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V.T.L. § 1192

In a civil forfeiture action, the defendant appeals from a judgment of the Supreme Court, Nassau County, which, upon an order of the same court, searching the record and granting summary judgment in favor of the plaintiff, declared that the defendant had forfeited all right, title, and interest in a certain 1996 Mazda automobile.

A Nassau County Criminal attorney said that the defendant was arrested for misdemeanor driving while intoxicated (hereinafter DWI). Incident to the defendant’s arrest, her 1996 Mazda automobile was seized. The defendant pleaded guilty to the lesser charge of driving while ability impaired (hereinafter DWI) as proscribed by Vehicle and Traffic Law 1192(1), a traffic infraction. Thereafter, the plaintiff, County of Nassau, commenced this action for the forfeiture of the defendant’s car

It is well settled that automobiles operated by intoxicated drivers may be seized and sold pursuant to civil forfeiture laws. Pursuant to section 8-7.0(g) of the Nassau County Administrative Code, “instrumentalities of a crime” seized incident to arrest, are subject to civil forfeiture upon conviction of a misdemeanor, crime, or petty offense. Notwithstanding that Vehicle and Traffic Law 155 provides that traffic infractions are not crimes, Criminal Procedure Law 1.20(39) defines a petty offense to include traffic infractions. The defendant’s sole contention that, because a traffic infraction is not a crime pursuant to the Vehicle and Traffic Law, it cannot serve as a predicate for civil forfeiture, is a non sequitur.

There is no reason in law or logic that the Criminal Procedure Law definition of a petty offense, which includes traffic infractions, may not be applied to the otherwise undefined term “petty offense” within the Nassau County Administrative Code.

That the defendant considers the forfeiture of her car to be excessive punishment for a DWAI conviction is apparent. However, the defendant has expressly eschewed any constitutional challenges to the Administrative Code and thus we express no opinion as to constitutional issues implicated by this appeal.

Accordingly, the Supreme Court properly awarded summary judgment to the plaintiff on its civil forfeiture action.

In another criminal case, the defendant has been accused of committing this act within the parking lot of a Restaurant in Lynbrook, New York.

The defendant’s motion is founded upon the contention that he was not operating the vehicle upon a “public highway” or upon “public property” and that § 1192 is therefore inapplicable. A review of subdivision 7 of § 1192, an addition to the statute that became effective September 1, 1982, reveals that defendant’s argument is erroneous.

Clearly, the parking lot of the Restaurant falls within the parameters of subd. 7 and thus V.T.L. 1192 is applicable. The court further notes that under Title VII of the V.T.L., § 1100(a) recites that “the provisions of this title apply upon highways and upon private roads open to public motor vehicle traffic except where a different place is specifically referred to in a given section.”

Section 1192(7) does make a specific reference to its applicability to areas other than highways and private roads and therefore the restrictions contained in § 1100 are not a bar to this prosecution.

All of the cases cited by defense counsel in support of its position, except one, were decided prior to the effective date of V.T.L. 1192(7). Since the effective date of subd.7, it cannot be legitimately asserted that a DWI offense occurring within the confines of a parking lot is not punishable under V.T.L. § 1192.

The single case relied upon by the defense which involves an incident that transpired subsequent to the effective date of § 1192. In that instance the defendant had been charged with the unauthorized use of a motor vehicle. In contrast to the instant matter, the latter crime, by definition, can only occur upon a “public highway.”

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