Article from: www.thenewspaper.com/news/51/5126.asp

1/13/2017

Federal Appeals Court Upholds Ferrari Confiscation
US Court of Appeals says county was right to confiscate Ferrari from owner before he was convicted of DUI.

The Second Circuit US Court of Appeals upheld the government's confiscation of James B. Ferrari's Ferrari in a ruling last week. Officials in Suffolk County, New York had grabbed the 2003 Ferrari Modena coupe, valued at $95,000, after Ferrari was stopped and accused of driving under the influence of alcohol (DUI) on May 26, 2009.

A police officer saw the Ferrari allegedly reaching speeds over 100 MPH on South Country Road in Bellport. Ferrari was arrested and his Ferrari confiscated under the state's drunk driving statute. Ferrari's attorney argued the Due Process clause of the Constitution required the exotic automobile be returned after his client posted a bond -- at least while the charges were being litigated in court. At that point, Ferrari had not be found guilty of any crime. Ferrari's attorney insisted that it was the county's burden to prove the seizure was the only possible remedy to the situation, and a judge and jury both agreed. They ordered the county to pay $95,000 to Ferrari to compensate for the loss of his automobile.

A three-judge appellate panel overturned that judgment in last week's decision, pointing to Ferrari's long and sordid history of serious driving offenses, including past DUIs. The court also rejected the notion that a $95,000 penalty violated the Eighth Amendment prohibition on excessive fines by citing New York's highest court, which held "it is difficult to imagine that forfeiture of an automobile for such a crime could ever be excessive."

"Indeed, if the ultimate forfeiture of a car may validly serve the purpose of preventing this forfeited item of property from being further used as an instrumentality of crime, it is not evident why retention pendente lite [i.e. while litigation is pending] cannot serve, in at least some circumstances, a similar purpose," Judge Debra Ann Livingston wrote for the Second Circuit.

The appellate court insisted that due process protections were only meant to protect innocent owners from having their cars taken without an opportunity to be heard. The county asserted seizure was needed to protect both the Ferrari and the public from harm, and the appellate panel held that it was proper to require Ferrari to prove that posting a bond was the superior alternative.

"We have long held that, in a situation where evidence of a particular matter is uniquely in the possession of a given party, due process permits shifting the burden of production, where appropriate, to that party," Judge Livingston wrote. "There is simply no justification for requiring the process Ferrari demands in the name of reducing the likelihood of wrongful deprivation of his property."

It is not necessarily true that the public is safer when government agents seize a valuable Ferrari. In 2008, the FBI grabbed a 1995 Ferrari F50 worth $750,000, which Assistant US Attorney J. Hamilton Thompson and an FBI agent proceeded to take on a joyride that wrecked the Ferrari. Federal officials refused to pay the insurance company that held the vehicle's title for the damage caused while the rare vehicle was in their custody.

In addition to having his car confiscated, Ferrari was sentenced to five years' probation and a three-year license suspension. A copy of the ruling is available in a 400k PDF file at the source link below.

Source: Ferrari v. Suffolk County (US Court of Appeals, Second Circuit, 1/4/2017)

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