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The initiative by New York City Mayor Rudy Giuliani’s office to seize the cars of persons arrested for drunken driving cleared another hurdle in federal court on Monday. Judge Michael B. Mukasey of the U.S. District Court for the Southern District of New York rejected a challenge mounted by the Legal Aid Society that New York City’s system fails to provide arrested drivers with a rapid enough opportunity to test the seizure of their cars. A different challenge brought by the New York Civil Liberties Union was rejected by the New York courts last June. Under New York City procedures, officials must start a forfeiture action within 25 days after a car is seized at the time of a motorist’s arrest for drunk driving. But according to Thomas M. O’Brien, one of the Legal Aid Society’s lawyers seeking to bring the class action challenge, his clients routinely wait more than a year before having any opportunity in court to claim their cars back. O’Brien added that the ruling would be appealed. Reviewing U.S. Supreme Court rulings in the area, Judge Mukasey concluded in Krimstock v. Safir, 99 Civ. 12041, that people whose cars are seized when they are arrested for drunk driving have no right to a preliminary or “probable cause” hearing challenging the seizure of their cars. The fact that they are entitled to a judicial determination as to whether their cars should be forfeited and sold at an auction is sufficient, he ruled. In particular, Mukasey pointed to the U.S. Supreme Court’s 1986 ruling in U.S. v. Von Neuman, 474 U.S. 242, in which the Court found no due process violation in the U.S. Customs Services’ 36-day delay in responding to a petition for the return of a car that had been seized from an accused smuggler. “If the due process right to a meaningful post-seizure hearing requires only the forfeiture proceeding,” Mukasey wrote, “it does not also require a probable cause hearing.” For due process purposes, he added, there is no meaningful distinction between Customs officials’ seizure of cars from persons arrested for smuggling and the New York City Police Department’s arrest of persons for drunk driving. In both instances, he noted, suspects are protected against the erroneous seizure of their cars by the requirement in the criminal law that there must be “probable cause” for an arrest. A similar challenge to the car seizure program brought by the New York Civil Liberties Union was rejected by the New York courts when the State Court of Appeals refused to take up the case in June. The Civil Liberties Union’s challenge raised state issues and several federal constitutional issues, according to O’Brien, but did not attack the lack of a right to a quick post-seizure hearing. The City was represented by Assistant Corporation Counsel William S.J. Fraenkel. Steven S. Wasserman worked on the case with O’Brien for the Legal Aid Society.

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