New York Criminal Lawyer Blog
On February 20, 1999, respondent Police Commissioner announced that the City would apply the Property Clerk Forfeiture Law (Administrative Code of City of NY § 14-140) to vehicles operated by individuals arrested for driving while intoxicated (DWI). At 10:30 P.M. on February 21, 1999, police stopped and arrested petitioner for DWI. A New York Criminal Lawyer said that, the arresting officer concluded that petitioner was intoxicated based on the strong smell of alcohol, watery and bloodshot eyes, and coordination tests. A breathalyzer test indicated .11% blood alcohol content, over the .10% intoxication threshold. Officers took petitioner’s 1988 Acura for forfeiture. By letter of February 26, 1999, petitioner’s attorneys demanded its return.
A Bronx Criminal Lawyer said that, by order to show cause and petition dated March 9, 1999, petitioner commenced this proceeding. Petitioner seeks a final judgment invalidating the City’s policy and the taking and retention of his car. On March 19, 1999, Property Clerk commenced a separate action against petitioner for a judgment declaring the vehicle forfeited as the instrumentality of the crime of driving while intoxicated. The criminal action is pending.
A Bronx DWI Lawyer said that, petitioner challenges the City policy as statutorily unauthorized and preempted by State law. Petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough.
A Bronx DWI Defense Lawyer said that, petitioner asserts that the forfeiture sought here should be deemed criminal, not civil, because the City brought the forfeiture action against the petitioner instead of his car. Civil forfeiture actions for instrumentalities were traditionally brought in rem against the “guilty” property. Petitioner challenges the taking and retention of his car as an unreasonable seizure. Petitioner argues that the police took and kept the car without cause or necessity and without obtaining a warrant before or after the seizure. The seizure was reasonable under three theories: plain view, incident to arrest, and the automobile exception. Petitioner alleges that the new City policy violates the Due Process Clauses of the Federal and State Constitutions because it authorizes the police to take and retain a vehicle without either a pre-seizure or post-seizure hearing.
A Bronx Criminal Lawyer said that the City’s forfeiture action appropriately seeks a declaratory judgment, requiring a plenary action against an individual and personal service. The City seeks no relief other than a declaration of rights in the vehicle. The City contends that petitioner is barred from asserting a due process claim. Respondents assert that petitioner should be deemed a member of the McClendon class estopped from attacking the constitutionality of the procedures validated by the consent decrees.
The issue in this case is whether the City’s new driving while intoxicated (DWI) vehicle forfeiture policy is constitutional.
The court in deciding the case said that, the Administrative Code of the City of New York § 14-140, adopted under the police powers provision of the Municipal Home Rule Law, defines the status of property by its nexus to crime and declares the City’s consequent right to hold it. Administrative Code § 14-140 (b) directs that certain property, including that “suspected of having been used as a means of committing crime or employed in aid or furtherance of crime shall be given into the custody” of the Police Department Property Clerk. The law provides that anyone who used such property shall not be deemed the lawful claimant. The City’s forfeiture procedures, codified pursuant to Federal consent decrees permit the Property Clerk to decline to return property if there is “reasonable cause to believe that it was the proceeds or instrumentality of a crime”. The Property Clerk then must “cause a civil forfeiture proceeding or other similar civil proceeding to be initiated” either before or within 25 days of a claimant’s demand.
Federal and State courts have assumed that the Administrative Code and codified rules form a proper statutory basis for a forfeiture action or proceeding. Thus, a car used to transport a buyer to and from a drug purchase was forfeited, like one used to solicit for prostitution. Just because one can buy contraband or patronize a prostitute without a car does not alter the vehicle’s nature as an instrumentality subject to forfeiture. Operation of a motor vehicle is a necessary element of DWI. A drunk drivers automobile is the quintessential instrumentality of a crime the sine qua non without which the crime could not have been committed. It is irrelevant that the vehicle is not needed as evidence or that the District Attorney might not object to petitioner’s request for its return. An independently elected prosecutor cannot bind the Property Clerk, a nonparty to the criminal action.
State law does not preempt either the new City policy or the local law which it implements. The State asset forfeiture law does not apply to petitioner, who is not charged with a felony. CPLR 1352 explicitly preserves the availability of other rights and remedies provided by law. Article 13-A does not limit or supersede. Nothing in article 13-A’s legislative history indicates that the State intended to occupy the field. New York has a plethora of disparate forfeiture statutes; the Legislature has made no attempt at over-all re-codification or coordination. There is no evidence elsewhere in State law that the local forfeiture law or the new DWI policy violates overriding State policy. The new City policy implements current law; it needs no additional legislative authorization.
The Court said that, petitioner asserts that the City unconstitutionally violated the separation of powers by imposing an additional DWI sentence, beyond that authorized by State law. No case has deemed forfeiture a criminal sentence if sought in a separate civil action. Cases under the City forfeiture law have been sustained irrespective of the status of the related criminal cases. Petitioner argues that forfeiture constitutes punishment under Federal constitutional law, violating Letterlough. In one case it was held that forfeitures effected monetary deprivations, triggering the Eighth Amendment Excessive Fines Clause. It did not hold that forfeiture constitutes a sentence or punishment for double jeopardy or separation of powers analysis. Petitioner asserts that the forfeiture sought here should be deemed criminal, not civil, because the City brought the forfeiture action against the petitioner instead of his car. Civil forfeiture actions for instrumentalities were traditionally brought in rem against the “guilty” property. Jurisdiction was obtained by seizure, attachment or lien because absent or unknown owners could not be personally served. The litigation sought only the property and not a money judgment; in personam jurisdiction was unnecessary.
As regards the issue on search and seizure, the plain view exception permits warrantless seizure of contraband, instrumentalities or evidence found where it is immediately apparent to permissible police observation. If an object is in open view, its observation neither impinges on its owner’s privacy nor constitutes a search. “Immediately apparent” does not mean at first glance, but before conclusion of the officer’s on-scene inquiry. Petitioner here has not challenged the legality of the stop; he may do so in the pending prosecution. The record shows no reason for presuming the stop to have been improper. Like other pedestrians or motorists, police were able and permitted to observe petitioner driving on a public street. Concluding that he was intoxicated, the police had probable cause to believe that petitioner committed the qualitative, “common-law” count before the breathalyzer test, which confirmed the observations and supported the quantitative count. It was immediately apparent during the stop that the car was the crime’s instrumentality subjecting it to seizure.
The automobile exception permits police to stop and search a vehicle if they have probable cause that it contains contraband, instrumentalities or evidence of crime. There is less expectation of privacy in a car than in a home or office; its inherent mobility is an exigent circumstance. If there is probable cause, no warrant is required to search a car for an instrumentality of a crime; logically, no warrant is required to seize a car that is itself an instrumentality. Petitioner’s arrest and car seizure were virtually simultaneous, inexorable consequences of the stop. No warrant was required to arrest petitioner or to seize his car; no warrant was needed to validate his arrest and the car’s retention. Once an object is permissibly seized as an instrumentality during an arrest, no warrant, pretrial hearing or judicial approval is needed for retention during the criminal action. It cannot be said here, as a matter of law, that the warrantless arrest, seizure or retention is unconstitutional.
The Due Process Clause of the Fourteenth Amendment guarantees that, absent extraordinary circumstances, “Individuals must receive notice and an opportunity to be heard before the Government deprives them of property.” A prehearing seizure of an instrumentality for forfeiture comports with due process when “`the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance.'” Petitioner urges this court to substitute the Supreme Court’s analysis. Because the vehicle is a mobile instrumentality and its seizure was a necessary consequence of the contemporaneous arrest. The seizure satisfies due process under either test.
The seizure serves a significant governmental interest: it permits the Property Clerk to assert jurisdiction in order to conduct forfeiture proceeding. Moreover, immediate seizure of a drunk driver’s automobile upon arrest is necessary because the arrestee is legally and physically incapable of driving. Pre-seizure notice and hearing might prevent police from effecting a forfeiture. A car, like the yacht, is property “that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given.” In contrast, the belated land seizure held unconstitutional demanded no immediate action. Unlike the creditors in the other case, who effected the seizure to collect on a debt, the arresting officers are government employees who derive no economic benefit. The seizure is simultaneous with a DWI arrest for which the police must have probable cause. The arresting officer evaluates an offense committed in his or her presence. Indicia of alcohol consumption and objective tests confirming the presence of alcohol minimize the risk of erroneous deprivation. While the City’s DWI policy prevents accused drunk drivers from using property before a determination in the criminal action, the City’s interest in deterring drunk driving and ensuring enforceability of a subsequent forfeiture order clearly outweighs the private interest affected.
Due process requires a meaningful adversarial proceeding at a meaningful time. Whether the delay between a seizure and the initiation of judicial proceedings violates due process is judged by the standards for determining a constitutional speedy trial violation. The factors include: “length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” Retention prevents the vehicle from being used for repeated illegal activity. An automobile is an integral part of DWI; it poses the threat of being used as an “instrumentality of death” should the crime be repeated. Just as there is a strong public interest in withholding a non-contraband murder weapon from a homicide defendant, there is a strong public interest in withholding a car from a DWI defendant.
Petitioner argues that even if the City procedures do not violate Federal due process, they violate State due process. While the Federal and State Due Process Clauses are similar, our State clause occasionally has been accorded wider scope. Petitioner asserts that State due process is more protective, incorrectly assuming that CPLR article 13-A evinces a policy decision to reject in rem forfeitures. Rather, the breadth of article 13-A relief necessitates in personam jurisdiction. Neither Federal nor State due process requires a pre- or post-seizure evidentiary hearing for seizure and retention of DWI vehicles for forfeiture during pendency of the criminal action.
Petitioner challenges the City forfeiture policy as an excessive fine. New York’s Excessive Fines Clause requires the same analysis as the Federal, and provides no greater protection. If a civil forfeiture contains a punitive element, it is deemed a fine under the Eighth Amendment despite its remedial purpose, and must be analyzed for excessiveness. The City DWI forfeiture policy is punitive for Eighth Amendment purposes under Austin: it has an “escape hatch” for innocent owners; it links the forfeited property directly to the charged crime; it lacks specific correlation between the property’s value and the crime’s social cost. While the forfeiture sought may be deemed a “fine”, it is not excessive when analyzed under any of the three tests advanced for measuring excessiveness: proportionality, instrumentality or a mixed instrumentality-proportionality analysis.
Petitioner’s vehicle is the instrumentality of a charged crime, inseparable from it, and its prerequisite. Petitioner owns the car and drove it at the time of the alleged offense. The owner’s role and his use of the property were temporally and spatially coextensive with the offense charged. DWI is a serious crime, in both sentence and effect. As a first offense it is a misdemeanor, with a maximum sentence of one year in jail, a fine of $1,000 and three years’ probation, or a combination, plus loss of driving privileges. For 10 years after conviction, a subsequent offense is a felony, with up to four years possible imprisonment. DWI is indeed “a crime which injures and kills, and is an unparalleled public menace.” The “threat posed by drunk drivers” is “empirically irrefutable.”
In sum, the City’s DWI forfeiture policy does not violate the Excessive Fines Clause, as a matter of law, either facially or as applied to petitioner’s vehicle. Petitioner has not met his burden of demonstrating that the City DWI forfeiture policy is unconstitutional, contrary to law or arbitrary and capricious, either on its face or as applied to him. Accordingly it is adjudged that the petition is denied and the proceeding is dismissed.
If you want to question the constitutionality of a DWI City policy, seek the assistance of Bronx DWI Attorney and/or Bronx DWI Defense Attorney at Stephen Bilkis and Associates. Whether you have been charged with sex crimes, drug possession or theft, call us for free legal advice.