1

Police Dep’t v. Spigner

OATH Index No. 190/08, mem. dec. (July 24, 2007)

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

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

-against-

JERRY SPIGNER

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 Toyota Highlander Suburban(Voucher No. B167071), seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code (Pet. Ex. 6). Respondent Jerry Spigneris 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 Nassauv. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003).

Respondent’s vehicle was seized on June 21, 2007, in connection with his arrest fordriving while intoxicated (Pet. Exs. 1-4). The Department received respondent’s hearing demandon July 7, 2007 (Pet. Ex. 7), and a hearing was timely scheduled for, and held on,July 19, 2007. Respondent appeared with counsel andcontested 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 vehiclependente 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 report and complaint, at approximately 2:00 a.m. on June 21, 2007, Officer Matthew J. Cahill observed respondent sleeping behind the wheel of his car with the keys in the ignition and the engine running. The car was parked three feet from the curb on an angle. At the scene, respondent underwent a field breath test, which showed .167 per cent alcohol in the blood. At 4:00 a.m., respondent took a breathalyzer test at the precinct and registered .157 per cent alcohol in the blood.[1] The officer stated that he observed that respondenthad slurred speech, blood-shot eyes, an odor of alcohol on his breath, and was unsteady on his feet. 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. He was not observed driving it. There was no accident, no speeding and no reckless driving, nor was there any showing that he endangered others. Respondent cooperated fully with police.

There was no material factual dispute with respect to the third prong of the Krimstock analysis. There areseveral mitigating factors in respondent’s favor, and little that qualifies as a true aggravating factor. The question presented is whether the Department is entitled to retain this vehicle where respondent has no criminal record and has shown himself, with the notable exceptions of his impressive record of traffic tickets and the drinking for which he was arrested in this matter, to be a responsible, gainfully employedengineer whose blood alcohol breathalyzer test at the precinct was slightly less than twice the legal limit of .08 per cent alcohol in the blood that indicates intoxication per se, Vehicle & Traffic Law § 1192(2) (Lexis 2007), at the time of his arrest. 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 assetvalue because the Department has not established a procedure for posting a bond, or cashalternative, 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. (Feb. 24, 2004). We haveheld 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 amisdemeanor 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 relatively high, I do not agree with petitioner that this fact alone 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, the cases cited by the Department to support its argument for retention of the vehicle 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 only other case cited by the Department, Police Dep’t 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 42 years old. He is an electrical engineer who works for a development company where he supervises 15 people and reports to the vice president of the company. He has worked on major construction projects both in New York and in Iraq. Hetestified that he is divorced and has joint custody of his two young children, whom he sees on the weekends. He stated that he is a “social drinker” who drinks only when he is out. There was no testimony about the frequency of respondent’s social drinking. He drinks, he said, scotch “on the rocks,” and may take two to four such drinks when he is out. He does not keep alcohol in his home and testified that he has never been treated for substance abuse. While four scotch drinks, even on ice, is a prodigious amount of alcohol to absorb in one sitting, and respondent ought to reconsider seriously his drinking habits in light of the gravity of these proceedings and of the underlying criminal matter, and seek help if needed, respondent stated that he is chastened by his encounter with the law, and that he has concluded that if he drinks in the future, he will leave the car at home. His stated intention to behave differently in the future is reinforced by his knowledge, according to his testimony, that because his construction job requires sobriety, he would surely be fired summarily if his breath smelled of alcohol while on the job. He clearly described this strict rule of his workplace and explained that this rule applies in all construction work, and was especially well understood when he was doing construction at schools where safety is particularly important to protect children. This case represents a serious lapse, because respondent was due at work at 4:30 a.m. on the day of the arrest, and he was found inebriated at 2:00 a.m., but there is no indication here that respondent has any prior history of drinking and driving. This arrest and the related criminal proceedings seem to have impressed upon respondent the importance of driving only when sober and brought into clear focus his multiple incentives, as well as his obligations, to his family, his job, himself and the public, to refrain from drinking and driving. He simply has too much to lose if he does not live up to his representations to this tribunal.

The Department did not show that respondent has a reckless driving record. On questioning, respondent stated that in his 25-year driving history, he has received two tickets, one for speeding and one for going through a red light, but there was no showing of how old these citations were, and no showing that they related to alcohol abuse. Although respondent has accumulated an astonishingly high amount of fines for parking tickets he admitted he did not pay on time -- $2,800 in a three-year period -- he has addressed this scofflaw record by entering into a stipulation to pay $2,000 in monthly installments of $135. He testified that he incurred these tickets when parking to get to meetings for work, when he was running construction projects and could not find parking. He testified further that in his current work, he has legal parking available and that he has stopped incurring parking tickets. I do not find this history of parking tickets to be an indicator of risk to the public safety for purposes of this matter. To the extent that they show disrespect for the traffic laws, respondent has taken steps to correct himself. Counterbalancing respondent’s record of parking tickets is the fact that he 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. Petitioner argues that release on one’s own recognizance should not be considered as a safety factor, but I find that it 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. Montes, OATH Index No. 1372/06, mem. dec., at 10-11 (Mar. 14, 2006).

There was no evidence that respondent was involved in a serious accident, resistedarrest, endangered others, drove with a suspended license, or engaged in other criminal activityprior 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 recordrebut the need for retention of this vehicle on public safety grounds here. See Montes, OATH 1372/06 (Mar. 14, 2006) (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’svehicle 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

July 24, 2007

APPEARANCES:

RICARDO ABRAHAM, ESQ.

Attorney for Petitioner

THE LEGAL AID SOCIETY

Attorneys for Respondent

BY: SILVANA BOGGIA, 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).