DWI Civil Forfeiture

DWI car forfeiture is one of the most controversial policies regarding DWI related crimes in recent years. DWI civil forfeiture relates to the police policy of ceasing a driver’s vehicle after an arrest for DWI related crimes.

This section has been expanded in recent years to include other crimes, including reckless driving.

The police department may impound a driver’s car immediately after arrest and thereafter bring civil forfeiture proceedings for anyone accused of DWI or reckless driving even if the defendant did not own the car which she was arrested in.

Although the impounded car will often be returned to the defendant following his arrest, the defendant will still be required to pay a series of fees related to the forfeiture (including towing and police impound lot fees) and will then be unable to sell the car pending the completion of the civil forfeiture proceedings.

Forfeiture proceedings may be brought even in cases in which the driver leased the car.

If New York State is successful in forfeiture proceedings, not only will the defendant lose his car, but he will then still be responsible for paying off the remainder of his car lease and any accompanying charges (including legal fees incurred by the leasing company).

The DWI forfeiture proceeding operates separately and apart from the DWI criminal case.

Accordingly, a person may go to trial on the DWI charge win, have the case dismissed, and still lose his car in the DWI civil forfeiture action.

This can, and frequently does, occur because the DWI Civil Forfeiture standard of proof is a much lower one.

Fortunately, there are several defenses which can and should be raised by a driver facing DWI Civil Forfeiture.

These defenses include the following:

1. The Innocent Owner Defense - This defense can be used if the innocent owner of the vehicle did not have knowledge that the person charged with drunk driving was operating his or her car.
2. Untimely Filing - The County must prove that it served the owner (and driver) within one hundred and twenty days.
3. Undue Hardship - The person against whom civil forfeiture proceedings are brought may allege undue hardship including family or financial hardship arising out of the loss of his car (such as is the case where the car is needed for a spouse to drive to work).
4. Inadequate Notice - The County must provide timely notice to both the driver and owner that it intends to seize the car.

If the car is leased a driver facing a DWI civil forfeiture prosecution will typically face a two front war. Most car leases in New York State now contain provisions requiring a person sued for civil forfeiture to reimburse the leasing company’s legal fees for the prosecution.

While considered civil in nature, the effect of a car seizure can be devastating.

The New York State DWI Civil Forfeiture Law makes no distinction between the value of the car. Accordingly, if the police are able to bring a civil forfeiture proceeding against an owner of a $1,000 car, they can bring the same civil forfeiture proceeding against an owner of a $50,000 car.

The innocent owner defense is the most commonly used defense and most often successful.

However, the innocent owner defense is much less likely to be successful where the owner is an immediate family member.

This is true because courts deem immediate family members to be aware of a driver’s propensity for drinking and, more importantly, for driving under the influence.

If the car which is seized is not released before the conclusion of the criminal action, strict procedures must be followed.

Following the car seizure a driver must make a demand for the car at the police impound lot.

In order to obtain the car’s release, the owner must show:

1. Proof of ownership of the seized car;
2. A certificate of disposition of the criminal case; and
3. A signed letter from the district attorney consenting to the release of the car.

If the car is then released, the police department must bring civil forfeiture proceedings against the accused within a set period of time.

In view of the substantial penalties, it is imperative that you speak to a lawyer who is an expert in the field of civil forfeiture to handle not only the criminal action, but the related vehicle civil forfeiture action that arises out of it.

Stewart McMillan is experienced in handling both the defense of the criminal prosecution as well as the civil forfeiture prosecution which may arise out of it.

If you have been charged with a DWI civil forfeiture, please contact Stewart A. McMillan immediately at (914) 358-4326 or on his 24 hour cell phone at (917) 538-5016 or e-mail him at stewart@mcmlawyer.com