Councilmember Licata left office on January 1, 2016.
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Urban Politics #180: The Impound Law

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By City Councilmember Nick Licata.

With assistance from my L.A. Lisa Herbold

Urban Politics (UP) blends my insights and information on current public policy developments and personal experiences with the intent of helping citizens shape Seattle’s future.


The Impound Law

In 1998 the City Council enacted into law Ordinance 119180 otherwise known as Operation Impound. Operation Impound provides for the towing of the cars driven by people accused of having a suspended license as well as drivers of vehicles with more than four parking tickets. It prohibits the release of those vehicles until all fines are paid during which storage fees compound daily and creates a mandatory hold period for some owners of up to 90 days.

Until now, however, Operation Impound has not addressed people charged with DUI, unquestionably a driving offense posing a greater traffic safety hazard than driving with a suspended license.

Changing The Impound Law

The bill that I, and a majority of my colleagues on the Council, support to reform this program makes the following changes:

1. Seattle police would not have the option of impounding vehicles driven by people accused of DWLS-3, but may impound vehicles in DWLS-1 or -2 cases if the offending driver is the vehicle’s registered owner. People accused of DWLS-3 are those who, when proven guilty, in most cases have done nothing more than fail to pay a fine associated with a traffic infraction. DWLS-1 and DWLS-2 drivers are drivers who drive recklessly, have a history of a bad driving record, or have been suspended because of a DUI.

2. The bill also would change current law to allow a driver whose vehicle has been impounded to regain that vehicle once all fines and penalties owed to Seattle have been paid, even if the driver still owes money to other jurisdictions, many of which do not provide drivers with time payment options on large fines

3. Finally, the bill would, for the first time, allow Seattle Police to impound vehicles for drivers charged with driving while intoxicated.

Why Council Supports These Changes

In my Public Safety, Civil Rights and Arts Committee Meeting of May 18th, the Following Council Members voted with me to change the Impound Ordinance: Jean Godden, Peter Steinbrueck, David Della, Richard McIver, Tom Rasmussen.

Councilmembers Jan Drago, Jim Compton and Richard Conlin were not present at the Committee meeting and have not taken a public position on this legislation.

The Full Council should vote this Monday on the ordinance.

I believe that there are five primary reasons why my colleagues on the Council support these changes. They are as follows:

1. Current Policy Fails to Separate the Innocent From the Guilty

Driving While License Suspended (DWLS) is a misdemeanor crime that people are innocent of until proven guilty in a court of law. There are a number of defenses that someone accused of DWLS can offer in a court of law that may result in the acquittal of the person charged. An officer who pulls a driver over and sees by checking the Department of Licensing records that the driver is accused of DWLS cannot determine guilt or innocence at the side of the road. Nearly 15,000 thousand cars have been impounded since 1998, and one third of those cars were auctioned, all without any determination of guilt for the underlying DWLS charge. When car owners later challenge the seizure of their cars, the City is on the hood for the value of improperly impounded and auctioned vehicles. This is the costly risk the City runs with a roadside justice approach.

2. Safe Roads are a Red Herring

Operation Impound was passed in 1998 to improve road safety and reduce the rate of jail bookings for driving while license suspended (DWLS). Proponents relied upon California and Ohio studies that show that impound programs significantly improve road safety.

Since Operation Impound was enacted we have found that the Ohio study often cited by the proponents of Seattle’s law only evaluated the results of impounding the cars driven by people with licenses suspend for drunk driving. It certainly is common sense that impounding the cars of people who are driving with licenses suspended for drunk driving would make the roads safer, but Seattle’s law impounds the vehicles of people who have suspended licenses for non-payment of moving violations. There are no studies that show that a person who has failed to pay a ticket for a broken taillight is more likely to get in an accident. The bill most Councilmembers support would allow impoundment of people arrested for DUI, a group more comparable to those studied in Ohio.

Similarly, references to the California study compare apples and oranges. California state statute mandates time payment programs for drivers who can not afford to pay their tickets and California state law requires that courts adjust traffic fines to a driver’s income. Consequently in California a very small percentage of drivers have suspended licenses due to unpaid tickets as compared to this state. Most cars being impounded in California do not belong to people who are driving with suspended licenses due to unpaid tickets, but are people who have their licenses suspended because they have committed offenses such as DWI, DUI, reckless driving, and hit and run. Here, in contrast, close to 90% of all impoundments have involved drivers allegedly suspended because of unpaid fines.

The conclusions that we can reach by studying the effect of the California and Ohio laws on road safety simply do not apply to Seattle because Seattle’s Operation Impound scoops up the cars of drivers who have no record of dangerous driving, unlike the Ohio and California laws. The assumption that the person who doesn’t pay their ticket is a more reckless driver than the person who does pay their ticket is not supported by the facts.

3. Operation Impound Has Not Resulted in Reduced Costs

One of the intents of Operation Impound is to reduce DWLS charges, jail bookings and caseloads.

The filing of DWLS Charges: As long as the City uses Operation Impound we will not experience a reduction in DWLS charges. The enabling state statute that allows a municipality to impound the vehicle of someone accused of DWLS requires a charge of DWLS. The City does not have the authority to impound the vehicles of people driving with a suspended license unless that person is also charged with the misdemeanor of DWLS. Operation Impound does not and cannot serve as a diversionary program to traditional law enforcement as its proponents claim.

DWLS Jail Bookings: Proponents of Operation Impound are quick to point out that DWLS jail bookings are lower than they were before Operation Impound was instituted. The primary reason for this reduction is the City Attorney’s decision to dismiss some DWLS charges after they are filed, relying instead on impoundment to punish the car owner (who may be entirely innocent of wrongdoing). When there are fewer cases remaining in the court system, there are fewer jail bookings. This same result can be achieved without impoundment if the City Attorney uses a pre-trial diversion program similar to the one adopted by the King County Prosecutor, in which DWLS defendants are only prosecuted if they refuse to cooperate with the court in reinstating their license.

Municipal Court Case Load: A similar claim is that Operation Impound is responsible for the reduction in Municipal Court caseload. We can find no correlation between Operation Impound and the Municipal Court caseload; the DWLS caseload reduction can just as easily be attributed to relicensing programs that have been established independently from Operation Impound. Again, the City Attorney can reduce the court’s caseload without relying on impoundment by adopting a pre-trial diversion program similar to King County’s.

4. Lawsuits

There have been a number of legal claims associated with continued enforcement of Operation Impound. Most of these cases involve individuals or small groups as plaintiffs. Successful claims have been based upon 1) the eighth amendment (the punishment must fit the crime) when cars have been impounded after an innocent owner loans their vehicle to a driver accused of DWLS; 2) the state constitution’s prohibition against unreasonable search and seizure, when officers have failed to exercise their discretion reasonably when deciding whether to impound a vehicle; 3) equal protection principles because the state law authorizing the City’s impound law protected rental companies who rent vehicles to drivers accused of DWLS but not other non-driver “innocent owners;” and claims relating to the underlying innocence of the person wrongly accused of DWLS.

These claims have resulted in expenses associated with defending the City as well as the expense associated with paying the wronged party. Within the last month, a federal court judge has authorized a class of 10-20,000 people to maintain a class action suit for damages against the City of Seattle for unlawful impoundments, based upon a case in which a smaller group of plaintiffs have already prevailed against the State of Washington.

5. There Is Another Way

You may have heard people say “it’s better to jail cars than people.” I suggest that in the vast majority of cases we don’t have to do either.

A true diversion program would be like that created in King County, through the collaborative efforts of the bipartisan King County Council, King County District Court, and County Prosecutor Norm Maleng. How does the City of Seattle, as a broader public policy accomplish the goals of revenue enhancement and cost containment? Seattle’s approach results in many unnecessary costs. King County’s experience is evidence of this.

King County has a pre-filing DWLS diversion program. Nothing prevents City Attorney Tom Carr from implementing a similar program. Under the King County approach, the King County prosecutor contacts the accused offender BEFORE filing charges on DWLS citations. The prosecutor invites the accused DWLS 3 offender to participate in the King County relicensing program, which is an opportunity to sign up for time payments for the fines associated with their tickets. In exchange for their participation in the program the King County prosecutor agrees to not file charges.

This approach immediately saves costs relating to prosecution, public defense attorneys, and potential jail costs. The prosecutor files charges if there is a refusal to participate in the relicensing program or failure to successfully complete the program. King County has only needed to prosecute 25% of the total accused DWLS 3 population using this approach. Not only has King County successfully assisted in the relicensing of most of the DWLS 3 drivers in their system, but they’ve reduced the filing of DWLS charges by three quarters all without impounding a single vehicle! The savings and revenue that King County collects through its relicensing program more than pays for the program.

A good DWLS enforcement policy will separate not only the innocent from the guilty, but also the scofflaws from those folks who want to pay their fines and get their license returned, while also reducing the jail and prosecution costs associated with DWLS 3 and limiting the City’s legal exposure to costly lawsuits. Again, we need City Attorney Tom Carr’s cooperation to fully accomplish this goal by adopting a diversion program, threatening prosecution against those who will not get re-licensed, while withholding prosecution for all those who will work to take care of their fines and drive legally.

Again, the proposal that 6 Councilmembers support is a sound public policy approach. It amends the Operation Impound program and eliminates the impoundment of the vehicles of people who are driving with license suspended in the 3rd degree, or people who are accused of having their license suspended because of an unpaid ticket. This amendment allows for the continued impound of the cars of people who are accused of driving with license suspended in degrees 1 and 2 and vehicles belonging to people with four or more parking tickets. For the first time, it allows for Seattle Police to impound vehicles for drivers charged with driving while intoxicated. Taken together, the changes re-direct Seattle’s impoundment program toward hazardous drivers and away from those whose suspension is due to economic circumstances rather than dangerous driving.

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Comment from Brooks Mellado
Time December 14, 2011 at 1:07 am

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