(A) Preamble. The preamble to Ordinance 2663 is adopted by reference into this section as if fully set forth herein.
(B) Definitions. For the purpose of this section the following definitions shall apply unless the context clearly indicates or requires a different meaning.
DRIVER or OPERATOR. Every person who drives or is in actual physical control of a vehicle as defined in ILCS Ch. 625, Act 5, § 1-116.
IMPOUNDMENT OFFENSE. Any of the following offenses under the laws of the state or analogous ordinances of the village:
(1) Driving a motor vehicle without a valid license (ILCS Ch. 625, Act 5, § 6-101).
(2) Driving while driver's license, permit, or privilege to operate a motor vehicle is suspended or revoked, (ILCS Ch. 625, Act 5, § 6-303) except a person whose driver's license, permit, or privilege to operate a motor vehicle is suspended only for a violation of ILCS Ch. 625, Act 5, §§ 13 et seq., the “Vehicle Emissions Inspection Law of 2005”;
(3) Fleeing or attempting to elude a peace officer (ILCS Ch. 625, Act 5, § 11-204);
(4) Driving under the influence of alcohol, other drug or drugs, intoxicating compound or compounds, or any combination thereof (ILCS Ch. 625, Act 5, § 11-501);
(5) A person under 21 years of age driving a motor vehicle having consumed or in possession of an alcoholic beverage;
(6) Reckless driving or aggravated reckless driving (ILCS Ch. 625, Act 5, § 11-503);
(7) Street racing (ILCS Ch. 625, Act 5, § 11-505);
(8) Driving a motor vehicle when a warrant is outstanding for the arrest of the vehicle's driver;
(9) Driving 40 miles an hour or more in excess of applicable speed limit (ILCS Ch. 625, Act 5, § 11-601.5);
(10) Indecent solicitation of a child (ILCS Ch. 720, Act 5, § 11-6);
(11) Aggravated assault (ILCS Ch. 720, Act 5, § 12-2);
(12) Aggravated battery with a firearm (ILCS Ch. 720, Act 5, § 12-3.05(e));
(13) Aggravated battery of a child (ILCS Ch. 720, Act 5, § 12-3.05(b));
(14) Aggravated battery of a senior citizen (ILCS Ch. 720, Act 5, § 12-3.05(d));
(15) Theft (ILCS Ch. 720, Act 5, § 16-1)
(16) Retail theft, when the value of the merchandise exceeds $150.00 (ILCS Ch. 720, Act 5, § 16-25);
(17) Robbery (ILCS Ch. 720, Act 5, § 18-1);
(18) Armed robbery (ILCS Ch. 720, Act 5, § 18-2);
(19) Burglary (ILCS Ch. 720, Act 5, § 19-1);
(20) Residential burglary (ILCS Ch. 720, Act 5, § 19-3);
(21) Arson (ILCS Ch. 720, Act 5, § 20-1);
(22) Aggravated arson (ILCS Ch. 720, Act 5, § 20-1.1);
(23) Possession of explosives or explosive or incendiary devices (ILCS Ch. 720, Act 5, § 20-2);
(24) Criminal damage to property in excess of $300.00 (ILCS Ch. 720, Act 5, § 21-1);
(25) Any weapons related offenses under Article 24 of the Criminal Code of 1961, including carrying a concealed weapon, discharge of firearms or air guns, or prohibited possession of a weapon; or other weapons offenses under ILCS Ch. 720, Act 5, §§ 24-1 et seq.
(26) Mob action (ILCS Ch. 720, Act 5, § 25-1);
(27) Manufacture, deliver, or possess with intent to manufacture or deliver a controlled substance (ILCS Ch. 720, Act 570, § 401);
(28) Possession of a controlled or counterfeit substance or controlled substance analog (ILCS Ch. 720, Act 570, § 402);
(29) Possession of cannabis (ILCS Ch. 720, Act 550, § 4);
(30) Manufacture or delivery of cannabis (ILCS Ch. 720, Act 550, § 5);
(31) Cannabis trafficking (ILCS Ch. 720, Act 550, § 5.1);
(32) Delivery of cannabis on school grounds (ILCS Ch. 720, Act 550, § 5.2);
(33) Unauthorized production or possession of cannabis sativa plant (ILCS Ch. 720, Act 550, § 8);
(34) Possession of drug paraphernalia under the Drug Paraphernalia Control Act (ILCS Ch. 720, Act 600, § 3.5); and
(35) Any offense which is classified as a felony.
MOTOR VEHICLE or VEHICLE. Every vehicle or type of vehicle defined by section 5/1-146 of the Illinois Vehicle Code (ILCS Ch. 625, Act 5, § 1-146).
OPERATOR. See DRIVER.
OWNER(S). Owner(s) of record of a motor vehicle is based upon either the vehicle's registered owner or certificate of title with the Secretary of State or other applicable governmental office or agency if not registered in Illinois.
VEHICLE. See MOTOR VEHICLE.
(C) Impoundment of motor vehicles.
(1) Enforcement. The Police Department of the Village is hereby authorized to implement, direct and supervise a program of vehicle seizure and impoundment pursuant to the provisions of this section. The Police Department, and any other duly authorized agents of the village, is hereby authorized to seize and impound any vehicle eligible for impoundment pursuant to this section.
(2) Impoundment required. Any motor vehicle used or involved in the alleged commission of any impoundment offense shall be immediately seized and impounded by the village.
(3) Seizure and impoundment. Whenever a police officer has probable cause to believe that a motor vehicle is subject to seizure and impoundment pursuant to this section, the police officer shall provide for the towing of the motor vehicle according to police department procedures. When the motor vehicle is towed and so long as the person is present at the time of seizure, the police officer shall notify the person who is found to be in control of the motor vehicle at the time of the alleged violation, and/or the owner of the vehicle, of the fact of the seizure and of the motor vehicle owner's right to request a preliminary hearing. The motor vehicle shall be impounded pending the completion of the hearings provided for in this section, unless the owner of the motor vehicle posts with the village a cash bond as provided in this section.
(D) Impoundment hearing process.
(1) Notice required. Within in two business days of impoundment, the village shall give one written notice to the owner and driver of the motor vehicle by personal hand delivery or by certified United States mail return-receipt requested of:
(a) The impoundment of the vehicle;
(b) The amount of the village administrative fee and tow and daily storage charge;
(c) The opportunity to post a bond and pay tow and storage charges for release of the vehicle pending any hearing;
(d) The opportunity to request a preliminary hearing before the Police Chief or the Chief's designee regarding the impoundment within five business days of the date of the notice; and
(e) Notice of the date, time, and place of a final hearing regarding the vehicle impoundment as provided in this section.
(2) Preliminary hearing. Within seven business days from the date of the written notice, the owner of record and the driver of a vehicle seized and impounded pursuant to this section may preliminarily appeal the impoundment. This request shall be in writing, include the owner's name, address, phone number, and email address, and be filed with the Chief of Police or the Chief's designee, who shall conduct such a preliminary hearing within two business days of receipt of the owner's request for the hearing. The Police Department will give the owner notice by mail, telephone, email, or in person on the date and time of this hearing. For purposes of this section, “business days” shall mean Monday through Friday, excluding holidays. All interested persons shall be given a reasonable opportunity to be heard at the preliminary vehicle impoundment hearing. The formal rules of evidence will not apply at the hearing and hearsay evidence shall be admissible only if it is the type commonly relied upon by reasonably prudent persons in the conduct of their affairs. If, after the hearing, the Chief or designee determines there is probable cause to believe that the vehicle is subject to impoundment pursuant to this section, the Chief of Police shall order the continued impoundment of the vehicle as provided in this section, unless the owner of the vehicle posts with the village a cash bond in the amount of $200 and pays all applicable towing and storage fees as provided in this section. If the Chief of Police or designee determines there is no such probable cause, the vehicle will be released to the owner without penalty or payment of other fees including towing and storage charges.
(3) Notice of final hearing. Unless the owner affirmatively waives the right to a hearing, within two business days after a motor vehicle is seized and impounded pursuant to this section, the village shall notify the owner of record of that motor vehicle and the driver of the motor vehicle by either personal service or certified mail, return-receipt requested of the date, time, and location of a hearing that will be conducted pursuant to this section. The notice shall state that towing and storage and administrative fees may be imposed and, if determined to be owed by the owner, that a motor vehicle will not be released until paid in full and, if not properly paid, the village may lien, dispose of, and sell the motor vehicle as provided by law as well as in accordance with applicable law. The hearing shall be scheduled not less than seven days or more than 21 days from the date of the notice of hearing.
(4) Final hearing. The hearing shall be scheduled not less than seven days or more than 21 days from the date of the notice of hearing.
(5) Appointment of hearing officer. The Village Administrator shall appoint a hearing officer to preside over the final hearing, which hearing officer must be an attorney in good standing and licensed to practice law in the state.
(6) Waiver. By written waiver, the vehicle owner may wave all rights to a final hearing and consent to pay all applicable fees and costs associated with the vehicle seizure.
(7) Hearing officer duties. The hearing officer shall be empowered and is hereby authorized and directed to:
(a) Preside over the final hearing as the adjudicator;
(b) Rule upon motions presented in the matter;
(c) Administer oaths;
(d) If otherwise permitted by law, issue subpoenas to secure the attendance of witnesses and production of relevant documentation;
(e) Hear testimony and accept evidence that is relevant to the basis of the impoundment or seizure;
(f) Make final determinations of violation liability;
(g) Assess fines and penalties as established by ordinance; and
(h) Provide for an accurate recordation of the final hearing.
(8) Opportunity to be heard. 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 either party, direct witnesses to appear and give testimony at the hearing. The formal rules of evidence will not apply at the hearing, and hearsay evidence shall be admissible only if it is the type commonly relied upon by reasonably prudent persons in the conduct of their affairs. In a hearing on the propriety of impoundment of a vehicle, any police report verified under oath or affirmed by an officer participating in the arrest that to the best of the officer's knowledge, the report is true, accurate, and in substance complete and (1) is prepared in the performance of a law enforcement officer's duties and (2) sufficiently describes the circumstances leading to the impoundment, shall be admissible evidence of the vehicle owner's liability, unless admission is rebutted by clear and convincing evidence. If, after the hearing, the hearing officer determines by a preponderance of evidence that the vehicle was used in connection with a violation set forth in this section, the hearing officer shall enter an order finding the owner of record of the vehicle civilly liable to the village for an administrative fee in the amount of $$200 dollars and requiring the vehicle to continue to be impounded until the owner pays the administrative fee to the village and all towing and vehicle storage charges due for the vehicle. If the owner of record fails to appear at the hearing, the hearing officer shall enter a default order in favor of the village. If the hearing officer finds that no such violation occurred, the hearing officer shall order the immediate return of the owner's vehicle or cash bond without fees including towing and vehicle storage charges.
(E) Fees and charges.
(1) Administrative fee.
(a) There is assessed against the owner of any vehicle which has been seized and impounded under village ordinance a village administrative fee of $200.
(b) However, this administrative fee does not apply if:
1. The motor vehicle used in the violation was stolen at that time and the theft was reported to the appropriate police authorities within 24 hours after the theft was discovered; or
2. The motor vehicle is operating as a common carrier and the violation occurs without the knowledge of the person in control of the motor vehicle; or
3. The motor vehicle is subject to successful forfeiture proceedings under ILCS Ch. 725, Act 150, §§ 1 et seq., the Drug Asset Forfeiture Procedure Act, ILCS Ch. 720, Act 5, §§ 36-1 et seq., the Seizure and Forfeiture of Vessels, Vehicles, and Aircraft Act, or state or federal forfeiture laws. For purposes of this section, the “owner of record” or “owner” of a motor vehicle is the record title holder as registered with the Secretary of State.
(2) Determination of towing and storage charges. The cost for towing and daily storage of a motor vehicle impounded pursuant to this section shall be approved by the Village Administrator based upon the state tow charge schedule for Chicagoland area for all tow companies authorized to tow for the village Police Department.
(3) Towing and storage charges. There is assessed the owner of any vehicle seized and impounded under village ordinance a towing fee and storage fee in such amounts as from time to time determined under this section.
(4) Cash bond pending hearing. To release the vehicle pending the hearing, the owner of an impounded motor vehicle may, after impoundment and prior to final hearing, post with the village a $200 cash bond of United States currency and pay all vehicle towing and storage charges. A condition of the bond includes this amount can be applied in payment of any sums which may be found to be due the village under this section or other ordinances.
(5) Payment. If an administrative or other fee or cost is imposed under this section, such fee shall constitute a debt due and owing to the village. If a cash bond has been posted pursuant to this section, the bond shall be applied to the fee. If a vehicle has been impounded when such a fee is imposed, the village may seek to obtain a judgment on the debt and enforce such judgment against the vehicle as provided by law. Except as provided otherwise by law, a vehicle shall continue to be impounded until all fees and costs are paid to the village and any applicable towing and storage fees are paid in full, in which case possession of the vehicle shall be given to the vehicle owner, or the vehicle is sold or otherwise disposed of [to satisfy] a judgment to enforce a lien as provided by law. If the administrative and other applicable fees and costs are not paid within 35 days after a notice of determination in the final hearing, such fees and costs are due and payable as given to the parties. If the vehicle owner who defaults by failing to appear at the hearing or otherwise fails to pay all fees and costs imposed under this section, the vehicle shall be deemed unclaimed and shall be disposed of in the manner provided by law for the disposition of unclaimed vehicles. Notwithstanding anything to the contrary, if the administrative fee and other applicable fees and costs are not paid within 35 days after the expiration of time at which administrative review of the hearing officer's determination may be sought, or within 30 days after an action seeking administrative review has been resolved in favor of the village, 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 state vehicle code.
(F) Possession of vehicle.
(1) Except as otherwise specifically provided by law, no owner, lien holder, or other person shall be legally entitled to take possession of a vehicle impounded under this section until the administrative fee or other fees applicable under this section have been paid. However, whenever a person with a lien of record against an impounded vehicle has commenced foreclosure proceedings, possession of the vehicle shall be given to that person if he or she agrees in writing to refund to the village 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 fees.
(a) The provisions of this section authorizing an owner or other party to regain possession of a motor vehicle are not applicable when vehicle or asset forfeiture proceedings have been instituted under state or federal drug asset forfeiture laws or Article 36 of the Illinois Criminal Code (ILCS Ch. 720, Act 5, §§ 36-1 et seq.). In such case, the village shall not release, or dispose of, the vehicle to any person except as consistent with those proceedings.
(b) In the event the Police Department determines that the vehicle impounded pursuant to this section should not be released to its owner or other persons, or disposed of as an unclaimed vehicle, due to the need to retain the vehicle as part of a continuing criminal investigation, or as evidence in a crime, then the village shall notify the owner that the vehicle will be retained and not released except as required by law.
(2) Vehicle possession.
(a) Except as provided otherwise in this section, a motor vehicle shall continue to be impounded until:
1. The administrative fee, plus any applicable towing and storage charges, are paid, in which case possession of the motor vehicle shall be given to the person who is legally entitled to possess the motor vehicle; or
2. The motor vehicle is sold or otherwise disposed of to satisfy a judgment to enforce a lien as provided by law.
(b) Except as otherwise specifically provided by law, no owner, lien holder, or other person shall be legally entitled to take possession of a motor vehicle impounded under this section until the civil fees applicable under this section have been paid.
(G) Applicability. This section shall not replace or otherwise abrogate any existing state or federal laws or village ordinance pertaining to vehicle seizure and impoundment, and this administrative fee shall be in addition to and not in lieu of any fines, costs, penalties, or fees that may be assessed by a court for any of these offenses.
(rd. 2663, passed 11-1-10)