SEIZING VEHICLES AT DUI CHECKPOINTS – CLARIFICATION
On October 13, 2011 we issued a Client Alert Memo entitled “New Rules Limiting Impounding Cars at DUI Checkpoints.” The Memo deals with new legislation, AB 353, signed by into law by Governor Jerry Brown. It takes effect on 1/1/12.
The fact that the new law applies only to 12500 situations at sobriety checkpoints was again pointed out further on in the Alert.
Although we thought we made it clear as to the focus of the new law, we have been asked to emphasize that the change in the law does not apply to revoked or suspended licenses – it applies only to a 12500 situation, encountered at a sobriety checkpoint.
We also noted in the Alert that the change in the law has no effect if the contact with the unlicensed driver occurs under other circumstances. We stated, “if an officer makes contact with a driver under other circumstances [other than at a sobriety checkpoint], and he/she has never been licensed, there is no obligation to take these steps.” The steps to which we refer involve attempting “to identify the registered owner of the vehicle.”
“Impounded” vs. “Seized”
Another request for clarification deals with our use of the term “impound.” It is our belief that the word may be confused with “30 day impound” but it is used, by us, as a synonym for “seizure.”
The dictionary definitions of the word “impound” include, among others, “seize,” “appropriate,” “take,” “retain something,” and “fence in.”
Vehicle Code 14602.6 refers to impounding for 30 days but first refers to seizing and/or removing a vehicle: “. . . the peace officer may either immediately arrest that person andcause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle without the necessity of arresting the person in accordance with Chapter 10 (commencing with Section 22650) of Division 11. A vehicle so impounded shall be impounded for 30 days.” (Emphasis added.)
The constitutional issue present in these cases involves the seizure of personal property without a warrant – it makes no difference if it’s for 30 days or 30 minutes. If no warrant exists, as required by the 4th Amendment, one of the exceptions to the warrant requirement must be present in order for the government to seize one’s private property.
We are unaware of any section of the Vehicle Code which defines the word “impound.” Some have suggested that it means seizure for an extended period of time. However, we are unaware of such a definition, but we would be grateful to be notified if such a definition exists.
Vehicle Code 14602
Finally, we stated that section “14602 has been modified . . .” which is incorrect; Section 14602 has been added to the Vehicle Code, not modified.
Hopefully these clarifications are of assistance to all of you. We appreciate it when any errors we make are brought to our attention so we can correct them. We are also always willing to clarify something we publish so there is no confusion as to the case decision or statute we’re discussing or our explanation of it.
As always, it is imperative that you receive advice and guidance on legal issues from your agency’s attorney.
If you wish to discuss this matter in greater detail, please feel free to contact me at (714) 446 – 1400 or via e-mail at mjm@jones-mayer.com.
Information on www.jones-mayer.com is for general use and is not legal advice. The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute an attorney-client relationship.