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Ask the Lawyer

Criminal Law

Posted

Q. My neighbor’s son was arrested for drunk driving. The police seized the car he was driving, which is owned by his mother and he told her the police are trying to forfeit it. What are my friend’s rights and can they do this to her?

A. In New York State many jurisdictions (including Nassau, Suffolk and New York City), have forfeiture laws which allow them to seize and forfeit cars driven by individuals who have been arrested for driving while intoxicated or under the influence of drugs. Assuming that the arrest was in Nassau County, the applicable law is contained in the County’s Administrative Code (Section 8-7.0(g)(3) & (4)). The statute, first written in 1939 has been amended several times, most recently in 2003 when New York’s Court of Appeals found some provisions unconstitutional.

While in practice, the Nassau County Police Department has generally limited forfeitures to vehicles owned by the arrested driver, as a result of the 2003 amendment, the law now provides an “innocent owner” defense.

An innocent owner is defined under Nassau’s statute as someone who “did not know, or had no reason to know, that there was a reasonable likelihood that the vehicle would be used” by someone who was under the influence of drugs and alcohol.

The statute also requires that your neighbor, as the owner of the car, receive written notice that the police intend to forfeit the car. If she has not received notice it may be that they took possession of the car to safeguard it after the arrest and have yet to contact her to arrange for its return.

If there has been an extended period of time and she hasn’t been contacted she should consult with an attorney who has experience handling these types of cases as she is entitled to a prompt hearing to determine if the car should be retained by the police for possible forfeiture.

If the car had been owned by your neighbor’s son, the chances of the car being ultimately forfeited would be much greater. In that event the attorney handling his DWI case could be the person best equipped to resolve the matter.

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