WILL DWI POLICY SEIZE THE COURTS?

Giuliani Plan May Spur Jam

When Mayor Rudolph Giuliani announced on Feb. 19 that the city would
start seizing cars of suspected drunk drivers, the public had barely
two days notice.

The plan also came as a surprise to court personnel and prosecutors,
who according to law enforcement officials were not officially
informed of the drunk-driving blitz until five days after it started.

Now, three weeks, 137 arrests and 82 car seizures later, some law
enforcement officials are worried the aggressive policy will force
more trials in a court system that is not ready to handle them.

"It is going to break down," said Stephen Singer, co-chairman of the
criminal law section of the Queens Bar Association, echoing the
sentiments of many prosecutors Newsday interviewed. "There's no way to
handle it. We can't handle what we have now."

David Bookstaver, a spokesman for the Office of Court Administration,
said the courts were taking a wait-and-see posture. He thinks the
courts can shoulder any extra burden. But in a criminal court system
almost totally reliant on pleas to dispose of cases, the drunk-driving
blitz could tax things further, prosecutors and defense attorneys said.

Under Giuliani's new policy, police began seizing the vehicles of
motorists arrested on driving while intoxicated charges if the driver
owns the car he or she is driving when arrested. The city will begin
forfeiture proceedings on the vehicles not only of those drivers
convicted but in some cases even the cars of those who are acquitted,
officials said.

Although Giuliani's plan will directly affect the courts, city
officials did not meet with representatives from the five New York
City district attorney offices to discuss the program until Feb. 26,
five days and 22-seized-cars after it started, according to law
enforcement sources.

Steven Fishner, Giuliani's coordinator for criminal justice, did not
return telephone calls seeking comment.

"Could it cause us real problems? It may," said one prosecutor in the
Queens District Attorney's Office, who asked not to be named. "There's
no question we could wind up with a huge backlog. It certainly
wouldn't have hurt for us to know it was coming down the pipe."

Criminal trials typically take a year to year-and-a-half, and
sometimes longer.

Court officials fear that at the worst the criminal courts could be
hit with trials they are not equipped to handle.

Last year, only 712 out of the nearly 273,000 cases in New York City's
criminal courts went to trial, Bookstaver said. The rest of the cases,
about 99.75 percent, were disposed either through pleas or dismissals.
Of the 47,477 cases processed through Queens Criminal Court last year,
only 171 went to trial.

Like other offenses heard in criminal court, drunk-driving cases
almost always ended in pleas. Of the 4,978 drivers arraigned for drunk
driving citywide in 1998, only 42 cases - less than 1 percent - went
to trial, records show.

But some lawyers are predicting the number of requests for
criminal-court trials could easily double if Giuliani's policy
survives court challenges brought recently by the New York Civil
Liberties Union.

"With the stakes so high, now defense attorneys are going to be more
apt to say, `We want a trial,' " said Dino Lombardi, a Manhattan-based
defense attorney and former Queens District Attorney's Office
prosecutor. "You're going to have more trials because you have people
who might say, `I know it's a lenient [plea] offer and I'd like to
take it, but I can't afford to lose my car.' "

Traditionally, first-time drivers busted for "driving under the
influence" have been allowed to plead guilty to a charge of "driving
while ability impaired," a non-criminal violation.

The fines for a DWAI are $300 to $500 and up to 15 days in jail,
compared to a $500 to $1,000 fine and punishment of up to a year in
jail for DWI.

Court officials estimated that more than 90 percent of those arrested
a first time for DWI pleaded out to DWAI charges. But with a risk of a
car being forfeited, defendants may opt to have a trial in the hopes
an acquittal will allow them to get their vehicles back.

Robert Messner, the police department's chief civil forfeiture lawyer,
declined to comment on whether it will be city policy to seek
forfeiture of the vehicles of drivers who plead to DWAI. He said under
the state law the city can take that tack. Forfeiture may also occur
even with a dismissal or acquittal, he said.

"For whatever reason if the case is dismissed or reduced in the D.A.'s
intake process, the law is clear that we could still bring that
forfeiture case," Messner said. "It doesn't matter what happens in the
criminal case."

Jack Ryan, chief assistant in the Queens District Attorney's Office,
said if the city plans on returning the cars to drivers who plead down
to DWAI, then the new policy could conceivably speed up the time it
takes to dispose of drunk-driving cases. If not, he said there might
be problems.

"Obviously, there will be a concern if defendants stop taking pleas,"
Ryan said. "But it's too early. The intent of the program is to
discourage drunk driving. Depending upon how effective that is, we may
have a lot less cases to deal with. There's no way of really telling.
We just have to wait and see how it works out."