In every case where a person is charged with felony speeding to elude arrest pursuant to G.S. 20-141.5(b) or (b1), the motor vehicle driven is subject to seizure and forfeiture. This is also true in DWI cases where, at the date of offense, the defendant’s driver’s license was revoked for an impaired driving revocation or the defendant did not have a valid license nor insurance. When in district court, these cases have expedited calendaring requirements (discussed here). This is in part to preserve the vehicle’s value while the case is pending. Upon seizure, the vehicle is usually first towed to a local storage facility, then transferred to the facilities of a state contractor within a few days. There are fees for towing, as well as accruing fees for storage. Whether the motor vehicle is released to its owner, a lienholder, or forfeited to the county board of education, these towing and storage fees must be paid. Often, these fees are paid out of the proceeds of the sale of the vehicle. While expediting the underlying case towards resolution is one way to minimize these fees, another is release of the vehicle before case disposition. This post addresses the circumstances under which a vehicle may be fully released pretrial and does not have to be brought back for a later forfeiture hearing.
The ticking clock. The more time a seized vehicle spends in storage, the more must be paid to the state contractor holding the vehicle. If, at the end of the case, the vehicle is ordered returned to the owner, the owner must find the money to pay the towing and storage fees, or risk forfeiting the vehicle to the storage lot to be sold. In that case the owner would only be entitled to the sale proceeds that remain after all towing and storage fees are paid (G.S. 20-28.4). Similarly, if the vehicle is ordered forfeited to the county board of education, the only proceeds the school fund may receive are what remains after towing, storage, and other administrative costs are paid (G.S. 20-28.2(h)).
A fast-approaching deadline. A more urgent pressure on seized vehicles is the possibility of an expedited sale pursuant to G.S. 20-28.3(i). There are three circumstances that permit the State Surplus Agency or county board of education to sell a seized vehicle before case disposition, and without having a forfeiture hearing. One is with the consent of the motor vehicle owner(s). Another permits the sale if the vehicle’s fair market value is $1,500 or less once 90 days have passed from the date of seizure. Finally, the vehicle may be sold once the outstanding towing and storage fees exceed 85% of the vehicle’s fair market value, regardless of what that value is. Because these circumstances occur while the case is pending and before a forfeiture hearing, they may result in the sale of a vehicle that would have otherwise been returned to its owner. If so, the motor vehicle owner (or, if later ordered forfeited, the county board of education) would again only be entitled to the sale proceeds less the towing and storage fees and administrative costs.
Vehicle release hearings. In many cases, the court determines whether the vehicle (or in the case of an expedited sale, the proceeds) will be forfeited to the county board of education in a forfeiture hearing (G.S. 20-28.2(d)). This hearing, held in either district or superior court depending on the underlying offense, may only occur at the sentencing hearing on the underlying offense resulting in seizure, at a separate hearing after conviction, or at a separate hearing at least 60 days after the defendant failed to appear at the scheduled trial for the underlying offense, and the defendant’s order for arrest for failing to appear has not otherwise been set aside. (If the case is dismissed or the defendant is acquitted, the vehicle or sale proceeds are released to the owner pursuant to G.S. 20-28.4). Due to the amount of time it can take for a DWI or felony speeding to elude case to resolve, an owner or lienholder waiting to address release until the forfeiture hearing risks an expedited sale while a vehicle is being stored. Pretrial vehicle release hearings, on the other hand, are either held before the clerk or a judge, are initiated by the person seeking release of the vehicle, and may occur before the underlying offense proceeds to trial or disposition. These hearings may result in either the full release of the vehicle or release conditioned on the payment of a bond, in which the vehicle will have to be brought back to court at a later date.
Pressing stop. There are three circumstances where a seized motor vehicle may be fully released without the owner or lienholder having to wait for a forfeiture hearing, thereby reducing the amount of time the vehicle is in storage and reducing the likelihood of an expedited sale. In these circumstances, the vehicle is released without requiring that a bond be posted or that the vehicle be brought back or otherwise be subject to forfeiture (G.S. 20-28.2(d)).
Innocent owners. The first circumstance is if the owner of the vehicle is not the person charged with the underlying offense, and can demonstrate they are an “innocent owner” as defined in G.S. 20-28.2(a1)(2) (“Motor vehicle owner” is defined as a person in whose name a registration card or certificate of title is issued at the time of the seizure). An innocent owner must file AOC-CR-330A with the clerk of superior court to ask that the vehicle be released pretrial. Pursuant to G.S. 20-28.2(a1)(2), a motor vehicle owner is considered an “innocent owner” if:
- In the case of an impaired driving seizure, the owner did not know and had no reason to know that the defendant’s drivers license was revoked, or that the defendant did not have a driver’s license and did not have insurance;
- In the case of a felony speeding to elude seizure, or an impaired driving seizure where the owner knew the defendant’s driver’s license was revoked or knew that the defendant did not have a driver’s license and did not have insurance, the defendant drove the vehicle without the owner’s express or implied consent, and the owner files a police report and agrees to prosecute the defendant for unauthorized use of a motor vehicle;
- The vehicle was reported stolen;
- The owner is a rental car company, and the defendant is not listed as an authorized driver on the rental agreement, or the defendant is listed as an authorized driver but the company had no actual knowledge the defendant’s license was revoked (in the case of an impaired driving seizure) or the rental agreement expressly prohibits the use of the vehicle while committing a felony (in the case of a felony speeding to elude seizure); or
- In the case of an impaired driving seizure, the owner is in the business of leasing vehicles, holds legal title to the vehicle as lessor at the time of seizure, and had no actual knowledge that the lessee’s drivers license was revoked.
For an innocent owner to recover the seized vehicle, they must execute an “impaired driving acknowledgement” or “speeding to elude arrest acknowledgement,” as the case may be (G.S. 20-28.2(e)(4)). If, at a later time, the same defendant is driving the vehicle and it is seized again, this acknowledgement requires the otherwise-innocent owner to show, by the greater weight of the evidence, that they (i) took all reasonable precautions to prevent the use of the motor vehicle by this particular person and (ii) immediately reported any unauthorized use to law enforcement upon discovery.
Improper seizure. The second way a vehicle can be fully released pretrial without a forfeiture hearing applies in impaired driving seizure cases where the basis of the seizure is that the defendant’s driver’s license was revoked for an impaired driving revocation at the time of the offense. This is initiated by filing AOC-CR-333A with the clerk of superior court. In these cases, the owner of the vehicle (who is also the person charged with the underlying offense) must establish in a hearing before the clerk that their driver’s license was, in fact, not revoked for an impaired driving revocation. If they do so, the clerk must release the vehicle to the defendant-owner (G.S. 20-28.3(e2)(1)).
Lienholders. The final way a vehicle can be fully released pretrial without a forfeiture hearing is to a lienholder of the vehicle (G.S. 20-28.3(e3)). A lienholder can initiate this process by filing AOC-CR-334A. If the registered and titled owner(s), district attorney, and county board of education attorney waive their rights to notice and a hearing, and if the lienholder agrees not to sell the vehicle to the defendant or vehicle owner, the clerk may release the vehicle to the lienholder. If the interested parties do not waive their rights, the lienholder must seek release before a judge. At this hearing, the lienholder must show that (i) there has been a default on the obligation secured by the vehicle, (ii) as a result of that default the lienholder is entitled to possession of the vehicle, and (iii) the vehicle had not previously been released to the lienholder as a result of a prior seizure involving the same defendant or vehicle owner. The lienholder must agree to sell the motor vehicle and provide the clerk of court with the proceeds (minus the amount of the lien and towing and storage fees) and like in cases where the interested parties agree to the release, may not sell the vehicle to the defendant or the motor vehicle owner.
Release denied. If the vehicle owner’s petition for pretrial release is denied by the clerk, either because they did not show they were an innocent owner, or they did not show that the vehicle was improperly seized, their claim may be reconsidered by the judge when the underlying offense has reached the forfeiture hearing (G.S. 20-28.3(e1) and (e2)(1)). However, if a lienholder’s request for pretrial release of the vehicle has been denied, the statute does not address whether they may be heard again. By specifically permitting vehicle owners denied relief in G.S. 20-28.3(e1) and (e2) to be heard again at the forfeiture hearing, without including similar language for lienholders, it appears the statute does not allow lienholders to be re-heard at the forfeiture hearing. One possible justification for this is that vehicle owners must first be heard by the clerk, while lienholders must be heard by a judge. This is notwithstanding the fact that G.S. 20-28.2(f), setting forth the same requirements for vehicle release to lienholders at the forfeiture hearing, does not expressly require the lienholder to be making this request for the first time.
Conditional Release. Aside from full release before the forfeiture hearing, another way to reduce towing and storage fees is to seek conditional release of the vehicle pending trial. Conditional pretrial release requires posting a bond for the vehicle, among other conditions, directs the owner to return the vehicle on the day of the forfeiture hearing, and will be the subject of a future post.
