§ 822-6. Impoundment, redemption and forfeiture., Article I. All-Terrain Vehicles, Chapter 822. Vehicles, Off-Road, Part II. Regulatory Local Laws, Code of Ordinances, Suffolk County

Any ATV used in violation of Subsection C of § 822-5 of this article shall be subject to seizure by any peace officer or police officer acting pursuant to his or her special duties, upon probable cause to believe that a crime, as defined in § 822-5C, has been committed, and may be forfeited as hereafter provided. If the ATV is not forfeited, the owner may redeem the vehicle only upon payment of a redemption fee of $3,000. Failure to commence a forfeiture action within 120 days after the seizure shall result in the immediate return of the ATV to its lawful owner as of the time of the seizure.

(1)

A civil action shall be commenced by the County Attorney, or his or her designees, against a criminal defendant to forfeit a seized ATV which is used as the instrumentality of a crime if it can be demonstrated that the ATV was seized in connection with the criminal action of an individual who has been twice convicted of a violation of either § 822-3A or B within the previous five years, except that no ATV shall be forfeited by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than the owner while the subject property was unlawfully in the possession of a person other than the owner.

(2)

A civil action may also be commenced against a noncriminal defendant to forfeit an ATV used as the instrumentality of a crime subject to the same exceptions contained in Subsections A and B of this section.

(3)

All actions commenced under this article shall be governed by the procedures enumerated in Article 13-A of the New York Civil Practice Law and Rules, where not specifically outlined herein.

(4)

The seizing agency shall send notification of the seizure to all titled owners, registrants and lien holders on file with the New York State Department of Motor Vehicles at the address on file with the New York State Department of Motor Vehicles by certified mail, return receipt requested, within five business days after the seizure. Such notification shall inform the recipient that there is a right to an administrative preliminary hearing to determine whether probable cause exists to believe that the property was used as the instrumentality of a crime, and that any person or entity claiming an interest in the property may request a hearing within 15 days of the seizure. When desired, the request must be made in writing, by certified mail, return receipt requested, to the seizing agency at the address contained in the notification. The seizing agency shall schedule the hearing within 10 business days after the request is received or as soon as practicable thereafter.

(5)

When an administrative preliminary hearing is held, the administrative hearing officer shall review the documents supporting the seizure and any other relevant documents and take any testimony to determine whether there is probable cause to believe that the property was used, was attempted to be used, or was intended to be used as the instrumentality of a crime, If probable cause is established by the claimant, the hearing officer shall authorize the seizure and continued retention of the property by the seizing agency pending a judicial determination of the ancillary civil forfeiture action. The administrative hearing officer shall render a ruling within five business days after such hearing, with a copy of such ruling to be provided to all parties.

(6)

No ATV shall be forfeited under this article to the extent of the interest of an owner or lien holder by reason of any act or omission established by that owner or lien holder to have been committed without the knowledge of that owner or lien holder or without the consent of that owner or lien holder. The owner or lien holder must have taken all prudent steps to prevent the illegal use of his or her property. Willful disregard by the owner or lien holder of the acts giving rise to forfeiture shall not constitute a defense to such forfeiture.

(7)

Any action to forfeit a seized ATV under this article shall be commenced within 120 days after the seizure, and said action shall be civil, remedial in nature, and shall not be deemed to be a penalty or criminal forfeiture for any purpose. An action under this article shall not be deemed a criminal proceeding of any type. The action shall be commenced in the manner prescribed by the New York Civil Practice Law and Rules. Potential claimants to the seized asset shall be served with a summons and notice or summons and verified complaint. No ATV shall be forfeited without service of notice upon potential claimants to the seized ATV and the opportunity for a hearing given prior to such forfeiture.

(8)

In order to establish its case in any action commenced under this article, the County shall demonstrate, by clear and convincing evidence, that the ATV in question is subject to forfeiture at the time of commission of the crime which precipitated the seizure or the commencement of an action for the seizure of the property without regard to the final determination of any criminal actions brought against the individual for such crime. The owner or lien holder of the ATV shall then have the burden of proving a lack of knowledge or lack of consent on behalf of said owner or lien holder sufficient to constitute a defense to such forfeiture.

(9)

All ATVs seized pursuant to this article shall be subject to reasonable and customary towing and daily storage fees. Such fees shall be payable to the seizing agent prior to the release of said property.