By Steven L. Kessler | Article Posted 9/20/99
On February 22, 1999, New York City Mayor Rudolph Giuliani and Police Commissioner Howard Saphir instituted a new initiative to forfeit the vehicles of motorists arrested for driving while intoxicated. Under the initiative, the City is utilizing Administrative Code §14-140, a dusty, 50+ year old section of the City code, to punish even first-time offenders and those arrested, but not convicted, of a crime.
Nassau and Suffolk counties on Long Island announced similar programs. However, the three initiatives differ in ways that may affect the success of the inevitable statutory and constitutional challenges against them. Because the City is proceeding under a local ordinance and not a State law, Nassau and Suffolk counties must use different statutes to support their programs. As of this writing, neither the City initiative nor the particulars of the programs in Nassau and Suffolk counties have been officially made available to the public. Accordingly, putting aside the issue of whether a municipality can seize and forfeit an individual’s property without providing even basic notice of the statutory provisions or legal authority for its actions, our information regarding the respective provisions and executive orders is based exclusively upon statements by the Mayor and Police Commissioner in New York City, and media reports.
Based upon press reports, the forfeitures in Nassau and Suffolk counties apparently will be limited to cars of drivers who have been convicted of drunken driving. If the driver is acquitted of the underlying charges, his vehicle will be returned immediately. A vehicle seized from a drunken driver who does not own it, the vehicle will be returned to its owner if the arrested driver does not have primary use of the car. However, if the driver is convicted and is the sole driver of the car, and the car is titled in another’s name, the car will be forfeited. In contrast, Mayor Giuliani has stated that he will seek the forfeiture of the vehicles in civil court, under the lowest civil standard, even if the driver has been cleared of criminal charges and irrespective of who owns the car.
According to the Corporation Counsel, if a driver’s blood alcohol level is above .1 percent, he or she will be charged with driving while intoxicated, a class A misdemeanor that, under New York State’s criminal codes, carries a maximum $1,000 fine, six-month license suspension and possibly one year in jail. Drivers whose blood alcohol registers between .05 percent and .09 percent may be charged with driving while impaired, a traffic infraction (not a crime) carrying penalties for a first-time offender of up to 15 days in jail, a 90-day license suspension and a fine of $300.00.
Under the City’s program, drivers charged at the scene with DWI will “automatically lose their cars” through civil forfeiture; those charged with driving while impaired will not have their vehicles forfeited. Ironically, however, drivers whose DWI charges are pleaded down to driving while impaired or those charged with DWI but convicted of driving while impaired will face forfeiture proceedings by the City. In short, people convicted of the same crime face vastly different punishments.
In response to this dichotomy, Daniel S. Connolly, special counsel to the City’s Corporation Counsel, told the New York Daily News: “It’s the same disposition, but it’s a very different crime. Prosecutors create a fiction for the purpose of having a plea bargain.” Daily News, 2/28/99, a p. 6. Using the same logic, it will be interesting to hear the City justify taking the car of someone acquitted of a crime.
Apropos of this is the fact that when determining the punishments for DWI, the state legislature saw fit not to impose the additional punishment of forfeiture. See Vehicle & Traffic Law §1192 (2), (3). Now, by executive order, the mayor of one of the municipalities within the State has chosen to bypass even his own city council and add his own form of punishment for the violation of a state law. As the Court of Appeals held in People v. Letterlough, 86 N.Y.2d 259, 267 (1995), “Under this State’s jurisprudence, the creation of punishment for crimes rests within the realm of the legislature. A sentencing court simply cannot impose forms of punishment not authorized by statute for a particular crime.” (citation omitted). See also People v. McNair, 87 N.Y.2d 772 (1996) (it is beyond the authority of the courts to impose a sentence not prescribed by the Legislature).
New York State has some 17 different statutory forfeiture provisions on the books. CPLR Article 13-A, for example, authorizes, among other things, the forfeiture of vehicles of drunken drivers who are convicted of the felony of DWI. Although drafted to target the profits of criminals, Article 13-A has been used by prosecutors throughout the state to forfeit “DWI cars”. In fact, I believe I was the first prosecutor in New York City to use Article 13-A for such a purpose in 1985 when I was young, naive and an Assistant District Attorney serving the people of Bronx County under Mario Merola.
Not satisfied with the requirement of a felony or other elements necessary for a forfeiture under Article 13-A, the Giuliani administration has chosen as the foundation of its new DWI crackdown the only provision that has been successfully challenged under the Constitution. In 1972, in McClendon v. Rosetti, 460 F.2d 111 (2d Cir. 1972), the United States Court of Appeals for the Second Circuit struck down this very provision of the Administrative Code. It found the statute “unconstitutional as applied to persons from whose possession money or property, other than contraband, has been taken or obtained, though such money or property was not related to any criminal proceeding, or, if it was so related, such criminal proceedings had been terminated, or if the money or property had been needed as evidence in a criminal proceeding, it was no longer needed for that purpose, as violative of the due process clauses of the fifth and fourteenth amendments.” The Court remanded to the district court, with instructions “to permit intervention and to establish an appropriate class, for a determination of the respective rights of the parties in accordance herewith and for the purposes of formulating any necessary injunctive relief to avoid further perpetuation of the practices and procedures hereby declared unconstitutional.” 460 F.2d at 116. Interestingly, although the court was correct in believing that the Code provision was obviously unconstitutional, it did not explain why it was unconstitutional other than remarking on its failure to include a meaningful requirement of notice. The case was remanded to the district court to determine the rights of the class and to fashion appropriate injunctive relief.
On remand, Judge Morris E. Lasker, in an unpublished consent order, established a basic procedure consistent with Due Process. Those procedures, when properly utilized by the police, have been upheld by the courts. Yet, Judge Lasker did not rewrite the statute. Indeed, to date, the legislature has not seen fit to rewrite this antiquated and confusing statute to satisfy basic constitutional requirements. The Code is silent as to who has the burden of proof in these proceedings, what standard must be satisfied or whether there is a right to a jury trial. Notice, the ability to know the procedures and one’s rights and responsibilities, is clearly lacking from the statute, because the procedures used under the Code are court ordered, not legislated. The only way to know of the correct procedures under the statute would be to inadvertently stumbled upon the unpublished 25-year-old order of Judge Lasker or its slightly revised 1994 version.
The City has yet to officially issue guidelines outlining the procedures and formalities of the program. Indeed, those following the story in the newspapers would find themselves reading different sets of rules each day. This alone may violate the notice prong of Due Process. Notably, however, the lack of procedures has not stopped the police from seizing at least 23 vehicles in the first week of the new program, five on the first night.
In any event, the City is attempting to use federal procedures under a municipal code. This cannot be done. Every forfeiture action commenced by the City under Administrative Code §14-140 was in personam, against the individual. Indeed, all of New York State’s major forfeiture statutes are crafted accordingly. The sponsors of CPLR Article 13-A took pains in making the powerful State forfeiture law not like the federal in rem statutes by building into it important protections that are ordinarily available only in criminal, in personam actions. See discussion of legislative history of Article 13-A in New York Criminal and Civil Forfeitures (Gould 1999), ch. 4, and in Kessler, Quo Vadis? Assessing New York’s Civil Forfeiture Law, 4 Touro L. Rev. 253 (Spring 1988). Therefore, the City is taking a statute that authorizes only in personam actions and justifying its use as a federal in rem forfeiture statute. True, the courts have upheld forfeitures in the absence of a criminal conviction, but only when (1) it is an in rem action, which utilizes the legal fiction of the property as the “guilty” party or (2) the statute provides for a forfeiture action (i.e., a “pre-conviction” action under Article 13-A, see CPLR 1311(1)(b)) in which the government must prove the elements of a crime by the highest civil standard available, i.e., clear and convincing evidence. No such procedures and protections exist under the Administrative Code.
Also problematic is that the vehicles are being confiscated prior to any judicial hearing or finding of guilt. Even on the federal level, “individuals must receive notice and an opportunity to be heard before the Government deprives them of their property.” United States v. James Daniel Good Real Property, 510 U.S. 43, 48 (1993). Indeed, no pre-hearing seizure can take place without the issuance of a warrant. And Article 13-A requires the District Attorney to move for a hearing within five days of the seizure of the property, a factor which was critical to the Court of Appeals in upholding the constitutionality of the statute. See Morgenthau v. Citisource, Inc., 68 N.Y.2d 211, 222 (1986) (“Although the provisional remedy of the attachment [could] initially be granted ex parte, a motion to confirm the attachment [had to] be made, on notice within five days of the levy”).
However, under the Code, there are no provisions for a hearing. Left un answered are such issues as if and when there will be a hearing before an impartial judge. Does the driver have to wait until the conclusion of the criminal case before having his day in court? That could be months, even years. Will there be “bail” set for the car? Is there a right to a jury trial? What is the scope of the property subject to forfeiture? If a motorist is ultimately acquitted, who pays for his loss of wages, car rental fees? Will he be charged storage fees? Will the motorist have to sue the city to recover the financial loss? Will he be allowed to? Despite the City’s failure to address these and other important issues, the program is proceeding “according to plan”. It is part of the “learn as you go” procedures for the police, and for the public. The public is being asked to take the word of its public officials on how the law will be implemented. And although “learn as you go” may be acceptable for nursery school children, it flies in the face of the basic tenets of the Constitution.
Another issue relates to the fear of discriminatory application of the law by law enforcement authorities. Which cars will be pulled over? Which will be confiscated and forfeited? What factors will go into the arresting officer’s decision? The make and model of the car? The 1969 Chevy or the 1999 Jaguar? Will these decisions depend upon how much cash the sale of the car will generate at auction? Or will they depend on what type of car the officer dreams about for his next “undercover” operation? Will the police now treat people differently depending upon the type of car they drive? What happens if the car does not belong to the driver? Will it be forfeited? What if it is registered to the driver’s spouse? The Mayor has insisted that the police will not forfeit cars belonging to anyone other than the drunken driver. But does this not directly contradict the fundamental theory underlying a federal in rem forfeiture action, namely, that the property is “guilty” and, therefore, forfeitable, regardless of the guilt of its owner? This is selective prosecution from either perspective and is unconstitutional.
This process is complicated even more by what has been described as the “incentive issue”. The proceeds from the sale of the car do not go back to the car’s owner. Instead, they go directly into the police pension fund, or what is euphemistically called the “widows and orphans fund.” Losing your property is one thing. But it becomes even more horrific when those who take and sell your car keep the money for their own pension plans or funds! This is a conflict of interest. As Justice Ira Gammerman remarked in Property Clerk, New York City Police Department v. Hurd, 130 Misc. 2d 358, 364, 496 N.Y.S.2d 197, 201 (Sup. Ct. N.Y. Co. 1985), the fact that “the police can seize property, which is then given into the custody of the property clerk and which, if unclaimed, inures to the benefit of the police by being placed in the police pension fund suggests at least the appearance of impropriety.”
A logical extension of this problem is the Eighth Amendment issue of excessiveness. Since the car is being forfeited as an instrumentality of a crime, the Excessive Fines Clause of the Eighth Amendment is triggered. What is the value of the crime of DWI? Unlike a kilo of heroin, it is difficult, if not impossible, to place a value on the crime of DWI. As such, what factors should a court consider when determining whether the forfeiture of the vehicle is excessive vis-a-vis the crime of DWI? Will it ultimately turn on the book value of the car being forfeited? Is it fair that one driver loses a brand new Jaguar valued at more than $75,000, while another loses an old, beat up Ford wagon worth $500? Or will it turn on the subjective value of the car, i.e., the driver’s means of getting to work, or working at all, whether he has another car at home, or the vehicle’s importance to his family? The punishment must be proportionate to the seriousness of the crime. Using these factors, it would appear that, in most circumstances, the punishment could be very disparate and arbitrary. The City’s interests favoring forfeiture would fair poorly when confronted with the valuation issues and the “cost and value” of the car to the driver and his family, especially in the absence of any “hardship” exception similar to that available under the Vehicle and Traffic Law.
Also of constitutional interest is whether the new punishment for drunken drivers will withstand a challenge under the Double Jeopardy Clause of the Fifth Amendment. The United States Supreme Court, in United States v. Ursery, 518 U.S. 267 (1996), and Hudson v. United States, 522 U.S. 93 (1997), has upheld federal forfeitures against Fifth Amendment challenges. However, those cases relate to in rem forfeiture proceedings, and the Court applied in part the legal fiction of the property’s “guilt” to uphold the forfeitures. Here, actions under the Administrative Code are in personam, against the culpable individual. And according to the initiative’s “executive history,” if that is what it is called, the Guilianni administration has made it undeniably clear that the intent of this new initiative is to punish the driver. With the new program unquestionably punitive in nature, see Austin v. United States, 509 U.S. 602 (1993); Attorney-General v. One Green 1993 Four Door Chrysler, 217 A.D.2d 342, 636 N.Y.S.2d 868 (3d Dept.) (pursuant to Austin, civil forfeitures are subject to both federal and state constitutional prohibitions against excessive fines), appeal dismissed, leave to appeal denied, 88 N.Y.2d 841, 644 N.Y.S.2d 682 (1996); Compare United States v. Bajakajian, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (Court struck down forfeiture as excessive fine under the Eighth Amendment), and with the forfeiture directed against the same individual who is being charged with a crime, there is every reason to believe that an appellate court may remove itself from the Hudson and Ursery rationale and find the program in violation of the Fifth Amendment.
The forfeiture also may be discriminatory and constitute unequal protection under the Constitution. This is especially so because it appears that the procedures under the program grant an inordinate amount of discretion to the police in their actions. Cars may be forfeited based merely upon the arresting officer’s subjective evaluation of a motorist’s physical appearance, an evaluation which, in many circumstances, is wrong.
Which leads to one of the more basic problems resulting from the extraordinarily subjective, and harsh, nature of this program. Pavel Grinberg, the first person whose car was seized under this new policy, blew a .11 percent on the Breathalyzer test. As Breathalyzer experts have said, and as even police sources concede, these tests have a plus or minus .02 percent margin of error. If the test were performed properly, the result may be a .13 percent or a .09 percent. Thus, based solely upon the results of his Breathalyzer test, Mr. Grinberg’s statement that he was not legally intoxicated at the time of his arrest may be true! However, applying the Code to those charged with DWI and not to those charged with driving while impaired, Mr. Grinberg’s car will be forfeited although the police admit that he may not be guilty of DWI. This is a problem. Also, who will determine whether the driver falls within the definition of impaired rather than intoxicated? Will it be solely within the discretion of the arresting police officer? Such a result would be unacceptable.
Another remarkable aspect of this initiative is that, at least according to City officials, the onus is upon the claimant, not the police, to excuse or show the inaccuracy of the Breathalyzer reading. “Say a person comes forward with evidence to show that he is taking a prescription medication that has been proven to produce false, high readings,” Connolly told the News. “That could make a difference.” Aside from the dangerous and confusing nature of this comment, what is most remarkable is the City’s position that such evidence could make a difference. Don’t they mean that it would make a difference?
One side effect of the new policy is that people who would have readily taken pleas in the past may now opt for a trial rather than accept a plea bargain if they believe they have a better chance of keeping their cars. This could flood already crowded dockets of the courts within the five boroughs.
The Mayor has compared this initiative to taking property from drug kingpins. To say that this comparison fails would be an understatement. Using or selling heroin is illegal. Period. Heroin is contraband. One cannot legally use or sell just a little heroin. Alcohol, on the other hand, is legal. It can be sold and used by most people without punishment. Driving is also legal. In fact, driving after having a beer or a glass of wine is also legal. It is only when you consume more than three drinks within a two hour period and proceed to drive that the law steps in to make your actions illegal. It is no wonder, then, why the Mayor’s comparison of DWI to drug use has offended so many law abiding people.
Looking at all of these factors as a package, it is clear why the public as a whole has reacted with outrage over the initiative. If a motorist drinks a couple of glasses of wine with dinner and, while driving home in his own car, is stopped by the police, although he has no prior record, he will lose his car regardless of the outcome of her criminal trial. No hardship exception, no “use for work” exception, no “first time offense” exception. The car is history.
The first challenge to the statute was rejected on May 20, 1999, when Justice Michael D. Stallman upheld the application of the new initiative in Grinberg v. Safir, __ Misc.2d __, 1999 N.Y. Slip. Op. 99317, 1999 WL 455763 (Sup. Ct. N.Y. Co. May 18, 1999) (Stallman, J.). The court found that the vehicle did not have to be contraband or evidence in a criminal action to be forfeitable. Nor did the forfeiture policy act as an impermissible additional DWI sentence. Analogizing almost exclusively to federal, rather than state, forfeiture law, the court found the forfeiture to be civil, not criminal, in nature, and rejected Petitioner’s argument that the policy violated due process because it permits police to take and retain the vehicle without either a pre-seizure or post-seizure hearing while the criminal action is pending. Although rejecting the argument as applied to the instant facts, the court left open the claim that the forfeited value of the vehicle, when compared to the crime of DWI, may violate the Excessive Fine Clause of the Eighth Amendment. Only some of the issues raised in this article were presented before the court in Grinberg, which is currently on appeal. And, in addition to those addressed here, there are scores of other questions relating to the statute and its implementation. While the Mayor should be applauded for his admirable goal, his initiative is laden with legal and practical faults which require discussion and, ultimately, resolution. The first challenges to the initiative are underway. They will be followed closely, as will those in other cities and municipalities nationwide.
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Steven L. Kessler is a member of the Board of Directors of the NYSACDL, Co-Chair of the Association’s Forfeiture Law committee and a member of the Forfeiture Abuse Task Force of the NACDL. A practicing attorney in Manhattan, Kessler is the author of Civil and Criminal Forfeiture: Federal and State Practice (West Group 1993 & Supp. 1998) and New York Criminal and Civil Forfeitures (Gould 1999). He is of counsel to the Petitioner in Grinberg v. Safir et al.