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Police Dep’t v. Sanchez

OATH Index No. 679/09, mem. dec. (Sep. 05, 2008)

Petitioner failed to establish that respondent poses a heightened risk to public safety. Vehicle ordered released.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

DANIEL SANCHEZ

Respondent

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MEMORANDUM DECISION

INGRID M. ADDISON, Administrative Law Judge

Petitioner brought 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 Daniel Sanchez, who was driving the vehicle at the time of the seizure, is the vehicle’s registered owner (Pet. Ex. 6). 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).

Petitioner seized respondent’s vehicle, a 1999 Nissan Altima, voucher number B196301V, upon his arrest on July 26, 2008, for driving while under the influence of alcohol or drugs, reckless driving, and for failure to obey traffic control signs, in violation of Vehicle and Traffic Law sections 1192 (1) & (3), 1212, 1128 (d) and 1143 (Pet. Exs. 3, 4). The criminal charges are pending. Following the arrest and seizure, petitioner received a request for a hearing from respondent on August 18, 2008 (Pet. Ex. 2). A hearing was held before me on September 2, 2008.

For the following reasons, I find that petitioner is not entitled to retain the vehicle.

ANALYSIS

In a Krimstock proceeding, the Department has the burden of establishing 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 either to protect the public safety or to ensure its availability for a judgment in a civil forfeiture action. Krimstock Order, at 3. See generally Krimstock, 306 F.3d 40; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at286. Due process requires an “initial testing of the merits of the [Department’s] case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d at 69-70. The probable cause inquiry includes not only a sufficiency of the evidence, but also the legality of the means by which the Department obtained such evidence. Police Dep't v. Burnett, OATH Index No.1363/04, mem. dec. (Mar. 11, 2004), aff'd sub nomProperty Clerk v. Burnett, Index No. 04/400955 (Sup. Ct. N.Y. Co. July 19, 2004), aff’d, 22 A.D.3d 201, 801 N.Y.S.2d 592 (1st Dep’t 2005). At the hearing, the Department relied exclusively on documentary hearsay evidence, as permitted by the Krimstock Order and section 1-46 of this tribunal’s rules of practice.

According to the arrest report, the arresting officer observed respondent failing to yield to oncoming traffic, as required to by a yield sign at the intersection of the BrooklynBridge off-ramp and CadmanPlaza. When he was pulled over, the arresting officer smelled alcohol on respondent’s breath and observed respondent with watery and bloodshot eyes. Respondent refused a breathalyzer test. A quarter-filled 750 milliliter bottle of vodka was recovered from the floor of respondent’s vehicle, behind the front passenger seat.

Because of pending criminal charges, respondent’s counsel invoked respondent’s Fifth Amendment right against self-incrimination and confined his testimonyto establishing his ties to his community. Petitioner requested that I draw a negative inference from respondent’s assertion of his Fifth Amendment rights. A pending criminal case is not a constitutional bar to the conduct of a civil or administrative proceeding based on the same underlying facts. Police Dep’t v. Lord, OATH Index No. 942/08, mem. dec. at 5 (Dec. 6, 2007); Baxter v. Palmigiano, 425 U.S. 308, 318 (1976) (“the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them”). Hence, in this proceeding, where respondent initiated the hearing and had control over its timing, yet sought to remain silent regarding the events that led to his arrest, I am left to draw a negative inference by such silence, and accept the evidence presented in the light most favorable to petitioner. Lord, OATH 942/08, at 5; Police Dep’t v. Chan, OATH Index No. 197/08, mem. dec. (Aug. 14, 2007).

At trial, respondent did not challenge the first prong of the Krimstock analysis, but challenged the second prong, that is, the likelihood that petitioner will prevail in a civil forfeiture action. We have held that to establish its likelihood of success, petitioner must show that the vehicle was used in furtherance, or as an instrumentality, of a crime. Lord, OATH 942/08,at 8;Police Dep’t v. Arnold, OATH Index No. 377/07, mem. dec. (Aug. 22, 2006). Respondent argued that petitioner failed to establish that respondent was driving under the influence becausethe police officer’s arrest report and his intoxicated driver examination report are contradicted by the technician test report (Pet. Ex 5; Resp. Exs. A, B). The reports prepared by the arresting officer indicate that at the time of arrest, respondent, who refused to submit to a breathalyzer test, displayed were watery and bloodshot eyes, and there was a moderate odor of alcohol on his breath. The officer’s report further reveals that respondent was polite. In his report, the chemical technician concluded that respondent, who refused the coordination test as well, was not under the influence of intoxicating beverages. The technician included no comments or observations in his/her report. It is not clear what time elapsed between the independent observations of the officer and the technician. Therefore, it is uncertain whether the technician based his/her conclusion on an inability to conduct the coordination test, or whether any indicia of respondent’s intoxication had dissipated by the time he was presented to the technician.

Refusal to submit to a breathalyzer testmay be admissible to show consciousness of guilt, upon a showing that respondent was given sufficient warning, in clear and unequivocal terms, of the consequences of refusal, pursuant to section 1194(2)(f) of the Vehicle & Traffic Law. People v. Haitz, 65 A.D.2d 172, 411 N.Y.S.2d 57 (4th Dep’t 1978); People v. Johnson, 387 N.Y.S.2d 801 (Crim. Ct. Bronx Co. 1976). In Police Dep’t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006), we declined to draw a negative inference on grounds that petitioner had made no showing that respondent was administered proper warnings before his refusal. Here, because respondent invoked his Fifth Amendment right against self-incrimination, there was no testimony regarding the interaction between the officer and respondent, and I am not sure that for purposes of this Krimstock hearing, the issue of whether the officer administered an appropriate warning needs to be reached.

In Police Dep’t v. Rios, OATH Index No. 146/06, mem. dec. (July 21, 2005), this tribunal held that, to be admissible, hearsay must be “sufficiently probative and reliable before it may be accorded any significant weight.” Id.at 5. The judge found that certain documents offered by petitioner were insufficient to establish that respondent was operating the vehicle while intoxicated. Here, the arresting officer’s and technician’s conclusions were based on observations only. However, the observations of the officer, who was present at the scene, were more contemporaneous with respondent’s arrest and, therefore, more persuasive. People v. Robbins, 504 N.Y.S.2d 1006 (Westchester Co. 1986) citing People v. Herzog (75 Misc.2d 630) (evaluation of the police officer of the defendant’s condition was sufficient to find the defendant guilty of driving while intoxicated). Evidence of intoxication may include glassy and bloodshot eyes, slurred speech, unsteadiness of respondent’s feet, a strong odor of alcohol on the breath, and cocky, insulting and abusive behavior. People v. Robbins, 504 N.Y.S.2d 1006 (Westchester Co. 1986). The evidence of intoxicationhere is weak, and therefore, petitioner may only be able to prove impaired operation of a motor vehicle, a violation. Veh. & Traf. Law§ 1193(1)(a)(Lexis 2008). Thus, on this record, petitioner's likelihood of success in the civil forfeiture action is doubtful as it may be unable to show that respondent was driving while intoxicated, which is a misdemeanor. Veh. & Traf. Law § 1193(1)(b) (Lexis 2008).

In any event, petitioner has failed to establish the third prong, that is, the necessity to retain respondent’s vehicle pending the outcome of a civil forfeiture action. To do so, petitioner must show that returning the vehicle to respondent would present a “heightened risk” to public safety. Police Dep’t v. Cortorreal, OATH Index No. 1479/06, mem. dec. (Mar. 29, 2006); Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec. at 3 (Jan. 10, 2006) (citingCanavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at285-286); Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2 (Feb. 24, 2004). A heightened risk to the public safety may be established based upon the circumstances of the crime or the history of the driver. Police Dep’t v. Johnson, OATH Index No. 1572/05, mem. dec. (Apr. 5, 2005) (considering respondent’s history of driving while intoxicated); Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec. (Sept. 22, 2005) (ordering retention of vehicle for blood alcohol level of .239 percent). This tribunal has found the heightened risk to public safety not sufficiently established where the respondent had a .15% blood alcohol level and no prior convictions, where respondent had a minor record of moving violations, and even where respondent had a blood alcohol level of .17%. Vanegas, OATH 1056/06; Police Dep’t v. Janjic, OATH Index No. 1931/07, mem. dec. (May 29, 2007); Police Dep’t. v. Monge, OATH Index No. 836/08 (Oct. 31, 2007). Even though no breathalyzer test was done, the arresting officer indicated that the odor of alcohol emanating from respondent was moderate, thereby supporting respondent’s argument that this does not rise to the level of “heightened risk” to public safety.

Petitioner also submitted respondent’s RAP sheet which reflected that that this was respondent’s first arrest (Pet. Ex. 7). Respondent testified that he has been responsibly employed at the same organization for two and a half years, as a member services representative. He has had no moving violations in the five years that he has been driving. Therefore, without more, I find the record insufficient to recommend retention of respondent’s vehicle.

This recommendation is not intended to derogate from the seriousness of driving while under the influence of alcohol and its potential for a devastating outcome. Nonetheless, given the circumstances, petitioner has failed to establish the third prong.

ORDER

Petitioner is ordered to release respondent’s vehicle forthwith.

Ingrid M. Addison

Administrative Law Judge

September 5, 2008

APPEARANCES:

KATHLEEN FAHEY, ESQ.

Attorney for Petitioner

LEGAL AID SOCIETY

Attorneys for Respondent

BY: MATT CARETTO, ESQ.