Defendants who drive while impaired while their licenses are revoked for another impaired driving offense or who drive while impaired without a license and without car insurance risk more than criminal prosecution. The vehicles they drive must be seized, and, if they are convicted, will be ordered forfeited. To speed up the forfeiture process, DWI cases involving vehicle forfeitures must be scheduled within 30 days of the offense. But they rarely, if ever, are. Are defendants entitled to relief when the statutory scheduling directive is ignored? And can that relief come in the form of the dismissal of criminal charges? Continue reading
Tag Archives: vehicle forfeiture
Part I of this post ended by noting that, like the racing forfeiture provisions in G.S. 20-141.3—and unlike the DWI seizure and forfeiture laws—the new felony speeding to elude seizure and forfeiture provisions in G.S. 20-141.5 fail to specify that payment of towing and storage costs is required to obtain the release of a motor vehicle before sale, giving rise to the question of who bears the towing and storage costs when a motor vehicle is seized but not sold. Cf. G.S. 20-28.3(e), (e2), (e3), and (n) (making “payment of all towing and storage charges” a condition of a motor vehicle’s release).
Perhaps the legislature’s failure to address this issue reflects the view that an entity in the regular business of towing and storing motor vehicles that contracts with a sheriff to tow and store vehicles seized pursuant to G.S. 20-141.5 acquires a possessory lien for reasonable charges for towing and storage. See G.S. 44A-2(d) (providing that “[a]ny person who . . . tows or stores motor vehicles in the ordinary course of the person’s business pursuant to an express or implied contract with an owner or legal possessor of the motor vehicle, except for a motor vehicle seized pursuant to G.S. 20‑28.3, has a lien upon the motor vehicle for reasonable charges for such . . . towing [and] storing”); State v. Davy, 100 N.C. App. 551, 561 (1990) (recognizing that a private storage facility acquired a lien for storage fees for a truck impounded as an item of evidence pursuant to G.S. 15-11.1 and declining the defendant’s request to “create a judicial exception to N.C.G.S. sec. 44A–1 [by holding] that when property is seized by a law enforcement agency who thereafter directs the local storage facility to store and retain said property . . . the lawful owner is entitled to immediate possession of said property and the law enforcement agency is thereafter held accountable for all storage liens”). Possessory liens under Chapter 44A arise when the lienor acquires possession of the property and terminate when the lienor voluntarily relinquishes possession of the property. G.S. 44A-3. Given that a motor vehicle seized and held pursuant to G.S. 20-141.5 cannot be sold until it is relinquished by the entity holding it in storage, the requirement in G.S. 20-141.5(h)(1) that towing and storage fees be deducted from sale proceeds accounts for any payments the sheriff is required to make to obtain the motor vehicle’s release.
Even if the entities in the business of towing and storing motor vehicles acquire possessory liens for reasonable towing and storage charges, which they may enforce by refusing to release motor vehicles before sale without payment of the lien by the party seeking release, questions remain regarding who bears towing and storage expenses when either no lien arises or any lien that was acquired has been terminated by the lienor’s relinquishment of the motor vehicle to another.
As discussed in Part I, new G.S. 20-141.5(g) requires that that the law enforcement agency that arrests a person for felony speeding to elude seize the motor vehicle driven and deliver it to the sheriff. Thus, with some frequency, motor vehicles will be seized by a law enforcement agency other than the sheriff’s department. That law enforcement agency must then itself tow or pay a private company to tow the seized motor vehicle for delivery to the sheriff. If the law enforcement agency tows the vehicle itself, no possessory lien arises since law enforcement agencies do not tow or store vehicles in the “ordinary course of . . . business.” See G.S. 44A-2(d). If a private company in the business of towing tows the vehicle for delivery to the sheriff, may it refuse that delivery until the sheriff pays reasonable charges for towing? If private entities may enforce their possessory liens by refusing to release vehicles to owners and lienholders absent payment of reasonable towing and storage charges, it seems to me the same rules would apply to the sheriff. If that is so, the sheriff will be required to pay any private towing company to obtain possession of the seized motor vehicle. Of course, if the motor vehicle is sold, this is among the amounts that the sheriff may recover from sale proceeds.
Likewise, even if the sheriff initially seizes the vehicle but arranges for it to be towed to a storage facility by a private entity that is not also the storage entity, it seems unlikely that the private tower would relinquish possession of the motor vehicle to the storage facility—thereby terminating its lien—absent payment by the sheriff. And, again, while these amounts may be recovered if the motor vehicle is sold, if the vehicle is permanently released before sale to a lienholder or qualifying owner, there is no statutory mechanism for exacting payment of those towing charges, for which there is no lien, from the party obtaining the motor vehicle’s permanent release.
Thus, in circumstances that may arise with some frequency, it appears to me that the sheriff bears the burden of paying for towing and for expenses associated with storage (if carried out by an entity not in the business of storing motor vehicles) without the prospect of being reimbursed from the proceeds at sale.
It’s worth noting, however, that my views on the payment of towing and storage fees differ from those expressed by some other experts. The North Carolina Sheriff’s Association has advised sheriffs that the law does not require the sheriff to pay a towing company for vehicles seized when the arrest is made by another law enforcement agency and that the person seeking a motor vehicle’s release always must pay towing and storage fees to obtain the motor vehicle’s release.
Other aspects of the law not discussed in this or the earlier post are explored in this memorandum from the Administrative Office of the Courts. If you have questions about the new law or views that expound upon or differ from those expressed above, please use the comment feature to share your thoughts.
My nomination for catchiest short title of the 2011 legislative session goes to House Bill 427, enrolled and chaptered as S.L. 2011-271, and short-titled “Run and You’re Done.” The aptly captioned act provides for seizure and forfeiture of motor vehicles driven on or after December 1, 2011 in the commission of felony speeding to elude, an offense defined in G.S. 20-141.5. Defendants were charged with felony speeding to elude in about 1,600 cases in 2010, indicating that fewer than half the number of motor vehicles will be seized under new G.S. 20-141.5 than are currently seized pursuant to the seizure and forfeiture provisions for motor vehicles used for impaired driving. A lot of folks have asked about the act and I thought I’d spend a couple of posts reviewing what it says.
New subsections (g)–(j) of G.S. 20-141.5 require law enforcement agencies, upon arresting a defendant for felony speeding to elude, to seize the motor vehicle driven and to deliver it to the sheriff of the county in which the offense is committed. Where delivery of actual possession is impracticable, G.S. 20-141.5(g) provides for constructive possession by the sheriff. The sheriff must hold the vehicle pending trial of the driver or drivers charged with the felony offense unless the motor vehicle is released before trial pursuant to a petition made (depending upon the basis for release and the procedural posture of the case) to the sheriff, the clerk or to the district or superior court.
G.S. 20-141.5(g)(1) requires the sheriff to release a seized motor vehicle to an owner who executes a satisfactory bond in double the value of the motor vehicle conditioned upon the owner’s return of the motor vehicle on the day of trial. The sheriff also must return the motor vehicle to its owner upon acquittal or dismissal of any felony charge. Lienholders may petition the court for pre-trial release of the motor vehicle. G.S. 20-141.5(g)(2); see also AOC-CR-276 (form petition for lienholder). The court with which this petition is made likely is the court before which the criminal case is pending at the time of the petition. Thus, if the defendant has not yet been bound over to superior court pursuant to G.S. 15A-612 (or been indicted), district court appears to be the appropriate venue for the lienholder’s petition. If the lienholder sells the motor vehicle, it must file with the court an accounting of proceeds and pay into the court all proceeds in excess of the lien.
Certain other owners also may prevent a motor vehicle seized under these provisions from being sold. A court must restore a motor vehicle to its owner if the owner demonstrates at the forfeiture hearing or during any other proceeding at which the matter is considered the following three factors:
1) the defendant was an immediate member of the owner’s family at the time of the offense;
2) the defendant had no previous convictions or previous or pending violations of any provision in Chapter 20 of the General Statutes for the three years before the offense; and
3) the defendant was under the age of 19 at the time of the offense.
G.S. 20-141.5(h)(3); see also AOC-CR-277 (form owner’s petition for release).
The owner is entitled to trial by jury on these issues. The owner of a motor vehicle driven by someone else in the commission of felony speeding to elude also may seek release of the motor vehicle by filing a petition with the clerk of court seeking a pretrial determination that he or she is an innocent owner. G.S. 20-141.5(h)(4). While the term “innocent owner” is defined in G.S. 20-28.2(a1)(2) for purposes of obtaining the release of a motor vehicle seized from an impaired driver, the term is not separately defined for purposes of felony speeding to elude seizures. Because the “innocent owner” definition in G.S. 20-28.2(a1)(2) corresponds to the statutory bases for seizure under the impaired driving laws, which differ from those for felony speeding to elude, this definition does not provide much guidance for purposes of determining how a motor vehicle owner establishes his or her status as an innocent owner pursuant to G.S. 20-141.5(h)(4). The form petition and order created by the Administrative Office of the Courts, AOC-CR-275, reflects the ambiguity regarding how one establishes himself or herself as an innocent owner. In any event, if the clerk determines that the petitioner is an innocent owner, the clerk must release the vehicle to the petitioner. A determination by the clerk that the petitioner failed to establish that he or she is an innocent owner may be reconsidered by the court as part of the forfeiture hearing. G.S. 20-141.5(h)(4); see also AOC-CR-277 (form petition for reconsideration).
When a seized motor vehicle has been specially equipped or modified to increase its speed, the court must, before its sale, order that the special equipment or modification be removed and destroyed and the vehicle restored to its original manufactured condition. See G.S. 20-141.5(j). If the modifications are so extensive as to render restoration impractical, the court may order that the vehicle be turned over to a governmental agency or public official within the territorial jurisdiction of the court to be used for official duties. Id. These provisions do not affect the rights of lienholders and other claimants. Id.
If the driver of a seized motor vehicle is convicted, the court must order the motor vehicle sold at public auction, unless, as noted above, the vehicle has been reclaimed by a lienholder upon order of the court or restored to the owner pursuant to the criteria set forth above relating to use by a family member under the age of 19 or based on the owner’s status as an innocent owner. See AOC-CR-278. Liens are paid from net proceeds of sale, after deducting storage expenses, the “fee for the seizure” (which presumably means towing expenses) and sale costs. The balance of the proceeds are payable to the county schools.
The provisions in new G.S. 20-141.5(h) governing sale proceeds are virtually identical to those governing the distribution of sale proceeds for motor vehicles seized and sold pursuant to G.S. 20-141.3 based upon their use in prearranged speed competitions. Like the racing forfeiture provisions—and unlike the DWI seizure and forfeiture laws—G.S. 20-141.5 fails to specify that payment of towing and storage costs is required to obtain the release of a motor vehicle before sale, giving rise to the question of who bears the towing and storage costs when a motor vehicle is seized but not sold. Cf. G.S. 20-28.3(e), (e2), (e3), and (n) (making “payment of all towing and storage charges” a condition of a motor vehicle’s release). The matter of who pays is significant, particularly when one considers that towing and storage costs easily can equal or exceed the value of a motor vehicle before the underlying criminal case is resolved. I’ll address this aspect of the new law in Part II of this post.
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.