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MINEOLA ? Two Nassau County car owners have used the “innocent owner” defense to defeat the county’s efforts to seize their cars after family members were caught operating the vehicles while under the influence of drugs or alcohol. In both cases the judges set the burden of proof relatively low for the owners, who were required to establish that they had no idea their family members were going to drive the cars while intoxicated. County Attorney Lorna Goodman said that the most recent ruling would be appealed because it was contrary to the statute, and “we would never be able to win any cases” if it was allowed to stand. The use of the “innocent owner” defense is allowed under the revised version of the DWI vehicle forfeiture law the Nassau Legislature passed in 2004. It passed the revised law four months after the Court of Appeals struck down an earlier version that allowed the county the seize a vehicle even if the owner did not know or had no reason to know that the person driving it was going to drive drunk. In its ruling in County of Nassau v. Canavan , 1 NY2nd 134 (2003), the Court said the seizure of a car belonging to an innocent owner was “grossly disproportional” to the seriousness of the offense. The revised DWI forfeiture statute contains a section reading that “it shall be an affirmative defense to an action brought pursuant to this paragraph that the owner of the vehicle other than the person arrested for violation of section eleven hundred ninety-two of the vehicle and traffic law did not know, or had no reason to know, that there was a reasonable likelihood that the vehicle would be used in violation of any such provision.” Alice E. Velasquez used that defense when Nassau County tried to seize her 2002 Mitsubishi after her daughter, Yvette Velasquez, was arrested for driving while intoxicated on Nov. 18, 2005. Yvette Velasquez later pleaded guilty to the lesser charge of driving while impaired. Alice Velasquez submitted documentary proof of her ownership and provided an affidavit in which she testified that she had no reason to know that her daughter would drive the car while intoxicated. The affidavit was sufficient for Acting Supreme Court Justice Daniel Palmieri ( See Profile ), who, in County of Nassau v. Yvette Velasquez , 004441/06, granted Alice Velasquez’s request for summary judgment against the county and ordered it to drop its bid to seize the car. The decisions will be published Friday. Justice Palmieri rejected the county’s argument that Alice Velasquez’s statement about her lack of knowledge of her daughter’s intentions was insufficient to establish an affirmative defense. In fact, Justice Palmieri wrote that, in the absence of additional evidence from the county showing the contrary, it could be unconstitutional to require Alice Velasquez to provide more that an affidavit testifying to her lack of knowledge. “It thus appears to the undersigned that in view of the discussion in Canavana constitutional argument could be advanced by an owner that the County should not be able to insist (as its attorney does here) that the owner must provide more initial proof than a simple statement that there was no reason for that owner to believe that the vehicle would be used illegally,” Justice Palmieri wrote in a July 13 decision. “Rather, under the Court of Appeals’ analysis such a statement from the owner should be sufficient to shift the burden to the County to demonstrate that there was in fact a reason for the owner to have such a belief.” Justice Palmieri noted that he had invited the county to make additional submissions as evidence that Alice Velasquez should have known about her daughter’s intentions, but the county declined to do so. Earlier Ruling In a May 22 ruling in County of Nassau v. Michael M. McCarthy and Eucharia M. McCarthy , 010335/05, Acting Supreme Court Justice Daniel Martin ( See Profile ) reached a similar conclusion. Michael McCarthy was caught driving his mother Eucharia’s new BMW while under the influence of drugs on March 11, 2005. He ultimately pleaded guilty to a violation of the state Vehicle and Traffic Law. The county later began civil proceedings to seize Ms. McCarthy’s car. In an affidavit, Ms. McCarthy stated that she had loaned the vehicle to her son and had no reason to believe he would use the car in violation of the law. The county presented no evidence that Ms. McCarthy knew or should have known that Mr. McCarthy was going to drive while intoxicated. Rather, it argued that Ms. McCarthy’s affidavit was insufficient and that she needed to provide additional evidence to prove her lack of knowledge. The county argued that Ms. McCarthy’s affidavit was too vague in that it did not address “1) how often Mr. McCarthy used the vehicle; 2) how often she withheld permission from Mr. McCarthy; 3) the conditions of use; 4) where and when Mr. McCarthy was permitted to use the automobile; 5) whether she had instructed Mr. McCarthy not to take prescription drugs prior to using the car; and 6) whether she had knowledge that Mr. McCarthy drove at other times while intoxicated or under the influence of drugs.” Justice Martin, however, ruled that Ms. McCarthy did not have to answer those questions in order to hold onto her car. “The court sees no way in which any of these issues raised by the plaintiff are necessary to establish an innocent owner defense,” wrote Justice Martin, who said the revised county law only “requires Ms. McCarthy to demonstrate that she did not know, or have reason to know that the driver would use the vehicle in violation of law.” He continued, “She should NOT be required to put the driver through a battery of tests and warnings in order to clear her conscience that her car would not be used in violation of law. To require an individual to make such an inquiry each time that individual allows someone else to use [a car] is so unreasonable that further discussion is unnecessary.” Justice Martin also wrote that the county failed to meet its burden by pointing out that Mr. McCarthy admitted to police as to his use of prescription drugs, what those drugs were and how they would affect his driving. None of those statements on their face lead this court to conclude that Mr. McCarthy communicated the fact that he may have been under the influence of such substances at the time Ms. McCarthy agreed to loan her automobile to him.” The attorneys representing the two car owners said it was significant that the judges in both cases accepted the owners’ simple statements of lack of knowledge. “That’s basically going to be the law in Nassau,” said Thomas Liotti, the Garden City attorney who represented the McCarthys “We fought it on every level that we could,” he said “We just couldn’t see the justice in forfeiting the vehicle” Said Cheryl Kitton, the Bellmore attorney who represented the Velasquezes, “I think the judge ruled appropriately.” Ms. Kitton said the ruling in her case would be a boon to parents who loan their cars to their teenage children County Attorney Goodman said the decision in the Velazquezcase would be appealed because she believe it “cuts the heart out of the statute” by effectively transferring the burden of proof about an owner’s knowledge onto the county. She said the standard of proof applied by Justice Palmieri was not called for in the statute and added that “we would never be able to win any cases” if that standard was allowed to remain in place. The McCarthy case will not be appealed because the county, upon further review, has now come to the conclusion that Ms. McCarthy was in fact an innocent owner, Ms. Goodman said. The Nassau County District Attorney’s office has successfully seized 109 vehicles that were involved in felony drunken-driving cases between March 2005 and March 2006, according to Eric Phillips, a spokesman for Nassau County District Attorney Kathleen Rice. ? Michael Scholl can be reached at [email protected] .

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