Impounding Trucks: Part 1 – Arrests

If you were coming of age in Chicago in 1973, you loved Steve Goodman. Many classic songs written by this tunesmith were about his beloved City of Chicago, including the “Lincoln Park Pirates” from the album Someone Else’s Troubles. The song, written in jest as a tribute to the Lincoln Towing Service from the north side, exposed corruption and demonized towing. Most towing operations are legit, but relocation and repossession towing are stained forevermore. The police have towing authority, and the article this week will be the first in a series discussing appropriate (and inappropriate) towing procedures of trucks.

The police have tow authority for good reason. Nobody wants their vehicle towed because towing is expensive. However, part of police work is order maintenance, and vehicles blocking roadways is disorderly.

In 625 ILCS 5/11-1302, the Illinois General Assembly gives police officers the authority to tow vehicles in certain situations. Here is the summary of the towing criteria in this section:

  1. The vehicle has been left unattended and is blocking traffic

  2. The vehicle has been reported stolen or taken without owners consent

  3. The owner cannot provide for the custody or removal of the vehicle

  4. The operator has been arrested (ding ding ding!!)

  5. The registration has been suspended, cancelled or revoked

That’s it. The police cannot just willy-nilly tow vehicles away for any traffic violation. Unfortunately, sometimes the police like to play word games about the term “arrest” and use it to justify the towing.

In simplistic terms, when the police have restricted someone of their constitutional right to liberty, the person has been “arrested”. There are mountains of case law defining what constitutes an arrest and what does not. Historically, the Supreme Court of the United States has said brief encounters with the police, such as a traffic stop, does not constitute an arrest even though the person is not free to leave.

The Illinois Criminal Procedure Code (725 ILCS) defines an arrest as “taking a person into custody”.  A traffic violator who is issued a citation and released on bail at roadside has not been taken into custody.  It’s a matter of semantics, but most traffic violations are petty and business offenses which are punishable by fine only.  Some traffic offenses are misdemeanors and felonies which are jailable and the driver can be taken into custody.

It’s not uncommon to hear truck officers refer to an overweight violation as an “overweight arrest”. While in technical terms this is not totally wrong, you never hear police officers reference “speeding arrests” or “use of a hand held phone arrest”. Why? Because you don’t…it’s just the way it is. But just because the term “overweight arrest” is used does not mean the driver has been arrested. An overweight is not a misdemeanor. It is not a felony. It is a petty offense (by default) with an assigned bail schedule.

Previous articles have discussed the requirement for overweight vehicles to be legalized before continuing on. An officer has full authority to exercise this, but it is not a rationalization to tow or impound the truck as part of an “overweight arrest”.

If a police officer decides the best course of action is to put handcuffs on the driver of an overweight truck, transport him to the station for booking and take him before the magistrate, then yes, he has been arrested.  Therefore the truck could justifiably be towed.

This course of action is very ill-advised. The General Assembly (in 725 ILCS 5/110-15) has given the Supreme Court the authority to set rules for taking bail on traffic offenses. The legislature had the foresight to see the futile nature of taking all traffic violators into physical custody. The police are wise to follow the direction of the Supreme Court for overweight trucks.

Having a truck towed, even for the most legitimate of reasons, is an expensive proposition which requires great discretion. Towing a truck away as part of a standalone “overweight arrest” is adding insult to injury.  It’s punitive. The truck can just as easily be relocated to a safe place where it can legalized per statute.

Next week, this article will look at the newer concept of administrative towing and how it applies to trucks.


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