Includes a motor vehicle as an "instrumentality of the crime" when the charge is one of driving while intoxicated and also requires the district attorney to seek civil forfeiture of a vehicle upon a third charge of DWI within a 5 year period.

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S2303-2011 Actions

• Mar 8, 2011: COMMITTEE DISCHARGED AND COMMITTED TO ALCOHOLISM AND DRUG ABUSE
• Jan 18, 2011: REFERRED TO CODES

S2303-2011 Memo

BILL NUMBER:S2303

TITLE OF BILL:
An act
to amend the civil practice law and rules, in relation to civil
forfeiture of a motor vehicle in connection with a DWI charge

SUMMARY:
Amends Civil Practice Law & Rules Section 1310 to explicitly
include a vehicle as the "instrumentality of a crime" when the crime
charged is driving while intoxicated. Amends CPLR Section 1311 to
require a claiming authority to pursue a forfeiture action against
the vehicle of a driver who is charged with a third DWI within the
preceding 5 years.

JUSTIFICATION:
Current law permits a claiming authority (generally the
local district attorney) to seek the civil forfeiture of the
instrumentality of a crime. Case law has established that a vehicle
is the "instrumentality of a crime" where the defendant is charged
with felony intoxicated driving. This change would alert prosecutors
to the option of civil forfeiture for problem drunk drivers. In
addition, this bill would require prosecutors to initiate civil
forfeiture proceedings against drivers charged with a third
felony-level DWI offense within the preceding 5 years. In essence, it
would create a "three strikes and you're out" law for drunk drivers.

FISCAL IMPLICATION:
None.

EFFECTIVE DATE:
Immediately.

S2303-2011 Text

                      S T A T E   O F   N E W   Y O R K
  ________________________________________________________________________

                                    2303

                         2011-2012 Regular Sessions

                              I N  SENATE

                              January 18, 2011
                                 ___________

  Introduced  by  Sen.  KRUGER -- read twice and ordered printed, and when
    printed to be committed to the Committee on Codes

  AN ACT to amend the civil practice law and rules, in relation  to  civil
    forfeiture of a motor vehicle in connection with a DWI charge

    THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
  BLY, DO ENACT AS FOLLOWS:


    Section 1. Subdivision 4 of section 1310 of the civil practice law and
  rules, as added by chapter 669 of the laws of 1984, is amended  to  read
  as follows:

    4.  "Instrumentality  of  a crime" means any property, other than real
  property and any buildings, fixtures,  appurtenances,  and  improvements
  thereon, whose use contributes directly and materially to the commission
  of  a  crime  defined  in  subdivisions  five  and  six [hereof] OF THIS
  SECTION, INCLUDING A VEHICLE, WHERE THE DRIVER IS CHARGED WITH A  FELONY
  UNDER   SUBDIVISION  TWO,  THREE  OR  FOUR  OF  SECTION  ELEVEN  HUNDRED
  NINETY-TWO OF THE VEHICLE AND TRAFFIC LAW.
    S 2. The opening paragraph of subdivision 1 of  section  1311  of  the
  civil  practice  law and rules, as amended by chapter 655 of the laws of
  1990, is amended to read as follows:

    A civil action may be commenced by the appropriate claiming  authority
  against  a  criminal defendant to recover the property which constitutes
  the proceeds of a crime, the substituted proceeds of a crime, an instru-
  mentality of a crime or the real property instrumentality of a crime  or
  to  recover  a  money  judgment  in an amount equivalent in value to the
  property which constitutes the proceeds  of  a  crime,  the  substituted
  proceeds of a crime, an instrumentality of a crime, or the real property
  instrumentality of a crime.  A CIVIL ACTION MUST BE COMMENCED TO RECOVER
  A  VEHICLE  WHERE  THE DEFENDANT STANDS ACCUSED OF VIOLATING SUBDIVISION
  TWO, THREE OR FOUR OF SECTION ELEVEN HUNDRED NINETY-TWO OF  THE  VEHICLE
  AND  TRAFFIC LAW AND THE DEFENDANT HAS BEEN TWICE CONVICTED OF VIOLATING
  SUBDIVISION TWO, THREE OR FOUR OF SECTION ELEVEN HUNDRED  NINETY-TWO  OF

   EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                        [ ] is old law to be omitted.
                                                             LBD06951-01-1

 S. 2303                             2

  THE  VEHICLE  AND TRAFFIC LAW IN THE PREVIOUS FIVE YEARS. A civil action
  may be commenced against a non-criminal defendant to recover the proper-
  ty which constitutes the proceeds of a crime, the  substituted  proceeds
  of  a crime, an instrumentality of a crime, or the real property instru-
  mentality of a crime provided, however, that a  judgment  of  forfeiture
  predicated  upon  clause  (A)  of  subparagraph (iv) of paragraph (b) of
  subdivision three [hereof] OF THIS  SECTION  shall  be  limited  to  the
  amount  of the proceeds of the crime. Any action under this article must
  be commenced within five years of the commission of the crime and  shall
  be civil, remedial, and in personam in nature and shall not be deemed to
  be  a  penalty or criminal forfeiture for any purpose.  Except as other-
  wise specially provided by statute, the proceedings under  this  article
  shall  be governed by this chapter.  An action under this article is not
  a criminal proceeding and may not be deemed to be a previous prosecution
  under article forty of the criminal procedure law.
    S 3. This act shall take effect immediately.