Vehicle seizure after Illinois DUI arrest: civil forfeiture under Article 36

by Lewis Gainor on October 16, 2013

Article 36 Forfeiture Illinois

For years, DUI offenders have had to worry about their driver’s licenses and the possibility of incarceration. But recently, prosecutors have given defendants another cause for concern.

The government can seize a DUI offender’s vehicle, and after a process called civil forfeiture, sell the vehicle at auction and keep the proceeds.

The process takes place under Article 36. Found in the criminal code, the statute provides the following:

Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit as defined in Section 8-4 of this Code, an offense… may be seized and delivered forthwith to the sheriff of the county of seizure. See 720 ILCS 5/36-1.

A person who is arrested for driving under the influence can have his vehicle seized, even on the first offense. Here, we will look at all the possible ways in which a vehicle can be seized and forfeited after a DUI.

In situations where the defendant’s driving privileges are suspended or revoked by the Secretary of State, the defendant’s vehicle can be seized and subjected to forfeiture as follows:

  • When the offender’s driver’s license is revoked for a DUI conviction (625 ILCS 5/6-205(a)(2)).
  • When the person’s license is suspended for a statutory summary suspension (625 ILCS 5/11-501.1).
  • When the person’s license is revoked for leaving the scene of an accident involving death or personal injuries (625 ILCS 5/11-401).
  • When the person’s license is revoked for reckless homicide (720 ILCS 5/9-3).

See 720 ILCS 5/36-1(f)(1).

In these situations, the accused will be charged with a Class 4 felony offense of impaired driving under 625 ILCS 5/11-501(d)(1)(G). The penalty can be 1-3 years in the Department of Corrections or up to 30 months probation.

The motorist’s vehicle can also be seized for reasons related to prior reckless homicide or accidents causing injury or death:

  • Even though the offender’s license was valid, he was previously convicted of reckless homicide in Illinois or another state and intoxication by alcohol or drugs was an element of the offense. (In this situation, the accused would be charged with violating 625 ILCS 5/11-501(d)(1)(D). This is a non-probationable Class 3 felony (2-5 years mandatory imprisonment).)
  • Even though the person’s license was valid, the driver has a prior conviction for DUI and in the present case, was involved in a motor vehicle accident causing death, great bodily harm, or permanent disability or disfigurement to another, when the violation was a proximate cause of the death or injuries. (In this instance, the criminal charge would be filed underĀ 625 ILCS 5/11-501(d)(1)(F) for causing death, and 625 ILCS 5/11-501(d)(1)(C) for causing great bodily harm, or permanent disability or disfigurement. The fatal DUI charge carries 3-14 years IDOC and is probationable only under exceptional circumstances. The injury DUI carries 1 to 12 years with probation possible.)

See 720 ILCS 5/36-1(f)(2).

If the arrest is the offender’s third offense of driving under the influence, then the vehicle can be seized. See 720 ILCS 5/36-1(f)(3). This defendant would be charged under 625 ILCS 5/11-501(d)(1)(A). Note that a third offense is a probationable Class 2 felony, which means the court can sentence the accused to 3-7 years penitentiary if probation is not imposed.

Even where the defendant’s driving privileges have not been suspended or revoked Secretary of State, if the person does not have a valid license, then the vehicle can be seized. For example, the vehicle is subject to forfeiture if the person committed the violation while he did not possess any of the following:

  • Driver’s license.
  • Permit.
  • Restricted Driving Permit (RDP, or “hardship license”).
  • Judicial Driving Permit (JDP). (Note that this portion of the statute is irrelevant now, because the JDP was abolished in 2009.)
  • Monitoring Device Driving Permit (MDDP with a Breath Alcohol Ignition Interlock Device, or BAIID for short).

See 720 ILCS 5/36-1(f)(4).

In cases such as these, the DUI charge may be a Class 4 felony under 625 ILCS 5/11-501(d)(1)(H). The court could sentence the accused to 1-3 years in prison, but probation is available. Not all jurisdictions charge these offenses the same. Some say they are misdemeanors while others always charge them as felonies. It all depends on the priorities of the Felony Review Unit at the State’s Attorney.

In cases where the offender’s license was valid, the vehicle can still be seized where the was no insurance. The vehicle can be seized when the person committed the violation while he knew or should have known that the vehicle was not covered by a liability insurance policy. See 720 ILCS 5/36-1(f)(5). A charge such as this would be a Class 4 felony DUI (1-3 years IDOC) under 625 ILCS 5/11-501(d)(1)(I). To this date, I have never, ever seen this charged. I would conjecture that prosecutors are loathe to charge these offenses as felonies either because it is unduly harsh or they would have a hard time proving a person should have known the vehicle wasn’t insured.

This article is only a brief recitation of the grounds for seizure. The process itself is complicated and the assistance of counsel is required.

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