ALJ Sets Boundaries On NYPD Right To Seize Drunks' Cars
By TOMMY HALLISSEY
An Administrative Law has ruled that the Police Department does not have carte blanche to seize drunk drivers' cars.

Judge Kevin F. Casey ordered the NYPD to return Vito Dambrosio's Cadillac because he did not have a previous record, and the department failed to prove he posed a heightened risk to public safety. "Evidence of driver's apparent intoxication and an open bottle of rum in the car, along with officer's observation of driver backing vehicle into a parked car, [is] not sufficient to prove 'heightened risk' to public safety," the judge wrote in his Aug. 6 decision.

Started by Giuliani

In 2000, under then-Mayor Rudy Giuliani, the NYPD began seizing automobiles from drunk drivers. Since then thousands of cars driven by inebriated motorists have been seized across the city, in proceedings separate from criminal charges. In January 2004, a Federal judge ordered the NYPD to provide hearings, like the one given to Mr. Dambrosio, in cases of involuntary vehicle forfeitures. Police seizures of DWI vehicles jumped 34 percent from 2006 to 2007, from 1,719 to 2,305, according to the NYPD.

On July 4, Mr. Dambrosio was driving a Cadillac on Staten Island when he collided with another vehicle trying to turn at the same time. The arresting officer reported he was unsteady on his feet, had slurred speech and the odor of alcohol on his breath. The Office of Administrative Trials and Hearings found that the police officer had probable cause for the arrest.

At the hospital, however, Mr. Dambrosio registered a 0.0 blood-alcohol level, while the legal limit for alcohol in New York is .08. The NYPD argued that 0.0 on the arrest report did not mean that the blood test results were negative for alcohol, because 0.0 was the default entry for the department when test results were unavailable.

Despite an objection by Mr. Dambrosio, the NYPD submitted into evidence a letter that stated blood tests were unavailable. The NYPD said no Breathalyzer was given at the scene. However, OATH ruled that the lack of a sobriety test did not negate probable cause for the arrest. "Even without the test results, the officer's observations of [Mr. Dambrosio's] appearance following the accident, including detection of the smell of alcohol on [the driver's] breath, are sufficient common law indicia of intoxication to justify an arrest and prove that it is more likely than not that [the man] was driving while intoxicated ..." ALJ Casey wrote in his decision.

'Arrest Not Enough for Seizure'

The issue for OATH was the seizure of the Cadillac. Mr. Dambrosio, who was released on his own recognizance, had just one prior conviction for disorderly conduct. "There was no indication that he has previously used a vehicle to commit a crime," ALJ Casey wrote. "The background of the driver or the nature of the offense may be sufficient to prove heightened risk to the public, but an arrest for driving while intoxicated, standing alone, is insufficient."

The judge noted there was no accident report or statement from the other driver. "There was evidence that [Mr. Dambrosio] had been drinking, but it is unclear whether the accident was caused by intoxication," ALJ Casey noted. "This evidence was insufficient to show that release of the vehicle poses a heightened risk to the public."

He ordered the Police Department to release Mr. Dambrosio's car.