Chapter 4.23
Motor Vehicle Impoundment and Forfeiture
Sections:
4.23.010 Purpose: Public Nuisance.
4.23.020 Presumptions: Vehicle Seizure.
4.23.030 Hearings and Costs.
4.23.040 Notice to Lien Holders and Parties of Record; Service by Publication; Failure to Appear.
4.23.050 Avoidance of Impoundment or Forfeiture by Owners and Lien Holders; Defenses.
4.23.060 Presumptions; Knowledge of Violation.
4.23.070 Hearing Notification.
4.23.080 Seizure; Evidence; Burden of Proof.
4.23.090 Resolution Agreement between City and Owner/Lien Holder.
4.23.100 Release of Motor Vehicle.
4.23.110 Bail Release of Motor Vehicle; Vehicle Bond; Amount of Bond; Costs.
4.23.120 Impoundment; Seizure Incident to Arrest; Impoundment Period; Abandoned Vehicle Disposal; Personal Property in Vehicles.
4.23.130 Forfeiture Process.
4.23.140 Custody of Vehicle; North Pole Police Department; Private Corporations; Inventory.
4.23.150 Disposition of Forfeited Property; Return to Claimant.
4.23.160 Multiple Ownership on Certificate of Title.
4.23.500 Insurance or Other Security Required.
4.23.900 Definitions.
4.23.010 Purpose: Public Nuisance.
A motor vehicle that is operated, driven or in actual physical control of an individual arrested for or charged with a violation of AS 28.35.030, pertaining to driving while intoxicated or; a violation of AS 28.35.032, pertaining to refusal to submit to chemical tests; or a violation of AS 28.15.291, pertaining to driving while license canceled, suspended, revoked, or limited; or a violation of section 4.23.500 of this chapter pertaining to insurance or other security requirements, may be impounded and may be forfeited to the city in accordance with this article. The purpose of this article is to protect the public by removing public nuisances and deterring driving while intoxicated. A vehicle operated in violation of the aforestated statutes is declared to be a public nuisance for which the registered owners shall be legally responsible subject only to defenses set forth by law.
4.23.020 Presumptions: Vehicle Seizure.
A. It shall be presumed that a vehicle operated by or driven by or in the actual physical control of an individual arrested for or charged with a violation of AS 28.35.030, or AS 28.35.032, or AS 28.15.291, or section 4.23.500 of this chapter has been so operated by the registered owner or has been so operated by another person with the knowledge and consent of the registered owner.
B. A vehicle used in the alleged violation of AS 28.35.030, or AS 28.35.032, or AS 28.15.291, or section 4.23.500 of this chapter shall be impounded for 30 days if the person driving, operating or in the actual physical control of the vehicle has not been previously convicted, and shall be forfeited to the city if the person has been previously convicted.
C. Impoundment may occur through a seizure of the vehicle incident to an arrest at the discretion of the arresting officer or a court order.
4.23.030 Hearings and Costs.
A. Civil impoundment or forfeiture cases may be heard and decided by either the district court or an administrative hearing officer, which throughout this article may be referred to as "the court" or "a court." Hearings before an administrative hearing officer shall take place no less than seven days and no more than 30 days after the registered owner or lien holder requests a hearing. At the request of the city or a claimant, a civil proceeding under this section shall be postponed until the conclusion of any pending criminal charges arising out of the incident giving rise to the proceeding under AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter.
B. The court shall award the prevailing party in an impoundment or forfeiture case its reasonable attorney’s fees and costs. Costs shall include but are not limited to filing costs, advertising costs, police officer time required for testimony, prosecution costs, and other costs incurred in processing the case.
4.23.040 Notice to Lien Holders and Parties of Record; Service by Publication; Failure to Appear.
A. A lien holder and any party having an interest in the vehicle as shown by the vehicle ownership records by the division of motor vehicles or any agency in any state where the vehicle is registered shall be served with notice of the civil action by certified mail sent to the address of record as shown in the ownership records. In a forfeiture action, the city may serve a party of record personally or by publication if mail service is unsuccessful.
B. Service by publication in a forfeiture proceeding shall describe the vehicle, the date and place of impoundment and a contact person, and shall be published once per week for two consecutive weeks in a newspaper of general circulation.
C. Any party who fails to appear within 30 days of service of notice of an impoundment or forfeiture waives the right to object to impoundment or forfeiture. Any party who requests a hearing in a civil action shall be deemed served. For actions filed in district court, district court civil rules shall apply. Requests for release of a vehicle made by a person or entity not charged with a violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter must be brought in the forum of the civil action.
4.23.050 Avoidance of Impoundment or Forfeiture by Owners and Lien Holders; Defenses.
A. An owner or lien holder of record may avoid impoundment or forfeiture of that person’s interest if the claimant can establish by a preponderance of the evidence that:
(1) The claimant had an interest in the motor vehicle at the time of the alleged violation or which was acquired in good faith after the violation and not to avoid impoundment or forfeiture;
(2) A person other than the claimant was in possession of the vehicle and was responsible for the act which resulted in impoundment or forfeiture; and
(3) Before permitting the operator to gain custody or control of the vehicle, the claimant did not know or have reasonable cause to believe that vehicle would be operated in violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter.
(b) A regulated lien holder may meet the requirements of this section by filing with the court a copy of the vehicle’s certificate of title or other security instrument reflecting the lien, with an affidavit stating the amount of the lien and that the lien holder is a regulated lien holder and that the lien holder was not in possession of the vehicle at the time of the act which resulted in the seizure of the vehicle.
(c) A regulated lien holder shall have no duty to inquire into the driving record of any loan applicant or any member of the loan applicant’s family or household, and failure to do so shall not be usable as evidence against the regulated lien holder in any forfeiture proceeding or other civil action.
(d) A regulated lien holder’s interest in a vehicle shall not be subject to forfeiture in any case where:
(1) The individual who allegedly used the vehicle in violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter is not the person whose dealings with the lien holder gave rise to the lien; or
(2) The vehicle which the individual was driving, operating or was in actual physical control of at the time of the violation was not the vehicle involved in a prior conviction.
(e) An acquittal in a criminal proceeding under AS 28.35.030, AS 28.35.032, AS 28.15.291 or Section 4.23.500 of this chapter shall constitute a defense against impoundment or forfeiture of a vehicle if the civil proceeding is based on the same conduct that forms the basis for the criminal charge but pleading to a reduced charge shall not constitute a defense.
4.23.060 Presumptions; Knowledge of Violation.
A. When a person other than the claimant was in possession of the vehicle and was driving with a suspended, revoked or canceled license, or without a valid driver’s license, or in violation of a limited license, it shall be presumed that the claimant had reasonable cause to believe that the vehicle would be used in violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter. This subsection shall not apply to regulated lien holders.
B. When the claimant and driver are not the same person and have a familial relationship, such as husband/wife, father/daughter, mother/stepson, etc., it shall be presumed that the claimant is responsible and that the vehicle was operated by the driver with the knowledge and consent of the claimant.
4.23.070 Hearing Notification.
Upon notification from the court of the time and place for a hearing in a civil action, the city shall provide to every person, unless notified by the court, who has an ascertainable ownership or security interest, written notice that includes:
A. A description of the motor vehicle;
B. The time and place of the forfeiture or impound hearing;
C. The legal authority under which the vehicle may be impounded or forfeited; and
D. Notice of the right to intervene to protect the interest in the motor vehicle.
4.23.080 Seizure; Evidence; Burden of Proof.
A. A seizure is legally unjustified only if there was:
(1) No reasonable suspicion for the stop of the vehicle leading to an arrest for driving while intoxicated based on the operation, driving or actual physical control of the vehicle; or
(2) No probable cause for the arrest of an individual for driving while intoxicated based on the individual’s operation, driving or actual physical control of the vehicle.
B. For purposes of proceedings in an administrative forum, the police report, which may include the narrative; accompanying documents; computer printouts from data bases operated by police agencies and/or government agencies regulating motor vehicles showing the ownership of the vehicle, the driver’s license status, and the record of criminal convictions of the driver; and/or tape recordings is admissible evidence so long as it is signed with either the name, initials, badge number, or other identifying mark of an employee of the city in a statement made under oath.
C. The burden of proof for an action under this article is preponderance of the evidence.
4.23.090 Resolution Agreement between City and Owner/Lien Holder.
The city may enter into an agreement with the registered owner or lien holder of the vehicle to resolve a civil impound or forfeiture action and permit release of the vehicle. Any such agreement shall include:
A. Acceptance by the owner or lien holder of responsibility for meeting the requirements of this section;
B. Agreement that the owner or lien holder will take reasonable steps to prevent the person arrested for or charged with a violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter from operating the vehicle until properly licensed; and
C. Agreement by the owner or lien holder that failure to fulfill the obligations under the agreement may result in forfeiture of the vehicle at the option of the city unless the lien holder is regulated and is required by law or the terms of the security agreement to relinquish possession of the vehicle upon payment of the lien or cure of any default.
4.23.100 Release of Motor Vehicle.
A person seeking to redeem a vehicle must obtain an order authorizing release of the vehicle unless the release is made under an agreement with the city. A release shall not be granted unless the person can:
A. Provide proof of ownership or, if a lien holder, a legal right to repossess the vehicle; and
B. Pay or provide proof of payment of any costs imposed, including the impound fees, storage fees and any court costs imposed. The impound fee shall be the actual cost of impound plus an administrative charge to offset the city’s processing costs. If the city agrees or the court finds that seizure of a vehicle was legally unjustified, the vehicle shall be released at no cost if the person seeking to reclaim the vehicle does so within five days after the court’s finding. A vehicle not claimed within five days after the court’s decision is subject to the provisions of AS 28.10.502, relating to towing and storage liens.
4.23.110 Bail Release of Motor Vehicle; Vehicle Bond; Amount of Bond; Costs.
A. A person not charged with a violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter may petition the court for a bail release of a motor vehicle before a civil action is filed.
B. A vehicle return bond shall be set for each vehicle alleged in the complaint to have been used in an alleged violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter. The bond may be posted in cash only. The purpose of this bond is to secure the presence of the vehicle and to provide security to be forfeited if the vehicle is sold, transferred or encumbered after the vehicle has been released pending hearing. If a vehicle is not returned on a return bond, the city may forfeit the bond funds and seize the vehicle to implement the impoundment or forfeiture ordered by the court. The court may not modify the bond requirement or release a posted bond for a vehicle which has been impounded for a period less than the vehicle would have been impounded for if the person was convicted.
C. If a person charged with a violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter has no previous convictions for those statutes, the minimum vehicle return bond shall be $400.00. Where the person charged has been previously convicted of any of the offenses above, the minimum vehicle bond shall be determined by the manufactured date of the vehicle as follows:
|
20 years or older |
$ 400.00 |
|
15--19 years |
$1,000.00 |
|
10--14 years |
$1,500.00 |
|
5--10 years |
$2,000.00 |
|
0--4 years |
$2,500.00 |
A vehicle return bond may be set above the minimum if the vehicle appears to have been unusually high value for its age but not to exceed twice the minimum amount.
D. A vehicle under this section may be released pending hearing upon proof of ownership of the vehicle, payment of the vehicle return bond, and payment of towing and storage fees, including the administrative fee of $384.00 to offset the city’s processing costs.
E. The court may order all or any part of the vehicle return bond to be forfeited to the city and may also order that the proceeds of any sale, transfer or encumbrance be forfeited if the vehicle has been sold, transferred or encumbered while subject to a vehicle return bond, if the vehicle is not returned in accordance with an order entered in the case requiring impoundment or forfeiture.
4.23.120 Impoundment; Seizure Incident to Arrest; Impoundment Period; Abandoned Vehicle Disposal; Personal Property in Vehicles.
A. A motor vehicle that is operated, driven or in the actual physical control of a person arrested for or charged with a violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 or Section 4.23.500 of this chapter may be ordered impounded either upon conviction of the person for the offense or upon the decision of the court in a separate civil proceeding. To obtain an order for the impoundment in a contested proceeding, the city must establish by a preponderance of the evidence that the vehicle was operated, driven or in the actual physical control of a person who was acting in violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter.
B. If the motor vehicle is seized incident to an arrest or otherwise prior to a conviction or court-ordered impoundment, the vehicle may not be held more than two days without a court order obtained to continue its detention. For purpose of computing the two-day period, Saturdays, Sundays and legal holidays are not to be included.
C. A vehicle which is ordered impounded under this section shall be held for a period of 30 days. An impoundment order may be made either upon conviction of the person of a violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter, or upon decision of a court in a separate civil proceeding.
D. Vehicles ordered impounded under this section, which are not claimed at the end of the 30-day court-ordered period of impoundment may be disposed of pursuant to the provisions of AS 28.10.502. If the contents of the vehicle have not been recovered before such disposal, the contents may be disposed of with the vehicle. Personal property in a vehicle that is subject to a vehicle return bond and has not been released can be removed from a vehicle only by the owner of the vehicle and only upon payment of a fee charged for monitoring such recovery of such personal property. Such fee shall be set by contract between the towing and storage contractor and the city. The owner may recover the fee if a court makes a specific finding that the seizure of the vehicle was legally unjustified. In the event the city provides storage on public property the fee to monitor said vehicle shall be included in the storage cost at $20.00 per day for the first ten days and $10.00 per day thereafter.
4.23.130 Forfeiture Process.
A. A motor vehicle that is operated, driven or in the actual physical control of a person arrested or charged with a violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 or Section 4.23.500 of this chapter may be forfeited to the city either upon conviction of any of the offenses listed above or upon decision of a court in a separate civil proceeding. To obtain an order of forfeiture in a contested proceeding, the city must establish by a preponderance of the evidence that the vehicle was operated, driven or in the physical control of the person acting in violation of either offense and the individual has been previously convicted.
B. A motor vehicle may be seized and towed to a secure location by a police officer or a police officer’s designee upon an order issued by a court having jurisdiction over the motor vehicle upon a showing of probable cause that the motor vehicle may be forfeited or impounded under this section. Seizure without a court order may be made if:
(1) The impoundment is incident to an arrest; or
(2) The motor vehicle has been ordered impounded or forfeited and that order has not yet been executed; or
(3) There is probable cause to believe that the motor vehicle was operated, driven or in the actual physical control of a person in violation of AS 28.35.030, AS 28.35.032, AS 28.15.291 and Section 4.23.500 of this chapter.
C. A court may order impoundment of a motor vehicle subject to forfeiture in a civil action for a minimum of 30 consecutive days.
4.23.140 Custody of Vehicle; North Pole Police Department; Private Corporations; Inventory.
A. A motor vehicle seized for the purpose of forfeiture or impoundment should be held in the custody of the department of public safety or a private corporation authorized by the department to retain custody of the vehicle, subject only to the orders and decrees of the court having jurisdiction over any forfeiture or impoundment proceedings. When a motor vehicle is seized, the North Pole Police Department Chief of Police or an authorized designee may:
(1) Remove the motor vehicle and any contents in the vehicle to a place designated by the court; or
(2) Take custody of the motor vehicle and any contents of the vehicle and remove it to an appropriate location for disposition.
B. Following a forfeiture of a vehicle the North Pole Police Department shall make an inventory of the contents of any motor vehicle seized. Personal property can be recovered from the vehicle in the same manner as set forth in section 4.23.120 of this chapter.
C. A person in a forfeiture action claiming an interest in the property shall file, within 30 days after service or completion of publication, a notice of claim setting out the nature of the interest, the date it was acquired, the consideration paid, and an answer to the city’s allegations. If a claim and answer is not filed within the required time, the motor vehicle must be forfeited to the city without further proceedings. For a regulated lien holder, the notice of claim and answer is met by the filing of information required in section 78-966 and by adding to the affidavit a statement of the original amount of the loan giving rise to the lien and the current balance due on that loan.
D. A claimant may petition the court for sale of a motor vehicle before final disposition of court proceedings. The court shall grant a petition for sale upon a finding that the sale is in the best interest of the city. Proceeds from the sale plus interest to the date of final disposition of the court proceedings become the subject of the forfeiture action.
4.23.150 Disposition of Forfeited Property; Return to Claimant.
A. Property forfeited under this article shall be disposed of by the department of public safety in accordance with this section. Property forfeited includes both the vehicle and its contents if those contents have not been recovered before the date of disposal. The department of public safety may:
(1) Sell the property in a manner that will yield the best price and use the proceeds for payment of all expenses of seizure, custody, court costs and attorney’s fees;
(2) Take custody of the property and use it in the enforcement of city and state criminal codes; or
(3) Destroy the property.
B. When a claimant to a motor vehicle is entitled to its possession, the court shall order that:
(1) The vehicle be delivered to the claimant immediately subject to costs as described in section 4.23.100 of this section; or
(2) If the claimant is entitled to some value less than the total value of the motor vehicle, the claimant is entitled to receive either the value of the claimant’s interest after the sale of the vehicle upon request and payment of the difference in value by the claimant, the motor vehicle itself.
C. When a vehicle is sold and lien holder interest exceeds the sale price, the owner may be held responsible for the difference and the city’s cost.
4.23.160 Multiple Ownership on Certificate of Title.
In a contested forfeiture proceeding concerning a vehicle titled in the names of more than one owner on the certificate of title, the court shall proceed as follows:
A. If one owner does not avoid forfeiture, the court may order the forfeiture of the entire interest of all the owners in a vehicle which is titled in the names of more than one owner in the disjunctive which is signified by the word "or."
B. If such owner does not avoid forfeiture, the court shall order the forfeiture of the interest of any owner in a vehicle which is titled in the names of more than one owner in the conjunctive which is signified by the word "and." Owners of a vehicle titled in the names of more than one owner in the conjunctive are presumed to own the vehicle in equal shares. Under this subsection, the court shall order that the vehicle be sold at public auction and further order that the proceeds from the sale of the vehicle be held by the city’s department of finance. After deduction of the reasonable costs of the auction, the amount of the proceeds of the auction for the sale of that vehicle which is equal to the interests of the owners whose interests have not been forfeited shall be returned to those owners if those owners apply to the department of finance within 60 days of the auction. If the owners whose interests have not been forfeited do not apply within that period, those funds become the property of the city subject to the rights of any other claimant to those funds.
4.23.500 Insurance or Other Security Required.
A. The owner or operator of a motor vehicle shall have a current motor vehicle liability policy, or other security that complies with Alaska Statutes Title 28.22.11 – 28.22.500, when operating a motor vehicle.
B. It is unlawful:
(1) For any person to operate a motor vehicle without proof of the required security in the vehicle;
(2) For any person to fail to produce proof of security to a police officer upon demand; or
(3) For any person to operate a motor vehicle without the required security in effect at the time of operation.
C. A person convicted of violating subsections b(1) or b(2) shall pay a fine of $300.00 unless the person produces in court proof of insurance for vehicle liability or other security that had been issued to the person prior to the time of the offense and was valid at the time of the offense, in which instance the citation will be dismissed.
D. A person convicted under subsection (b) for the first time may avoid impoundment by presenting proof of insurance in effect no later than 30 days after the date of the offense.
4.23.900 Definitions.
The following words, terms and phrases, when used in this article, shall have the meanings ascribed to them in this section, except where the context clearly indicates a different meaning:
“Assessed or appraised value” of a motor vehicle shall be based upon the Automobile Dealers Association Book (Blue Book) for the same or similar make and model and accessorized motor vehicle. Should there be no Blue Book value; the value shall be $500.00.
“Driver” means a person who drives or is in actual physical control of a vehicle.
“Motor vehicle” means a vehicle which is self propelled except a vehicle moved by human or animal power.
“Previously convicted” means having been convicted in this or another jurisdiction within ten years preceding the date of the present offense, of operating a motor vehicle, aircraft or watercraft while intoxicated under AS 28.35.030 or another law or ordinance with substantially similar elements, or a refusal to submit to a chemical test under AS 28.35.032 or another law or ordinance with substantial similar elements, or driving a motor vehicle while license suspended, canceled, revoked, or limited under AS 28.15.291 or another law or ordinance with substantially similar elements, or driving a motor vehicle without insurance or other security under Section 4.23.500 of this chapter or another law or ordinance with substantially similar elements.
“Registered owner” refers to the owner of the vehicle at the time of the offense as shown in the vehicle ownership records of the state division of motor vehicles or another agency with similar responsibilities in another state, but may include subsequent good-faith purchases.
“Regulated lien holder” means an entity whose lien on the vehicle is a result of lending activities that are subject to regulation by any federal or state agency, commission or department.
“Vehicle” means a device in, upon or by which a person or property may be transported or driven upon immediately over a highway, road or other public right-of-way. (Ord. 08-08)