Seizure of Vehicles for Offenses Involving Impaired Driving

Re: Advisory Opinion; Seizure of Vehicles for Offenses Involving Impaired Driving While License Revoked; Responsibility for Towing Charges; G.S. § 20-28.3 Dear Mr. Inabinett: : Mike Ward Phil Kirk Alison Schafer

On behalf of the Davidson County Board of Education, you have written to request our opinion regarding the responsibility for towing charges incurred when a vehicle is seized pursuant to G.S. § 20-28.3, “Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving while license revoked.”

According to your letter, the Davidson County Board of Education has contracted with a statewide contractor to tow vehicles subject to seizure. You further represent, however, that local law enforcement officers frequently do not call that contractor to tow the vehicles. Instead of calling the company with which the board of education has contracted, the officers are calling the next towing company on the regular “local rotation.” In light of those facts, you have asked whether the local board of education or the law enforcement authority is responsible for paying the towing charges.

G.S. § 20-28.3(d) provides in pertinent part:

Unless the motor vehicle is towed pursuant to a statewide or regional contract, or a contract with the county board of education, the seized motor vehicle shall be towed by a commercial towing company designated by the law enforcement agency that seized the motor vehicle. Seized motor vehicles not towed pursuant to a statewide or regional contract or a contract with a county board of education shall be retrieved from the commercial towing company within a reasonable time, not to exceed 10 days, by the county board of education or their agent who must pay towing and storage fees to the commercial towing company when the motor vehicle is retrieved. . . . The seized motor vehicle is under the constructive possession of the county board of education for the county in which the operator of the vehicle is charged at the time the vehicle is delivered to a location designated by the county board of education or delivered to its agent pending release or sale, or in the event a statewide or regional contract is in place, under the constructive possession of the Department of Public Instruction, on behalf of the State at the time the vehicle is delivered to a location designated by the Department of Public Instruction or delivered to its agent pending release or sale.

(Emphasis added).

This statute clearly provides that, whenever a vehicle is towed by a company that is not under statewide or regional contract, the local board of education must retrieve the vehicle and pay the towing and storage charges within 10 days. The fact that the local board of education or the Department of Public Instruction has entered into a statewide or regional contract with another towing company is immaterial because, under the facts of your letter, the vehicle in question was not towed pursuant to such a contract.

It is true that the local board does not have constructive possession of the vehicle until it is delivered to the location it designates. But possession of the vehicle, actual or constructive, is also irrelevant to the LEA’s obligation under G.S. § 20-28.3(d) to retrieve the vehicle from the commercial towing company within 10 days and pay the towing and storage fees.

Provided the local board has retrieved the vehicle within 10 days, it is entitled to recover the actual storage fees paid to the noncontracting towing company. Otherwise, it is our opinion that the local board is limited to recovering no more than the storage costs that it is authorized to charge under the statewide, regional or local towing and storage contract made under G.S. § 20-28.3(d). Those costs may be recovered when the vehicle is sold or, if the proceeds of the sale are insufficient to cover those costs, by executing on the judgment for costs imposed on the convicted driver. G.S. §§ 20-28.3(i) and 28.3(l); § 20-28.5(b). Whether the local board may proceed against the local law enforcement agency or officer to recover the additional costs associated with the noncontracting company’s towing and storage of the vehicle depends upon the particular facts of an individual case and is beyond the scope of this opinion.

We recognize the difficulties the present statutory scheme creates and the burdens it places upon local school systems. However, it is our view that these problems will require legislative action if they are to be corrected.

Signed by:

Grayson G. Kelley Senior Deputy Attorney General

Thomas J. Ziko Special Deputy Attorney General

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