Vehicle impound fees in McHenry County as Illinois court questions fees

Some municipalities are taking another look at a fee they use to recoup the costs of impounding a vehicle and taking its driver to court.

The considerations aren’t being rushed; the appellate court whose comments prompted the rethinking is downstate, and the opinion isn’t binding.

In 2007, Lake in the Hills became the first McHenry County municipality to issue an administrative impound fee, which is billed to drivers when they're cited in connection with driving under the influence, driving with a suspended or revoked license, an outstanding warrant or other charges that result in the vehicle being impounded.

Since then, at least 17 police departments in McHenry County have adopted the fees, which most municipalities have set at $500. The fee is separate from any towing charges or court fines.

The village of Cary came to the $500 number through a study that looked at the time employees spent on processing such incidents, including the officers' time on the streets conducting the stop and waiting for the tow truck to arrive and the records department employees who have to complete the paperwork, Cary Police Chief Patrick Finlon said.

The department has collected about $36,000 each of the last two fiscal years, records show.

The Fifth District Appellate Court, which covers the lower third of the state, questioned what costs should go into determining the price tag for impound fees, said Brad Stewart, a municipal law attorney with Zukowski, Rogers, Flood and McArdle.

The comments – that because impound fees are based on criminal actions, the fees must relate to the expense of impounding the vehicle, not to the department’s general expenses – came in the opinion’s dictum as opposed to its holding, which means that while lower courts in the appellate court’s district are likely to take note, they’re not binding, Stewart said.

Tow fees also had been addressed in an earlier decision by a different appellate court, which found the fees to be a "reasonable proxy" for administrative costs as well as societal costs, according to an article Stewart wrote for the firm's clients and other subscribers to their weekly law bulletin.

The issue may ultimately have to be resolved by the Illinois Supreme Court, but in the meantime, some area municipal attorneys are passing the findings on to their clients.

In his article, Stewart advised municipalities to review any fees, not fines, and make sure they would be able to justify the fees – show that they’re a “rough approximation” of the costs – if challenged in court.

That’s Finlon’s plan.

“My issue here is it’s got to be reasonable,” he said. “That’s the whole bottom line here. It’s got to be reasonable. In the environment right now, where budgets are being cut pretty significantly, there’s got to be a way to fund these activities [of impounding vehicles]. And why should everyone else have to pay for it when it’s an individual that’s responsible?”

An attorney for the city of Crystal Lake already has looked at the case and found it doesn’t apply, Crystal Lake Police Operations Commander Tom Kotlowski said. That’s because Crystal Lake classifies them as penalties, not fees.

“The next step for us is to just continue to keep our eyes open to what we’re doing and what the law allows,” he said.