Florida’s Continuing “Get Tough” Approach to DUI Penalties

People working within the criminal justice system have long predicted that increasingly tough DUI legislation would eventually escalate to the point where a motorist charged with DUI might be forced to forfeit his vehicle. In February of 1999, New York City became the first municipality to implement such a policy. At that time, twenty-three states had laws authorizing law enforcement to temporarily confiscate and impound cars of motorists charged with drunken driving. However, no jurisdiction permitted the permanent taking and seizure of the motorist’s property for a first time offense. Naturally, this severe sanction spawned enormous nationwide media attention. Lawyers speculated that other jurisdictions throughout the country would quickly elect to jump on the bandwagon. And sure enough…the Florida legislature wasted little time in following suit.

Florida Statute Section 322.34(9)(a) provides:

Your vehicle is subject to seizure and forfeiture if two conditions are met:

1.) You are arrested for a DUI after January 1st, 2000; and

2.) If at the time of your arrest, your privilege to drive is already under suspension, cancellation, or revocation as a result of a prior DUI conviction.

The Difference Between Civil Forfeiture and a Criminal DUI Prosecution

Florida law already permitted the civil forfeiture of property used in connection with a felony offense. For example, the use of a motor vehicle during the commission of the sale or possession of controlled substances. This practice, although extremely detrimental to the accused, pays enormous dividends to the city and state pursuing the forfeiture action. The City of Chicago for instance, raked in nearly $6.8 million in 1998 alone after auctioning off vehicles and other property seized in felony civil forfeiture proceedings. Chicago recently decided to “up the ante” by passing new legislation similar to the statute enacted in Florida. The head of that police department strongly supports DUI related seizures and justifies the action by saying “If you caught somebody walking down the street with a loaded gun waving it around, would you give him back the gun?” An alternative rationale has likewise been expressed by Charlene Chapman who is the executive director of the Alliance Against Intoxicated Motorists. She has been quoted as saying “I’d rather take their car than take a life.”

Many people are surprised to learn that civil forfeiture proceedings require the state to overcome only a “preponderance of the evidence” standard. This is a far lesser burden than that required in the separate DUI prosecution. In the DUI criminal case proceeding, the driver is of course clothed with a “presumption of innocence” unless the State can prove the case “beyond a reasonable doubt.” The end result is that someone, who is successful in securing an acquittal of his DUI charge in criminal court, may have already lost his vehicle as a result of the findings at his civil forfeiture proceeding. In other words, a conviction is not a prerequisite to the loss of your vehicle. To the contrary, Florida law mandates the immediate temporary seizure of the car at the time of arrest. The issue of whether the vehicle should thereafter be permanently seized and auctioned is determined at the civil forfeiture proceeding. Because civil forfeiture proceedings have a current backlog hearing time of approximately six months, any motorist who is successful in proving an improper impoundment will nevertheless have already suffered a great inconvenience.

Possible Legal Issues in DUI Vehicle Forfeiture Cases

Criminal defense lawyers are poised to challenge the Florida law on a variety of fronts. Questions have already been raised testing the constitutional vagueness of the law. For instance, what if you loan your car to a sober driver who later gets drunk? Likewise, what if two friends trade cars after a night of heavy drinking and one person is subsequently arrested for DUI. Does that mean he will escape the wrath of Florida’s civil forfeiture law? Countless other scenarios exist that will force litigation on a variety of issues. For example, if the vehicle is jointly owned and registered; leased or rented; or has a sizable loan balance that exceeds the value of the vehicle to which it is secured.

The debate over this law will likely continue. In the meantime, should your vehicle be seized in connection with a DUI arrest, it is imperative that you immediately contact qualified and experienced legal counsel. A variety of defenses and remedies may be available to you, but only if timely raised.

If you are facing a DUI charge where your vehicle may be subject to forfeiture, contact our office for a free consultation at 727-855-3847