Professor Richman and many other legal experts said that while most constitutional issues connected to forfeiture have been settled, there are several legal questions that the courts are likely to confront as drivers challenge Mr. Giuliani's strategy. Just last year, the United States Supreme Court, for the first time, struck down an aspect of the Federal Government's use of forfeiture. But the majority determined that seizing such a large sum for such a relatively small violation was excessive and thus unconstitutional. Similarly, a driver seeking to recover a car confiscated under New York's new initiative might argue that the punishment for the same crime, driving while intoxicated, could vary greatly, depending on the value of a car. The city's effort undoubtedly will be challenged on statutory grounds as well.
State law permits the seizing of property used in the commission of felonies.
Norman Siegel, executive director of the New York Civil Liberties Union, said he planned to challenge whether the city has the power to seize the cars of anyone accused of drunken driving for the first time. Mr. Siegel said he had agreed yesterday to help represent a driver whose car was confiscated on Sunday, Pavel Grinberg of Staten Island, who was accused of drunken driving for the first time. But the Mayor and city lawyers are convinced that the forfeitures would be upheld. Under a provision of the city's Administrative Code enacted in 1943, the police are empowered to seek the forfeiture of property used in the commission of a crime. The city's provision predates the state law on forfeiture by 41 years, said Daniel S. Connolly, special counsel to Michael D. Hess, the city's Corporation Counsel.