Cars Are Seized In Three Arrests Over Drinking , Ginger Thompson
New York Times, February 23, 1999

Kicking off a new crackdown on drunken driving in New York City, police officers seized the cars of three drivers late Sunday and yesterday -- including one from a Staten Island librarian with no prior arrests and another from a 57-year-old Queens man with a long record of driving while intoxicated.

The seizures came as Mayor Rudolph W. Giuliani hinted at how tough the crackdown might be, saying that even those ultimately acquitted of drunken driving in criminal court could still face the prospect of losing their cars through proceedings in civil courts.

"Let's say somebody is acquitted, and it's one of those acquittals in which the person was guilty, but there is just not quite enough evidence beyond a reasonable doubt," the Mayor said. "That might be a situation in which the car would still be forfeited."

Civil libertarians promised legal challenges to the new policy, which is considered among the strictest against drunken driving in the nation. But the first round of seizures suggested that the city would not shy away from confiscating the cars of drivers whose blood-alcohol level was at or above the legal limit and gave an early glimpse of what drivers in the city could expect.

In one case that was held up by prosecutors as a model of how the program could work, the police arrested and seized the car of Francisco Almonte of Corona, Queens, who had been arrested eight times for drunken driving and was on probation for his last conviction.

Mr. Almonte, 57, was involved in an accident on Sunday night, and was arrested at 6:15 P.M. after a Breathalyzer test indicated that his blood-alcohol level was 0.19, almost double the legal limit of 0.10 percent, prosecutors said.

Four hours later, in Brooklyn, the police arrested Pavel Grinberg, 28, of Staten Island on charges that he was driving while intoxicated after officers saw him swerving and following other cars at close range. A test showed his blood-alcohol level at 0.11, slightly above the legal limit, prosecutors said.

At his arraignment yesterday, a visibly shaken Mr. Grinberg pleaded not guilty to the charges against him. A Polish immigrant who works in a public library in Manhattan, he had never been arrested for drunken driving, and his lawyer, Anthony Chinquee, said the charges put Mr. Grinberg's job and immigration status at risk.

"He is terrified," Mr. Chinquee said of his client after the arraignment. "It's really overwhelming for him."

The last car seized, a 1984 Honda, belonged to another Queens man, Winston Rambharack, who was arrested at 4:05 A.M. yesterday. The police said that Mr. Rambharack, 26, was driving erratically along Sutphin Boulevard, and prosecutors said a Breathalyzer test showed his blood-alcohol level at 0.21, more than twice the legal limit.

The police said last night that after the first three seizures, they were not keeping a running tally of drivers arrested or cars seized. They said, however, that checkpoints were set up in all five boroughs last night, as they are most nights.

Despite questions about the severity of the crackdown, the Mayor was already finding some critical support for it.

Thomas S. Gulotta, the Nassau County Executive, said yesterday that he planned to authorize the police to seize the vehicles of drunken drivers and sell them if the driver was convicted.

"We will not permit innocent victims to continue to die at the hands of reckless and irresponsible drunk drivers," he said.

Tom Howarth of Mothers Against Drunk Driving expressed support for the effort, saying, "We encourage states to explore new ways like this to get drunk drivers off the road."

Although New York city officials had said that the policy would not go into effect until midnight Sunday, some officers received written orders through a department messaging system as early as 3 P.M. It was unclear yesterday why the orders were sent out so early and whether or not people arrested before midnight would challenge the timing of their arrest. Police set up one sobriety checkpoint from 10 P.M. to midnight on Sunday in the West Village, and questioned more than 200 drivers. But the officers made no arrests.

A 53-year-old Brooklyn man, Juan Valez, was arrested for drunken driving about 4 A.M. yesterday, but the car he was driving, a 1986 Cadillac, was not seized because it did not belong to him. The police said they also would not seize cars rented for short periods, but they would confiscate cars that were leased.

Civil liberties groups said litigation to challenge these seizures is "inevitable." Norman Siegel, executive director of the New York Civil Liberties Union, called the crackdown "excessive," and criticized the Mayor for instituting a policy that he said would pit police officers against New Yorkers just as the city was grappling with the death of Amadou Diallo, who was killed two weeks ago in a fusillade of police gunfire.

About 21 other states across the country have similar policies that allow the police to seize the cars of people suspected of drunken driving, and a study in California has shown that such procedures reduce recidivism rates.

But most other states do not confiscate cars until after at least two arrests for drunken driving. New York City's policy allows for no second chances.

"The police should not be in the business of acting as judge, jury and used car dealer," Mr. Siegel said, "which is what happens when they start seizing cars based on nothing more than suspicion."

Mayor Giuliani, however, seemed undeterred.

"Whatever side of this debate you are on, there is a very simple way to stay out of this problem," he said at a news conference yesterday. "Do not drink and get behind the wheel of a car."

Responding to questions about what would happen to the cars of people who were acquitted of drunken driving in criminal court, Mr. Giuliani said city officials could pursue the seizure in civil court.

He and Michael Hess, a lawyer for the city, likened the strategy to that used against O.J. Simpson after his acquittal in the killing of Nicole Brown Simpson and Ronald L. Goldman.

"The jury in the civil case obviously thought O.J. Simpson was responsible, and awarded $33 million to the Goldman family, even though O.J. had not been convicted criminally beyond a reasonable doubt," Mr. Hess said. "That's the kind of thing that could happen here."

Drive Drunk, Lose the Car? Principle Faces a Test , Alan Finder
New York Times, February 24, 1999

In ordering the police to seize the cars of motorists arrested for drunken driving, Mayor Rudolph W. Giuliani has invoked an ancient principle of American and British law that, while hotly contested by civil libertarians and anguished defendants, has generally been upheld by the Federal courts.

British royalty confiscated property from subjects who had failed to pay taxes or customs duties, and American authorities seized the cars and equipment of bootleggers during Prohibition. Forfeiture -- a taking by government of property used in the commission of a crime -- became a favorite tool of prosecutors in the early 1980's, who opened a double-barreled legal attack against drug smugglers: charging them with criminal violations while also seizing their assets in civil actions.

That is the model chosen by Mr. Giuliani, a former Federal prosecutor, in his aggressive new campaign against drunken driving in New York City. While state laws in New York and more than 20 other states permit the police to confiscate the cars of repeat offenders, Mr. Giuliani has upped the ante. He ordered officers to seize the cars of first-time offenders, and then said that even if a driver is ultimately acquitted of the criminal charge, the city might still pursue permanent confiscation of the car in civil court.

In raising that possibility, Mr. Giuliani was distinguishing between a criminal drunken driving case and a civil forfeiture case, which technically would be made against the car itself. Even if a person accused of drunken driving is acquitted in criminal court, where "proof beyond a reasonable doubt" is required, a prosecutor could still establish in civil court, where a less stringent "preponderance of the evidence" is required, that a car was used to commit a crime.

Although the United States Supreme Court has repeatedly upheld the broad principle of forfeiture during the last two decades, legal questions still surround Mr. Giuliani's new program, which went into effect last weekend. Can the city rely solely on its own Administrative Code to justify seizing the car of someone who had never before been accused of driving while intoxicated? Might the punishment -- seizing, say, a $50,000 car -- be deemed out of proportion with the offense? How would confiscation of a car affect plea bargaining in drunken driving cases?

"The idea of going at people through their property has a long history," said Daniel C. Richman, a professor at Fordham Law School. "The theories are quite old. The prevalence of the practice is comparatively recent. I think seizing cars on D.W.I.-related theories is state-of-the-art forfeiture law. It's the logical outgrowth of a long process."

Professor Richman and many other legal experts said that while most constitutional issues connected to forfeiture have been settled, there are several legal questions that the courts are likely to confront as drivers challenge Mr. Giuliani's strategy.

Just last year, the United States Supreme Court, for the first time, struck down an aspect of the Federal Government's use of forfeiture. The Court ruled that a seizure of property is unconstitutional if the amount seized is "grossly disproportional" to the gravity of the offense.

In a 5-to-4 ruling, the Court said that the Government had been wrong to seize $357,144 in cash that a Los Angeles family had had in its luggage on a flight to Cyprus, intending to settle a debt. While the money was not the result of a crime, the family had broken a Federal law that requires reporting all currency in excess of $10,000 being taken out of the country, making the money an instrument of a crime. But the majority determined that seizing such a large sum for such a relatively small violation was excessive and thus unconstitutional.

Similarly, a driver seeking to recover a car confiscated under New York's new initiative might argue that the punishment for the same crime, driving while intoxicated, could vary greatly, depending on the value of a car. Is it fair that one driver loses a car worth $45,000 and another loses one worth $700?

"The punishment can be very disparate, based upon the arbitrariness of what the vehicle is," said James B. Jacobs, a professor at the New York University School of Law, who said he generally favors tough sanctions against drunken drivers.

The city's effort undoubtedly will be challenged on statutory grounds as well. State law permits the seizing of property used in the commission of felonies. A repeat drunken-driving offense is considered a felony in New York State, but a first-time offense is usually charged as a misdemeanor.

Norman Siegel, executive director of the New York Civil Liberties Union, said he planned to challenge whether the city has the power to seize the cars of anyone accused of drunken driving for the first time. "There is a serious question whether the Giuliani administration has the authority to impose a new form of punishment that is not authorized by state law," Mr. Siegel said.

Mr. Siegel said he had agreed yesterday to help represent a driver whose car was confiscated on Sunday, Pavel Grinberg of Staten Island, who was accused of drunken driving for the first time.

But the Mayor and city lawyers are convinced that the forfeitures would be upheld. Under a provision of the city's Administrative Code enacted in 1943, the police are empowered to seek the forfeiture of property used in the commission of a crime. The city's provision predates the state law on forfeiture by 41 years, said Daniel S. Connolly, special counsel to Michael D. Hess, the city's Corporation Counsel.

"The city at this point is completely satisfied in acting under the Administrative Code provision, both for first- and second-time offenders," Mr. Connolly said.

As for Mr. Giuliani's threat to pursue forfeiture in civil court even after a driver has been acquitted of criminal charges, several law professors said Federal prosecutors often do that against narcotics traffickers. The standard of proof in criminal cases -- beyond a reasonable doubt -- is much higher than the standard in civil actions, which is a preponderance of the evidence.

"This is a hard equity question, but it's not a very hard legal question," Professor Richman of Fordham Law School said. "Legally, the administration is quite right on that point. Does it offend people's notion of fairness? Perhaps."

Forfeiting Property and More, Ira Glasser
New York Times, February 24, 1999

In "Through the Looking Glass," the White Queen announces a new legal doctrine: "Punish first and then get on with the trial." Mayor Rudolph Giuliani seems ready to emulate this logic. First he announced that New York City would seize the cars of people accused of drunk driving and return the cars if the people were acquitted. Then he decided he'd keep the cars of those acquitted as well.

"Let's say somebody is acquitted," the Mayor explained, "and it's one of those acquittals in which the person was guilty, but there is just not quite enough evidence." So now the Mayor gets to decide who is "really" guilty, never mind the evidence or a jury's unanimous decision. Do you feel safe?

But perhaps Mr. Giuliani has done us all a favor by raising the subject of civil asset forfeiture. Under a 1984 Federal law, Federal officials can seize property suspected of being used in a crime, without arresting anyone. Many states have similar laws.

By arresting property instead of people, the Government does an end-run around the Constitution. Since property has no rights, the argument goes, no notice is required, no prior hearing is required, and evidence beyond a reasonable doubt isn't required -- a neat trick.

But consider the consequences. A couple in Connecticut lost their home because Federal agents found drugs in their grandson's room. A landscaper who bought supplies from nurseries that demanded cash payments was seized when he paid for an airline ticket with a portion of the $9,600 he was carrying. Federal agents assumed he was a drug dealer, and though he had no police record and no involvement with drugs, they confiscated all his money.

In another case, a man with glaucoma who owned a 90-acre farm in Kentucky grew a few marijuana plants on the advice of his ophthalmologist, who was authorized by the Federal Government to test marijuana for the medical treatment of the disease. The ophthalmologist testified that it was the only medication that could help. The Government confiscated his farm anyway.

In other cases, state and Federal authorities have taken cars, homes, restaurants and cash. Usually they sell the assets and keep the proceeds. There is now close to $3 billion in the Federal "Asset Forfeiture Fund," and local police departments have padded their budgets as well.

Many people who have had their property seized are not even arrested or charged with a crime. The statutes authorizing these seizures do not require a prior hearing. Worse, the Supreme Court has upheld seizures of this kind, so reform almost certainly will require legislation.

Modest reforms are pending in Congress with a bill sponsored by Representative Henry Hyde, who has called civil asset forfeiture "Kafkaesque." But these reforms are not enough.

Civil asset forfeiture is unfair and un-American. It deserves to be resisted by all citizens, any one of whom may one day be its victim.