Can the Police Confiscate Your Car?

The police are allowed to confiscate your car under certain circumstances. If confiscation occurs, it typically happens when the police arrest you after pulling you over in your vehicle. In some cases, the police are only allowed to temporarily confiscate your vehicle, while in other situations they may be able to keep your car forever. The easiest way to assess how long the police can keep your car is to determine how they categorized the seizure of your vehicle in your arrest paperwork. The most common categories for vehicle seizure are safekeeping, arrest evidence and forfeiture.

Safekeeping

When the police categorize the seizure of your vehicle as “for the purpose of safekeeping,” you should be able to get your vehicle back very quickly. To determine whether your car was seized for safekeeping, you should examine the voucher given to you by the police. A voucher is a receipt from the police that identifies all of the property they took from you. All property that was seized for the purpose of safekeeping is held by the police simply to keep your property safe while you are processed for arrest.

For instance, say that the police pull you over on the highway for speeding, and when the police walk up to your car, they see the handle of a gun sticking out from under a blanket. If the police determine that you aren’t licensed to possess the gun, they may arrest you for a gun crime. Since your car is stopped on the highway, the police will want to get your car out of the way so that others don’t accidentally hit it. Of course, you will be unable to drive the car since you are being arrested, and if you can’t get someone else to come and pick it up by the time the police leave the scene, then they will have a tow truck take it to be impounded. 

In this situation, your car is confiscated by the police just for purposes of safekeeping. Once you are released from your arrest, you can take the voucher the police gave you to the pound and pick up the vehicle. 

Arrest Evidence

When the police confiscate your vehicle and categorize it as “arrest evidence,” they have determined that they believe that your vehicle is evidence of a crime. Arrest evidence is controlled by the prosecution, as they may want to keep such evidence to present it at trial to prove their case. The voucher you receive from the police will indicate whether your vehicle is designated as arrest evidence. 

If your vehicle has been seized as arrest evidence, you will not likely get it back immediately.

For example, your vehicle may be seized as arrest evidence if you are charged with a DUI/DWI. In some DWI cases, the basis for the police pulling over a person whom they believe is driving while intoxicated is that the police observe the vehicle veering in and out of the driver’s lane. In that situation, after your vehicle is impounded, the prosecution may want to have a vehicular expert examine your car to assess whether any mechanical issues with your car caused the swerving. If no such mechanical problems are found, the prosecution could have that expert testify at trial and say that no mechanical issues were found. The prosecution would then argue to the jury that your swerving is evidence of your intoxication and not an issue with your car.

In this example, your car could be held for months until the prosecution determines whether the case will go to trial, and they need to have an expert examine your car. By the same token, sometimes, the defense will want to argue that the observed swerving was the result of a vehicle malfunction. If that is the case, the prosecution will want to hold onto the vehicle to have their expert examine it before it is released because the prosecution doesn’t want the defendant to tamper with the vehicle after the incident to make it look like there was a mechanical issue when there was no issue.

However, in many DWI cases, the defendant was never swerving the vehicle, and the defense has no reason to make the mechanical function of the vehicle an issue at trial. If that is the situation, often, the defense will sign a “waiver of defenses” form to get back the vehicle quickly. With a waiver of defenses form, the defense agrees to waive any argument that the vehicle malfunctioned. Since the defense is not making the mechanical function of the vehicle an issue for the case, the prosecution agrees to release the vehicle to the defendant. Often a defendant can get his vehicle back within a week of arraignment after the waiver of defenses form is signed.

Civil Forfeiture

By far, the most troubling form of vehicle seizure is when the police take your vehicle for civil forfeiture. With civil forfeiture, the government permanently takes your car, typically selling it and then keeping the proceeds for governmental purposes. Forfeiture is a process that takes place in civil court, and for the government to keep your vehicle, they must prove by a preponderance of the evidence that the seized vehicle was used as an instrumentality of a crime. This means that the vehicle’s use contributed directly and materially to the commission of a crime.

For example, suppose you are charged with vehicular manslaughter. In that case, the police may seize your vehicle for civil forfeiture since your vehicle’s use materially and directly contributed to the commission of vehicular manslaughter.

When a vehicle is seized for civil forfeiture, the court process can take a very long time. People whose vehicles are seized for forfeiture have the right to a prompt “Krimstock hearing,” which occurs within 10 days after filing a request for that hearing. The purpose of the Krimstock hearing is to help ensure that people don’t unjustifiably have their vehicle seized for an extended period before the court determines whether a vehicle can be forfeited to the government.

At a Krimstock hearing, the police must prove by a preponderance of the evidence that:

• Probable cause existed for the arrest of the vehicle operator;
• It is likely the City will prevail in an action to forfeit the vehicle; and
• It is necessary that the vehicle remain impounded in order to ensure its availability for a judgment of forfeiture.

Although the police have the burden to establish each of these elements, the vehicle owner’s attorney can present evidence and argue why any one or more of these elements has not been established. Further, if the owner of the vehicle is not the person who was arrested after driving the vehicle, the owner can present an “innocent owner” defense. If the vehicle owner can establish that he did not know that the vehicle would be used in the commission of a crime, he should be able to get the vehicle back.

Although Krimstock hearings can be won, the police will often make a settlement offer. When a vehicle is seized for forfeiture in the context of a DWI, often, the police will terminate the forfeiture process if the driver is willing to pay a fine—usually up to $1000–and complete a drinking and driving program. 

Work with a Knowledgeable Criminal Defense Attorney in NYC Today

Whether or not a person should accept a settlement offer or litigate the forfeiture of the vehicle depends on their case’s specifics. Cody Warner is an experienced NYC criminal defense attorney who has helped clients navigate vehicle forfeiture. Contact Cody today for a free consultation if your vehicle has been seized.