Seizure of private property is extremely rare in law and is usually reserved for the most egregious of circumstances. However, there is a little known provision of NC DWI law that allows counties to take a person’s vehicle if they are driving while impaired while their license is revoked from a previous impaired driving offense. No accident or injury is required. Just being charged with a subsequent DWI is sufficient to lose your car or truck. At first, this law may seem justified. After all, no one is in favor of drunk driving, and there is little to no sympathy for those who are charged. And no doubt the legislature’s heart was in the right place as the money generated for the vehicle seizure goes to school children. But, in my respectful view, this law goes too far despite its intended purpose to reduce drunk driving.
The vehicle forfeiture law itself is extremely complex and bears critical review. It should be noted that the seizure of a person’s vehicle happens at the time of arrest and NOT after the case is resolved at trial. Therefore, you don’t have to a chance to show your innocence, and keep your car. You will lose your car immediately, which is a harsh penalty to suffer if you have not even been convicted. If you are still making payments on the car, you will still be obligated to pay them, even though you do not have the car. If a court finds the charged person was driving with a revoked license due to a previous impaired driving offense, the judge will order the vehicle forfeited, and the school board can then sell the vehicle and keep the proceeds. There is also a provision that allows one school system to share any money generated with any other school systems in the same county, or it can elect to keep the car for its own use. Innocent vehicle owners can petition to get their cars back as long as they are not the driver involved, but they must satisfy the court that they are, in fact, a truly innocent party. If a person is determined to be innocent, he or she is still responsible for towing and storage fees for the seized vehicle. You would think that the state would pay for the fees if it was determined that the person’s vehicle should not have been seized in the first place, but unfortunately, this is not the case.
Here is the law itself, in relevant part (with commentary):
§ 20-28.3. Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving while license revoked.
(a) Motor Vehicles Subject to Seizure for Impaired Driving Offenses. –
A motor vehicle that is driven by a person who is charged with an offense involving impaired driving is subject to seizure if:
(1) At the time of the violation, the drivers license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation as defined in G.S. 20-28.2(a);
(b) Duty of Officer. – If the charging officer has probable cause to believe that a motor vehicle driven by the defendant may be subject to forfeiture under this section, the officer shall seize the motor vehicle and have it impounded. The seizing officer shall notify the Division as soon as practical but no later than 24 hours after seizure of the motor vehicle of the seizure in accordance with procedures established by the Division. (The standard is probable cause only. No conviction of this offense is required before your vehicle is seized and impounded.)
(b1) Written Notification of Impoundment. – Within 48 hours of receipt within regular business hours of the notice of seizure, the Division shall issue written notification of impoundment to any lienholder of record and to any motor vehicle owner who was not operating the motor vehicle at the time of the offense. This written notification shall provide notice that the motor vehicle has been seized, state the reason for the seizure and the procedure for requesting release of the motor vehicle. The Division shall prohibit title to a seized motor vehicle from being transferred by a motor vehicle owner unless authorized by court order. (Any lienholder would be deemed innocent, but their interests are now tied up in the courts. Resolution can take time, and essentially no action can be taken with the vehicle while the asset is in legal limbo.)
(c) Review by Magistrate. – Upon determining that there is probable cause for seizing a motor vehicle, the seizing officer shall present to a magistrate within the county where the driver was charged an affidavit of impoundment setting forth the basis upon which the motor vehicle has been or will be seized for forfeiture. The magistrate shall review the affidavit of impoundment and if the magistrate determines the requirements of this section have been met, shall order the motor vehicle held. If the magistrate determines the requirements of this section have not been met, the magistrate shall order the motor vehicle released to a motor vehicle owner upon payment of towing and storage fees. (Even if the seizure is later determined to be inappropriate, the vehicle owner is required to pay all towing and storage costs. Even if vindicated, there are still monetary repercussions involved against the private owner. It would seem more fair to have the State reimburse these otherwise unnecessary charges.)
(c1) Effecting an Order of Seizure. – An order of seizure shall be valid anywhere in the State. Any officer with territorial jurisdiction and who has subject matter jurisdiction for violations of this Chapter may use such force as may be reasonable to seize the motor vehicle and to enter upon the property of the defendant to accomplish the seizure. An officer who has probable cause to believe the motor vehicle is concealed or stored on private property of a person other than the defendant may obtain a search warrant to enter upon that property for the purpose of seizing the motor vehicle. (It is the “may use such force as may be reasonable” language that is disconcerting. Police can now come onto private property with force if necessary to take a vehicle even before conviction.)
(d) Custody of Motor Vehicle. – Unless the motor vehicle is towed pursuant to a statewide or regional contract, or a contract with the county board of education, the seized motor vehicle shall be towed by a commercial towing company designated by the law enforcement agency that seized the motor vehicle. Seized motor vehicles not towed pursuant to a statewide or regional contract or a contract with a county board of education shall be retrieved from the commercial towing company within a reasonable time, not to exceed 10 days, by the county board of education or their agent who must pay towing and storage fees to the commercial towing company when the motor vehicle is retrieved. Except for gross negligence or intentional misconduct, the county board of education, or any of its employees, shall not be liable to the owner or lienholder for damage to or loss of the motor vehicle or its contents, or to the owner of personal property in a seized vehicle, during the time the motor vehicle is being towed or stored pursuant to this subsection. (The suspect vehicle gets towed by whomever is available quickly but ultimately gets “retrieved” by the county board of education. And, of course, they are protected legislatively except for “gross negligence” even though only “constructive possession” is described in the law. This legislative result by design is that the county board of education cannot be sued for any damage to the vehicle or loss of personal property.)
(e) Release of Motor Vehicle Pending Trial. – A motor vehicle owner, other than the driver at the time of the underlying offense resulting in the seizure, may apply to the clerk of superior court in the county where the charges are pending for pretrial release of the motor vehicle. (Again, the burden has been shifted to the innocent vehicle owner to show they are actually innocent and should have their property returned to them. Even if successful, they will have to pay all related towing and storage charges.)
(e1) Pretrial Release of Motor Vehicle to Innocent Owner. – A nondefendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the petitioner is an innocent owner. The clerk shall consider the petition and make a determination as soon as may be feasible. At any proceeding conducted pursuant to this subsection, the clerk is not required to determine the issue of forfeiture, only the issue of whether the petitioner is an innocent owner. (The term “innocent owner” is not defined.)
(e2) Pretrial Release of Motor Vehicle to Defendant Owner. –
(1) If the seizure was for an offense involving impaired driving, a defendant motor vehicle owner may file a petition with the clerk of court seeking a pretrial determination that the defendant’s license was not revoked pursuant to an impaired driving license revocation as defined in G.S. 20-28.2(a). The clerk shall schedule a hearing before a judge of the division in which the underlying criminal charge is pending for a hearing to be held within 10 business days or as soon thereafter as may be feasible. Notice of the hearing shall be given to the defendant, the district attorney, and the attorney for the county board of education. (Either the charged individual’s license is valid or not. The NC DMV can easily provide that answer. But note that the attorney for the county board of education is included even though there is only a contingent interest in the vehicle at this point.)
(h) Insurance Proceeds. – In the event a motor vehicle is damaged incident to the conduct of the defendant which gave rise to the defendant’s arrest and seizure of the motor vehicle pursuant to this section, the county board of education, or its authorized designee, is authorized to negotiate the county board of education’s interest with the insurance company and to compromise and accept settlement of any claim for damages. Property insurance proceeds accruing to the defendant, or other owner of the seized motor vehicle, shall be paid by the responsible insurance company directly to the clerk of superior court in the county where the motor vehicle driver was charged. If the motor vehicle is declared a total loss by the insurance company liable for the damages to the motor vehicle, the clerk of superior court, upon application of the county board of education, shall enter an order that the motor vehicle be released to the insurance company upon payment into the court of all insurance proceeds for damage to the motor vehicle after payment of towing and storage costs and all valid liens.
(i) Expedited Sale of Seized Motor Vehicles in Certain Cases. – In order to avoid additional liability for towing and storage costs pending resolution of the criminal proceedings of the defendant, the county board of education may, after expiration of 90 days from the date of seizure, sell any motor vehicle having a fair market value of one thousand five hundred dollars ($1,500) or less. The county board of education may also sell a motor vehicle, regardless of the fair market value, any time the outstanding towing and storage costs exceed eighty-five percent (85%) of the fair market value of the vehicle, or with the consent of all the motor vehicle owners. Any sale conducted pursuant to this subsection shall be conducted in accordance with the provisions of G.S. 20-28.5(a), and the proceeds of the sale, after the payment of outstanding towing and storage costs or reimbursement of towing and storage costs paid by a person other than the defendant, shall be deposited with the clerk of superior court. If an order of forfeiture is entered by the court, the court shall order the proceeds held by the clerk to be disbursed as provided in G.S. 20-28.5(b). If the court determines that the motor vehicle is not subject to forfeiture, the court shall order the proceeds held by the clerk to be disbursed first to pay the sale, towing, and storage costs, second to pay outstanding liens on the motor vehicle, and the balance to be paid to the motor vehicle owners. (This provision protects the storage facility from incurring storage charges that may exceed the value of the vehicle impounded. Note that even if forfeiture is subsequently deemed improper, the wrongfully seized vehicle owner is the last to get paid and only if there is anything left over.)
(j) Retrieval of Certain Personal Property. – At reasonable times, the entity charged with storing the motor vehicle may permit owners of personal property not affixed to the motor vehicle to retrieve those items from the motor vehicle, provided satisfactory proof of ownership of the motor vehicle or the items of personal property is presented to the storing entity. (Again, good luck here. Given the other statutory protections for the storage facility, an action for conversion or trespass to chattels would not appear to be an option either.)
(l) Payment of Fees Upon Conviction. – If the driver of a motor vehicle seized pursuant to this section is convicted of the underlying offense resulting in the seizure of a motor vehicle pursuant to this section, the defendant shall be ordered to pay as restitution to the county board of education, the motor vehicle owner, or the lienholder the cost paid or owing for the towing, storage, and sale of the motor vehicle to the extent the costs were not covered by the proceeds from the forfeiture and sale of the motor vehicle. (In addition to the Level 1 punishment which involves jail time and other increased penalties, the defendant will also be subjected to all related storage costs. By the time of conviction, those fees can easily be in the hundreds, if not thousands, of dollars.)
(m) Trial Priority. – District court trials of offenses involving forfeitures of motor vehicles pursuant to G.S. 20-28.2 shall be scheduled on the arresting officer’s next court date or within 30 days of the offense, whichever comes first. (This provision provides a quick clock for adjudication. This is the only part of the law that gives a small measure of protection to the vehicle owner.)
Sarcasm aside, this vehicle forfeiture law may “feel good” but will likely have significant unintended consequences. Bad actors should be punished, of course, but only after conviction. Seizing and selling vehicles will not stop someone who truly has a drinking addiction problem. Just like with ignition interlock laws, the impaired driver will simply ignore the law and drive a different vehicle. In addition, these draconian laws will also affect innocent families of those with serious dependency problems. In many situations, families only have one vehicle, or their “work vehicle” will be taken, leaving them with few options to keep food on the table. In the end, despite the legislature’s best intentions, this law is going to have more negative consequences than positive outcomes. Deterrence and enforcement should always be focused and narrowly tailored. Only then can real, effective change be facilitated. As a Charlotte DWI attorney, I hope the lawmakers will revisit this law and make the changes necessary to create a just result.