Civil Forfeiture for DUI in Illinois Part I

Many clients who walk through the doors of Botto, Gilbert, Schottland & Andrle find that after they’ve committed a crime, the police won’t return their vehicle.  Here is how and why.

If you are caught driving or using a vehicle to commit any one of a series of crimes in the state of Illinois, your car can be seized, held, forfeited to the State of Illinois, and then sold at auction with the proceeds going to the Sheriff or the police department that seized the vehicle.

The list of crimes that one CANNOT do in a vehicle without risking seizure is long.  It includes drinking and driving, gun or drug possession, juvenile pimping, assault, and much more.  Check out the Seizure and Forfeiture Act for a full list of crimes  if you are interested.

When you are arrested for a crime such as DUI, you are normally in your car (or near it) when the arrest occurs.  You can expect that if there is not a sober driver present, or the police just want to take your car, that a tow truck will be called and your vehicle will be impounded.  Many cities will charge you a fee to get the vehicle out of impound (Crystal Lake charges $500, the city of Chicago charges nearly $1000).  However, sometimes the vehicle will be kept and the local Sheriff will “seize” your vehicle in order to keep it and sell it.

When that happens, you will receive a letter notifying you that the seizure is about to take place.  This letter is mailed to the last known address of your registered vehicle with the Secretary of State, so if you move and don’t update that address with the Secretary of State, you won’t get the letter.  But that’s not a defense to not knowing about the seizure!  The State’s Attorney of the county you got arrested in will then send you a copy of a complaint to that same address (again, if it’s not updated, you may not get this).  Most people will get these letters, or find out that they can’t get their car out of impound and that this is reason why.

The big question next is, how can you get your vehicle back?  I will answer that in the next series of posts on this topic.

Arizona v. Gant and the Search Incident to Arrest

Most people would not know what to do if, during a traffic stop, the police asked to search their car.   Does a person have to let the police search your car?  Are the police entitled to search your car even if you don’t let them? There are several way by which a search may occur, and there are rights that you have to prevent these searches, or to fight them at hearing if improperly conducted.

These rights are rooted in your 4th Amendment right not to be searched without probable cause.  A traffic violation doesn’t  automatically lend itself to a search of your vehicle.   When you are stopped by the police for violating a traffic law, they may ask you whether they can search your car.  They may ask you if they can search during the first few sentences, while issuing the ticket, or after issuing the ticket.  You have the right to tell them that they CANNOT search your vehicle.  Further, if the police have no suspicion of you having broken any laws other than a traffic violation, then they do not have the right to search your vehicle, and your lack of consent should end that inquiry.

However, should you be stopped for a violation where you can be arrested, the answer becomes more murky.   It used to be that an arrest at the scene would allow the officers to search your vehicle, pursuant to an officer safety or evidence of the crime exception.  This was what was often termed a seach incident to arrest.  Searches of this nature were recently severely limited in the United States Supreme Court case of <a href=”http://www.supremecourtus.gov/opinions/08pdf/07-542.pdf”>Arizona v. Gant</a> and then by the Illinois Supreme Court in <a href=”http://www.state.il.us/COURT/Opinions/SupremeCourt/2009/October/105075.pdf”>People v. Bridgewater.</a>

Essentially,  if there is nothing in the car that the police will find to help their investigation, they do not have authority to search, whether you are arrested or not.  And if you are removed from your car then there is no officer safety precaution because you cannot reach anything that may cause an officer a safety concern.

Nonetheless, with or without an arrest, the police may still ASK you if they could search the car .  Remember, you do not have to consent.  However, if the police impound your vehicle they may be able to do what is known as an “inventory search” in order to look through it.   Keep in mind that your vehicle can be impounded for violations even if the driver is not arrested, for example on insurance violations.

Sometimes the police may lead you to believe that they can search whether or not your give permission.  Sometimes the police will tell you that they can wait until the Canine Unit arrives so you may as well consent now.  You are entitled to say no.  Whether or not they can search with a Canine Unit is a subject for another day, but once you consent to a search, the chances that a defense attorney can suppress evidence against you is lessened.

If you have a pending criminal case, or believe you need a lawyer, call Botto, Gilbert, Schottland & Andrle. at (815) 338-3838 for legal advice.  Reading this post does not create an attorney / client relationship.  Call us if you think you need a lawyer.