<p> Police Dep’t v. Rodo OATH Index No. 1858/08, mem. dec. (Mar. 12, 2008)</p><p>Petitioner failed to prove necessity of retaining respondent’s vehicle pending the outcome of a civil forfeiture proceeding. ______</p><p>NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS</p><p>In the Matter of POLICE DEPARTMENT Petitioner -against- PAOLA RODO Respondent ______</p><p>MEMORANDUM DECISION KEVIN F. CASEY, Administrative Law Judge The Police Department brought this proceeding to determine its right to retain a vehicle seized as the alleged instrumentality of a crime pursuant to section 14-140 of the Administrative Code. Respondent Paola Rodo is a co-owner of the vehicle and was driving it at the time of the seizure. This proceeding is mandated by Krimstock v. Kelly, 99 Civ. 12041 (HB), third amended order and judgment (S.D.N.Y. Sept. 27, 2007) (“the Krimstock Order”). See generally Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002), cert. denied sub nom. Kelly v. Krimstock, 539 U.S. 969 (2003); County of Nassau v. Canavan, 1 N.Y.3d 134, 770 N.Y.S.2d 277 (2003). On February 17, 2008, the Department seized Rodo’s vehicle, a 2000 Ford (Voucher No. B181476), following her arrest for driving while intoxicated (Pet. Exs. 1 & 2). That charge remains pending. At Rodo’s request, the Department scheduled a Krimstock hearing. At the hearing, on March 11, 2008, both sides presented documentary evidence and Rodo testified. For the reasons below, I conclude that the Department must release the vehicle. -2- ANALYSIS To retain the vehicle, the Department must demonstrate by a preponderance of the evidence that: (i) there was probable cause for the arrest that resulted in the vehicle seizure; (ii) it is likely that the Department will prevail in a civil action for forfeiture of the vehicle; and (iii) it is necessary that the vehicle remain impounded pending final judgment in the forfeiture action. Krimstock Order, at ¶ 4. Due process requires an “initial testing of the merits of the City’s case,” not “exhaustive evidentiary battles that might threaten to duplicate the eventual forfeiture hearing.” Krimstock, 306 F.3d at 70; Canavan, 1 N.Y.3d at 144-45, 770 N.Y.S.2d at 286. The Department satisfied the first two prongs of this test. It presented evidence that police officers stopped Rodo’s car during a late-night checkpoint near Second Avenue and East 36th Street in Manhattan. An officer detected the odor of alcohol and noticed Rodo’s bloodshot, watery eyes and slurred speech. A field test revealed that Rodo’s blood alcohol level was .08 and subsequent testing determined that her blood alcohol was .114 (Pet. Ex. 4; Resp. Ex. A). Rodo did not challenge the evidence that she was lawfully stopped or that she had been drinking and driving. Thus, the Department demonstrated probable cause for Rodo’s arrest and a likelihood of success at a civil forfeiture action. But the Department failed to show that it is necessary to retain the vehicle. An arrest for driving while intoxicated, without more, is not enough to satisfy this requirement. Instead, the Department must show that the nature of the offense or the background of the offender poses a heightened risk to the public. Compare Police Dep’t v. Olberding, OATH Index No. 283/05, mem. dec. (Aug. 9, 2004) (driver passed through three red lights, was uncooperative during arrest, engaged in altercation with police, and had four prior convictions for driving while intoxicated), with Police Dep’t v. Vanegas, OATH Index No. 1056/06, mem. dec. (Jan. 10, 2006) (blood alcohol level of .15% failed to prove that gainfully-employed driver, whose only prior offense was a decade-old misdemeanor conviction, posed a continuing threat to public safety; distinguishing earlier cases involving extremely high blood alcohol levels). The Department failed to show that Rodo poses a heightened risk to the public. Rodo is a mature, mother of two young children. She has no prior arrests and she credibly testified that she appreciates the danger of driving under the influence of alcohol. All available evidence suggests that her February 17 arrest was an isolated deviation in an otherwise law-abiding life. -3- Rodo testified that she recently moved to New York after separating from her husband, the co-owner of her vehicle. She said that she used her car to take her children to school and go to her job as a customer service representative. After her arrest, she was granted a hardship exception, permitting her to drive pending the outcome of the criminal prosecution. See Vehicle and Traffic Law § 1193(2)(e)(7)(e) (Lexis 2008). Rodo appeared to be a hard- working, single parent, who is not likely to drink and drive again. Based upon this record, the Department failed to prove that returning the vehicle would present a heightened risk to public safety. </p><p>ORDER The Department is directed to release the vehicle immediately.</p><p>Kevin F. Casey Administrative Law Judge</p><p>March 12, 2008</p><p>APPEARANCES:</p><p>ALDIJANA SULJOVIC, ESQ. Attorney for Petitioner</p><p>THE LEGAL AID SOCIETY Attorneys for Respondent BY: RICHARD ABRAHAM, ESQ.</p>