§ 1213c Immobilization and forfeiture proceedings
§ 1213c. Immobilization and forfeiture proceedings
(a) Notice. The state shall provide the following persons with notice of an immobilization or forfeiture hearing:
(1) the defendant;
(2) the registered owner or owners;
(3) any holder of a security interest in or lien on the vehicle; and
(4) any other person appearing to be an innocent owner or operator as described in subsection (f) of this section.
(b) Content of notice. The notice shall contain the following:
(1) a description of the motor vehicle, including vehicle identification number, make, model and year;
(2) the name of the registered owner or owners, lienholder, and any other person appearing to be an innocent owner or operator as described in subsection (g) of this section;
(3) the date, time and place of the hearing; and
(4) a statement that any person who is an owner, an innocent owner or operator, or who holds a security interest in, or claims any interest in the motor vehicle, may appear and be heard at the hearing to protect the person's interest in the motor vehicle.
(c) Service of notice. The notice of hearing shall be served as provided for in the Vermont Rules of Civil Procedure on the registered owner or owners and any lienholders as shown on the certificate of title for the vehicle as shown in the records of the department of motor vehicles in the state in which the vehicle is registered or titled.
(d) Hearing. The court shall hold a hearing to determine whether or not to order the motor vehicle immobilized or forfeited. The proceeding shall be against the motor vehicle and shall be deemed civil in nature.
(e) Hardship consideration. In determining the motion the court may consider any undue hardship which immobilization or forfeiture would cause to a person, other than the defendant, who is dependent on the motor vehicle for essential transportation needs. In making such determination, the court shall consider any evidence of past or current domestic violence.
(f) Order. The court shall make findings of fact and conclusions of law and shall issue a final order. The court may order the motor vehicle immobilized or forfeited if the court finds that:
(1) the motor vehicle is subject to immobilization or forfeiture;
(2) the notice as required by this section was served; and
(3) no party has shown that he or she is an innocent owner or operator as described in subsection (g) of this section.
(g) Rights of innocent owner or operator. The court shall not order the immobilization or forfeiture of a motor vehicle if an owner, co-owner or person who regularly operates the motor vehicle, other than the defendant, shows by a preponderance of the evidence that the owner, co-owner or regular operator did not consent to or have any express or implied knowledge that the motor vehicle was being or was intended to be operated in a manner that would subject the motor vehicle to immobilization or forfeiture, or that the owner, co-owner or regular operator had no reasonable opportunity or capacity to prevent the defendant from operating the motor vehicle.
(h) Rented or leased vehicles. A vehicle that is rented or leased for a period of less than one year shall not be subject to immobilization or forfeiture unless it is established in the proceedings that the owner of the rented or leased vehicle knew of or consented to the operation of the motor vehicle in a manner that would subject the vehicle to immobilization or forfeiture.
(i) Lienholder. If the court finds that a person has an enforceable lien on or other interest in the motor vehicle which is not held through a straw purchase, trust or otherwise for the actual benefit of another and that the person did not know of or consent to the operation of the motor vehicle in a manner that would subject the vehicle to immobilization or forfeiture, the court shall:
(1) permit the person to enforce the lien or other interest as provided by law if such enforcement does not result in the return of the motor vehicle to the defendant; or
(2) upon immobilization or forfeiture order compensation to the person, to the extent of the person's interest, from the proceeds of the resulting sale.
(j) Order of forfeiture. If the court orders the motor vehicle forfeited, it shall be delivered into the custody of the commissioner of buildings and general services, who shall dispose of the motor vehicle pursuant to section 1556 of Title 29. The proceeds from the sale of the vehicle shall first be used to offset any costs of selling the vehicle, and then, after any liens on the vehicle have been paid in full, applied to any unpaid restitution owed by the defendant in connection with the charge that resulted in forfeiture. Any balance remaining shall be deposited into the general fund.
(k) Appeal. A decision of the court under this section may be appealed as a matter of right to the supreme court.
(l) Disbursement of proceeds. Proceeds from the defendant's payment of the release fee and towing and impoundment costs shall be disbursed to the law enforcement agencies that incurred the costs.
(m) Owning, leasing and renting prohibited. After issuance of an immobilization or forfeiture order, and during the defendant's license suspension or revocation period, the defendant shall not operate, purchase, lease or rent a motor vehicle. A person who violates this subsection shall be imprisoned not more than two years or fined not more than $1,000.00, or both.
(n)(1) Selling or encumbering prohibited. Except as provided in subdivision (2) of this subsection, after a person is detained, arrested, lodged or released upon citation for a second or subsequent violation of section 1201 of this title, no person shall sell, transfer or encumber the title to a vehicle that the person knows may be subject to immobilization under section 1213a of this title or forfeiture under section 1213b of this title, unless approved by the court in which the charge is filed for good cause shown. A person who violates this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both.
(2) If the state has not commenced a prosecution for a second or subsequent violation of section 1201 of this title within 90 days of the detention, arrest, lodging or release upon citation, the person may sell, transfer or encumber the subject vehicle.