§ 44.222. Seizure and impoundment of motor vehicles used in the commission of certain offenses.

(a)

Vehicle Seizure and Impoundment. Any motor vehicle operated, used, or in the physical control of any person, with the express or implied permission of the owner of record (as registered with the Secretary of State, State of Illinois), within the City, during the commission of or in furtherance of any offense or violation set forth in subsection (b) herein, shall be subject to seizure and impoundment by the City, and the owner of record of said vehicle may be liable to the City for a civil penalty in an amount not to exceed the sum of five hundred dollars ($500.00), in addition to any towing and storage fees as hereinafter provided.

(b)

Violations or Offenses Subject to Seizure and Impoundment.

(1)

Driving while drivers' license, permit, or privilege to operate a motor vehicle is suspended or revoked (625 ILCS 5/6-603), or similar provision of this Code, excluding a suspension for an emission violation or failure to pay moving violations, parking or compliance violations;

(2)

Driving under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof (625 ILCS 5/11-501) or similar provision of this Code;

(3)

Fleeing or attempting to elude a police officer (625 ILCS 5/11-204) or aggravating fleeing or attempt to elude a police officer (625 ILCS 5/11-204.1) or similar provision of this Code;

(4)

Drag racing (625 ILCS 5/11-504) or similar provision of this Code;

(5)

Unlawful use of a weapon (720 ILCS 5/24-1);

(6)

Possession of a controlled substance (720 ILCS 570/402);

(7)

Possession of cannabis in excess of 30 grams (720 ILCS 550/4).

(8)

Soliciting for a prostitute (720 ILCS 5/11-15).

(9)

Driving while driver's license expired for a period in excess of one year (625 ILCS 5/6-101).

(10)

Driving a motor vehicle without ever having been issued an Illinois Driver's License (625 ILCS 5/6-101(a)).

(11)

Felony Theft (720 ILCS 5/16-1).

(12)

Armed Robbery (720 ILCS 5/18-2).

(13)

Operation of a motor vehicle at a time when there exists an outstanding arrest warrant for failure to appear in court;

(14)

Operation or use of a motor vehicle in the commission of, or, in the attempt to commit, any other misdemeanor or felony offense in violation of the Criminal Code of 1961 or the Criminal Code of 2012.

(c)

Existing Regulations Not Abrogated.

(1)

The provisions of this Section shall be in addition to and shall not replace or otherwise abrogate any existing state or federal law or City ordinance that relates to the seizure and/or impoundment of motor vehicles, and any penalty provided herein shall be in addition to any and all penalties that may be assessed or imposed by the circuit court for violation of any criminal offense or local ordinance violation offense.

(2)

Any and all fees incurred for towing and/or storage of a vehicle seized under this Section shall be those approved by the Chief of Police for all towing companies authorized to tow for the City.

(d)

Exceptions. The provisions of this Section shall not apply if at the time of the offense the motor vehicle in question was stolen and the theft was reported to the appropriate police authority within twelve (12) hours after the theft was discovered, or the vehicle was otherwise operated without the knowledge and express or implied consent of the registered owner.

(e)

Notice/Towing/Release.

(1)

Whenever a police officer has probable cause to believe that a vehicle is subject to seizure and impoundment pursuant to this Section and the police officer has arrested the operator or person in physical control of the motor vehicle for any of the offenses set forth in subsection (b), the police officer shall provide for the towing of the vehicle to a facility authorized by the City. Prior to or at the time the vehicle is towed, the police officer shall notify or make a reasonable attempt to notify the owner(s) or any person(s) identifying himself as the owner(s) of the vehicle, or any person who is found to be in physical control of the vehicle at the time of the alleged offense, of the fact of the seizure and of the vehicle owner's right to request a preliminary vehicle impoundment hearing to be conducted pursuant to subsection (f)(1) and a hearing pursuant to subsection (f)(2). The vehicle shall remain impounded pending the completion of the hearing(s) provided for in subsections (f)(1) and (f)(2), unless the owner(s) of the vehicle or someone on his/her or their behalf posts with the City a cash bond in the amount of five hundred dollars ($500.00) and pays the towing and storage charges.

(2)

Notwithstanding the provisions of subsection (e)(1) to the contrary, the arresting police officer may release the vehicle prior to towing if the vehicle subject to seizure and impoundment was not owned by the person placed under arrest and the registered owner or some other person legally authorized to possess the vehicle shall arrive at the scene of the arrest prior to the actual removal or towing of the vehicle and the lawful owner or person lawfully entitled to possession of the vehicle possesses a valid operator's license, proof of ownership or registration, proof of liability insurance and would not, as determined by the arresting police officer, indicate a lack of ability to operate the motor vehicle in a safe manner, or who would otherwise, by operating the motor vehicle, not be in violation of the Illinois Vehicle Code. If the vehicle subject to seizure and impoundment is owned by the person under arrest, the arresting officer may, prior to the actual removal or towing of the vehicle, release the vehicle to another person with the written consent of the owner, provided that such other person possesses a valid operator's license, proof of liability insurance and would not, as determined by the arresting police officer, indicate a lack of ability to operate the motor vehicle in a safe manner or who would otherwise, by operating the motor vehicle, not be in violation of the Illinois Vehicle Code.

Releasing the vehicle prior to towing for the reasons set forth in the preceding paragraph notwithstanding the arresting officer may also release the vehicle prior to towing for good cause shown and only upon express authorization by a supervisor on duty.

(f)

Hearings.

(1)

Preliminary Hearing. The owner of record of a vehicle seized and impounded may contest the seizure and impoundment of the vehicle by requesting a preliminary hearing. The owner must make a request for a preliminary hearing within forty-eight (48) hours of the seizure. The request shall be deemed filed upon delivery to the Chief of Police of the City of Elmhurst c/o the City of Elmhurst Police Department. The preliminary hearing request shall be in writing and the Chief of Police or his designee shall conduct the preliminary hearing within twenty-four (24) hours after receipt of the request, excluding Saturdays, Sundays, or City holidays, in which case the preliminary hearing shall be heard on the next business day after the request. All interested parties shall be given a reasonable opportunity to be heard at the preliminary hearing. The formal rules of evidence shall not apply at the preliminary hearing or at the hearing, and hearsay evidence may be admissible if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their daily affairs. The arresting officer's reports, including any sworn report, shall be admissible. If, after the hearing, the Chief of Police or his designee determines that there is probable cause to believe that the vehicle is subject to seizure and impoundment, he/she shall order the continued impoundment of the vehicle as herein provided, unless the owner of the vehicle posts with the City a cash bond in the amount of five hundred dollars ($500.00), and pays any and all applicable towing and storage fees. If the Chief of Police or his/her designee determines that there was not probable cause to believe the vehicle was used or operated during the commission or attempted commission of the offenses set forth in subsection (b), then the vehicle shall be returned to the registered owner without penalty.

(2)

Notice/Procedures/Hearing. Within ten (10) days after a vehicle is seized and impounded, the Chief of Police or his designee shall notify the registered owner of record of the seized and impounded vehicle by certified mail, return receipt requested, and first class mail, postage prepaid, of the date, time, and location of the hearing to be conducted. The hearing shall be presided over by the City's Administrative Hearing Officer and shall be limited in scope to whether the arresting officer had probable cause to believe the motor vehicle in question was used or in the actual physical control of a person during the commission of any offense listed in subsection (b) herein. The owner shall appear at the hearing and enter a determination to contest or not contest the basis of the seizure and impoundment. If the owner elects not to contest the basis for the seizure, the case will be disposed of at that time by entry of an administrative order and penalty if a factual basis exists for the seizure. If the owner elects to contest the basis for the impoundment and seizure, a hearing shall be held immediately, unless continued by order of the Hearing Officer. Continuances shall only be granted for good cause shown. All interested persons shall be given a reasonable opportunity to be heard at the hearing. At any time prior to the hearing date, the Hearing Officer may, at the request of the registered owner of the vehicle or the City, direct witnesses to appear and give testimony at the hearing. Subpoenas for the production of witnesses and relevant records may be issued upon request of either party. The formal rules of evidence shall not apply at the hearing, and hearsay evidence shall be admissible if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their every day affairs. The arresting officer's report(s), including any sworn report of the arresting officer, shall be admissible at the hearing. If, after the hearing, the Hearing Officer determines by a preponderance of evidence that the officer had probable cause to believe the motor vehicle was in the physical control used or operated in connection with or during the commission or attempted commission of any offense set forth in subsection (b), the Hearing Officer shall enter an order finding the owner of record of the vehicle civilly liable to the City for an administrative penalty in an amount not to exceed five hundred dollars ($500.00). The Hearing Officer shall order the vehicle to remain impounded until the owner or someone on the owner's behalf pays the administrative penalty to the City plus any and all fees to the towing entity or City for the towing and storage of the vehicle as the case may be. If, after proper service of notice, the owner of record fails to appear at the hearing, the Hearing Officer shall conduct the hearing in absentia and, if appropriate, enter a default order in favor of the City for a case proven, a copy of which default order shall be sent to the registered owner via certified mail, return receipt requested, and first class mail, postage prepaid. If at the hearing the Hearing Officer finds that no such probable cause existed to believe a qualifying violation occurred, the Hearing Officer shall order the immediate return of the vehicle and cash bond, if posted, to the owner without assessing any penalty.

(3)

All hearings shall be recorded and said recording shall be the official record of the proceedings. All findings, decisions and orders of the Hearing Officer shall be reduced to writing, signed by the Hearing Officer and served upon all parties, at the address listed with the Illinois Secretary of State, within fourteen (14) days after the hearing by first class mail, postage prepaid, or personal service.

(g)

Administrative Penalty. If an administrative penalty is imposed, the penalty shall constitute a debt due and owing the City of Elmhurst. All fines or penalties shall be paid into the General Corporate Fund of the City of Elmhurst. If a cash bond has been posted the bond shall be applied to the penalty imposed. If a vehicle is impounded when a penalty is imposed, the City may seek to obtain a judgment on the debt and enforce such judgment against the vehicle as provided by law. Except as may otherwise be provided in this Section, all vehicles shall continue to be impounded until the penalty is paid to the City and any applicable towing and storage fees are paid to the towing entity or City, as the case may be, in which case possession of the vehicle shall be given to the person who is legally entitled to possess the vehicle, or the vehicle is sold or otherwise disposed of to satisfy a judgment and lien as provided by law. If the administrative penalty and applicable towing and storage fees are not paid within thirty (30) days after the expiration of time in which judicial review of the Hearing Officer's determination may be sought, or within thirty (30) days after an action seeking judicial review has been resolved in favor of the City, whichever is applicable, the vehicle shall be deemed unclaimed and shall be disposed of in the manner provided by law for the disposition of unclaimed vehicles under the Illinois Vehicle Code.

(h)

Vehicle Possession. Except as may otherwise be provided by law or by Order of the Hearing Officer, no owner, lien holder of record, or other person shall be legally entitled to take possession of a seized and impounded vehicle until the bond, administrative penalty and towing and storage fees have been paid. The foregoing notwithstanding, whenever a person or other entity with a lien of record against an impounded vehicle has commenced foreclosure or repossession proceedings, possession of the vehicle shall be given to that person if the lien holder pays the five hundred dollar ($500.00) bond or agrees in writing to refund to the City the amount of the net proceeds of any foreclosure sale, less any amounts required to pay all lien holders of record, not to exceed the administrative penalty, plus the applicable towing and storage fees.

(i)

Hearing Officer. The Hearing Officer shall be appointed by the Mayor of the City of Elmhurst with the advice and consent of the City Council. The Hearing Officer shall be an attorney licensed to practice law in the State of Illinois for a minimum of three years next preceding the date of his/her appointment.

(j)

Decision Review. Any party aggrieved by a final decision of the Hearing Officer may seek judicial review in the manner provided by law.

(Ord. No. 07-2010, § 3; Ord. No. 11-2012, § 1, 4-16-2012; Ord. No. 03-2015, §§ 2, 3, 2-2-2015)