Nassau County Administrative Code Section 8-7.0 (g), in effect March 16, 2004, provides:
Except for a felony offense, as defined in section eleven hundred ninety-three of the Vehicle and Traffic Law, which may give rise to a forfeiture action pursuant to article thirteen-A of the Civil Practice Law and Rules, the County of Nassau may commence a civil action for forfeiture to such county of any vehicle as such term is defined in subdivision fourteen of section 10.00 of the Penal Law when such vehicle is operated by a person charged with a violation of section eleven hundred ninety-two of the Vehicle and Traffic Law and such person is convicted or pleads guilty to any subdivision of such section where it is proved by a preponderance of the evidence in a civil forfeiture proceeding that such person was driving in violation of such section. Subject to the provisions of subparagraph f of this paragraph, the interest of a lienholder in such property shall not be subject to forfeiture pursuant to this paragraph, provided, however, that this provision shall not be construed to entitle a lienholder to more than the outstanding balance of the lien.
For purposes of this section, the term “lienholder” shall mean any person, corporation, partnership, firm, agency, association, or other entity who at the time of an arrest pursuant to this section has a financial interest recorded as a lien with the Department of Motor Vehicles of New York State or any other state, territory, district, province, nation or other jurisdiction, except that “lienholder” shall not mean an entity that leases vehicles pursuant to a written agreement subject to the New York state personal property law or the uniform commercial code. Nothing in this provision shall be construed to prevent a lienholder whose lien is not so recorded from intervening in any action or proceeding under this paragraph.
- a. A person from whom a vehicle has been removed and impounded by the police pursuant to an arrest for a violation of any provision of section eleven hundred ninety-two of the Vehicle and Traffic Law shall receive notice at the time of arrest on such charge and by certified mail, return receipt requested, as soon thereafter as practical informing such person how and when the vehicle may be reclaimed and that the vehicle is subject to a civil forfeiture proceeding. In the event that the driver is not the registered owner of the vehicle, a separate notice shall be provided to the registered owner of the vehicle. Notice shall also be provided to any lienholder. A vehicle removed and impounded pursuant to this section shall be subject to a reasonable fee upon release of the vehicle covering the cost of removal and storage.
- b. In the event that the driver of the vehicle has a prior conviction, within the past ten years, for a violation of any provision of section eleven hundred ninety-two of the Vehicle and Traffic Law or an offense involving the use of alcohol or a controlled substance while operating a vehicle in another jurisdiction, the County may retain the vehicle and shall apply to the court, after having provided notice as required to the persons or entities set forth in subparagraph a of this paragraph, within fifteen days for a prompt hearing to request the court to take measures to protect the public safety and to protect the vehicle from destruction or sale during the pendency of the forfeiture proceeding. At such hearing the court shall determine the probable validity of the retention of the vehicle by the County, or other such appropriate measures, including but not limited to the installation at the expense of the owner of an interlock device to prevent the operation of the vehicle while the driver is under the influence of alcohol, the posting of a bond or an order restraining the sale or transfer of title of the vehicle. The hearing shall take into consideration, but not be limited to: (i) the existence of probable cause for the underlying arrest; (ii) the likelihood of success on the merits of the forfeiture action; and (iii) the driver’s prior conviction, within the past ten years, for a violation of any provision of section eleven hundred ninety-two of the Vehicle and Traffic Law or for an offense regarding the use of alcohol or a controlled substance while operating a vehicle in another jurisdiction.
- c. The owner of a vehicle subject to forfeiture pursuant to this paragraph must notify the County of any intention to transfer ownership or possession of such vehicle, no later than fifteen days prior to such transfer. Notice provided pursuant to subparagraph “a” of this paragraph shall set forth the time and manner and procedures for such notification to the County. The provisions of this subparagraph shall remain in effect until the resolution of the forfeiture proceeding, provided, however, that the notice required herein shall expire one hundred twenty days after an arrest pursuant to this paragraph in the event the County has not commenced such a proceeding within such period.
(i) Nothing in this subparagraph shall be construed to affect the ability of an entity that leases vehicles or a lienholder to exercise its lawful rights to obtain possession of a vehicle under a contract or applicable law. (ii) In the event of a transfer of title or possession pursuant to clause (i) of this subparagraph, the person or entity that affects such transfer shall provide notice to the County of its action as soon as practicable and in no event later than seventy-two hours subsequent to such action.
- d. Upon receiving notification pursuant to subparagraph c of this paragraph, the County may apply for a court order to ensure that the vehicle remains available pending the outcome of the civil forfeiture proceeding pursuant to this paragraph. At such hearing the County may request appropriate measures, including, but not limited to, an order of the court restraining the transfer of title or possession of such vehicle, retention by the County of the vehicle pending the outcome of the forfeiture proceeding, or a bond in the amount of fifteen hundred dollars plus the fair market value of the vehicle at the time of the arrest, as set forth in subparagraph e of this paragraph.
- e. A person who transfers title or possession of a vehicle without providing notice to the County as required by subparagraph c of this paragraph shall be subject, upon a judgment that the vehicle shall be forfeited, to a penalty in the amount of fifteen hundred dollars in addition to the fair market value of the vehicle at the time of the arrest. Evidence of such fair market value may be established with reference to publications such as, but not limited to, Kelley Blue Book or NADA Guide.
- f. It shall be an affirmative defense to an action brought pursuant to this paragraph that the owner of the vehicle other than the person arrested for violation of any provision of section eleven hundred ninety-two of the Vehicle and Traffic Law did not know, or had no reason to know, that there was a reasonable likelihood that the vehicle would be used in violation of any such provision.
- g. Following a determination by the court pursuant to this paragraph that a vehicle shall be forfeited, an owner may petition the court for relief from such determination. Such petition shall contain an affirmation that the loss of the vehicle would cause a substantial and unwarranted hardship because the owner has no reasonable access to public transportation or to the use of another vehicle and lacks the financial resources to purchase another vehicle and that possession of a vehicle is a necessary incident to his or her employment, business, trade, occupation or profession; or to his or her travel to and from a class or course at an accredited school, college or university or at a state-approved institution of vocational or technical training; or necessary travel to and from a necessary medical examination or necessary medical treatment for a such owner or a member of his or her household. Upon demonstration of these factors satisfactory to the court, the court may grant relief from the forfeiture determination upon such terms and conditions as well as provide maximum protection to public safety.
Vehicle Forfeiture Defenses:
Unfortunately, not every vehicle seizure is unavoidable. However, there are a variety of defenses available to challenge this seizure law and prevent forfeiture. There are also avenues to explore in regard to settlement negotiation to avoid vehicle forfeiture.
If your motor vehicle has been seized, call Michael A. Arbeit, P.C. immediately for a free and confidential consultation. We are always available 24/7.