“License, Registration, and Title - please”

By Lance M. Hester; June 1999

     Vehicle seizure and forfeiture is an aspect of the new DUI laws which does not receive much attention.  In short, the statute provides that if probable cause exists that a person has driven under the influence and that person has a prior DUI offense within the last seven years, the law enforcement agency may seize the vehicle from the driver.  The statute then allows forfeiture to follow.  Typical notice and opportunity for hearing provisions exist in the statute.  The relevant law enforcement agency conducts requested hearings.

     The law is not well known.  However, at least one jurisdiction in Western Washington is known to have begun exercising its authority to forfeit the vehicles of second time offenders under the statute.  Other law enforcement agencies throughout Western Washington have failed to take advantage of the DUI forfeiture statute because they feel as though there are some serious constitutional problems with the statute.  Basically, the hassle of fighting the courtroom battles has deterred most law enforcement agencies from forfeiting vehicles.

     However, after recent decisions in New York, it will be interesting to see if our local law enforcement agencies maintain their distance from the forfeiture statute.

     Recently in New York, a statutory provision authorizing the law enforcement agencies there to seize and forfeit vehicles was upheld.  The New York City Civil Liberties Union challenged the New York City policy.  In the first three months of the program, New York City police seized 405 cars.  It is unclear as to how many of those were actually forfeited.  According to the New York Times, the number of the DWI arrests has dropped considerably compared to the same time one year ago.  It reports DWI arrests are down 22.8%.

     Many of the local law enforcement agencies here in the state of Washington have been reluctant to enforce Washington’s forfeiture provision because of their fear that doing so could be ruled unconstitutional.  In other words, it does not appear as though most jurisdictions in western Washington will be enforcing our own provision in the near future.  However, since it is reported that at least one jurisdiction in Washington is actively doing so, it should be assumed that the neighboring jurisdictions are watching with a close eye.  Should any of that jurisdiction’s forfeitures get challenged, the reviewing court’s decisions will obviously affect the rest of the law enforcement agencies in our state’s positions on whether they go forward with forfeitures on certain DUI suspects in the future.

     As a matter of interest, the state judge who handed down the New York opinion wrote, “just as there is a strong public interest in withholding a murder weapon from a homicide defendant, there is a strong public interest in withholding a car from a DWI defendant.”  New York Daily News On-Line, 5/20/99.  Interestingly, New York City’s forfeiture law is a general one which was adopted in 1943 and does not provide for property seizures in DWI cases specifically.

     Since Washington state has a statute specific to DWI forfeitures, the statute upon review would likely be seen as penal in nature.  This is an entirely different circumstance than the article from Page One entitled “Failing Forfeiture Finally.”  That article describes a situation where forfeiture essentially results in a dual punishment when only one punishment is authorized by law.  In Washington, by all appearances forfeiture is part of the package of punishments authorized to be carried out against DUI defendants by our state law.

     While it does not appear likely that Washington law enforcement agencies will be forfeiting vehicles in the immediate future, the fact that one of the local jurisdictions is doing so should be enough to keep the DUI practitioner aware of the existence of RCW 46.61.5058.  The fact that a whole lot of publicity and statistics are coming out of the State of New York should keep the practitioner aware of the fact that it might not be long before it is politically popular for more jurisdictions to begin enforcing the forfeiture statute on those accused of DUIs who have a prior conviction within the past seven years.