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Police Dep't v. Hamilton
OATH Index No. 181/08, mem. dec. (July 24, 2007)
Petitioner proved its entitlement to retain custody of vehicle seized from driver with a .279 blood alcohol content.
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NEW YORK CITY OFFICE OF
ADMINISTRATIVE TRIALS AND HEARINGS
In the Matter of
POLICE DEPARTMENT
Petitioner
- against -
LATOYA HAMILTON
Respondent
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MEMORANDUM DECISION
TYNIA D. RICHARD,Administrative Law Judge
Petitioner, the Police Department (“Department”), 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 Latoya Hamilton, the titled and registered owner of the vehicle, was in possession at the time it was seized. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (MBM), amended order and judgment (S.D.N.Y. Jan. 22, 2004), as amended December 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).
The vehicle in issue is a 1996 Buick Regal, property clerk voucher No. B158522V, which was seized by the Department on June 6, 2007, in connection with respondent’s arrest for driving while intoxicated. Respondent’s demand for a hearing was received by the Department on July 9, 2007, and trial was scheduled for July 19, 2007. Respondent appeared and represented herself at trial pro se.
ANALYSIS
The Department seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action. To do so, the Department bears the burden of proving three elements 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 protect the public safety. Krimstock Order, at 3; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. The due process rights at issue here 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; see Canavan, 1 N.Y.3d at 144-45 n.3, 770 N.Y.S.2d at 286 n.3, citation omitted (hearing is intended to establish “the validity, or at least the probable validity, of the underlying claim”). The Department has met its burden here.
On June 6, 2007, at approximately 1:24 a.m., Latoya Hamilton was arrested for driving while intoxicated (Pet. Ex. 1). According to the arrest report and complaint report narratives, arresting officer Alexander Alvarez was conducting a DWI checkpoint at the intersection of Flatbush Avenue and Empire Boulevard in Brooklyn when he observed respondent operating her motor vehicle while intoxicated (Pet. Exs. 1 & 2). She had red bloodshot watery eyes, a strong smell of alcohol, and slurred speech. She was administered an intoxilyzer on the scene which indicated a .279% blood alcohol content; she was administered a second intoxilyzer at the 78th Precinct which measured a .233% blood alcohol content. Officer Alvarez reported that respondent stated “I was drinking because I had an abortion and [sic] under a lot of stress” (Pet. Ex. 2). The criminal court complaint is consistent except it adds that respondent had an “unsteady gait,” and it cites only the second blood alcohol test, which measured a blood alcohol content of .233% (Pet. Ex. 3).
Respondent refuted much of the Department’s documentary evidence, although she did not contest that she was intoxicated. She testified that she was not operating her vehicle when she encountered the police. She said that she approached the police on foot at a checkpoint at the intersection of Fulton Street and Vanderbilt Avenue to ask for assistance calling her family to come get her, because she could not drive home on account of her intoxication, and she had no cell phone. She had walked there from a party at her union hall. She said the officer told her he would help and asked her to stand to the side; when he returned, he handcuffed and arrested her and took her to the 78th Precinct where she was administered the only breathalyzer given to her. She was then taken to the 71st Precinct. Respondent denied that she was given a breathalyzer at the scene, although she acknowledged that her test result was .233% blood alcohol content.
Respondent testified that she works as a security officer and she had just left a party given for her by co-workers at her union hall. She was given the party because of a recent cancer diagnosis, and she got drunk. She said she was in full uniform at the time of her arrest. The arrest report would appear to dispute this as it states that respondent wore black cowboy boots, blue jeans, and a t-shirt or tank top (Pet. Ex. 1).
Respondent stated that her union hall, which is located across the street from the Brooklyn Academy of Music, approximately four blocks from Vanderbilt Avenue, was near the checkpoint. Her car was parked on Fulton Street, two blocks from Vanderbilt Avenue, perhaps at Washington Avenue. She vehemently denied that the checkpoint was at Flatbush Avenue and Empire Boulevard and indicated that she would have no reason to be on Flatbush Avenue because she lives in Canarsie. Again, her testimony conflicts with petitioner’s documentary evidence, inasmuch as the arrest report notes the place of arrest as “front of 57 Empire Boulevard” (Pet. Ex. 1).
Respondent testified that she supports her two children, one of whom has developmental delays that require weekly therapy. She uses her car to transport her child to these visits. She explained that she also uses her car to get to her job on Court Street. She usually parks her car in the area where she was arrested because there is no parking in downtown Brooklyn, and she catches public transportation the rest of the way. Besides her work as a security officer, respondent also does “inventory work” for Macy’s and Target. As a result of this case, her license was suspended, but she has since been issued a conditional license. Though respondent referenced documentary evidence she brought with her, she did not present any of it to the tribunal. She acknowledged a prior arrest for interfering with the arrest of her brother who, she said, was being beaten by police. She said she served a day of community service and the case was dismissed. She has never been convicted of a crime (Pet. Ex. 4).
Aside from respondent’s testimony, I found no reason to question the detailed factual account provided by petitioner’s documents and find them sufficiently reliable to provide prima facie proof of petitioner’s case. Respondent’s alternative version of events must be considered, however, and assessed for its credibility to determine whether it overcomes the documentary evidence that constitutes the Department’s case. One salient factor in assessing respondent's testimony is her considerable interest in denying the facts of the underlying crime both to avoid a criminal penalty and also to secure the return of her car. Aside from the obvious motivation to disavow responsibility for her arrest, I had great difficulty crediting respondent’s testimony because of her admitted, significant intoxication that night -- almost three times the legal limit. I believed it unlikely that she was capable of providing any reliable or credible recollection of events that occurred while she was intoxicated to such a degree. See Police Dep’t v. Melendez, OATH Index No. 1520/06, mem. dec. at 4 (Apr. 5, 2006). In addition, none of respondent’s claims were independently corroborated in the record. While petitioner’s case consisted entirely of documents that are hearsay in nature, I found it to be more reliable and more credible than respondent’s testimony. Accordingly, I find petitioner’s proof to be sufficient to establish the first and second prongs of the test set forth in the Krimstock Order -- probable cause for respondent’s arrest and the Department’s likelihood of success in the civil forfeiture action.
As to the third element, the necessity to retain the vehicle pending the forfeiture action, we have held that where the return of the vehicle to the respondent would pose a heightened risk to the public safety, such risk satisfies this element. See Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86; Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. (Feb. 24, 2004). Petitioner asserts that respondent’s high blood alcohol content proves that she poses a heightened risk to the public.
In certain cases, a heightened risk has been evidenced by the history of the driver of the seized vehicle. E.g., Police Dep’t v. O’Berry, OATH Index No. 1474/04, mem. dec. (Mar. 15, 2004) (heightened risk demonstrated by the severity of the accident that led to respondent’s DWI arrest); Police Dep’t v. Benkovich, OATH Index No. 1296/04, mem. dec. (Mar. 9, 2004) (arrest was respondent’s second DWI). Such risk has also been proven by a significant blood alcohol content. See Melendez,OATH 1520/06, mem. dec. at 4 (blood alcohol content of .182%, more than twice the legal limit of .08); Police Dep’t v. Cevallos, OATH Index No. 552/06, mem. dec. at 7 (Oct. 24, 2005) (blood alcohol level of .220%); Police Dep’t v. Serrano, OATH Index 499/06, mem. dec. at 5 (Sept. 22, 2005) (blood alcohol levels of .207% and .239%). To be sure, respondent’s blood alcohol levels of .233% and .279%, among the highest levels found in this tribunal’s reported cases, evidence “a complete disregard” for her safety and the safety of the public. See Serrano, OATH 499/06, at 5. Her recklessness and evident lack of judgment cause me to shudder to think that she also drives her children.
Although respondent communicated her need for her vehicle to conduct her familial responsibilities, her hardship is not a factor for consideration here. See Serrano, OATH 499/06, at 5; Police Dep’t v. Busgit, OATH Index No. 1616/05, mem. dec. at 6 (Apr. 4, 2005).
Accordingly, I find that here, where respondent was found operating her vehicle with a blood alcohol content of .279%, the Department has demonstrated a heightened risk to the public safety of releasing the vehicle to her pending the civil forfeiture action.
ORDER
The Department is entitled to retain the vehicle pending the forfeiture action.
Tynia D. Richard
Administrative Law Judge
July 24, 2007
APPEARANCES:
TANISHA WILLIAMS
Representative for Petitioner
LATOYA HAMILTON, pro se