A municipality has two compelling reasons to implement and enforce a proper vehicle impound policy: (1) to minimize risks to public safety and municipal liability; and (2) to offset the cost and even gain money from the impound process.
Concerns with public safety and municipal liability are somewhat self-evident. Law enforcement cannot take a driver into custody and leave an unattended vehicle on the shoulder of a roadway, particularly a high speed roadway, out of concern that it will increase the risk of an accident occurring as well as the parked vehicle getting damaged. Yet a finer line is determining what circumstances allow the vehicle to be released to an acquaintance of the vehicle’s driver without going through the impoundment process.
We recommend that where another person is on scene with the driver, such as a passenger, that the vehicle be generally released to that person assuming the person is: licensed to operate the vehicle; the third party is not displaying any symptoms of incompetence to drive (i.e. if the driver is arrested for DUI but the passenger seems intoxicated as well); the vehicle is registered and insured and otherwise able to be legally operated; and the owner of the vehicle (possibly not the driver) consents to the vehicle being driven by the third party. If any of these requirements cannot be established by the officer, the vehicle cannot be turned over to the third party or the municipality faces an even greater liability concern. Imagine if a third party drives an uninsured vehicle on behalf of an arrested driver but is involved in an accident; the municipality could be liable for authorizing the third party to take the uninsured vehicle.
If a third party is not on scene but is willing to come drive the vehicle, best practice would be to state and enforce a policy that a tow truck will be called and the third party must arrive prior to the tow truck. Doing so may seem harsh, but the alternative is to keep the arrestee and at least one officer on scene for an indefinite amount of time. The third party may take a long time to arrive or may never show up! The municipality could again be exposed to liability for failure to remove the vehicle from the roadway in a timely fashion if an accident were to occur. However, where a third party does properly take a vehicle from the scene, the municipality is advised to not pursue the impound fee or process.
Municipalities can establish and update their own ordinances. Many decide to limit their impound fees according to the disposition of the criminal case. For example, if the owner is found not guilty on the base crime, the ordinance may release the vehicle and refund the money that was posted or previously paid. There are constitutional considerations on whether a municipality can proceed with the impound fee even if the driver is not ultimately found guilty of the underlying charge. If your municipality currently has or is considering a policy that assesses the impound fee regardless of the legal disposition of the matter, please contact us to discuss particularities.
While the primary intention of the fee should be to offset the cost of the municipality having its employee(s) arrange for the impound and otherwise protect against the hazards the vehicle presents to traffic on the roadway, the bottom line is that money can be gained with the impound fees. The impound policy provides a fee, commonly around $500 in addition to towing expenses, that must be paid to the municipality prior to the vehicle’s release. As part of a well-structured impound policy, the fee income can be a monetary boon to the municipality enacting it.
Regardless of your municipality’s present policy regarding vehicle impounds, we recommend you visit or revisit your procedures for handling vehicles that would otherwise be left on the sides of roadways, to not only minimize potential liability but to ensure the process provides some financial benefit to your municipality.
Author: William C. Westfall