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Defendant Man cites a case

The Defendant Man was arrested for driving while intoxicated (DWI). He submitted to a breathalyzer test which determined his blood alcohol level to be .147%. Prior thereto, the Defendant Man was convicted of driving while intoxicated (DWI) in violation of Vehicle and Traffic Law. Based upon his arrest and prior conviction, his vehicle was seized pursuant to the County Code. The Defendant Man subsequently was charged by way of a felony complaint with driving while intoxicated (DWI) and he pled guilty to operating a motor vehicle while under the influence of alcohol as a felony.

The County Code provides that any property which constitutes the proceeds of an offense, the substituted proceeds of an offense or an instrumentality of an offense shall be seized by any peace officer, acting pursuant to his or her special duties, or police officer may upon probable cause to believe that an offense, as defined in this article, has been committed, and may be forfeited as hereinafter provided.

The seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days of the seizure. Such notification shall inform the recipient that there will be a hearing promptly scheduled before a neutral Magistrate to determine whether probable cause existed for the defendant’s warrantless arrest, whether the County is likely to succeed on the merits of the forfeiture action, whether retention is necessary to preserve the vehicle from destruction or sale during the pendency of the forfeiture proceeding, and whether any other measures would better protect the County’s interest during the proceeding.

The Defendant Man was notified to appear for a post seizure hearing. At his request the hearing was re-scheduled. On such date he appeared with counsel and after the hearing the proffered evidence, the Administrative Hearing Officer determine that the County was entitled to retain possession of the vehicle for DUI.

Pursuant to the foregoing undisputed facts, the Complainant Woman has moved for summary judgment. A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. Of course, summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue, but once a prima facie showing has been made, the burden shifts to the criminal party opposing the motion to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action.

Pursuant to the foregoing undisputed facts, the Complainant Woman has met its prima facie burden of establishing its entitlement to a judgment as a matter of law within the parameters set forth in the County Code and the Defendant Man has failed to raise any issues of fact which would warrant the denial of such relief. However, by way of cross motion, the Defendant Man seeks dismissal of the Complainant Woman’s complaint on various grounds including that he was denied due process and that chapter 270 of the County Code is unconstitutional.

In support of the instant cross motion, the Defendant Man cites a case wherein the Court of Appeals found the Nassau County civil forfeiture law unconstitutional for failing to meet the due process requirement for a prompt, post seizure retention hearing before a neutral magistrate after giving adequate notice to all Defendants whose cars had been seized for possible forfeiture. The Nassau County statute did not mandate a hearing but made it available to those who requested it. The subject section of the County Code was amended and enacted providing that the seizing agency shall send notification of the seizure to all titled owners, registrants on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested within five business days of the seizure. It is without dispute that the County provided the notification in a timely manner, afforded the criminal defendant a post seizure hearing and as such, met the due process requirements.

The Defendant Man also submits, in support of the subject cross motion, that the procedure in appointing Judicial Hearing Officers to preside over the post-seizure hearings is in violation of the laws of the State. However, it has consistently been held that the granting of adjudicatory powers in an administrative agency does not encroach upon judicial power and does not otherwise violate the state constitution. Furthermore state constitution specifically provides that nothing in the state constitution shall be construed to preclude a party with a legal interest in the seized property from commencing an action or proceeding in a court of competent jurisdiction for its return. Based upon the foregoing, the Defendant’s cross motion for dismissal on such grounds is also denied.

Finally the Defendant seeks dismissal alleging that Chapter 270 of the County Code is unconstitutional because it violates the excessive fines clauses of both the State and Federal Constitutions. In a related case, the Court of Appeals addressed this issue when the Defendant therein contented that the forfeiture of her car as a result of a DWI conviction was excessive. Inasmuch as a punitive forfeiture of an instrumentality of a crime violates the Excessive Fines Clause if it is grossly disproportional to the gravity of the Defendant’s offense, the Court reject the Defendant’s claim that the forfeiture of her car constituted an excessive fine. In determining gross dis-proportionality, the Court consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which the Defendant could have been subject for the crimes charged and the economic circumstances of the Defendant. On the facts of the case, the Court concludes that the forfeiture of the Defendant’s car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged — driving while intoxicated (DWI) — is a very serious crime. Grievous harm to innocent victims could have been caused by the Defendant’s driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such crime could ever be excessive.

It is apparent that the facts of the matter at bar are clearly similar to the underlying facts of a related case and as such would require the same holding; that is, that the fine of forfeiture is not excessive and a violation of the State and Federal Constitutions as the Defendant asserts. Accordingly, his cross motion to dismiss on such ground is also denied. DWAI was an issue.

The Court notes that the lien holder of the subject vehicle, the Car Company Financial Services of America partially opposed the Complainant’s motion for summary judgment objecting to the County’s assertion that it is liable for any storage fees accumulated from the date of seizure prior to the vehicle being released to it. It is well settled that the Car Company does not, at this time, have a possessory right to the subject vehicle and a such, to obtain its release, it must comply with the requirement that all storage fees must be paid as set forth in the County Code.

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