The Roanoke Times – by Dan Casey
Let’s imagine a scenario in which you’re charged with a traffic offense you didn’t commit, and the police order your car impounded because of it.
Further imagine the company that towed your car sells it before you can persuade a court to dismiss the bogus charge. And that you have a loan on that car and want to protect your credit score.
The end result is, the traffic charge gets dropped and you’re continuing payments on a car you no longer own — because you don’t want to compound this legal travesty by ruining your credit.
For Stephen and Melanie Pence, of Salem, no imagination is necessary. A federal lawsuit the couple filed in April alleges that’s exactly what happened to them last year. They’re suing the state of Virginia, claiming its impoundment statute violates the U.S. Constitution. They’re also suing the towing company that auctioned off their 2012 Hyundai Sonata.
“The story here is, can a person who is completely innocent have their car impounded and then sold out from under them before having a hearing in court?” Roanoke attorney Matt Broughton said . “This is an amazingly ridiculous statute. It really hurts people of modest means.”
Broughton is one of four attorneys at Roanoke-based Gentry Locke representing the Pences without charge. Another is Cynthia Kinser, retired chief justice of the Virginia Supreme Court.
Events leading up to the lawsuit began with a minor fender-bender Sept. 9 on Cove Road. Traveling to work from a medical appointment, Melanie Pence drove her car into the rear of another vehicle. Roanoke police Officer G.P. Benton responded to the scene.
Pence was driving under a restricted license arising from an August conviction of driving under the influence, according to court papers. The restriction allowed Pence to drive to work, church and medical appointments. But at the time of the accident, she didn’t have her restricted license with her. When Benton checked her license status with the Department of Motor Vehicles, its computer incorrectly listed Pence as suspended, rather than restricted.
The lawsuit says Pence phoned the clerk in Salem General District Court from the accident scene, and the clerk confirmed to Benton that Pence’s license was merely restricted. Nevertheless, Benton charged Pence with driving on a revoked license and ordered her 2012 Hyundai Sonata impounded for 30 days.
Roanoke police declined to comment.
G&J Towing in northwest Roanoke towed and impounded the car. Less than a week later, on Sept. 15, G&J sent the Pences a certified letter warning their car would be auctioned Oct. 11 if the towing, administrative and impoundment fees were not paid by then. Those ultimately totaled $1,890.
According to the lawsuit, the Pences twice tried to settle the towing and impoundment charges with G&J, but the company refused to release the car without a court order.
Broughton said that based on those conversations, the Pences believed G&J would not sell their car.
On Nov. 18, at the request of the Roanoke Commonwealth’s Attorney, the driving-while-revoked charge against Pence was dismissed. However, by then, G&J had auctioned the Pences’ car. The lawsuit says the Hyundai, valued at $11,300, sold for “approximately $1,000.”
The lawsuit cites Virginia’s vehicle impoundment law as a big problem. For cars valued at $12,500 or more, the law mandates a court hearing before a lien holder (such as a towing company) auctions an impounded vehicle. But if the car is worth less, the law merely requires 10 days’ notice to the vehicle owner of the impending sale. Also, notice of the pending sale has to be posted in a public place.
In that respect, the law “is unconstitutional on its face because it fails to provide for a hearing prior to the sale of a [lower-valued] vehicle in violation of the Due Process Clause of the Fourteenth Amendment,” the lawsuit argues. Among other things, the due process clause states, “nor shall any state deprive any person of life, liberty, or property, without due process of law.”
Moreover, Virginia laws “operate together to place the innocent vehicle owner in a dilemma: pay thousands of dollars to release the impounded vehicle; or wait months for its release and risk the vehicle’s sale without any judicial or other oversight,” the lawsuit alleges.
It also claims Virginia should have paid all the Pences’ costs related to the wrongful impoundment after the charge against Melanie Pence was dismissed. This is actually provided for in Virginia’s vehicle impoundment law.
That states that a dismissal or acquittal of the underlying charge “shall result in an immediate rescission of the impoundment” and “the commonwealth shall pay or reimburse the person for all reasonable costs of impoundment or immobilization, including removal or storage costs, incurred or paid by him.”
In the Pences’ case, because their car had already been sold, there was no impoundment to rescind.
The Pences also argue that G&J Towing should not have auctioned their car because the law required G&J to hold the car even past the 30 days in Benton’s order. Their lawsuit claims the towing company’s notice to the couple was defective because it was sent during the 30-day impoundment, rather than afterward.
The Pences claim that by auctioning the car, the company violated both the law and the Virginia Consumer Protection Act, which provides for triple damages, plus attorneys’ fees and punitive damages.
The Pences are asking a judge to declare the Virginia impoundment law unconstitutional. They’re seeking the full value of the car, plus the towing and impoundment fees, from the Comptroller of Virginia, and $48,000, plus attorney and court fees from G&J. The lawsuit also asks for $350,000 in punitive damages from the towing company.
G&J owner Walter Hinckley didn’t return two messages I left with his company the week of April 23. His attorney, Stephanie Cook, told me Wednesday that “my clients aren’t mean or fraudulent people. My client was told by law to impound the vehicle for 30 days, and that’s what they did.”
In February, the Pences sought reimbursement of the vehicle’s value, plus towing and impoundment costs, from the Comptroller of Virginia, David Von Moll. He told me his office refused to pay “on advice of counsel” in the Virginia Attorney General Office.
“I’ve been comptroller for 15 years, and to my knowledge, my office has never paid” for towing and impoundment of a vehicle after charges against a car’s owner were dismissed, Von Moll told me.
In responding to the lawsuit, the Virginia Attorney General’s Office has asked the court to dismiss the case.
In a brief filed April 28, Assistant Attorney General Adam Yost argues Virginia’s vehicle impoundment law is not unconstitutional. The U.S. Constitution’s due process clause doesn’t mandate a court hearing under the circumstances the Pences have outlined, the brief says.
The Pences could have paid the towing and impoundment fees and sought reimbursement later or filed a lawsuit to prevent their car’s sale, the attorney general’s brief argues.
The due process clause “guarantees an opportunity to be heard, but the guarantee is only that — an opportunity. The plaintiffs had three opportunities to prevent the sale of their vehicle, and they took advantage of none of them,” Yost’s brief argues.
Broughton said the Pences still are making payments on a car they haven’t owned since October.