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2005 SESSION
Be it enacted by the General Assembly of Virginia:
1. That § 46.2-301.1 of the Code of Virginia is amended and reenacted as follows:
§ 46.2-301.1. Administrative impoundment of motor vehicle for certain driving while license suspended or revoked offenses; judicial impoundment upon conviction; penalty for permitting violation with one's vehicle.
A. The motor vehicle being driven by any person (i) whose
driver's license, learner's permit or privilege to drive a motor vehicle has
been suspended or revoked for a violation of § 18.2-51.4 or driving while under
the influence in violation of §§ 18.2-266, 46.2-341.24 or a
substantially similar ordinance or law in any other jurisdiction,;
(ii) driving after adjudication as an habitual offender, where such
adjudication was based in whole or in part on an alcohol-related offense, or
where such person's license has been administratively suspended under the
provisions of § 46.2-391.2,; or (iii) driving after such person's
driver's license, learner's permit or privilege to drive a motor vehicle has
been suspended or revoked for unreasonable refusal of tests in violation of §§
18.2-268.3, 46.2-341.26:3 or a substantially similar ordinance or law in any
other jurisdiction, shall be impounded or immobilized by the arresting
law-enforcement officer at the time the person is arrested for driving after
his driver's license, learner's permit or privilege to drive has been so
revoked or suspended. The impoundment or immobilization shall be for a period
of thirty 30 days.
The arresting officer, acting on behalf of the Commonwealth,
shall serve notice of the impoundment upon the arrested person. The notice
shall include information on the person's right to petition for review of the
impoundment pursuant to subsection B. A copy of the notice of impoundment shall
be delivered to the magistrate and thereafter promptly forwarded to the clerk
of the general district court of the jurisdiction where the arrest was made
and to the Commissioner. Transmission of the notice may be by electronic
means.
At least five days prior to the expiration of the period of impoundment imposed pursuant to this section or § 46.2-301, the clerk shall provide the offender with information on the location of the motor vehicle and how and when the vehicle will be released.
All reasonable costs of impoundment or immobilization,
including removal and storage expenses, shall be paid by the offender prior to
the release of his motor vehicle. Notwithstanding the above, where the
arresting law-enforcement officer discovers that the vehicle was being rented
or leased from a vehicle renting or leasing company, the officer shall not
impound the vehicle or continue the impoundment but shall notify the rental or
leasing company that the vehicle is available for pickup and shall notify the
clerk and the Commissioner if they have if the clerk has previously
been notified of the impoundment.
B. Any driver who is the owner of the motor vehicle that is impounded or immobilized under subsection A may, during the period of the impoundment, petition the general district court of the jurisdiction in which the arrest was made to review that impoundment. The court shall review the impoundment within the same time period as the court hears an appeal from an order denying bail or fixing terms of bail or terms of recognizance, giving this matter precedence over all other matters on its docket. If the person proves to the court by a preponderance of the evidence that the arresting law-enforcement officer did not have probable cause for the arrest, or that the magistrate did not have probable cause to issue the warrant, the court shall rescind the impoundment. Upon rescission, the motor vehicle shall be released and the Commonwealth shall pay or reimburse the person for all reasonable costs of impoundment or immobilization, including removal or storage costs paid or incurred by him. Otherwise, the court shall affirm the impoundment. If the person requesting the review fails to appear without just cause, his right to review shall be waived.
The court's findings are without prejudice to the person contesting the impoundment or to any other potential party as to any proceedings, civil or criminal, and shall not be evidence in any proceedings, civil or criminal.
C. The owner or co-owner of any motor vehicle impounded or
immobilized under subsection A who was not the driver at the time of the
violation, may petition the general district court in the jurisdiction where
the violation occurred for the release of his motor vehicle. The motor vehicle
shall be released if the owner or co-owner proves by a preponderance of the
evidence that he (i) did not know that the offender's driver's license was
suspended or revoked when he authorized the offender to drive such motor
vehicle or (ii) did not consent to the operation of the motor vehicle by the
offender. If the owner proves by a preponderance of the evidence that his
immediate family has only one motor vehicle and will suffer a substantial
hardship if that motor vehicle is impounded or immobilized for thirty
30 days, the court, in its discretion, may release the vehicle after some
period of less than thirty 30 days.
D. Notwithstanding any provision of this section, a subsequent dismissal or acquittal of the charge of driving on a suspended or revoked license shall result in an immediate rescission of the impoundment or immobilization provided in subsection A. Upon rescission, the motor vehicle shall be released and the Commonwealth shall pay or reimburse the person for all reasonable costs of impoundment or immobilization, including removal or storage costs, incurred or paid by him.
E. Any person who knowingly authorizes the operation of a motor vehicle by a person he knows has had his driver's license, learner's permit or privilege to drive a motor vehicle suspended or revoked for any of the reasons set forth in subsection A, shall be guilty of a Class 1 misdemeanor.
F. Notwithstanding the provisions of this section or § 46.2-301, nothing in this section shall impede or infringe upon a valid lienholder's rights to cure a default under an existing security agreement. Furthermore, such lienholder shall not be liable for any cost of impoundment or immobilization, including removal or storage expenses which may accrue pursuant to the provisions of this section or § 46.2-301. In the event a lienholder repossesses or removes a vehicle from storage pursuant to an existing security agreement, the Commonwealth shall pay all reasonable costs of impoundment or immobilization, including removal and storage expenses, to any person or entity providing such services to the Commonwealth, except to the extent such costs or expenses have already been paid by the offender to such person or entity. Such payment shall be made within seven calendar days after a request is made by such person or entity to the Commonwealth for payment. Nothing herein, however, shall relieve the offender from liability to the Commonwealth for reimbursement or payment of all such reasonable costs and expenses.