[Ord. 2004-18, 6-21-2004, § 1; Ord. 2007-01, 2-5-2007, §§ 1, 2; Ord. 2017-45, 10-2-2017; Ord. 2020-05, 3-3-2020, § 3]
(a)
Vehicle Use During Commission of Offense. Any motor vehicle operated or used, with the express or implied permission of the registered owner of record (as registered with the Secretary of State, State of Illinois), during the commission of or in furtherance of any offense or violation set forth in Subsection (b) of this section, shall be subject to seizure and impoundment by the Village, and the owner of record of said vehicle may be liable to the Village for an administrative penalty in an amount not to exceed $500, in addition to any towing and storage fees as hereinafter provided.
(b)
Violations or Offenses Subject to Seizure and Impoundment.
(1)
Driving while driver's license, permit, or privilege to operate
a motor vehicle is suspended or revoked, in violation of Section 6-303
of the Illinois Vehicle Code or similar provision of this chapter,
provided, however, motor vehicles shall not be subject to seizure
and impoundment if the suspension is for an unpaid parking citation
or moving violation citation or suspension due to failure to comply
with emissions testing;
(2)
Driving under the influence of alcohol, other drug or drugs,
intoxicating compound or compounds, or any combination thereof, in
violation of Section 11-501 of the Illinois Vehicle Code or similar
provision of this chapter;
(3)
Unlawful use of a firearm (UUW), aggravated discharge of a firearm,
reckless discharge of a firearm, or unlawful possession of a firearm
and firearm ammunition;
(4)
Operation of a motor vehicle while unlawfully soliciting cannabis
or a controlled substance as defined by the Illinois Cannabis Control
Act or the Illinois Controlled Substances Act;
(5)
Solicitation of a sexual act, soliciting for a prostitute;
(6)
Operation or use of a motor vehicle in the commission or attempted
commission of any offense for which a motor vehicle may be seized
and forfeited pursuant to 720 Illinois Compiled Statutes 5/36-1 et
seq.;
(7)
Operation or use of a motor vehicle in the commission or attempted
commission of any offense in violation of the Illinois Controlled
Substances Act;
(8)
Operation or use of a motor vehicle in connection with the commission
or attempted commission of any felony offense in violation of the
provision of the Illinois Cannabis Control Act;
(9)
Operating a motor vehicle with an expired driver's license in
violation of Section 6-101 of the Illinois Vehicle Code and the period
of expiration is greater than one year, or similar provision of this
chapter; and
(10)
Operating of a motor vehicle without having ever been issued
a driver's license or permit in violation of Section 6-101 of the
Illinois Vehicle Code, or operating a motor vehicle without ever having
been issued a driver's license or permit due to a person's age, or
similar provision of this chapter.
(c)
Existing Regulations Not Abrogated.
(1)
This section shall be in addition to and shall not replace or
otherwise abrogate any existing State or Federal law or Village ordinance
that relates to the seizure and/or impoundment of motor vehicles,
and any penalty provided in this section shall be in addition to any
and all penalties that may be assessed or imposed by a court for violation
of any criminal offense or local ordinance violation offense.
(2)
Any and all fees for towing and storage of a vehicle under this
section shall be those approved by the Chief of Police for all towing
companies authorized to tow for the Village.
(d)
Exceptions. The provisions of this section are inapplicable if at
the time of the offense the vehicle used in the violation was stolen
or otherwise operated without the knowledge and express or implied
consent of the registered owner, and the theft was reported to the
appropriate police authority within 24 hours after the theft was discovered.
(e)
Notice.
(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 effected an arrest for any of the offenses
set forth in Subsection (b) of this section, the police officer shall
provide for the towing of the vehicle to a facility authorized by
the Village. As soon as practicable before the vehicle is towed, the
police officer shall make a reasonable attempt to notify the owner
or any person identifying himself/herself as the owner of the vehicle,
or any person who is found to be in 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 in accordance with Subsection (f) of this
section. The vehicle shall be impounded pending the completion of
the hearing(s) provided for in Subsections (f) and (g) of this section,
unless the owner of the vehicle posts with the Village a cash bond
in the amount of $500 and pays the towing and storage charges.
(2)
Notwithstanding the provisions of Subsection (e)(1) of this
section, 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
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, be in violation of the Illinois Vehicle Code.
(3)
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, be in violation
of the Illinois Vehicle Code.
(f)
Preliminary Hearing. If the owner of record of a vehicle seized and impounded desires to appeal the seizure and impoundment of the vehicle he or she must make a request for a preliminary hearing within 24 hours of the seizure. The request shall be deemed filed upon delivery to the Chief of Police c/o the Elmwood Park Police Department. The preliminary hearing request shall be in writing and the Chief of Police or his designee shall conduct the preliminary hearing within 24 hours after receipt of the request, excluding Saturdays, Sundays, or Village 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 hearing, and hearsay evidence shall be admissible only if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs. If, after the hearing, the Chief of Police or his designee determines 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 Village a cash bond in the amount of $500, and pays any applicable towing and storage fees. If the Chief of Police or his/her designee determines that there is no such probable cause to believe the vehicle was used or operated during the commission or attempted commission of the offenses set forth in Subsection (b) of this section, then the vehicle shall be returned to the registered owner without penalty or other fees.
(g)
Hearing. Within 10 days after a vehicle is seized and impounded, the Village Manager shall notify the registered owner of record by certified mail, return receipt requested, and first class mail, postage prepaid, of the date, time, and location of a hearing that will be conducted. The owner shall appear at the hearing and enter a plea of liable or not liable. If a plea of liable is entered, the case will be disposed of at that time. If the owner pleads not liable, a final impoundment hearing shall be scheduled and held no later than 45 days after the vehicle was seized and impounded, unless continued by order of a 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 any party, direct witnesses to appear and give testimony at the hearing. Subpoenas for the production of witnesses and records may be issued upon request and for good cause. The formal rules of evidence shall not apply at the hearing, and hearsay evidence shall be admissible only if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs. If, after the hearing, the Hearing Officer determines by a preponderance of the evidence that the vehicle was used or operated in connection with or during the commission or attempted commission of any of those offenses set forth in Subsection (b) of 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 penalty in an amount not to exceed $500, and requiring the vehicle to continue to be impounded until the owner pays the administrative penalty to the Village plus any and all fees to the tower or Village 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 Village, 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 violation occurred, the Hearing Officer shall order the immediate return of the vehicle and cash bond to the owner without assessing any fees or penalty.
(h)
Administrative Penalty. If an administrative penalty is imposed,
the penalty shall constitute a debt due and owing to the Village of
Elmwood Park. If a cash bond has been posted the bond shall be applied
to the penalty. If a vehicle is impounded when a penalty 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 otherwise
provided in this section, a vehicle shall continue to be impounded
until the penalty is paid to the Village and any applicable towing
and storage fees are paid to the tower or Village, 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 30 days after the expiration
of time in 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 Illinois Vehicle Code.
(i)
Vehicle Possession. Except as may otherwise be provided by law or
by order of the Hearing Officer, no owner, lien holder, or other person
shall be legally entitled to take possession of a seized and impounded
vehicle until the administrative penalty and towing and storage fees
have been paid. However, whenever a person or other entity 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 towing and storage fees.
(j)
Hearing Officer. The Hearing Officer shall be appointed by the Village
Manager of the Village of Elmwood Park, and he or she 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.
(k)
Appeal. Any party may appeal a final decision of the Hearing Officer
pursuant to the provision of the Illinois Administrative Review Act.
