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Forfeiture of the Car Driven at the Time of Arrest
There has been much publicity about the New York City Police Department's
policy of seizing the cars driven by allegedly drunk drivers. Under the New
York City Administrative Code, law enforcement authorities can seize property
if it can be shown to be the proceeds or instrumentality of a crime. The theory
behind such seizures is that the car is the instrumentality of DWI. Without it,
there can be no crime. While considered "civil" in nature, the punitive effect of
such a seizure can be devastating. A car which is worth $50,000.00 or more can be
seized and ultimately forfeited to the NYPD even though the maximum monetary
criminal sanction that can be imposed is a $1,000.00 fine. What's worse is that since
the proceeding is strictly civil, it doesn't matter if your criminal case is
dismissed or even if you are acquitted at trial. The NYPD Legal Department can try
you again, this time in civil court, where the burden of proof is much lower. Instead
of a fine or jail, the result can be the loss of your vehicle.
A recent decision of the United States Court of Appeals for the Second Circuit, which
covers all of New York, gives motorists significant
additional rights to contest the immediate seizure of their
vehicle. The Court has ordered that "promptly after their
vehicles are seized... (motorists) must be given an
opportunity to test the probable validity of the
City's deprivation of their vehicle..." while the case is
pending. In other words, the City or other government
authority can just take your car any more and hold it
indefinitely while the case drags through the court
system. Now, you are given the chance to get your car back
shortly after it's seized by showing the police did not
have the right to take it. For example, if you weren't drunk
at the time of the seizure or if the car belonged to an "innocent third party", you could show that to a judge or
hearing examiner and get the car back. This is a
significant improvement upon what had previously been a
difficult situation for the motorist. Now, you have the
chance to contest the seizure promptly after it happens and
show that you're entitled to your car back. While the
appellate court left it to the lower courts to decide exactly
how and when this opportunity is to be afforded to
motorists, it opens up a new area for litigation that can
be used effectively to get people their cars back.
The United States Supreme Court and Congress have carved out
certain limited defenses in property forfeiture cases. If the car driven
belongs to an "innocent third party" who
had no cause to believe you would be driving it while intoxicated, there is a
valid defense to the forfeiture proceedings. In such cases, the outcome
hinges on whether the owner had knowledge of the driver's intention. In a case where
the owner doesn't give permission to the driver or the driver essentially "steals" the car by taking it without express consent, there is a good defense. Or, in a
case where the owner has no reason to know the driver will be out drinking, the owner
should get the vehicle back. Cases where you are driving your spouse's car are more
problematic, especially where he/she knows you have a prior conviction for DWI.
Spouses will be deemed to know more about the driver's intent than a stranger or
someone without knowledge of the driver's record for DWI, if any.
The NYPD must follow a strict procedure in order to
initiate a forfeiture action. Following seizure of the car and the arrest of the
driver, the owner will typically make a demand for the car. This must be done at
the place designated by the NYPD for such demands, usually at the pound located in
Whitestone, Queens. To make the demand proper, the owner must present proof of
ownership, a certificate of disposition from the Court showing that the criminal
case is over and the District Attorney's signed, written consent to release the
car, stating that it is no longer needed in the criminal case. This procedure is
strictly adhered to and if not followed precisely, your demand will be deemed
improper and not honored to the extent required. Most likely, upon presenting
these documents to the property clerk, the owner will be given a form with a number
in the top right hand corner that starts with the letter "F". This is the
identifying number to be used when referring to the car demanded. Any
discussions with the NYPD Legal Bureau will be preceded by a demand for the "F
number."
Procedurally, the NYPD must then sue
you for forfeiture of your car within a specified time period or they must honor
your demand for its return. This means that you must be personally served with a
summons and complaint that names you, the owner, and possibly the driver (as the
"beneficial owner") as the defendant(s) and the Property Clerk of the New York City Police Department as the plaintiff.
If the demand you made at the Property Clerk's office is not technically proper,
the time limit will not start and you will be waiting forever for your car or for the
opportunity to try to get it back.