Clients seeking help with a DUI or another serious traffic matter often tell us that their vehicle was seized by the police at the time of their arrest and want to know whether they can get it back.
When can the police seize and forfeit a vehicle?
Illinois law provides for the seizure and forfeiture of vehicles in the case of certain offenses including:
- Felony DUI
- Aggravated Fleeing and Eluding
- Driving While Revoked (when the revocation is based on a previous conviction for DUI)
- Leaving the Scene of an Accident Involving Personal Injury or Death
- Reckless Homicide
- Driving While Suspended (when the suspension is based on a DUI Statutory Summary Suspension)
Please note that there are also other criminal (non-traffic) violations that may be the basis for a seizure and forfeiture.
What is the procedure that must be followed?
Generally, a short time after the police have seized the vehicle – within a week or so – it will be transferred to the custody of the Illinois State Police. Additionally, the state’s attorney of the county where the offense occurred and the property was seized, as well as the Secretary of State’s office must be notified of the seizure by the law enforcement agency within 28 days.
Upon receiving notice, the state’s attorney then has 14 days to seek a preliminary determination from the circuit court that there is probable cause to believe that the vehicle is subject to seizure. All known ‘interest holders’ (owners, lienholders, etc.) must be given notice of the forfeiture proceedings. If the state’s attorney determines that probable cause does not exist, it must return the vehicle within 7 days.
Within 28 days of the probable cause finding, an owner may seek temporary release of the vehicle while the forfeiture proceedings are pending based upon hardship caused by loss of the vehicle in a hearing before the circuit court. However, if the court releases the vehicle and then later orders forfeiture of the vehicle, the vehicle must be returned to the law enforcement agency within 7 days. The court may require that the owner post a cash security to guarantee the return of the vehicle if it is ordered to be forfeited.
The state’s attorney must file a Complaint for Forfeiture of the vehicle in the circuit court within 28 days of receiving notice of the seizure and serve the Complaint on all of the parties listed on the title (including any lienholders). These parties then have 45 days to file an Answer to the Complaint and a trial must be held within 60 days of the filing of the Answer.
The matter is then set for a hearing by the court. During the court proceeding, the state must establish that the vehicle was used in the commission of a crime by the owner of the vehicle.
What are possible defenses to a complaint for seizure and forfeiture?
Although these hearings can be very difficult under most circumstances, there are several possible defenses to a complaint for seizure and forfeiture:
- The spouse of the owner may demonstrate that the vehicle is the only source of transportation for the family and that its loss would create a hardship that ‘outweighs’ any benefit to the state;
- That a co-owner of the vehicle is an innocent owner in that they had no knowledge of the culpable owner’s actions;
- That the vehicle was not in fact used in the commission of the offense. For example, in the case of a felony DUI, that the owner did not commit the offense.
- That the value of the vehicle to be forfeited is disproportionate to the nature of the offense that was committed and, therefore, violates the prohibition against excessive fines contained in the U.S. Constitution.
Before the state can obtain forfeiture of the vehicle, they must payoff any lienholders (lenders). If the value of the vehicle is so low after considering the outstanding loan on the vehicle, the state may elect to forgo a forfeiture and return the vehicle to the owner (or in some cases to the lender who may then return the vehicle to the owner).
The DUI defense and criminal defense attorneys at The Davis Law Group, P.C. represent clients primarily in Cook County, Lake County and DuPage County. If you have been arrested and charged with a criminal offense in the Chicago Area, contact our team today by calling (847) 390-8500 or using our contact form.