The costs of a Syracuse DWI, Albany DWI, Rochester DWI, Watertown DWI or Binghamton DWI conviction can be great. The fines can be upwards of $15,000 for a first offense of DWI. The penalties for DWI in New York have become harsher and harsher over the past couple of years. If someone is arrested in New York for DWI, the New York Police Department will confiscate the offender’s car, the Department of Motor Vehicles will suspend the offender’s driver’s license, and the offender may face jail time, even if it is their first arrest.

In 1999, New York Mayor Rudolph Giuliani introduced a new automobile forfeiture policy that allowed the state to take the vehicles of those charged with drunk driving for the first time. Under this policy, DWI offenders can lose their cars even if they are found not guilty on the drunk-driving charge. This is because the forfeiture is a civil proceeding with a lesser burden of proof. The New York forfeiture policy is based on a city law (NYC Adm. Code 14-140) allowing police to impound and impose forfeiture of property used as an instrumentality in the commission of a crime.

Under the statute, the city of New York can seize a motor vehicle following an arrest for DWI or any other crime for which the vehicle could serve as an instrumentality. A defendant charged with DWI does not have a right to a post-arrest hearing to determine whether probable cause existed either for the drivers arrest or for the seizure of the vehicle. Under the statute, the DWI offender is not allowed the opportunity for a prompt post-seizure hearing to test probable cause for the seizure. Under present New York law, a challenge to the seizure and retention of the vehicle can not be made until the city of New York seeks the vehicle’s forfeiture in a separate civil proceeding, which might take place months or even years after the seizure. If a DWI offender makes a demand for the return of their vehicle, the city of New York has 20 days to either initiate a civil forfeiture or release the vehicle.

In the case of Krimstock v. Kelly, the 2nd Circuit considered the constitutionality of the forfeiture law. The court found that the statute was unconstitutional because it permits the city of New York or government to both seize and retain the property of DWI offenders without first requiring probable cause for either the initial seizure or continued retention and subsequent forfeiture of a vehicle. The court stated that the statute raised serious 4th Amendment concerns because the civil forfeiture proceedings in these cases sometimes take months or years and the subsequent inquiry into probable cause for these vehicle seizures is often put off for a long time.

Because of the Krimstock case, DWI offenders are now required to be afforded an early opportunity to test the propriety of the City’s retention of their vehicles soon after seizure and prior to any eventual civil forfeiture. The case makes it clear that the actual nature of such hearing is reserved to the district courts. The case states that the forfeiture hearing must enable DWI offenders to test the probable cause for the warrantless seizure of their vehicle. In the absence of probable cause for the seizure of an offender’s vehicle, the vehicle would have to be released during the pendency of the criminal and civil proceedings. The court stated in the case that an alternative to continued seizure of the vehicle in question would be the filing of a bond.

DISCLAIMER: The exclusive purpose of this article is educational and it is not intended as either legal advice or a general solution to any specific legal problem.  Corporate offices for The DWI GUYS are located at 432 N. Franklin Street, Suite 80, Syracuse, NY 13204; Telephone No.: 1-800-394-8326.  Prior results do not guarantee a similar outcome.