Difficulty of Drafting Statutes
The New York Times
July 24, 2005
Road Rules: Redefining Car Seizure
By JULIA C. MEAD
WHEN Suffolk County police officers arrested Salvatore M. Geha, 44, on July 6, a computer check on his driver's license found 204 suspensions since 1988 and $11,442 in unpaid fines on summonses for parking and moving violations, the police said.
The remarkable totals and a quirk of timing turned Mr. Geha, who lives in Central Islip, into Exhibit A in the debate over car-seizure laws on the Island.
Just the day before, the Suffolk County executive, Steve Levy, signed the latest of those laws, empowering the police to seize and sell off the vehicles of motorists caught driving with revoked or suspended licenses. Proponents of the law were quick to cite Mr. Geha as a prime example of why it was needed.
But it appears the law would not apply to him. Hoping to avoid the lawsuits and other problems that plagued Nassau and Suffolk counties' earlier car-seizure laws, which were aimed mainly at drunken drivers, the Suffolk Legislature's new law is written narrowly. Vehicles can be seized only if the drivers had their licenses revoked or suspended for one of a handful of reasons: a conviction for reckless driving or unlicensed operation, a conviction connected to a vehicle-related homicide, or multiple speeding tickets.
The county estimated that only 250 drivers a year would be covered, compared with the thousands who drive with suspended licenses generally, and with the tens of thousands who drive while intoxicated each year, the targets of previous seizure laws.
For his part, Mr. Geha originally attracted a police officer's attention by drinking a beer while standing in front of a convenience store; he was not driving at the time of his arrest, so his car could not be seized under the new law, according to Lt. Harold Armet of the Suffolk police.
New York State has a car-forfeiture law as well, for cases where a driver's license has been suspended 10 or more separate times for failing to answer a summons or pay a fine. But Mr. Geha would not be covered by that law, either, Lieutenant Armet said, because he was not driving when he was arrested.
Angie Carpenter, a Republican county legislator from West Islip, said she sponsored the new law (which the Legislature passed last month by a 17-0 vote with one abstention) after years of frustration at the prevalence of illegal driving on Suffolk roads.
"I'd hear about these terrible accidents and, invariably, the person who caused it was driving with a suspended license," Ms. Carpenter said. Since Suffolk already seizes cars in some drunken-driving cases, she said, "why can't we seize cars when the person shouldn't be driving because their license was suspended?"
Suffolk and Nassau each enacted D.W.I. seizure laws in the late 1990's, but both were struck down as unconstitutional, primarily on due-process grounds - Nassau's in 2003 and Suffolk's in March 2004.
Nassau revised its approach, dropping seizure at the time of arrest and instead going after the car once the driver has been convicted, according to Barbara Van Ripen of the county attorney's office. She said on Tuesday that the county had about 2,000 open cases awaiting court decisions.
By contrast, Suffolk stuck with seizure on arrest, and revised its law in other ways to respond to the court decisions; the county resumed seizing cars in September 2004.
Sgt. James J. Sullivan, who commands the Suffolk police impound yard in Westhampton, said Suffolk seized 2,389 vehicles from the first law's inception in 1999 until it was struck down, and another 387 since the revised law took effect through July 1.
About 35 percent of the total, or 970 vehicles, turned out not to belong to the arrested driver, and were returned to owners or lienholders. Another 24 percent were worth so little that the county scrapped them. Only 686 vehicles, or 25 percent, had been auctioned off by the county through July 1; another 454 vehicles were awaiting disposition.
Ms. Carpenter and Mr. Levy said in interviews that the new law complied with the courts' standards for the D.W.I. seizure law. It requires a hearing before a judge within days of an arrest to determine whether the vehicle should have been seized; Suffolk's earlier law allowed longer delays and left seizures to the discretion of police officials.
David Bishop, a Democratic legislator from West Babylon who is a lawyer, said the Legislature did not scrutinize Ms. Carpenter's bill closely before voting. Mr. Bishop said his fellow legislators are sometimes too quick to act on law-and-order legislation.
"They basically say: 'What's the title of the bill? Does it sound good? Let's all vote yes,' " he said. "They did not carefully consider the significance of the government expanding its power to seize private property."
Mr. Bishop said his objections to the broad scope of Ms. Carpenter's first draft of the law led to it being narrowed in the final version. But he still believed it was being rushed through, he said, so he abstained.
Mr. Bishop and some criminal defense lawyers cited concerns that the law, like the D.W.I. seizure law, would impose widely different penalties on different drivers for the same offense. An arrested driver loses nothing when a borrowed car is seized, and very little if it is leased or is a clunker. But someone caught while driving a new BMW or Lexus, for example, would effectively be fined $60,000 or more by a seizure.
"Whether that's true or not, it certainly doesn't mean we shouldn't move forward," said Ms. Carpenter, who is the Legislature's deputy presiding officer. "I feel very strongly that we have to do all we can to encourage people to be serious about the penalties."
But David H. Besso, a partner at the Bay Shore law firm of Long, Tuminello, Besso, Seligman, Quinlan & Werner and a former president of the Suffolk Bar Association, said that there were already plenty of severe ways to punish someone who drives with a suspended license. "If you want to put someone in jail, you certainly can, and that's a sufficient deterrent," Mr. Besso said. "This is just a publicity stunt that has no basis in law."
Mr. Besso's firm filed the lawsuit that overturned Suffolk's original D.W.I. seizure law. "I think someone will challenge this, and there will be a winner somewhere down the road," he said of the new law.
Mr. Besso and other defense lawyers said that the courts had not yet spoken on the main constitutional problems with seizure laws: excessive punishment and unequal treatment. The lawyers cited a more prosaic problem - that many drivers never receive notification about license suspensions.
Mr. Levy, the county executive, who is also a lawyer, acknowledged that the seizure law may produce "a disproportionate outcome" in certain circumstances. Last year he gave that as one of his reasons for voting against the original law when he was in the county Legislature. But "those concerns have been dissipated by scaling back the number of vehicles that could potentially be seized," he said last week.
Mr. Besso said he did not see the logic in that: "So what? Unfair is unfair, even if it involves just one defendant."
Mr. Levy called the new law a tool for the prosecution to use for possible plea bargaining, or other leverage that would otherwise not exist. "If someone has 50, 60 or 70 repeat situations, it's not going to matter to us if he's driving a Honda Civic or a Rolls-Royce," Mr. Levy said. "So long as the D.A. is using proper discretion as to when he is seeking a seizure, it should turn out O.K."
But defense lawyers argued that the seizures were civil actions to be pursued by the County Attorney's office, and that prosecutors had no role in them. Thomas Spota, the Suffolk district attorney, did not respond to three requests for comment on that issue.
In any case, the debate over seizure programs looks set to grow beyond cars. Jon Cooper, a Democratic county legislator from Huntington, has proposed a bill that would permit the county to confiscate the assets of anyone convicted of insurance fraud, falsifying business records or other white-collar crimes. The bill is being reviewed by the Legislature's public safety committee.
* Copyright 2005 The New York Times Company
July 24, 2005
Road Rules: Redefining Car Seizure
By JULIA C. MEAD
WHEN Suffolk County police officers arrested Salvatore M. Geha, 44, on July 6, a computer check on his driver's license found 204 suspensions since 1988 and $11,442 in unpaid fines on summonses for parking and moving violations, the police said.
The remarkable totals and a quirk of timing turned Mr. Geha, who lives in Central Islip, into Exhibit A in the debate over car-seizure laws on the Island.
Just the day before, the Suffolk County executive, Steve Levy, signed the latest of those laws, empowering the police to seize and sell off the vehicles of motorists caught driving with revoked or suspended licenses. Proponents of the law were quick to cite Mr. Geha as a prime example of why it was needed.
But it appears the law would not apply to him. Hoping to avoid the lawsuits and other problems that plagued Nassau and Suffolk counties' earlier car-seizure laws, which were aimed mainly at drunken drivers, the Suffolk Legislature's new law is written narrowly. Vehicles can be seized only if the drivers had their licenses revoked or suspended for one of a handful of reasons: a conviction for reckless driving or unlicensed operation, a conviction connected to a vehicle-related homicide, or multiple speeding tickets.
The county estimated that only 250 drivers a year would be covered, compared with the thousands who drive with suspended licenses generally, and with the tens of thousands who drive while intoxicated each year, the targets of previous seizure laws.
For his part, Mr. Geha originally attracted a police officer's attention by drinking a beer while standing in front of a convenience store; he was not driving at the time of his arrest, so his car could not be seized under the new law, according to Lt. Harold Armet of the Suffolk police.
New York State has a car-forfeiture law as well, for cases where a driver's license has been suspended 10 or more separate times for failing to answer a summons or pay a fine. But Mr. Geha would not be covered by that law, either, Lieutenant Armet said, because he was not driving when he was arrested.
Angie Carpenter, a Republican county legislator from West Islip, said she sponsored the new law (which the Legislature passed last month by a 17-0 vote with one abstention) after years of frustration at the prevalence of illegal driving on Suffolk roads.
"I'd hear about these terrible accidents and, invariably, the person who caused it was driving with a suspended license," Ms. Carpenter said. Since Suffolk already seizes cars in some drunken-driving cases, she said, "why can't we seize cars when the person shouldn't be driving because their license was suspended?"
Suffolk and Nassau each enacted D.W.I. seizure laws in the late 1990's, but both were struck down as unconstitutional, primarily on due-process grounds - Nassau's in 2003 and Suffolk's in March 2004.
Nassau revised its approach, dropping seizure at the time of arrest and instead going after the car once the driver has been convicted, according to Barbara Van Ripen of the county attorney's office. She said on Tuesday that the county had about 2,000 open cases awaiting court decisions.
By contrast, Suffolk stuck with seizure on arrest, and revised its law in other ways to respond to the court decisions; the county resumed seizing cars in September 2004.
Sgt. James J. Sullivan, who commands the Suffolk police impound yard in Westhampton, said Suffolk seized 2,389 vehicles from the first law's inception in 1999 until it was struck down, and another 387 since the revised law took effect through July 1.
About 35 percent of the total, or 970 vehicles, turned out not to belong to the arrested driver, and were returned to owners or lienholders. Another 24 percent were worth so little that the county scrapped them. Only 686 vehicles, or 25 percent, had been auctioned off by the county through July 1; another 454 vehicles were awaiting disposition.
Ms. Carpenter and Mr. Levy said in interviews that the new law complied with the courts' standards for the D.W.I. seizure law. It requires a hearing before a judge within days of an arrest to determine whether the vehicle should have been seized; Suffolk's earlier law allowed longer delays and left seizures to the discretion of police officials.
David Bishop, a Democratic legislator from West Babylon who is a lawyer, said the Legislature did not scrutinize Ms. Carpenter's bill closely before voting. Mr. Bishop said his fellow legislators are sometimes too quick to act on law-and-order legislation.
"They basically say: 'What's the title of the bill? Does it sound good? Let's all vote yes,' " he said. "They did not carefully consider the significance of the government expanding its power to seize private property."
Mr. Bishop said his objections to the broad scope of Ms. Carpenter's first draft of the law led to it being narrowed in the final version. But he still believed it was being rushed through, he said, so he abstained.
Mr. Bishop and some criminal defense lawyers cited concerns that the law, like the D.W.I. seizure law, would impose widely different penalties on different drivers for the same offense. An arrested driver loses nothing when a borrowed car is seized, and very little if it is leased or is a clunker. But someone caught while driving a new BMW or Lexus, for example, would effectively be fined $60,000 or more by a seizure.
"Whether that's true or not, it certainly doesn't mean we shouldn't move forward," said Ms. Carpenter, who is the Legislature's deputy presiding officer. "I feel very strongly that we have to do all we can to encourage people to be serious about the penalties."
But David H. Besso, a partner at the Bay Shore law firm of Long, Tuminello, Besso, Seligman, Quinlan & Werner and a former president of the Suffolk Bar Association, said that there were already plenty of severe ways to punish someone who drives with a suspended license. "If you want to put someone in jail, you certainly can, and that's a sufficient deterrent," Mr. Besso said. "This is just a publicity stunt that has no basis in law."
Mr. Besso's firm filed the lawsuit that overturned Suffolk's original D.W.I. seizure law. "I think someone will challenge this, and there will be a winner somewhere down the road," he said of the new law.
Mr. Besso and other defense lawyers said that the courts had not yet spoken on the main constitutional problems with seizure laws: excessive punishment and unequal treatment. The lawyers cited a more prosaic problem - that many drivers never receive notification about license suspensions.
Mr. Levy, the county executive, who is also a lawyer, acknowledged that the seizure law may produce "a disproportionate outcome" in certain circumstances. Last year he gave that as one of his reasons for voting against the original law when he was in the county Legislature. But "those concerns have been dissipated by scaling back the number of vehicles that could potentially be seized," he said last week.
Mr. Besso said he did not see the logic in that: "So what? Unfair is unfair, even if it involves just one defendant."
Mr. Levy called the new law a tool for the prosecution to use for possible plea bargaining, or other leverage that would otherwise not exist. "If someone has 50, 60 or 70 repeat situations, it's not going to matter to us if he's driving a Honda Civic or a Rolls-Royce," Mr. Levy said. "So long as the D.A. is using proper discretion as to when he is seeking a seizure, it should turn out O.K."
But defense lawyers argued that the seizures were civil actions to be pursued by the County Attorney's office, and that prosecutors had no role in them. Thomas Spota, the Suffolk district attorney, did not respond to three requests for comment on that issue.
In any case, the debate over seizure programs looks set to grow beyond cars. Jon Cooper, a Democratic county legislator from Huntington, has proposed a bill that would permit the county to confiscate the assets of anyone convicted of insurance fraud, falsifying business records or other white-collar crimes. The bill is being reviewed by the Legislature's public safety committee.
* Copyright 2005 The New York Times Company
posted by Professor Segal | 10:20 AM
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