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.
