There are two new forfeiture statutes in the Tennessee Code which became effective January 1 of this year. Both are related to the offense of Driving Under the Influence and can result in the offender’s vehicle being seized by state or local law enforcement officials. We have already fielded several questions regarding the process of seizing vehicles under these new laws and therefore felt this material may be of interest to many counties.
Authorization for Seizures
Public Chapters 910 and 959 of 1996 amended Tennessee Code Annotated Sections 55-10-403 and 55-50-504 to authorize two new circumstances which could result in the forfeiture of a vehicle.
Under TCA § 55-10-403(k), a vehicle used in a second or subsequent DUI violation is subject to seizure and forfeiture. To be eligible for seizure, the vehicle must be used in a DUI offense that occurred in the state of Tennessee, which was at least the second DUI offense by the driver since January 1, 1997, and which occurred within five years of the first offense after January 1, 1997. Only P.O.S.T.-certified or state commissioned law enforcement officers are authorized to make these seizures.
Under TCA § 55-50-504(h), a vehicle driven by someone whose license has been canceled, suspended, or revoked because of a DUI can also be subject to seizure and forfeiture.
These statutes both indicate that forfeitures made pursuant to these laws are to be processed in accordance with Title 40, Chapter 33, Part 2 of the Tennessee Code with the Department of Safety acting as the designated agency for the purposes of any administrative hearings.
The Process of Seizing and Forfeiting the Vehicle
I’ve attempted to summarize the important steps in the process in the outline that follows. Before implementing any procedures or making decisions regarding these forfeitures, consult the actual text of the law. It can be found in T.C.A. §§ 40-33-201 through 40-33-213.
Step One - Seizure
When the officer seizes the vehicle, he or she must prepare a receipt (called a Notice of Property Seizure & Forfeiture of Conveyance Form) on a form provided by the Department of Safety. The officer is to make reasonable efforts to determine the owner or owners of the vehicle and notify them of the seizure. The Notice of Seizure is given to the person in possession of the property. The information that should be included in the notice is outlined in T.C.A. § 40-33-203(c).
Step Two - Warrant
Once the vehicle has been seized, no further action to forfeit the vehicle can take place until a judge (who is authorized to issue a search warrant) determines that a forfeiture warrant should be issued. The officer who made the seizure must apply for a forfeiture warrant within five working days after the vehicle was seized. Application for the warrant is made by filing an affidavit, with the information called for by T.C.A. § 40-33-204(b), with the judge. As I understand it, the Department of Safety has a standard form for this affidavit as well.
If the judge issues the warrant, the officer sends the warrant, a copy of the affidavit and the notice of seizure to the Department of Safety within seven working days. The county continues to hold the seized property. The Department of Safety is instructed to notify owners of the property.
If the judge does not issue the warrant, and the property is not needed for evidence in a criminal proceeding, the law enforcement agency shall immediately return the vehicle to the owner, as determined from the title or registration records, or if the owner cannot be determined, to the person in possession when the vehicle was seized.
Step Three - Claims
Secured parties and any other persons asserting a claim to the property may file a written claim with the Department of Safety within thirty days after being notified by the department that the forfeiture warrant was issued. Within thirty days after receiving any claim, the Department of Safety is to set a date for a hearing. [Note: this does not mean that the hearing must occur within thirty days, just that a date for a hearing must be set within thirty days.]
Step Four - Hearing and Sale
If a claim is made, the Department of Safety is to hold a hearing to determine whether the vehicle should be forfeited. Once the department determines the vehicle may be forfeited (either after a hearing or without a hearing if no claim is made for the property), it will direct the local law enforcement agency to sell the vehicle. This notice comes in the form of a Order of Delegation and Forfeiture. After receiving the order, the sheriff conducts an auction. An owner whose property is seized after being charged with or arrested for any felony is ineligible to purchase the property at the sale.
Step Five - Disposition of Revenues
After selling the vehicle, fifteen percent of the revenue is kept by the local government that made the seizure to compensate the government for the expenses involved in the confiscation, storage, and sale of the forfeited vehicle. The remaining eighty-five percent is transmitted to the state treasurer within thirty days after the sale. The treasurer deposits the money into a special fund known as the “alcohol and drug addiction treatment fund.” [Note: prior to January 1, 1997, the revenues from vehicles seized by a local government under T.C.A. § 55-10-403(k) went to a fund for use in the county’s drug enforcement or education program.]
Concerns for Local Governments
As may have occurred to you while reading this outline, the county may be in possession of these vehicles for a long time (potentially, several months) while waiting to see whether or not they will be forfeited. In most places, storage costs for keeping these vehicles with a private garage or towing service will rapidly exceed the fifteen percent of the vehicle’s sale price which is set aside to cover these costs. The Department of Safety is aware of this problem. It is possible that this problem may be corrected by the legislature during the 1997 session. House Bill 1849 by Representative Curtiss proposes to increase the share of the revenues kept by the county from 15% to 40% for certain of these seizures. However, until the law changes, you should be aware that the county may not be fully reimbursed for all the costs involved in seizing and forfeiting these vehicles.
Keep in mind that the law is not mandatory and therefore does not require an officer to seize every vehicle used in committing an offense under these statutes. Sheriffs should instruct their officers to use discretion in deciding whether or not to seize a vehicle.
Some counties have asked whether the county is required to pay the costs of towing and storing the vehicle. Technically, it is not. But as a practical matter, most garages or towing companies will not accept a vehicle seized for forfeiture unless the county agrees to be liable for the storage costs. The garage or storage lot will know that the vehicle owner will most likely not pay for the costs of towing and storing a vehicle that is probably going to be forfeited in a short time. Nothing in the statutes indicates that the owner (or any other party) is automatically liable for towing and storage costs. In the forfeiture hearing, the costs of storage can be adjudged as part of the costs of the proceeding; but that is up to the discretion of the person conducting the administrative hearing.
Impound Lots and Accounting Procedures
Several counties have expressed an interest in setting up their own impound lot. This alternative may be cheaper than using private storage companies; however, it is not a perfect solution. The county could become liable for any damages due to vandalism, theft or accidents that occur to the vehicle while in its possession. Remember, some of these vehicles may not end up being forfeited. They may be returned to the owner or a secured party. Before setting up your own impound lot, you should consider how secure the vehicles will be and whether your current insurance policies will provide protection from liability.
Bradley County has set up an impound lot and has established an excellent record-keeping system for accounting for these vehicles. If your county decides to set up its own lot, be certain you adopt similar measures to insure you can not only account for the vehicles, but also for their condition and any property inside the vehicles. There are copies of three forms included in this Spotlight which are examples of the type of paperwork kept by Bradley County.
The first is a Vehicle Seizure Checklist to be completed by the officer seizing the vehicle. As you will note, it requires the officer to keep all records and receipts from towing companies as well as a photograph showing the condition of the vehicle at the time of seizure.
The second form is an Access/Egress Form completed by an officer or employee in charge of the impound lot. This form records all the information on a vehicle at the time the lot receives it and notes the authority for releasing the vehicle once its disposition is determined. It can also be used to track towing and storage fees for the vehicle.
The third form is a sample page from an impound lot inventory log book. It is important to keep these records accurate for audit purposes.
NOTE: Make absolutely certain the vehicle identification number is correct on any and all paperwork regarding these vehicles. Failure to record the correct number and report it consistently on all paperwork regarding the vehicle can cause great difficulty and delay in dealing with the Department of Safety.
(Thanks to Gary Hayes for visiting the Bradley County Impound Lot and providing the sample forms enclosed.)