Pubdate: Tue, 08 Jun 1999 Source: New York Law Journal (NY) Copyright: 1999 NLP IP Company Contact: 345 Park Avenue South, New York, NY 10010 Fax: (212) 696-4287 Feedback: http://www.nylj.com/contact.html Website: http://www.nylj.com/ Author: Gary Spencer CONFISCATION OF DRUNK DRIVER'S TRUCK IS IMPROPER ALBANY -- Applying a brake to the confiscation power of law enforcement officials, an upstate judge ruled Tuesday that the Columbia County district attorney had no authority to seize a truck driven by a drunk driver. Prosecutors were not seeking permanent forfeiture of the vehicle, but rather to retain it as potential evidence until criminal proceedings against the driver are completed. But Supreme Court Justice John G. Connor of Hudson found that the truck was not necessary evidence and that the seizure deprived the owner of property without due process. "Unless and until the New York State Legislature proclaims that all vehicles driven by allegedly drunk drivers constitute contraband subject to seizure, this court will not interfere with what is perhaps the most precious and fundamental of all rights, the right to possess personal property unfettered by governmental interference," he wrote. Judge Connor's ruling in Montecalvo v. Columbia County, Index No. 974-99, ordered the county to release the truck and to pay more than $5,500 in towing and storage charges for its impoundment. His decision appears to conflict with a ruling last month by Manhattan Justice Michael Stallman in Grinberg v. Safir, which upheld the Giuliani administration's new policy of confiscating the vehicles of motorists arrested for drunk driving. The city's DWI forfeiture policy is based on an Administrative Code provision authorizing the seizure of property used "in aid or furtherance of crime." Justice Stallman said, "The automobile of a drunk driver is the quintessential instrumentality of a crime, the sine qua non without which the crime could not have been committed." INSTRUMENT OF CRIME The facts in Montecalvo differ. Columbia County has no local forfeiture ordinance, prosecutors were not seeking a permanent forfeiture, and the seized truck was not owned by the accused drunk driver. But Justice Connor flatly rejected the county's argument that the truck could be seized as "the instrumentality of a crime." The seizure in Montecalvo occured on Nov. 13, 1998 when Copake police stopped two Long Island men who were in Columbia County on a hunting trip. The driver, Vincent Ferrato, was charged with driving while intoxicated and aggravated unlicensed operation of the vehicle. His passenger was Peter M. Schnauder, whose wife, Jean M. Montecalvo, leases the 1998 Chevrolet S-10 pick-up truck they were in. Because Mr. Schnauder had a prior DWI conviction, the truck was equipped with an ignition interlock device, which requires an operator to pass a breathalyzer test before the vehicle will start. Prosecutors claim Mr. Ferrato and Mr. Schnauder circumvented the device by using an air compressor, but no formal charges were brought against either man for tampering with the ignition interlock system. The truck has been impounded at Jim's Autobody in Copake since the arrest, accumulating storage charges at a rate of $25 per day. Although Mr. Ferrato has pleaded guilty and waived his right to appeal, the district attorney's office has refused to release the vehicle until 30 days after he is sentenced, when any surviving right to appeal would expire. The owner brought an Article 78 proceeding against the county and Justice Connor granted her petition for a writ of mandamus to compel the return of her truck. He rejected the county's argument that the truck was the instrumentality of a crime and that it might be needed as evidence to prove Mr. Ferrato's intent to commit the DWI offense. "Criminal intent is not an element in a driving while intoxicated case," the judge wrote, observing that proof Mr. Ferrato operated the vehicle with a blood alcohol level in excess of .10 "is all that is required to prove that Ferrato was driving while intoxicated." "The unlawful confiscation and retention of petitioner's vehicle, under the veil of needing the same as evidence against Ferrato, is arbitrary and capricious, and without sound reasoning," Judge Connor wrote. He concluded the seizure violated Ms. Montecalvo's federal and state due process rights. SIMILAR RULING He issued a similar ruling in stranger circumstances last July, when he ordered Columbia County prosecutors to return the artificial leg of a man convicted of firing a shot at state troopers. The prosthetic leg had been struck by the troopers' return fire, but the judge held in Parkinson v. Columbia County District Attorney that the leg had little value as evidence and that its seizure deprived its owner of property without due process. Ms. Montecalvo's attorney, Michael P. Mansion, of The Rutnik Law Firm in Albany, said Judge Connor's ruling on the truck seizure should make prosecutors reconsider seizure and forfeiture policies. "I think, with what is happening now, that they are going to have to take a long, hard look at the methods they are using." he said. "There is still a constitution out there." Assistant Columbia County Attorney John Leonardson said the Montecalvo ruling raises "a policy concern" and is likely to be appealed. Prosecutors "need to have a certain amount of latitude and discretion in how they are going to prove their cases," he said. "The district attorney thought this truck was necessary evidence in the [DWI] case, and the ruling denies the district attorney that discretion." The county was also defended by Laurie Petrone, of Petrone & Petrone in Utica. - --- MAP posted-by: Patrick Henry