(concurring) — I concur completely with the majority’s well-reasoned opinion. I write separately to respond to the dissent’s interpretation of the 1998 amendment to the underlying law.
As the majority notes, law enforcement officers have long had the power to impound vehicles driven by unlicensed drivers, and to take custody of vehicles to protect public safety. See, e.g., former RCW 46.55.113 (1994); State v. Coss, 87 Wn. App. 891, 943 P.2d 1126 (1997). Both Washington case law and Washington statutory law have historically *163required an exercise of officer discretion to determine whether impoundment was reasonable and appropriate. See former RCW 46.55.113 (‘Whenever the driver of a vehicle is arrested ... the arresting officer may take custody of the vehicle.”) (emphasis added); State v. Reynoso, 41 Wn. App. 113, 119, 702 P.2d 1222 (1985). In Reynoso, the Court of Appeals specifically concluded that the mere fact a vehicle was driven by an unlicensed driver was insufficient to justify impoundment, and that seizure is unlawful unless (1) “there is probable cause to seize the vehicle” or (2) “there are no reasonable alternatives to impoundment.” Reynoso, 41 Wn. App. at 116. Impoundment is not reasonably necessary when other drivers are available to move or take custody of the vehicle. See State v. Simpson, 95 Wn.2d 170, 189, 622 P.2d 1199 (1980). Such determinations necessarily require an exercise of officer discretion, and therefore the state patrol regulation, read against the background of our law, goes too far.
Reynoso and its progeny are consistent with article I, section 7 of the Washington State Constitution. Under both federal and Washington State Constitutions, all seizures of person or property must be reasonable. Payton v. New York, 445 U.S. 573, 585, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980); State v. Kennedy, 107 Wn.2d 1, 4, 726 P.2d 445 (1986). Against this principle we must consider the 1998 legislature’s legitimate finding that the high rate of recidivism among drivers with suspended licenses is of grave public concern. The legislature amended RCW 46.55.113 to provide that when a law enforcement officer makes an arrest for certain offenses, “the vehicle is subject to impoundment, pursuant to applicable local ordinance or state agency rule at the direction of a law enforcement officer.” RCW 46-.55.113. While this is a significant change in the language of the statute, it is not one that completely removes officer discretion. As the Washington State Patrol (WSP) agrees, “subject to [impoundment]” simply means that a vehicle may be impounded under circumstances described in the statute, not that it must be. WSP Resp. Br. at 30 n.12. I *164believe the legislature intended to continue discretionary impoundment, under clear criteria established by a locality or state agency, consistent with constitutional requirements. This allows some measure of local control, while clearly signaling the legislature’s proper concern for safety on our state’s roadways. The significant amendment to the legislative schema was the addition of “pursuant to applicable local ordinance or state agency rule at the direction of a law enforcement officer.” RCW 46.55.113. Far from authorizing blanket seizure, this language merely partially codifies the long-standing common law requirement that officer discretion whether or not to impound must be reasonable and may be exercised within standardized criteria. See, e.g., Colorado v. Bertine, 479 U.S. 367, 376-77,107 S. Ct. 738, 93 L. Ed. 2d 739 (1987) (Blackmun, J., concurring); cf. State v. White, 135 Wn.2d 761, 958 P.2d 982 (1998); see generally Jeffrey Hannigan Kuras, Catherine Kriendler Levy, Jennifer L. Burns & Scott A. Lowry, Warrantless Searches and Seizures, 90 Geo. L.J. 1130, 1185 (2002).
While there is no doubt that the legislature found vehicle impoundment to be a useful tool in promoting the safety of our roads, there is no reason to believe that it intended to overrule the Reynoso line of cases requiring a reasonable exercise of discretion in impoundments. The legislature “is presumed to know the existing state of the case law in those areas in which it is legislating and a statute will not be construed in derogation of the common law unless the Legislature has clearly expressed its intention to vary it.” Price v. Kitsap Transit, 125 Wn.2d 456, 463, 886 P.2d 556 (1994). Here, there is no clear expression of legislative intent that impoundment be mandatory. Indeed, the legislature specifically used the words, “at the direction of a law enforcement officer,” which is not inconsistent with our case law. RCW 46.55.113.
There are other factors indicating the legislature did not intend mandatory impoundments. First, the legislature must have known that, for the poor, impoundment often means forfeiture. While there are procedures for an owner *165to recover an impounded vehicle, for the poor who cannot afford the towing and storage fees, these procedures offer little relief. Second, the legislature must have been aware of how difficult it is to obtain current licensing information from the Department of Licensing (DOL). It is unlikely that the legislature would impose severe penalties on an owner for allowing a suspended driver to drive a vehicle without providing some quick and accessible mechanism to verify whether the driver is licensed. No such mechanism is available to the average person. The categories of those legally permitted to obtain these records are limited. An employer, an insurer, a prosecuting attorney, or a drug treatment agency may obtain an abstract of a driving record only by meeting specific statutory requirements; generally, through a written and signed request, accompanied by written consent of the driver, and payment of a fee. RCW 46.52.130. Strong and legitimate privacy protections protect DOL records. Cf. RCW 46.12.390. Under the Driver’s Privacy Protection Act of 1994, 18 U.S.C. § 2721, it is doubtful that an average car owner can legally discover whether a prospective driver’s license has been suspended. Third, the legislature must have known that vehicles are often loaned in emergencies. A good neighbor might loan her car to a neighbor whose car unexpectedly will not start on the morning of a doctor appointment for a sick child. Similarly, a vehicle left with a mechanic may be driven by many people without the owner’s knowledge. It is unreasonable to believe that the legislature intended to impound cars driven by mechanics or valets hired by theaters, charity events, or political fund-raisers. It is simply unreasonable to believe the legislature intended an owner to verify the official driving record of every prospective driver when the legislature itself has properly made such verification extremely difficult.
It may be that proper, less burdensome postseizure procedures could be established that would satisfy constitutional requirements. That case is not before us today, and I share the majority’s unease that such could be estab*166lished. Majority at 150 n.3. But in the absence of clear legislative intent to derogate the common law and substitute a new system that gives proper weight to the interests of the private property owner and public safety, WAC 204-96-010 goes too far. Therefore, I concur with the majority.