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Police Dep’t v. Toribio-Cabrera

OATH Index No. 245/08, mem. dec. (Aug. 9, 2007)

Petitioner failed to prove entitlement to retain vehiclepending outcome of a civil forfeiture action; vehicle order released.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

JOSE TORIBIO-CABRERA

Respondent

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MEMORANDUM DECISION

ALESSANDRA F. ZORGNIOTTI,Administrative Law Judge

Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 1995Toyota Corrola (Voucher No. B161825), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent Jose Toribio-Cabrerais the registered owner of the seized vehicle(Pet. Ex. 3) and was behind the wheel at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), second amended order and judgment (S.D.N.Y. Dec. 6,2005) (“Krimstock Order”). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir.2002), cert. denied sub nom. Kelly v. Krimstock, 539 U.S. 969 (2003); County of Nassauv. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

Respondent’s vehicle was seized on Friday, July 13, 2007, in connection with his arrest fordriving while under the influence of alcohol (Pet. Ex. 4). Following receipt of respondent’s demandfor a hearing on July 27, 2007, a hearing was scheduled for August 6, 2007 (Pet. Ex. 1).[1] Respondent appeared with counsel and contested the Department’s petition. For the reasons set forth below, I conclude that the petitioner is not entitled to retain the vehicle pending the outcome of the forfeiture action.

ANALYSIS

The Department bears the burden of proving by a preponderance of the evidence that: (i) probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) it is necessary that the vehicle remain impounded to ensure its availability for a judgment of forfeiture. Krimstock Order at 2; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. The due process rights at issue here require an “initial testing of the merits of the City’s case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock v. Kelly, 306 F.3d 40, 69-70 (2d Cir. 2002); see Canavan, 1 N.Y.3d at 144 n.3, 770 N.Y.S.2d at 286 n.3 (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”; citation omitted).

According to the arrest report and complaint, at approximately 11:45p.m., Officer Santo Villar observed respondent in the vehicle which was improperly parked. When he approached, the officer observed an open container of alcohol in the vehicle. Respondent had slurred speech and there was an odor of alcohol coming from his person. The key was in the ignition and the engine was running (Pet. Exs. 4 & 5). Respondent was charged with operating a motor vehicle while under the influence of alcohol, Vehicle and Traffic Law sections 1192(1), (2), & (3) (Pet. Exs 4 & 7). According to the unsigned criminal court complaint, respondent told Officer Villar that he had seven beers. Respondent was administered a breathalyzer test and his blood alcohol content was .129%(Pet. Ex. 7). Respondent’s criminal matter is pending.

At the hearing, respondent admitted that he drank six or seven beers on the night of his arrest and conceded the first and second prongs of the Krimstock Order. Therefore, petitioner established probable cause for the arrest, as well as the likelihood thatit will prevail in a civil forfeiture action regarding the seized vehicle.

However, petitioner failed to demonstrate that it is necessary to retain the vehicle asrequired under the third prong of Krimstock. Petitioner has previously met this prong byshowing that there was a danger that the respondent would dispose of the vehicle prior to theforfeiture proceeding or where the respondent posed a heightened risk to public safety. Police Dep’t v. Tripp, OATH Index No. 148/06, mem. dec. at 7 (July 19, 2005). More recently,however, this tribunal has rejected the argument that retention is necessary to preserve assetvalue because the Department has not established a procedure for posting a bond, or cashalternative, for seized vehicles. See, e.g., Police Dep’t v. Junior, OATH Index No. 1134/06, mem. dec. at 4 (Feb. 8, 2006), citing Krimstock, 306 F.3d at 70. Therefore, petitioner’s claim that the vehicle should be retained to preserve the vehicle for future forfeiture is dismissed.

Thus, the only remaining issue is whether returning the vehicle to respondent presents aheightened risk to public safety. This tribunal has recognized that an arrest for driving while intoxicated, without more, is notenough to satisfy this requirement. Police Dep’t v. Soto, OATH Index No. 1386/07, mem. dec. (Feb. 16, 2007); Police Dep’t v. Williams, OATH Index No. 747/07, mem. dec. (Oct. 27, 2006); Police Dep’t v.Chirico, OATH Index No. 2205/05, mem. dec. (June 28, 2005). Instead, petitioner must show that there is something in thenature of the offense or the background of the offender that poses a heightened risk to the public. Police Dep’t v. Olberding, OATH Index No. 283/05, mem. dec. (Aug. 9, 2004)(vehicle retained where respondent passed through four red lights, was uncooperative during arrest, engaged inaltercation with police, and had four prior convictions for driving while intoxicated).

While respondent’s blood alcohol content of .129%was relatively high at the time of his arrest, itwas not nearly as extreme as those in Police Dep’t v. Melendez, OATH Index No. 1520/06,mem. dec. (Apr. 5, 2006), Police Dep’t v. Cevallos, OATH Index No. 552/06,mem. dec. at 7 (Oct. 24, 2005), or Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec.(Sept. 22, 2005), where respondents were denied return of their vehicles despite no prior offensesbecause their blood alcohol readings were so high (.182% in Melendez,.220% in Cevallos, and .207% and .239% on a retest in Serrano) that they demonstrated a certainrecklessness sufficient to find a heightened public safety risk. In Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec. (Jan. 10, 2006), the respondent had a .15% blood alcohol test. The vehicle was ordered released because the Department failed to prove that the gainfully-employed driver, whose only prior offense was amisdemeanor conviction from a decade ago, posed a continuing threat to public safety. InPolice Dep’t v. JonesOATH Index No. 1571/06, mem. dec. (Apr. 12, 2006), the vehicle was released where the respondent’sblood alcohol content was .153% because this washis first driving while intoxicated arrest, he had no criminal or unsafe driving record, and there was no accident or injury. Indeed,vehicles have been returned in circumstances of higher blood alcohol readings to that ofrespondent where there were minor accidents or other elements of risk not present here. See, e.g., Police Dep’t v. Cruz, OATH Index No. 339/06, mem. dec. (Aug. 19, 2005) (.15% andrespondent rear-ended parked vehicle and had a minor physical altercation with its occupants);Police Dep’t v. Javier, OATH Index No. 241/06, mem. dec. (Aug. 5, 2005) (.156% and .14% andrespondent had a “fender bender”).

I find that this case is similar to Vanegasand Jones. Respondent testified that this is his first arrest, for which he was charged with misdemeanors and violations.[2] Respondent is 51 years old and is married with five children. He came to the United States 14 years ago and is now a citizen. For the last seven years he has had a steady job and for the past year he has worked as a full-time delivery driver for a company in Linden, New Jersey. Respondent apprised his employer of his arrest and submitted into evidence a letter from his employer stating that respondent “has been a very valuable asset to my company. He is a hard worker and very responsible” (Resp. Ex. A). Respondent testified that he purchased the 1995 Toyota three months before his arrest and that he uses it to go to work from his home in the Bronx. He is currently paying a co-worker to drive him to work. Respondent was forthcoming that he had been eating and drinking in a bodega with friends prior to his arrest. He admitted that he drove his friend Willy home after drinking and stated that they sat in the car and talked. Respondent denied that the engine was running and stated that that the open bottle of beer was found on the passenger side and belonged to Willy. Respondent testified that when he realized that he was too tired and drunk to drive home, he asked Willy if he could spend the night. WhileWilly wentinside his house to seewhether there was a place for respondent to sleep, respondent was arrested. Respondent testified that he cooperated with the police and the arrest documents do not suggest otherwise (Pet. Exs. 4,5, & 7). I found respondent’s testimony, that he is a responsible adult and that he realized that he should not have been driving in his condition, to be truthful.

Petitioner contends that respondent’s admission that he registered two vehicles which he did not own, his admission that he drank seven beers and that there was nothing unusual about him going to the bodega and drinking, and that his license is currently suspended demonstrate that it would be unsafe to return the vehicle to respondent. The fact that respondent had at one time registered vehicles for a friend and a relative is notevidence that respondent poses a risk to the public safety. Also, respondent’s admission that he sometimes goes to a bodega after work on a Friday to eat and drink beer with friends does not mean that he will be irresponsible in the future. I found respondent’s testimony that this was his first car to be truthful and I expect that this arrest and seizure of his vehicle have impressed upon him the importance of not drinking and driving. Moreover, the fact that respondent’s license was suspended as a result of his arrest for an alcohol related offense is not grounds for retaining the vehicle. Respondent testified that he understands that he cannot drive without a license and his employer wrote that respondent will be terminated if he loses his license (Resp. Ex. A). In response to petitioner’s argument, respondent submitted into evidence a letter from the Department of Motor Vehicles stating that as of August 14, 2007, respondent can apply for a conditional license (Resp. Ex. B). Given respondent’s understanding that he cannot drive without a license and his employer’s requirement that he maintain a valid driver’s license, I find it unlikely that respondent will be driving the vehicle without a valid license. Finally, I note that respondent’s minor record of moving violations, which include driving while talking on a cell phone in 2006 and a traffic accident which resulted in property damage in 2005, both incidents which occurred on the job, do not justify retention of the vehicle on public safety grounds especially since there is no evidence that these incidents were related to alcohol use. See Police Dep’t v. Janjic, OATH Index No. 1931/07, mem. dec. at 4 (May 29, 2007). In sum, I find that the Department has not established that retention of respondent’svehicle is necessary to protect the public safety.

ORDER

The Department is directed to release forthwith respondent’s vehicle pending the outcome of thecivil forfeiture action.

Alessandra F. Zorgniotti

Administrative Law Judge

August 9, 2007

APPEARANCES:

ALIZA FELIX, ESQ.

Attorney for Petitioner

SARAH DERI, ESQ.

LISA HOYES, ESQ.

Attorneys for Respondent

[1] Petitioner’s counsel requested that the hearing be adjourned because she did not have a copy of the release from the District Attorney, she was under the impression that the case would settle, and she did not know that respondent was represented. Respondent’s counsel objected and provided a copy of the release. The Krimstock Order provides that respondents obtain a “prompt post-seizure retention hearing.” Krimstock v. Kelly, 306 F.3d at 68. Since there was no basis to adjourn the hearing, which should be conducted within 10 business days from receipt of respondent’s demand, the request was denied. Krimstock, Order, para. 4 (Dec. 6, 2005). Counsel was given time before the hearing to review her documents and prepare.

[2] Petitioner’s counsel’s request to leave the record open until August 8, 2007, to obtain respondent’s arrest history was granted. On August 8, 2007, counsel advised that the issue whether respondent has a prior criminal history “remained unresolved.” During a telephone conference on August 9, 2007, counsel asked for additional time to obtain the necessary records. Several hours later, respondent’s counsel provided a printout from the New York State Division of Criminal Justice Services stating that “a search of the fingerprints of [respondent] has failed to disclose a prior New York State Criminal History.” This document was made part of the record as Respondent’s Exhibit C and, notably, is from the same agency which normally provides arrest histories to the Department. I find it unnecessary to keep the record open any longer and conclude that respondent has no prior criminal history in New YorkState.