We've already discussed racing (which includes exhibition of speed), reckless driving, and vehicle impound separately. Effective April 2021 though, the city of Phoenix has joined these three topics together. Phoenix passed an ordinance in March 2021 that became effective April 2021. This ordinance allows police to impound a vehicle if they allege the driver was engaged in racing, exhibition of speed, or reckless driving.
This new law can be found in Phoenix municipal code Sec. 36-70.01(A):
This impound is not mandatory, although it appears the police are telling drivers it is. Don't be fooled, the police have the discretion to not impound a vehicle too.
This is a city of Phoenix law, not a State of Arizona law
This impound law is specific to Phoenix. Other cities may enact similar laws, but the State of Arizona has no law permitting the impound of vehicles when racing or reckless driving has been alleged.
Can a driver get the vehicle out of impound before the 30 days run?
An owner of the vehicle may request a hearing. Within two business days of the impoundment, Phoenix Police Department must mail all of the registered owners a notice of of immobilization. An owner may then request a hearing within 10 days of the date of the notice (not date of receipt of the notice). If a hearing is timely required, then the Phoenix Police Department will hold a hearing to decide whether or not Phoenix Police Department properly impounded the car. If a hearing is not timely requested, the right to a hearing is considered waived.
At the hearing, Phoenix Police Department must show the Phoenix Police Department, by a preponderance of the evidence, that the subject vehicle was properly impounded by the Phoenix Police Department. No rules of evidence apply, and any relevant evidence may be admitted at the hearing. Whether or not there was probably cause for the arrest underlying the impoundment is not considered.
Otherwise, there are some very narrow exceptions that would permit early release of the vehicle. However, early release seems to be limited to five circumstances:
- The vehicle was stolen and the owner was not the one driving.
- The vehicle was a rental, and the rental car company can get it out of impound.
- The vehicle belongs to a business, and an employee was driving it, then the business can get it out of impound.
- "If the vehicle was subject to bailment and was driven by an employee of a business." Think a valet, or a mechanic at the shop where the car was getting repaired.
- Anyone who holds a security interest in the vehicle and who is repossessing the vehicle.
Note that these exceptions do not include loaning the car to a friend or your child who then gets a racing ticket.
The impound will be expensive.
The owner of the vehicle (including the owner's spouse) will be responsible for "all immobilization, towing and storage charges" related to the impoundment. This could easily exceed $1,000.
Why did this law get enacted?
We have previously discussed street racing in the valley and that Phoenix even has a street racing task force. Phoenix is getting a lot of pressure from business owners and the general public to combat street racing. Despite issuing thousands of tickets for racing and reckless driving, the street racing persists. Phoenix believes impoundment will help deter street racing. This attorney thinks impounding vehicles is unlikely to make a difference, but it will certainly generate some revenue for tow companies.
Potential problems with this impound law.
This impoundment law arguably violates the Fourth Amendment of the U.S. Constitution. The Fourth Amendment prohibits unreasonable searches and seizures. The issue being that the vehicle is impounded before the defendant - the driver - has a chance to dispute the charge in court.
The counter argument is that the impound does not violate the Fourth Amendment because impoundment is legal in other situations, such as driving on a suspended license or an arrest for an extreme DUI.
As with many legal issues, this Fourth Amendment issue is unclear and arguments can be made both ways. What is certain though is that if the government wants something badly enough, they will engage in whatever tortured legal argument is necessary to get there. In other words, there is not much chance of this law being found unconstitutional.