Nassau County to resume DUI seizures and forfeitures

Nassau County to resume DUI seizures and forfeitures

Issue #13, April 2014

From 2005 to 2008, Nassau County operated the most aggressive DUI forfeiture program in New York State, seizing approximately 200 vehicles per week. The County stopped forfeiting vehicles in 2008 because a change in leadership brought a different philosophy which limited forfeiture to only felony cases.

Now, there has been another management change in the County Attorney’s office and the philosophy has swung back towards the 2005 model, with a few adjustments. As a result the County is about to launch the most aggressive DUI seizure and forfeiture program known to date. This is like déjà vu all over again. Here is an overview of what may be expected.

On February 24, 2014 Nassau County selected a private law firm to handle its renewed forfeiture program. Thus, a private law firm and not county lawyers will be controlling seizure and release of vehicles. It is likely that the law firm will be aggressive as the contract granted to the law firm pays the firm a percentage of all money raised from forfeiture.

Vehicles will be seized where the operator has a Blood Alcohol Content (BAC) of .06 or greater. A BAC of .08 is intoxication. Even a first time offense of driving while ability impaired will result in seizure and forfeiture. Thus there will be a lot of vehicles seized.

Vehicles will be retained in the County Impound and not released to the offender. Under Federal Law the County must seek court approval for every minute that it holds a vehicle–short term detention must be approved at a hearing (called a Krimstock hearing) held promptly after the seizure and long term detention must be justified by a forfeiture lawsuit. At the Krimstock hearing the County has to show that it is likely that it will win its case for forfeiture.

Most offenders are willing to plead guilty to the charge of driving while ability impaired (DWAI) because a DWAI is not a criminal offense. Although such a plea resolves the criminal case favorably for the driver, the Nassau County law is set up so that a plea to any drinking and driving offense will prove the County’s case for forfeiture of the vehicle used in the offense. The bottom line is that the County will is likely to win almost every forfeiture lawsuit brought against the driver/offender. Lienholders/Lessors can protect their interests from forfeiture by demonstrating that they are innocent—meaning that they had no reason to know that the owner would drive while impaired and took all reasonable steps to prevent illegal use of the vehicle.

Based upon the County’s prior practices, innocent Lienholder/Lessors need to get ready to handle several thorny problems caused by this type of DUI seizure and forfeiture. First, be prepared for volume. Second, be prepared to file an answer to the forfeiture lawsuits as failure to do so could result in loss of a car by default. Third, be wary of situations where the County offers to release a vehicle upon the promise not to return the car to a customer who is current on his payments as this promise may open the Lienholder/ Lessor to a consumer protection lawsuit for denial of the customer’s statutory right to redeem.

Fourth, in the event that the County offers to return a car to the driver be aware that Lienholders/Lessors will be on notice that this driver has a DUI offense which may jeopardize innocent Lienholder/Lessor status if another DUI occurs in the same vehicle. Also, such notice may trigger vicarious liability under the Graves Amendment if the car is used in a subsequent DUI that causes personal injury.

It is likely that the County will begin this program before June 1, 2014. In the past we were able to develop streamlined procedures for protecting Lienholder/Lessor interests in Nassau County. We will keep you posted as more information becomes available.