocutor was kind enough to permit me to summarize my research here. (She granted me a waiver of my own policy of not blogging about individual questions.)

Let’s start with some easy scenarios and then move to the tougher ones.

1. Obviously, breaking into the passenger compartment of a car violates the statute.

2. What about breaking into the trunk? This is included, too. The court of appeals considered the scope of the statute in State v. Nealy, 64 N.C. App. 663 (1983). Even the dissenting judge, who took the narrowest view of the statute, opined that it “proscribe[s] the breaking or entering of compartments of a motor vehicle in which property is customarily carried, i.e., the passenger compartment and the trunk area.”

3. How about the engine compartment? No property is usually carried there, so does a person commit breaking or entering a motor vehicle if he pops the hood with the necessary criminal intent? Yes. Although the dissenting judge in Nealy wouldn’t have gone so far, the majority upheld the defendant’s conviction based on reaching in and opening the hood of a vehicle, so the statute covers the engine compartment, too.

4. What if a person crawls under a vehicle and tries to remove a part, like the drive shaft? Now we’ve gone too far, probably. I don’t know of a North Carolina case on point, but in State v. Gore, 456 S.E.2d 419 (S.C. Ct. App. 1995), the court interpreted a similar South Carolina statute as applying only to those who break into the passenger compartment or a separate area such as “the trunk area, the engine compartment, [or] the gas tank,” and rejected the argument that attempting to remove a part from the vehicle’s underside violated the statute. Of course, such conduct is still illegal, it just doesn’t appear to be covered under G.S. 14-56.

5. What about toolboxes attached to trucks? This was the question that started it all. I wasn’t able to find an in-state case on point, but I have little doubt that an attached toolbox counts as part of the motor vehicle to which it is affixed. Functionally, it’s an aftermarket trunk. Cases from Texas confirm this analysis. State v. Ford, 860 S.W.2d 731 (Tex. Ct. App. Beaumont 1993) (breaking into toolbox “bolted and welded to the bed” of a truck constituted burglary of a vehicle under Texas law and was analogous to breaking into a vehicle’s trunk); Hopkins v. State, 864 S.W.2d 119 (Tex Ct. App. 14 Dist. 1993) (holding that “removal of tools from a toolbox attached to the bed of a pickup truck constituted entry into part of the vehicle” and so supported a conviction of burglary of a motor vehicle). As a sidebar, it’s fitting that these cases are from Texas. Over 26% of all vehicles there are pickups, tops in the nation, and the large, customized pickups often found there have been given the sobriquet “Texas Cadillacs.” As a second sidebar, I suppose that the same analysis would apply to an enclosed luggage carriers that is attached to the roof rack of a vehicle, although I couldn’t quickly find any cases on point.

6. What if there’s no toolbox, but a person reaches into the open bed of pickup truck with unlawful intent? Although a closer question, this, too, likely violates the statute. Cases from several jurisdictions — not just Texas! — have agreed on this point. People v. Frey, 467 N.E.2d 302 (Ill. Ct. App. 5 Dist. 1984) (“The bed of a pick-up truck is as much a part thereof as is, for example, the passenger cab or the truck compartment. We conclude that an unauthorized, knowing entry into the bed of a pick-up truck with intent to steal something therefrom is an act properly characterized and chargeable as burglary.”); State v. Cloud, 324 N.W.2d 287 (S.D. 1982) (burglary statute prohibits entry into any “structure” such as a “motor vehicle . . . or any portion thereof,” which includes the “open [bed] of a pickup truck”); People v. Banuelos, 577 P.2d 305 (Colo. Ct. App. 1977) (entering the open bed of a pickup truck constitutes entering a motor vehicle for purposes of the Colorado trespass statute).

Has anyone had other issues come up regarding what counts as part of the “motor vehicle” for purposes of G.S. 14-56? If so, please shoot me an email or post a comment.

Category: Crimes and Elements, Motor Vehicles, Uncategorized | Tags: breaking or entering, motor vehicles, toolboxes, trucks

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