Police Dep t v. Vertus OATH Index No. 912/09, mem. dec. (Sept. 17, 2008)

Police Dep t v. Vertus OATH Index No. 912/09, mem. dec. (Sept. 17, 2008) Petitioner is entitled to retain vehicle as the instrumentality of a crime pending outcome of a civil forfeiture action. NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of POLICE DEPARTMENT Petitioner -against- JANNUEL VERTUS Respondent MEMORANDUM DECISION ALESSANDRA F. ZORGNIOTTI, Administrative Law Judge Petitioner 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 is the vehicle s owner and was driving it at the time of the seizure. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) ( 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). Respondent s vehicle, a 1994 Jeep (Voucher B 196403V), was seized on August 16, 2008, in connection with his arrest for driving while intoxicated (Pet. Ex. 5). Following receipt of respondent s demand for a hearing on September 4, 2008, a hearing was scheduled for September 16, 2008 (Pet. Ex. 2). For the reasons below, I conclude that petitioner is entitled to retain the vehicle pending the outcome of a civil forfeiture action. PRELIMINARY ISSUE Respondent moved to dismiss the proceeding on the ground that petitioner failed to serve him with a notice of his right to a hearing as required by the Krimstock Order. This claim lacks

- 2 - merit because, on the morning of his arrest, respondent received actual notice of his right to a hearing. The Krimstock Order mandates that the Department must, at the time a vehicle is seized, give the driver notice of the right to a retention hearing and a copy of that notice must be sent to the vehicle s owner within five business days. Krimstock Order, 4. Failure to comply with this notice requirement may result in dismissal of the proceeding and immediate return of the vehicle. See, e.g., Police Dep t v. House, OATH Index No. 587/07, mem. dec. at 3-4 (Sept. 27, 2006) (dismissal granted where respondent credibly maintained that she did not receive notice at the time of her arrest and did not receive timely notification by mail). In limited situations, proof of timely actual notice may excuse the Department s failure to comply with the Krimstock Order. See Police Dep t v. Murray, OATH Index No. 1631/06, mem. dec. at 4 (Apr. 25, 2006) ( actual notice in certain circumstances is sufficient to cure deficient compliance with the notice requirements of the Krimstock Order. ); see also Police Dep t v. Alexis, OATH Index No. 759/09, mem. dec. (Sept. 15, 2008); Police Dep t v. Melendez, OATH Index No. 1520/06, mem. dec. (Apr. 5, 2006); Police Dep t v. Cardona, OATH Index No. 1476/06, mem. dec. (Mar. 29, 2006). Petitioner produced a vehicle seizure form indicating that a police officer advised respondent of his right to a retention hearing at the time the vehicle was seized pursuant to his arrest and that respondent signed an acknowledgement of that notice in the box for the serving officer s signature (Pet. Ex. 1). At the hearing, respondent admitted that the signature on the form was his but claimed that he first learned of his right to a hearing later from his attorney. Petitioner did not provide proof concerning the mailed notice and respondent denied receiving a notice in the mail. Based upon this evidence, I conclude that the police provided respondent with timely actual notice of his right to a retention hearing. Respondent s assertion that he did not know that he had a right to a retention hearing prior to his attorney advising him was vague and selfserving. Compare Police Dep t v. Figueroa, OATH Index No. 391/08, mem. dec. at 3 (Oct. 2, 2007) (police report indicating that respondent received actual notice of right to a retention hearing credited over general denial), with Police Dep t v. Lee, OATH Index No. 778/08, mem. dec. at 5-6 (Oct. 31, 2007) (respondent s cogent and specific testimony regarding night of arrest deemed more credible than Department form).

- 3 - To the extent respondent is arguing that he did not understand the notice he was given, he acknowledged that he reads and understands English. The notice states in large bold letters NOTICE OF RIGHT TO A RETENTION HEARING and is followed by an explanation of the right to the hearing and how to apply for one (Pet. Ex. 1). This notice complies with paragraph 4 of the Krimstock Order. In light of the actual notice that he received on the morning of his arrest, petitioner s evidence is sufficient to establish that respondent had adequate notice of his right to a retention hearing. Thus, respondent s motion to dismiss is denied. ANALYSIS Petitioner seeks to retain the seized vehicle as the instrumentality of a crime pending the outcome of its civil forfeiture action. To prevail petitioner must prove 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 petitioner will prevail in its civil forfeiture action regarding 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 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 [Department] 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 (hearing is intended to test the validity, or at least the probable validity, of the underlying claim ) (citation omitted). The evidence established Krimstock s first two prongs. According to the arrest records and criminal complaint, on the morning of August 16, 2008, respondent was involved in a motor vehicle accident with three parked, unoccupied vehicles at different locations. Respondent left the scene of each accident and was arrested at 6:48 a.m. on Farragut Road and East 80 th Street. During the investigation, Officer Woods smelled the odor of alcohol on respondent s breath (Pet. Exs. 5, 6). At the scene, respondent advised Officer Woods, I was driving, breaks is [sic] not working. (Resp. Ex. A). Respondent was administered a field test which indicated that his blood alcohol content was.122% (Pet. Ex. 6; Resp. Ex. C). At the 78 th Precinct respondent was administered a breathalyzer test and his blood alcohol content was.172% (Pet. Ex. 6; Resp. Ex.

- 4 - C). At 7:41 a.m. respondent admitted to Officer Woods to drinking 2 cups of Hennessey at 2:00 at a club. (Resp. Ex. A). According to the Property Voucher, the vehicle had a damaged front bumper, a broken axle, a flat tire on the driver s side, missing headlights, and other damages due to a motor vehicle accident (Pet. Ex. 4). Respondent was charged with criminal mischief, Penal Law section 145.00(3), reckless driving, Vehicle and Traffic Law section 1212, operating a motor vehicle while intoxicated, Vehicle and Traffic Law sections 1192(2) & (3), and driving while impaired, Vehicle and Traffic Law section 1192(1) (Pet. Exs. 5 & 7). Respondent s criminal case is pending. Although respondent testified, he declined to answer any questions regarding the stop and arrest. Under the circumstances, the unrebutted evidence showed that the officer had a lawful basis to stop respondent and that he had been driving while intoxicated. See, e.g., Alexis, OATH 759/09; Police Dep t v. Shim, OATH Index No. 145/06, mem. dec. at 3-4 (Aug. 5, 2005); Police Dep t v. Chirico, OATH Index No. 2205/05, mem. dec. at 3 (June 28, 2005). Petitioner has also demonstrated that it is necessary to retain the vehicle under the third prong of Krimstock. This prong may be satisfied by a showing that return of the vehicle would pose a heightened risk to the public safety. See Canavan, 1 N.Y.3d at 144, 770 N.Y.S.2d at 285-86. A heightened risk can be demonstrated by the driver s history or the circumstances of the crime. Police Dep t v. Figueroa, OATH Index No. 1525/08, mem. dec. at 7 (Feb. 15, 2008); see also Police Dep t v. Olberding, OATH Index No. 283/05, mem. dec. (Aug. 9, 2004) (vehicle retained where respondent passed through four red lights, was uncooperative during arrest, engaged in altercation with police, and had four prior convictions for driving while intoxicated). While an arrest for driving while intoxicated, without more, does not prove a heightened risk to public safety, Police Dep t v. Janjic, OATH Index No. 1931/07, mem. dec. at 3 (May 29, 2007), we have found that a heightened risk can be based solely upon the severity of the level of intoxication. See Melendez, OATH 1520/06 (necessity to retain vehicle established where respondent s blood alcohol level was.182%, which is more than twice the legal limit ); Police Dep t v. Cevallos, OATH Index No. 552/06, mem. dec. at 7 (Oct. 24, 2005) (necessity to retain vehicle established where respondent s blood alcohol level was.22%); Police Dep t v. Serrano, OATH Index No. 499/06, mem. dec. at 5 (Sept. 22, 2005) (finding respondent s blood alcohol level of.207%, and.239% on retest, so high that it indicated recklessness). Furthermore, high blood alcohol levels coupled with other factors may be sufficient to establish heightened risk.

- 5 - See Figueroa, OATH 391/08 (recklessness shown where respondent with blood alcohol level of.173% ran a red light nearly causing an accident and had two prior arrests for possessing open containers of alcohol in public); Police Dep t v. Lester, OATH Index No. 1049/06, mem. dec. (Jan. 10, 2006) (respondent with blood alcohol level of.17% made an illegal turn nearly causing an accident and had been arrested just eight months before for drinking and driving deemed a heightened risk). Here, there are several factors which indicate that releasing the vehicle to respondent would pose a heightened risk to the public safety. First, respondent had a blood alcohol content of.172% which is more than twice the legal limit and which is similar to the blood alcohol levels in Figueroa and Lester. Respondent s argument that this tribunal should not rely on the breathalyzer test because the result was different from the field test is without merit. This tribunal has repeatedly relied on breathalyzer tests and when there are different readings in the field, it has relied on the breathalyzer over the field test, finding that the former is more reliable than the latter. Police Dep t v. Spigner, OATH Index No. 190/08, mem. dec. at 2 n.1 (July 24, 2007) citing People v. Reed, 5 Misc. 3d 1032A, 799 N.Y.S.2d 163 (Sup. Ct. Bronx Co. 2004). Second, respondent has a criminal record dating back to 1999, mostly for crimes relating to theft of property. While incidents unrelated to either alcohol or driving are generally not relevant, on December 4, 2004, respondent was arrested for operating a vehicle while impaired by drugs and was convicted on a plea on March 21, 2005, for driving while impaired with alcohol, Vehicle and Traffic Law section 1192(1) (Pet. Ex. 7). Respondent s second arrest for driving while impaired in less than four years demonstrates an inability to obey the law while using public roadways and is sufficient to establish a heightened risk. See Police Dep t v. Lord, OATH Index No. 942/08, mem. dec. (Dec. 6, 2007) (respondent s three drinking and driving related arrests in two and a half year period established heightened risk); Police Dep t v. Busgit, OATH Index No. 1616/05, mem. dec. (Apr. 4, 2005) (respondent s two DWI arrests established heightened risk); Lester, OATH 1049/06 (respondent s two DWI arrests and reckless driving on the occasion of the arrests established heightened risk); Police Dep t v. Benkovich, OATH Index No. 1296/04, mem. dec. (Mar. 9, 2004) (heightened risk established because respondent was a repeat offender). Third, the Department credibly established that respondent s arrest was related to his involvement in a motor vehicle accident. Respondent incorrectly argues that pursuant to Police

- 6 - Dep t v. Dambrosio, OATH Index No. 422/09, mem. dec. (Aug. 6, 2008), the vehicle should be released. In Dambrosio, the Department failed to establish a heightened risk to public safety where the respondent was arrested for driving while intoxicated following a minor traffic accident. However, in Dambrosio there were no other elements of risk such as a high alcohol level or prior related convictions which are present here. Moreover, unlike Dambrosio, respondent was involved in not one but three accidents and he left the scene of each one. This conduct further demonstrates that respondent has little or no regard for the property and safety of the public. Therefore, the Department has proven all elements of the Krimstock Order and is entitled to retain the vehicle pending the forfeiture action. ORDER The Department is entitled to retain the seized vehicle. September 17, 2008 APPEARANCES: RALPH LEONART, ESQ. Attorney for Petitioner THE LEGAL AID SOCIETY Attorneys for Respondent BY: BAHAR MIRHOSSEINI, ESQ. Alessandra F. Zorgniotti Administrative Law Judge