Suffolk County New York Vehicle Seizure Law:
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Intro. Res. No. 2101-2007 Laid on Table 11/7/2007
Introduced by Presiding Officer, on request of the County Executive and Legislators Losquadro and Eddington
RESOLUTION NO. 1185 -2007, ADOPTING LOCAL LAW NO. 32 -2007, A LOCAL LAW TO AMEND CHAPTER 270 OF THE SUFFOLK COUNTY CODE FREQUENTLY KNOWN AS THE “DWI SEIZURE LAW”
WHEREAS, there was duly presented and introduced to this County Legislature at a regular meeting held on November 7, 2007, a proposed local law entitled, “A LOCAL LAW TO AMEND CHAPTER 270 OF THE SUFFOLK COUNTY CODE FREQUENTLY KNOWN AS THE “DWI SEIZURE LAW;” and said local law in final form is the same as when presented and introduced; now, therefore be it
RESOLVED, that said local law be enacted in form as follows:
LOCAL LAW NO. 32 -2007, SUFFOLK COUNTY, NEW YORK A LOCAL LAW TO AMEND CHAPTER 270 OF THE SUFFOLK COUNTY CODE FREQUENTLY KNOWN AS THE “DWI SEIZURE LAW” BE IT ENACTED BY THE COUNTY LEGISLATURE OF THE COUNTY OF SUFFOLK, as follows:
Section 1. Legislative Intent.
This Legislature hereby finds and determines that Local Law No. 7-2004, as amended, frequently known as the “DWI Seizure Law,” proved to be strong deterrent to drunk drivers.
This Legislature also finds that the New York State Vehicle and Traffic Law has been amended to include aggravated driving while intoxicated, §1192(2-a) and driving while ability impaired by the combined influence of drugs or of alcohol and any drug or drugs, §1192(4-a).
This Legislature further finds it is necessary to incorporate the recent changes to New York State Vehicle and Traffic Law to maintain the effectiveness of Chapter 270 of the Suffolk County Code.
Section 2. Amendments.
Chapter 270 of the SUFFOLK COUNTY CODE is hereby amended as follows:
Chapter 270, DRUG PARAPHERNALIA AND PREMISES
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ARTICLE IV, Forfeiture of Property Used in or Obtained Through Crime
§ 270-25. Definitions.
As used in this article, the following terms shall have the meanings indicated:
CLAIMING AUTHORITY -- The District Attorney, or his or her designee, and/or the County Attorney, or his or her designee.
INSTRUMENTALITY OF AN OFFENSE -- Any property whose use contributed directly and materially to the commission of an offense as defined in this article.
OFFENSE -- A violation of New York Vehicle and Traffic Law § 1192, Operating a motor vehicle under the influence of alcohol or drugs, Subdivision 2, 2-a, 3, 4, or 4-a or § 1192-a, Operating a motor vehicle after having consumed alcohol; under the age of 21; per se, or a violation of New York Navigation Law § 49-a, Operation of a vessel while under the influence of alcohol or drugs.
OUTSIDE LAW ENFORCEMENT AGENCY -- Any town or village law enforcement agency located in the County of Suffolk that is not part of the Suffolk County Police District. [Added 10-17-2006 by L.L. No. 55-2006]
§ 270-27. Civil authority.
A. A civil action shall be commenced by the claiming authority, or its designees, against a defendant to forfeit seized property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, if it can be demonstrated that the property was seized in connection with the acts of an individual who has been convicted at least once before of a violation of New York Vehicle and Traffic Law § 1192(2), (2-a), (3), (4) or (4-a), § 49-a of the New York Navigation Law or having been found guilty of violating § 1192-a of the New York Vehicle and Traffic Law, except that:
(1) No property used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this subsection unless it shall appear that the owner or agent of the owner was a consenting party or privy to the commission of the offense as described in this article; and
(2) No property shall be forfeited under the provisions of this subsection by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than the owner while the subject property was unlawfully in the possession of a person other than the owner.
B. A civil action shall be commenced by the claiming authority, or its designee, against a defendant to seize and to forfeit property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, if it can be demonstrated that the property is to be seized in connection with the action of an individual who has been convicted at least once before of a violation of New York Vehicle and Traffic Law § 1192(2), (2-a), (3), (4) or (4-a), § 49-a of the New York Navigation Law or having been found guilty of § 1192-a of the New York Vehicle and Traffic Law, except that:
(1) No property used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provision of this subsection unless it shall appear that the owner or agent of the owner was a consenting party or privy to the commission of the offense as described in this article; and
(2) No property shall be forfeited under the provisions of this subsection by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than the owner while the subject property was unlawfully in the possession of a person other than the owner.
C. A civil action may also be commenced against a noncriminal defendant to recover the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, subject to the same exceptions contained in Subsections A and B of this section.
D. All actions commenced under this article shall be governed by the procedures enumerated in Article 13-A of the New York Civil Practice Law and Rules, where not specifically outlined herein.
E. No property shall be forfeited under this article unless the claiming authority produces clear and convincing evidence that the noncriminal defendant engaged in affirmative acts which aided, abetted or facilitated the conduct of the criminal defendant. The noncriminal defendant must take all prudent steps to prevent the illegal use of his or her property, and willful disregard by the owner or lienholder of the acts giving rise to forfeiture shall not constitute a defense to such forfeiture.
F. Any action to forfeit seized property under Subsection A of this section shall be commenced within 180 days after the seizure when the property has first been seized under § 270-26 of this article and within 180 days after the commission of the offense when the property has not been first seized under § 270-26, and said action shall be civil, remedial, and in rem in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. An action under this law shall not be deemed a criminal proceeding of any type. The action shall be commenced in the manner prescribed by the New York Civil Practice Law and Rules § 304. Potential claimants to the seized asset shall be served with a summons and notice or summons and verified complaint. No property as defined in § 270-25 of this article shall be forfeited without service of notice upon potential claimants to the seized asset and the opportunity for a prompt post-seizure hearing given prior to such forfeiture.
G. Once a civil action for forfeiture has been commenced pursuant to this section, the claiming authority shall notify victims and parents, spouses, sibling, or children of any individual who has been physically injured as a result of the offensive actions of an individual which have precipitated such seizure and forfeiture proceeding as to the time and place of said court forfeiture hearing.
H. In order to establish its case in any action commenced under this article, the County shall demonstrate, by clear and convincing evidence, that the property in question is subject to forfeiture at the time of commission of the offense, as defined in this article, which precipitated the seizure or the commencement of an action for the seizure of the property without regard to the final determination of any criminal actions brought against the individual for such offense. The noncriminal defendant shall then have the burden of proving a lack of knowledge or lack of consent on behalf of said noncriminal defendant sufficient to constitute a defense to such forfeiture.
I. If, after a seizure of property has been made under § 270-26 of this article, it is determined that the noncriminal defendant of the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense, or the individual whose criminal actions precipitated the seizure, has not been previously convicted at least once of a violation of New York Vehicle and Traffic Law § 1192(2), (2-a), (3), (4) or (4-a), § 49-a of the New York Navigation Law or having been found guilty of violating § 1192-a of the New York Vehicle and Traffic Law, then the property which constitutes the proceeds of an offense, the substituted proceeds of an offense, or an instrumentality of an offense so seized shall immediately be returned to its lawful owner as of the time of seizure.
J. All property seized pursuant to this article is subject to reasonable and customary towing, maintenance and daily storage fees as may be established by the Suffolk County Police Commissioner. Such fees shall be payable to the seizing agent prior to the release of said property.
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Section 3. Severability.
If any clause, sentence, paragraph, subdivision, section, or part of this law or the application thereof to any person, individual, corporation, firm, partnership, entity, or circumstance shall be adjudged by any court of competent jurisdiction to be invalid or unconstitutional, such order or judgment shall not affect, impair, or invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, subdivision, section, or part of this law, or in its application to the person, individual, corporation, firm, partnership, entity, or circumstance directly involved in the controversy in which such order or judgment shall be rendered.
Section 4. SEQRA Determination.
This Legislature, being the State Environmental Quality Review Act (SEQRA) lead agency, hereby finds and determines that this law constitutes a Type II action pursuant to Section 617.5(c)(20) and (27) of Title 6 of the NEW YORK CODE OF RULES AND REGULATIONS (6 NYCRR) and within the meaning of Section 8-0109(2) of the NEW YORK ENVIRONMENTAL CONSERVATION LAW as a promulgation of regulations, rules, policies, procedures, and legislative decisions in connection with continuing agency administration, management and information collection. The Suffolk County Council on Environmental Quality (CEQ) is hereby directed to circulate any appropriate SEQRA notices of determination of non-applicability or non-significance in accordance with this law.
Section 5. Applicability.
This law shall apply to all actions and transactions occurring on or after the effective date.
Section 6. Effective Date.
This law shall take effect immediately upon filing in the Office of the Secretary of State.
DATED: November 20, 2007
APPROVED BY:
/s/ Steve Levy
County Executive of Suffolk County
Date: December 4, 2007
After a public hearing duly held on December 4, 2007
Filed with the Secretary of State on January 2, 2008
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