Blog
nyc dwi car forfeiture
One of the more controversial aspects of New York City’s driving while intoxicated (DWI) laws is car forfeiture. This is when the police seize your vehicle after you’re arrested for a DWI. Police can now also seize your car after an arrest for reckless driving.
Once the police have impounded your car, they can start civil forfeiture proceedings against you, regardless of whether or not you owned the car that you were driving at the time.
It’s important to understand that a civil forfeiture is tried separately from your DWI. Since the forfeiture is a civil case, there’s also a lower standard of proof than there is for your DWI, which is a criminal case. This means that it’s possible for you to be found not guilty of your DWI, but still lose your civil forfeiture case and therefore, your car.
There are several common defenses used in civil forfeiture cases. If it wasn’t the owner of the car who was driving it, then they can use that as their defense, claiming that they didn’t know the person was driving their car while intoxicated. The county needs to provide timely notice to the driver and the owner of the car that it plans to seize the car, and it needs to serve both the owner and driver within 120 days. If either of these conditions are not met, an attorney could use a defense of inadequate notice or an untimely filing. Finally, the defendant could claim that they will experience an undue hardship, either for their family, financially or both, if their car is seized.
During the case of Krimstock v. Kelly, the 2nd Circuit Court found certain aspects of the civil forfeiture laws unconstitutional, specifically how they allow the government to seize and retain the vehicles of drivers arrested for DWI without requiring probable cause for a vehicle seizure or retention. Since the civil forfeiture cases could take months or years, the government was keeping cars for a significant length of time even when drivers eventually won their civil cases.
That case led to new rules regarding civil forfeiture, and drivers now must receive an early opportunity to a hearing where they can test the probable cause regarding the seizure of their vehicle. If there wasn’t probable cause for the vehicle seizure, the police department must release the vehicle to the driver while the criminal and civil cases take place.
If the police have your car after your DWI case is disposed, then you can demand its release at the police impound lot. You must show the police proof that you own the car, a certificate of disposition for your DWI case and a letter, signed by the district attorney on your case, that consents to the release of your car. The police department can still bring a civil forfeiture case against you after they release your car to you, but they must do so within a set period of time.
Keep in mind that for a civil forfeiture, the value of your car doesn’t matter. Although the maximum fine for a driver’s first DWI offense is $1,000, the police could still seize a vehicle worth $25,000, or $50,000 or $100,000. If you lose your car through a civil forfeiture and you’re still making payments or it’s a lease, you’ll need to continue making payments on it even though you no longer have the car.
The harsh civil forfeiture laws in New York City make it very possible that you can end up losing your car even for a first DWI offense. That’s why hiring an attorney is a smart move when you’re being charged with DWI. An attorney has a vast knowledge of DWI and civil forfeiture laws, and will give you the best chance at a strong defense and getting your car back.
Is it possible to win a New York DUI case?
If you are charged with a DUI, it does not mean that you will be convicted of the charge. It only means that a police officer believed that you were impaired while operating a motor vehicle. Your attorney will be able to work with you to come up with a plan to cast doubt on the charge and help you obtain a favorable outcome in your case.
Were You Below the Legal Blood Alcohol Content Limit?
In the state of New York, you must have a blood alcohol content of .08 percent or lower to legally operate a vehicle. If your BAC is at that level or below, it may be possible to argue that you weren’t impaired when an officer made contact with you. While you can still be arrested for driving after having just one or two drinks, the likelihood that the charge will stick is low.
Were You Showing Any Other Signs of Impairment?
Your blood alcohol content is just one piece of evidence that an officer will use to determine impairment. Other signs of impairment include an inability to stand, slurred speech or having difficulty talking or being overly enthusiastic or aggressive when talking to police. However, slurred speech or trouble standing could be signs of a medical condition or just a result of being nervous around an officer.
Were You Stopped at a Sobriety Checkpoint?
There is some question as to whether or not sobriety checkpoints are legal in New York and other states across the country. Therefore, you will have the right to challenge your DUI charge on grounds that your rights under the Constitution were violated. If your attorney can show that the checkpoint was run improperly, it could be enough to have your case thrown out.
Were Test Results Gathered Against Your Will?
Although implied consent laws say that you have to agree to a breath test or lose your license for a year, you must give consent for the test to be taken. If the test shows that your BAC was above the legal limit, it may not matter because the test result may be thrown out. The same is true if a blood or urine test is taken without a warrant or without the permission of the driver.
Were Test Samples Gathered Correctly?
It is possible that a police officer takes a breath sample improperly, which may lead him or her to believe that you were impaired when you really weren’t. He or she may also take the sample well after you began drinking, which could result in a blood alcohol level that is higher than it was when you started driving. If a blood sample is taken at the scene of a crash or traffic stop, there is a chance that it is handled improperly, which could cast doubt on the charge against you.
Did You Ever Admit to Drinking or Taking Any Other Substances?
An officer may try to compel you to admit that you consumed alcohol or took other substances that could have impaired your ability to drive. However, it is never a good idea to do so. Even if you only admit to drinking a beer or two, it could provide an excuse to take you into custody. Depending on the strength of the case against you, not admitting that you were drinking could be the difference between a conviction or walking away from the charge with no penalty.
There are many ways to win a DUI case in the state of New York. If the evidence against you is weak or causes a jury to doubt that you were impaired, it could lead to a plea deal or a full acquittal. This is why it is important to say as little as possible to the authorities until you call your lawyer if you are being charged with driving while impaired.
If you have received a DWI in New York City, it is generally not expunged from your record regardless of how long ago it happened. However, in certain circumstances, it may be sealed from public record. You may also be able to apply for a Certificate of Relief of Civil Disabilities (CRD) to increase your odds of getting a job after your conviction.
What Recourse Do You Have If Your Case Is Dismissed?
It is possible that you won’t be convicted of a DWI or plea to a lesser offense. If you plea to a lesser offense, that is the charge that is likely to show up on a background check. However, if you are charged with or convicted of a crime based on evidence collected illegally, you may move to have the charge or conviction vacated. In the event that a charge is vacated, it will generally not show up on a background check or remain on any records that authorities could access.
Can You Get the Case Against You Sealed?
In some cases, you may be able to get the details of the case against you sealed from public record. This may prevent an employer or a college to see why you were charged with a crime. Unfortunately, the fact that you were charged will still show up on any check of your public record. In most cases, you will be given a chance to explain the details of the case if you feel like they help your cause.
How Does a Certificate of Relief of Civil Disabilities Help You?
After you are convicted of a DUI, there are certain jobs that you may be disqualified from performing and public services that you may be ineligible to receive. For instance, you may not be allowed to work as a commercial truck driver or apply for public housing benefits.
With this certificate, it is almost like you were never convicted in the first place. However, you will still be required to disclose the fact that you were convicted of a crime, and an employer of government agency could still turn down your application for a job or for benefits.
Individuals must get a CRD for each crime that they have been convicted of, and you can’t apply for one if you have more than one felony conviction. You can apply for the CRD at sentencing or at any time after you have finished your sentence.
The Effect of a DWI Conviction Will Likely Fade in Time
In New York, past convictions for DWI are generally not used against you if they occurred five years or more in the past. After 10 years, most prosecutors won’t consider them a part of your record as it relates to seeking a felony conviction for multiple DWI offenses.
Most employers won’t hold your DWI against you assuming that they can hire you. Generally, an employer wants to know that you are capable of getting to work on time, have your own transportation if necessary and do not have a drinking problem. If you meet these criteria, you should have little to no problem finding work.
A conviction on a DWI charge can lead to many significant penalties. In many cases, you will not be able to hide or otherwise obscure the fact that you have such a conviction on your record from an employer or other interested party. Therefore, it may be a good idea to talk with an attorney who may be able to help you avoid a conviction in the first place. Even if you plead to a lesser offense, it may help you avoid some or all of the penalties that come with an impaired driving conviction.
Can I be stopped and arrested for DWI even if the vehicle was not moving?
There are many questions circulating out there about drunk driving laws. Nobody would argue that a person who is obviously under the influence of alcohol should not be operating a motor vehicle. This is a given. What is more precarious, however, is a determination about the extent to which drunk driving laws reach. Many rightfully have questioned if an individual can actually be arrested just for being behind the wheel of a car when under the influence, even it is not moving. This is the question that we will answer in this post.
The Basis for a DWI
There have actually been quite a few instances reported in the media in recent years where a person was arrested and charged with a DWI even though the car was not moving. We are not talking about individuals stopped at a red light either. In some cases, it involves individuals who are simply trying to sleep off their drunken state inside the car, while others might be doing the same but with the engine on to keep warm. Whatever the case might be, if the police catch sight of you and determine you to still be under the influence of drugs or alcohol, state statues generally permit them to charge you with a DWI.
Many people question why a car that is legally parked alongside the road or in a parking lot, away from passing traffic, could possibly pose a danger to others. What does it matter that somebody is actually inside the car. The issue is that DWI does not necessarily refer to a moving a vehicle. If the propensity is there for a person to drive the car, the police can interpret that as being a danger to society and an arrest can be made. If you are under the influence, are inside a car, and you have the key in. your possession, then are can possibly be subject to a DWI charge.
Your Options
Keep in mind that just because you are charged with a DWI does not mean you are guilty. This is precisely why you need a professional and experienced criminal attorney on your side. There are many factors that go into a DWI charge and an attorney can weed through all of them. Police could have been alerted to your presence in a vehicle simply because someone saw you drinking and then getting in the car, even though you had no intention of actually driving it. The law is designed to protect society, but you have a right to present your side of the case as well.
While the law does permit a person who is legally over the blood alcohol level permit to operate a moving vehicle to be charged with a DWI, this does not necessarily mean that you had the intent to commit a crime. That is where a distinguishing component of the law comes into play. You may have simply been getting into the car to retrieve personal belongings, or you might be safely sitting in it to wait for a designated driver. Just because you have the keys in your possession does not necessarily indicate guilt.
In Conclusion…
It is possible to be stopped and arrest for DWI even if your vehicle is not moving. This is a simple reality of existing law. You do not have to feel as if your life is over, however, because there are extenuating circumstances that need to be taken into account before a prosecution is carried out. Keep the faith, hire an attorney, and present your case in a reasonable and well thought out manner. Remember that you are innocent until proven guilty, so give an attorney the opportunity to represent in an open court if it comes to that.