- The Washington Times - Tuesday, March 23, 2004

A few years ago, New York Mayor Rudolph Giuliani came up with a new weapon to combat drunk driving: confiscating cars. It may seem only fair and just to take away the wheels of someone convicted of driving while intoxicated. But Mr. Giuliani saw no reason to limit the punishment to those convicted of the crime. With majestic impartiality, the city took and kept the cars of both the guilty and the innocent.

The mayor made no apologies for his ferocious policy. “There is a very simple way to stay out of this problem,” he insisted. “Do not drink and get behind the wheel of a car.” He even said the city might fight to keep cars of defendants who were acquitted. And when the New York Civil Liberties Union challenged the policy in court, he sneered, “I’d like to remind everyone that the New York Civil Liberties Union and other advocates and activists do not determine the Constitution.”

He’s right. Courts determine the meaning of the Constitution, and in this case, they decided Mr. Giuliani was wrong and the civil libertarians were right. Today, after being found guilty of violating the rights of these owners, the city must give back 6,000 cars it improperly held.

This is a small but important victory for the proposition that Americans should not be punished without a demonstration of guilt. It’s also a blow to the government’s habit of using law enforcement to snatch property for its own enrichment.

The decision may not be great comfort, though, to motorists who for years got to make payments on new vehicles they couldn’t drive and now are old. That’s an injustice that can’t be undone, and no one in the city government shows much interest in ameliorating it.

Everyone opposes drunk driving, but the campaign against it shows any good cause can be perverted. Mr. Giuliani didn’t even restrict his crusade to drunk drivers. “If you’ve had even one drink, you should find somebody else to drive your automobile or you should stay where you are or use public transportation,” he insisted. Call it the one-drink-and-you’re-out rule. But it wasn’t the law — only his personal preference.

In Chicago, by contrast, Mayor Richard M. Daley took a less draconian approach. Under Chicago law, vehicles are impounded in drunk driving arrests, but owners are entitled to a speedy hearing. A motorist who loses there can get the car back by paying a $500 fine, plus towing and storage costs. The federal courts upheld that policy.

New York law provides that anyone convicted of driving while intoxicated (DWI) automatically loses his car, a punishment that neatly fits the crime. So you might expect the city would quickly return the car of anyone arrested and not convicted. Fat chance. On the contrary, it put the burden on the victims to force disgorgement of their vehicles.

One of those was Charles Flatow, a retired sales manager whose car was taken after a first-time arrest for DWI. He pleaded guilty to a lesser charge of driving while impaired, the equivalent of a traffic ticket. The offer was too good to pass up, even though Mr. Flatow said his anti-depressant medicine caused the Breathalyzer to overstate his blood-alcohol level.

His offense was too minor to trigger an automatic forfeiture. But though the city failed to convict him of drunk driving, it kept his car.

Someone in that position could always file a lawsuit to retrieve his property. For many victims, though, litigation was just another way to lose. “Are you going to pay $8,000 to a lawyer to get back a $4,000 car?” asks Legal Aid Society lawyer Thomas O’Brien, who filed the suit that eventually forced the city’s reversal.

Some of those who did want to fight found it took months or years just to get a hearing, and a final decision took even longer. Often the only practical thing for the vehicle owner to do was give up and let the city keep the car. Or, as New Yorkers would say, fuhgeddaboudit.

But no longer. The courts said when the city seizes a car from a suspected drunk driver or other criminal, it has to schedule a hearing within 10 business days, and has the burden of demonstrating it has solid grounds for seizing and keeping the car. If it can’t, it has to return the vehicle — all within a couple of weeks instead of a couple of months or years.

What a concept — forcing the government to give citizens a prompt opportunity to assert their innocence and then make amends when the police err. It might just catch on.

Steve Chapman is a nationally syndicated columnist.

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