1
Police Dep't v. Franks
OATH Index No. 2377/07, mem. dec. (July 13, 2007)
Police Department is entitled to retain respondent’s vehicle pending
outcome of civil forfeiture action.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
MARCUS FRANKS
Respondent
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MEMORANDUM DECISION
ROBERTO VELEZ, Administrative Law Judge
Petitioner, the Police Department, brings this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent, Marcus Franks, is the registered owner of the seized vehicle. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004), as amended December 6, 2005 (the "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 Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).
The vehicle in issue, a 2007 Honda (Voucher # B137345), was seized by the Department on June 10, 2007 in connection with Mr. Franks’ arrest for driving while intoxicated in violation of Vehicle and Traffic Law 1192(3) (Pet. Ex. 7). Following receipt of the respondent's demand for a hearing on June 20, 2007, the Department scheduled a hearing for July 3, 2007 (Pet. Ex. 2). Respondent appeared with counsel and challenged petitioner’s right to retain the vehicle until such time as a civil forfeiture hearing is commenced.
The record was held open to allow petitioner to submit an affidavit from the arresting police officer describing the checkpoint at which respondent was stopped and respondent’s attorney was permitted time to respond. Although respondent objected to leaving the record open, because of the short time-frames of the Krimstock Order this tribunal has been flexible in leaving the record open for a brief period after the close of the hearing at the request of either respondent orpetitioner. The record closed on July 10, 2007.
As set forth below, I conclude that the Department is entitled to retain the vehicle.
ANALYSIS
In the instant case, the Department seeks to sustain its retention of the seized vehicle as the instrumentality of a crime, not as evidence in a criminal case. Therefore, the Department bears the burden of proving three points by a preponderance of the evidence: (i) that probable cause existed for the arrest pursuant to which the vehicle was seized; (ii) that it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) that it is necessary that the vehicle remain impounded to ensure its availability for a judgment of forfeiture. Canavan, 1 N.Y.3d at 144-145, 770 N.Y.S.2d at 286; Krimstock Order at 3. Due process requires 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, 306 F.3d at 69, 70.
As a preliminary matter, respondent’s counsel argued that Mr. Franks was not properly served with notice of his right to a retention hearing because notice was not mailed to him within five days of his arrest. The envelope containing the required notice was mailed to respondent at the address he provided when arrested and is postmarked June 14, 2007, four days after his arrest (Pet. Ex. 8). The envelope was returned to petitioner, marked as undeliverable. Respondent presented no testimony or evidence to support his argument and has not established a failure to comply with the notice requirements of the Krimstock Order.
The Department’s evidence showed that Mr. Franks was arrested after he was stopped at a “VehicleSafety and DWI Checkpoint”in lower Manhattan(Pet. Ex. 5; Affidavit of Arresting Police Officer Christopher Triquet). The criminal complaint states that the arresting police officer, Christopher Triquet, observed that Mr. Franks had watery and bloodshot eyes, exhibited slurred speech, had the odor of alcohol on his breath, was unsteady on his feet and had a flushed face (Pet. Ex. 4). A preliminary field test revealed that respondent’s blood alcohol content was .30% (Pet. Ex. 5). Respondent was taken to the 7th Precinct where he refused further testing.
Respondent challenged the basis for the stop of his vehicle, alleging that petitioner did not establish that the checkpoint was conducted properly and therefore did not demonstrate probable cause for his arrest. Officer Triquet’s affidavit states that the checkpoint was conducted in accordance with New York City Police Department Patrol Guideline Procedure 212-64, that there was adequate warning to alert motorists to the checkpoint, and that every vehicle that entered the checkpoint was stopped and the driver interviewed.
Although respondent disputed the sufficiency of the affidavit in a post-trial submission, this hearing is not duplicative of a forfeiture hearing, providing for an “initial testing” of the Department’s case. Krimstock, 306 F.3d at 70. The affidavit meets the Department’s burden of showing that the checkpoint met constitutional requirements and that the stop of respondent’s vehicle was permissible. See People v. Scott, 63 N.Y.2d 518, 483 N.Y.S.2d 649 (1984).
This finding is strengthened by the adverse inference I draw against respondent because he declined to testify. Mr. Franks had the opportunity to challenge the Department’s evidence and present his own account of the checkpoint, but chose not to. It is well established that a pending criminal case is not a constitutional bar to the conduct of a civil or administrative proceeding stemming from the same underlying facts or transaction. See Baxter v. Palmigiano, 425 U.S. 308, 96S. Ct. 1551 (1976); Matter of Germaine B., 86 A.D.2d 847, 447 N.Y.S.2d 448 (1st Dep't1982); Mountain v. City of Schenectady, 89 A.D.2d 632, 453 N.Y.2d 93 (3d Dep't1982); Dep't of Correction v. Dasque, OATH Index No. 1270/01, mem. dec. (July26, 2001); Human Resources Admin. v. Rickenbacker-Miller, OATH Index No.603/01 (Dec. 12, 2000). That is all the more true where, as here, respondent had controlover the timing of the hearing and initiated it by filing his demand for a hearing. Mr. Franks had the choice to either participate in the hearing or to remain silent at the risk that anadverse inference would be drawn and that his right to retain his vehicle pending a civilforfeiture action might be impaired. Baxter, 425 U.S. at 316-20, 96 S. Ct. at 1557-59; NewYork City Comm’r of Social Services on behalf of Jason C. v. Elminia E., 134 A.D.2d 501, 502,521 N.Y.S.2d 283, 285 (2d Dep’t 1987).
Since Mr. Franks elected to remain silent and not to challenge the Department’sevidence, it is appropriate to draw an adverse inference against him and take the evidence presented in the light most favorable to the Department, including all reasonable inferences to bedrawn from such evidence. Comm’r of Social Services v. Phillip De G., 59 N.Y.2d 137, 463 N.Y.S.2d 761 (1983). Drawing this inference strengthens the Department’sposition that there was probable cause for the arrest. Police Dep’t v. Harris, OATH Index No. 983/06, mem. dec. (Feb.16, 2006); Police Dep’t v. Chirico, OATH Index No. 2205/05, mem. dec. (June 28, 2005).
The uncontroverted evidence supports a finding the Department is likely to prevail at a civil forfeiture proceeding because the vehicle was used as an instrumentality of the crime of driving while intoxicated; Mr. Franks was driving his vehicle and was observed to have watery and bloodshot eyes, slurred speech, the odor of an alcoholic beverage on his breath, was unsteady on his feet, had a flushed face, and registered a blood alcohol level of .30% during a preliminary test. Police Dep’t v. Saban, OATH Index No. 273/07, mem. dec. at 3 (Aug. 16, 2006).
To meet the third element of the Krimstock Order, the Department must show that retention of the vehicle is necessary to preserve the vehicle from loss, sale or destruction, or that retention is necessary to protect the public from further drunk driving by respondent. See Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86; Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. (Feb. 24, 2004). In prior cases this tribunal has held that where the return of the vehicle to respondent would pose a heightened risk to public safety, such risk satisfies this element. McFarland, 1124/04 mem. dec. at 3. In certain cases we have found that the circumstances of the arrest were so extreme, such as a blood alcohol content significantly above the legal limit, as to establish a heightened risk to the public safety, even in the absence of a prior relevant criminal record. See Police Dep't v. Cortorreal, OATH Index No. 1479/06, mem. dec. (Mar. 29, 2006) (retaining vehicle after respondent’s first arrest for driving while intoxicated because blood alcohol content was .224%); Police Dep't v. Serrano, OATH Index No. 499/06, mem. dec. (Sept. 22, 2005) (.207% breathalyzer reading was sufficient to retain vehicle because it established heightened risk to public safety).
In this case, although respondent has no criminal record, the preliminary testing revealed that respondent’s blood alcohol content was .30%, close to four times the legal limit. This extremely high reading demonstrates a heightened risk to public safety and justifies the Department’s retention of the vehicle. Respondent argues that field sobriety tests are unreliable and notes that they can not be the basis of a guilty verdict in criminal court. However, while the test may not be sufficient to prove intoxication in criminal court, the extremely high result of the preliminary testing provides sufficient basis for the retention of the vehicle. Respondent presented no evidence that would mitigate the risk of releasing the vehicle to him.
I find that the Department has demonstrated a risk to public safety if the vehicle is returned to respondent.
ORDER
The Department is entitled to retain the seized vehicle.
Roberto Velez
Administrative Law Judge
July 13, 2007
APPEARANCES:
KATHLEEN FAHEY, ESQ.
Attorney for Petitioner
GOLDA FLEISCHMAN, ESQ.
Attorney for Respondent