Initial Appearances, Implied Consent Offenses, and Offenses Involving Impaired Driving (Part 2)
This post is a follow-up from last month’s post Initial Appearances, Implied Consent Offenses, and Offenses Involving Impaired Driving Part 1. In Part 1, we discussed the differences and overlaps between implied consent offenses and offenses involving impaired driving, and covered civil license revocations and impaired driver holds. Two more steps that must be covered during initial appearances for implied consent offenses and offenses involving impaired driving are providing the implied consent offense notice and determining whether the person’s motor vehicle must be seized. This post will cover these steps, when they apply, and provide guidance for their implementation.
Implied Consent Offense Notices
As indicated by the name, these notices apply whenever a person has been charged with an implied consent offense, including offenses involving impaired driving (for a refresher on the definitions and overlap of implied consent offenses and offenses involving impaired driving, see Part 1).
After finding probable cause for any implied consent offense, the magistrate must inform the arrested person of the procedure to have others appear at the jail to observe their condition or administer an additional chemical analysis “if the person is unable to make bond.” (G.S. 20-38.4(a)(4)(a)). The magistrate must also give the person the opportunity to list the individuals they would like to contact on a form that contains the procedure for contacting them, a copy of which much be included in the case file. This may be accomplished with AOC-CR-271. The arrested person should also be provided a copy of the form after they complete it when they are given the local procedures for contacting outside witnesses.
The arrested person is not required to list individuals or complete the form. If they do not wish to contact anyone, they may check the corresponding box on the form and return it. If they do not return the form or refuse to participate at all, the magistrate may use another copy of the form to check the box “the defendant failed to return this form at the initial appearance.
Although the statute only requires this notice to be given if the person is unable to make bond, in any circumstance where the arrested person will remain in custody after the initial appearance, the best protection for both the defendant’s rights and making sure to comply with the statute is to provide these notices. This includes circumstances where person has been given a secured bond and plans to post it immediately, or they have been given an unsecured bond and are being held pursuant to an impaired driver hold.
Motor Vehicle Seizures
Motor vehicle seizures are the outlier among the additional steps to take in implied consent offense cases. The magistrate must only consider whether the person’s motor vehicle is subject to seizure pursuant to G.S. 20-28.3 when they have been charged with an offense involving impaired driving, not necessarily any implied consent offense. For example, when a person has only been charged with driving after consuming drugs or alcohol while under 21, then they have been charged with an implied consent offense but not an offense involving impaired driving. As a result, in this circumstance the person’s motor vehicle is not subject to seizure pursuant to G.S. 20-28.3. That said, there are other reasons a person’s motor vehicle may be seized. While this post only focuses on motor vehicle seizures applicable to offenses involving impaired driving, you can read more about other authority to seize and forfeit motor vehicles in the bulletin “The Law of Vehicle Seizure and Forfeiture in North Carolina.”
Back to G.S. 20-28.3: when a person has been charged with an offense involving impaired driving, the motor vehicle is subject to seizure in two circumstances:
- At the time of the offense, the arrested person’s driver’s license was revoked pursuant to an impaired driving license revocation; or
- At the time of the offense, the arrested person was driving without a valid driver’s license and without automobile liability insurance.
This may be accomplished by using AOC-CR-323A (which also has a list of impaired driving license revocations on Side 2). When a person meets these eligibility requirements, law enforcement must seize and impound the motor vehicle. The only exceptions are when the officer determines prior to seizure that the vehicle had been reported stolen and when the officer determines prior to seizure that the vehicle was a rental vehicle, and the driver was not listed as an authorized driver on the rental contract (G.S. 20-28.3(b)). There are no exceptions based on the value or condition of the motor vehicle. If law enforcement determines later that the person’s motor vehicle was subject to seizure, they must appear before a magistrate and seek a seizure and impound order.
Whether the motor vehicle was seized at the time of arrest, or law enforcement is later seeking a seizure and impound order, a magistrate must review the basis for seizure and impoundment. For this review, law enforcement must complete a seizure and impoundment affidavit, from which the magistrate will determine whether the motor vehicle is subject to seizure. If the magistrate determines the motor vehicle is subject to seizure, and it has already been seized, the magistrate only needs to order the vehicle impounded. If the magistrate determines the motor vehicle is subject to seizure and it has not been seized yet, the magistrate must order its seizure and impoundment. Finally, if the magistrate determines the motor vehicle is not subject to seizure, the magistrate must order the vehicle released upon payment of all towing and storage charges (G.S. 20-28.3(n)).
When a motor vehicle has been seized, the underlying case becomes subject to expedited scheduling and restrictions on continuances. To learn more, read Calendaring Offenses Involving Seized Motor Vehicles.
As always, feel free to reach out to me with any questions or comments. I can be reached at elrahal@sog.unc.edu.
