Where I Stand — Mike O’Callaghan: Mayor takes and keeps

Sunday, Feb. 28, 1999 | 9:34 a.m.

"FREDDIE, IF YOU'RE going out with the boys tonight take the old car. I need the new car for work tomorrow and we are still paying for it," may be heard in some New York City homes nowadays. Mayor Rudolph Giuliani's order to seize and keep the vehicle of any person arrested for driving while intoxicated has put a new edge on the city's justice system.

Not only is the vehicle seized and kept for a suspected DWI violation, he intends to keep it even if the courts find you not guilty. Very simply, he requires that the acquitted driver now must go through a civil procedure to get his vehicle returned. If this procedure works anything like the federal forfeiture procedure it's very unlikely the car will be returned. Just because the driver is cleared of criminal charges where the government's burden of proof must be beyond a reasonable doubt, the civil hurdle this car owner must then overcome favors the government, where judicial decisions are based only on a preponderance of evidence.

Giuliani, a former federal prosecutor, has tasted the fruits of the federal forfeiture law where billions of dollars in property and cash have been seized and kept under the guise of fighting dangerous drugs and narcotics. This has been one of the nation's most abused laws. Let me remind readers of the beating an innocent Las Vegan, Billy Munnerlyn, took when the feds seized his jet airplane.

Munnerlyn was found not guilty of any crime by a jury that ordered his jet aircraft returned to him. A single federal judge bought the Drug Enforcement Administration's argument and overruled the jury's decision. Then the feds demanded he prove his innocence, even though they couldn't prove his guilt. It was an expensive three-year battle for Munnerlyn before he finally got his plane back.

Yes, he got it back by buying it for $7,000. Also, because of deterioration, it cost more than another $100,000 to get the aircraft airworthy again. This means nothing to the DEA or other federal agencies seizing the property of citizens under the law.

How about Carl and Mary Shelden, who had their house seized? The Sheldens weren't accused of any wrongdoing, but they held a second mortgage on a house occupied by a businessman who was convicted for running a house of prostitution. They fought in the courts for five years as the federal government let the house fall into disrepair.

Now Giuliani wants to take the car of a person arrested for DWI who has no prior arrest record. To him it makes no difference if it costs $50,000 or $2,000. Also it makes no difference if it's the only family car and is a necessity for work. Acquitted of DWI charges or not, the mayor has your car.

We must agree that drunken drivers should be arrested and kept off the streets. Statistics show that the vast majority of people arrested for DWI the first time don't repeat the offense. It's the people who show reckless disregard for the rest of us by repeating the offense who we must keep off the streets even if extended time in jail is necessary.

But what triggered this latest New York crackdown? Actually, last year, the number of drunken-driving fatalities in the city dropped 35.3 percent, from 51 to 33 deaths. There is no reasonable argument that can justify even one death from drunken driving. But this doesn't explain the mayor's latest seize-and-keep approach in handling first-time offenders and those acquitted by the courts.

Will Giuliani's law be upheld if it goes to the U.S. Supreme Court? Probably, because the present court has shown it favors forfeiture activities. However, there are some specific questions that may irk the high court. The disparity shown between taking a $50,000 car from a first-time offender and a $2,000 car from a repeat offender may bother some justices.

It was just last year the Hosep Bajakajian family had $357,144 cash returned to them by the court. It had been seized from their luggage by the U.S. Customs Service as they were leaving the country. Anything more than $10,000 must be reported according to the Bank Secrecy Act of 1970.

In a 5-4 decision, Justice Clarence Thomas wrote "Comparing the gravity of respondent's crime with the $357,144 forfeiture the Government seeks, we conclude that such a forfeiture would be grossly disproportional to the gravity of his offense. It is larger than the $5,000 fine imposed by the District Court by many orders of magnitude, and it bears no articulable correlation to any injury suffered by the Government."

There's a better-than-even chance the mayor may have trouble with state courts long before anything reaches the Supreme Court. A first-time DWI offense is usually a misdemeanor in New York and now the mayor is adding a new penalty for the crime. As important might be the public's view of the fairness of the new forfeiture role. In the meantime, other New York jurisdictions have hooked onto Giuliani's idea and are using it so the courts will soon have more than one appeal to deal with.

The idea of forfeiture laws, if applied fairly and equally, is basically good. It can be used to separate the criminal from the fruits of his activities and can also take from him an instrument used to commit a crime. But the new across-the-board policy being executed by New York City leaves reason to fear the extension of the mayor's federal forfeiture mind-set and documented abuses that come with these practices.