§ 20-28.3. Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving while license revoked or without license and insurance. - North Carolina Statutes

§ 20‑28.3.  Seizure,impoundment, forfeiture of motor vehicles for offenses involving impaireddriving while license revoked or without license and insurance.

(a)        Motor VehiclesSubject to Seizure. – A motor vehicle that is driven by a person who is chargedwith an offense involving impaired driving is subject to seizure if:

(1)        At the time of theviolation, the drivers license of the person driving the motor vehicle wasrevoked as a result of a prior impaired driving license revocation as definedin G.S. 20‑28.2(a); or

(2)        At the time of theviolation:

a.         The person wasdriving without a valid drivers license, and

b.         The driver was notcovered by an automobile liability policy.

For the purposes of thissubsection, a person who has a complete defense, pursuant to G.S. 20‑35,to a charge of driving without a drivers license, shall be considered to havehad a valid drivers license at the time of the violation.

(b)        Duty of Officer. – Ifthe charging officer has probable cause to believe that a motor vehicle drivenby the defendant may be subject to forfeiture under this section, the officershall seize the motor vehicle and have it impounded. If the officer determinesprior to seizure that the motor vehicle had been reported stolen, the officershall not seize the motor vehicle pursuant to this section. If the officerdetermines prior to seizure that the motor vehicle was a rental vehicle drivenby a person not listed as an authorized driver on the rental contract, theofficer shall not seize the motor vehicle pursuant to this section, but shallmake a reasonable effort to notify the owner of the rental vehicle that thevehicle was stopped and that the driver of the vehicle was not listed as anauthorized driver on the rental contract. Probable cause may be based on theofficer's personal knowledge, reliable information conveyed by another officer,records of the Division, or other reliable source. The seizing officer shallnotify the executive agency designated under subsection (b1) of this section assoon as practical but no later than 24 hours after seizure of the motor vehicleof the seizure in accordance with procedures established by the executiveagency designated under subsection (b1) of this section.

(b1)      Written Notificationof Impoundment. – Within 48 hours of receipt within regular business hours ofthe notice of seizure, an executive agency designated by the Governor shallissue written notification of impoundment to the Division, to any lienholder ofrecord and to any motor vehicle owner who was not operating the motor vehicleat the time of the offense. A notice of seizure received outside regularbusiness hours shall be considered to have been received at the start of thenext business day. The notification of impoundment shall be sent by first‑classmail to the most recent address contained in the Division's records. If themotor vehicle is registered in another state, notice shall be sent to theaddress shown on the records of the state where the motor vehicle isregistered. This written notification shall provide notice that the motorvehicle has been seized, state the reason for the seizure and the procedure forrequesting release of the motor vehicle. Additionally, if the motor vehicle wasdamaged while the defendant operator was committing an offense involvingimpaired driving or incident to the seizure, the agency shall issue writtennotification of the seizure to the owner's insurance company of record and toany other insurance companies that may be insuring other motor vehiclesinvolved in the accident. The Division shall prohibit title to a seized motorvehicle from being transferred by a motor vehicle owner unless authorized bycourt order.

(b2)      AdditionalNotification to Lienholders. – In addition to providing written notificationpursuant to subsection (b1) of this section, within eight hours of receiptwithin regular business hours of the notice of seizure, the executive agencydesignated under subsection (b1) of this section shall notify by facsimile anylienholder of record that has provided the executive agency with a designatedfacsimile number for notification of impoundment. The facsimile notification ofimpoundment shall state that the vehicle has been seized, state the reason forthe seizure, and notify the lienholder of the additional written notificationthat will be provided pursuant to subsection (b1) of this section. Theexecutive agency shall establish procedures to allow a lienholder to provideone designated facsimile number for notification of impoundment for any vehiclefor which the lienholder is a lienholder of record and shall maintain acentralized database of the provided facsimile numbers. The lienholder mustprovide a facsimile number at which the executive agency may give notificationof impoundment at anytime.

(c)        Review byMagistrate. – Upon determining that there is probable cause for seizing a motorvehicle, the seizing officer shall present to a magistrate within the countywhere the driver was charged an affidavit of impoundment setting forth thebasis upon which the motor vehicle has been or will be seized for forfeiture.The magistrate shall review the affidavit of impoundment and if the magistratedetermines the requirements of this section have been met, shall order themotor vehicle held. The magistrate may request additional information and mayhear from the defendant if the defendant is present. If the magistratedetermines the requirements of this section have not been met, the magistrateshall order the motor vehicle released to a motor vehicle owner upon payment oftowing and storage fees. If the motor vehicle has not yet been seized, and themagistrate determines that seizure is appropriate, the magistrate shall issuean order of seizure of the motor vehicle. The magistrate shall provide a copyof the order of seizure to the clerk of court. The clerk shall provide copiesof the order of seizure to the district attorney and the attorney for thecounty board of education.

(c1)      Effecting an Orderof Seizure. – An order of seizure shall be valid anywhere in the State. Anyofficer with territorial jurisdiction and who has subject matter jurisdictionfor violations of this Chapter may use such force as may be reasonable to seizethe motor vehicle and to enter upon the property of the defendant to accomplishthe seizure. An officer who has probable cause to believe the motor vehicle isconcealed or stored on private property of a person other than the defendantmay obtain a search warrant to enter upon that property for the purpose ofseizing the motor vehicle.

(d)        Custody of MotorVehicle. – Unless the motor vehicle is towed pursuant to a statewide orregional contract, or a contract with the county board of education, the seizedmotor vehicle shall be towed by a commercial towing company designated by thelaw enforcement agency that seized the motor vehicle. Seized motor vehicles nottowed pursuant to a statewide or regional contract or a contract with a countyboard of education shall be retrieved from the commercial towing company withina reasonable time, not to exceed 10 days, by the county board of education ortheir agent who must pay towing and storage fees to the commercial towingcompany when the motor vehicle is retrieved. If either a statewide or regionalcontractor, or the county board of education, chooses to contract for localtowing services, all towing companies on the towing list for each lawenforcement agency with jurisdiction within the county shall be given writtennotice and an opportunity to submit proposals prior to a contract for localtowing services being awarded. The seized motor vehicle is under theconstructive possession of the county board of education for the county inwhich the operator of the vehicle is charged at the time the vehicle isdelivered to a location designated by the county board of education ordelivered to its agent pending release or sale, or in the event a statewide orregional contract is in place, under the constructive possession of theDepartment of Public Instruction, on behalf of the State at the time thevehicle is delivered to a location designated by the Department of PublicInstruction or delivered to its agent pending release or sale. Absent astatewide or regional contract that provides otherwise, each county board ofeducation may elect to have seized motor vehicles stored on property owned orleased by the county board of education and charge a reasonable fee forstorage, not to exceed ten dollars ($10.00) per day. In the alternative, thecounty board of education may contract with a commercial towing and storagefacility or other private entity for the towing, storage, and disposal ofseized motor vehicles, and a storage fee of not more than ten dollars ($10.00)per day may be charged. Except for gross negligence or intentional misconduct,the county board of education, or any of its employees, shall not be liable tothe owner or lienholder for damage to or loss of the motor vehicle or itscontents, or to the owner of personal property in a seized vehicle, during thetime the motor vehicle is being towed or stored pursuant to this subsection.

(e)        Release of MotorVehicle Pending Trial. – A motor vehicle owner, other than the driver at thetime of the underlying offense resulting in the seizure, may apply to the clerkof superior court in the county where the charges are pending for pretrialrelease of the motor vehicle.

The clerk shall release themotor vehicle to a nondefendant motor vehicle owner conditioned upon payment ofall towing and storage charges incurred as a result of seizure and impoundmentof the motor vehicle under the following conditions:

(1)        The motor vehiclehas been seized for not less than 24 hours;

(2)        Repealed by SessionLaws 1998‑182, s. 3, effective December 1, 1998.

(3)        A bond in an amountequal to the fair market value of the motor vehicle as defined by G.S. 20‑28.2has been executed and is secured by a cash deposit in the full amount of thebond, by a recordable deed of trust to real property in the full amount of thebond, by a bail bond under G.S. 58‑71‑1(2), or by at least onesolvent surety, payable to the county school fund and conditioned on return ofthe motor vehicle, in substantially the same condition as it was at the time ofseizure and without any new or additional liens or encumbrances, on the day ofany hearing scheduled and noticed by the district attorney under G.S. 20‑28.2(c),unless the motor vehicle has been permanently released;

(4)        Execution of anacknowledgment as described in G.S. 20‑28.2(a1);

(5)        A check of therecords of the Division indicates that the requesting motor vehicle owner hasnot previously executed an acknowledgment naming the operator of the seizedmotor vehicle; and

(6)        A bond posted tosecure the release of this motor vehicle under this subsection has not beenpreviously ordered forfeited under G.S. 20‑28.5.

In the event a nondefendantmotor vehicle owner who obtains temporary possession of a seized motor vehiclepursuant to this subsection does not return the motor vehicle on the day of theforfeiture hearing as noticed by the district attorney under G.S. 20‑28.3(c)or otherwise violates a condition of pretrial release of the seized motorvehicle as set forth in this subsection, the bond posted shall be orderedforfeited and an order of seizure shall be issued by the court. Additionally, anondefendant motor vehicle owner or lienholder who willfully violates anycondition of pretrial release may be held in civil or criminal contempt.

(e1)      Pretrial Release ofMotor Vehicle to Innocent Owner. – A nondefendant motor vehicle owner may filea petition with the clerk of court seeking a pretrial determination that thepetitioner is an innocent owner. The clerk shall consider the petition and makea determination as soon as may be feasible. At any proceeding conductedpursuant to this subsection, the clerk is not required to determine the issueof forfeiture, only the issue of whether the petitioner is an innocent owner.If the clerk determines that the petitioner is an innocent owner, the clerkshall release the motor vehicle to the petitioner subject to the sameconditions as if the petitioner were an innocent owner under G.S. 20‑28.2(e).The clerk shall send a copy of the order authorizing or denying release of thevehicle to the district attorney and the attorney for the county board ofeducation. An order issued under this subsection finding that the petitionerfailed to establish that the petitioner is an innocent owner may bereconsidered by the court as part of the forfeiture hearing conducted pursuantto G.S. 20‑28.2(d).

(e2)      Pretrial Release ofMotor Vehicle to Defendant Owner. – A defendant motor vehicle owner may file apetition with the clerk of court seeking a pretrial determination that thedefendant's license was not revoked pursuant to an impaired driving licenserevocation as defined in G.S. 20‑28.2(a). The clerk shall schedule ahearing before a judge of the division in which the underlying criminal chargeis pending for a hearing to be held within 10 business days or as soonthereafter as may be feasible. Notice of the hearing shall be given to thedefendant, the district attorney, and the attorney for the county board ofeducation. The clerk shall forward a copy of the petition to the districtattorney for the district attorney's review. If, based on availableinformation, the district attorney determines that the defendant's motorvehicle is not subject to forfeiture, the district attorney may note theState's consent to the release of the motor vehicle on the petition and returnthe petition to the clerk of court who shall enter an order releasing the motorvehicle to the defendant upon payment of all towing and storage chargesincurred as a result of the seizure and impoundment of the motor vehicle,subject to the satisfactory proof of the identity of the defendant as a motorvehicle owner and the existence of financial responsibility to the extentrequired by Article 13 of this Chapter, and no hearing shall be held. The clerkshall send a copy of the order of release to the attorney for the county boardof education. At any pretrial hearing conducted pursuant to this subsection,the court is not required to determine the issue of the underlying offense ofimpaired driving only the existence of a prior drivers license revocation as animpaired driving license revocation. Accordingly, the State shall not berequired to prove the underlying offense of impaired driving. An order issuedunder this subsection finding that the defendant failed to establish that thedefendant's license was not revoked pursuant to an impaired driving licenserevocation as defined in G.S. 20‑28.2(a) may be reconsidered by the courtas part of the forfeiture hearing conducted pursuant to G.S. 20‑28.2(d).

(e3)      Pretrial Release ofMotor Vehicle to Lienholder. –

(1)        A lienholder mayfile a petition with the clerk of court requesting the court to order pretrialrelease of a seized motor vehicle. The lienholder shall serve a copy of thepetition on all interested parties which shall include the registered owner,the titled owner, the district attorney, and the county board of educationattorney. Upon 10 days' prior notice of the date, time, and location of thehearing sent by the lienholder to all interested parties, a judge, after ahearing, shall order a seized motor vehicle released to the lienholderconditioned upon payment of all towing and storage costs incurred as a resultof the seizure and impoundment of the motor vehicle if the judge determines, bythe greater weight of the evidence, that:

a.         Default on theobligation secured by the motor vehicle has occurred;

b.         As a consequence ofdefault, the lienholder is entitled to possession of the motor vehicle;

c.         The lienholderagrees to sell the motor vehicle in accordance with the terms of its agreementand pursuant to the provisions of Part 6 of Article 9 of Chapter 25 of the GeneralStatutes. Upon sale of the motor vehicle, the lienholder will pay to the clerkof court of the county in which the driver was charged all proceeds from thesale, less the amount of the lien in favor of the lienholder, and any towingand storage costs paid by the lienholder;

d.         The lienholderagrees not to sell, give, or otherwise transfer possession of the seized motorvehicle while the motor vehicle is subject to forfeiture, or the forfeitedmotor vehicle after the forfeiture hearing, to the defendant or the motorvehicle owner; and

e.         The seized motorvehicle while the motor vehicle is subject to forfeiture, or the forfeitedmotor vehicle after the forfeiture hearing, had not previously been released tothe lienholder as a result of a prior seizure involving the same defendant ormotor vehicle owner.

(2)        The clerk ofsuperior court may order a seized vehicle released to the lienholderconditioned upon payment of all towing and storage costs incurred as a resultof the seizure and impoundment of the motor vehicle at any time when allinterested parties have, in writing, waived any rights that they may have tonotice and a hearing, and the lienholder has agreed to the provision ofsubdivision (1)(d) above. A lienholder who refuses to sell, give, or transferpossession of a seized motor vehicle while the motor vehicle is subject toforfeiture, or a forfeited motor vehicle after the forfeiture hearing, to:

a.         The defendant;

b.         The motor vehicleowner who owned the motor vehicle immediately prior to seizure pending theforfeiture hearing, or to forfeiture after the forfeiture hearing; or

c.         Any person acting onthe behalf of the defendant or the motor vehicle owner,

shallnot be liable for damages arising out of such refusal. However, any subsequentviolation of the conditions of release by the lienholder shall be punishable bycivil or criminal contempt.

(f),        (g)  Repealed bySession Laws 1998‑182, s. 3, effective December 1, 1998.

(h)        Insurance Proceeds.– In the event a motor vehicle is damaged incident to the conduct of thedefendant which gave rise to the defendant's arrest and seizure of the motorvehicle pursuant to this section, the county board of education, or itsauthorized designee, is authorized to negotiate the county board of education'sinterest with the insurance company and to compromise and accept settlement ofany claim for damages. Property insurance proceeds accruing to the defendant,or other owner of the seized motor vehicle, shall be paid by the responsibleinsurance company directly to the clerk of superior court in the county wherethe motor vehicle driver was charged. If the motor vehicle is declared a totalloss by the insurance company liable for the damages to the motor vehicle, theclerk of superior court, upon application of the county board of education,shall enter an order that the motor vehicle be released to the insurancecompany upon payment into the court of all insurance proceeds for damage to themotor vehicle after payment of towing and storage costs and all valid liens. Theclerk of superior court shall provide the Division with a certified copy of theorder entered pursuant to this subsection, and the Division shall transfertitle to the insurance company or to such other person or entity as may bedesignated by the insurance company. Insurance proceeds paid to the clerk ofcourt pursuant to this subsection shall be subject to forfeiture pursuant toG.S. 20‑28.5 and shall be disbursed pursuant to further orders of thecourt. An affected motor vehicle owner or lienholder who objects to any agreedupon settlement under this subsection may file an independent claim with theinsurance company for any additional monies believed owed. Notwithstanding anyother provisions in this Chapter, nothing in this section or G.S. 20‑28.2shall require an insurance company to make payments in excess of those requiredpursuant to its policy of insurance on the seized motor vehicle.

(i)         Expedited Sale ofSeized Motor Vehicles in Certain Cases. – In order to avoid additionalliability for towing and storage costs pending resolution of the criminalproceedings of the defendant, the county board of education may, afterexpiration of 90 days from the date of seizure, sell any motor vehicle having afair market value of one thousand five hundred dollars ($1,500) or less. Thecounty board of education may also sell a motor vehicle, regardless of the fairmarket value, any time the outstanding towing and storage costs exceed eighty‑fivepercent (85%) of the fair market value of the vehicle, or with the consent ofall the motor vehicle owners. Any sale conducted pursuant to this subsectionshall 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 andstorage costs or reimbursement of towing and storage costs paid by a personother 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 theproceeds 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 topay the sale, towing, and storage costs, second to pay outstanding liens on themotor vehicle, and the balance to be paid to the motor vehicle owners.

(j)         Retrieval ofCertain Personal Property. – At reasonable times, the entity charged withstoring the motor vehicle may permit owners of personal property not affixed tothe motor vehicle to retrieve those items from the motor vehicle, providedsatisfactory proof of ownership of the motor vehicle or the items of personalproperty is presented to the storing entity.

(k)        County Board ofEducation Right to Appear and Participate in Proceedings. – The attorney forthe county board of education shall be given notice of all proceedingsregarding offenses involving impaired driving related to a motor vehiclesubject to forfeiture. However, the notice requirement under this subsection doesnot apply to proceedings conducted under G.S. 20‑28.3(e1). The attorneyfor the county board of education shall also have the right to appear and to beheard on all issues relating to the seizure, possession, release, forfeiture,sale, and other matters related to the seized vehicle under this section. Withthe prior consent of the county board of education, the district attorney maydelegate to the attorney for the county board of education any or all of theduties of the district attorney under this section. Clerks of superior court,law enforcement agencies, and all other agencies with information relevant tothe seizure, impoundment, release, or forfeiture of motor vehicles areauthorized and directed to provide county boards of education with access tothat information and to do so by electronic means when existing technologymakes this type of transmission possible.

(l)         Payment of FeesUpon Conviction. – If the driver of a motor vehicle seized pursuant to thissection is convicted of an offense involving impaired driving, the defendantshall be ordered to pay as restitution to the county board of education, themotor 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 coveredby the proceeds from the forfeiture and sale of the motor vehicle. In addition,a civil judgment for the costs under this section in favor of the party to whomthe restitution is owed shall be docketed by the clerk of superior court. If thedefendant is sentenced to an active term of imprisonment, the civil judgmentshall become effective and be docketed when the defendant's conviction becomesfinal. If the defendant is placed on probation, the civil judgment in theamount found by a judge during the probation revocation or termination hearingto be due shall become effective and be docketed by the clerk when thedefendant's probation is revoked or terminated.

(m)       Trial Priority. – Districtcourt trials of impaired driving offenses involving forfeitures of motorvehicles pursuant to G.S. 20‑28.2 shall be scheduled on the arrestingofficer's next court date or within 30 days of the offense, whichever comesfirst.

Once scheduled, the case shallnot be continued unless all of the following conditions are met:

(1)        A written motion forcontinuance is filed with notice given to the opposing party prior to themotion being heard.

(2)        The judge makes afinding of a "compelling reason" for the continuance.

(3)        The motion andfinding are attached to the court case record.

Upon a determination of guilt,the issue of vehicle forfeiture shall be heard by the judge immediately, or assoon thereafter as feasible, and the judge shall issue the appropriate orderspursuant to G.S. 20‑28.2(d).

Should a defendant appeal theconviction to superior court, any party who has not previously been heard on apetition for pretrial release under subsection (e1) or (e3) of this section orany party whose motor vehicle has not been the subject of a forfeiture hearingheld pursuant to G.S. 20‑28.2(d) may be heard on a petition for pretrialrelease pursuant to subsection (e1) or (e3) of this section. The provisions ofsubsection (e) of this section shall also apply to seized motor vehiclespending trial in superior court. Where a motor vehicle was released pursuant tosubsection (e) of this section pending trial in district court, the release ofthe motor vehicle continues, and the terms and conditions of the original bondremain the same as those required for the initial release of the motor vehicleunder subsection (e) of this section, pending the resolution of the underlyingoffense involving impaired driving in superior court.

(n)        Any order issuedpursuant to this section authorizing the release of a seized vehicle shallrequire the payment of all towing and storage charges incurred as a result ofthe seizure and impoundment of the motor vehicle. This requirement shall not bewaived. (1997‑379,s. 1.2; 1997‑456, s. 31; 1998‑182, s. 3; 1998‑217, s. 62(a)‑(c);2000‑169, s. 29; 2001‑362, ss. 1, 2, 3, 4, 5, 6; 2001‑487, s.9; 2006‑253, s. 32.)