Wednesday, January 4, 2017

Ithaca DWI Lawyer: How You Can Lose Your Car for a New York DWI

Police Impounding Your Truck
After a DWI is NO Joke

Can the government take your car or truck after you are arrested for a New York DWI?
Can the county district attorney then sell your car at auction and keep the money?

A DWI arrest can bring many pains. Generally a New York DWI arrest will lead to fines, surcharges, DMV assessments, driver's license suspensions, and potentially a term of probation or even jail. But can you lose your car or truck too?

New York Civil Forfeiture and Criminal Charges

Well civil forfeiture of property for those arrested for crimes in New York is real. If certain criteria are met then the county District Attorney can legally take and sell your car or truck. To wind up with a situation where the prosecutor is taking your property following your arrest you gotta ask these three questions:

Number One Forfeiture Question: Is this a felony level offense? 

Generally speaking the prosecutor is only looking to seize property if this is a serious crime. I have never seen or heard of a misdemeanor level DWI or other crime result in civil forfeiture of a car or truck. In New York State a Felony level (Class E) DWI is when your second DWI is within the past 10 years. That prior DWI or DUI could have been in another state. As long as the drunk or drugged driving charge from that state is substantially similar they can use it as a predicate offense. Using a predicate DWI or DUI to enhance your misdemeanor DWI to a Felony DWI. That is how a New York DWI can pass the first hurdle of civil forfeiture.

Number Two Forfeiture Question: Is this a crime that involved your car or truck AND drugs, driving, and/or weapons?

In most civil forfeitures the car or truck would be considered an instrumentality of the crime itself. The vehicle was used in the furtherance of the criminal activity or to effectively carry out the crime: maybe the sale, transportation, and/or distribution of drugs or weapons or stolen property, DWI (drunk driving), DWAI drugs (drugged driving), or even leaving the scene of a robbery. They all involve the use of a vehicle to commit the crime.

The Police Can Auction It or Use It 

Number Three Forfeiture Question: Do you owe anything on your car or truck?

The last and final hurdle is that the District Attorney wants a vehicle that is not encumbered by liens or notes or loans of any kind. They want a vehicle that is free and clear. In other words an easy sale. This is probably the one place where being upside down on your car or truck is actually in your favor. Having a vehicle that is free and clear, and then committing a crime with it is a bad idea in New York.

So is civil forfeiture in New York for DWI legal? 

In December of 2016 the New York State Appeals Court says DWI forfeiture is perfectly legal. The case involved a civil forfeiture action following a felony DWI in Long Island.

The Court decided that a guy with the last name of Ferrari who had his 2003 Ferrari Spyder (valued at $95,000) impounded by Suffolk County DA was perfectly legal. Apparently Ferrari while driving his Ferrari (no relation) was drunk, in possession of crack cocaine, and was driving over 100 mph in a New York village.

Ferrari of course met the three hurdles:

1. He had a prior DWI offense on his record, check.
2. He was DWI, and possessed crack, check.
3. He had a paid off, free and clear Ferrari, check.