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.