Sec. 134-476. Motion to vacate or modify temporary restraining order.
(a) General. Any party defendant and any person holding any legal or equitable interest or right of possession in any motor vehicle detained and/or closed under this article may file a motion to vacate or modify the temporary restraining order or for return of the motor vehicle. Proceedings on these motions shall be as provided below.
(b) Motion to vacate or modify orders other than those pertaining to detained and/or closed motor vehicle(s). Where the specific provision in the temporary restraining order complained of pertains to any matter other than a motor vehicle that has been detained and/or closed, the provision of this subsection shall apply and control.
(1) Within 14 days of the date that the temporary restraining order is served, the moving party must:
a. File the written motion to vacate or modify; and
b. Set the motion for a hearing to be held within 21 days but not less than 14 days from the date the motion is filed; and
c. Personally serve the motion and notice of the hearing on the office of the city attorney—criminal justice division. Any motion to vacate a temporary restraining order shall state specifically the factual and legal grounds upon which it is based, and only those grounds may be considered at the hearing.
(2) At the hearing, the city shall have the burden of proving by a preponderance of the evidence that there is probable cause to believe that a vehicular public nuisance or vehicular public nuisance activity occurred on, in or about the motor vehicle, or the motor vehicle was used to commit, conduct, promote, facilitate or aid the commission of any vehicular public nuisance. The court shall not vacate or modify the temporary restraining order unless it finds that there is no probable cause to believe that a vehicular public nuisance occurred.
(c) Motion to vacate or modify orders pertaining to detained and/or closed motor vehicle(s). Where a specific provision in the temporary restraining order pertains to the retention, closure or receivership of property, the provisions of this subsection shall apply and control.
(1) Within 14 days of the date that the temporary restraining order is executed, the moving party must:
a. File the written motion; and
b. Set the motion for a hearing to be held within 21 days but not less than 14 days from the date of the filing of the motion; and
c. Personally serve the motion and notice of the hearing on the office of the city attorney—criminal justice division. Any motion for return of closed property shall state specifically the factual and legal grounds upon which it is based, and only those grounds may be considered at the hearing.
(2) At the hearing on the motion for return or release of a detained and/or closed motor vehicle, the party seeking release and return of the motor vehicle shall first have the burden of proving ownership or a right to possession and that the motor vehicle is not relevant evidence in any criminal or traffic proceeding. The party seeking release of the property shall also have the burden of proving that there is no probable cause to believe that a vehicular public nuisance occurred on, in or about the motor vehicle or that an affirmative defense under section 134-479 exists.
(3) The court shall not return or release the motor vehicle to the moving party unless it finds by a preponderance of the evidence that:
a. The moving party is the owner of the property or presently entitled to possession; and
b. The property is not relevant evidence in a criminal or traffic proceeding; and
c. There is no probable cause to believe that a vehicular public nuisance was committed on, in or about the motor vehicle or that an affirmative defense under section 134-479 exists.
(d) Consolidated hearing on motion to vacate, modify, and trial on the merits. Where all parties so stipulate, the court may order the trial on the merits to be consolidated and tried with a hearing on these motions. Where the trial on the merits is not consolidated, any evidence received at the hearing on these motions need not be repeated at trial but shall be treated as part of the record at trial.
(e) Order to stay execution of temporary restraining order. In addition to a motion to vacate or modify orders pursuant to subsections (b) and (c) of this section, a defendant may file a written motion for stay of execution of a temporary restraining order. Whenever a motion for stay of execution is filed, the provisions of this subsection shall apply and control.
(1) Within 14 days of the date that the temporary restraining order is served, the moving party must:
a. File a written motion to stay enforcement of the temporary restraining order; and
b. Set the motion for a hearing to be held within 21 days but not less than 14 days from the date of the filing of the motion; and
c. Personally serve the motion and notice of the hearing on the office of the city attorney—criminal justice division.
(2) At the hearing, the moving party shall have the burden of proving by a preponderance of the evidence that the defendant is using all reasonable efforts to abate the vehicular nuisance activities, and that those efforts are likely to abate the vehicular nuisance activities.
(3) If the court finds:
a. The defendant is using all reasonable efforts to abate the nuisance activities; and
b. These efforts are likely to abate the activities giving rise to the public nuisance; and
c. The public health, safety and welfare would not be impaired by granting a stay of execution of the temporary restraining order, the court may grant a stay of execution of the temporary restraining order not to exceed 45 days except where a longer period of time is required by law.
(4) Any order granting a stay of execution of the temporary restraining order pursuant to subsection (e)(3) of this section shall be reviewed by the court at least seven days prior to expiration of the stay. (Ord. No. 2021-23, § 1, 7-26-2021)