The state legislature has added a new provision to the forfeiture statute in Illinois for 2011. This new law provides prosecutors another way to penalize intoxicated drivers.
The law in Illinois allows the police to tow the vehicle of any person who was arrested for driving under the influence. Most municipalities impose a $500 administrative tow fee as a result. The vehicle generally remains in impound until the storage fees are paid to the towing company. The police usually instruct the towing company to not release the vehicle until someone pays the storage fee and presents a valid license and proof of insurance.
But the power of the police to take your vehicle does not end there. Law enforcement is authorized to seize the vehicle. A seizure is more than an impound. A vehicle that has been seized will not be released. When the police seize a person’s vehicle, they intend to keep it.
Under 720 ILCS 5/36-1, the State’s Attorney can initiate forfeiture proceedings against a vehicle that was used in the commission of a criminal offense. A person arrested for DUI can have his vehicle taken away.
Basically the process begins with the police seizing the vehicle and delivering it to the county sheriff. The police department then notifies the county State’s Attorney that they want to file a complaint for forfeiture.
The complaint for forfeiture is like a civil lawsuit. It is served on the owner of the vehicle, and the process begins in court for a hearing. At the hearing, if the State’s Attorney proves the vehicle was used in the commission of a DUI, the State wins and is allowed to sell the vehicle at auction and keep the proceeds.
The forfeiture hearing is a civil matter. As such, the State does not have to prove the person was guilty of DUI beyond a reasonable doubt. That is the burden of proof in the criminal case against the defendant.
Instead, the prosecution only has to show a DUI occurred by preponderance of the evidence. This is a low threshold of proof. It is similar to saying something is more likely to be true than not.
The amendment to 720 ILCS 5/36-1 in 2011 says that the vehicle can be forfeited if the driver did not have insurance. The new language in the statute is found at subsection (f)(5):
the person committed the violation while he or she knew or should have known that the vehicle he or she was driving was not covered by a liability insurance policy.
See 720 ILCS 5/36-1(f)(5). Note that driving without proof of insurance is an offense as well under 625 ILCS 5/3-707.
This new law means that a person who is charged with DUI while he did not have insurance can have his vehicle taken away. It does not matter whether it was the person’s first offense. It is also not a defense that it was the person’s only vehicle and it is needed to drive to and from work or to transport children to school.
Most importantly, it does not matter that the vehicle belonged to someone else. In these circumstances, it can still be forfeited.
The penalty is severe. Once the court rules for the State, as it often does, the owner of the vehicle has no recourse. He or she receives no compensation, and the vehicle is never returned.
Considering the state of the economy, dubbed The Great Recession by some, I would expect law enforcement to utilize this new provision often. The money from forfeitures goes to the police department or municipality that made the arrest. Police departments across the state are short on money. And police pensions need to be funded.
This new law went into effect on January 1, 2011. It was sponsored by Senator William R. Haine (D) from the 56th District, and signed by Governor Pat Quinn on July 26, 2010.
