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Police Dep’t v. Kennerly

OATH Index No. 706/08, mem. dec. (Oct. 16, 2007)

Petitioner failed to prove entitlement to retain vehiclepending outcome of a civil forfeiture action under the third prong of the Krimstock order. No heightened risk to public safety found where respondent had a blood alcohol level of .09% and lack of relevant criminal history. ALJ orderedvehicle released.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

KEVIN KENNERLY

Respondent

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MEMORANDUM DECISION

ROBERTO VELEZ, Administrative Law Judge

Petitioner, the Police Department (“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 Kevin Kennerly, is the registered owner of the seized vehicle. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007)(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 1996 Ford Explorer (Voucher # B159667), was seized by the Department on September 16, 2007, in connection with respondent’s arrest for driving while under the influence of alcohol (Pet. Ex. 4). Following receipt of respondent’s demand for a hearing on September 27, 2007, a hearing was scheduled for October 12, 2007 (Pet. Ex. 2). Respondent appeared with counsel and contested the Department’s petition. For the reasons set forth below, I conclude that the Departmentis not entitled to retain the vehicle pending the outcome of the forfeiture action.

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; see Canavan, 1 N.Y.3d at 144-45 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).

The material facts of this case are not in dispute. At approximately 2:25 a.m., according to the arrest report and complaint, Officer Christopher Kennis observed respondent operating his vehicle at the corner of First Avenue and E. 60th Street in Manhattan. Respondent had watery and bloodshot eyes, slurred speech, was unsteady on his feet, and had the odor of alcohol on his breath. The key was in the ignition and the engine was running (Pet. Exs. 5 & 6). Respondent was charged with driving a motor vehicle while intoxicated(N.Y. Veh. & Traf. Law § 1192(3) (LEXIS 2007)), driving a motor vehicle with a blood alcohol content of .08% or more (N.Y. Veh. & Traf. Law § 1192(2) (LEXIS 2007)), and driving a motor vehicle while impaired(N.Y. Veh. & Traf. Law § 1192(1)(LEXIS 2007))(Pet. Ex. 6). According to the arrest report, respondent told Officer Kennis that he had had a Long Island Iced Tea “maybe an hour ago.” (Pet. Ex. 5). Respondent was administered a breathalyzer test and his blood alcohol content was found to be .09%, or .01% above the legal limit (Pet. Ex. 6). On September 21, 2007, respondent entered a plea of guilty to the charge of driving while impaired, an infraction (Pet. Ex. 7).

Respondent’sconviction by guilty plea establishes the first two of the Krimstock Order's three prongs, that there was probable cause for the arrest and that there is a likelihood it will prevail in a civil forfeiture hearing regarding this vehicle. Police Dep’t v. Balseca, OATH Index No. 103/07,mem. dec. (July 25, 2006) (finding criminal conviction establishes first two Krimstockelements); Police Dep't v. Lopez, OATH Index No. 549/07, mem. dec. (Sept. 19, 2006) (same). Respondent did not dispute that the Department established the first and second prongs of the Krimstock Order.

However, the Department failed to demonstrate that it is necessary to retain the vehicle asis required under the third prong of the KrimstockOrder. The third prong of Krimstock is satisfied by showing a heightened risk to public safety if the vehicle were to be returned. PoliceDep’t v. Vanegas, OATH Index No. 1056/06, mem. dec. (Jan. 10, 2006); Police Dep’t v. McFarland, OATH IndexNo. 1124/04, mem. dec. (Feb. 24, 2004). This tribunal has found that a heightened risk to public safety can be shown by intoxication alone if the level is high enough to demonstrate recklessness. Police Dep’t v. Melendez, OATH Index No. 1520/06, mem. dec. (Apr. 5, 2006) (necessity to retain vehicle established where respondent’s blood alcohol level was .182%, which is “more than twice the legal limit”); Police Dep’t v. Lester, OATH Index No. 1049/06, mem. dec. (Jan. 10, 2006) (explaining that respondent’s .17% “blood alcohol content was so high that it alone might have constituted an aggravating factor”). However, we have repeatedly held that an arrest for driving while intoxicated, without more, is notenough to satisfy the heightened risk requirement. E.g., Police Dep’t v. Toribio-Cabrera, OATH Index No. 245/08, mem. dec. (Aug. 9, 2007) (blood alcohol content of .129% not enough to demonstrate heightened risk); Police Dep’t v. Williams, OATH Index No. 747/07, mem. dec. (Oct. 27, 2006) (blood alcohol content of .131% insufficient to establish heightened risk). Although petitioner maintained that the mere fact of respondent’s intoxication is enough to demonstrate a heightened risk to public safety, respondent’s blood alcohol level of .09%, without more, does not rise to the severe level required.

There is nothing in the record to indicate that this arrest was anything other than an aberration. Respondent is gainfully employed and uses the vehicle to commute to his job. (Resp. Ex. A). This is his first conviction for a drunk driving offense. (Pet. Ex. 7). Although he has had two convictions for disorderly conduct, one in 1986 and one in 2007 (Pet. Ex. 7), these were not related to either alcohol or driving, and thus not relevant in this proceeding. See Police Dep’t v. Figueroa, OATH Index No. 391/08 (Oct. 2, 2007) (holding respondent’s long history of criminal convictions not relevant in retention hearing); Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006) (finding respondent’s guilty plea to charge of disorderly conduct 28 years earlier not relevant to heightened risk determination); compare Police Dep’t v. Williams, OATH Index No. 1057/06, mem. dec. (Feb. 2, 2006) (risk to the public demonstrated by respondent’s two prior convictions within the span of six months for driving under the influence of alcohol).

In sum, therefore, 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 forthwith respondent’s vehicle pending the outcome of thecivil forfeiture action.

Roberto Velez

Chief Administrative Law Judge

October 16, 2007

APPEARANCES:

ALDIJANA SULJOVIC, ESQ.

Attorney for Petitioner

THE LEGAL AID SOCIETY

Attorneys for Respondent

BY: ASHA SMITH, ESQ.