Interviewer: What are the basic steps in the DWI process? Once you’re arrested, what are the events that will happen? What’s the timeline?
Currently, A BAC Of Over .08 Will Result In A Mandatory Drug And Alcohol Assessment For The Driver
Martin Kane: This is also something that is relatively new. When somebody is arrested for a DWI and they have a reading over .08, then the court will direct that they be examined. Just about everybody has to be assessed at that point.
Interviewer: You mean a drug and alcohol evaluation is required?
Martin Kane: They are sent to a licensed OASIS examiner who will do a formal assessment to see whether they need treatment. If it’s found that they do need treatment, then the court will direct as part of any sentence that they have to get that treatment.
Used In The Commission Of A Crime: Drivers’ Cars May Be Seized If Their BAC Is Over .08
Additionally, what will happen if somebody is arrested for a DWI and has a reading over .08 is generally the police department will seize their car, ostensibly for forfeiture, because their vehicle was being used in the commission of a crime.
Interviewer: They’re trying to take, even before they’re convicted, and permanently keep someone’s car?
Martin Kane: Yes. What will happen if you are the owner of the car when you are arrested, is that the police department will hold the car for forfeiture and there will be a process that goes on totally separate and apart from the criminal case. In that process, the police department will say, “We are going to forfeit your car because it was used in the commission of a crime.”
Drivers May Have Their Vehicles Forfeited Even If They Are Later Found Not Guilty Of DWI
The police do not have to wait for a determination in the court. In fact, a person can be found not guilty of driving while intoxicated and still have their car forfeited. The reason is that the standard of proof is different.
In criminal cases you have to prove guilt beyond a reasonable doubt. The forfeiture is a civil proceeding and all they have to show is basically that the driver probably was intoxicated. It’s a different standard.
The Car Forfeiture Is A Civil Proceeding; Drivers Who Agree To Pay A Fine And Undergo Alcohol Abuse Treatment May Have Their Cars Returned Following Fulfillment Of The Criteria
What has happened in the last few years is that the police department has evolved a process where normally they will agree to give you back your car if you pay a certain amount of money to them. The amount is fairly nominal and you must undergo an assessment, even if the court does not order the assessment. You must complete any treatment that is required as a result of that assessment.
At that time, the police will return the vehicle. I have to emphasize this is totally separate and apart from what goes on in the criminal court.
Is DWI A Bondable Offense?
Interviewer: Is DWI a bondable offense or are people released on their own recognizance?
Martin Kane: It is a bondable offense like any other misdemeanor or felony. Most misdemeanor DWIs are a first offense with no really aggravating circumstances. In most cases, the defendant is released without bail. There are exceptions to that but typically a defendant is released without bail.
For more information, contact The Law Office of Martin D. Kane by calling (718) 793-5700.