§ 20-28.2. Forfeiture of motor vehicle for impaired driving after impaired driving license revocation.
§ 20‑28.2. Forfeitureof motor vehicle for impaired driving after impaired driving licenserevocation.
(a) Meaning of"Impaired Driving License Revocation". The revocation of a person'sdrivers license is an impaired driving license revocation if the revocation ispursuant to:
(1) G.S. 20‑13.2,20‑16(a)(8b), 20‑16.2, 20‑16.5, 20‑17(a)(2), 20‑17(a)(12),or 20‑138.5; or
(2) G.S. 20‑16(a)(7),20‑17(a)(1), 20‑17(a)(3), 20‑17(a)(9), or 20‑17(a)(11),if the offense involves impaired driving; or
(3) The laws of anotherstate and the offense for which the person's license is revoked prohibitssubstantially similar conduct which if committed in this State would result ina revocation listed in subdivisions (1) or (2).
(a1) Definitions. Asused in this section and in G.S. 20‑28.3, 20‑28.4, 20‑28.5,20‑28.7, 20‑28.8, and 20‑28.9, the following terms mean:
(1) Acknowledgment. Awritten document acknowledging that:
a. The motor vehiclewas operated by a person charged with an offense involving impaired driving,and:
1. That person'sdrivers license was revoked as a result of a prior impaired drivers licenserevocation; or
2. That person did nothave a valid drivers license, and did not have liability insurance.
b. If the motor vehicleis again operated by this particular person, and the person is charged with anoffense involving impaired driving, then the vehicle is subject to impoundmentand forfeiture if (i) the offense occurs while that person's drivers licenseis revoked, or (ii) the offense occurs while the person has no valid driverslicense, and has no liability insurance; and
c. A lack of knowledgeor consent to the operation will not be a defense in the future, unless themotor vehicle owner has taken all reasonable precautions to prevent the use ofthe motor vehicle by this particular person and immediately reports, upondiscovery, any unauthorized use to the appropriate law enforcement agency.
(1a) Fair Market Value. Thevalue of the seized motor vehicle, as determined in accordance with theschedule of values adopted by the Commissioner pursuant to G.S. 105‑187.3.
(2) Innocent Owner. Amotor vehicle owner:
a. Who did not know andhad no reason to know that (i) the defendant's drivers license was revoked, or(ii) that the defendant did not have a valid drivers license, and that thedefendant had no liability insurance; or
b. Who knew that (i)the defendant's drivers license was revoked, or (ii) that the defendant had novalid drivers license, and that the defendant had no liability insurance, butthe defendant drove the vehicle without the person's expressed or impliedpermission, and the owner files a police report for unauthorized use of themotor vehicle and agrees to prosecute the unauthorized operator of the motorvehicle; or
c. Whose vehicle wasreported stolen; or
d. Repealed by SessionLaws 1999‑406, s. 17.
e. Who is in thebusiness of renting vehicles, and the vehicle was driven by a person who is notlisted as an authorized driver on the rental contract; or
f. Who is in thebusiness of leasing motor vehicles, who holds legal title to the motor vehicleas a lessor at the time of seizure and who has no actual knowledge of therevocation of the lessee's drivers license at the time the lease is entered.
(2a) Insurance Company. Anyinsurance company that has coverage on or is otherwise liable for repairs ordamages to the motor vehicle at the time of the seizure.
(2b) Insurance Proceeds. Proceeds paid under an insurance policy for damage to a seized motor vehicleless any payments actually paid to valid lienholders and for towing and storagecosts incurred for the motor vehicle after the time the motor vehicle becamesubject to seizure.
(3) Lienholder. Aperson who holds a perfected security interest in a motor vehicle at the timeof seizure.
(3a) Motor Vehicle Owner. A person in whose name a registration card or certificate of title for amotor vehicle is issued at the time of seizure.
(4) Order of Forfeiture. An order by the court which terminates the rights and ownership interest of amotor vehicle owner in a motor vehicle and any insurance proceeds or proceedsof sale in accordance with G.S. 20‑28.2.
(5) Repealed by SessionLaws 1998‑182, s. 2.
(6) Registered Owner. Aperson in whose name a registration card for a motor vehicle is issued at thetime of seizure.
(7) Repealed by SessionLaws 1998‑182, s. 2.
(b) When Motor VehicleBecomes Property Subject to Order of Forfeiture; Impaired Driving and PriorRevocation. A judge may determine whether the vehicle driven by an impaireddriver at the time of the offense becomes subject to an order of forfeiture.The determination may be made at any of the following times:
(1) A sentencing hearingfor the underlying offense involving impaired driving.
(2) A separate hearingafter conviction of the defendant.
(3) A forfeiture hearingheld at least 60 days after the defendant failed to appear at the scheduledtrial for the underlying offense, and the defendant's order of arrest forfailing to appear has not been set aside.
The vehicle shall become subjectto an order of forfeiture if the greater weight of the evidence shows that thedefendant is guilty of an offense involving impaired driving, and that thedefendant's license was revoked pursuant to an impaired driving licenserevocation as defined in subsection (a) of this section.
(b1) When a Motor VehicleBecomes Property Subject to Order of Forfeiture; No License and No Insurance. A judge may determine whether the vehicle driven by an impaired driver at thetime of the offense becomes subject to an order of forfeiture. Thedetermination may be made at any of the following times:
(1) A sentencing hearingfor the underlying offense involving impaired driving.
(2) A separate hearingafter conviction of the defendant.
(3) A forfeiture hearingheld at least 60 days after the defendant failed to appear at the scheduledtrial for the underlying offense, and the defendant's order of arrest forfailing to appear has not been set aside.
The vehicle shall become subjectto an order of forfeiture if the greater weight of the evidence shows that thedefendant is guilty of an offense involving impaired driving, and: (i) thedefendant was driving without a valid drivers license, and (ii) the defendantwas not covered by an automobile liability policy.
(c) Duty of Prosecutorto Notify Possible Innocent Parties. In any case in which a prosecutordetermines that a motor vehicle driven by a defendant may be subject toforfeiture under this section and the motor vehicle has not been permanentlyreleased to a nondefendant vehicle owner pursuant to G.S. 20‑28.3(e1), adefendant owner pursuant to G.S. 20‑28.3(e2), or a lienholder, pursuantto G.S. 20‑28.3(e3), the prosecutor shall notify the defendant, eachmotor vehicle owner, and each lienholder that the motor vehicle may be subjectto forfeiture and that the defendant, motor vehicle owner, or the lienholdermay intervene to protect that person's interest. The notice may be served byany means reasonably likely to provide actual notice, and shall be served atleast 10 days before the hearing at which an order of forfeiture may beentered.
(c1) Motor VehiclesInvolved in Accidents. If a motor vehicle subject to forfeiture was damagedwhile the defendant operator was committing the underlying offense involvingimpaired driving, or was damaged incident to the seizure of the motor vehicle,the Division shall determine the name of any insurance companies that are theinsurers of record with the Division for the motor vehicle at the time of theseizure or that may otherwise be liable for repair to the motor vehicle. In anycase where a seized motor vehicle was involved in an accident, the Divisionshall notify the insurance companies that the claim for insurance proceeds fordamage to the seized motor vehicle shall be paid to the clerk of superior courtof the county where the motor vehicle driver was charged to be held anddisbursed pursuant to further orders of the court. Any insurance company thatreceives written or other actual notice of seizure pursuant to this sectionshall not be relieved of any legal obligation under any contract of insuranceunless the claim for property damage to the seized motor vehicle minus thepolicy owner's deductible is paid directly to the clerk of court. The insurancecompany paying insurance proceeds to the clerk of court pursuant to thissection shall be immune from suit by the motor vehicle owner for any damagesalleged to have occurred as a result of the motor vehicle seizure. The proceedsshall be held by the clerk. The clerk shall disburse the insurance proceedspursuant to further orders of the court.
(d) Forfeiture Hearing. Unless a motor vehicle that has been seized pursuant to G.S. 20‑28.3has been permanently released to an innocent owner pursuant to G.S. 20‑28.3(e1),a defendant owner pursuant to G.S. 20‑28.3(e2), or to a lienholderpursuant to G.S. 20‑28.3(e3), the court shall conduct a hearing on theforfeiture of the motor vehicle. The hearing may be held at the sentencinghearing on the underlying offense involving impaired driving, at a separatehearing after conviction of the defendant, or at a separate forfeiture hearingheld not less than 60 days after the defendant failed to appear at thescheduled trial for the underlying offense and the defendant's order of arrestfor failing to appear has not been set aside. If at the forfeiture hearing, thejudge determines that the motor vehicle is subject to forfeiture pursuant tothis section and proper notice of the hearing has been given, the judge shallorder the motor vehicle forfeited. If at the sentencing hearing or at aforfeiture hearing, the judge determines that the motor vehicle is subject toforfeiture pursuant to this section and proper notice of the hearing has beengiven, the judge shall order the motor vehicle forfeited unless another motorvehicle owner establishes, by the greater weight of the evidence, that suchmotor vehicle owner is an innocent owner as defined in this section, in whichcase the trial judge shall order the motor vehicle released to the innocentowner pursuant to the provisions of subsection (e) of this section. In any casewhere the motor vehicle is ordered forfeited, the judge shall:
(1) a. Authorizethe sale of the motor vehicle at public sale or allow the county board ofeducation to retain the motor vehicle for its own use pursuant to G.S. 20‑28.5;or
b. Order the motorvehicle released to a lienholder pursuant to the provisions of subsection (f)of this section; and
(2) a. Orderany proceeds of sale or insurance proceeds held by the clerk of court to bedisbursed to the county board of education; and
b. Order anyoutstanding insurance claims be assigned to the county board of education inthe event the motor vehicle has been damaged in an accident incident to theseizure of the motor vehicle.
If the judge determines that themotor vehicle is subject to forfeiture pursuant to this section, but thatnotice as required by subsection (c) has not been given, the judge shallcontinue the forfeiture proceeding until adequate notice has been given. In nocircumstance shall the sentencing of the defendant be delayed as a result ofthe failure of the prosecutor to give adequate notice.
(e) Release of Vehicleto Innocent Motor Vehicle Owner. At a forfeiture hearing, if a nondefendantmotor vehicle owner establishes by the greater weight of the evidence that: (i)the motor vehicle was being driven by a person who was not the only motorvehicle owner or had no ownership interest in the motor vehicle at the time ofthe underlying offense and (ii) the petitioner is an "innocentowner", as defined by this section, a judge shall order the motor vehiclereleased to that owner, conditioned upon payment of all towing and storagecharges incurred as a result of the seizure and impoundment of the motorvehicle.
Release to an innocent ownershall only be ordered upon satisfactory proof of:
(1) The identity of theperson as a motor vehicle owner;
(2) The existence offinancial responsibility to the extent required by Article 13 of this Chapteror by the laws of the state in which the vehicle is registered; and
(3) Repealed by SessionLaws 1998‑182, s. 2, effective December 1, 1998.
(4) The execution of anacknowledgment as defined in subdivision (a1)(1) of this section.
If the nondefendant owner is alessor, the release shall also be conditioned upon the lessor agreeing not tosell, give, or otherwise transfer possession of the forfeited motor vehicle tothe defendant or any person acting on the defendant's behalf. A lessor whorefuses to sell, give, or transfer possession of a seized motor vehicle to thedefendant or any person acting on the behalf of the defendant shall not beliable for damages arising out of the refusal.
No motor vehicle subject toforfeiture under this section shall be released to a nondefendant motor vehicleowner if the records of the Division indicate the motor vehicle owner hadpreviously signed an acknowledgment, as required by this section, and the sameperson was operating the motor vehicle while that person's license was revokedunless the innocent owner shows by the greater weight of the evidence that themotor vehicle owner has taken all reasonable precautions to prevent the use ofthe motor vehicle by this particular person and immediately reports, upondiscovery, any unauthorized use to the appropriate law enforcement agency. Adetermination by the court at the forfeiture hearing held pursuant tosubsection (d) of this section that the petitioner is not an innocent owner isa final judgment and is immediately appealable to the Court of Appeals.
(f) Release toLienholder. At a forfeiture hearing, the trial judge shall order a forfeitedmotor vehicle released to the lienholder upon payment of all towing and storagecharges incurred as a result of the seizure of the motor vehicle if the judgedetermines, by the greater weight of the evidence, that:
(1) The lienholder'sinterest has been perfected and appears on the title to the forfeited vehicle;
(2) The lienholderagrees not to sell, give, or otherwise transfer possession of the forfeitedmotor vehicle to the defendant or to the motor vehicle owner who owned themotor vehicle immediately prior to forfeiture, or any person acting on thedefendant's or motor vehicle owner's behalf;
(3) The forfeited motorvehicle had not previously been released to the lienholder;
(4) The owner is indefault under the terms of the security instrument evidencing the interest ofthe lienholder and as a consequence of the default the lienholder is entitledto possession of the motor vehicle; and
(5) The lienholderagrees to sell the motor vehicle in accordance with the terms of its agreementand pursuant to the provisions of Part 6 of Article 9 of Chapter 25 of theGeneral Statutes. Upon the sale of the motor vehicle, the lienholder will payto the clerk of court of the county in which the vehicle was forfeited allproceeds from the sale, less the amount of the lien in favor of the lienholder,and any towing and storage costs paid by the lienholder.
A lienholder who refuses to sell,give, or transfer possession of a forfeited motor vehicle to the defendant, thevehicle owner who owned the motor vehicle immediately prior to forfeiture, orany person acting on the behalf of the defendant or motor vehicle owner shallnot be liable for damages arising out of such refusal. The defendant, the motorvehicle owner who owned the motor vehicle immediately prior to forfeiture, andany person acting on the defendant's or motor vehicle owner's behalf areprohibited from purchasing the motor vehicle at any sale conducted by thelienholder.
(g) Repealed by SessionLaws 1998‑182, s. 2, effective December 1, 1998.
(h) Any order issuedpursuant to this section authorizing the release of a seized vehicle shallrequire the payment of all towing and storage charges incurred as a result ofthe seizure and impoundment of the motor vehicle. This requirement shall not bewaived. (1983,c. 435, s. 21; 1983 (Reg. Sess., 1984), c. 1101, s. 19; 1989 (Reg. Sess.,1990), c. 1024, s. 6; 1997‑379, s. 1.1; 1997‑456, s. 30; 1998‑182,s. 2; 1999‑406, ss. 11, 12, 17; 2000‑169, s. 28; 2001‑362, s.7; 2006‑253, s. 31; 2007‑493, ss. 7, 8, 21.)