When NC police seize a car under the DWI-while-license-revoked statute and tow it through the local rotation instead of the school board's tow contractor, who pays the towing bill?
Plain-English summary
The Davidson County Board of Education had signed a statewide contract for the towing of vehicles seized under North Carolina's DWI-while-license-revoked statute. In practice, local law enforcement officers were not calling the contracted tow company. They were using the regular "local rotation" of commercial tow operators that they used for other tows. The Board's counsel, David Inabinett, asked the AG who got stuck with the bill: the school board (which funded itself through the statutory transfer of seizure proceeds) or the law enforcement agency that picked the wrong tower.
Senior Deputy AG Grayson Kelley and Special Deputy AG Thomas Ziko read the statute squarely against the local boards of education. Under G.S. § 20-28.3(d), the only way the law enforcement agency could call the board's contract tower was if the board's contract was actually used. Once an officer picked someone from the local rotation, the vehicle was outside the contract framework. The statute then required the local board, within 10 days, to retrieve the vehicle and pay the tow and storage charges to that noncontracting company.
The Board's argument that it should not have to pay because the vehicle was not yet in its constructive possession did not work. The AG explained that the 10-day retrieval clock and the duty to pay were spelled out separately from the constructive-possession language. Possession was not the trigger. The trigger was whether the vehicle was towed under a board, statewide, or regional contract. If it was not, the obligation to retrieve and pay fell on the board.
That left the question of how much the Board could recover later. The Board's exposure depended on whether it actually retrieved the vehicle within 10 days. If it did, it could collect the full actual storage fees it had paid the noncontracting company, through either the sale proceeds (under G.S. §§ 20-28.3(i) and (l)) or by executing on the judgment for costs that the convicted driver owed under G.S. § 20-28.5(b). If the Board missed the 10-day window, its recovery dropped to no more than what its own contracted statewide, regional, or local rate would have been. Whether the Board could turn around and sue the local law enforcement agency for the extra costs (the gap between the contracted rate and the noncontracting tower's rate) was beyond the scope of the opinion. That question depended on the facts of each case.
The AG closed by noting that the statute was hard on local school systems, but said any fix had to come from the General Assembly, not from creative reading of the existing words.
Currency note
This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. G.S. § 20-28.3 has been amended multiple times since 2000, including changes to the towing-contract framework and how proceeds flow back to school capital outlay funds. Any school board, towing company, or defense attorney handling a current DWI-seizure dispute should read the present text of § 20-28.3 in full.
Background and statutory framework
The Lose-Your-Vehicle scheme. North Carolina's DWI-while-license-revoked statute, G.S. § 20-28.3, allowed officers to seize and impound a vehicle when its driver was charged with impaired driving while the driver's license was already revoked. The vehicle was then forfeited or returned through a specialized procedure, with proceeds (after costs) flowing to the county school capital outlay fund. Because the money flow led to the schools, the General Assembly placed the towing and storage administration duty on the local school boards rather than on the sheriffs or police chiefs.
The towing-contract architecture. Section 20-28.3(d) set out three contract paths for the actual tow:
- A statewide contract administered by the Department of Public Instruction.
- A regional contract entered by groups of school boards.
- A local contract entered by the individual county board of education.
When any of those three contracts covered the tow, that contract's tower had to be called. If none of those contracts applied to the particular tow (for example, because the officer just used the precinct's standard rotation), the seized vehicle was treated as being towed under no contract at all. In that case, the statute required the local board to retrieve the vehicle and pay the tow and storage charges within 10 days.
Constructive versus actual possession. The statute also said the seized vehicle was under the local board's "constructive possession" once it was delivered to a board-designated location. Counsel for Davidson County tried to argue that the constructive-possession language meant the board had no obligation until the vehicle arrived at its designated location, and so the law enforcement agency that picked the noncontracting tower should bear the bill in the meantime. The AG rejected this reading. Possession and the retrieval-and-pay duty were two different things; the duty was triggered by the choice of tower, not by where the vehicle ended up sitting.
Recovery of costs. Under G.S. §§ 20-28.3(i) and (l), the board's costs could be recovered out of the proceeds of the forfeiture sale. If the sale proceeds did not cover the costs, the board could execute on the judgment for costs against the convicted driver, using the mechanism in G.S. § 20-28.5(b). If the board's actual storage payment exceeded what it would have paid under its own contract, recovery was limited to the contracted-rate amount, unless the board had retrieved the vehicle within 10 days.
Why this mattered in practice. A "local rotation" tow company set its own rates, often higher than what a statewide bulk contract negotiated. A school board could end up paying $250 for a tow that would have cost $90 under its statewide contract. Boards were stuck eating the gap unless they could either negotiate directly with the law enforcement agency or persuade officers to call the contracted tower.
Common questions
Q: Could a sheriff insist on using his rotation list instead of the board's contracted tower?
A: The opinion did not directly resolve that. It said only that when a noncontracting tower was used, the board still had to pay and retrieve, and that whether the board could later sue the law enforcement agency for the extra cost depended on the particular facts.
Q: What if the board missed the 10-day deadline?
A: The board still owed the towing company, but its recoverable costs were capped at the rates in its statewide, regional, or local contract. The board ate the difference.
Q: Were Department of Public Instruction-administered tows handled differently?
A: Yes, slightly. The statute placed DPI in constructive possession (on behalf of the State) when a statewide contract was used. That detail did not change the basic rule that the contracted tower had to be called when a covering contract existed.
Q: Could the convicted driver be billed for the full noncontracting-tower rate?
A: The judgment for costs and the sale proceeds were the recovery vehicles. The amount recoverable was whatever the statute permitted the board to recover, which the AG limited to the contracted rates absent a timely 10-day retrieval.
Citations from the opinion
- N.C. Gen. Stat. § 20-28.3(d)
- N.C. Gen. Stat. § 20-28.3(i)
- N.C. Gen. Stat. § 20-28.3(l)
- N.C. Gen. Stat. § 20-28.5(b)
Source
- Landing page: https://ncdoj.gov/opinions/seizure-of-vehicles-for-offenses-involving-impaired-driving/
Original opinion text
Re: Advisory Opinion; Seizure of Vehicles for Offenses Involving Impaired Driving While License Revoked; Responsibility for Towing Charges; G.S. § 20-28.3
Dear Mr. Inabinett:
On behalf of the Davidson County Board of Education, you have written to request our opinion regarding the responsibility for towing charges incurred when a vehicle is seized pursuant to G.S. § 20-28.3, "Seizure, impoundment, forfeiture of motor vehicles for offenses involving impaired driving while license revoked."
According to your letter, the Davidson County Board of Education has contracted with a statewide contractor to tow vehicles subject to seizure. You further represent, however, that local law enforcement officers frequently do not call that contractor to tow the vehicles. Instead of calling the company with which the board of education has contracted, the officers are calling the next towing company on the regular "local rotation." In light of those facts, you have asked whether the local board of education or the law enforcement authority is responsible for paying the towing charges.
G.S. § 20-28.3(d) provides in pertinent part:
Unless the motor vehicle is towed pursuant to a statewide or regional contract, or a contract with the county board of education, the seized motor vehicle shall be towed by a commercial towing company designated by the law enforcement agency that seized the motor vehicle. Seized motor vehicles not towed pursuant to a statewide or regional contract or a contract with a county board of education shall be retrieved from the commercial towing company within a reasonable time, not to exceed 10 days, by the county board of education or their agent who must pay towing and storage fees to the commercial towing company when the motor vehicle is retrieved. . . . The seized motor vehicle is under the constructive possession of the county board of education for the county in which the operator of the vehicle is charged at the time the vehicle is delivered to a location designated by the county board of education or delivered to its agent pending release or sale, or in the event a statewide or regional contract is in place, under the constructive possession of the Department of Public Instruction, on behalf of the State at the time the vehicle is delivered to a location designated by the Department of Public Instruction or delivered to its agent pending release or sale.
(Emphasis added).
This statute clearly provides that, whenever a vehicle is towed by a company that is not under statewide or regional contract, the local board of education must retrieve the vehicle and pay the towing and storage charges within 10 days. The fact that the local board of education or the Department of Public Instruction has entered into a statewide or regional contract with another towing company is immaterial because, under the facts of your letter, the vehicle in question was not towed pursuant to such a contract.
It is true that the local board does not have constructive possession of the vehicle until it is delivered to the location it designates. But possession of the vehicle, actual or constructive, is also irrelevant to the LEA's obligation under G.S. § 20-28.3(d) to retrieve the vehicle from the commercial towing company within 10 days and pay the towing and storage fees.
Provided the local board has retrieved the vehicle within 10 days, it is entitled to recover the actual storage fees paid to the noncontracting towing company. Otherwise, it is our opinion that the local board is limited to recovering no more than the storage costs that it is authorized to charge under the statewide, regional or local towing and storage contract made under G.S. § 20-28.3(d). Those costs may be recovered when the vehicle is sold or, if the proceeds of the sale are insufficient to cover those costs, by executing on the judgment for costs imposed on the convicted driver. G.S. §§ 20-28.3(i) and 28.3(l); § 20-28.5(b). Whether the local board may proceed against the local law enforcement agency or officer to recover the additional costs associated with the noncontracting company's towing and storage of the vehicle depends upon the particular facts of an individual case and is beyond the scope of this opinion.
We recognize the difficulties the present statutory scheme creates and the burdens it places upon local school systems. However, it is our view that these problems will require legislative action if they are to be corrected.
Signed by:
Grayson G. Kelley, Senior Deputy Attorney General
Thomas J. Ziko, Special Deputy Attorney General