Sec. 76-216. - Removal and impounding of illegally parked vehicles.

(a)

Generally. Any police officer may remove and impound, or cause to be removed or impounded, any vehicle illegally parked upon any street or highway in such violation of any parking regulation or ordinance (other than overtime parking) as to constitute an obstruction to traffic or as to create an unsafe condition, thus jeopardizing public safety; provided, nevertheless, that the police department shall, within 48 hours, notify the vehicle owner of the removal or impoundment and of the opportunity for a hearing before the municipal court at which the owner may contest the towing (or the deprivation of the vehicle) and the payment of costs or charges accompanying the towing or impoundment; all substantially in accordance with the procedure set forth in subsection (b) of this section.

(b)

Post-seizure hearing.

(1)

Notice and request for hearing. As to any vehicle towed or impounded pursuant to this section by or at the request of the city or its agents or employees, a person who has a legal entitlement to possession of the vehicle has a right to a post-seizure hearing to determine whether there was probable cause to impound the vehicle if such person files a written demand on forms so provided for such a hearing with the municipal court within ten days after such person has learned such vehicle has been impounded, or within ten days after the mailing of the date set in the notice of stored vehicle, whichever occurs first. The notice of stored vehicle shall be sent in the mail to the legal and registered owner, or his or her agent, and to the garage where the vehicle is stored, within 72 hours, excluding weekends and holidays, after impounding and storage of the vehicle.

(2)

Conduct of hearing.

a.

A hearing shall be conducted before the judge of the municipal court within 48 hours of receipt of a written demand therefor from the person seeking the hearing, unless such person waives the right to a speedy hearing. Saturdays, Sundays, and legal and city holidays are to be excluded from the calculation of the 48-hour period. The sole issue before the judge shall be whether there was probable cause to impound the vehicle in question.

b.

"Probable cause to impound" shall mean such a state of facts as would lead a person of ordinary care and prudence to believe that there was a sufficient breach of local, state or federal law to grant legal authority for the removal of the vehicle.

c.

The person demanding the hearing shall carry the burden of establishing that such person has the right to possession of the vehicle. The police department shall carry the burden of establishing that there was probable cause to impound the vehicle in question. At the conclusion of the hearing, the judge shall prepare a brief written decision. A copy of such decision shall be provided to the registered owner of the vehicle. The judge's decision in no way affects any criminal proceeding in connection with the impoundment in question, and any criminal charges involved in such proceeding may only be challenged in the appropriate court. The decision of the judge is final. Failure of the registered or legal owner or his/her agent to request or attend a scheduled post-seizure hearing shall be deemed a waiver of the right to such hearing.

(3)

Decisions of judge and their effect. The judge shall only determine that, as to the vehicle in question, either there was probable cause to impound the vehicle or there was no such probable cause. In the event that the judge determines that there was no probable cause, the judge shall prepare and date a certificate of no probable cause, copies of which shall be given to the possessor of the vehicle and the police department. Upon receipt of the possessor's copy of such certificate, the official towing service company having custody of the vehicle shall release the vehicle to its possessor. Upon a finding of no probable cause, towing and storage fees shall be paid by the city in accordance with arrangements made between the city and the authorized garages. If the possessor fails to present such certificate to the authorized garage having custody of the vehicle within 24 hours of its receipt, excluding such days when the garage is not open for business, the possessor shall assume liability for all subsequent storage charges. Such certificate shall advise the possessor of such requirement.

(c)

Payment of charges. All towing and storage fees shall be paid to the carrier in the usual business manner before any such vehicle shall be released, except for vehicles towed during periods when emergency regulations controlling parking and traffic movements during storm periods are in effect. The payment of such towing and storage charges shall not release the operator or owner of the vehicle from any penalty imposed for violation of any traffic regulations.

(Code 1971, § 22-197)