OPINION OF THE COURT
Chief Judge KAYE.
We are asked to consider the validity of Nassau County's civil forfeiture statute, pursuant to which defendant's car was seized.
On September 6, 2000, defendant was arrested and charged with driving while intoxicated, speeding and failure to signal. The 1995 Saturn automobile she had been driving, valued at $6,500, was seized incident to her arrest, and defendant was given notice of the possibility that the car might be forfeited to the County of Nassau. The car was impounded, where it remained throughout the pendency of defendant's criminal case.
In November 2000, defendant pleaded guilty to the traffic infractions of speeding and driving while impaired by alcohol
We note at the outset that, when implemented pursuant to a carefully drafted statute, civil forfeiture of automobiles can be an extremely effective tool in the battle against drunk driving. In the 34-month period following Nassau County's institution of a program in which the County routinely sought the forfeiture of automobiles used for intoxicated driving, drunk driving accidents decreased by 26%. Driving while intoxicated poses a grave risk of injury or death to innocent motorists and pedestrians. Nevertheless, because we conclude that the ordinance adopted by Nassau County did not satisfy constitutional requirements, we now affirm the order of the Appellate Division, which reached the same conclusion, albeit for different reasons.
Administrative Code § 8-7.0 (g) (3) provides:
The ordinance defines an "instrumentality of a crime" as "any property, other than real property and any buildings, fixtures, appurtenances, and improvements thereon, whose use contributes directly and materially to the commission of any offense" (Administrative Code § 8-7.0 [g]  [d]).
The prohibition against vagueness mandates that a criminal statute provide fair notice of the conduct that is proscribed and that it not permit or encourage arbitrary and discriminatory enforcement (see e.g. People v Bright, 71 N.Y.2d 376, 382 ). Of primary importance is "the requirement that a legislature establish minimal guidelines to govern law enforcement" (Kolender v Lawson, 461 U.S. 352, 358  [citation omitted]).
Misdemeanors are defined in the Penal Law, and petty offenses, in the Criminal Procedure Law.
Both the Federal and State Constitutions prohibit the imposition of excessive fines (see US Const 8th Amend; NY Const, art I, § 5). The Excessive Fines Clause thus "limits the government's power to extract payments, whether in cash or in kind, as `punishment for some offense'" (Austin v United States, 509 U.S. 602, 609-610  [citation omitted]). Forfeitures—payments in kind—are "fines" if they constitute punishment for an offense (see United States v Bajakajian, 524 U.S. 321, 328 ). As the County concedes, the civil forfeiture at issue here serves,
Inasmuch as a punitive forfeiture of an instrumentality of a crime "violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant's offense" (Bajakajian, 524 US at 334), we reject defendant's claim that the forfeiture of her car constituted an excessive fine. In determining gross disproportionality, we consider such factors as the seriousness of the offense, the severity of the harm caused and of the potential harm had the defendant not been caught, the relative value of the forfeited property and the maximum punishment to which defendant could have been subject for the crimes charged, and the economic circumstances of the defendant.
On the facts of this case, we conclude that the forfeiture of defendant's car was not at all disproportionate to the gravity of her offense. The offense with which she was originally charged—driving while intoxicated—is a very serious crime. Grievous harm to innocent victims could have been caused by defendant's driving with a blood alcohol level of .15% while speeding and weaving in and out of lanes, had she not been caught and stopped. Given the gravity of the crime of drunk driving, it is difficult to imagine that forfeiture of an automobile for such a crime could ever be excessive. Surely it was not so here.
We note, however, that since, pursuant to the ordinance, every conceivable offense—however minor—may be subject to forfeiture, limited only by the discretion of county officials in determining whether to invoke it, the potential for disproportionality is great. Moreover, without clear notice to the public that a particular punishment may be imposed for a particular offense, the deterrent effect of the penalty may be lost. In any event, the forfeiture of an automobile for a minor traffic infraction such as driving with a broken taillight or failing to signal would surely be "grossly disproportional to the gravity of a defendant's offense" (Bajakajian, 524 US at 334).
Although the County has, as a matter of policy, decided to focus its enforcement efforts on drunk driving arrests, the ordinance by its terms permits forfeiture for any offense. Moreover, the County advises us that the challenged Code provision is utilized to seek forfeiture in non-drunk driving cases as well. The statute itself is thus devoid of standards as to which petty
Defendant contends that by not affording her a hearing prior to the initial seizure of her car, the Administrative Code provision deprived her of property without due process of law. While we disagree that due process mandates a hearing prior to the initial seizure, we conclude that a prompt post-seizure hearing is required in all cases.
As a general rule, "individuals must receive notice and an opportunity to be heard before the Government deprives them of property" (United States v James Daniel Good Real Prop., 510 U.S. 43, 48 ). In limited circumstances, however,
When the forfeited property consists of a vehicle, the property's mobility creates "a special need for very prompt action that justifie[s] the postponement of notice and hearing until after
In the context of lawful arrests for driving while intoxicated, immediate seizure by the police of a defendant's car—the instrumentality of the crime of drunk driving—helps to secure important public and governmental interests in ensuring both safety on the roads and the enforceability of any subsequent forfeiture order. Here, inasmuch as she had been arrested for driving while intoxicated, defendant was both legally and physically incapable of driving. No one else was present with her in the car. In addition, an immediate seizure of the automobile— which could easily be removed to another jurisdiction, destroyed or concealed—was necessary to enable the County to assert jurisdiction over it in anticipation of a later forfeiture proceeding. A pre-seizure hearing was therefore not required.
After the County took initial possession of the vehicle, however, due process required that a prompt retention hearing be provided. Pursuant to the Nassau County Administrative Code, a civil action seeking forfeiture need not be commenced until 120 days have passed after the initial seizure (see Administrative Code § 8-7.0 [g] ). Once commenced, the action may not be finally resolved for many months or years, particularly because upon motion of either the defendant or the County, the action must be stayed during the pendency of the underlying criminal case (see id.).
In Mathews v Eldridge (424 U.S. 319, 335 ), the Supreme Court set forth three factors to weigh in determining whether due process is satisfied when the government seeks to maintain possession of property before a final judgment is rendered: (1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the probable value of other procedural safeguards; and (3) the government's interest. "These factors should be used to evaluate the adequacy of process offered in post-seizure, pre-judgment deprivations of property in civil forfeiture proceedings" (Krimstock v Kelly, 306 F.3d 40, 60 [2d Cir 2002]; see also Morgenthau v Citisource, Inc., 68 N.Y.2d 211, 221 ).
A balancing of these factors mandates that post-seizure hearings be routinely provided. Especially in light of the potential length of the deprivation before a final determination on the merits, the private interest affected by the deprivation of an automobile may be significant. When cars are owned by others or shared among household members, for example, seizure may
A prompt post-seizure hearing will minimize the risk of erroneous deprivation. Of course, it may well be that the County will be able to establish at such hearings its entitlement to seize and retain the vehicles of most defendants arrested without a warrant for driving while intoxicated. The right to be heard, however, "does not depend upon an advance showing that one will surely prevail at the hearing" (Fuentes, 407 US at 87). Moreover, greater procedural safeguards are of particular importance where, as here, "the Government has a direct pecuniary interest in the outcome of the proceeding" (James Daniel Good, 510 US at 56).
In addition, even if the County is able to show easily that it had probable cause to believe that the driver of the seized vehicle had been driving while intoxicated, the risk of erroneous deprivation is heightened when the driver is not the owner or sole user of the seized vehicle. Although the Nassau County Police Department has adopted procedures whereby it attempts to limit forfeitures to vehicles not subject to a defense of innocent ownership, the statute itself contains no such limitation. "A statute that authorizes the police to seize property to which the government has not established a legal right or claim, and that on its face contains no limitation of forfeiture liability for innocent owners, raises substantial constitutional concerns" (Krimstock, 306 F3d at 57).
The absence of such a limitation in the challenged Code provision therefore renders the ordinance, as written, unconstitutional on that ground as well (cf. CPLR 1311  [b] [iv] [state forfeiture statute applicable to felonies requires the claiming authority to prove by a preponderance of the evidence that an owner who is not a criminal defendant either "knew that the instrumentality was or would be used in the commission of a crime or . . . knowingly obtained his or her interest in the instrumentality to avoid forfeiture"]). In any event, even were
The final factor to consider in determining the process that is due is the government's interest in retaining cars post-seizure and pre-judgment. Of course, retention of an intoxicated driver's car pending resolution of the forfeiture action advances the public interest in preventing the vehicle from being used for repeated drunk driving. Nevertheless, while retention of a car indeed prevents a defendant from again driving that particular car drunk, it does little to prevent the person from driving another car drunk. The County asserts, though, that—while not a perfect solution as to all defendants—retention of seized vehicles will at least prevent some defendants, who have no access to other cars, from driving while intoxicated. We agree that retention is a rational means of protecting the public from an increased risk of drunk drivers. We hold only that due process requires that the County establish its right to such justifiable retention after affording the defendant an opportunity to be heard.
The County also has an interest in preventing the vehicle from being sold or destroyed before judgment is rendered in a future forfeiture proceeding. Continued retention of the car throughout the pendency of the forfeiture action, however, is not the only means available to accomplish this goal. The County could, for example, require that a defendant post a bond or seek a preliminary injunction or temporary restraining order prohibiting the sale or destruction of the property.
We therefore conclude, after balancing these considerations, that due process requires that a prompt post-seizure retention hearing before a neutral magistrate be afforded, with adequate notice, to all defendants whose cars are seized and held for possible forfeiture. At such a hearing, the County must establish that probable cause existed for the defendant's initial warrantless arrest, that it is likely to succeed on the merits of the forfeiture action,
We note that although no provision for post-seizure hearings is contained in the challenged ordinance, Nassau County has nevertheless been affording such hearings to defendants who affirmatively request them. In County of Nassau v Bigler (2001 NY Slip Op 50144[U] [Sup Ct, Nassau County, Roberto, J.]), Nassau County Supreme Court held, as a matter of due process, that if a defendant affirmatively challenged the adequacy of a forfeiture action, the County could not retain a seized vehicle without moving for and obtaining either summary judgment or a provisional order of attachment pending the conclusion of the action. The court held, however, that, in the absence of any such challenge by the owner, the County had no burden to prove entitlement to the retention of the vehicle. In the wake of Bigler, the County has been routinely affording prompt judicial review to defendants who challenge the pre-conviction seizures of their vehicles.
Finally, we recognize that the County—in adding provisions to its ordinance during the course of this appeal—has already taken steps to address some of the issues we identify here today. Nevertheless, because the statute suffers from a variety of procedural defects, the County would perhaps be well served by rewriting the ordinance—originally enacted in 1939—in its entirety.
Accordingly, the order of the Appellate Division should be affirmed, with costs.
Order affirmed, with costs.