NLR 62/12 - Vehicle Seizure and Impoundment Regulations, 2012 under the Highway Traffic Act

NEWFOUNDLAND AND LABRADOR REGULATION 62/12 Vehicle Seizure and Impoundment Regulations, 2012 under the Highway Traffic Act (O.C. 2012-208) Amended by: 79/17 36/18 86/18 46/19 18/23 NEWFOUNDLAND AND LABRADOR REGULATION 62/12 Vehicle Seizure and Impoundment Regulations, 2012 under the Highway Traffic Act (O.C. 2012-208) (Filed August 29, 2012) Under the authority of section 186 of the Highway Traffic Act , the Lieutenant-Governor in Council makes the following regulations. Dated at St. John’s , August 28, 2012. Robert Thompson Clerk of the Executive Council REGULATIONS Analysis 1. Short title 2. Interpretation 3. Application 4. Vehicle that is dangerous or unfit for use 5. Driving while disqualified or prohibited 5.1 Excessive speeding, racing or performing stunts 6. Delay of seizure 6.1 At or over prohibited proportion, presence of drug or failure or refusal to provide sample 7. Stolen vehicles 8. Personal property 9. Duties of peace officer 10. Storage and lien 11. Disposal of motor vehicle 12. Low value vehicle 13. Storage and lien - low value vehicle 14. Disposal of low value vehicle 15. Disposition of proceeds - low value vehicle 16. Disposition of proceeds - unknown owner 17. Application for early release by owner 18. Decision of registrar 19. Release of vehicle on expiry of impoundment period 20. Report of garage operator 21. Owner's right against driver 22. Offence 23. Fees and forms 24. Repeal 25. Commencement Short title 1. These regulations may be cited as the Vehicle Seizure and Impoundment Regulations, 2012. 62/12 s1 Back to Top Interpretation 2. (1) In these regulations (a) "Canadian Red Book" means the Canadian Red Book and the Canadian Older Car/Truck Red Book; (b) "garage operator" means a person who takes and stores a seized and impounded motor vehicle; (c) "low value vehicle" means a motor vehicle determined by the registrar as a low value vehicle under section 12; and (d) "prohibited proportion" means that on analysis by a peace officer of a sample of a person's breath or blood by an approved screening device or approved instrument as those terms are defined in section 320.11 of the Criminal Code , the proportion of alcohol in the person's blood is (i) 50 milligrams or more of alcohol in 100 millilitres of blood where the person is 22 years of age or older and not a novice driver, or (ii) greater than 0 milligrams of alcohol in 100 millilitres of blood where the person is under 22 years of age or a novice driver. (2) In these regulations, an impoundment period means (a) for a vehicle impounded under subsection 75(6.1) of the Act, a period of 90 days; (b) for a vehicle impounded under section 4 , a period of 24 hours; (c) for a vehicle impounded under section 5 , a period of 30 days; (c.1) for a vehicle impounded under section 5.1, a period of 3 days; and (d) for a vehicle impounded under section 6.1, the applicable period set out in that section. (3) For the purpose of the regulations that apply to a vehicle that has been seized and impounded under subsection 75(6.1) of the Act, a "peace officer" includes a traffic officer. 62/12 s2 ; 79/17 s1 ; 36/18 s1 ; 46/19 s1 Back to Top Application 3. These regulations apply to a motor vehicle that has been seized and impounded under (a) subsection 75(6.1) of the Act; (b) section 4 ; (c) section 5 ; (c.1) section 5.1; and (d) section 6.1. 62/12 s3 ; 79/17 s2 ; 36/18 s2 Back to Top Vehicle that is dangerous or unfit for use 4. (1) A peace officer may seize a motor vehicle that has been inspected or tested under subsection 42(1) of the Licensing and Equipment Regulations and impound it where the officer has reasonable grounds to believe that the vehicle is dangerous or unfit for use. (2) A motor vehicle impounded under subsection (1) shall be held for a period of 24 hours from the date of seizure, after which period the vehicle may be released in accordance with subsection 19 (2). 62/12 s4 Back to Top Driving while disqualified or prohibited 5. (1) Subject to section 6 , a peace officer shall seize a motor vehicle and impound it where the officer has reason to believe that a person who was operating the vehicle contravened subsection 43(6) of the Act. (2) A motor vehicle impounded under subsection (1) shall be held for a period of 30 days from the date of seizure, after which period the vehicle may be released in accordance with subsection 19 (1). 62/12 s5 Back to Top Excessive speeding, racing or performing stunts 5.1 (1) Subject to section 6, a peace officer may seize a motor vehicle and impound it where the officer has reasonable grounds to believe that a person who was operating the vehicle contravened paragraph 110(3)(e), 110.1(4)(e), 110.2(4)(e), subsection 168(1) or 168.1(1) of the Act. (2) A motor vehicle impounded under subsection (1) shall be held for a period of 7 days from the date of seizure, after which period the vehicle may be released in accordance with subsection 19(1). 36/18 s3 ; 18/23 s1 Back to Top Delay of seizure 6. (1) Where a peace officer is satisfied that the seizure and impoundment of a motor vehicle under section 5 or 5.1 would jeopardize the safety of, or cause undue hardship to, a person, or is, in the opinion of the officer, not practicable in the circumstances the peace officer may delay taking custody of the motor vehicle, in which case the peace officer may permit the motor vehicle to be driven to a location specified by the peace officer. (2) Where under subsection (1) a peace officer permits a motor vehicle to be driven to a specified location and the vehicle is not impounded at that location, a peace officer may make application to a justice for an order to seize the vehicle and impound it in accordance with these regulations. 62/12 S6 ; 36/18 s4 Back to Top At or over prohibited proportion, presence of drug or failure or refusal to provide sample 6.1 (1) A peace officer shall seize a motor vehicle and impound it where the proportion of alcohol in the blood of the driver operating the vehicle or the person who has care or control of the vehicle meets or exceeds the prohibited proportion. (2) A motor vehicle impounded under subsection (1) shall be held for a period of 7 days where the driver operating the vehicle or the person who has care or control of the vehicle is (a) 22 years of age or older and not a novice driver and the proportion of alcohol in his or her blood is 50 milligrams of alcohol or more but less than 80 milligrams of alcohol in 100 millilitres of blood; or (b) less than 22 years of age or a novice driver and the proportion of alcohol in his or her blood is greater than 0 milligrams of alcohol but less than 80 milligrams of alcohol in 100 millilitres of blood, after which period the vehicle may be released in accordance with subsection 19(1). (3) A motor vehicle impounded under subsection (1) shall be held for a period of 30 days where the proportion of alcohol in the blood of the driver operating the vehicle or the person who has care or control of the vehicle is 80 milligrams of alcohol or more in 100 millilitres of blood after which period the vehicle may be released in accordance with subsection 19(1). (4) A peace officer shall seize a motor vehicle and impound it where (a) the driver operating the vehicle or the person who has care or control of the vehicle is less than 22 years of age, a novice driver or a driver of a commercial motor vehicle and the proportion of a drug in the body of that driver or person constitutes a presence in accordance with Presence and Prohibited Proportion of Drugs Regulations ; or (b) the peace officer has reasonable grounds to believe that the ability of the driver operating the vehicle or the person who has care or control of the vehicle to operate the motor vehicle is impaired by a drug or a combination of a drug and alcohol. (5) A motor vehicle impounded under subsection (4) shall be held for a period of 7 days after which period the vehicle may be released in accordance with subsection 19(1). (6) A peace officer shall seize a motor vehicle and impound it where the driver operating the vehicle or the person who has care or control of the vehicle fails or refuses to comply with a demand made under section 320.27 or 320.28 of the Criminal Code . (7) A motor vehicle impounded under subsection (6) shall be held for a period of 30 days after which period the vehicle may be released in accordance with subsection 19(1). 79/17 s3 ; 86/18 s1 ; 46/19 s2 Back to Top Stolen vehicles 7. If, at any time before a review or hearing is conducted under these regulations, a peace officer is satisfied that a motor vehicle seized under section 5, 5.1 or 6.1 had been stolen, the officer may, subject to the approval of the registrar, release the vehicle to the owner, or a person authorized by the owner to take possession of it. 79/17 s4 ; 36/18 s5 Back to Top Personal property 8. Personal property in a motor vehicle that has been impounded, other than personal property attached to or used in connection with the operation of the motor vehicle, shall be returned to the owner of the property on request. 62/12 s8 Back to Top Duties of peace officer 9. (1) Where a motor vehicle has been seized and impounded, the peace officer shall (a) complete a notice of impoundment; (b) give the driver a copy of the notice; (c) if the driver is not, or does not appear to be, the owner of the motor vehicle, request that the driver disclose the name and address of the owner; (d) give a copy of the notice to the owner, if the owner is present at the time of seizure, or, if the owner is not present, without delay mail a copy to the owner (i) at the owner’s last known address as recorded in the registrar’s records of motor vehicle registrations, or (ii) if the owner’s address is not recorded in the registrar’s records, at the address indicated by the driver in response to the peace officer’s request under paragraph (c); (e) mail a copy of the notice to the registrar; (f) cause a copy of the notice to be given to the garage operator who stores the motor vehicle; and (g) retain a copy of the notice. (2) The notice of impoundment shall be in the form set by the registrar and shall contain a statement that the motor vehicle may be disposed of under these regulations if the owner of the motor vehicle does not pay the costs and charges referred to in these regulations. (3) Where a vehicle has been seized and impounded under section 5, 5.1 or 6.1, the notice of impoundment for that vehicle shall contain a statement of the right to apply to the registrar for the release of the motor vehicle under section 17 of these regulations and instructions on applying for a review. 62/12 s9 ; 79/17 s5 ; 36/18 s6 Back to Top Storage and lien 10. (1) A motor vehicle that is seized and impounded shall be stored with the garage operator that the peace officer directs and a peace officer may later direct that the motor vehicle be moved to a different garage operator for impoundment. (2) The garage operator has a lien on the motor vehicle for the following amounts (a) all costs and charges for the transportation, towing, care and storage respecting the seizure and impoundment of the vehicle and where applicable the costs of disposal of the vehicle; and (b) expenditures for searches and registrations under the Personal Property Security Act and Judgment Enforcement Act that are reasonably necessary to fulfil the obligations of the person who took custody of the impounded motor vehicle. (3) A lien under this section and a garage operator’s right to hold the vehicle has priority over and is not subject to a lien or other charge or encumbrance upon or in respect of the motor vehicle existing at the time of seizure. (4) A motor vehicle that is subject to a lien under this section shall remain impounded until (a) the lien is paid; or (b) the vehicle is disposed of under section 11 . (5) Notwithstanding subsection (4), a garage operator may surrender possession of the motor vehicle to the owner without losing the lien if he or she registers a financing statement relating to that interest under the Personal Property Security Act within 15 days of the surrender. 62/12 s10 Back to Top Disposal of motor vehicle 11. (1) Where a motor vehicle remains impounded for 30 days or more after the expiration of the impoundment period, the garage operator who stored the motor vehicle during the impoundment may enforce the lien under section 10 by selling the motor vehicle by public auction in the manner set out in section 5 of the Warehouser’s Lien Act , as if the garage operator was a warehouser and the motor vehicle was goods within the meaning of that Act. (2) Where a motor vehicle is sold under subsection (1), the garage operator shall satisfy the lien under section 10 and deliver the surplus to the registrar with a statement of account showing how the surplus was calculated. (3) The registrar shall apply any surplus received under subsection (2) towards any amounts that the registrar may require to be paid under section 16.1 of the Act and any remaining amount to the owner of the vehicle with a statement showing how the remaining amount was calculated. (4) Notwithstanding subsection (1), a garage operator may, with the approval of the registrar, dispose of the impounded vehicle referred to in subsection (1) by sale or otherwise, if the garage operator (a) surrenders the licence plate from the motor vehicle to the registrar; and (b) files with the registrar (i) a statutory declaration in the form set by the registrar declaring that (A) the amount of the garage operator’s lien on the motor vehicle exceeds the garage operator’s estimate of the value of the motor vehicle, and (B) the garage operator, at least 14 days before making the statutory declaration, sent by registered or certified mail to the registered owner of the motor vehicle, a notice that the garage operator intends to dispose of the motor vehicle if the lien is not paid, and (ii) a certificate showing that no security interest is registered against the motor vehicle under the Personal Property Security Act or the Judgment Enforcement Act . (5) Where the registrar approves the disposal of a motor vehicle under subsection (4), the registrar shall transfer the registration of the motor vehicle from the owner of the motor vehicle to the garage operator. 62/12 s11 Back to Top Low value vehicle 12. (1) The registrar may determine that a motor vehicle is a low value vehicle where (a) it has an average wholesale value of $1200 or less according to the most recent edition of the Canadian Red Book; or (b) it has an average wholesale value greater than $1200 according to the most recent edition of the Canadian Red Book, but is dangerous or unfit for use and the registrar determines upon receipt of an affidavit of value from the garage operator that the value of the motor vehicle is $1200 or less. (2) Where a motor vehicle is no longer listed in the most recent edition of the Canadian Red Book, the registrar may determine that the vehicle is a low value vehicle where (a) it has an average wholesale value of $1200 or less according to a method of valuation determined by the registrar; or (b) it has an average wholesale value greater than $1200 according to a method of valuation determined by the registrar, but is dangerous or unfit for use and the registrar determines upon receipt of an affidavit of value from the garage operator that the value of the motor vehicle is $1200 or less. (3) To make a determination under paragraph (1)(b) or (2)(b), the operator of the garage where the vehicle that is dangerous or unfit for use is impounded shall provide the registrar with an affidavit of value certifying that the value of the damaged vehicle is $1200 or less. (4) For the purpose of this section, an "affidavit of value" means proof made on oath or affirmation of the value of the motor vehicle. 62/12 s12 Back to Top Storage and lien - low value vehicle 13. (1) Notwithstanding sections 10 and 11 , a low value vehicle that is seized and impounded shall be stored with the garage operator that the peace officer directs and a peace officer may later direct that the motor vehicle be moved to a different garage operator for impoundment. (2) The garage operator has a lien on a low value vehicle for all costs and charges for the transportation, towing, care and storage respecting the seizure and impoundment of the motor vehicle and where applicable the costs of disposal of the low value vehicle. (3) A lien under this section and a garage operator's right to hold the low value vehicle has priority over and is not subject to a lien or other charge or encumbrance upon or in respect of the motor vehicle existing at the time of seizure. (4) A low value vehicle that is subject to a lien under this section shall remain impounded until (a) the lien is paid; or (b) the vehicle is disposed of under section 14 . (5) Notwithstanding subsection (4), a garage operator may surrender possession of the low value vehicle to the owner without losing the lien if he registers a financing statement relating to that interest under the Personal Property Security Act within 15 days of the surrender. 62/12 s13 Back to Top Disposal of low value vehicle 14. (1) After the impoundment period expires, the garage operator shall notify the registrar if the lien on a low value vehicle under section 13 remains unpaid. (2) The registrar shall send by registered or certified mail to the registered owner of the low value vehicle a notice that the vehicle will be disposed of unless the registered owner pays the garage operator's lien under subsection 13 (2) within 28 days from the date the registrar's notice is given. (3) The registrar shall request in the notice under subsection (2) that the registered owner notify the registrar within 14 days from the date the registrar's notice is given that the registered owner intends to reclaim the vehicle. (4) Where the registered owner does not pay the garage operator's lien within 28 days from the date the registrar's notice is given, the registrar may approve the disposal of the low value vehicle by the garage operator by sale or otherwise. (5) Where the registrar approves the disposal of a low value vehicle under subsection (4), (a) the garage operator shall surrender the licence plate from the low value vehicle to the registrar; and (b) the registrar shall transfer the registration of the low value vehicle from the owner of the vehicle to the garage operator. 62/12 s14 Back to Top Disposition of proceeds - low value vehicle 15. (1) Where a low value vehicle is sold under section 14 , the garage operator shall (a) provide a statement of account to the registrar in a form that may be prescribed by the registrar; (b) satisfy the lien under section 13 ; and (c) deliver the surplus to the registrar. (2) The registrar shall carry out searches under the Personal Property Security Act and Judgment Enforcement Act . (3) The registrar shall apply any surplus received under subsection (1) towards payment of amounts in the following order of priority (a) amounts owing to holders of security interests under the Personal Property Security Act and Judgment Enforcement Act , in accordance with those Acts; (b) amounts that the registrar may require to be paid under section 16.1 of the Act; and (c) any remaining amount to the owner of the vehicle with a statement showing how the remaining amount was calculated. (4) Where the rights to the surplus are uncertain, the registrar shall upon the order of a judge pay the surplus into the Trial Division. (5) An order made under subsection (4) may be made without notice to another party upon the terms and conditions as to costs and otherwise that the judge may direct and may provide to what fund or name the account shall be credited. (6) The registrar at the time of paying the amount into court under subsection (4) shall file in the court a copy of the statement of account provided by the garage operator under subsection (1). 62/12 s15 Back to Top Disposition of proceeds - unknown owner 16. (1) Where the owner of a motor vehicle or low value vehicle disposed of under these regulations is unknown and there is an amount remaining following a disposition of proceeds under section 11 or 15 , the registrar shall hold that amount for one year. (2) Where within one year of the disposal of the motor vehicle or low value vehicle a person proves to the satisfaction of the registrar that the person is entitled to all or part of the amount referred to in subsection (1), the registrar shall pay an amount to the person in accordance with the claim, which amount shall not be greater than what is held under subsection (1). (3) After one year proceeds from a public auction, sale or other disposal of a vehicle or low value vehicle that are held by the registrar under subsection (1) shall be paid into the Consolidated Revenue Fund. 62/12 s16 Back to Top Application for early release by owner 17. (1) Where the owner of a motor vehicle impounded under section 5 was not the driver or person who had care or control at the time the vehicle was seized, the owner may before the expiry of the impoundment period apply to the registrar for the release of the vehicle on the grounds that (a) the driver was not disqualified from driving under subsection 43(6) of the Act at the time of the seizure; (b) the driver was in possession of the motor vehicle without the knowledge or consent of the owner; (c) the owner could not reasonably be expected to have known that the driver was disqualified from driving under subsection 43(6) of the Act; or (d) the continued impoundment of the motor vehicle will (i) cause the owner to suffer a loss or curtailment of employment or educational opportunities; or (ii) prevent the owner, or someone under the care of the owner, from obtaining medical treatment. (2) Where the owner of a motor vehicle impounded under section 5 was the driver or person who had care and control at the time the vehicle was seized, he or she may before the expiry of the impoundment period apply to the registrar for the release of the vehicle on the grounds that he or she (a) was not disqualified from driving under subsection 43(6) of the Act at the time of the seizure; or (b) could not reasonably be expected to have known that he or she was disqualified from driving under subsection 43(6) of the Act. (2.1) Where the owner of a motor vehicle impounded under section 5.1 or 6.1 was not the driver or person who had care or control at the time the vehicle was seized, the owner may before the expiry of the impoundment period apply to the registrar for the release of the vehicle on the grounds that (a) the driver or person who had care or control of the motor vehicle was in possession of the motor vehicle without the knowledge or consent of the owner; or (b) the continued impoundment of the motor vehicle will (i) cause the owner to suffer a loss or curtailment of employment or educational opportunities, or (ii) prevent the owner, or someone under the care of the owner, from obtaining medical treatment. (2.2) Where the owner of a motor vehicle impounded under section 5.1 or 6.1 was the driver or person who had care or control at the time the vehicle was seized, he or she may before the expiry of the impoundment period apply to the registrar for the release of the vehicle on the grounds that the continued impoundment of the motor vehicle will (a) cause the owner to suffer a loss or curtailment of employment or educational opportunities; or (b) prevent the owner, or someone under the care of the owner, from obtaining medical treatment. (3) The application for release shall be in the form set by the registrar and be accompanied by the fee set by the minister. (4) The applicant may attach to the application sworn statements or other evidence that the applicant wishes the registrar to consider. (5) The applicant shall provide the registrar with information related to the application that the registrar may require. (6) Where an application is made under subsections (1), (2), (2.1) or (2.2.), the registrar shall consider the report of the peace officer respecting the seizure of the motor vehicle and may consider (a) the driving record maintained by the registrar of (i) the person named as the driver or the person in care or control of the motor vehicle in the report of the peace officer, (ii) the person named as the driver or the person in care or control of the motor vehicle in the application for release by the owner, if that person is not the person referred to in subparagraph (i), or (iii) the applicant; and (b) records maintained by the registrar respecting a previous seizure and impoundment under these regulations of a motor vehicle registered in the name of, or owned by, the applicant. (7) The registrar is not required to hold an oral hearing in respect of an application under this section unless the applicant (a) requests an oral hearing when the application is made; and (b) pays the oral hearing fee set by the minister. (8) Where an applicant requests an oral hearing and fails to appear, without giving prior notice, on the date and at the time and place set by the registrar, the applicant's right to an oral hearing is considered to have been waived. 62/12 s17 ; 79/17 s6 ; 36/18 s7 Back to Top Decision of registrar 18. (1) Where, after considering an application for release under section 17 the registrar is satisfied that the motor vehicle should not have been seized or impounded for the reasons set out in paragraph 17 (1)(a) or 17 (2)(a), the registrar shall (a) revoke the seizure and impoundment; (b) direct that the garage operator with custody of the motor vehicle release the motor vehicle to the owner or a person authorized by the owner; (c) refund the application fee; and (d) indemnify the owner of the motor vehicle for the amount paid by the owner to satisfy the lien described in section 10 or 13 . (2) Where, after considering an application for release under section 17 the registrar is satisfied that the motor vehicle should be released before the impoundment period expires for the reason set out in paragraph 17(1)(b), (c) or (d), 17(2)(b), 17(2.1)(a) or (b) or subsection 17(2.2), the registrar shall (a) direct that the garage operator with custody of the motor vehicle release the motor vehicle to the owner or a person authorized by the owner; and (b) where the reason for releasing the motor vehicle is set out in paragraphs 17(1)(b) or (c), 17(2)(b) or 17(2.1)(a), refund the application fee. (3) The registrar shall provide his or her decision on an application in writing to the applicant within 7 days of the date the application was considered or oral hearing held. 62/12 s18 ; 79/17 s7 Back to Top Release of vehicle on expiry of impoundment period 19. (1) The registrar shall direct that an impounded motor vehicle be released to the owner or a person authorized by the owner after the impoundment period expires, upon payment of the lien under section 10 or 13 . (2) Notwithstanding subsection (1), the registrar shall direct that a motor vehicle impounded under section 4 be released to the owner or a person authorized by the owner after the impoundment period expires, upon payment of the lien under section 10 or 13 and in accordance with the terms and conditions that the registrar may order. 62/12 s19 Back to Top Report of garage operator 20. Where a garage operator has in a month stored or disposed of an impounded motor vehicle, the garage operator shall, on or before the 7th day of the following month make a report to the registrar in the form set by the registrar. 62/12 s20 Back to Top Owner's right against driver 21. (1) The owner of an impounded motor vehicle may recover from the person who was the driver at the time the motor vehicle was seized, as a debt in a court of competent jurisdiction, the amount the owner paid to have the vehicle released, including amounts required to release the lien described in section 10 and section 13 and any fees paid to the registrar. (2) Notwithstanding subsection (1), the owner may not recover from the driver any amount that the owner was required to pay the registrar in respect of fines or penalties not related to the seizure and impoundment of the motor vehicle under the Act and regulations. 62/12 s21 Back to Top Offence 22. A person who removes or releases, or permits the removal or release of, an impounded motor vehicle from the place of impoundment except in accordance with these regulations, is guilty of an offence and is liable on summary conviction to a fine of not more than $5,000. 62/12 s22 Back to Top Fees and forms 23. The minister may set fees and the registrar may set forms required for the administration of these regulations. 62/12 s23 Back to Top Repeal 24. The Vehicle Seizure and Impoundment Regulations , Newfoundland and Labrador Regulation 73/03, are repealed. 62/12 s24 Back to Top Commencement 25. These regulations come into force on September 1, 2012. 62/12 s25