§ 54-178. Hearings.

(a)

Preliminary hearing.

(1)

The registered owner or lessee of a motor vehicle seized and impounded may contest the seizure and impoundment of the motor vehicle by requesting a preliminary hearing. The registered owner must make a request for a preliminary hearing within 24 hours of the seizure. The request shall be deemed filed upon delivery to the village police department. The preliminary hearing request shall be in writing.

(2)

The police chief or his designee shall conduct the preliminary hearing within 24 hours after receipt of the request, excluding Saturdays, Sundays, or village holidays, in which case the preliminary hearing shall be heard on the next business day after the request. All interested parties shall be given a reasonable opportunity to be heard at the preliminary hearing. The formal rules of evidence shall not apply at the hearing, and hearsay evidence shall be admissible only if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs.

(3)

If, after the hearing, the police chief or his designee determines that there is probable cause to believe that the motor vehicle is subject to seizure and impoundment, he shall order the continued impoundment of the motor vehicle as herein provided, unless the registered owner of the motor vehicle posts with the village a cash bond in the amount of $500.00, and pays any applicable towing and storage fees.

(4)

If the police chief or his designee determines that there is no such probable cause to believe the motor vehicle was used, operated or in the physical control of the offender during the commission or attempted commission of any of the criminal offenses set forth in section 54-173, then the motor vehicle shall be returned to the registered owner and any bond posted shall be returned.

(b)

Notice of final hearing; hearing procedure.

(1)

Within ten days after a motor vehicle is seized and impounded, the police chief or his designee shall notify the registered owner, lessee and lien holder of record of the motor vehicle of the seizure and impoundment of the motor vehicle in writing either by personal service or by first class mail, postage prepaid, to the interested party's address as registered with the secretary of state of the date, time, and location of the administrative hearing to be conducted and the basis for the motor vehicle seizure.

(2)

An initial hearing shall be scheduled and convened within 45 days after the date of mailing of the notice of hearing. The registered owner, lessee and lien holder of record of the motor vehicle may appear at the hearing and may contest or elect not to contest the basis of the motor vehicle seizure and impoundment.

(3)

If the registered owner, lessee or lien holder of record of the motor vehicle or such among them appearing at the hearing elect not to contest the basis for the seizure and a factual basis exists for the seizure and impoundment of the motor vehicle, the hearing officer shall impose the administrative fee.

(4)

If the registered owner, lessee or lien holder of record of the motor vehicle appearing at the hearing elects to contest the basis for the seizure and impoundment of the motor vehicle, a hearing shall be held immediately, unless continued by order of the hearing officer.

(5)

Continuances shall only be granted for good cause shown.

(6)

All interested persons shall be given a reasonable opportunity to be heard at the hearing and to present all relevant evidence.

(7)

At any time prior to the hearing date, the hearing officer may, upon written motion or written request by the registered owner, lessee or lien holder of record of the motor vehicle or by the village, direct witnesses to appear and give testimony at the hearing.

(8)

Subpoenas for the production of witnesses and records may be issued upon request of either party.

(9)

The formal rules of evidence shall not apply at the hearing, and hearsay evidence shall be admissible only if it is of the type commonly relied upon by reasonably prudent persons in the conduct of their affairs. An arresting police officer's sworn report and copies of driving abstracts or records issued by the secretary of state shall be admissible.

(10)

All hearings shall be recorded, and the recording shall be the official record of the proceedings. All findings, decisions and orders of the hearing officer shall be reduced to writing, signed by the hearing officer and served upon all parties by first class mail, postage prepaid, or personal delivery, within seven business days after the hearing. Service of the findings, decisions and orders of the hearing officer shall be complete upon the date of mailing.

(c)

Final determination.

(1)

Finding of probable cause.

a.

If, after the hearing, the hearing officer determines by a preponderance of the evidence that there is probable cause to believe that the motor vehicle was used or operated by an offender during the commission or in furtherance of any criminal offense listed in this subdivision and that at the time of the impoundment the motor vehicle was not stolen, the hearing officer shall enter an order finding the registered owner of the motor vehicle civilly liable to the village for the administrative fee.

b.

The hearing officer shall order the motor vehicle to remain impounded until the registered owner, lessee, lien holder of record of the motor vehicle or someone on behalf of the registered owner pays the administrative fee to the village and pays any and all fees to the towing entity or village for the towing and storage of the motor vehicle, as the case may be.

(2)

Finding of no probable cause. If, after the hearing, the hearing officer finds that probable cause does not exist to believe the motor vehicle was used during the commission of a criminal offense as set forth in section 54-173 or that at the time of the impoundment the motor vehicle was stolen, the hearing officer shall enter an order for the immediate return of the motor vehicle or return of cash bond, if posted, to the owner without assessing any administrative fee.

(3)

Proceedings in abstentia when parties fail to appear. If, after proper service of notice, the registered owner, lessee or lien holder of record of the motor vehicle fails to appear at the hearing, the hearing officer shall conduct the hearing in absentia. If, after the hearing, the hearing officer determines by a preponderance of the evidence that there is probable cause to believe that the motor vehicle was used or operated by an offender during the commission or in furtherance of any criminal offense listed in this subdivision and that at the time of the impoundment, the motor vehicle was not stolen, the hearing officer shall enter a default order finding the registered owner of the motor vehicle civilly liable to the village for the administrative fee. A copy of the default order shall be sent to the registered owner of the motor vehicle via certified mail, return receipt requested, and first class mail, postage prepaid.

(Ord. No. 2011-42, § 2(18-316), 8-8-2011)