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Police Dep’t v. Santos

OATH Index No. 543/08, mem. dec. (Sept. 21, 2007)

Petitioner failed to prove its entitlement to retain vehicle pending the outcome of a civil forfeiture action; vehicle released.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

JOSE SANTOS

Respondent

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MEMORANDUM DECISION

JOAN R. SALZMAN,Administrative Law Judge

Petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 2003 Honda Accord (Voucher No. B181402), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code (Pet. Ex. 6). Respondent Jose Santos is the registered owner of the seized vehicle (Pet. Ex. 5) and was at the wheel of the vehicle 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) (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).

Respondent’s vehicle was seized on August 25, 2007, in connection with his arrest for driving while intoxicated (Pet. Exs. 1-4). The Department received respondent’s hearing demand on September 6, 2007 (Pet. Ex. 9), and a hearing was timely scheduled for, and held on, September 20, 2007 (Pet. Ex. 11). Respondent appeared with counsel and contested only the Department’s contention that returning the vehicle to him pending a civil forfeiture action poses a heightened risk to the public safety. For the reasons set forth below, I conclude that the petitioner is not entitled to retain the vehicle pendente lite.

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 144-46, 770 N.Y.S.2d at 286. The due process rights at issue in these truncated, administrative proceedings 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, 306 F.3d at 69-70. Respondent did not contest the first two prongs of the Department’s proof for purposes of this proceeding. Thus, only the third prong concerning public safety is in controversy here.

The following facts are uncontested. According to the arrest and complaint reports, at 1:49 a.m. on August 25, 2007, Officer Richard Baez stopped respondent at a checkpoint in lower Manhattan. He observed that respondent had a strong odor of alcohol on his breath, watery, bloodshot eyes, disorderly clothing, slurred speech, and was unsteady on his feet. He also noted that respondent’s movements were slow and uncoordinated (Pet. Exs. 1-2). At the scene, respondent underwent a field breath test, which showed .156 per cent alcohol in the blood. Respondent also took a breathalyzer test at the precinct and registered .139 per cent alcohol in the blood.[1] The officer stated that he saw respondent driving the car (Pet. Ex. 2). Respondent was charged with operating a motor vehicle while intoxicated and driving while impaired, in violation of Vehicle and Traffic Law sections 1192(2), (3), and (1), respectively (Pet. Exs. 1-4). Respondent was alone in the car. There was no accident, no speeding and no reckless driving, nor was there any showing that he endangered others. Respondent cooperated fully with police. He pleaded guilty promptly to the infraction of driving while impaired by alcohol, and was sentenced to a $300 fine, in addition to a $75 surcharge, all of which he paid in full, a 90-day suspension of his license, as well as a required alcohol abuse program (Pet. Ex. 4; Resp. Ex. F).

Respondent testified in his own defense and was the only witness in the case. The parties disputed whether respondent poses a threat to the public safety, and the legal consequences of his testimony at the hearing. The question presented is whether the Department is entitled to retain this vehicle where respondent has no criminal record and has shown himself to be a responsible, retired person, where his blood alcohol breathalyzer test at the precinct was somewhat less than twice the legal limit of .08 per cent alcohol in the blood that indicates intoxication per se.[2] I find that petitioner failed to demonstrate that it is necessary to retain the vehicle under the third prong of Krimstock. This tribunal has held repeatedly that retention is not necessary to preserve asset value because the Department has not established a procedure for posting a bond, or cash alternative, 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.

Thus, the only issue is whether returning the vehicle to respondent presents a “heightened risk” to public safety. Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec., at 3 (Feb. 24, 2004). We have held that the mere fact of a single arrest for driving while intoxicated, by itself, is insufficient to demonstrate heightened risk to the public safety. E.g., Police Dep’t v. Janjic, OATH Index No. 1931/07, mem. dec., at 3 (May 29, 2007); Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec., at 4 (Jan. 10, 2006) (blood alcohol level of .15%, by itself, failed to prove that gainfully-employed driver, whose only prior offense was a misdemeanor conviction from a decade before, posed a continuing threat to public safety; distinguishing cases involving extremely high blood alcohol levels).

While the blood alcohol reading here was high, I do not agree with petitioner that this fact alone, or combined with respondent’s testimony about his drinking habits, suffices, in this particular case, to order retention of this vehicle. Nor is there anything in respondent’s history that would show him to be a menace on the roads such that return of the vehicle poses a heightened risk to the public safety. It is true that “a very high blood alcohol reading might show a tolerance to alcohol that is indicative of frequent alcohol abuse that would also [in addition to other indicators, such as an accident while driving drunk] substantially heighten the relevant risks.” McFarland, OATH 1124/04, mem. dec., at 3. But, as noted in Vanegas, OATH 1056/06, mem. dec., at 5-6, a number of prior cases where cars were retained are distinguishable because the blood alcohol readings in those cases were more extreme than that shown here. Cf. Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec. (Sept. 22, 2005) (.207% and .239%, almost three times the legal limit); Police Dep’t v. Melendez, OATH Index No. 1520/06, mem. dec. (Apr. 5, 2006) (.182% together with disregard for the safety of young passengers). The decision in Police Department v. Busgit, OATH Index No. 1616/05, mem. dec., at 4-6 (Apr. 4, 2005), is also distinguishable because the respondent whose car was retained there, on a record of a .126% blood alcohol reading, lower than respondent’s here, was a repeat offender who had been convicted previously of misdemeanor driving while intoxicated and who had already pleaded guilty to felony driving while intoxicated at the time of the retention hearing. It was the combination of those factors that supported retention of the vehicle by police. Respondent here has no such criminal record.

Respondent is 72 years old, a retired driver by profession, and a veteran of the U.S. armed forces. He served in peacetime in Korea in 1961-62 and received an honorable discharge. He worked as an independent driver for a radio car company[3] for 15 years, from 1984-1999. Respondent has been a driver for 40 years without a blemish on his record. Respondent lives in Astoria, Queens, and has lived in the same apartment since 1996 (Resp. Ex. A). I credit his testimony that he is mortified, after a lifetime as a law-abiding citizen and a productive, now retired member of the workforce, by this first arrest: “at my age, I’m pretty, like, ashamed of it all . . . . I feel very, very, very bad and ashamed of it; I really do . . . very, very guilty, very, very bad and . . . ashamed.” He said this in the presence of his wife, whom he identified in the hearing room. Respondent has been married for 30 years. He fully acknowledged that taking three drinks and then driving on the night of the arrest, as he admitted, was dangerous and he testified credibly that he had no intention of using his car in a dangerous way in the future. Only respondent and his wife use the car. He testified that he “really should have known better,” that he never had an alcohol-related incident during his employment as a driver for the radio car company, and that had he consumed alcohol as a professional driver, he would have lost his job.

I find that respondent’s shame was genuine. He denied that he drinks on a regular basis. On cross-examination, respondent admitted that he had been to a birthday party on the night of the arrest and had consumed three drinks in Manhattan, in the vicinity of the checkpoint. He was dancing at the party, which he attended with a couple friends, who were not with him in his car that night after the party. Respondent denied that he goes to parties often. Asked by his own attorney to fix the number of parties he attends in a year, he testified that he attends about ten per year, including anniversaries, weddings and birthday parties. He also testified on cross-examination that he typically consumes one or two drinks at a party. Significantly, though, he denied that he drinks and drives regularly. He acknowledged consistently and repeatedly at the hearing that he now considers taking two drinks before driving dangerous because of this bad experience with his criminal case, and testified remorsefully that he could have had an accident after the three drinks he consumed on August 25th, and that he could have hurt someone.

Petitioner argued that respondent has likely engaged in drunk driving before, but there was no direct evidence that respondent has done so, only an inference that could be drawn from his testimony that he may have occasionally left a party in the past and driven a car after consuming one or two drinks. He said that he “usually” takes the subway and that it was his “bad luck” that he did not take the train on August 25th. While the Department’s counsel tried to get respondent to admit that he felt unlucky that he “got caught,” respondent denied this and said it was unlucky that he drove after drinking at the party that night. Although respondent parried these questions with some discomfort and clear embarrassment, I found him a credible witness who did not conceal his social behavior. I decline the Department’s invitation to find that respondent was not “forthcoming.” On the contrary, respondent did not pretend that he never drinks, and his sentence pursuant to his guilty plea and conviction of driving while impaired requires him to complete an alcohol abuse program, so that he must address the problem that resulted in his arrest.

Respondent credibly testified that he is chastened by this arrest and conviction, such that he would, as he must, change his “usual” use of the subway after a party where he has had alcohol into invariable use of transportation other than driving. His expressed intention that he will no longer drink and drive rang true. He further acknowledged that his conduct here affected his family and the public. He does not want to repeat this bad experience, and his criminal case and the civil litigation about his car, I believe, have sobered him and brought home to him the grave dangers of drinking and driving. This case is thus distinguishable from Police Department v. Junior, OATH Index No. 1134/06, mem. dec., at 4 (Feb. 8, 2006). There, the respondent was charged with driving while intoxicated and disobeying a traffic control sign. He registered .099% alcohol in the blood, less than respondent here, and had no prior criminal record, but he admitted at the hearing that he “periodically has a drink with his meals and then drives. He explained that he eats out almost all of the time and that he will drink a miniature bottle of liquor with his meals once every week or two. The point of this testimony was to emphasize that he can drink and drive safely.” Judge McFaul found that the respondent’s judgment was “seriously distorted” in that case, id.,and that he presented a serious risk to the public safety. Respondent in the instant case, unlike the respondent in Junior, does not dispute that drinking liquor can affect his driving.

In addition, respondent was released on his own recognizance in the underlying criminal matter. We have noted on occasion that such a release is an indicator of significant ties to the community and low risk of flight from the legal process. Vanegas, OATH 1056/06, mem. dec., at 4. Such a release “does relate to the safety analysis we have undertaken as to whether a respondent is a responsible citizen likely to respect the law, and, therefore, a relevant subsidiary fact that can be, and has been, considered by this tribunal with respect to the third prong of Krimstock.” See Police Dep’t v. Spigner, OATH Index No. 190/08, at 5 (July 24, 2007) (citing Police Dep’t v. Montes, OATH Index No. 1372/06, mem. dec., at 10-11 (Mar. 14, 2006)).

In short, respondent was contrite, and the conduct here appears to be an aberration in an otherwise law-abiding life. The Department could point to no record of recklessness in respondent’s past. There was no evidence that respondent was involved in a serious accident, resisted arrest, endangered others, was speeding or broke traffic laws, drove with a suspended license, or engaged in other criminal activity prior to his arrest. In the absence of such reckless and unsafe conduct, vehicles have been released. See, e.g., Janjic, OATH 1931/07, mem. dec., at 4. The overall circumstances of respondent’s arrest, the absence of reckless driving, accident and injury, respondent’s gainful employment for a period of years, and his family responsibility and lack of a prior criminal record refute the need for retention of this vehicle on public safety grounds here. See Spigner, OATH Index No. 190/08 (.167% field test and .157% intoxylizer test with no criminal record, no accident, no reckless driving, and long record of gainful employment); Montes, OATH 1372/06 (respondent had no criminal record and did not drive car, but merely sat in parked car with engine running); Police Dep’t v. Javier, OATH Index No. 241/06, mem. dec. (Aug. 5, 2005) (.156% and .14% and minor “fender bender,” but no reckless driving and no injuries); Police Dep’t v. Jones, OATH Index No. 1571/06, mem. dec. (Apr. 12, 2006) (.153% on field sobriety test; respondent was at wheel of car with engine running; first driving while intoxicated arrest; no criminal record; no reckless driving, no accident, no injury). Cf. Police Dep’t v. Cortorreal, OATH Index No. 1479/06, mem. dec. (Mar. 29, 2006) (.224% blood alcohol test; car retained); Police Dep’t v. Cevallos, OATH Index No. 552/06, mem. dec. (Oct. 24, 2005) (.22% and respondent intended to move to Florida; car retained).

In sum, I find that the Department has not established that retention of respondent’s vehicle is necessary to protect the public safety.

ORDER

The Department is directed to release the seized vehicle to respondent forthwith.

Joan R. Salzman

Administrative Law Judge

September 21, 2007

APPEARANCES:

EDWARD MONAGHAN, ESQ.

Attorney for Petitioner

THE LEGAL AID SOCIETY

Attorneys for Respondent

BY: MARTIN MORRIS, ESQ.

[1] As between the preliminary field test and the subsequent chemical test at the precinct, it appears that the latter is the more reliable. See People v. Reed, 5 Misc. 3d 1032A, 799 N.Y.S.2d 163 (Sup. Ct. Bronx Co. 2004).

[2] Vehicle & Traffic Law § 1192(2) (Lexis 2007).

[3] Respondent submitted at the hearing a letter dated September 7, 2007, from the treasurer of this firm documenting the dates of respondent’s employment (Resp. Ex. B). The company served corporate clients, and respondent’s attorney identified it as a limousine service.