PHOENIX, AZ (3TV/CBS 5) - On Monday, police said a suspected street racer tried to run over an officer before being arrested. On the same day, a bill geared toward cracking down on drag racing died in the rules committee. Attorneys cited constitutional concerns. They believed the 30-day vehicle impound violated the Fourth Amendment.
Attorneys cited two 9th circuit cases where a lengthy impound was deemed against the law. "Thirty days makes sense because some of these people love their cars more than their homes," said State Sen. Paul Boyer. Boyer, who introduced the legislation, said impounds for street racers are constitutional because, in other situations, the state can take away your car for a month.
If you're suspected of an extreme DUI, the state can impound your car for thirty days. "That seems wrong," said defense attorney Jeff Mehrens. Mehrens said the 30-day vehicle impound for a DUI or street racing is against the law. "The car is being impounded to punish you, and it's to deter you. Yet, you haven't had your day in court, and you haven't been convicted of anything," said Mehrens.
Mehrens said the two 9th circuit cases which were referenced in striking down the bill, can now be used to overturn 30-day vehicle impounds for DUIs. "Anybody who's ever been arrested is presumed innocent," said Mehrens. "You don't punish the innocent, that's the American way."
Boyer sent us this statement in response to his bill being called unconstitutional:
"The California law that was cited by the Arizona Senate rules attorney is not the same as Arizona's, and our law is constitutional. The California cases dealt with issues that would not arise in Arizona due to due process provisions already built into our statute.
SB1659 passes a 2-part test, which is that the violations for impounding a vehicle are public safety concerns, and our law has multiple mechanisms for having the vehicle released.
As far as we can tell (and we have researched the issue thoroughly), no Federal court has ever found any part of Arizona Revised Statute 28-3511 dealing with impounding a vehicle for DUI or revoked licenses as unconstitutional.
Street Racing and Reckless Driving are criminal acts, which are intentionally committed by people who cause an immediate threat to public safety, and these offenses are just as dangerous as DUI.
DUI, Driving without an ignition interlock device, driving on a revoked license, and never having had a license are all offenses for which a vehicle can be impounded in current Arizona law, and all of these are constitutional. Adding the dangerous crimes of Street Racing and Reckless Driving to this statute follows the same principles of these offenses, and this is reasonable.
Police can and do seize property when there is a threat to safety, such as current state law on domestic violence and firearms. No court has found this to be unconstitutional.
The current law already has due process rights for defendants, and there are several reasons built-in to 28-3511 for releasing a vehicle."