Judge to Edina: Give back the car keys

  • Article by: CHAO XIONG , Star Tribune
  • Updated: October 28, 2009 - 11:15 PM

A car impounded in a DWI arrest belonged to the driver's mother. It took five months and a judge to get it released.

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Kristin Brown chatted with an employee of Kustum Karriers in Hopkins, where her impounded Jeep has been stored. The vehicle was seized by Edina police in June when Brown’s son was charged with DWI. Her attorney successfully argued against the forfeiture attempted by Edina and now wants the law changed.

Photo: David Joles, Star Tribune

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Kristin Brown was looking forward to a little mobility and freedom this summer after caring for her disabled husband for four years and undergoing surgeries that left her in pain. But her plans went out the window in June, when her son was charged with driving impaired in her car.

Edina police impounded Brown's Jeep Grand Cherokee, started legal forfeiture proceedings and destroyed the license plates, even though there was no dispute that the car belongs to Brown and her husband, not her son.

Brown's five-month fight to get the vehicle back ended last week when a judge ordered that Edina release it to her and pay the impound fees.

"It's been a really big hardship," said Brown, 57. "Awful."

Edina police defend what they did, asserting they had the law on their side. Brown's attorney says that when it comes to forfeitures, the Legislature has stacked the deck against property owners and that the law should be changed.

Police said their priority is to keep cars away from repeat offenders. Brown's son, Chris Brown-McCarthy, 21, has a drunken driving conviction from 2007.

"We do take a hard line on it," said Edina Police Chief Mike Siitari. "We do get this occasionally, that, 'It's my car. I didn't know anything about it.' We take a look at it with a jaundiced eye."

On June 6, police arrested Brown-McCarthy on suspicion of second-degree drunken driving. He had a blood-alcohol level of 0.25, more than three times the legal limit, police said.

Brown's attorney, Jay Carey, argued that the vehicle was not subject to forfeiture because the owners, Brown and her husband, Scott Haney, weren't complicit, even if a crime occurred.

Carey cited Minnesota Statute 169A.63, subd. 7(d):

"A motor vehicle is not subject to forfeiture under this section if its owner can demonstrate by clear and convincing evidence that the owner did not have actual or constructive knowledge that the vehicle would be used or operated in any manner contrary to law or that the owner took reasonable steps to prevent use of the vehicle by the offender."

But the law requires owners to prove their innocence, not for authorities to prove the owners' guilt. And the law allows police to seize a vehicle driven by a suspected impaired driver even if he or she doesn't own it, given that certain criteria are met.

That includes a driver with two drunken driving convictions in 10 years, having a blood-alcohol concentration of 0.20 or more while driving with a child under the age of 16, and, as is alleged in Brown-McCarthy's case, having a previous DWI conviction and a blood-alcohol concentration over 0.20.

Carey doesn't contest the legality of what police did, but he said authorities should have cooperated with his client and settled the issue out of court. He also criticized the law.

"It's an unfairly written statute," he said. "This overriding concern of the Legislature for public safety has trampled individual liberties and property rights, and that balance needs to be fixed."

Siitari said the city doesn't go easy on car owners whose vehicles have been used by suspected drunken drivers because some owners cover up for the driver.

"We look at this as a one way to put an end to [DWI]," he said. "You see it regularly, repeat offenders don't have cars in their names. They still drive. Under these circumstances, I would prefer to have a neutral party determine" if the owner gets the car back.

The release of Brown's car was to be delayed until after Nov. 16, a routine step to allow the city time to appeal the decision. Siitari said the city doesn't plan to appeal. The attorney who represented the city, Patrick Leach, did not return calls seeking comment.

Carey also represents Brown-McCarthy in his drunken-driving case, scheduled for a hearing Dec. 16. Carey said he will challenge the accuracy of the machine that allegedly measured his client's blood-alcohol concentration.

Brown, of Richfield, said she had to scuttle plans to take a writing class at The Loft in Minneapolis and a drawing or art class because her car was impounded.

Haney has a large pickup truck, but Brown said it's too big and intimidating for her to drive, and health issues her husband has make it impractical for him to drive regularly. She said that has caused the family to miss a several appointments, including visits to the doctor and dentist.

"I have no freedom, basically," Brown said.

Chao Xiong • 612-673-4391

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