Under North Carolina law, if you are charged with DWI and at the time of the violation (1) have a revoked license as a result of a prior DWI or (2) do not have a valid license and are not covered by auto liability insurance, then the vehicle you are driving can be seized. G.S. 20-28.3(a) states that
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(1) At the time of the violation, the drivers license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation as defined in G.S. 20-28.2(a); or
(2) At the time of the violation:
a. The person was driving without a valid drivers license, and
b. The driver was not covered by an automobile liability policy.
For the purposes of this subsection, 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 have had a valid drivers license at the time of the violation.
Subsection (b) of the statute states that a judge determines if the seized vehicle should be forfeited at (1) a sentencing hearing, (2) a separate hearing after conviction, or (3) a forfeiture hearing to be held at least 60 days after the defendant’s failure to appear at trial.
The court of appeals noted in the 1999 case, State v. Chisholm that the purpose of the statute is “keeping impaired drivers and their cars off of the roads” and that this purpose is a legitimate objective. The court then went on to declare the statute constitutional because "[t]he means chosen to further the goals of the statutes—seizing the cars to remove them from the roads—is directly related to the goal of the statutes.”
Does this statute mean that anyone who has the misfortune of having their car borrowed by an impaired driver can suffer the seizure and forfeiture of their car? No, the statute goes on to provide for the release of the vehicle to both a nondefendant owner as well as to an innocent owner.
Under subsection (e), a nondefendant owner may apply to the clerk before trial for the release of his vehicle. The vehicle is then released
to a nondefendant motor vehicle owner conditioned upon payment of all towing and storage charges incurred as a result of seizure and impoundment of the motor vehicle under the following conditions:
(1) The motor vehicle has been seized for not less than 24 hours;
(2) Repealed by Session Laws 1998-182, s. 3, effective December 1, 1998.
(3) A bond in an amount equal to the fair market value of the motor vehicle as defined by G.S. 20-28.2 has been executed and is secured by a cash deposit in the full amount of the bond, by a recordable deed of trust to real property in the full amount of the bond, by a bail bond under G.S. 58-71-1(2), or by at least one solvent surety, payable to the county school fund and conditioned on return of the motor vehicle, in substantially the same condition as it was at the time of seizure and without any new or additional liens or encumbrances, on the day of any 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 either:
a. An impaired driving acknowledgment as described in G.S. 20-28.2(a1)(1a) if the seizure was for an offense involving impaired driving; or
b. A speeding to elude arrest acknowledgment as defined in G.S. 20-28.2(a1)(8) if the seizure was for violation of G.S. 20-141.5(b) or (b1).
(5) A check of the records of the Division indicates that the requesting motor vehicle owner has not previously executed an acknowledgment naming the operator of the seized motor vehicle; and
(6) A bond posted to secure the release of this motor vehicle under this subsection has not been previously ordered forfeited under G.S. 20-28.5.
In the event a nondefendant motor vehicle owner who obtains temporary possession of a seized motor vehicle pursuant to this subsection does not return the motor vehicle on the day of the forfeiture hearing as noticed by the district attorney under G.S. 20-28.2(c) or otherwise violates a condition of pretrial release of the seized motor vehicle as set forth in this subsection, the bond posted shall be ordered forfeited and an order of seizure shall be issued by the court. Additionally, a nondefendant motor vehicle owner or lienholder who willfully violates any condition of pretrial release may be held in civil or criminal contempt.
The statute includes a separate provision for the release of a seized vehicle to an innocent owner in subsection (e1). An innocent owner can file a petition seeking a pretrial determination by the clerk that the owner is an innocent owner. An innocent owner is defined in G.S. 20-28.2(a1)(2) as
A motor vehicle owner:
a. Who, if the offense resulting in seizure was an impaired driving offense, did not know and had no reason to know that (i) the defendant's drivers license was revoked, or (ii) that the defendant did not have a valid drivers license, and that the defendant had no liability insurance; or
b. Who, if the offense resulting in seizure was an impaired driving offense, knew that (i) the defendant's drivers license was revoked, or (ii) that the defendant had no valid drivers license, and that the defendant had no liability insurance, but the defendant drove the vehicle without the person's expressed or implied permission, and the owner files a police report for unauthorized use of the motor vehicle and agrees to prosecute the unauthorized operator of the motor vehicle, or who, if the offense resulting in seizure was a felony speeding to elude arrest offense, did not give the defendant express or implied permission to drive the vehicle, and the owner files a police report for unauthorized use of the motor vehicle and agrees to prosecute the unauthorized operator of the motor vehicle; or
c. Whose vehicle was reported stolen; or
d. Repealed by Session Laws 1999-406, s. 17.
e. Who is (i) a rental car company as defined in G.S. 66-201(a) and the vehicle was driven by a person who is not listed as an authorized driver on the rental agreement as defined in G.S. 66-201; or (ii) a rental car company as defined in G.S. 66-201(a) and the vehicle was driven by a person who is listed as an authorized driver on the rental agreement as defined in G.S. 66-201 and if the offense resulting in seizure was an impaired driving offense, the rental car company has no actual knowledge of the revocation of the renter's drivers' license at the time the rental agreement is entered, or if the offense resulting in seizure was a felony speeding to elude arrest offense, the rental agreement expressly prohibits use of the vehicle while committing a felony; or
f. Who is in the business of leasing motor vehicles, who holds legal title to the motor vehicle as a lessor at the time of seizure and, if the offense resulting in seizure was an impaired driving offense, who has no actual knowledge of the revocation of the lessee's drivers license at the time the lease is entered.
If the clerk determines that the owner is an innocent owner, then the vehicle is released subject to certain conditions, including the payment of towing and storage fees, but not including the posting of a bond.
If your vehicle has been seized in connection with a DWI charge, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450.