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Monday, November 10, 2014

Court Restricts Authority to Impound Vehicles

Many municipalities impound vehicles pursuant to Section 11-208.7 of the Illinois Motor Vehicle Code. That statute establishes a process for the towing and impoundment of vehicles operated in violation of certain statutes. It also allows a municipality to charge a fee for release of an impounded vehicle.  

In a recent  ruling, however, an Illinois court held that Section 11-208.7 does not authorize vehicle impoundment, but only provides for a fee and a process for “properly impounded” vehicles.  Hayenga vs. City of Rockford, 2014 Ill.App.2d. 131261.  

In Hayenga, Rockford police pulled over Hayenga's boyfriend, who was driving her car.  After the police found drug paraphernalia in the vehicle, it towed and impounded the vehicle.  Hayenga appealed the impoundment, but an administrative hearing officer upheld the City's action.  On appeal to the circuit court, the court found that the City (a non-home rule municipality) did not have authority to impound Hayenga's vehicle under Section 11-208.7.  The appellate court agreed, finding that nothing in Section 11-208.7 provides express authority for municipalities to impound vehicles. Instead, the court noted that the statute (reprinted in part below) provides municipalities with authority to charge fees for the release of "properly impounded vehicles," but not a separate grant of authority to impound.
Ҥ11-208.7. Administrative fees and procedures for impounding vehicles for specified violations.
(a) Any municipality may, consistent with this Section, provide by ordinance procedures for the release of properly impounded vehicles and for the imposition of a reasonable administrative fee related to its administrative and processing costs associated with the investigation, arrest, and detention of an offender, or the removal, impoundment, storage, and release of the vehicle. The administrative fee imposed by the municipality may be in addition to any fees charged for the towing and storage of an impounded vehicle. The administrative fee shall be waived by the municipality upon verifiable proof that the vehicle was stolen at the time the vehicle was impounded...

The court also rejected the City's arguments that other statutory provisions authorized the City to impound the vehicle because the City failed to make those arguments at the administrative hearing. 

Based on the Hayenga decision, therefore, a municipality cannot rely on Section 11-208.7 in order to seize a vehicle.  It must have other authority for the seizure.  There are a variety of statutes that might provide a municipality with impoundment authority, including the following:
  1. 720 ILCS 5/36-1. Seizure and forfeiture of a vehicle used with knowledge and consent of the owner in the commission of certain listed offenses.
  2. 720 ILCS 5/36.5-5. Vehicle used in the commission of certain listed sex offenses.
  3. 625 ILCS 5/4-201, et seq. Towing of abandoned, stolen and certain unattended vehicles. 
  4. 625 ILCS 5/4-203 (E). Police may tow the vehicle of a driver arrested for a DUI if it is likely the driver will upon release commit a subsequent violation.  
  5.  625 ILCS 5/11-1302.  Allows the towing of vehicles obstructing the highway or creating a hazard due to location on the highway, any stolen vehicle, an unregistered vehicle or “when a person driving a vehicle is arrested for an alleged offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay.” 
  6. 625 ILCS 5/6-303 (E). Driving without proof of insurance while a driver’s license is suspended or revoked. 
In addition to these statutes, municipalities might rely on their authority to declare and abate public nuisances. 65 ILCS 5/11-60-2.  For example, the Town of Normal Municipal Code declares that the "use of motor vehicles in certain criminal and traffic offenses is hereby declared a public nuisance...are declared contraband and subject to seizure and impoundment." 

Even with express statutory authority, however, any municipal tow or impoundment is subject to constitutional analysis to ensure that the municipal action does not violate the Fourth Amendment. Cases allow a municipality to lawfully seize and impound a vehicle under the following three circumstances:
  1. pursuant to a warrant.
  2. without a warrant if based on probable cause that the vehicle contains evidence of a crime or was used in the commission of a crime. 
  3. without a warrant if based on the police community caretaking function (vehicle obstructs traffic, constitutes a hazard, or is in a public location and detrimental to public health or safety).
Illinois municipalities may need to review their current codes and ordinances to ensure that they are consistent with the recent ruling in the Hayenga case.  

Post Authored by Steve Mahrt & Julie Tappendorf, Ancel Glink


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