Drunk Driving Defense

NC Drunk Driving Vehicle Seizure: North Carolina DWI and DUI

If a person is charged with certain (DUI) Driving Under the Influence or (DWI) Driving While Impaired offenses, he or she can actually have their vehicle seized and permanently taken away. It does not matter how expensive or how cheap the vehicle is. Therefore, a street beggar who drives a $50 Yugo may lose his car just like a corporate executive can lose her $1.5 million Ferrari Enzo.

First, for one's vehicle to be seized, he or she must be driving on a revoked driver's license. Not only does his or her license have to be revoked, it must be revoked for one of the following reasons:

LIST A

• Prior conviction of Driving While Impaired while under the age of 21
• Prior conviction of Driving After Consuming alcohol or drugs while under the age of 21
• Having one's license revoked because of willful refusal of a chemical analyst's test while under the age of 21
• Driving while impaired while on a military base e.g. (Company Commander finds Sergeant. driving while impaired on Fort Bragg.)
• License revocation due to will refusal to submit to a chemical analyst's request (over 21)
• Failure of breath or blood test of chemical analysis during the initial 30 day civil revocation (pre-trial revocation)
• Conviction of impaired driving or impaired operation of a commercial vehicle
• Conviction of a second offense of having an open container of alcohol in the passenger compartment
• Convictions of habitual driving while impaired
• Convictions of felony death by vehicle
• Convictions of vehicular manslaughter
• Convictions of impaired driving or Driving Under the Influence (DUI) or its equivalent in another state
• Conviction of assault with a motor vehicle with impaired driving involved

This list is not exhaustive of all the conditions that make one eligible for vehicle seizure if he or she is charged with a new implied consent offense.

If a person's license is revoked for one of the reasons in List A and then gets charged with one of the offenses in List B, the defendant's motor vehicle will be subject to seizure. List B includes most impaired driving offenses.

LIST B

• Standard Driving While Impaired Offenses covered under N.C.G.S. 20-138.1
• Habitual Driving While Impaired Offenses covered under N.C.G.S. 20-138.5
• Impaired Operation of a Commercial Motor Vehicle under N.C.G.S. 20-138.2
• Felony Death by Motor Vehicle under N.C.G.S. 20-141.4

Please note that Level 1 DWI offenses are going to frequently involve motor vehicle seizure. The most popular reason one may have two or more grossly aggravating factors on a DWI would be that he or she was driving on a license that was already revoked for a prior DWI conviction. Furthermore, the conviction occurred within 7 years. In this common scenario, the defendant's vehicle would be subject to motor vehicle seizure.

Interestingly enough, one can be subject to motor vehicle seizure without committing the offense of Driving While License Revoked. While the Class 1 misdemeanor of Driving While License Revoked requires that one operate a motor vehicle on a state highway or road, Driving While Impaired charges can occur on public vehicular areas (PVAs). Thus, one can commit an offense that will subject him or her to motor vehicle seizure, but not technically be guilty of Driving While License Revoked.

There are two exceptions to the rules for motor vehicle seizure when one is charged with an offense in List B and has a prior conviction from List A. The first one would be when the vehicle was reported stolen prior to the officer seizing the vehicle. For example, Joe steals Margaret's Corvette. She reports the vehicle stolen to the police. The very next night Joe gets pulled over for DWI. Joe's license was already revoked for a prior DWI conviction two years ago. In this case, the arresting officer cannot seize the Corvette.

The other exception pertains to rental cars. If the officer determines before seizure that the car being driven by the defendant is a rental car, and that the defendant is not one of the authorized drivers of the vehicle, seizure is prohibited.

Once a vehicle is seized, it is usually not released until disposition of the pending case involving the new impaired driving charge.

Non-driving vehicles owners can frequently get their motor vehicles released back to them before the underlying criminal offense is disposed of. One of the ways that a non-driving owner of a motor vehicle can obtain a temporary release of the vehicle would be to pay all the storage/towing fees, post a bond equivalent to the fair market value of the vehicle, and execute a document that the defendant was indeed charged with a motor vehicle offense that could lead to forfeiture, and that a lack of knowledge or consent of the operation of the vehicle could still lead to forfeiture unless the owner took all reasonable precautions to prevent driving by the defendant in the criminal matter. This release form is only available in certain instances. If the owner previously had executed such a document as a result of a seizure by the same defendant, the vehicle cannot be released. In addition, if the owner had previously paid a bond and forfeited it before, the remedy is not available, and the vehicle may not be released.

For a non-driving owner of a motor vehicle to permanently recover his or her vehicle before adjudication of the defendant's offense, the non-driving owner in general, must be deemed as an innocent owner. There are a number of ways one can be found to be an innocent owner. These include:

• Not knowing or having any reason to know that the driver had a revoked license
• Although the owner knew the driver had a revoked license, he or she did not give the driver permission to operate the vehicle, and the owner filed a police report for unauthorized use of a motor vehicle and agreed to prosecute the operator for that offense.
• If the owner reported that the vehicle was stolen
• Rents the vehicle, and the driver is not an authorized person to drive the vehicle
• Leases the vehicle, owns and holds title to the motor vehicle, and had no knowledge or reason to know that the driver had a revoked driver’s license

To be declared an innocent owner and to get one's vehicle back, the owner must file a petition with the court. The clerk of court must then schedule a hearing within ten days of the filing of the petition or as soon as possible. The district attorney's office, school board, and defendant must be notified. If at the hearing, the owner of the vehicle wins and is determined to be innocent, and then the petitioner is entitled to the return of the vehicle if he or she pays all storage and towing fees.

NCGS §20-28.3 provides for the seizure of vehicles driven by a person who is charged with an offense involving impaired driving if, 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 revocation or at the time of the violation the person was driving without a valid license and did not have insurance. It is a requirement that the State of North Carolina notifies the lien holder of record with 48 hours that a vehicle subject to their lien was seized pursuant to this section. It is possible for an individual who owns the vehicle to get it back, if they were not driving and they were not involved in the impaired driving offense. Additionally, NCGS §20-28.3(m) requires that individuals charged with Driving While Impaired (DWI) that result in vehicle seizure be afforded a trial on the arresting officer's next court date or within 30 days of the offense, which ever comes first.

The attorneys at Everett Law Firm, P.A. are experienced and can help you navigate this and other complicated circumstances involving Driving While Impaired charges. Including using NCGS §20-28.3(m) to your advantage and helping you get your car back.

For a free North Carolina legal consultation please give us a call at 919.942.8002