Vehicle Impoundment After A DUI Arrest in Virginia
January 22, 2017 by Jean Humbrecht
Vehicle impoundment after a DUI arrest in Virginia can occur if the vehicle is not legally parked or if the driver’s license was suspended or revoked at the time of the offense.
Va. Code §19.2-80.1 provides that when a driver is arrested, he can select a licensed driver who is present at the scene to move his vehicle to a place of his choosing. If there is no one present or the driver does not designate someone to drive his vehicle, the police officer can move the vehicle to the nearest appropriate location for safekeeping (Va. Code §19.2-80.1).
Additionally, when a driver is arrested for a DUI and at the time of the offense his driver’s license was suspended or revoked, the officer must impound the vehicle the offender was driving (Va. Code §46.2-301.1). This period of impoundment generally lasts for 30 days.
Process for Vehicle Impoundment After A DUI Arrest in Virginia
Vehicle impoundment after a DUI arrest in Virginia can occur if the driver had a suspended license at the time of the offense. The vehicle will be impounded by the police officer when the driver is arrested for driving without an operator’s license or driving on a suspended or revoked license.
The arresting officer will serve notice on the driver of the impoundment and his right to petition the court to review the impoundment and release the vehicle. If the vehicle is being rented or leased, the car will not be impounded and the leasing or rental company will be notified and has the right to pick up the vehicle.
The clerk of court in which the charge is pending will notify the driver 5 days before the period of impoundment is set to expire regarding the location of the vehicle and how and when it will be released from impoundment. The driver is responsible for the costs of the impoundment.
When Can the Police Impound An Arrested Driver’s Vehicle?
After being arrested for a DUI in Virginia, the driver’s vehicle may be impounded if, at the time of the arrest, his driver’s license was suspended or revoked for a conviction for:
- DUI Maiming (Va. Code §18.2-51.4), Driving on Revoked License-DUI Related (Va. Code §18.2-272), DUI (Va. Code §18.2-266), or Driving a Commercial Vehicle Under the Influence (Va. Code §46.2-341.24)
- Driving after being declared a Habitual Offender (when the adjudication was based on alcohol-related offenses)
- Driving after his license was administratively suspended for a DUI arrest or refusal (Va. Code §46.2-391.2)
- Driving after his license was revoked for unreasonable breath or blood test refusal (Va. Code §18.2-268.3, Va. Code §46.2-341.26:3)
- Driving without an operator’s license after having been previously convicted of driving without an operators license (Va. Code §46.2-300)
How Long is the Period of Vehicle Impoundment After a DUI Arrest in Virginia?
After a driver is arrested for a DUI in Virginia and his vehicle was impounded due to his license being suspended or revoked, his vehicle will be impounded for 30 days. However, he can petition the court for early release of the vehicle.
Appealing Vehicle Impoundment After A Dui Arrest in Virginia
If the driver owns the vehicle, he can petition the court for release of the vehicle before the 30 day impoundment period is over. Any of the court’s findings regarding the petition for release from impoundment are without prejudice to the defendant or any interested party and will not be used in any future civil or criminal proceeding.
The driver must prove either:
- there was no probable cause for arrest, or
- there will be a substantial hardship on his immediately family if the vehicle is not released from impoundment.
No Probable Cause for Arrest: If the court finds that there was no probable cause for the arrest, the vehicle will be returned to the driver and the Commonwealth must pay the impound fees.
Substantial Hardship to Family: The vehicle can also be released if the driver proves by a preponderance of the evidence that his immediate family has only one vehicle and will suffer substantial hardship if the vehicle is impounded for 30 days. The judge has discretion to order release of the vehicle prior to the 30 day impoundment period if he finds that the family will suffer substantial hardship.
What If the Driver was Using Another Persons’s Vehicle?
If the arrested driver did not own the vehicle, the vehicle will still be impounded. However, the owner or co-owner of the vehicle (who was not the driver at the time of the offense leading to the impoundment) can petition the court for release of the vehicle. The vehicle will be released from impoundment if the vehicle owner proves by a preponderance of the evidence that:
- he did not know the driver’s license was suspended or revoked when he allowed the driver to use his vehicle
- he did not know the driver had no operator’s license and had previously been convicted of driving without a valid operator’s license (Va. Code §46.2-300) when he allowed the driver to use his vehicle
- he did not allow the driver to use his vehicle.
If the person petitioning for the release of the vehicle from impoundment fails to appear in court, whether it is the driver or another person who owns the vehicle, his right to review has been waived.
Effect of Dismissal/Finding of Not Guilty
If the driver is found not guilty of the suspended or revoked license charge that caused his vehicle to be impounded, or the charge is dismissed, the vehicle will be released from impoundment and the Commonwealth must pay the impound fees. If this occurs past the 30 day impoundment period and the car has already been released, the Commonwealth must reimburse the driver for the costs of the impoundment.
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