-1-

Police Dep't v. Lester

OATH Index No. 1049/06, mem. dec. (Jan. 10, 2006)

Petitioner is entitled to retain respondent’s vehicle pending outcome of civil forfeiture proceeding. Vehicle should be retained.

______

NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

POLICE DEPARTMENT

Petitioner

- against -

OTIS LESTER

Respondent

______

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 Otis Lester is the titled and registered owner of the vehicle, who was driving 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) (the "Krimstock Order"), as amended December 6, 2005. 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 Chevy Tahoe, property clerk voucher #B121776V, which was seized by the Department on December 1, 2005, in connection with respondent’s arrest for driving under the influence of alcohol. His demand for a hearing was received on December 19, 2005, and trial was scheduled for December 29, 2005. On respondent’s request, trial was adjourned to January 5, 2006, at which time he appeared 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 either to protect the public safety or to ensure its availability for a judgment of forfeiture. Krimstock Order, as amended December 6, 2005, 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 December 1, 2005, Mr. Lester was arrested for driving under the influence of alcohol, failing to yield during a left-hand turn, and possession of marijuana (Pet. Ex. 3). The complaint report states that, while operating the subject vehicle, respondent was observed making a left-hand turn while failing to signal his intentions and failing to yield the right of way, almost causing an accident (Pet. Ex. 2). When approached by officers, respondent had slurred speech, the strong odor of alcohol on his breath, and watery bloodshot eyes. Respondent also refused to submit to a breathalyzer test. Petitioner’s documents provided relatively specific accounts of why the officer stopped and arrested the respondent, and I found them sufficiently detailed and reliable to be considered probative. See Police Dep't v. Satyanand, OATH Index No. 570/05, mem. dec., at 3 (Nov. 23, 2004).

Respondent, who appeared pro se, denied the allegations. He admitted operating his vehicle but denied making an illegal left turn, stating that he made a right turn into the supermarket parking lot to get something to eat. His arrest occurred at 4:00 in the morning. He denied drinking that night but admitted that he refused the breathalyzer. He also denied that the marijuana found in the vehicle was his. He stated that he had been driving friends in his car, thus implying that it must have belonged to them. Respondent concluded that he needs his vehicle, which provides transportation for him, his wife and year-old son.

I did not find respondent’s denials of responsibility to overcome the Department’s evidence.

The Department established probable cause to arrest respondent for driving under the influence by the credible evidence of his reckless driving which caused the officers to stop him and his condition at the time of the officers’ observation (slurred speech, the strong odor of alcohol on his breath, and watery bloodshot eyes). This evidence also established the second prong, the likelihood of proving at the civil forfeiture proceeding that respondent used the vehicle as an instrumentality of a crime. The Department further seeks a negative inference regarding respondent’s refusal to submit to a blood alcohol test, and, even though I do not find it necessary to establish the second prong, I find such an inference to be appropriate here. SeePeople v. Gangale, 249 A.D.2d 413, 671 N.Y.S.2d 148 (2d Dep’t 1998); Police Dep't v. Shim,OATH Index No. 145/06, mem. dec. (Aug. 5, 2005).

Third, the Department must prove that retention is necessary to preserve the vehicle from loss, sale or destruction, or to protect the public from further drunk driving by the respondent. See Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86. We have held that this heightened risk to the public safety may be evidenced by the history of the driver of the seized vehicle. See Police Dep’t v. Benkovich, OATH Index No. 1296/04, mem. dec. (Mar. 9, 2004) (respondent’s arrest was his second DWI offense). A single incidence of drunk driving, without more, has been held to be insufficient evidence of the necessity to retain the vehicle. See Police Dep't v. McFarland, OATH Index No. 1124/04, mem. dec. (Feb. 24, 2004). However, two drunk driving arrests within a short period of time, even if not yet adjudicated convictions, may constitute sufficient evidence of a heightened risk to the public. SeePolice Dep't v. Satyanand, OATH No. 570/05, at 3.

Here, the Department contends that respondent presents a heightened risk to the public safety because this is his second drunk driving arrest in an eight-month period. Respondent did not deny the circumstances of the first arrest. Respondent’s prior arrest for driving while intoxicated occurred on April 15, 2005, and is presently pending adjudication (Pet. Ex. 6). According to the criminal court complaint in that case, respondent’s breathalyzer test registered .17, a result more than twice the .08 percent required to show per se intoxication under section 1192 (2) of the Vehicle and Traffic Law (Pet. Ex. 3A). Moreover, the fact that respondent ran a red light during that incident and made an illegal turn that almost caused an accident here, the Department alleges, demonstrates his tendency to engage in driving that is dangerous to the public.

I conclude that this evidence sufficiently establishes the necessity to retain the vehicle pending the outcome of the civil forfeiture action, in particular, respondent’s two DWI arrests in an eight-month period, his reckless driving on the occasion of his arrests, and the very high breathalyzer result on the first occasion. Though not as high as other cases adjudicated in this tribunal, respondent’s blood alcohol content was so high that it alone might have constituted an aggravating factor. See, e.g., Police Dep’t v. Serrano, OATH Index No. 499/06, mem. dec. at 5 (Sept. 22, 2005) (readings, .207% and .239% on the retest, were so high that they indicated a certain recklessness).

ORDER

The Department has satisfied its burden of proof under the Krimstock Order and is entitled to retain the vehicle pending the forfeiture action.

Tynia D. Richard

Administrative Law Judge

January 10, 2006

APPEARANCES:

ALDIAJANA SULJOVIC, ESQ.

Attorney for Petitioner

OTIS LESTER,pro se

Respondent