AGLO 1974 No. 46 - Apr 15 1974
MOTOR VEHICLES ‑- POLICE OFFICERS ‑- SHERIFFS ‑- HIGHWAYS ‑- ABANDONED ‑- REMOVAL
(1) A police officer may employ the services of a commercial towing truck to move a parked automobile from a highway under RCW 46.61.565.
(2) In such a case, the tow truck operator will have a statutory lien against the owner of the automobile for payment of his charges, and will also have a contractual right to payment by the county or city which retained his services if the vehicle involved later turns out to have been abandoned and is not claimed by its owner.
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April 15, 1974
Honorable James P. McNally
Pend Oreille County
Newport, Washington 99156 Cite as: AGLO 1974 No. 46
By letter previously acknowledged, you have requested our opinion on three questions concerning the application of RCW 46.61.565. We have paraphrased your questions as follows:
(1) May a police officer employ the services of a commercial towing truck to move a parked automobile from a highway under RCW 46.61.565?
(2) If question (1) is answered in the affirmative, who is liable for the payment of the towing charges in a case where the tow truck is called by a county deputy sheriff and the vehicle involved later turns out to have been abandoned and is not claimed by its owner?
(3) What efforts must be made by a police officer moving an automobile from the highway under RCW 46.61.565 to notify its owner of the removal and new location of the vehicle?
We answer your questions in the following manner:
RCW 46.61.565 provides that:
"(1) Whenever any police officer finds a vehicle standing upon a highway in violation of any of the provisions of RCW 46.61.560, such officer is hereby authorized to move such vehicle, or require the driver or other person in charge of the vehicle to move the same, to a position off the main-traveled part of such highway.
"(2) Whenever any police officer finds a vehicle unattended upon any bridge or causeway or in any tunnel where such vehicle constitutes an obstruction to traffic, such officer is hereby authorized to provide for the removal of such vehicle to the nearest garage or other place of safety.
[[Orig. Op. Page 2]]
"(3) The charge for removal of a vehicle as authorized in subsections (1) and (2) above shall be fixed by the governmental agency having traffic law enforcement jurisdiction over the portion of highway where such vehicle was found. Such governmental agency may perform the removal service directly or through a private firm. A private firm providing such removal services shall post the authorized charges therefor prominently at its place of business. The costs incurred in the removal of such a vehicle shall be paid by the vehicle's owner and shall be a lien upon the vehicle until paid."
In order to answer this question, RCW 46.61.565 must be read in conjunction with RCW 46.52.102, et seq., dealing with abandoned vehicles. These statutes provide, generally, for the removal of abandoned vehicles (RCW 46.52.110), for the appointment of tow truck operators to perform the task (RCW 46.52.108), and for the storage and disposal of such vehicles (RCW 46.52.111-46.52.112).
RCW 46.61.565 apparently contemplates a rather limited set of circumstances. Its first subsection authorizes a police officer to move or to have moved a vehicle stopped on the main-traveled portion of the highway (i.e., the normal traffic lanes) in violation of RCW 46.61.560, which reads as follows:
"(1) Upon any highway outside of incorporated cities and towns no person shall stop, park or leave standing any vehicle, whether attended or unattended, upon the main-traveled part of the highway.
"(2) This section shall not apply to the driver of any vehicle which is disabled while on the main-traveled portion of a highway in such manner and to such extent that it is impossible to avoid stopping and temporarily leaving such disabled vehicle in such position."
In a case covered solely by RCW 46.61.565(1), the vehicle is merely to be moved to a position off the [[Orig. Op. Page 3]] main-traveled portion of the highway; e.g., to the shoulder.1/ It is not to be hauled off to a garage or impound lot unless it also fits the definition of an abandoned vehicle under RCW 46.52.102,2/ so as to bring RCW 46.52.110-46.52.112 into play. By reason of subsection (3), however, whatever degree of removal is required or authorized under the circumstances may either be performed directly by the governmental agency having jurisdiction or through a private firm.
[[Orig. Op. Page 4]]
Subsection (2) of RCW 46.61.565, supra, covers a slightly different traffic control problem, in a manner consistent with our reading of subsection (1). This subsection deals with a vehicle found ". . . unattended upon any bridge or causeway or in any tunnel where such vehicle constitutes an obstruction to traffic . . .," and in such a case the statute allows for the vehicle to be moved to the "nearest garage" (which would seem particularly apt when the vehicle is unattended) or to some other place of safety. Again, as provided in subsection (3), a private tow firm may be employed or the governmental agency having jurisdiction may act directly.
This question inquires as to the financial liabilities involved in those instances where a private tow truck is called by a county deputy sheriff and the vehicle involved later turns out to have been abandoned and is not claimed by the owner.
Where a vehicle is removed from the highway as an abandoned vehicle under RCW 46.52.102, supra, this matter is covered in detail by RCW 46.52.112 relating to the sale of abandoned vehicles after notice to the registered and legal owner. And, presumably, this statute would also be available in the case of a vehicle removed from the highway under RCW 46.61.565, supra, that later turns out to have been abandoned. Otherwise, however, the tow truck operator will in any event have a lien against the vehicle for his costs by virtue of subsection (3) of that statute. The costs thus recoverable would be those reasonably incurred by removal within the limits contemplated by the statute, viz., removal off the main-traveled part of the highway, from a causeway, tunnel, a bridge to the nearest garage or other safe place. Normally, this should not mean a long tow. Before the tow truck operator could assert a lien successfully for a tow to an impound center some miles distant, he would have to show that this was within the breadth of actions the legislature meant to cover by statutorily creating a lien to enforce reimbursement.
In addition to the tow truck operator's statutory lien against the owner of a towed vehicle, he will also have a contractual right to payment for his services by the county in the situation described in your letter. Since a county deputy sheriff engaged the tow operator to perform a service for the county by clearing the road of a vehicle, normal contract principles would operate to [[Orig. Op. Page 5]] obligate the county to pay for the services rendered if they are not, instead, paid by the owner of the vehicle in order to reclaim it.
As for your third question, because the movement contemplated by RCW 46.61.565, supra, would normally be slight ‑ just enough to get the vehicle out of the traveled part of the highway, tunnel, bridge, etc., the owner would normally have no difficulty locating it. When, however, the vehicle is moved to a location unknown to the owner, it is only reasonable to imply from the statute an obligation to notify the owner of the new location. As a practical matter, it seems unlikely that notice could be given immediately. However, the computerization of motor vehicle license information reduces significantly the reasonable time required to identify the owner so that he can be notified.
Of course, if the vehicle is determined to be abandoned pursuant to RCW 46.52.102, supra, and is subsequently placed in the custody of a tow truck operator pursuant to RCW 46.52.110,3/ then the notice provisions of [[Orig. Op. Page 6]] RCW 46.52.1114/ become applicable. Compliance with these two sections will fulfill the legal requirements for notice to the legal and registered owners of abandoned motor vehicles.
We hope this has been of assistance to you.
Very truly yours,
Assistant Attorney General
*** FOOTNOTES ***
1/We are not referring now to a situation in which the vehicle is on the main-traveled part of the highway because it is disabled, either due to mechanical failure or accident, and police officers are asked to assist in removal of the vehicle to a garage or similar establishment for repair or storage. The existence of such a situation makes RCW 46.61.565 inapplicable since RCW 46.61.560 no longer would apply.
2/"An 'abandoned vehicle' for the purposes of this chapter shall mean any vehicle left within the limits of any highway or upon the property of another without the consent of the owner of such property for a period of twenty-four hours, or longer except that a vehicle shall not be considered abandoned if its owner or operator is unable to remove it from the place where it is located and so notifies law enforcement officials and requests assistance. An 'abandoned automobile hulk' for the purposes of this chapter shall mean the abandoned remnant or remains of a motor vehicle which is inoperative and cannot be made mechanically operative without the addition of vital parts or mechanisms and the application of a substantial amount of labor to effect repairs."
3/". . . It shall be the duty of the sheriff of every county, the chief of police or chief police officer of each incorporated city and town, members of the Washington state patrol and constables to report to the chief of the Washington state patrol all vehicles or automobile hulks found abandoned on a public highway or at any other place and the same shall thereafter, at the direction of such law enforcement officer, be placed in the custody of a tow truck operator."
4/"Within five days after receiving custody of such abandoned vehicle or automobile hulk, the tow truck operator shall give notice of his custody to the department of motor vehicles and the chief of the Washington state patrol and within five days after having received the name and address of the owner, he shall notify the registered and legal owner of the same with copies of such notice being sent to the chief of the Washington state patrol and to the department of motor vehicles. The notice to the registered and legal owner shall be sent by the tow truck operator to the last known address of said owner appearing on the records of the department of motor vehicles, and such notice shall be sent to the registered and legal owner by certified or registered mail with a five‑day return receipt requested. Such notice shall contain a description of the vehicle or hulk including its license number and/or motor number if obtainable, and shall state the amount due the tow truck operator for services in the towing and storage of the same and the time and place of public sale if the amount remains unpaid.
"The department of motor vehicles shall supply the last known names and addresses of registered and legal owners of abandoned vehicles or automobile hulks appearing on the records of the department to tow truck operators on request without charge."