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Police Dep't v. Shim
OATH Index No. 145/06, mem. dec. (Aug. 5, 2005)
Petitioner proved that it is entitled to retain a seized vehicle. Despite assurances from respondent’s mother that she would have sole use of the car if it were returned, respondent, a repeat offender who lives with his mother, posed a heightened risk to public safety and risk of loss, sale or destruction of the vehicle. Mother, who held neither title nor registration, was a witness, not a claimantin this initial hearing under the Krimstock Order.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
JONATHAN SHIM
Respondent
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MEMORANDUM DECISION
JOAN R. SALZMAN, Administrative Law Judge
The petitioner, the Police Department, brought this proceeding to determine its right to retain a vehicle, a 2003 Honda (Voucher No. B163300, Pet. Ex. 1, 2), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the New York City Administrative Code. Respondent, Jonathan Shim, is the owner of the vehicle. He holds both the title and registration and was driving the vehicle when it was seized (Pet. Exs. 5-7, 13). This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004) (the “Krimstock Order”), as amended December 23, 2004. 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 Honda was seized by the Department on June 18, 2005, following respondent’s arrest for: (1) driving while intoxicated under Vehicle and Traffic Law (“VTL”) section 1192(2), (2) driving while impaired under VTL section 1192(1), (3) aggravated unlicensed operation of a motor vehicle in the third degree, under VTL section 511(1)(a), and (4) driving without a license under VTL section 509(1) (Pet. Ex. 4). Upon receipt of respondent’s request for a hearing, the Department timely scheduled a hearing for July 14, 2005, at OATH (Pet. Exs. 1, 2). The matter was adjourned on consent to allow the parties to engage in lengthy settlement discussions, some of which were held at this tribunal. The hearing went forward on July 28, 2005. Respondent appeared at trial and was represented by counsel. The Department submitted documentary evidence; respondent declined to testify, claiming his rights under the Fifth Amendment, and his mother testified on his behalf. Respondent was the sole claimant at the trial.
For the reasons set forth below, I conclude that petitioner is entitled to retain respondent’s vehicle pending the outcome of a civil forfeiture action.
PRELIMINARY ISSUE
At the start of the trial, respondent filed a motion to dismiss based on the asserted insufficiency of the petition. I held the record open through August 2, 2005, to allow briefing by petitioner in response to the motion and by both sides on other legal issues that were raised at trial.[1] The motion to dismiss is denied. The petition adequately placed respondent on notice that his car, a 2003 Honda, was seized by the Department on June 18, 2005, under Property Clerk invoice voucher number B163300, as the alleged instrumentality of a crime, pursuant to section 14-140 of the Administrative Code (Pet. Ex. 2). The petition further notified him that the Department intended to commence a civil forfeiture proceeding to confiscate the car. Thus, the petition provided a “short and plain statement of the matters to be adjudicated, and a reference to the particular sections of the law and rules involved,” including the “incident, activity or behavior at issue, and, where appropriate, the date, time and place of occurrence,” as required by Rule 1-22 of this tribunal, 48 RCNY § 1-22 (Lexis 2005). This was adequate notice in this truncated type of administrative forfeiture hearing, as this tribunal has previously held when presented with the identical challenge to a Department petition. See Police Dep’t v. Fung, OATH Index No. 1195/05, mem. dec., at 2 n. 1 (Jan. 27, 2004) (holding Department’s form of Krimstock petition legally and factually sufficient both under the City Administrative Procedure Act, City Charter section 1046(a) and OATH Rule 1-22). See generallyMurray v. Murphy, 24 N.Y. 2d 150, 157, 299 N.Y.S.2d 175, 181 (1969); Alvarado v. State of New York, 110 A.D.2d 583, 488 N.Y.S.2d 177 (1stDep’t 1985).
ANALYSIS
The Department seeks to hold the vehicle as the instrumentality of a crime. Thus, the Department has 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 in a civil forfeiture action. County of Nassau v. Canavan, 1 N.Y.3d at 144-46, 770 N.Y.S.2d at 286; Krimstock Order ¶ 2. Here, 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.
Petitioner’s case consisted entirely of documentary, hearsay evidence, admissible under section 1-46 of the rules of this tribunal and permissible under paragraph 5(b) of the Krimstock Order. Respondent was stopped on June 18, 2005, at 3:30 a.m., when the arresting officer, Jose Peralta,saw him driving his car at a high rate of speed and in an unsteady and abrupt manner. Respondent’s car wasswerving. The officer approached and smelled a strong odor of alcohol on respondent’s breath, and observed that respondent had bloodshot and watery eyes. Upon further investigation, the officer determined that respondent’s license was suspended (Pet. Exs. 4-6). Respondent also admitted that he had been drinking: “I drank[] earlier don’t know how much” (Pet. Ex. 5). These facts weighed heavily against respondent. Following our precedents, I draw a negative inference from respondent’s refusal to testify. See Police Dep’t v. Chirico, OATH Index No. 2205/05, mem. dec., at 3 (June 28, 2005); Police Dep’t v. Rice, OATH Index No. 1709/05, mem. dec., at 9-10 (April 21, 2005) (collecting cases).
As for the first Krimstock prong, there clearly was probable cause to stop and arrest respondent. See, e.g., People v. Nesbitt, 1 A.D.3d 889, 767 N.Y.S.2d 187 (4thDep’t 2003) (erraticdriving). Once the approaching officer observed that respondent appeared to be intoxicated, there was probable cause for an arrest. SeegenerallyPeople v. Kane, 240 A.D.2d 516, 658 N.Y.S.2d 434 (2d Dep’t 1997) (defendant was flushed and smelled of alcohol); People v. Gangale, 249 A.D.2d 413, 671 N.Y.S.2d 148 (2d Dep’t 1998) (defendant had glassy and bloodshot eyes, slurred speech, and smelled of alcohol).
Respondent submitted additional police records, generated after the arrest. These recordsindicated that while respondent displayed the same indicia of inebriation noted by the arresting officer, he also showed some behavioral signs one would associate with sobriety. When observed at the precinct, respondent had watery and bloodshot eyes. The officer who completed and signed theinterview form is listed as a police technician, William Wilson, of the intoxicated driver technicians’ unit (the I.D.T.U.). He wrote that respondent had a “strong odor of alcohol” that got “stronger” when respondent talked (Resp. Ex. J). The technician, however, also wrote that respondent appeared to be walking and turning in a steady fashion, accurately executed a test of coordination by touching his fingers to his nose; his color was normal, clothes orderly, attitude polite, balance steady and speech clear (Resp. Ex. J). The technician notedhis conclusion that respondent was under the influence of intoxicating beverages. The observations of the technician, taken sometime after the 3:30 a.m. arrest, also included respondent’s refusal, at 6:48 a.m., more than three hours after the arrest, to take an intoxilyzer test. Respondent argued that these later records demonstrated that he was not drunk at the time of arrest. The Department countered that respondent was starting to become sober by the time of these observations (Tr. 79-80), and I find that explanation plausible. I find that the post-arrest observations of respondent’s demeanor in the station house after some time had passed do not overcome the strong prima facie case the Department made as to driving while intoxicated.
Moreover, respondent did not contest the fact that he was driving with a suspended license. He was charged with aggravated unlicensed operation of a motor vehicle in the third degree, which is a misdemeanor, VTL § 511(1)(a) (Lexis 2005), a separate crime which also supports retention of the vehicle. See Police Dep’t v. Hawkins, OATH Index No. 274/05, mem. dec., at 5 (Aug. 20, 2004) (prima facie case found to support retention of vehicle); cf. Police Dep’t v. Solomon, OATH Index No. 1783/04, mem. dec. (April 22, 2004) (suspended license must be a New YorkState license).
I decline respondent’s invitation to draw a negative inference from petitioner’s failure to call its officers to present live testimony to explain the observations of the technician and rebut respondent’s submission of the additional police records. Both sides relied entirely on documents with respect to the arrest. This is not an appropriate case for dueling negative inferences.[2] I find the police records submitted by both sides probative and reliable. The technician’s later observations of the respondent can be reconciled with those of the arresting officer, as noted above.
Petitioner has met its burden of proof on the first prong of Krimstock.
With respect to the second prong of Krimstock, the Department is likely to succeed in a civil action for forfeiture of the vehicle because it is more likely than not that respondent was driving his Honda, with a suspended license,in an intoxicated state. The arresting officer made detailed observations that the Honda was moving at high speed and was swerving, thatthe strong smell of alcohol was on respondent’s breath, and that respondent had bloodshot and watery eyes. Respondent’s telling admission at the time of arrest that he had been drinking reinforces these observations. That respondent refused the breath test does not affect this conclusion. Ordinarily, refusal to submit to a blood alcohol test could be considered against respondent. People v. Gangale, supra. The Department asked that I infer from the refusalthat respondent was intoxicated, and respondent countered by seeking to exclude the refusal, citing VTL section 1194, which requires that the test be offered within two hours of the arrest. According to the only evidence of the time the test was refused, more than two hours had passed in this case. I have disregarded the refusal here because of the lapse of time. See People v. Morris, 2005 N.Y. Slip Op. 25136, 793 N.Y.S.2d 754 (Crim. Ct. Richmond Co. Mar. 25, 2005) (defendant’s motion to suppress his refusal to submit to custodial chemical test granted where test was offered to defendant, a Department of Motor Vehicles Administrative Law Judge, more than two hours after arrest due to police delay, citing concerns about the scientific accuracy of a delayed test). I find, however, that the Department is likely to succeed in the forfeiture action even without consideration of respondent’s refusal to take the breath test, because of the strong indicia at the time of arrest that respondent was intoxicated,Police Dep’t v. Johnson, OATH Index No. 2211/04, mem. dec., at 4 (July 15, 2004) (Department was likely to prevail in the forfeiture proceeding notwithstanding lack of a blood alcohol reading); Police Dep’t v. Means, OATH Index No. 1846/04, mem. dec., at 3 (May 14, 2004) (same), and was driving with a suspended license.
The Department has met its burden of proof on the second prong of Krimstock.
As for the third Krimstock prong, where, as here, the Department proves that it is necessary to retain the vehicle, to protect the public from heightened risk to the public safety from criminal misuse of the vehicle by respondent or to preserve the vehicle from loss, sale or destruction, the Department will be allowed to retain the vehicle pending the outcome of the civil forfeiture hearing. Police Dep’t v. McFarland, OATH Index No. 1124/04, mem. dec. at 2-5 (Feb. 24, 2004), later decision, Index No. 400685/2003 (Sup. Ct. N.Y. Co. Apr. 20, 2004), citing Krimstock, 306 F.3d 40, and Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86. This tribunal has held that the "necessity to retain" prong is not duplicative of the prior two elements -- “that is, the Department must prove more than the fact that the seized vehicle was the instrumentality of a crime. Instead, the Department must prove the existence of a heightened risk to the public safety, or to the preservation of the seized vehicle, to justify retention of the vehicle pending [the] outcome of the civil forfeiture action.” Police Dep’t v. Olberding, OATH Index No. 283/05, mem. dec. at 3 (Aug. 9, 2004) (citing McFarland); Police Dep’t v. Pierre-Louis, OATH Index No. 1452/04, mem. dec. (Mar. 24, 2000). We have held that such heightened risk might be evidenced, for instance, by the circumstances of the crime itself, e.g., Police Dep’t v. Mohammed, OATH Index No. 1159/04, mem. dec. at 3-4 (Mar. 2, 2004); Police Dep’t v. O’Berry, OATH Index No. 1474/04, mem. dec. (Mar. 15, 2004), or by the history of the driver or owner of the seized vehicle, e.g., Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. (Apr. 4, 2005) (second driving while intoxicated crime); Police Dep’t v. Gardner, OATH Index No. 1257/05, mem. dec. (Feb. 8, 2005) (necessity to retain established by respondent’s prior record of offenses of driving while intoxicated); Police Dep’t v. Benkovich, OATH Index No. 1296/04, mem. dec. at 3 (Mar. 9, 2004) (respondent’s arrest was his second driving while intoxicated offense); Police Dep't v. Solomon, OATH Index No. 1783/04, mem. dec. (Apr. 22, 2004) (respondent’s operation of vehicle while license under suspension demonstrated heightened risk); Police Dep’t v. Green, OATH Index No. 126/06 (July 14, 2005) (allowing neighbor to drive uninsured car posed heightened risk to the public safety).
The Department amply proved that respondent is a menace on the roads. This is his second arrest for driving while intoxicated in less than two years using the same car (Pet. Exs. 3, 11). He also drove without a license in June-July of this year (Pet. Exs. 5-8), and has had multiple license suspensions and a revocation based on his history of speeding and scofflaw offenses, including failure to answer summonses in 2004 and 2005. His license was revoked in 2001 because he had three speeding violations or misdemeanors in 18 months (Pet. Ex. 8). He was convicted in 2003 of driving while impaired, in satisfaction of charges of driving while intoxicated and resisting arrest. He was sentenced to a 90-day license suspension, two days of community service, fifteen days in custody and a $500 fine (Pet. Ex. 6). Even though he went through alcohol abuse counseling in a treatment program certified by the New York State Office of Alcoholism and Substance Abuse Services (OASAS) as part of the resolution of his prior driving while intoxicated case, not two years ago, he is a recidivist, and the counseling had no lasting effect (Pet. Ex. 11). The Honda was uninsured as of July of this year, according to a computer check by the Department (Pet. Ex. 7).[3] His car was swerving and moving erratically at high speed when the arresting officer stopped him. He was also convicted of failure to signal in 2004. I conclude that respondent’s poor driving record, prior driving while impaired conviction, the fact that he was driving while his license was suspended (Pet. Ex. 8), and allowed his insurance to lapse, even temporarily (Resp. Ex. F), amply demonstrate that respondent poses a grave risk to public safety in the event the car is returned. Respondent has been unwilling or unable to correct his behavior and obey the law.
Respondentoffered the testimony of Victoria Shim, his mother, solelyfor consideration of the third prong of Krimstock, in mitigation of his unsafe driving record. Counsel urged that I fashion a novel form of relief and return the car to respondent, a demonstrably unsafe driver, based on his mother’s assurances that she would be the sole user of the car (Tr. 11-19). For the reasons set forth more fully below, I must deny respondent’s application because (1) I am not persuaded that Ms. Shim can prevent her son from using the car, and his driving clearly represents an unacceptable risk to the public safety; (2) there was no request to order the release of the car to Ms. Shim; (3) Ms. Shim lacked standing under the Krimstock Order; and (4) even if I were to deem Ms. Shim an actual owner of the car based on common law and her financial interest in and use of the car, she was not an “innocent owner” entitled to the car.
Respondent’s counsel requested that I draw an analogy to the “innocent owner” defense and consider Ms. Shim a law-abiding, responsible person and safe driver who holds a job and is active in her church. Ms. Shim has lost the use of the Honda, which she jointly purchased with her son, because of his arrest. Ms. Shim’s plight certainlyinspired sympathy. However, respondent’s counsel conceded that Ms. Shim had no standing as a claimantand is not an innocent owner in the sense that she does not hold title or registration (Tr. 13, 18). The defense of innocent ownership relates to the second prong of the Krimstock analysis, likelihood of success in a forfeiture action, but has also been held relevant to the third prong that relates to safety. Police Dep’t v. Janis, OATH Index No. 2078/05, mem. dec., at 4 (June 21, 2005). The Krimstock Order provides in pertinent part that the lawful claimant at the hearing is the “owner” if different from the driver. “Only one person or entity may appear as claimant at the hearing, and preference shall be given to the registered owner of the vehicle.” Krimstock Order ¶ 4. Here the respondent is the holder of the title (subject to a lien of American Honda Finance Corporation) and registration to the Honda (Pet. Exs. 7, 13). We have held that two joint owners who are both listed as registered owners may appear as claimants, Police Dep’t v. Harris, OATH Index No. 971/05, mem. dec., at 2 (Dec. 27, 2004), aff’d, 7 Misc. 3d 1032A, 2005 N.Y. Slip. Op. 50848U, Index No. 05/400677 (Sup. Ct. N.Y. Co. May 9, 2005). But to award the car to a witness, who is not even a claimant, is clearly beyond the scope of an OATH hearing as delimited by the Krimstock Order.