Judges: MARK PRYOR, Attorney General
Filed Date: 12/5/2001
Status: Precedential
Modified Date: 7/5/2016
The Honorable Mike Creekmore State Representative 814 West 7th Street Little Rock, AR 72201-4004
Dear Representative Creekmore:
I am writing in response to your request for my opinion on the following question:
By the order of a county municipal court or judge, do local police officers have the legal right to impound a vehicle that:
1. is not covered by insurance;
2. has expired tags; or
3. is being operated by a person who has an expired driver's license?
RESPONSE
In my opinion, A.C.A. §
In the attached Ark. Op. Att'y Gen. No.
With regard to the issue of driving with expired tags, A.C.A. §
If a person is convicted of two (2) offenses under subsection (a) of this section within one (1) year, the court may order that the unregistered vehicle be impounded until proof of motor vehicle registration is made to the court.
This statute expressly provides that a vehicle driven with expired tags may be impounded only after two convictions for the offense within a year, and only then by court order. Although this statute would appear to preclude a municipal judge from issuing a standing order that cars with expired tags automatically be impounded, the case law supports a contrary conclusion. In State v. Sullivan,
With regard to the issue of driving without a license, A.C.A. §
Notwithstanding the Code's silence on this issue, an officer is authorized to impound the vehicle of an unlicensed driver incident to an arrest. Pursuant to Ark. R. Crim. P. 4.1(a)(iii) (2001), "a law enforcement officer may arrest a person without a warrant if the officer has reasonable cause to believe that such person has committed . . . any
violation of the law in the officer's presence." (Emphasis added.) Moreover, case law suggests that impounding an unlicensed driver's vehicle might be warranted even in the absence of an arrest. In Thompsonv. State,
First, Thompson argues that Officer Walter did not have the authority to perform an inventory search because Benton County Policy 504 refers only to inventories of vehicles that are impounded pursuant to an arrest. However, Ark. R. Crim. P. 12.6, which is broader than Policy 504, allows an officer to impound a vehicle and inventory its contents for "any good reason." Moreover, our case law establishes that it is permissible for an officer to impound and inventory a vehicle when the driver is physically unable to drive the car, and leaving it on the side of the road would create a safety hazard. Asher v. State,
303 Ark. 202 ,795 S.W.2d 350 (1990); Kirk v. State,38 Ark. App. 159 ,832 S.W.2d 271 (1992). The only difference between the case at hand, and Asher and Kirk is that Thompson was legally, not physically," unable" to drive his car because he did not have a valid driver's license. Finally, Officer Walter testified at the suppression hearing that it was a standard practice in his department to impound and inventory vehicles under such circumstances. For these reasons, we hold that Officer Walter was justified in impounding Thompson's vehicle and completing an inventory of its contents.
Accord Polk v. State, 72 Ark. App. ___, ___ S.W.3d ___ (October 31, 2001) (affirming drug conviction based on search of impounded vehicle operated by unlicensed driver). The fact of being unlicensed in itself thus constitutes a variety of "legal inability" sufficient to support impounding a vehicle. This conclusion is somewhat counterintuitive, since driving without a license would appear to pose less of a social threat than driving without insurance, which is permitted on a temporary basis. Nevertheless, Thompson clearly authorizes impounding an unlicensed driver's vehicle. Accord Benson v. State,
The question remains whether an impoundment, even if authorized, can be mandated by order of the municipal court. I have addressed this question at some length in Ark. Op. Att'y Gen. No.
Assistant Attorney General Jack Druff prepared the foregoing, which I hereby approve.
Sincerely,
MARK PRYOR Attorney General
MP:JD/cyh
Enclosures