The Journal of The DuPage County Bar Association

Back Issues > Vol. 22 (2009-10)

Mandatory Impoundment Policies: Giving Police Free Searches and Putting an Unfair Burden on Vehicle Owners in Violation of 625 ILCS 5/4-203
By Aaron Galloway

I. Introduction There are many law enforce-ment agency policies1 that require the police to impound all vehicles used in violation of Section 11-501 of the Motor Vehicle Code. However, these policies are inconsistent with Illinois law because the statute only authorizes individual peace officers to impound particular vehicles when there is a reasonable belief that the driver is likely to return and commit the same or similar offense.2 This reasonable belief requirement is important, because in order to form a reasonable belief, the officer must be able to exercise some discretion. Forming a reasonable belief requires the officer to take into account various factors that might form the basis of a reasonable belief that the driver is likely to commit a subsequent violation. A policy that requires impoundment of all vehicles involved in DUI cases usurps the officer’s discretion in forming a reasonable belief as to the likelihood of the driver committing a subsequent violation. After all, an officer cannot exercise discretion that he does not have. Therefore, mandatory impoundment policies are inconsistent with the State law that grants individual officers the discretion and authority to impound particular vehicles based upon a reasonable belief that the driver is likely to commit a subsequent violation of §11-501, or similar local ordinance.

This particular issue as to whether or not mandatory impoundment policies exceed the statutory authority appears to be a case of first impression in Illinois; however, the Washington Supreme Court analyzed a similar statute in All Around Underground.3 That court held that mandatory impoundment policies exceed statutory authorization similar to that stated in 625 ILCS 5/4-203(e).4 The Court reasoned that law enforcement agencies cannot take away an officer’s discretion when that discretion has been explicitly granted by the legislature.5 Illinois courts should rely on the persuasive reasoning of the Washington Supreme Court, and adopt a similar rule, even though there may be strong public policy reasons for allowing mandatory impoundments of all vehicles. If Illinois wants to allow mandatory impoundments of all vehicles to further these public policies, the appropriate solution is for the legislature to amend 625 ILCS 5/4-203(e) and remove the "reasonable belief" language that grants individual discretion to peace officers.

It is also important to note that the validity of the impoundment itself is a separate inquiry from the propriety of inventory searches and the constitutionality of such impoundment policies.6 It is well established that while conducting inventory searches, officers must follow department policies that limit the discretion of the officer in order to prevent arbitrary search methods.7 However, the cases regarding inventory searches are inapplicable as to whether the impoundment of the vehicle is valid. The original inquiry is whether the impoundment itself is valid, before the propriety of the subsequent inventory search is examined.8 These are two separate and distinct questions that must be answered separately. Furthermore, this article merely addressees the statutory validity of such mandatory impoundment policies; it makes no attempt to address the constitutionality of such mandatory impoundments. Even if the mandatory impoundment policies pass constitutional muster, they still may be invalidated if they are inconsistent with statutory law.

II. State Law Grants Discretion to Individual Officers

The enabling statute, 625 ILCS 5/4-203(e), authorizes individual officers to exercise discretion by requiring a reasonable belief that the driver is likely to commit a subsequent violation before mandating impoundment. Although some argue that this reasonable belief can be determined by a police agency, and should be applied in all DUI cases, allowing agency wide policies mandating impoundment in all cases exceeds the statutory authority.

The statute only authorizes an individual officer to use his discretion, and in fact requires it, before there is a decision to impound a particular vehicle. One need only look at the plain language of the statute to see that the exercise of discretion is required as to individual officers. Courts have held that when interpreting the meaning of a statute, the best indication of the legislative intent is the plain and ordinary meaning of the statutory language.9 The statutory language of 625 ILCS 5/4 203(e) explicitly authorizes, if not requires, individual officers to exercise discretion in determining whether a vehicle must be impounded. This is especially clear when one refers to the statutory definition of a "peace officer" as used in the statute. The term "peace officer" is statutorily defined as "any person who by virtue of his or her public employment is vested by law with a duty to maintain public order or to make arrests for offenses . . . ."10 The plain and ordinary definition of a "person" does not include law enforcement agencies or municipalities. Furthermore, "peace officer" cannot possibly be construed to include law enforcement agencies because no component of the definition includes a law enforcement agency or any part of the definition of a law enforcement agency. Any assertion that the term should be construed to include agency-wide determinations of reasonableness must be rejected because there is no legislative intent to support this.

If the legislature had intended to authorize agency-wide determinations of whether or not it to impound a particular vehicle, it would have used the term "law enforcement agency" when stating who is authorized to order the impoundment of the vehicles. The legislature must have meant there to be some difference between the meanings of the terms "peace officer" and "law enforcement agency." A "law enforcement agency" is statutorily defined as "[e]very governmental enforcement agency or officer having authority to enforce the provisions of this Act or applicable local vehicle ordinances." 11 This definition is particular and clearly defined. It is different from a "peace officer" and the two terms must be construed to mean something different if they are to be given any meaning.

Within other subsections of the statute, the legislature did specifically grant law enforcement agencies discretion and authority to act, as opposed to an individual peace officer. For example, a law enforcement agency is authorized to release a vehicle that is impounded pursuant to 625 ILCS 5/4-203(e). Additionally, the other subsections within 625 ILCS 5/4-203, including subsections (a), (b), (c) and (d) authorize law enforcement agencies themselves to order the impoundment of vehicles in other circumstances. If the legislature had intended law enforcement agencies to have the discretion, and not individual peace officers, it would have used the term "law enforcement agency" in subsection 203(e). These terms are carefully defined, and should not be construed to mean something other than what the statute says. These terms are expressly defined in the statute and will be given the meaning that the legislature intended.12 The legislature has the power to reasonably define terms used within a statute, and the court will apply those definitions.13 This is a specific grant of authority to a particular officer to impound a particular vehicle based on his or her reasonable belief. It does not empower a law enforcement agency to trump that discretion, and formulate its own policy about what is reasonable in order to impound all vehicles.

III. Mandatory Impoundment Policy Inconsistent With State Law

If a peace officer is acting pursuant to a mandatory impoundment policy, there is no opportunity for the officer to form a reasonable belief that the driver is likely to return and commit the same or similar offense. An officer would have to exercise some sort of discretion in order to evaluate the particular factors that make it likely that a specific driver would subsequently commit a violation of §11-501. A mandatory impoundment policy prevents peace officers from exercising such discretion because he or she is bound to act in accordance with the policy of the department. Much like the court held in All Around Underground, it is simply impossible for an officer to exercise discretionary powers he does not posses.14 Mandatory impoundment policies are inconsistent with 625 ILCS 5/4-203 because it places an officer’s statutorily mandated discretion in direct conflict with some arbitrary agency policy.

IV. Persuasive Authority Supports Invalidation of Impoundment Policies

Since this is an issue of first impression in Illinois, the Court’s holding and rationale articulated in All Around Underground is persuasive for Illinois courts in construing the mandatory impoundment statute. In All Around Underground, the Washington Supreme Court reasoned that an officer could not exercise discretion that he does not have. 15 The Court analyzed a Washington enabling statute, similar to 625 ILCS 5/4-203(e), by which the Washington State Police enacted a policy of mandatory impoundment.16 The facts of the All Around Underground case present the type of situation where it makes absolutely no sense to require officers to impound a vehicle. The driver of a commercial vehicle had a suspended license and was cited for that offense.17 The owner of the vehicle was unaware of the violation at the time that it occurred.18 The owner showed up with proof that he was the properly registered, insured and licensed owner of the vehicle before it was impounded and asked to drive the vehicle away.19 The officer refused to allow him to do so, citing the mandatory impoundment policy of the state police.20

The Washington Supreme Court invalidated the state patrol regulation mandating impoundment of vehicles on statutory grounds because it was inconsistent with the Washington statute.21 The Washington statute stated that a "vehicle is subject to impoundment . . . at the direction of a law enforcement officer."22 The state patrol issued a regulation, pursuant to this law, requiring the arresting officer to impound the vehicle when the driver was arrested for either driving under the influence; [having] physical control of the vehicle under the influence; driving while license suspended or revoked; or operation of [a] motor vehicle under other license/permit while suspended or revoked.23 The Court held that this language granted individual officers the authority to impound particular cars and that the policy was invalid because it removed that discretion.

The Washington statute is similar to 625 ILCS 5/4-203(e) because it grants discretion to an individual officer, and an agency cannot usurp that discretion by mandating impoundment. The statutory authorization extends only to a particular officer to impound a particular car, but does not authorize the agency to issue a policy of impounding all vehicles. In fact, the Washington statute would allow an officer to impound a particular vehicle, but does not require that officer exercise his discretion.24 The Illinois statute more clearly than the Washington statute creates officer discretion because it requires that an officer have a reasonable belief. The important similarity, however, is that both statutes use particular language granting that authority to an individual officer, and not to a law enforcement agency, that must be respected by the courts. Therefore, the Illinois courts should adopt the same reasoning as the All Around Underground Court and invalidate law enforcement agency policies that mandate impoundment and usurp the legislatively conferred discretion of an officer.

V. Mandatory Impoundment Policies Require Changing the Law

When interpreting a statute, the Illinois courts are bound by the meaning intended by the legislature when it was passed.25 The courts cannot simply "rewrite" the words to mean something differently in order to further a different policy.26 If the legislature wants police agencies to be able to created regulations or policies requiring mandatory impoundment of all vehicles, it must change the language of 625 ILCS 5/4-203(e). It is the role of the legislature to write laws that reflect changing circumstances and conditions which might require a change in the law. The legislature could rewrite the statute to say that "whenever a person under arrest for a violation of Section 11-501 of this Code or a similar provision of a local ordinance is, as determined by the arresting law enforcement agency or the arresting officer to be reasonably likely, upon release, to commit a subsequent violation of Section 11-501, or a similar provision of a local ordinance, the arresting officer shall have the vehicle which the person was operating at the time of the arrest impounded for a period of not more than 12 hours after the time of arrest." This language would allow law enforcement agencies to remove the discretion from the individual police officer and develop specific policies that could allow for mandatory impoundment for some offenses.

Of course, another option that the legislature could use is to simply authorize law enforcement agencies to mandate the impoundment of all vehicles involved in violation of Section 11-501. However, this may impose a significant burden on individuals and companies that own vehicles whose drivers are charged with driving under the influence. There may be circumstances in which it would be difficult for a commercial vehicle owner to learn that the driver of one of his vehicles has a suspended or revoked license. Commercial employers, and smaller businesses in particular, would be taking on the burden of periodically checking the licensing status of their employees. Additionally, there are penalties already imposed for violations of Section 11-501, and impounding the vehicle imposes a further burden that is unnecessary, particularly when the vehicle is not owned by the driver being charged.

VI. Policy Supports Invalidation of Mandatory Impoundment Policies

The easiest way to determine the policy behind a statute is to look to the language itself. The policy driving 625 ILCS 5/4-203 is the legislature’s concern that the driver of a vehicle may simply return to the vehicle and commit the same offense again. There is no mention of any need to penalize the owner or driver of the vehicle. If the legislature wants to use impoundment as a punishment, it should pass a statute mandating or authorizing mandatory impoundments. However, that is not the purpose of the statute. It is well settled that police have the constitutional authority to impound vehicles that are impeding traffic or threatening the public safety and convenience as part of their "community caretaking functions."27 There must be some purpose for impounding the vehicle; it is not sufficient that the defendant would be leaving the vehicle unattended, unless it would be illegally parked.28 The legislature, in enacting 625 ILCS 5/4-203, struck a balance between the rights of the vehicles owners to be free from arbitrary seizures and the public interest in safety and convenience (ensuring intoxicated and unlicensed drivers are not operating vehicles on the public roads). The statute requires if there is a reasonable belief that the driver is likely to commit a subsequent violation, then the vehicle shall be impounded. If there is a mandatory impoundment policy29 it imposes a burden on vehicle owners because now all owners of vehicles will have to pay administrative and towing fees even when there is no public interest being furthered by the impoundment. Moreover, regulations requiring mandatory impoundment of all vehicles are overreaching in the burden they place on vehicle owners, when allowing an individual officer to exercise discretion both adequately furthers the Act’s public policy and is much less intrusive.

VII. Conclusion

Although mandatory impound policies may be popular, it is inconsistent with 625 ILCS 5/4-203(e) because it removes officer discretion. Construing 625 ILCS 5/4-203(e) to mean anything different is to not give effect to the plain language of the statute itself, nor to its legislative purpose. If the legislature decides to change the law, it may be proper, but courts should not rewrite subsection 203(e) in order to effectuate public policies that the legislature did not intend, no matter how meritorious those policies might be. There are policy rationales that may or may not support mandatory impoundments, but ultimately, that is a decision for the legislature – not the courts. Therefore, the Illinois courts should adopt the persuasive reasoning of All Around Underground and invalidate mandatory impoundment policies by law enforce-ment agencies.

1 Even if these policies are pursuant to a municipal code, it is the Author’s position that the polices are still invalid as inconsistent with state law, and that the municipal codes are equally invalid.

2 See 625 ILCS 5/4-203(e).

3 All Around Underground, Inc. v. Washington State Patrol, 60 P.3d 53 (Wash. 2002).

4 Id. at 57.

5 Id.

6 People v. Ursini, 245 Ill.App.3d 480, 483; 614 N.E.2d 869, 872 (2d Dist. 1993).

7 Id.

8 Id.

9 People v. Jamison, 229 Ill.2d 184, 890 N.E.2d 929 (2008).

10 625 ILCS 5/1-157.5.

11 625 ILCS 5/1-136.5.

12 Heerey v. Zoning Bd. of Appeals of City of Chicago, 82 Ill.App.3d 1088, 403 N.E.2d 617 (1st Dist. 1980).

13 Id.

14 Id.

15 60 P.3d 53, 57 (Wash. 2002).

16 Id. at 57.

17 Id. at 56.

18 Id. at 56.

19 Id.

20 Id. at 56.

21 All Around Underground, Inc. v. Washington State Patrol, 60 P.3d 53 (Wash. 2002).

22 Id. at 58.

23 Id. at 58.

24 Washington v. Pulfrey, 86 P.3d 790, 794 (2004).

25 Matter of Disconnection of Certain Territory From Sanitary Dist. Of Rockford, 111 Ill.App.3d 339, 443 N.E.2d 1079 (2d Dist. 1982).

26 Niles Imp. Ass’n v. J. Emil Anderson & Son, Inc., 93 Ill.App.2d 167, 236 N.E.2d 402 (1st Dist. 1968).

27 South Dakota v. Opperman, 428 U.S. 364, 368-69 (1976).

28People v. Ursini, 245 Ill.App.3d 480, 483; 614 N.E.2d 869, 872 (2d Dist. 1993).

29 Whether or not these policies should be constitutional is beyond the scope of this article.

Aaron Galloway is a third year law student at the Northern Illinois University College of Law. He is Chief Justice of the Trial Advocacy Society, a member of the Law Review, and currently works at the Zeke Giorgi Legal Clinic in Rockford, Illinois.

DCBA Brief