Traffic & DWI: An Old Fashioned Money Grab

Earlier this year, one of my clients came to me in desperate need of help; he had been stopped for a DWI over the weekend, which can have serious consequences.  For the sake of my bar license, lets call this client Mr. Smith.

The odd part wasn’t that he was mad about the DWI, partly because he had a pretty good defense.  His issue was with the city of O’Fallon, Illinois, where Mr. Smith had been arrested.

In addition to the $200.00 towing fee they charged him to remove his car from the side of the road, they charged him $500.00 for a so-called “Administrative Fee.” The infuriating part is that whether Mr. Smith won or lost in court, it appeared that he had already been adjudged “guilty” and assessed this “fee” to defray the administrative cost to the city of processing the arrest.

After agreeing to take on the case, I reviewed the evidence and, most importantly, the ordinance allowing the administrative fee.  The ordinance permitted a challenge to the fee, which had to be filed within 30 days of the arrest.  We filed the necessary paperwork and prepared for the hearing.

All the preparation in the world couldn’t have steadied me for what we were about to experience.  When we were given the hearing notice, we were informed it would be held over the phone (not in a courtroom), presided over by a police officer (not a judge or attorney), and without a court reporter (thus, no record).

When we made our arguments, the officer stated the same thing each time; “I am writing down your points and will present them to the city attorney, but I’m not a lawyer so you’ll have to take it up with the city.”  Really?!?!  Are you kidding me?  Needless to say, he ruled that the city would keep the so-called administrative fee.

Surprisingly enough, that’s not the kicker.  A month later, my client’s charges were dismissed because there wasn’t enough evidence against him.  When we contacted the police officer that presided over the hearing, he stated they still weren’t returning my client’s money.

Next, I contacted the city attorney, hoping to reach someone I could rationalize with.  No such luck.  Again, we were turned down in a letter stating that my client “had not been found not-guilty,” which is the only way in the ordinance by which the city would return the fee.  Thus, essentially the city of O’Fallon could repeatedly arrest, charge, and then dismiss the case, but still collect the $500 fee.

A fee is “a visitation of the costs of special services upon the one who derives a benefit from them.”  A fine, in contrast, exacts payment by way of punishment for doing some act which is prohibited, or omitting to do some act which is required to be done.

Mr. Smith was denied his Constitutional Due Process rights. The city had no authority to declare Mr. Smith guilty of an alleged driving offense without a trial, any more than a deputy sheriff may declare a motorist guilty of speeding and summarily assess a “traffic patrol fee.”

When the government violates one citizen’s civil rights, it effectively imposes on all of us. Our rights are there to protect society at large. Just as an illegal fee on a pub may drive up the price of ale, any infringement on an individual’s rights has a deleterious ripple effect on others. (quoted from Michael Burger, attorney for Davidson Fink).

Mr. Smith’s only apparent recourse to this point is to fight this $500 fee by filing a lawsuit, but the court filing fee alone iss around $200.  To seek justice and to prove a point, we will be filing in court this week.