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6373 Thursday, July 15, 2004.
George. Please Fax me your license.
Testing a new procedure.
They can’t take your exempt property!
Answer to George about his car impound.
Posted as message #1847 at my group.
George:
1. Read 14602.6 on this page. If you were legally driving with a learner’s permit then you can get your car back for sure. If you cannot make statute work for you then we will argue the overbreadth of 14602.6 . You may face obstacles.
2 The statute is overbroad in that it vests unbridled discretion in police officers. This results in invidious discrimination against person not in the favor of the police, like young men dressed like the guys on MTV. Here is my overbreadth page at this link: http://www.lawyerdude.8m.com/5409.html
3. We should file a section 1983 lawsuit in federal court! Here are my previous section 1983 complaints:
http://www.lawyerdude.netfirms.com/6008.html
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Contents and highlights:
Lawyerdude says:
Here is vehicle code 14602.6:
14602.6.
(a) Whenever a peace officer determines that a person was driving a vehicle while his or her driving privilege was suspended or revoked or without ever having been issued a driver's license, the peace officer may either immediately arrest that person and cause the removal and seizure of that vehicle or, if the vehicle is involved in a traffic collision, cause the removal and seizure of the vehicle, without the necessity of arresting the person in accordance with Chapter 10 (commencing with Section 22650) of Division 11. A vehicle so impounded shall be impounded for 30 days. The impounding agency, within two working days of impoundment, shall send a notice by certified mail, return receipt requested, to the legal owner of the vehicle, at the address obtained from the department, informing the owner that the vehicle has been impounded. Failure to notify the legal owner within two working days shall prohibit the impounding agency from charging for more than 15 days' impoundment when the legal owner redeems the impounded vehicle. The impounding agency shall maintain a published telephone number that provides information 24 hours a day regarding the impoundment of vehicles and the rights of a registered owner to request a hearing.
(b) The registered and legal owner of a vehicle that is removed and seized under subdivision (a) or their agents shall be provided the opportunity for a storage hearing to determine the validity of, or consider any mitigating circumstances attendant to, the storage, in accordance with Section 22852.
(c) Any period in which a vehicle is subjected to storage under this section shall be included as part of the period of impoundment ordered by the court under subdivision (a) of Section 14602.5.
(d) (1) An impounding agency shall release a vehicle to the registered owner or his or her agent prior to the end of 30 days' impoundment under any of the following circumstances: (A) When the vehicle is a stolen vehicle. (B) When the vehicle is subject to bailment and is driven by an unlicensed employee of a business establishment, including a parking service or repair garage.
(C) When the license of the driver was suspended or revoked for an offense other than those included in Article 2 (commencing with Section 13200 (here is part of 13200: Whenever any person licensed under this code is convicted of a violation of any provision of this code relating to the speed of vehicles) of Chapter 2 of Division 6
or Article 3 (commencing with Section 13350) of Chapter 2 of Division 6. (Here is part of 13350: 13350. (a) The department immediately shall revoke the privilege of any person to drive a motor vehicle upon receipt of a duly certified abstract of the record of any court showing that the person has been convicted of any of the following crimes or offenses: (1) Failure of the driver of a vehicle involved in an accident resulting in injury or death to any person to stop or otherwise comply with Section 20001. (2) Any felony in the commission of which a motor vehicle is used, except as provided in Section 13351, 13352, or 13357. (3) Reckless driving causing bodily injury.)
(D) When the vehicle was seized under this section for an offense that does not authorize the seizure of the vehicle.
(E) When the driver reinstates his or her driver's license or acquires a driver's license and proper insurance. (2) No vehicle shall be released pursuant to this subdivision without presentation of the registered owner's or agent's currently valid driver's license to operate the vehicle and proof of current vehicle registration, or upon order of a court. (e) The registered owner or his or her agent is responsible for all towing and storage charges related to the impoundment, and any administrative charges authorized under Section 22850.5. (f) A vehicle removed and seized under subdivision (a) shall be released to the legal owner of the vehicle or the legal owner's agent prior to the end of 30 days' impoundment if all of the following conditions are met: (1) The legal owner is a motor vehicle dealer, bank, credit union, acceptance corporation, or other licensed financial institution legally operating in this state or is another person, not the registered owner, holding a security interest in the vehicle. (2) The legal owner or the legal owner's agent pays all towing and storage fees related to the seizure of the vehicle. No lien sale processing fees shall be charged to the legal owner who redeems the vehicle prior to the 15th day of impoundment. Neither the impounding authority nor any person having possession of the vehicle shall collect from the legal owner of the type specified in paragraph (1), or the legal owner's agent any administrative charges imposed pursuant to Section 22850.5 unless the legal owner voluntarily requested a poststorage hearing. (3) The legal owner or the legal owner's agent presents either lawful foreclosure documents or an affidavit of repossession for the vehicle, and a security agreement or title showing proof of legal ownership for the vehicle. Any documents presented may be originals, photocopies, or facsimile copies, or may be transmitted electronically. The impounding agency shall not require any documents to be notarized. The impounding agency may require the agent of the legal owner to produce a photocopy or facsimile copy of its repossession agency license or registration issued pursuant to Chapter 11 (commencing with Section 7500) of Division 3 of the Business and Professions Code, or to demonstrate, to the satisfaction of the impounding agency, that the agent is exempt from licensure pursuant to Section 7500.2 or 7500.3 of the Business and Professions Code. No administrative costs authorized under subdivision (a) of Section 22850.5 shall be charged to the legal owner of the type specified in paragraph (1), who redeems the vehicle unless the legal owner voluntarily requests a post storage hearing. No city, county, city or county, or state agency shall require a legal owner or a legal owner's agent to request a poststorage hearing as a requirement for release of the vehicle to the legal owner or the legal owner's agent. The impounding agency shall not require any documents other than those specified in this paragraph. The impounding agency shall not require any documents to be notarized. As used in this paragraph, "foreclosure documents" means an "assignment" as that term is defined in subdivision (o) of Section 7500.1 of the Business and Professions Code. (g) (1) A legal owner or the legal owner's agent that obtains release of the vehicle pursuant to subdivision (f) may not release the vehicle to the registered owner of the vehicle or any agents of the registered owner, unless the registered owner is a rental car agency, until after the termination of the 30-day impoundment period. (2) The legal owner or the legal owner's agent may not relinquish the vehicle to the registered owner until the registered owner or that owner's agent presents his or her valid driver's license or valid temporary driver's license to the legal owner or the legal owner's agent. The legal owner or the legal owner's agent shall make every reasonable effort to ensure that the license presented is valid. (3) Prior to relinquishing the vehicle, the legal owner may require the registered owner to pay all towing and storage charges related to the impoundment and any administrative charges authorized under Section 22850.5 that were incurred by the legal owner in connection with obtaining custody of the vehicle. (h) (1) A vehicle removed and seized under subdivision (a) shall be released to a rental car agency prior to the end of 30 days' impoundment if the agency is either the legal owner or registered owner of the vehicle and the agency pays all towing and storage fees related to the seizure of the vehicle. (2) The owner of a rental vehicle that was seized under this section may continue to rent the vehicle upon recovery of the vehicle. However, the rental car agency may not rent another vehicle to the driver of the vehicle that was seized until 30 days after the date that the vehicle was seized. (3) The rental car agency may require the person to whom the vehicle was rented to pay all towing and storage charges related to the impoundment and any administrative charges authorized under Section 22850.5 that were incurred by the rental car agency in connection with obtaining custody of the vehicle. (i) Notwithstanding any other provision of this section, the registered owner and not the legal owner shall remain responsible for any towing and storage charges related to the impoundment, any administrative charges authorized under Section 22850.5, and any parking fines, penalties, and administrative fees incurred by the registered owner. (j) The impounding agency shall not be liable to the registered owner for the improper release of the vehicle to the legal owner or the legal owner's agent provided the release complies with the provisions of this section.
1.
1. They can't take your last car. That much I can prove by looking up the exemptions.
CODE OF CIVIL PROCEDURE SECTION 704.010-704.210
704.010. (a) Any combination of the following is exempt in the
amount of two thousand three hundred dollars ($2,300):
(1) The aggregate equity in motor vehicles.
(2) The proceeds of an execution sale of a motor vehicle.
2. They cannot take your property, your driver license, nor your car without a hearing. That much is in Bell v Burson which is at my link here:
http://www.circuitlawyer.8m.com/Burson.html
CHAPTER 4. EXEMPTIONS
Article 1. General Provisions ......................... 703.010-703.150
Article 2. Procedure for Claiming Exemptions After Levy 703.510-703.610
Article 3. Exempt Property ............................ 704.010-704.21
The above is copied from www.findlaw.com
Now let's take a look at the procedure.
703.510. (a) Except as otherwise provided by statute, property that
has been levied upon may be claimed to be exempt as provided in this
article.
(b) If property that is exempt without making a claim is levied
upon, it may be released pursuant to the exemption procedure provided
in this article.
703.520. (a) The claimant may make a claim of exemption by filing
with the levying officer a claim of exemption together with a copy
thereof. The claim shall be made within 10 days after the date the
notice of levy on the property claimed to be exempt was served on the
judgment debtor.
(b) The claim of exemption shall be executed under oath and shall
include all of the following:
(1) The name of the claimant and the mailing address where service
of a notice of opposition to the claim may be made upon the
claimant.
(2) The name and last known address of the judgment debtor if the
claimant is not the judgment debtor.
(3) A description of the property claimed to be exempt. If an
exemption is claimed pursuant to Section 704.010 or 704.060, the
claimant shall describe all other property of the same type
(including exempt proceeds of property of the same type) owned by the
judgment debtor alone or in combination with others on the date of
levy and identify the property, whether or not levied upon, to which
the exemption is to be applied. If an exemption is claimed pursuant
to subdivision (b) of Section 704.100, the claimant shall state the
nature and amount of all other property of the same type owned by the
judgment debtor or the spouse of the judgment debtor alone or in
combination with others on the date of levy.
(4) A financial statement if required by Section 703.530.
(5) A citation of the provision of this chapter or other statute
upon which the claim is based.
(6) A statement of the facts necessary to support the claim.
703.530. (a) If property is claimed as exempt pursuant to a
provision exempting property to the extent necessary for the support
of the judgment debtor and the spouse and dependents of the judgment
debtor, the claim of exemption shall include a financial statement.
(b) The financial statement shall include all of the following
information:
(1) The name of the spouse of the judgment debtor.
(2) The name, age, and relationship of all persons dependent upon
the judgment debtor or the spouse of the judgment debtor for support.
(3) All sources and the amounts of earnings and other income of
the judgment debtor and the spouse and dependents of the judgment
debtor.
(4) A list of the assets of the judgment debtor and the spouse and
dependents of the judgment debtor and the value of such assets.
(5) All outstanding obligations of the judgment debtor and the
spouse and dependents of the judgment debtor.
(c) The financial statement shall be executed under oath by the
judgment debtor and, unless the spouses are living separate and
apart, by the spouse of the judgment debtor.
703.540. Promptly after the filing of the claim of exemption, the
levying officer shall serve both of the following on the judgment
creditor personally or by mail:
(a) A copy of the claim of exemption.
(b) A notice of claim of exemption stating that the claim of
exemption has been made and that the levying officer will release the
property unless, within the time allowed as specified in the notice,
both of the following are filed with the levying officer:
(1) A copy of the notice of opposition to the claim of exemption.
(2) A copy of the notice of motion for an order determining the
claim of exemption.
703.550. Within 10 days after service of the notice of claim of
exemption, a judgment creditor who opposes the claim of exemption
shall file with the court a notice of opposition to the claim of
exemption and a notice of motion for an order determining the claim
of exemption and shall file with the levying officer a copy of the
notice of opposition and a copy of the notice of motion. Upon the
filing of the copies of the notice of opposition and notice of
motion, the levying officer shall promptly file the claim of
exemption with the court. If copies of the notice of opposition and
notice of motion are not filed with the levying officer within the
time allowed, the levying officer shall immediately release the
property to the extent it is claimed to be exempt.
703.560. The notice of opposition to the claim of exemption shall
be executed under oath and shall include both of the following:
(a) An allegation either (1) that the property is not exempt under
the provision of this chapter or other statute relied upon or (2)
that the equity in the property claimed to be exempt is in excess of
the amount provided in the applicable exemption.
(b) A statement of the facts necessary to support the allegation.
703.570. (a) The hearing on the motion shall be held not later than
20 days from the date the notice of motion was filed with the court
unless continued by the court for good cause.
(b) Not less than 10 days prior to the hearing, the judgment
creditor shall serve a notice of the hearing and a copy of the notice
of opposition to the claim of exemption on the claimant and on the
judgment debtor, if other than the claimant. Service shall be made
personally or by mail.
703.580. (a) The claim of exemption and notice of opposition to the
claim of exemption constitute the pleadings, subject to the power of
the court to permit amendments in the interest of justice.
(b) At a hearing under this section, the exemption claimant has
the burden of proof.
(c) The claim of exemption is deemed controverted by the notice of
opposition to the claim of exemption and both shall be received in
evidence. If no other evidence is offered, the court, if satisfied
that sufficient facts are shown by the claim of exemption (including
the financial statement if one is required) and the notice of
opposition, may make its determination thereon. If not satisfied,
the court shall order the hearing continued for the production of
other evidence, oral or documentary.
(d) At the conclusion of the hearing, the court shall determine by
order whether or not the property is exempt in whole or in part.
Subject to Section 703.600, the order is determinative of the right
of the judgment creditor to apply the property to the satisfaction of
the judgment. No findings are required in a proceeding under this
section.
(e) The court clerk shall promptly transmit a certified copy of
the order to the levying officer. Subject to Section 703.610, the
levying officer shall, in compliance with the order, release the
property or apply the property to the satisfaction of the money
judgment.
(f) Unless otherwise ordered by the court, if an exemption is not
determined within the time provided by Section 703.570, the property
claimed to be exempt shall be released.
703.590. If the court extends the time allowed for an act to be
done under this article, written notice of the extension shall be
filed with the levying officer and, unless notice is waived, shall be
served promptly on the opposing party. Service shall be made
personally or by mail.
703.600. An appeal lies from any order made under this article.
703.610. (a) Except as otherwise provided by statute or ordered by
the court, the levying officer shall not release, sell, or otherwise
dispose of the property for which an exemption is claimed until an
appeal is waived, the time to file an appeal has expired, or the
exemption is finally determined.
(b) At any time while the exemption proceedings are pending, upon
motion of the judgment creditor or a claimant, or upon its own
motion, the court may make any orders for disposition of the property
that may be proper under the circumstances of the case. The order
may be modified or vacated by the court at any time during the
pendency of the exemption proceedings upon any terms that are just.
(c) If an appeal of the determination of a claim of exemption is
taken, notice of the appeal shall be given to the levying officer and
the levying officer shall hold, release, or dispose of the property
in accordance with the provisions governing enforcement and stay of
enforcement of money judgments pending appeal.
============================
George said: please be advised that this is the first time I have been involved in this kinda' situation sorry I wasn't so informed. Thanks for the follow up and links to all different cases! I do have one question: How do I go about fighting my impoundment fees? Here is my situation hope this information is sufficient !
I do have a "notice to appear" from the Costa Mesa Police Department given to me on 6/28/04 at 4:29am. Citation to me claiming I was an unlicensed driver pulled over for not having my front lights on "beamers". police officer "Hannon" as approaching my vehicle asked "how much alcohol have you been drinking tonight?" I replied "none sir I haven't been drinking" He then said "To me you look like you been drinking" then asked to see my drivers licence registration and insurance. At this time I handed him a copy of my "Permit" with attached DMV issued picture. registration (which I am the registered owner) and proof of insurance (which is also under my name). At this time he went on CB to call another office to assist (can not remember the officers name). About 10 minutes later comes back asked me to step out of my car and puts me thru a line of test thinking I was driving under the influence. Took about 5 minutes for the second officer to arrive. As he finished the test had no conclusion of me driving under the influence and as though he doubted me not being drunk the second offer decided to test me again. Point blank I was not driving under the influence. This is when je told me to go back to my car and about 5-8 minutes later asked me to hand over the keys that under law because I was driving without "proof" of being a "licenced" driver he had to impound my car. Not listening to my concerns and I quote the officer Hannon "Are you arguing with me ?" told me to gather all my personal belongings including "Any weapons or illegal drugs." I told him how do I get home? I have no money! Officer Hannon replied "There's a 711 down the street (about a 15 minute walk) call a taxi." My car was impounded under the law in vehicle code section 14602.6 of the California vehicle code. This law allows a police officer to seize a vehicle operated by a person whose licence is suspended or revoked or who has never been issued a licence. The seized vehicle then be impounded for 30 days. In California a driver must be stopped for another infraction before his/her licence can be checked, The vehicle can be reclaimed by the owner after the specified time and the owner must pay all fees associated with the impoundment.
Being that said I am now in question as to how ? and why ? Am I forced to pay for impoundment fees if I was not recklessly driving or being a "safety hazard" if only simply stopped for the fact that I had my front lights off. I was a licenced driver "Permit". What kind of rights do I have?? Hoe do I go about not paying such high impound fees ? I need my car to transport my sister to school on a daily basis along with one of her friends "car pool" after I take it to work. I am not a rich man I need my car this is my last car. I am set to go to court on Tuesday July 20th 2004 for the citation (is this the proper court for me to plea my cause for not paying fees ? what kinda' thing's can I say to this particular judge?) This will be held at the Newport beach Harbor justice center court located at 4601 Jamboree rd Newport Beach Ca 92660 phone 949-476-4699
The name of the towing place is unknown since officer did not give me information of where my car will be impounded to nor did I receive a letter from the impound place to notify me of where my car is. Please reply to me ASAP or at your convenience as I am due in court in less then a week. And the 30 day impound will be over on July 24 2004
thanks for you time I am greatly appreciated
George Molina
geo90201@earthlink.net