DWI and Reckless Driving Car Forfeiture by the NYPD
By Don Murray, Esq.
Partner, Shalley & Murray
One big issue in the criminal justice system in New York City is the Driving While Intoxicated (DWI) car forfeiture policy (expanded in the beginning of 2000 to include reckless driving).
Under this policy, the New York City Police Department will impound and seek to take (forfeit) the cars being driven by people accused of Driving While Intoxicated (or driving recklessly) in New York City. It is our understanding that the money obtained from police forfeiture of automobiles goes to the police pension fund.Therefore, when a police officer forfeits a car, it is something of an automatic retirement investment.
(Note - Mr. Murray represented one of the very first people caught in New York City's efforts to take people's cars for allegations of reckless driving. Part of his successful defense of the client in the criminal case involved a suggestion to the jury that the police department had an interest in the outcome of criminal cases based on the civil forfeiture action.)
If you are arrested (not convicted, but simply arrested) for Driving While Intoxicated or Reckless Driving, the New York City Police Department may try to take the car you are driving from you FOREVER.
The bad news for those at risk is that the taking of the car is a completely separate proceeding from the criminal case. In other words, in theory, you could be accused of DWI or reckless driving,go to trial, win the criminal case, and still lose your car forever. That's because the rules about taking people's property in situations like this are not the rules that apply in criminal cases. You are not entitled to the same "due process" when "only" money or property is at stake. Only when your freedom is at stake are you entitled to significant standards of due process.
Because "only" property is stake, the bottom line practical reality is that the City can do just about whatever it likes. In the past the City only selectively used the unbelievable power it has to take property in this way.
In many cases, the City policy makers know that the expense of fighting the taking of the car (including attorney's fees, towing fees, and impound fees) makes it economically foolish to fight for the car. That means that it is foolish to fight to get the car back regardless of whether or not the person committed the crime of Driving While Intoxicated. Because the City impounds the cars simply based on the arrest, even a completely innocent person is forced to decide whether or not it makes economic sense to fight to get the car back.
For example, a modest car worth a few thousand dollars may not be worth the money required to hire an attorney to fight the case, and pay the impound and towing fees. Guilt or innocence doesn't add or subtract anything from the simple math required to decide whether or not the fight is worth it.
Many people, unable or unwilling to spend the money to fight these cases simply abandon their cars to the City.
With respect to driving while intoxicated cases, the police department is usually willing to return a car to a defendant as long as the defendant is screened by therapist and agrees to take certain Department of Motor Vehicle Classes related to drinking and driving. Those who are repeat offenders, however, may find themselves in a fight with the police department over their cars.