Deep in the statutory woods of the law allowing the seizure of motor vehicles driven by certain impaired drivers is a provision setting trial priority for the underlying criminal charges. G.S. 20-28.3(m) requires that district court trials of impaired driving offenses involving forfeiture of motor vehicles be scheduled on the arresting officer’s next court date or within 30 days of the offense, whichever comes first.
This statutory subsection goes on to state that once scheduled, the case must not be continued unless the following conditions are met: (1) a written motion for a continuance is filed with notice given to the opposing party before the motion is heard; (2) the judge makes a finding of a compelling reason for the continuance; and (3) the motion and finding are attached to the court case record.
The trial priority provisions frequently are not followed in practice. First, DWI cases sometimes are calendared for trial at the arresting officer’s next court date that also is more than thirty days from the date of arrest. Under this calendaring practice, DWI cases never appear on the calendar sooner than than 31 days from the date of arrest. Second, defendants routinely orally move for a continuance on the first court date. For indigent defendants who are appointed counsel, this continuance is a necessity, as counsel will not even be appointed until the first court date. Even when defendants retain counsel before the first court appearance, they typically are not prepared to proceed to trial on the date of the case’s initial setting.
While it would be easy enough for a defendant with retained counsel to file a written motion for continuance before the first court date, my understanding is that such motions typically are not made in writing. And it would be unreasonable to expect unrepresented defendants who are entitled to counsel to file such a motion on their own.
As I see it, the failure to comply with these provisions isn’t a huge deal. They obviously are designed to ensure that criminal cases involving the forfeiture of someone’s property don’t languish in the courts while the value of the underlying property is consumed by towing and storage costs. But the reality is that almost no DWI trials take place within 30 days of the offense, regardless of how soon the case initially is calendared. And very few motor vehicles that might be forfeited are still being held by the time such a criminal trial concludes. They have either been released to innocent owners or lienholders or they’ve been sold under the expedited sale provisions that allow such vehicles to be sold after 90 days if they are worth $1500 or less or at any time the towing and storage costs exceed 85 percent of their value. My sense of the significance of a departure from the letter of G.S. 20-28.3(m) is supported by the lack of a statutory remedy for such a violation.
Notwithstanding the lack of a remedy and, generally speaking, the lack of prejudice to the defendant, defendants occasionally insist that they are entitled to dismissal of the underlying criminal charges when the trial priority provisions have not been followed. The defendants who make such motions frequently do so when the underling violation stems from the trial court’s granting of their own oral motion to continue the case.
As I’ve already mentioned, no such remedy is statutorily provided. Given that the provision is designed to ensure that the owner of a motor vehicle subject to forfeiture receives a prompt determination of that issue and that the school board, the beneficiary of net proceeds from such forfeitures, receives its due, it is difficult to conceive of why such a violation would entitle a defendant to relief in the criminal case. Moreover, when the defendant seeks a continuance and fails to comply with the statutory requirements, it seems particularly inequitable to allow the defendant to benefit from his or her own statutory violation. Nevertheless, given the frequency with which such motions are made, they presumably have enjoyed some success, or at least are supported by some cogent argument.
So readers, if you have a contrary view, tell me what I’m missing.
This is a very good article and I am glad you have brought this issue up. What I continue to wonder is the appropriate remedy for a criminal case that is not initially set within 30 days, and there has been a denial of a petition to return the vehicle during that time. In that case, the state (through the officer or magistrate) has violated the statute, Would it not seem reasonable that the appropriate remedy on the first court date might be a return of the vehicle (since the statute seems to be addressing the vehicle interest more than the defendant’s rights in the criminal charge itself)?