Chapter 9.16 IMPOUND, FORFEITURE AND ABATEMENT OF DELINQUENT OFFENDERS

Chapter 9.16
IMPOUND, FORFEITURE AND ABATEMENT OF DELINQUENT OFFENDERS

Sections:

9.16.010 Impoundment and forfeiture of vehicle.

9.16.020 Failure to return a vehicle that has been released under a vehicle return bond.

9.16.030 Insurance or other security required.

9.16.040 Abatement of vehicles operated by delinquent offenders.

9.16.050 Operating under the influence – Responsibility for costs of emergency response.

Prior legislation: Ord. 09-09.

9.16.010 Impoundment and forfeiture of vehicle.

A. Mandatory Impound – Discretionary Impound.

1. A motor vehicle operated, driven or in the actual physical control of an individual arrested for or charged with an alleged violation of AS 28.15.291, pertaining to driving while license suspended/revoked/cancelled; AS 28.35.030, pertaining to driving while under the influence; AS 28.35.032, refusal to submit to chemical tests; or AS 11.66.110 through 11.66.135, pertaining to soliciting, may be impounded and may be forfeited to the City of Houston in accordance with this section.

2. A motor vehicle operated, driven or in the actual physical control of an individual arrested for or charged with an alleged violation of HMC 9.16.030, pertaining to operating a motor vehicle without the required security in effect at the time of operation, may be impounded through a seizure of the vehicle incident to the citation or arrest, at the discretion of the officer.

B. It shall be presumed a vehicle operated by or driven by or in the actual physical control of an individual arrested for or charged with an alleged violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135, has been so operated by the registered owners thereof or has been operated by another person with the knowledge and consent of the registered owners. A vehicle so operated is declared to be a public nuisance for which the registered owners hold legal responsibility, subject only to the defenses as set forth by law. The purposes of this section and the impoundment and forfeiture provisions of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 include protecting the public, removing public nuisances, deterring driving under the influence, and protecting the public from uninsured motorists.

C. General Provisions.

1. In the case of an alleged violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135, and in addition to the penalties set forth in those sections, the vehicle used in the alleged violation shall be impounded for 30 days if the person driving, operating, or in the actual physical control of the vehicle has not been previously convicted and shall be forfeited to the City of Houston if the person driving, operating, or in the actual physical control of the vehicle has been previously convicted. Impoundment may be accomplished through a seizure of the vehicle incident to an arrest or pursuant to a court order entered in the course of civil or criminal enforcement proceedings. Impoundment through a seizure of the vehicle incident to an arrest is at the discretion of the arresting officer.

2. A case seeking civil impoundment or forfeiture is heard and decided by the Alaska State Court.

3. Upon the request of the City of Houston or a claimant, a civil proceeding seeking impoundment or forfeiture shall be held in abeyance until conclusion of any pending criminal charges arising out of the incident giving rise to the forfeiture or impoundment action under HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135.

4. Upon motion by the City of Houston, if it appears there is reasonable cause for the seizure of a vehicle or for the filing of a complaint for impound or forfeiture, the court shall find:

a. Reasonable cause exists, or any such action was taken under a reasonable good faith belief it was proper;

b. The claimant is not entitled to costs or damages; and

c. The City is not liable to suit or judgment for the seizure, suit or prosecution.

d. A claimant who fails to establish the claimant’s interest is exempt from forfeiture pursuant to subsection (C)(6) of this section shall pay reasonable costs and expenses of the City for the investigation and prosecution of the civil action, including reasonable attorney fees.

5. The civil impoundment or forfeiture of a seized vehicle under this section shall be through a civil action filed in Alaska State Court. The City may not bring an action for impoundment or forfeiture unless the action is brought within six months from the final disposition of the underlying criminal action against the driver operator of the seized vehicle.

6. A claimant of an ownership or security interest in the motor vehicle may avoid impound or avoid forfeiture of the claimant’s interest in the civil action if the claimant establishes, by a preponderance of the evidence:

a. The claimant had a recorded interest in the motor vehicle at the time of the alleged violation or, if the interest was recorded after the alleged violation, the interest was acquired in good faith and not for purposes of avoiding impound or forfeiture;

b. A person other than the claimant was in possession of the vehicle and was responsible for or caused the act resulting in the impound or forfeiture;

c. The claimant did not know and could not reasonably have known the person would operate the vehicle in violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135; and

d. In cases where the City filed a civil action to forfeit a seized vehicle, the claimant took reasonable steps to prevent, as the phrase is defined in subsection (F) of this section, the person charged with violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 from violating HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135.

e. A claimant who is a regulated lien holder meets its burden of proof under this subsection by filing with the court a copy of the vehicle’s certificate of title or other security instrument reflecting the lien, together with an affidavit stating the amount of the lien and stating the claimant is a regulated lien holder and was not in possession of the vehicle at the time of the act resulting in the seizure of the vehicle. The presumptions provided in this subsection shall not apply to regulated lien holders.

f. For purposes of this section, when a person other than the claimant was in possession of the vehicle and was driving with a suspended, revoked, or cancelled license or in violation of a limited license or without a valid driver’s license, it is presumed the claimant did have reasonable cause to believe the vehicle would be used in violation of AS 28.15.191.

g. Also for purposes of this section, when the claimant and driver are not the same person and the claimant and driver have a familial relationship, such as husband and wife, father and daughter, mother and stepson, etc., or the claimant and driver live at the same address, it shall be presumed the claimant is responsible and the vehicle was operated by the driver, in violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135, with knowledge and consent of the claimant.

h. If a claimant was in the vehicle at the same time the vehicle was being operated by the driver in violation of AS 28.35.030 or 28.35.032, it shall be presumed the claimant knew and consented to operation of the vehicle in violation of AS 28.35.030 or 28.35.032.

i. A claimant is not required by this subsection to take steps the person reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the impound or forfeiture) to physical danger.

j. For purposes of this section, corporations and other entities are deemed to have knowledge of the acts, omissions, and driving record of directors, officers and other managers, regardless of whether the directors, officers, or managers are acting within the scope of employment.

7. Within two days of seizure, parties with an interest in the vehicle, including lien holders, as shown on the vehicle ownership records of the State of Alaska, Division of Motor Vehicles, or an agency with similar responsibilities in another state, shall be served with notice of seizure by certified mail sent to the address of record as shown in the vehicle ownership records of the state of Alaska, or an agency with similar responsibility in another state, or residence address as indicated in the police report.

a. For purposes of computing the two-day period, the day the vehicle was seized is not included. For purposed of computing the two-day period, Saturdays, Sundays, and City holidays are not included. This period may be reasonably extended for those instances when vehicle ownership records are not accessible from the State of Alaska, Division of Motor Vehicles, or an agency with similar responsibilities in another state.

b. The notice of seizure shall notify parties of the right to a post-seizure probable cause hearing if such hearing is requested, in writing, within 10 days after the notice of the seizure is mailed, as evidenced by the postmark.

c. If notice is not provided, as required by this subsection, the municipality shall waive the administrative fee.

d. If a registered owner was personally served at the time of impoundment with a notice containing all the information required by this section, no further notice is required to be sent to that registered owner.

e. A notice of seizure that notifies a registered owner who was arrested for, or charged with, an alleged violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 of the right to contest seizure under the Alaska Criminal Rule 37(c) meets the requirement of subsection (C)(7)(b) of this section.

8. The City may enter into an agreement with the registered owner or lien holder of the vehicle to resolve a civil impound or forfeiture action arising under HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 and permit release of the vehicle. Any such agreement shall include:

a. Acceptance by the owner or lien holder of responsibility for meeting the requirements of subsection (C)(9) of this section;

b. Agreement the owner or lien holder shall take reasonable steps to prevent the individual arrested for or charged with driving under the influence or with refusal to submit to chemical tests from operating the vehicle until properly licensed; and

c. Acknowledgment by the owner or lien holder that failure to fulfill the obligations under the agreement may result in forfeiture of the vehicle at the option of the municipality. This requirement shall not apply to a regulated lien holder required by other law or by the terms of the agreement creating the lien to permit the individual to recover the vehicle upon payment of the lien or cure of any default.

9. No vehicle shall be released unless the applicant:

a. Provides proof of insurance in a form acceptable to the City;

b. Provides proof of ownership or, if a lien holder, a legal right to repossess the vehicle; and

c. Pays or provides proof of payment of any costs imposed, including the impound fees, storage fees and any court costs imposed. The impound fee shall be the actual cost of the impound plus an administrative charge to offset the City’s processing costs for seizure of vehicles based on an alleged violation of AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135. Costs are set forth in the City of Houston’s Fee Schedule.

i. The administrative charge may be waived in exceptional cases or if it is in the best interests of the City. The administrative charge shall not be imposed if notice is not provided as required under subsection (C)(7) of this section or the administrative hearing officer finds no probable cause under subsection (C)(13) of this section.

d. An additional administrative charge shall be imposed for seizures of vehicles based on an alleged violation of HMC 9.16.030.

e. Notwithstanding the finding of the administrative hearing officer, if the court makes a specific finding or pursuant to a stipulation between the parties, the seizure of the vehicle was legally unjustified, the vehicle shall be released at no cost if the person seeking to reclaim the vehicle reclaims the vehicle within five days after the issuance of the court’s decision making such a finding.

i. A vehicle ordered released at no charge under this subsection is subject to the provisions of AS 28.10.502 if the vehicle is not reclaimed within five days after the issuance of the court’s decision.

10. An acquittal or a conviction of a lesser offense in a criminal proceeding for a violation of this chapter provides a defense in a civil proceeding seeking impoundment or forfeiture of the vehicle, if that civil proceeding is based on the same conduct that forms the basis for the criminal charge.

11. Temporary Release of Vehicle Pursuant to Vehicle Return Bond.

a. A registered owner or lien holder may obtain a temporary release of a vehicle seized by the City pursuant to this subsection.

b. The purpose of setting a vehicle return bond on the vehicle is to secure the presence of the vehicle and to provide security to be forfeited along with the proceeds of a sale, transfer, or encumbrance if the vehicle is sold, transferred, or encumbered after the vehicle has been released pending the final disposition in the criminal action against the driver of the seized vehicle or the final disposition in the civil action against claimants of the seized vehicle. If the vehicle’s release has been obtained through the posting of a vehicle return bond and the vehicle is not returned pursuant to the court’s order, the City may, in addition to obtaining the forfeited bond funds, seize the vehicle to implement the impoundment or forfeiture ordered by the court. A person who secures the release of a vehicle pursuant to a vehicle return bond must return the vehicle upon order of the court. If a vehicle has not been impounded for a longer period than the vehicle would be impounded if the person were convicted, the court shall not delete the requirement of the vehicle return bond or exonerate a posted vehicle return bond until the vehicle for which bond has been posted is returned pursuant to court order. A vehicle return bond shall be posted with the municipality and in cash only. A vehicle return bond shall be set at a minimum of:

i. Two hundred fifty dollars if the person charged with a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 has not been previously convicted;

ii. Five hundred dollars if the person charged with a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 has been previously convicted and the vehicle is 20 years old or older;

iii. One thousand dollars if the person charged with a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 has been previously convicted and the vehicle is 15 years old or older but less than 20 years old;

iv. One thousand five hundred dollars if the person charged with a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 has been previously convicted and the vehicle is 10 years old or older but less than 15 years old;

v. Two thousand dollars if the person charged with a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 has been previously convicted and the vehicle is five years old or older but less than 10 years old; and

vi. Two thousand five hundred dollars if the person charged with a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 has been previously convicted and the vehicle is less than five years old.

c. A vehicle return bond may be set above the minimum if the vehicle appears to have unusually high value for its age. A vehicle may not be released pursuant to a vehicle return bond unless release is in compliance with subsection (C)(9) of this section.

d. If the person who secured the release of the vehicle does not cause the vehicle to be returned to impoundment for the purpose of impoundment or forfeiture in accordance with an order entered by the court, upon motion of the City, the court shall order all of the vehicle return bond forfeited to the City and shall order the proceeds of any sale, transfer, or encumbrance are forfeited to the City if the vehicle has been sold, transferred, or encumbered while subject to a vehicle return bond. For purposes of this subsection, encumbrance is the assessed or appraised value of the seized vehicle as defined in subsection (F) of this section.

e. Personal property in a vehicle subject to a vehicle return bond under this subsection and not released pursuant to that vehicle return bond can be recovered from a vehicle only by the owner of the vehicle and only upon payment of a fee charged for monitoring the recovery of such personal property. Such fee shall be set by contract between the towing contractor and the City, if it is not established in the fee schedule or by ordinance. Such fee shall be recoverable by the owner of the vehicle if a court makes a specific finding that seizure of the vehicle was legally unjustified or pursuant to a stipulation between the parties.

f. The court shall order the forfeiture of a vehicle return bond if a person charged under HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 obtains temporary release of a seized vehicle and does not appear before the court as ordered.

12. For purposes of this section, time shall be calculated as set forth in Alaska Rule of Civil Procedure 6, unless otherwise stated.

13. When a timely request for a post-seizure probable cause hearing is made, a hearing shall be held before an administrative hearing officer. The hearing shall be held within three days after the request is received, excluding weekends and municipal holidays. The hearing may be postponed upon agreement of the parties.

a. The purpose of the hearing is to determine whether there was probable cause to seize the vehicle. The administrative hearing officer shall not make a final adjudication of impoundment or forfeiture of the vehicle. Findings by the administrative hearing officer shall not collaterally stop the issue of probable cause or any other factual or legal issue from being decided by the court.

b. The post-seizure probable cause hearing shall be by telephone unless otherwise requested by the administrative hearing officer or upon a showing of prejudice to either party.

c. If the law enforcement officer provides a signed police report or affidavit with the name and badge number or other identifying mark of the law enforcement officer to the administrative hearing officer, the law enforcement officer need not be present at the hearing unless requested by the person requesting the hearing or the administrative hearing officer.

i. For purposes of this subsection, the requirements of a signed police report may be satisfied by a police report bearing an officer’s electronic signature.

ii. In the case where the presence of the law enforcement officer is requested, the hearing may be postponed an additional seven days in order to allow the law enforcement officer to be present.

iii. If the law enforcement officer is unavailable because of vacation, sickness, or other similar reason, the hearing may be postponed a reasonable time period in order to accommodate the law enforcement officer’s unavailability.

d. If the person requesting a hearing fails to appear, the person shall waive the right to a hearing.

e. If the administrative hearing officer finds there was no probable cause to seize the vehicle:

i. The vehicle shall be released without municipal administrative fees; and

ii. The registered owner or lien holder may make a claim to the municipality for towing and storage.

14. The burden of proof for an action brought pursuant to this section is preponderance of the evidence.

15. For purposes of this section, the parties may agree to extend, reduce or otherwise alter the time limits set by this section.

16. The owner of a vehicle or the designated agent of the owner of a vehicle that is the subject of an impoundment or forfeiture action may relinquish to the City any ownership interest possessed by the owner as part of an agreement to resolve the action.

17. Nothing in this section shall be construed to place upon a regulated lien holder a duty to inquire into the driving record of any loan applicant or any member of the loan applicant’s family or household, and failure to do so shall not be usable as evidence against the regulated lien holder in any forfeiture proceeding civil action.

18. Upon motion of the City, the court shall void the transfer of title or any interest in a seized vehicle occurring subsequent to the seizure of the vehicle pursuant to this section.

a. If the vehicle is temporarily released pursuant to a vehicle return bond and the transferee is able to establish by a preponderance of the evidence the transferee did not know the City seized the vehicle, the court shall order the transferor to forfeit the proceeds from the sale, transfer, or encumbrance to the City.

b. For purposes of this subsection, it shall be presumed the amount of proceeds for any sale, transfer, or encumbrance is the assessed value of the seized vehicle.

D. Impoundment.

1. A motor vehicle operated, driving, or in the actual physical control of an individual arrested for, or charged with, an alleged violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 may be ordered impounded either upon conviction of the defendant of a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135, or upon the decision of a court in a separate civil proceeding. To obtain an order for impoundment in a contested proceeding, the City must establish by a preponderance of the evidence that the vehicle was operated, driven, or in the actual physical control of an individual who was acting in violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135.

2. A vehicle may be seized for impound under the circumstance set forth in subsection (E)(3) of this section.

3. A vehicle seized incident to an arrest may be held by the City for up to two days before the owner or lien holder may obtain release of the seized vehicle.

a. For purposes of computing the two-day period, the day the vehicle was seized is not included. For purposes of computing the two-day period, Saturdays, Sundays and municipal holidays are not included.

4. A vehicle ordered impound under this section shall be held for a period of 30 days. An impoundment order may be made either upon conviction of the defendant of a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 or upon decision of a court in a separate civil proceeding.

5. Vehicles ordered impounded under this section not claimed at the end of the 30-day, court-ordered period of impoundment may be disposed of pursuant to the provisions of AS 28.10.502.

a. If the contents of the vehicle have not been recovered before such disposal, the contents may be disposed of with the vehicle.

b. Personal property in a vehicle subject to a vehicle return bond under subsection (C)(11) of this section, and not released pursuant to that vehicle return bond may be recovered from a vehicle only by the owner of the vehicle and only upon payment of a fee charged for monitoring the recovery of such personal property.

c. The fee for monitoring the recovery of personal property shall be set by the City of Houston Fee Schedule.

d. The fee for monitoring the recovery of personal property shall be recoverable by the owner of the vehicle if a court makes a specific finding the seizure of the vehicle was legally unjustified or pursuant to a stipulation between the parties.

6. Civil release of the vehicle does not affect or change the criminal proceedings incurred as a result of the violation.

E. Forfeiture.

1. To obtain an order for forfeiture under this section in a contested proceeding, the City must establish by a preponderance of the evidence that:

a. The vehicle was operated, driven or in the actual physical control of an individual who was acting in violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135; and

b. The individual has been previously convicted.

2. A motor vehicle operated, driven or in the actual physical control of an individual arrested or charged with an alleged violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 may be forfeited to the City either upon conviction of the defendant of a violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 or upon decision of a court in a separate civil proceeding.

3. A motor vehicle may be seized and towed to a secure location by a peace officer or a peace officer’s designee upon an order issued by a court having jurisdiction over the motor vehicle upon a showing of probable cause that the motor vehicle may be forfeited or impounded under this section, of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135. Seizure without a court order may be made if:

a. The impoundment is incident to an arrest;

b. The motor vehicle has been ordered impounded or forfeited and that order has not yet been executed; or

c. There is probable cause to believe the motor vehicle was operated, driven or in the actual physical control of an individual in violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135.

d. A vehicle seized incident to an arrest may be held by the municipality for up to two days before the owner or lien holder can obtain release of the seized vehicle.

e. For purposes of computing the two-day period, the day the vehicle was seized is not included. For purposes of computing the two-day period, Saturdays, Sundays, and municipal holidays are not included.

4. A motor vehicle seized for the purpose of forfeiture or impoundment shall be held in the custody of the Police Department or a private corporation authorized by the Chief of Police, or his or her designee, to retain custody of the motor vehicle, subject only to the orders and decrees of the court having jurisdiction over any forfeiture or impoundment proceedings. If a motor vehicle is seized under this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135, the Chief of Police, or authorized designee, may:

a. Remove the motor vehicle and any contents of the motor vehicle to a place designated by the court; or

b. Take custody of the motor vehicle and any contents of the motor vehicle and remove it to an appropriate location for disposition. No private corporation may make or perform a contract to tow, store, or retain custody of motor vehicles seized or impounded under this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 if any owners of that private corporation have been convicted of a felony or any crime involving larceny, theft or receiving and concealing stolen property within 10 years before the date of execution of the contract or during the term of the contract. No private corporation may make or perform a contract to tow, store or retain custody of motor vehicles seized or impounded under this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 if any of the employees of that private corporation have been convicted of a felony or any crime involving larceny, theft, or receiving and concealing stolen property within five years before the date of execution of the contract or during the term of the contract.

5. Following a forfeiture order under this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135, the Chief of Police, or authorized designee, shall make an inventory of the contents of any motor vehicle seized. Personal property in a vehicle subject to a vehicle return bond under subsection (C)(11) of this section and not released pursuant to that vehicle return bond may be recovered from a vehicle only by the owner of the vehicle and only upon payment of a fee charged for monitoring the recovery of such personal property. Such fee shall be set by contract between the towing and storage contractor and the municipality if it is not established by ordinance. Such fee shall be recoverable by the owner of the vehicle if a court makes a specific finding the seizure of the vehicle was legally unjustified or pursuant to a stipulation between the parties.

6. A claimant may petition the court for sale of a motor vehicle before final disposition of court proceedings. The court shall grant a petition for sale upon a finding the sale is in the best interest of the City. Proceeds from the sale plus interest to the date of final disposition of the court proceedings become the subject of the forfeiture action.

7. Property forfeited under this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135; shall be disposed by the Chief of Police, or authorized designee in accordance with this subsection. Property forfeited under this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 includes both the vehicle that is the subject of the forfeiture action and the contents of the vehicle, if those contents have not been recovered before the date of the disposal. The Chief of Police, or authorized designee, may:

a. Sell the property at an auction conducted by an auctioneer not employed by the impound contractor and use the proceeds for payment of all proper expenses of seizure, custody, the costs of the auction, court costs, and City attorney fees, provided if such sale is arranged for by the impound contractor, the City shall receive at least 30 percent of the proceeds of any sale of forfeited vehicles following deduction for the costs charged by the auctioneer for the auction of those vehicles regardless of whether the costs of impound and storage exceed the value of the forfeited vehicles sold;

b. Take custody of the property and use it in the enforcement of the municipal and state criminal codes; or

c. Destroy the property.

d. Property forfeited and sold at auction pursuant to this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 shall be sold by an auctioneer approved before the auction by the Chief of Police, or authorized designee.

i. Before the auction, the Chief of Police, or authorized designee, must approve in advance the auctioneer’s costs or the method for determining the auctioneer’s costs.

ii. The impound contractor shall provide to the Chief of Police, or authorized designee, a copy of the auctioneer’s report of the auction notarized by the auctioneer.

iii. The City Clerk or authorized designee shall certify the proper disposal of property forfeited under this section, HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135.

iv. The Chief of Police may adopt rules and regulations to implement this section.

8. Upon a showing a claimant is entitled to remittance in accordance with this section, the court shall order that:

a. If the claimant is entitled to the motor vehicle, it shall be delivered to the claimant immediately subject to subsection (C)(9) of this section; or

b. If the claimant is entitled to remittance of some value less than the total value of the motor vehicle, the claimant is entitled at the claimant’s choice to receive either the value of the claimant’s interest after the sale of the vehicle at an auction following deduction of the costs of the auction or, upon request and payment of the difference in value by the claimant, the motor vehicle itself.

c. When a vehicle is subject to forfeiture under this section, and when the vehicle is sold and the lien holder interest exceeds the sale price, the owner may be held responsible for the difference and the City’s costs.

9. The storage and impound costs as well as any court costs imposed for vehicles seized under this section shall be borne by the person redeeming such vehicle as owner or in behalf of the owner or as having an interest in the vehicle. The amount of such costs shall be determined as provided in subsection (C)(9) of this section.

10. In a contested forfeiture proceeding concerning a vehicle titled in the names of more than one owner on the certificate of title, the court shall apply this subsection.

a. If one owner does not avoid forfeiture, the court may order the forfeiture of the entire interest of all the owners in a vehicle titled in the names of more than one owner in the disjunctive. Title in the disjunctive is signified by the use of the word “or” between the names of the owners listed on the certificate of title.

b. If such owner does not avoid forfeiture, the court shall order the forfeiture of the interest of any owner in a vehicle titled in the names of more than one owner in the conjunctive. Title in the conjunctive is signified by the use of the word “and” between the names of the owners listed on the certificate of title. Owners of a vehicle titled in the names of more than one owner in the conjunctive are presumed to own the vehicle in equal shares.

c. In circumstances described in this subsection, the court shall order the vehicle be sold at public auction and further order the proceeds from the sale of the vehicle be held by the City Treasurer.

d. After deduction of the reasonable costs of auction, an amount of the proceeds of the auction for the sale of that vehicle which is equal to the interests of the owners whose interests have not been forfeited shall be returned to those owners, if those owners apply to the City Treasurer within 60 days of the auction.

i. If the owners whose interests have not been forfeited do not apply within that period, those funds become the property of the City subject to the rights of any other claimants to those funds.

11. Property subject to the interest of a lien holder whose interest has not been forfeited may not be disposed of as provided in this section without the consent of the lien holder. A regulated lien holder’s interest in a vehicle shall not be subject to forfeiture in any case where:

a. The individual who allegedly used the vehicle in violation of HMC 9.16.030 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 is not the person whose dealings with the lien holder gave rise to the lien; or

b. The vehicle the individual was driving, operating, or was in actual physical control of at the time of the alleged violation was not the vehicle involved in the event giving rise to the conviction.

F. Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

“Administrative hearing officer” means a person designated to conduct post-seizure probable cause hearings.

“Assessed or appraised value of a motor vehicle” means the value set out in the National Automobile Dealers Association Book (NADA) for the same or similar make and model and accessorized motor vehicle. In the event there is no NADA value for a motor vehicle, the value shall be set at a minimum of $500.00.

“Driver” means every person who drives or is in actual physical control of a vehicle.

“Legally unjustified” means there was:

1. No reasonable suspicion for the stop of the vehicle leading to an arrest for soliciting, driving without a valid license, driving under the influence, operating a motor vehicle that is public nuisance under HMC 9.16.040, or operating without the required security based on the individual allegedly operating, driving, or being in actual physical control of the vehicle; or

2. No probable cause for the arrest of an individual for soliciting, driving without a valid license, driving under the influence, operating a motor vehicle that is public nuisance under HMC 9.16.040, or operating without the required security based on the individual allegedly operating, driving, or being in actual physical control of the vehicle.

“Person” means every natural person, firm, corporation, company, partnership, association, organization, business, trust or society.

“Previously convicted” means:

1. If charged with violating AS 28.15.291, having been convicted in this or another jurisdiction of operating a motor vehicle while their license is canceled, suspended or revoked, or in violation of a limitation, under AS 28.15.291 or another law or ordinance with substantially similar elements within 10 years preceding the date of the present offense.

2. If charged with violating either AS 28.35.030 or 28.35.032, having been convicted in this or another jurisdiction of operating a motor vehicle, aircraft, or watercraft while under the influence under AS 28.35.030 or another law or ordinance with substantially similar elements, or of refusal to submit to a chemical test under AS 28.35.032 or another law or ordinance with substantially similar elements.

3. If charged with violating HMC 9.16.030, having been convicted in this or another jurisdiction of operating a motor vehicle without the required security in effect at the time of operation under HMC 9.16.030 or another law or ordinance with substantially similar elements within 10 years preceding the date of the present offense.

4. If charged with violating AS 11.66.110 through 11.66.135 or another law or ordinance with substantially similar elements within 10 years preceding the date of the present offense.

5. Convictions for violation of AS 28.35.030 and 28.35.032 arising out of a single transaction and a single arrest are considered one previous conviction.

“Reasonable steps to prevent” means the claimant has the burden of showing, by a preponderance of the evidence, that:

1. The claimant secured the keys to the vehicle or the vehicle itself in a way that should have prevented the person charged with violating this chapter from obtaining access to the vehicle; or

2. Informed the police, before seizure of the vehicle, the vehicle was being operated in violation of this chapter; or

3. Permitted the person charged with violating this chapter to operate the vehicle only after examining what appeared to be a valid driver’s license; or

4. Expressly prohibited operators of the vehicle, who are not registered owners of the vehicle, from permitting other third parties to operate the vehicle.

“Registered owner” means the owner of the vehicle at the time of offense, as shown in the vehicle ownership records of the State of Alaska, Division of Motor Vehicles or another agency with similar responsibilities in another state, but may include subsequent good faith purchasers.

“Regulated lien holder” means an entity whose lien on the vehicle is a result of lending activities subject to regulation by the National Credit Union Administration, the Comptroller of the Currency or other federal banking regulators, the Federal Trade Commission, or the State Department of Commerce and Economic Development.

“Vehicle” means every device in, upon or by which any person or property is or may be transported or drawn upon a street, except devices moved by human power or used exclusively upon stationary rails or tracks. (Ord. 11-01 § 4, 2011)

9.16.020 Failure to return a vehicle that has been released under a vehicle return bond.

It is unlawful for the person who has secured the release of a vehicle under a vehicle return bond under HMC 9.16.010, 9.16.030, or 9.16.040 or AS 28.15.291, 28.35.030, 28.35.032, or 11.66.110 through 11.66.135 to willfully fail to return that vehicle when ordered by a court. Each day a vehicle is not returned constitutes a separate offense under this section. (Ord. 11-01 § 4, 2011)

9.16.030 Insurance or other security required.

A. The owner or operator of a motor vehicle shall have a current motor vehicle liability policy, or other security that complies with AS Title 28, when operating the vehicle within the City of Houston.

B. A person shall have proof of motor vehicle liability insurance in the person’s immediate possession at all times when driving a motor vehicle, and shall present the proof for inspection upon the demand of a police officer. However, a person charged with violating this section may not be convicted if the person produces in court or in the office of the municipal prosecutor proof of motor vehicle liability insurance previously issued to the person that was valid at the time of the person’s arrest or citation.

C. Upon conviction under subsection (B) of this section, if the person has any interest in the vehicle used in the commission of the offense, the court shall order that:

1. The vehicle be impounded for 30 days if the person has been previously convicted once; and

2. The person’s interest in the vehicle be forfeited to the municipality if the person has been previously convicted two or more times.

At sentencing the court shall order that any vehicle return bond which has been posted to secure the release of the vehicle be forfeited to the City if the vehicle subject to the vehicle return bond is not returned to the custody of the City within five days after the sentencing. At sentencing, the court shall order that any vehicle return bond posted to secure the release of the vehicle be exonerated when the vehicle has been returned to the custody of the City. At sentencing, the court may also order that any proceeds of any sale, transfer, or encumbrance of the vehicle may be forfeited to the City if the vehicle has been sold, transferred, or encumbered while the vehicle has been subject to a vehicle return bond. A vehicle ordered impounded pursuant to this subsection shall not be released until after the person seeking release of the vehicle has provided proof of insurance or an affidavit of insurance, proof of ownership of the vehicle and paid or provided proof of payment of the impound fees and the storage fees. The insurance requirement may be waived by the City if the vehicle is inoperable. Impound fees shall include the actual cost of impound plus an administrative fee to offset the municipality’s processing costs. Any order of impoundment or forfeiture entered under this subsection is subject to the rights of lien holders, owners, lessors, lessees, and co-owners who are not the person convicted of driving without insurance as those rights are adjudicated in civil proceedings under HMC 9.16.010. If the City has brought a civil action under HMC 9.16.010 seeking impoundment or forfeiture as against all those with an interest in the vehicle except the person charged with a violation of this section, that civil action shall provide the sole forum in which lien holders, owners, lessors, lessees, and co-owners who claim an interest in the vehicle but are not the person charged with a violation of this section can seek relief.

D. When a person’s license is canceled, limited, suspended or revoked, that person shall be informed at the time of the action by the State Department of Public Safety or the court that takes the action that, upon a conviction of driving in the City at a time when that person’s driver’s license or privilege to drive has been canceled, suspended or revoked, or upon a conviction of driving in violation of a limitation of the license, that person will be subject to the mandatory minimum sentence of imprisonment provided for the offense.

E. In this section, the term “previously convicted” means having been convicted in this or another jurisdiction, within 10 years preceding the date of the present offense of a violation of this section or another law or ordinance with substantially similar elements.

F. A motor vehicle that is the subject of a vehicle return bond and has not been released pursuant to that vehicle return bond shall be held in the custody of the Police Department or a private corporation authorized by the Chief of Police, or authorized designee, to retain custody of the motor vehicle, subject only to the orders and decrees of any court having jurisdiction over any forfeiture or impoundment proceedings. If a motor vehicle is seized under this section, the Chief of Police or his or her authorized designee may:

1. Remove the motor vehicle and any contents of the motor vehicle to a place designated by the court; or

2. Take custody of the motor vehicle and any contents of the motor vehicle and remove it to an appropriate location for disposition in accordance with law.

G. Before disposing of any vehicle forfeited under this section, the Chief of Police or his or her designee shall make an inventory of the contents of any motor vehicle seized. Property forfeited under this section shall be disposed by the Chief of Police or his or her designee in accordance with this subsection. Property forfeited under this section includes both the vehicle that is the subject of the forfeiture action and the contents of the vehicle if those contents have not been recovered before the date of the disposal. The Chief of Police or his or her designee may:

1. Sell the property at an auction conducted by an auctioneer not employed by the impound contractor and use the proceeds for payment of all proper expenses of seizure, custody, the costs of the auction, court costs, and municipal attorney fees. The City shall receive at least 30 percent of the proceeds of any sale of forfeited vehicles following deduction for the costs charged by the auctioneer for the auction of those vehicles regardless of whether the costs of impound and storage exceed the value of the vehicles sold;

2. Take custody of the property and use it for the benefit of the public; or

3. Destroy the property. (Ord. 11-01 § 4, 2011)

9.16.040 Abatement of vehicles operated by delinquent offenders.

A. Any motor vehicle operated by a person who accumulates delinquent traffic fines totaling more than $1,000 is a public nuisance subject to abatement as provided in this section. The purpose of abatement is to remove motor vehicles operated by repeat traffic offenders who have not been subject to the deterrent and rehabilitative effects of sentencing, and who therefore pose a heightened danger to the public. The purpose of abatement is not to generate revenue.

B. Definitions. The following words, terms and phrases, when used in this section, shall have the meanings ascribed to them in this subsection, except where the context clearly indicates a different meaning:

“Arrest” means traffic stops by a peace officer for the purpose of issuing a citation and detentions based upon reasonable suspicion of criminal activity.

“Delinquent traffic fine” means an unpaid traffic fine referred to the City for collection by the Alaska Court System.

“Traffic fine” means a fine issued by the City for a moving violation. Traffic fine does not include fines for parking violations.

C. A motor vehicle that is a public nuisance may be abated through seizure by order of the court upon a showing of probable cause the motor vehicle was operated in violation of subsection (A) of this section. Abatement without a court order may be made if seizure is incident to an arrest and there is probable cause to believe the motor vehicle was operated in violation of subsection (A) of this section.

D. A vehicle seized under subsection (C) of this section may be held by the City for up to two days before the registered owner or lien holder may obtain release of the seized vehicle. For purposes of computing the two-day period, the day the vehicle is seized is not included and Saturdays, Sundays, and City holidays are not included.

E. Notice of seizure shall be provided as set forth in HMC 9.16.010(C)(7).

F. A post-seizure probable cause hearing shall be provided as set forth in HMC 9.16.010(C)(13) unless seizure is pursuant to court order.

G. If the registered owner or lien holder was not the person operating the motor vehicle in violation of this section, the registered owner or lien holder may obtain release of the motor vehicle upon:

1. Agreement the registered owner or lien holder shall take reasonable steps to prevent the operation of the motor vehicle in violation of this section;

2. Proof of insurance of the motor vehicle in a form acceptable to the City;

3. Proof of ownership or a legal right to repossess the vehicle; and

4. Payment of an administrative fee, towing and storage fees, and any court costs imposed.

H. If the registered owner or lien holder was the person operating the motor vehicle in violation of this section, the registered owner or lien holder may obtain release of the motor vehicle upon:

1. Complete payment of all delinquent traffic fines;

2. Proof of insurance of the motor vehicle in a form acceptable to the City;

3. Proof of ownership or a legal right to repossess the vehicle; and

4. Payment of an administrative fee, towing and storage fees, and any court costs imposed.

I. A motor vehicle seized under this section may be forfeited to the City upon order of the court. The City may not bring an action for forfeiture unless the action is brought within six months from the date of seizure of the vehicle.

1. To obtain an order for forfeiture the municipality must establish by a preponderance of the evidence the motor vehicle was operated in violation of this section.

2. A registered owner or lien holder may avoid forfeiture and obtain release of the motor vehicle without fees or costs after showing by a preponderance of the evidence the motor vehicle was legally unjustified as defined under HMC 9.16.010(F).

3. If the registered owner or lien holder fails to show the motor vehicle was legally unjustified, the court shall order the motor vehicle forfeited to the City, if the motor vehicle is not retrieved under subsection (G) or (H) of this section, as applicable, within five days of the order.

4. A registered owner or lien holder may, after the commencement of an action under this section, retrieve the motor vehicle under subsection (G) or (H) of this section, as applicable.

J. A registered owner may obtain temporary release of a vehicle upon:

1. Proof of insurance of the motor vehicle in a form acceptable to the City.

2. Proof of ownership or a legal right to repossess the vehicle.

3. Payment of an administrative fee, towing and storage fees and post in cash a vehicle return bond in the amount of $1,000.

4. The vehicle return bond shall be returned to a registered owner or lien holder who was not operating a motor vehicle in violation of this section but fails to show the motor vehicle was legally unjustified under subsection (I) of this section only if the registered owner complies with subsection (G)(1) of this section.

5. The vehicle return bond shall be forfeited to the City if a registered owner or lien holder who was operating a motor vehicle in violation of this section fails to show the motor vehicle was legally unjustified under subsection (I) of this section and the registered owner or lien holder fails to return the vehicle to the municipality upon order of the court. The court shall, upon notification by the City, also order seizure of the vehicle.

K. A motor vehicle forfeited under subsection (I) of this section may be disposed of as set forth in HMC 9.16.010(E)(7).

L. Proof a registered owner or lien holder did not know or could not reasonably have known the vehicle was operated in violation of this section is not a defense to the requirements of release under subsection (G) or (H) of this section, as applicable, or to an action under subsection (I) of this section.

M. The administrative fee under subsection (G) or (H) of this section, as applicable, may be waived in exceptional cases or if it is in the best interests of the municipality. The administrative fee shall not be imposed if notice is not provided as required under subsection (E) of this section or the administrative hearing officer finds no probable cause under subsection (F) of this section. (Ord. 11-01 § 4, 2011)

9.16.050 Operating under the influence – Responsibility for costs of emergency response.

A. If the acts for which a person is convicted under AS 28.35.030 contribute to a motor vehicle accident, the court shall order the person to pay the reasonable costs of any emergency services responding to the accident, if the convicted or the convicted person’s insurer has not already paid the cost of the emergency services.

B. If payment is required under this section, the payment shall be made directly to the emergency services and shall be equal to the actual cost of the responding to the accident or the previous year’s annual average cost of responding to a motor vehicle accident, whichever is higher.

C. In this section, emergency services include peace officers, Fire Department services, ambulance services, emergency medical technicians, and emergency trauma technicians. (Ord. 11-01 § 4, 2011)