HomeMy WebLinkAbout4030ORDINANCE NO. t/tJ3tJ
AN ORDINANCE of the City Council of the
City of Kent, Washington, amending Chapter 9.39
of the Kent City Code, entitled "Towing/' updating
prov1s1ons 1n order to be consistent with current
state law and recent Supreme Court dec1s1ons.
RECITALS
A. On April 21, 2009, the United States Supreme Court ruled
that warrantless searches of a motor vehicle after a driver's arrest and
detention were v1olat1ve of Amend. IV of the United States Const1tut1on.
Later that same year, the Washington State Supreme Court similarly ruled
that warrantless searches violated article I, §7 of the Washington
Const1tut1on.
B. This City's decision to amend the code by removing the
prov1s1on allowing for a search incident to the arrest of the dnver reflects
these changes to the federal and state law.
C. The city of Kent recognizes a hardship exists for the legal
owner of a motor vehicle when hts or her vehicle is impounded for a set
penod of time after a driver 1s arrested for v1olat1on of RCW 46.20.342
(l)(a) (driving while license suspended or revoked in the first degree) or
(l)(b) (driving while license suspended or revoked in the second degree).
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In those circumstances where the legal owner of motor vehicle impounded
after the driver 1s arrested for v1olat1on of RCW 46 20 342(1)(a) or (b),
and the legal owner was neither the arrested driver nor aware the arrested
driver was suspended, the City seeks to create a one-time hardship
exemption whereby the legal owner may 1mmed1ately redeem his or her
motor vehicle upon satisfaction of certain cond1t1ons as well as payment of
all costs and fees associated with towing, impound, and storage.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. -Amendment. Chapter 9.39 of the Kent City Code is
amended as follows:
Sec. 9.39.010. Title and purpose. This chapter shall be known
and cited as the towing ordinance and shall supplement Chapter 46.55
RCW which 1s currently adopted in KCC 9.36.010 (Model Traffic
Ordinance). In the event that a conflict exists between the provisions of
this chapter and Chapter 46.55 RCW, this chapter shall prevail.
Sec. 9.39.020. Removal by police officer. In add1t1on to the
prov1s1ons of RCW 46.55.113, a police officer may take custody of a vehicle
and provide for its prompt removal to a place of safety whenever a police
officer finds a vehicle standing or parked in violation of RCW 46.61.570.
Sec. 9.39.030. Impoundment of vehicles when driver
arrested for violation of driving while license suspended or revoked
or operation of motor vehicle under other license while suspended.
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A. Impoundment of vehicles authorized.
1. Whenever the driver of a vehicle is arrested for a v1olat1on of
driving while license suspended or revoked (RCW 46.20.342) or operation
of motor vehicle under other license or permit proh1b1ted while license 1s
suspended or revoked (RCW 46 20.345), as these prov1s1ons are currently
enacted or hereafter amended, the vehicle is sub]ect to 1mpoundment at
the direction of a law enforcement officer.
2. It shall be the responsibility of the owner or other person
lawfully charged with possession of a vehicle to ensure that any person
driving such vehicle has a valid license. It shall not be a defense to
1mpoundment or to the payment of any of the costs of impound that the
owner or other person lawfully charged with the vehicle was not aware
that the driver's license was suspended, revoked, or otherwise invalid.
B. Impoundment periods.
1. If a vehicle 1s impounded because the driver is arrested for a
violation of RCW 46.20.342 (l)(c) (driving while license suspended or
revoked 1n the third degree) or 46.20.345, the vehicle shall be redeemable
immediately pursuant to subsection (B)(6) of this section.
2. If a vehicle is impounded because the driver 1s arrested for a
v10\at1on of RCW 46.20.342 (l)(a) (driving while license suspended or
revoked m the first degree) or 46.20.342(1)(b) (driving while license
suspended or revoked m the second degree) and the Washington
Department of L1cens1ng's records show that the driver has not been
convicted of a v1olat1on of RCW 46.20.342(1)(a) or (b) or equivalent local
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ordinance within the past five (5) years, the vehicle shall be impounded for
thirty (30) days.
3. If a vehicle 1s impounded because the driver is arrested for a
v1olat1on of RCW 46.20.342(1)(a) or (b) and the Washington Department
of L1censmg's records show that the driver has been convicted one (1) time
of a v1olat1on of RCW 46.20.342(l)(a) or (b) or equivalent local ordinance
within the past five (5) years, the vehicle shall be impounded for sixty (60)
days.
4. If a vehicle is impounded because the driver is arrested for a
violation of RCW 46.20.342 (l)(a) or (b) and the Washington Department
of L1cens1ng's records show that the driver has been convicted of a
violation of RCW 46.20.342(1)(a) or (b) or equivalent local ordinance two
(2) or more times within the past five (5) years, the vehicle shall be
impounded for ninety (90) days.
5. At the conclusion of the applicable period of 1mpoundment, 1f
any, the registered owner, a person authorized by the registered owner, or
one who has purchased the vehicle from the registered owner, who
produces proof of ownership or authorization and signs a receipt therefor,
may redeem an impounded vehicle. A towing contractor may use any
reasonable means necessary to confirm that the person redeeming the
vehicle 1s authorized to redeem the vehicle, and neither the city nor the
tow company shall be responsible for any loss resulting from a delay
during the time m which the towing contractor is confirming authorization.
6. Prior to redeeming the impounded vehicle, any person
redeeming a vehicle impounded pursuant to this section shall pay the
towing contractor for the costs of 1mpoundment, including removal,
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towing, and storage fees accrued as a result of the impoundment. The
towing contractor shall accept payment as provided in RCW 46.55.120 and
other applicable statutes as currently enacted or hereafter amended. If the
vehicle was impounded pursuant to this section and was being operated by
the registered owner when it was impounded, it may not be released to
any person until all traffic-related penalties, fines, and forfeitures owed by
the registered owner have been satisfied.
7. A vehicle impounded pursuant to this section may be
searched iFleident to the arrest of the driver, or inventoried incident to the
impound of the vehicle pursuant to the laws of the state of Washington
and the United States. With the exception of personal property seized by a
police officer, personal property contained within an impounded vehicle
shall continue to be the respons1b1hty of its owner1 or the person dnvmg
the vehicle, and shall be dealt with pursuant to the requirements of RCW
46.55.090 and other applicable statutes as now enacted or hereafter
amended. Property which 1s attached to the vehicle with electronic wiring,
or by bolts1 screws, glue, or other adhesive material, shall be considered a
component of, or a part of, the vehicle for purposes of 1mpoundment.
C. Impound hearing.
1. When a vehicle 1s impounded pursuant to this section, the tow
truck operator shall send notice to the legal and registered owners as
required by RCW 46.55.110 and other applicable statutes as now enacted
or hereafter amended.
2. Any person seeking to redeem a vehicle impounded pursuant
to this section has a right to a hearing m the Kent mun1c1pal court without
a jury. The purpose of this hearing is solely to contest the validity of the
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impoundment or the amount of removal, towing, and storage fees. A
person may waive the right to a hearing and, subject to the requirements
of subsection (B) of this section, redeem the vehicle at the end of the
applicable period. Failure to request a hearing pursuant to this subsection
(C) shall constitute a waiver of the hearing.
3. A request for a hearing must: (a) be in writing in a form
approved by the administrator of the Kent municipal court, (b) be signed
by the person contesting the impound, and ( c) be received by the Kent
municipal court w1thm ten (10) days of the date the notice of
1mpoundment was mailed or given to such person pursuant to RCW
46.55.110 or 46.55.120(2)(a), whichever is later. At the time of the filing
of the request for hearing, the pet1t1oner must pay to the court a f1l1ng fee
in the amount of thirty-nine dollars ($39.00).
4. The hearing shall be provided as follows:
a. The court, within five (5) days after a proper request
for a hearing has been received, shall set the hearing date and send notice
of the date, time, and location of the hearing to the registered and legal
owners of the vehicle or other item of personal property registered or titled
with the Department of Licensing, the person requesting the hearing 1f not
the owner, the tow truck operator, and the person or agency authorizing
the impound.
b. If the vehicle is still impounded at the time the written
request 1s received, the court shall set the hearing within seven (7) days of
receipt of the written request. If the vehicle has been released from
impound at the time the written request is received, the court shall set the
hearing within forty-five ( 45) days.
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c. Any person seeking a hearing who has failed to request
such hearing w1th1n the time requirements set forth in subsection (C)(3) of
this section may petition the court for an extension to file a request for
hearing. Such extension shall be granted only upon the demonstration of
good cause as to the reason(s) the request for hearing was not timely filed
and only in the event that notice of the auction of the vehicle has not been
published by the tow truck operator pursuant to the requirements of RCW
46.55.110, 46.55.130, and other applicable statutes as now enacted or
hereafter amended. For the purposes of this section, "good cause" shall be
defined as circumstances beyond the control of the person seeking the
hearing that prevented such person from filing a timely request for
hearing. In the event such extensmn is granted, the date of granting the
extensmn shall be treated as the date the hearing request was received. In
the event that an extension 1s granted, additional fees resulting from the
storage of the vehicle caused by the delay 1n the hearing shall be paid by
the person requesting the extension, regardless of whether the impound 1s
determined to be lawful or unlawful.
d. If a person fails to file a request for hearing within the
time periods required, and no extension to file a request has been granted,
the right to a hearing is waived, the impoundment and the associated
costs of 1mpoundment are deemed to be proper, and the city shall not be
liable for any charges arising from the impound.
e. For the purposes of this section, any computation of
time shall be in accordance with Civil Rule 6(a) of the Washington Court
Rules.
f. Delivery of notices required by this section shall be
deemed proper three (3) calendar days after the date such notice is sent
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by regular first class mail, or in any other manner reasonably calculated to
reach the intended rec1p1ent. For the purposes of dehvenng notices
required by this section, the address of the intended recipient which is
either listed on a c1tat1on issued by a police officer, or which appears on
any record maintained by or for the Department of Licensing, or which
appears on any document or correspondence filed with the court by the
intended rec1p1ent, shall be an appropriate and accurate address of the
intended rec1p1ent.
5. Hearings shall, at the discretion of the court, be held by a
Judge, comm1ss1oner, Judge pro tempore, or magistrate of the Kent
mun1c1pal court, who shall determine whether the 1mpoundment was
proper and/or whether the associated removal, towing, storage, and any
administrative fees were proper. The court may not adjust fees or charges
that are in compliance with the posted or contracted rates.
6. The court may consider the criminal citation, the notice of
traffic infraction, the authorization to impound created pursuant to KCC
9.39.040, and any other written report made under penalty of perJury
submitted by the city of Kent or other 1mpound1ng agency in lieu of the
officer's personal appearance at the hearing. The court may also consider
an abstract of driving record and electronically printed reg1strat1on
information, without further ev1dent1ary foundation. Such records shall
constitute prima fac1e evidence of the status of the driver's or contestant's
license to drive a motor vehicle, the proper period of impoundment, or the
ownership of the impounded motor vehicle. The person named 1n the
notice may subpoena witnesses, including the officer, and has the right to
present evidence and examine witnesses present in court.
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7. The burden of proof is upon the city to establish that the
1 impound was proper by a preponderance of the evidence .
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8. If the 1mpoundment is found to be proper, the court shall
enter an order so stating. The court's order shall provide that the
impounded vehicle shall be released only after the applicable impound
period has expired and the redemption requirements of subsections (B)(S)
and (6) of this section have been satisfied. The court shall grant time
payments only in the cases of extreme f1nanc1al need, and only after a
finding of such extreme financial need, and only where there 1s an assured
and effective guarantee of payment.
9. If the impoundment is found to be improper, the court shall
enter an order so stating and order the immediate release of the vehicle. If
the costs of 1mpoundment have already been paid, the court shall order
the refund by the city of the costs of impoundment. If the 1mpoundment 1s
determined to be improper, and a filing fee was paid, the filing fee shall be
returned to the payor.
10. In the event the court finds that the 1mpoundment was
proper, but the removal, towing, storage, or admin1strat1ve fees charged
for 1mpoundment were not rn compliance with the posted or contracted
rates, the court shall determine the correct fees to be charged. If the costs
of 1mpoundment have been overpaid, the court shall order a refund by the
towing company of the costs of 1mpoundment for the amount of the
overpayment. If the costs of impoundment have been overpaid, and a
filing fee was paid, the filing fee shall be returned to the payor.
11. No determination of facts made at a hearing under this
section shall have any collateral estoppel effect on a subsequent criminal
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prosecution and such determination shall not preclude l1t1gation of those
same facts m a subsequent cnmmal prosecution.
12. The hearing procedures set forth in this subsection shall apply
only to hearings set pursuant to this section.
13. The court, in its discretion, may waive the filing fee required
by subsection (C)(3) of this section upon proof by competent evidence that
the person who 1s requesting the hearing 1s md 1gent as that term 1s defined
in RCW 10.101.010(1).
D. Economic or personal hardship -Rental cars -Vehicle dealer or
lender with perfected security interest -Commercial or farm transport
vehicles -Exceptions.
1. The court is authorized to release a vehicle impounded
pursuant to this section pnor to the expiration of any period of
impoundment upon pet1t1on of the owner of the motor vehicle who was not
the driver. provided he or she states under penalty of perjury that he or
she was unaware the driver was suspended or revoked at the time of
impoundment, or of a family member or dependent person of the driver
based upon economic or personal hardship to such family member or
dependent person resulting from the unava1lab11ity of the vehicle'" and after
cons1derat1on of the threat to public safety that may result from the
release of the vehicle, including, but not l1m1ted to, the driver's cnmmal
history, driving record, license status and access to the vehicle. If such
release is authorized, the person redeeming the vehicle must satisfy the
redemption requirements of subsection (B)(S) and (6) of this section. The
dec1s1on to release the vehicle pursuant to this subsection shall not create
any duty to protect any indiv1dual'".---nor shall it impart any costs, fees, or
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other financial obl1gat1ons associated with the removal. towing, and/or
storage of the vehicle to the City, provided the removal. towing, and/or
storage were lawful under the Kent Municipal Code or the Revised Code of
Washington. Further. neither the dec1s1on to release the vehicle nor any
determination of facts at a hearing under this section, shall provide a
defense in any subsequent criminal prosecution, or have any collateral
estoppel effect or preclude lit1gat1on of those same facts m a subsequent
criminal orosecut1on. The release of a vehicle pursuant to this subsection
! shall be available to an owner or -relative or dependent person of the
driver one ( 1) time only.
2. Pursuant to RCW 46.55.120, as now enacted or hereafter
amended, a rental car business may 1mmed1ately redeem a rental vehicle 1t
owns upon payment of the costs of removal, towmg, and storage.
3. Pursuant to RCW 46.55.120, as now enacted or hereafter
amended, a motor vehicle dealer or lender with a perfected security
interest in the vehicle may 1mmed1ately redeem or repossess a vehicle 1t
owns upon payment of the costs of removal, towing, and storage.
4. Pursuant to RCW 46.55.113(3), as now enacted or hereafter
amended, before the summary 1mpoundment of a commerc1al vehicle or
farm transport vehicle when the driver 1s not the owner of the vehicle. the
police officer shall attempt in a reasonable and timely manner to contact
the owner of the vehicle and may release the vehicle to the owner, or
des1gnee of the owner, 1f either is reasonably available, as long as the
owner or des1gnee states under penalty of per1ury that he or she was
unaware the driver was suspended or revoked. This remedy shall not be
available when the owner has received a prior release under this
subsection or RCW 46.55.120( 1)(a)(11). In the event that the owner or
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des1gnee cannot be contacted 1n a reasonable and timely manner. or is not
reasonably available, then he or she may 1mmed1ately redeem the vehicle
he or she owns upon payment of towing, removal, and storage costs.
5. Nothing in this section may derogate from the powers of
police officers under the common law.
6. For the purposes of this section. "farm transport vehicle 11
means a motor vehicle owned by a farmer and that is being actively used
in the transportation of the farmer's or another farmer's farm. orchard,
aquatic farm, or dairy products, 1nclud1ng livestock and plant or animal
wastes. from point of production to market or disposal, or supplies or
commod1t1es to be used on the farm. orchard. aquatic farm, or dairy, and
that has a gross vehicle weight rating of 7,258 kilograms (16 1 001 pounds)
or more.
E. Sale of vehicle. Any vehicle impounded pursuant to this section shall
be subJect to the sale prov1s1ons of RCW 46.55.130 and other applicable
statutes, as now enacted or hereafter amended.
F. Authority to enforce. The chief of police, or his or her des1gnee, and
the court are hereby authorized to implement such admm1strat1ve
procedures as may be necessary to carry out the directives of this section.
Sec. 9.39.040. Authorization to impound. When an officer
authorizes the impound of a motor vehicle pursuant to this chapter1 such
authorization shall state the basis for the impound; the ordinance or
statute which authorizes the impound; the date1 t1me 1 and place of the
impound; and the officer who authorized the impound. Such authorization
shall be delivered to the towing contractor within twenty-four (24) hours of
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the impoundment. The towing contractor shall deliver the authorization to
impound to the registered and legal owners of the vehicle with the other
required rnformat1on and w1thrn the time period required by RCW
46.55 110.
SECTION 2. -Severabilitv. If any one or more section, subsection,
or sentence of this ordinance 1s held to be unconst1tut1onal or invalid, such
decrs1on shall not affect the val1drty of the remarnrng portion of this
ordinance and the same shall remain 1n full force and effect.
SECTION 3. -Correct10ns bv City Clerk or Code Reviser. Upon
approval of the City Attorney, the City Clerk and the code reviser are
authorized to make necessary corrections to thrs ordinance, rncludrng the
correction of clerical errors; references to other local, state or federal laws,
codes, rules, or regulatrons; or ordinance numbering and
section/subsection numbering.
SECTION 4. -Effective Date. Thrs ordinance shall take effect and
be in force thirty (30) days from and after its passage as pr-9v1de
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ATTEST:
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Towing Ordinance
APPROVED AS TO FORM:
PASSED: {).._ f day of \~
APPROVED: ~( day of ~ ---=--'---=-----~1--~-I 2012,
PUBLISHED: '2-4 day of \~ _"-£-=-...:=:;_;::;...::.=:.=....;:-+----' 2012.
I hereby certify that this 1s a true copy of Ordinance No. l/b 30
passed by the City Council of the City of Kent, Washington, and approved
by the Mayor of the City of Kent as hereon indicated.
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P \Clvll\Ordin01nce\Towtng Ordl~ Amend 9 39 6ol:x
-.._::..e:L,&o:t:J~~L...1-...::.=.:........:.._::_::___( SEAL)
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R, CITY CLERK
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