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 contracted with a towing company for vehicles seized under the impaired-driving-while-license-revoked statute. Its counsel reported that officers frequently called a company from the regular local rotation instead. The Board asked whether it or the law enforcement authority had to pay those towing charges. The Attorney General answered that the local board had to retrieve the vehicle and pay the commercial tower's towing and storage fees when the vehicle was not actually towed under a statewide, regional, or board contract.

The distinction comes from G.S. § 20-28.3(d). The statute says a vehicle not towed under one of those contracts must be retrieved by the county board or its agent within a reasonable time, no more than ten days, and the board or agent must pay the commercial towing company when retrieving it. The opinion says the existence of a separate towing contract is immaterial to that duty if the particular vehicle was not towed under the contract. The board's duty also does not wait for it to take actual or constructive possession of the car.

If the board retrieves the vehicle within ten days, the opinion says it may recover the actual storage fees paid to the noncontracting company. Otherwise, recovery is limited to the storage costs authorized by the applicable statewide, regional, or local towing and storage contract. Those costs may be recovered from a later vehicle sale or, if sale proceeds are insufficient, by executing on the judgment for costs against the convicted driver.

The opinion does not decide whether an officer was obliged to call a contracted tower in the first place. Nor does it decide whether the board can recover additional costs from a law enforcement agency or officer; it says that question depends on the facts of the individual case.

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.

For a current tow or recovery question, check the present statute and the relevant towing contract.

Common questions

Q: Who pays when officers use a local-rotation tower outside the board's contract?
A: Under the statute discussed in the opinion, the county board or its agent retrieves the vehicle and pays towing and storage fees to that commercial company upon retrieval.

Q: Does having a towing contract change that payment duty?
A: The opinion says no when the vehicle was not in fact towed under the contract. It treats the existing contract as immaterial to the board's retrieval-and-payment obligation for that tow.

Q: Did the Attorney General require officers to call the contracted tower?
A: The opinion does not decide that question. Its answer concerns payment and recovery after officers used a noncontracting company.

Q: Can the board recover storage costs it paid?
A: The opinion says a board retrieving within ten days may recover actual storage fees paid to the noncontracting tower. Otherwise recovery is limited to the contract-authorized storage costs. It identifies sale proceeds and a judgment for costs against a convicted driver as recovery paths.

Q: Can the board seek the extra cost from the officer or agency?
A: The opinion leaves that issue open because it depends on the facts of an individual case.

Background and statutory framework

G.S. § 20-28.3(d), as quoted in the opinion, describes tows under statewide, regional, and county-board contracts and provides a separate retrieval and payment rule for vehicles not towed under such a contract. The Davidson County request arose because officers were using the local towing rotation instead of the company with which the board had contracted. The Attorney General applied the separate rule to those tows and then addressed how much of the board's storage payment could later be recovered.

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