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Is there authority for a municipality to pass an ordinance to impound vehicles when a driver has no license?

Rickey Stokes

Viewed: 7920

Posted by: RStokes
Date: Apr 22 2017 1:50 PM

ALABAMA:     


Is there authority for a municipality to pass an ordinance to impound vehicles when a driver has no license?



If you have an ordinance that has adopted the state code by reference, then impoundment is authorized for violations of Section 32-6-19, Code of Alabama 1975 and no further ordinance is necessary. This statute covers drivers with a license revoked for any reason or a license suspended for DUI related reasons. Section 32-6-19 provides that: "The law enforcement officer making the impoundment shall direct an approved towing service to tow the vehicle to the garage of the towing service, storage lot, or other place of safety and maintain custody and control of the vehicle until the registered owner or authorized agent of the registered owner claims the vehicle by paying all reasonable and customary towing and storage fees for the services of the towing company. The vehicle shall then be released to the registered owner or an agent of the owner."



Section 32-5A-139, Code of Alabama, sets out additional authority for a law enforcement officer to tow a vehicle from a public highway when it is obstructing the flow of traffic. Based on what is called the community caretaking function, "The authority of police to seize and remove from the streets vehicles impeding traffic or threatening public safety and convenience is beyond challenge." Cannon v. State, 601 So.2d 1112 (Ala.Crim.App.1992), certiorari denied.



Under the Safe Streets Act, Section 32-5A-205, Code of Alabama 1975, authorized enactment of ordinances to provide for administrative sanctions involving impoundment of vehicles used in the commission of the offense of driving with a suspended or revoked license or without a license. However, the Safe Streets Act (Act 95-580) was repealed by Act 98-470, § 2, effective May 1, 1998. Therefore it would appear that any such ordinances passed under this authority would no longer be valid.


CODE OF ALABAMA 32-6-19



Section 32-6-19


Penalties - Violation by person whose license or driving privilege has been cancelled, etc.; impoundment of vehicle.



(a)(1) Any person whose driver's or chauffeur's license issued in this or another state or whose driving privilege as a nonresident has been cancelled, denied, suspended, or revoked as provided in this article and who drives any motor vehicle upon the highways of this state while his or her license or privilege is cancelled, denied, suspended, or revoked shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500), and in addition thereto may be imprisoned for not more than 180 days. In addition to all fines, fees, costs, and punishments prescribed by law, there shall be imposed or assessed an additional penalty of fifty dollars ($50) to be placed in the Traffic Safety Trust Fund and the Peace Officers Standards and Training Fund. Also, at the discretion of the Director of Public Safety, the person's license may be revoked for an additional revocation period of six months.



(2) The additional penalty of fifty dollars ($50) shall be assessed in all criminal and quasi-criminal proceedings in municipal, district, and circuit courts, including, but not limited to, final bond forfeitures, municipal ordinances violations, wherein the defendant is adjudged guilty or pleads guilty and in all juvenile delinquency and youthful offender adjudications.



(3) If the fifty dollar ($50) penalty required by subdivision (1) is not imposed by the court, the clerk of the court shall automatically assess it upon conviction.



(b) Notwithstanding any provision of law, any person who operates a motor vehicle upon the highways of this state while his or her driver's license or driving privilege is revoked for any reason under the laws of this state or similar laws of any other state or territory, or while his or her driver's license or driving privilege is suspended as a consequence of a DUI-related offense, including, but not limited to, being adjudicated delinquent or a youthful offender based on a DUI-related offense, or while his or her driver's license or driving privilege is suspended as a result of failure to comply with the implied consent law of this state or laws of another state, or who has been adjudicated a delinquent child or a youthful offender based on an offense that if the person had been an adult would have been a conviction of driving under the influence of a controlled substance or alcohol or failure to comply with the implied consent law, shall be immediately removed from the vehicle. The vehicle, regardless of ownership or possessory interest of the operator or person present in the vehicle, except when the owner of the vehicle or another family member of the owner is present in the vehicle and presents a valid driver's license, shall be impounded by any duly sworn law enforcement officer. If there is an emergency or medical necessity jeopardizing life or limb, the law enforcement officer may elect not to impound the vehicle.



(c)(1) The law enforcement officer making the impoundment shall direct an approved towing service to tow the vehicle to the garage of the towing service, storage lot, or other place of safety and maintain custody and control of the vehicle until the registered owner or authorized agent of the registered owner claims the vehicle by paying all reasonable and customary towing and storage fees for the services of the towing company. The vehicle shall then be released to the registered owner or an agent of the owner.



(2) Any towing service or towing company removing the vehicle at the direction of the law enforcement officer in accordance with this section shall have a lien on the motor vehicle for all reasonable and customary fees relating to the towing and storage of the motor vehicle. This lien shall be subject and subordinate to all prior security interests and other liens affecting the vehicle whether evidenced on the certificate of title or otherwise. Notice of any sale or other proceedings relative to this lien shall be given to the holders of all prior security interest or other liens by official service of process at least 15 days prior to any sale or other proceedings.



(Acts 1939, No. 181, p. 300; Code 1940, T. 36, §70; Acts 1951, No. 894, p. 1534; Acts 1983, No. 83-620, p. 959, §1; Acts 1997, No. 97-494, p. 883, §1; Act 98-470, p. 909, §1; Act 98-671, p. 1475, §1.)

CODE OF ALABAMA 32-5A-139



Section 32-5A-139


Officers authorized to remove vehicles.



(a) Whenever any police officer finds a vehicle standing upon a highway in violation of any of the provisions of Section 32-5A-136 such officer is hereby authorized to move such vehicle, or require the driver or other person in charge of the vehicle to move the same, to a position off the paved or main-traveled part of such highway.



(b) Any police officer is hereby authorized to remove or cause to be removed to a place of safety any unattended vehicle illegally left standing upon any highway, bridge, causeway, or in any tunnel, in such position or under such circumstances as to obstruct the normal movement of traffic.



(c) Any police officer is hereby authorized to remove or cause to be removed to the nearest garage or other place of safety any vehicle found upon a highway when:



(1) Report has been made that such vehicle has been stolen or taken without the consent of its owner;



(2) The person or persons in charge of such vehicle are unable to provide for its custody or removal;



(3) When the person driving or in control of such 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; or



(4) When a vehicle has been left unattended for 24 hours or more on or adjacent to any public highway and it is determined by the police officer that the vehicle constitutes a hazard to traffic upon the highway.



(Acts 1980, No. 80-434, p. 604, §10-102.)

CODE OF ALABAMA 32-5A-205



Section 32-5A-205


Enactment of ordinance which provides for administrative sanctions involving impoundment of vehicles.



Repealed by Act 98-470, § 2, effective May 1, 1998.



(Acts 1995, No. 95-580, p. 1219, §6.)



Michael E. CANNON
v.
STATE.


CR 90-1629.

Court of Criminal Appeals of Alabama.


February 28, 1992.
Rehearing Denied April 17, 1992.
Certiorari Denied July 31, 1992.

*1113 J. Wilson Dinsmore and Carla J. Gunnin, Birmingham, for appellant.


James H. Evans, Atty. Gen., and P. David Bjurberg, Asst. Atty. Gen., for appellee.


Alabama Supreme Court 1911192.


BOWEN, Judge.


Michael E. Cannon, the appellant, pleaded guilty and was convicted of the unlawful possession of diazepam, codeine, and lorazepam, in violation of Ala.Code 1975, § 13A-12-212(a). He was sentenced to five years' imprisonment. In pleading guilty, the appellant preserved his right to appeal the circuit court's ruling on his motion to suppress. On this appeal from that conviction, the appellant argues that the inventory search of his vehicle was improper because the vehicle was parked on private property when it was impounded.


The appellant was arrested for driving under the influence shortly before 2:00 on the morning of May 5, 1990. When an officer of the Talladega Police Department first observed the appellant, he was driving on a public highway. By the time the officer had turned around and caught up with the appellant, he had parked his automobile in the parking area between a convenience store and a car lot.


The only issue raised on this appeal is "whether the police properly impounded the defendant's vehicle and properly conducted an inventory search when the vehicle was legally parked on private property." Appellant's brief at 6.


"[A]n inventory search cannot be valid unless the police initially obtained lawful custody of the vehicle." Annot., 48 A.L.R. 3d 537, § 5(a) (1973). There is authority that tends to support the appellant's argument that the impoundment of his vehicle was improper because it was parked on "private" property. See W. LaFave, 3 Search and Seizure § 7.3(c) at p. 87, n. 55 (2d ed. 1987). However, in determining whether a vehicle has been properly *1114 impounded, we consider the "bright line" test of whether the vehicle was parked on public or private property inappropriate and over-simplified.


Section 32-5A-139(c), Ala.Code 1975, authorizes a police officer to impound any vehicle found "upon a highway" under certain circumstances. See also Ex parte Boyd, 542 So. 2d 1276, 1277 n. 2 (Ala.1989), cert. denied, 493 U.S. 883110 S. Ct. 219107 L. Ed. 2d 172 (1989) (holding that the impoundment of the appellant's automobile "which was parked on the street in front of his house" was lawful). The parking lot in this case does not fall within the definition of "highway." See § 32-1-1.1(23) ("HIGHWAY. The entire width between the boundary lines of every way publically maintained when any part thereof is open to the use of the public for purposes of vehicular travel"). However, "the police have an inherent authority to impound vehicles, aside from statutory authority based on what is called the community caretaking function." Morton v. State,452 So. 2d 1361, 1365 (Ala.Cr.App.1984).


In determining the legality of an impoundment of a vehicle, the totality of the circumstances must be considered. The single fact of where or how the vehicle was parked is not determinative.


"[T]o have left the vehicle in the auction company's parking lot—a lot open to the public—could have subjected it to vandalism or theft. The fact that the vehicle was legally parked in a parking lot does not, in and of itself, require the finding that impoundment was unnecessary, see United States v. Staller,616 F.2d 1284 (5th Cir.1980), cert. denied, 449 U.S. 869101 S. Ct. 20766 L. Ed. 2d 89 (1980); United States v. Gravitt,484 F.2d 375 (5th Cir.1973), cert. denied, 414 U.S. 113594 S. Ct. 87938 L. Ed. 2d 761 (1974), and the court in [United States v.Pappas [, 735 F.2d 1232 (10th Cir.1984) ] recognized this."

United States v. Kornegay, 885 F.2d 713, 716 (10th Cir.1989), cert. denied, 495 U.S. 935110 S. Ct. 2179109 L. Ed. 2d 508 (1990). In United States v. Staller, 616 F.2d 1284, 1290 (5th Cir.), cert. denied, 449 U.S. 869101 S. Ct. 20766 L. Ed. 2d 89 (1980), the court found that the "taking custody of Saunder's car was a legitimate exercise of the arresting officer's community caretaking function." This conclusion was based, in part, on the finding that "[a]lthough Saunders' vehicle was lawfully parked and presented no apparent hazard to public safety, the officers were aware that a car parked overnight in a mall parking lot runs an appreciable risk of vandalism or theft." Id. (footnote omitted). See also United States v. Davis,882 F.2d 1334, 1339 (8th Cir.1989), cert. denied, 494 U.S. 1027110 S. Ct. 1472108 L. Ed. 2d 610 (1990) ("The car [, which had been stopped in a high crime area,] was both a likely target for vandals and a potential source for subsequent dangerous and illegal activity"); Folly v. State, 28 Ark.App. 98, 771 S.W.2d 306, 311 (1989) (where vehicle would have been left in a motel parking lot, "the likelihood that the vehicle would be vandalized if not taken into protective custody certainly existed").


The appellant's argument was also rejected in Johnson v. State, 553 N.E.2d 477, 479 (Ind.1990):


"Appellant makes the point that the automobile was parked on private property [the parking lot of an apartment building]; thus it should not have been impounded. Such is only true if the vehicle is parked at the home of the person being arrested. Here, ... although the vehicle was on private property, it nevertheless was not property controlled by appellant and impoundment of the vehicle concurrently with appellant's arrest was proper."

The arresting officer testified that before taking the appellant to the police station for a breath test, she asked the appellant "if he had somebody that could come and pick up the car, and he said he didn't know of anybody. He was from Birmingham." She told the appellant that they could not "sit out here and wait for somebody from Birmingham to come. We will have to tow the vehicle. We called the wrecker service and had it towed to the [impound] lot." R. 26. The officer did not *1115 ask the appellant if he wanted to leave his vehicle in the parking lot.


Under Colorado v. Bertine, 479 U.S. 367, 373-76, 107 S. Ct. 738, 742-43, 93 L. Ed. 2d 739 (1987), such an inquiry was not necessary:


"[W]hile giving Bertine an opportunity to make alternative arrangements [other than police impoundment for the safekeeping of his vehicle] would undoubtedly have been possible, we said in [Illinois v.Lafayette [, 462 U.S. 640103 S. Ct. 260577 L. Ed. 2d 65 (1983) ]:

"`[T]he real question is not what "could have been achieved," but whether the Fourth Amendment requires such steps.

"....

"`The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative "less intrusive" means.' Lafayette, 462 U.S. at 647, 103 S.Ct. at 2610 (emphasis in original).

See Cady v. Dombrowski, [413 U.S. 433, 447, 93 S. Ct. 2523, 2530, 37 L. Ed. 2d 706(1973)]; United States v. Martinez-Fuerte, 428 U.S. 543, 557, n. 12, 96 S. Ct. 3074, 3082, n. 12, 49 L. Ed. 2d 1116 (1976). We conclude that here, as in Lafayette, reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.


"Bertine finally argues that the inventory search of his van was unconstitutional because departmental regulations gave the police officers discretion to choose between impounding his van and parking and locking it in a public parking place. The Supreme Court of Colorado did not rely on this argument in reaching its conclusion, and we reject it. Nothing in [South Dakota v.Opperman, [428 U.S. 36496 S. Ct. 309249 L. Ed. 2d 1000 (1976)] or Lafayette prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." (Footnotes omitted.)


See also 3 LaFave § 7.3(c) at 18-19 (Supp. 1992).


Here, as in Bertine, 479 U.S. at 376, 107 S.Ct. at 743, "[t]here was no showing that the police chose to impound ... [the appellant's automobile] in order to investigate suspected criminal activity." Nor was there any showing that the police "acted in bad faith or for the sole purpose of investigation." Bertine, 479 U.S. at 372, 107 S.Ct. at 741.


This Court's opinion in Morton, supra, was written before Bertine was decided. To the extent that Morton holds that a driver must be given an election on whether to have his vehicle impounded or left where parked, it is overruled.


In Morton, 452 So.2d at 1366, this Court observed: "Even assuming proper custody of the defendant, there was no showing that the car was in any greater danger of being damaged than any other locked car left in a private parking lot." In this case, the trial judge indicated that he would take judicial notice, if necessary, of the fact that if a car is stolen in Talladega County, it is usually stolen from "that [particular] car lot." R. 30.


"It is important to recognize that the community caretaking function is `totality divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.' Cady [v. Dombrowski,413 U.S. 433, 441, 93 S. Ct. 2523, 2528, 37 L. Ed. 2d 706(1973)]. Thus, as long as such caretaking activities are warranted `either in terms of state law or sound police procedure,' id. at 447, 93 S.Ct. at 2531, they do not offend the fourth amendment. Consequently, evidence which comes to light during the due execution of the caretaking function is ordinarily admissible at trial. See [United States v.Lott, [870 F.2d 778, 781 (1st Cir.1989)]. Such a result is consistent with the settled rule that searches and seizures made for routine administrative purposes are deemed noninvestigatory and, therefore, outside the warrant requirement and the probable *1116 cause standard. See Colorado v. Bertine,479 U.S. 367, 371, 107 S. Ct. 738, 740, 93 L. Ed. 2d 739(1986); Opperman, 428 U.S. at 370 n. 5, 96 S.Ct. at 3097 n. 5. The imperatives of the fourth amendment are satisfied in connection with the performance of such noninvestigatory duties, including community caretaker tasks, so long as the procedure employed (and its implementation) is reasonable.

"In community caretaking cases, as elsewhere, reasonableness has a protean quality. The term embodies a concept, not a constant. It cannot be usefully refined `in order to evolve some detailed formula for judging cases.' Cady, 413 U.S. at 448, 93 S.Ct. at 2531; accord [United States v.] LaFrance, 879 F.2d [1] at 6 [1st Cir.1989] (`what is reasonable in one type of situation may not be reasonable in [an]other'); cf. Sierra Club v. Secretary of the Army, 820 F.2d 513, 517 (1st Cir.1987) (defining reasonableness as `a mutable cloud, which is always and never the same') (quoting and paraphrasing Ralph Waldo Emerson). In this instance, then, to find whether the removal of defendant's car from the highway to the barracks was within the troopers' community caretaking function, `we are obliged to look to all the facts and circumstances of this case in light of the principles set forth in [prior] decisions.' Opperman, 428 U.S. at 375, 96 S.Ct. at 3100."

United States v. Rodriguez-Morales, 929 F.2d 780, 785 (1st Cir.1991), cert. denied, ___ U.S. ___, 112 S. Ct. 868116 L. Ed. 2d 774 (1992).


We find that the impoundment of the appellant's vehicle was reasonable under the particular circumstances of this case. The judgment of the circuit court is affirmed.


AFFIRMED.


All Judges concur.






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