Chapter 10.40
IMPOUNDMENT OF MOTOR VEHICLE – DRIVING UNDER THE INFLUENCE – REFUSAL TO SUBMIT TO CHEMICAL TEST
Sections:
10.40.010 Impoundment and forfeiture of motor vehicle.
10.40.010 Impoundment and forfeiture of motor vehicle.
(a) Definitions. The following words and phrases defined in this section shall have the meanings respectively ascribed to them in this section, except when the context otherwise requires:
(1) “Forfeiture” shall mean the loss of all interest, right and title to a vehicle.
(2) “Innocent owner” shall mean a person who was identified as the owner or co-owner on the registration records of the vehicle at the time of the violation and who neither committed the violation nor knew or should have known that the operator was or would be operating the vehicle in violation of AS 28.35.030 or 28.35.032, or as those statutes are adopted by KMC 10.12.040, or in violation of former KMC 10.40.030 or 10.40.040. A person shall not be considered an innocent owner if that person was identified as owner or co-owner: to secure a loan; to secure payments for the sale of the vehicle to another person; to secure a loan guarantee or other obligation; or to permit the purchase of a vehicle by another. A person who does not freely exercise control and use of a vehicle on a regular basis or a person who has sold a vehicle but remains identified as owner on the registration records is not an innocent owner.
(3) “Lienholder” shall mean a person who at the time of the violation had a valid security interest in the motor vehicle which was being operated.
(4) “Operator” shall mean a person who has actual physical control of a vehicle at the time of a violation.
(5) A violation occurs when a person operates a motor vehicle in violation of AS 28.35.030 or 28.35.032, or as those statutes are adopted by KMC 10.12.040, or in violation of former KMC 10.40.030 or 10.40.040, within five years of a conviction for a previous violation of any of the above statutes or ordinances or of any statute or ordinance of another jurisdiction which contains substantially similar elements, except that the other statute or ordinance may provide for a lower level of alcohol in the person’s blood or breath than imposed under AS 28.35.030 or former KMC 10.40.030 or may provide for a lower level of impairment or intoxication.
(b) Forfeiture. A motor vehicle shall be subject to forfeiture and title shall then become vested in the city following either the operator’s conviction in a criminal proceeding for a violation or a decision of a court in an in rem or any civil procedure that the motor vehicle was operated in violation. The forfeiture provided under this section shall not occur when an owner of said vehicle proves by a preponderance of the evidence that he/she was and remains an innocent owner, and proves that all impoundment fees, towing and storage charges have been paid. The motor vehicle shall be returned to its owner if the owner provides the proof required by this subsection.
(c) Lienholders. When a lienholder proves by a preponderance of the evidence that it obtained its security interest in the motor vehicle for valuable consideration and in good faith without knowledge of the violation, and that it neither knew nor should have known that the operator of the motor vehicle was or would be operating in violation, the lienholder shall at its option receive, within five days from the date the vehicle is forfeited and title vests in the city:
(1) An amount equal to the outstanding balance of its security interest; or
(2) The motor vehicle and title to the motor vehicle; provided, however, that the lienholder pays towing and impoundment fees; and further provided, that if the wholesale value of the motor vehicle as determined by reference to the NADA “Blue Book” exceeds the outstanding balance of the security interest, the lienholder shall also pay such difference to the city.
Prior to forfeiture of any motor vehicle, lienholders shall be given notice of and opportunity to present the evidence described above. The lienholder shall have no right to be paid under subsection (c)(1) of this section if it has not timely filed an answer in the civil in rem forfeiture action, paid towing and impound fees and posted the bond as provided in subsection (d)(3) of this section.
(d) Impoundment. In addition to any other law providing for the impoundment of motor vehicles, a motor vehicle may be impounded pending the filing of and conclusion of the criminal, in rem or other civil procedure for the forfeiture of the vehicle. Not later than 48 hours (excluding Saturdays, Sundays, and city and federal holidays) after a vehicle and its contents have been impounded by the city under this section, the chief of police shall cause notice to be personally delivered or to be mailed to the operator and the owner of record of such vehicle as indicated in the motor vehicle records of the Alaska Department of Public Safety. Failure to timely deliver or mail said notice shall not bar an action to forfeit the vehicle and shall not be grounds for release of the vehicle from impoundment. Notice shall also be given to any lienholder of record as indicated on the motor vehicle records of the Alaska Department of Public Safety and any other persons known by the police department to be lawfully entitled to possession of the vehicle. The notice shall describe the vehicle and its contents, give the date the vehicle was impounded, state the grounds for impoundment, and the location of the place of impoundment. The notice shall also state that a written request for a hearing may be filed with the police department and that the vehicle will be released from impoundment if prior to forfeiture of the motor vehicle the owner, operator or lienholder establishes by a preponderance of the evidence that:
(1) There is no probable cause to believe that the motor vehicle was used in violation;
(2) The provisions of subsection (b) of this section preclude forfeiture of the motor vehicle;
(3) A lienholder has posted bond or other security in an amount equal to the value of the motor vehicle which is conditioned upon the return of the vehicle to the city upon the city’s demand and upon the assurance that the owner and operator of the vehicle will not be given possession or access to the motor vehicle; or
(4) No criminal prosecution or in rem or other civil procedure has been commenced within the appropriate court within 20 days (excluding Saturdays, Sundays and city and federal holidays) of the date of the alleged violation. The notice shall also state that if, prior to forfeiture, a written request for a hearing is filed with the police department along with a statement setting forth the reasons why the owner, operator or lienholder believes the vehicle should be released from impoundment, a hearing will be conducted within 24 hours (excluding Saturdays, Sundays, federal and city holidays) of the police department’s receipt of such request unless the right to a hearing within such 24-hour time period is waived.
The notice shall be given either by personal delivery to the person to be notified or by registered or certified mail, return receipt requested, addressed to the person at his/her address as shown on the motor vehicle records of the Alaska Department of Public Safety. Notice by personal delivery shall be completed upon delivery and notice by mail shall be deemed complete upon the return of the receipt or upon return of the notice as undeliverable, refused or unclaimed. Proof of the giving of notice in either manner may be made by affidavit of the person giving notice by personal delivery or by mail, naming the person to whom the notice was given and specifying the time, place and manner of giving notice.
Upon receipt of a proper and timely request for a hearing, hearing under this section shall be conducted in the manner provided by AS 28.05.131 and 28.05.141 except that all references to the department shall be deemed to refer to the city police department and all reference to the commissioner or other officers of the department shall be deemed to refer to the city manager or his designee. The city manager may appoint hearing officers for the purposes set forth in this section. If upon conclusion of the hearing the hearing officer determines that there is no probable cause to believe that the motor vehicle was used in violation, the motor vehicle will be released to the registered owner without payment of impound or towing costs. If it is determined that the provisions of subsection (d)(2), (3) or (4) of this section preclude forfeiture of the motor vehicle, the vehicle shall be released to the owner, operator or lienholder upon payment of impoundment and towing costs. The decision of the hearing officer shall be final subject to appeal to the superior court under the provisions of Appellate Rule 602.
(e) Proceedings. It is not a defense in any in rem or civil proceeding brought under this section that a criminal proceeding has resulted in an acquittal or a conviction of a lesser offense. The forfeiture provided for under this section shall be in addition to any other penalty imposed by law. Questions of fact or law in any action commenced under this section shall be determined by the court sitting without a jury. Any in rem or court proceeding under this section may be held in abeyance until the conclusion of any pending criminal charges arising from the violation. The owner of any motor vehicle which is forfeited under this section shall transfer to the city title to the motor vehicle.
(f) Release of Vehicle under Agreement. The city may, in lieu of seeking forfeiture, enter into an agreement with the registered owner of the motor vehicle to release the vehicle. Any such agreement shall include:
(1) Agreement that the owner will not operate the motor vehicle until properly licensed and insured;
(2) Agreement that if the owner again uses the motor vehicle in committing a violation, the owner’s interest in the motor vehicle shall, at the city’s option, be forfeited to the city;
(3) Agreement that the owner shall pay all impoundment and towing fees.
(g) Disposition of Forfeited Vehicles. Vehicles which are forfeited under this section shall be disposed of by the city under the procedures for the disposition of surplus city property.
(h) Notice to Owners and Lienholders. For all such cases charged by the Ketchikan police department, the Ketchikan police department shall endeavor to notify the recorded lienholders and owners of any vehicle operated in a first offense under AS 25.35.030 or 28.35.032, or as those statutes are adopted by KMC 10.12.040, or in violation of former KMC 10.40.030 or 10.40.040, that the vehicle will be subject to forfeiture if the first offender commits a violation as defined in this chapter. Under no circumstances, however, shall a failure to receive notice or a failure to give notice under this subsection be a defense in any subsequent forfeiture action. (Ord. 1760 § 47, 2014)