Dude, Where’s My Car?

Sometimes when an individual is charged with DWI their vehicle is seized incident to their arrest.  North Carolina’s General Assembly has attempted to protect defendants’ due process rights in these type of cases by enacting a relatively unknown “Trial Priority” subsection (“TP Section”) in the Vehicle Forfeiture Statute. See N.C.G.S.A §20-28.3(m).

Vehicle forfeiture cases are relatively rare, so the provision usually goes unenforced.  I only know of two cases in our county in which the defense attorney attempted to enforce this provision.  The first to successfully do it, to my knowledge, was Corey Rosensteel of Rosensteel Fleishman, PLLC (http://www.rflaw.net/charlotte-nc-attorney/traffic-attorney-charlotte/) who was kind enough to collaborate with our office in making our recent motion to enforce the provision.  Because of the Statute’s nuanced nature, I thought it would be helpful to provide a brief overview, as well as, a few tips for defense attorneys who attempt to enforce it.

The first part of the TP Section requires that trials for cases involving vehicle forfeitures be held at the arresting officer’s next court date or within 30 days, whichever comes earlier. See N.C.G.S.A §20-28.3(m). The second part of the Statute forbids a continuance of the case unless there is a written motion, a finding of a compelling reason by the court, and that written motion and finding are attached to the court file. See N.C.G.S.A §20-28.3(m). 

Despite having nearly unbridled discretion in the calendaring of criminal cases, the State rarely schedules a court date within 30 days of the date of arrest; so if you have a case involving vehicle forfeiture, chances are you have a violation of the Trial Priority Statute.  The TP Section doesn’t have a waiver or “use-it-or-lose-it” provision. See N.C.G.S.A §20-28.3(m). However, it can be tough to argue that a defendant should get the benefit of a timeliness-based statute two or three court dates down the road, so it is important that the motion to enforce it be raised at the first court setting.

The more confounding portion of the TP Section is that it doesn’t provide for a remedy when the Statute is violated. See N.C.G.S.A §20-28.3(m).  The two seemingly natural options would be return of the vehicle or dismissal of the underlying criminal charges; the State will typically argue for the former.  There are several problems with the State’s proposed remedy: 1) the defendant has already been deprived of use of the vehicle without a hearing for an extended amount of time; 2) the court is not permitted, under the Vehicle Forfeiture Statute, to waive storage and towing fees, so the defendant will get their vehicle back with a huge bill attached (often times the defendant’s vehicle will be sold if the ongoing storage fees can’t be paid) See N.C.G.S.A §20-28.3(l); and 3) giving the vehicle back doesn’t discourage the State from violating the TP Statute in the future; 4) the Vehicle Forfeiture Statute already has a vehicle retrieval procedure, so the General Assembly wouldn’t have needed to enact TP Section if the intended remedy was return of the vehicle. See N.C.G.S.A 20-28.2(e). 

The effective defense attorney will focus on the General Assembly’s intent to protect defendants’ due process rights, and should have some persuasive case law ready from other jurisdictions interpreting statutes similar to the TP Section.

For more information about vehicle forfeitures and DWIs, contact Corey V. Parton at Parton & Associates, PLLC.

Written by Corey V. Parton.

​Researched by Megan White, Third Year Law Student

Thank you to Corey Rosensteel at Rosensteel Fleishman, PLLC for his contribution to this article.