DWI enforcement has gotten more strict than ever before. The government is seizing all vehicles in DWI cases and seeking forfeiture of them as an additional sanction. The government has hired law firms to actually begin the lawsuit for forfeiture immediately after an arrest is made. Those lawyers hired by the county will negotiate with defense lawyers for release of the vehicles, but their criteria have grown more strict with each passing day. If there are what the government considers aggravating factors, they will refuse to negotiate for release of the car. They will proceed with the lawsuit for forfeiture. These lawsuits relatively easy for the government to win in the rare instance where they proceed to litigation. The government merely needs to show that there was either a plea or a verdict to any drinking and driving offense, including the very low level traffic violation known as Driving While Ability Impaired. This is the lowest-level drinking and driving offense on the books, and it is often the targeted result by defense lawyers. Yet, it is enough to serve as the basis for the government winning the forfeiture lawsuit and keeping the motorist’s vehicle.
Aggravating factors, as that term was used above, means a prior arrest for DWI, having an auto accident, getting a high reading on the breathalyzer, driving without a license, having a long arrest history even if not DWI related, being uncooperative or disrespectful with police, etc.
There are defenses which lawyers can raise in the course of negotiating for release of the cars from government custody. If the car was borrowed, an “innocent owner” defense can be raised. However, it must truly be an innocent owner. This would not apply to someone putting the car in their name in order to get lower insurance rates. The government will investigate to see if it is truly an innocent owner or merely an arrangement made for convenience purposes. They will look at how many cars the owner has in his or her name. If he has only one, he may indeed be an innocent owner. If he has several, he may be registering cars for other people to save them money on insurance premiums. That person would not qualify as an innocent owner. The government will look to see if the DWI defendant has gotten tickets in the past in that vehicle. That would tend to show it was not merely a borrowed car on the date of incident, but rather the defendant’s car.
A “hardship” defense can also be raised by a defense lawyer. This is where the retaining the vehicle would impose an extreme hardship upon the motorist or his household. If the motorist is the sole source of transportation for a sick person, this might qualify. If a person cannot keep and maintain their livelihood without the vehicle, this might also qualify.
Vehicle finance companies often get involved in this analysis. Technically, drinking and driving is a violation of the lease contract most banks use. Some banks assert this provision and require motorists to surrender the vehicle to them. If there is a loan or lease against a vehicle, the government will not require forfeiture, but rather require that the vehicle be surrendered back to the bank. Recently, agreements have been negotiated where the motorist is permitted to return the vehicle to the dealer and put a different car on the road, essentially trading the car in early. This is a desirable result when facing the alternative of straight forfeiture.