Rules of the Road

Can police impound a car if they find drugs on the driver? Asking for a friend ...

While officers can impound a vehicle after arresting a driver, courts have determined that there are some instances where towing the vehicle could be unconstitutional.
While officers can impound a vehicle after arresting a driver, courts have determined that there are some instances where towing the vehicle could be unconstitutional. McClatchy

Question: My friend got pulled over for a traffic infraction. The officer found drugs on him and in his backpack. He got arrested, and they let me go. However, they wouldn’t let me take the car, even though I have a valid driver’s license. Why wouldn’t they let me take the car?

Answer: This question could be filed under the category “How well do you know your friends?” If this event came as a surprise to you, I sympathize with your unfortunate stranding. If you complicit in your friend’s contraband possession, well, you could consider yourself fortunate that you got to enjoy your walk home.

When the entirety of your friend’s arrest is reduced to a few sentences, it leaves me with more questions than answers:

How did the officer go from a traffic stop to searching your friend and his backpack?

Where was the car located when you were stopped?

Did your friend trust you to take the car for him?

Was your friend under the influence of any of the aforementioned drugs?

Without answers to those questions, I don’t know why those specific officers chose to impound your friend’s car, so instead, we’ll take a look at Washington state law and see when impounding a vehicle is authorized (or sometimes even required).

In many situations where a car could be legally impounded, an officer has discretion based on the circumstances. However, when it comes to impaired drivers impound is mandatory.

Years ago officers often did not impound an impaired driver’s car, but an event in Whatcom County changed that. In 2007 a woman was arrested for DUI. After being released she returned to her car, still impaired, and drove again. This time she caused a crash, seriously injuring another driver. That event prompted our state to change the law, making vehicle impoundment mandatory for DUI and physical control arrests, with a 12-hour minimum hold.

In addition to impaired driving, RCW 46.55.113 lists 10 situations where the law allows, but does not require, an officer to impound a vehicle. It includes traffic hazards, parking and license violations, and collision scenes. As it relates to the original question, we’ll take a look at No. 5: Whenever the driver of a vehicle is arrested and taken into custody.

While the officer is authorized to impound the vehicle, the Ninth Circuit Court of Appeals has determined that there are some instances where towing the vehicle could be unconstitutional and has sometimes ruled against officers who have impounded a car subsequent to arresting the driver. The court refers to the “community caretaking” function of law enforcement.

In the context of vehicle impoundment, the officer should make the decision to impound based on what’s best for the community and not in an effort to additionally punish the violator.

It mostly comes down to where the car is located and if there is another option to remove the car. If, at the time of arrest, the car is located on the shoulder of a busy road in an area where it might cause a hazard or in a location where it is at risk of vandalism or theft, towing the car may be appropriate.

Conversely, in cases where officers, upon arrest of the driver, towed a car from a parking garage, private property or a parking lot behind the arrestee’s apartment, the court determined that the towing was unconstitutional.

I’m no legal expert, but it appears to me that if the car is located in a place where you’d normally find a car it can stay; if it’s in a spot where the car doesn’t belong it should get towed.

The other factor the court considered was whether there was another alternative to towing. Usually this would be another occupant in the car with a valid driver license who has permission from the driver to remove the car.

The Washington Supreme Court, in agreement with the Ninth Circuit, states that, “impoundment is inappropriate when reasonable alternatives exist.” And, “the police officer does not have to exhaust all possible alternatives, but must consider reasonable alternatives.”

I can only guess that the driver of the car in the original question refused, for whatever reasons, to let the passenger take the car, eliminating the officer’s most reasonable alternative to impoundment.

The fourth amendment of the U.S. Constitution requires that seizures, which include impounding a car, must be reasonable. Impounding a car after the arrest of the driver may or may not be reasonable, depending on the circumstances.

But the law makes it clear that when it is reasonable, it is one option available to law enforcement.

Road Rules is a regular column on road laws, safe driving habits and general police practices. Doug Dahl is the Target Zero Manager for the Whatcom County Traffic Safety Task Force. Target Zero is Washington’s vision to reduce traffic fatalities and serious injuries to zero by 2030. For more traffic safety information visit Ask a question.