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FIRM ARTICLES
September 12, 2005
Criminal DUI/DWI Cases and the Uncivil Law of Vehicle Forfeitures
By: Edward Marinovich, Attorney at Law and Ariella Rosenberg
Clarence Walters of New York City had never been arrested for any offense until his car was seized on March 15, 1999, as the result of a DWI (driving while intoxicated) arrest. His criminal case ended on June 1, 1999, when he pleaded guilty to the lesser charge of driving while ability impaired, a non-criminal violation. The defendant paid a fine, performed community service, and completed a Drinking Driver program that rendered him eligible for the restoration of his driver's license. On June 4, more than two-and-a-half months after the seizure of his vehicle, he was served with a forfeiture complaint on his car. At no time between June 1999 and May 2001, when his vehicle was finally released, was the defendant given an opportunity to challenge the City's retention of the vehicle.
In another case, in September 1999, the defendant, who, at the age of forty-eight had no arrest record, was stopped on DWI charges in New York, resulting in the seizure of her 1995 Toyota. It took 11 months for a judge to dismiss the forfeiture action and ordered that her car, on which she had continued to make monthly payments of $273, be returned to her.
For another defendant, a first-time DWI arrestee, regaining his car was also a drawn-out ordeal. In connection with a DWI arrest in 1999, the defendants car was seized. After entering a guilty plea, he paid a fine and completed all required community service, as well as a Drinking Driver program. Yet, eight months later, he still had received no hearing on the seizure of his car, which remained in police custody. As a result, the defendant was not given an opportunity to present evidence that a prescription anti-depressant medication he was taking at the time of the arrest caused the breathalyzer test to exaggerate the percentage of alcohol in his bloodstream.
Is this Constitutional?
What these people all have in common is the violation of their constitutional rights, Including the Fourth Amendment right of citizens to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures and the Fourteenth Amendment right to not be deprived of property "without due process of law." The Fourth Amendment protection also provides for the requirement, within the search warrant, of "probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. The seizure of the vehicles of these citizens is, on its face, a classic example of state law enforcement violating the constitutional rights of citizens. So then how is it allowed to occur?
New York Law
New York is one of about 21 other states across the country that allow the police to seize the cars of people suspected of driving while impaired or under the influence of drugs or alcohol. New York Vehicle and Traffic Law defines the crime in the following way: no person shall operate a motor vehicle while the persons ability to operate such motor vehicle is impaired by the consumption of alcohol; no person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the persons blood as shown by chemical analysis of such persons blood, breath, urine or saliva; no person shall operate a motor vehicle while in an intoxicated condition, and finally that no person shall operate a motor vehicle while the persons ability to operate such a motor vehicle is impaired by the use of a drug. NY Veh & Traf 1192.
New York Vehicle and Traffic Law contains a section addressing the seizure and redemption of unlawfully operated vehicles, mandating that upon making an arrestfor the crime of aggravated unlicensed operation of a motor vehicle in the first or second degree committed in his presence, an officer shall remove or arrange for the removal of the vehicle to a garage, automobile pound, or other place of safety where it shall remain impounded, subject to the provisions of this section if: (a) the operator is the registered owner of the vehicle or the vehicle is not properly registered; or (b) proof of financial security is not produced; or (c) where a person other than the operator is the registered owner and, such person or another properly licensed and authorized to possess and operate the vehicle is not present. The law requires that a motor vehicle so impounded shall be in the custody of the local authority and shall not be released unless:(a) The person who redeems it has furnished satisfactory evidence of registration and financial security;(b) Payment has been made for the reasonable costs of removal and storage of the motor vehicle. Additionally, in order to be released, where the motor vehicle was operated by a person who at the time of the offense was the owner thereof, the owner must produce (i) satisfactory evidence that the registered owner or other person seeking to redeem the vehicle has a license or privilege to operate a motor vehicle in this state, and (ii)(A) satisfactory evidence that the criminal action founded upon the charge of aggravated unlicensed operation of a motor vehicle has been terminated and that any fine imposed as a result of a conviction thereon has been paid. When a vehicle seized and impounded pursuant to this section has been in the custody of the local authority for thirty days, such authorityshall notify the ownerthat if the vehicle is not retrieved pursuant to subdivision two of this section within thirty days from the date the notice is given, it will be forfeited. Importantly, the period of time during which a criminal prosecution is or was pending against the owner for a violation of this section shall be excluded. NY Veh & Traf 511b.
While it is one thing to tow a vehicle from the scene of a DWI arrest (given that the driver is taken away in a police car), the towing becomes unconstitutional due to the sluggish pace of due process. Owners have a right to prove that the seizure was conducted improperly, or to recover their property after paying their debt to society, without waiting months or even years to do so. Additionally, in cases where the person convicted of the DWI is not the owner of the vehicle, and it belongs instead to the drivers spouse, parent, or friend, the court can sometimes hold the vehicle, essentially seizing the property of a person who has committed no crime. This is indeed a blatant violation of the constitutional right to property.
What has gotten more press than the state law concerning seizure at time of arrest is the New York City Police Departments Vehicle Forfeiture Initiative, based on the New York City Administrative Code section (local law) providing for forfeiture of the instruments used to commit a crime. The rationale of the initiative, insofar as it relates to drunken driving, is that since the vehicle helped commit the crime, seizing an impaired drivers vehicle is like taking away a bank robbers gun. NYC Adm. Code 14-140.
However, in Property Clerk v. Burnett, the 2nd Circuit Court of Appeals ruled that due process of law requires that all plaintiffs be afforded a prompt post-seizure, pre-judgment hearingto determine whether the City is likely to succeed on the merits of the forfeiture action and whether means short of retention of the vehicle can satisfy the Citys need to preserve the [seized property]. The Forfeiture Initiative was so harsh that it essentially amounted to double jeopardy, punishing people for their DWI offense legally and then punishing them financially, sometimes auctioning off cars worth upwards of $50,000 for crimes that didnt nearly qualify for such high fines. After numerous actions were brought against this New York City policy, the New York Police Department was forced in 2004 to try and give back about 6,000 cars that had been confiscated since the Forfeiture Initiative went into effect in 1999.
What To Do If Your Car Is Seized
If you have been arrested for a DWI and your car has been seized, it is imperative to first gain the counsel of an attorney licensed to practice law in the jurisdiction of the arrest/seizure and one who is experienced in this highly specialized area of the law. Often in DWI cases, a defendant can enter a plea, leading to reduced charges and fines. However, even a conviction to a reduced charge can negatively impact the civil forfeiture of the vehicle that was driven at the time of the arrest.
Additionally, an experienced attorney can help you know and understand your rights. Once the criminal court proceedings have ended, the owner of the vehicle in question must present proof of ownership, a certificate of disposition from the Court showing that the criminal case is over, and the district attorneys signed, written consent to release the car, stating that it is no longer needed in the criminal case. Whereas in the past the State was able to draw this process out over many months, the owner of property now has a right to an expedited hearing, allowing the presentation of evidence of innocence, or to begin the process of regaining the car after the case has been decided. With an attorney, and the United States Constitution on their side, any person should have their vehicletheir property by lawreturned in a speedy and fair fashion after due process of law has been given.