No. 2--03--0458

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

In this appeal, we are faced with the question of whether the civil forfeiture of a vehicle undersection 36--1 of the Criminal Code of 1961 (720 ILCS 5/36--1 (West 2000)) is barred by theclaimant's acquittal of the underlying criminal charge. We hold that the acquittal does not collaterallyestop the State from pursuing the vehicle forfeiture.

The claimant, Edward Stadtler, was arrested on September 29, 2001, and charged with Class4 felony driving under the influence of alcohol (DUI) (625 ILCS 5/11--501(a)(1), (c-1)(1) (West2000)) and driving while his license was revoked (625 ILCS 5/6--303(a) (West 2000)). The claimantwas charged with Class 4 felony DUI because at the time of the arrest, the claimant's driver's licensewas revoked for a conviction of leaving the scene of a motor vehicle accident involving personalinjury or death. See 625 ILCS 5/11--401 (West 2000). On December 11, 2001, while the criminalcharges were pending, the State filed a complaint under section 36--1 for forfeiture of the claimant'svehicle, the 1995 Ford van that is the defendant in this case. The State alleged that the van wassubject to forfeiture because it had been used to commit Class 4 felony DUI.

On December 6, 2002, following a bench trial on the criminal charges, the claimant was foundnot guilty of DUI and guilty of driving while his license was revoked. On January 3, 2003, theclaimant moved for summary judgment in the civil forfeiture proceeding. The claimant argued thatbecause he had been acquitted of the DUI charge that formed the basis of the State's forfeiturecomplaint, the State was collaterally estopped from relitigating the issue of whether he had committedthe crime. The trial court granted the motion, and the State timely appealed. On appeal, the Stateargues that the claimant's criminal acquittal of DUI does not bar the civil forfeiture proceeding againstthe van.

Summary judgment is appropriate where the pleadings, depositions, admissions, and affidavitson file, when viewed in the light most favorable to the nonmoving party, show that there is no genuineissue of material fact and the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2--1005(c) (West 2002); General Casualty Insurance Co. v. Lacey, 199 Ill. 2d 281, 284 (2002). Wereview a grant of summary judgment de novo. General Casualty Insurance Co., 199 Ill. 2d at 284.

Section 36--1 provides that "[a]ny *** vehicle *** used with the knowledge and consent ofthe owner in the commission of *** [Class 4 felony DUI] *** may be seized." 720 ILCS 5/36--1(West 2000). After the vehicle has been seized, the State may bring a forfeiture action. 720 ILCS5/36--2 (West 2000). We note that the current version of section 36--1 allows for a vehicle seizureif, as in this case, the claimant was driving while his license was revoked for leaving an accident scene. 720 ILCS 5/36--1 (West 2002); see 625 ILCS 5/6--303(g) (West 2002). However, the new provisionis not applicable here because it became effective after the claimant's arrest. Thus, we consider onlythe DUI allegation.

The primary rule of statutory construction is to ascertain and give effect to the legislature'sintent. Carver v. Sheriff of La Salle County, 203 Ill. 2d 497, 507 (2003). The best indication of thatintent is the statute's language. Carver, 203 Ill. 2d at 507. However, since section 36--1 does notmention what effect a criminal acquittal of the underlying charge would have on the forfeitureproceeding, we must look beyond the statute's language to determine the legislature's intent.

A forfeiture proceeding under section 36--1 is a civil, in rem proceeding against property thatwas used in the commission of an offense. People ex rel. Hanrahan v. One 1965 Oldsmobile, 52 Ill.2d 37, 41 (1972), rev'd on other grounds, 409 U.S. 38, 34 L. Ed. 2d 47, 93 S. Ct. 30 (1972). Assuch, the State needs to prove its right to the property by a preponderance of the evidence rather thanbeyond a reasonable doubt. 720 ILCS 5/36--2 (West 2000); People ex rel. Power v. One 1979Chevrolet Camaro, 96 Ill. App. 3d 109, 112 (1981). It is well settled that a conviction is not aprerequisite to a proceeding under section 36--1. One 1965 Oldsmobile, 52 Ill. 2d at 41-42.

Here, the trial court ruled that the claimant's criminal acquittal of the DUI charge collaterallyestopped the State from pursuing the vehicle forfeiture. The doctrine of collateral estoppel appliesto both civil and criminal actions. People v. Buonavolanto, 238 Ill. App. 3d 665, 670 (1992). Itprovides that an issue that has been raised and decided by a court of competent jurisdiction cannotsubsequently be relitigated between the same parties in the same or a different cause of action. Buonavolanto, 238 Ill. App. 3d at 670.

The State argues that collateral estoppel does not apply, citing United States v. OneAssortment of 89 Firearms, 465 U.S. 354, 79 L. Ed. 2d 361, 104 S. Ct. 1099 (1984). There, afterthe claimant was criminally acquitted of dealing in firearms without a license, the government soughtto forfeit the seized firearms. The claimant argued, among other things, that the forfeiture wasprohibited by collateral estoppel. One Assortment of 89 Firearms, 465 U.S. at 355-57, 79 L. Ed. 2dat 364, 104 S. Ct. at 1101-02. The United States Supreme Court disagreed, holding that theclaimant's acquittal of the criminal charge did not bar the government from relitigating the same issuesin the forfeiture proceeding. The Court reasoned that, when a civil forfeiture proceeding follows anacquittal of underlying criminal charges, "the difference in the relative burdens of proof in the criminaland civil actions precludes the application of the doctrine of collateral estoppel." One Assortmentof 89 Firearms, 465 U.S. at 361-62, 79 L. Ed. 2d at 368, 104 S. Ct. at 1104.

The State also cites People v. One 1979 Chevrolet C-20 Van, 248 Ill. App. 3d 640 (1993).There, following a 1988 traffic stop, the claimant was charged with possession with intent to delivermarijuana and possession of marijuana. The claimant was acquitted of the former charge and wasconvicted of the latter charge. One 1979 Chevrolet C-20 Van, 248 Ill. App. 3d at 642. As in thiscase, the claimant moved for summary judgment in the related vehicle forfeiture proceeding, arguingthat her criminal acquittal of the charge on which the forfeiture action was based prohibited furtherlitigation of the issue. The trial court agreed, ruling that res judicata and collateral estoppel barred theforfeiture proceeding. One 1979 Chevrolet C-20 Van, 248 Ill. App. 3d at 643. On appeal, this courtreversed the trial court's decision, holding that collateral estoppel did not apply. We cited OneAssortment of 89 Firearms for the proposition that a claimant's acquittal of criminal charges does notestop the State from relitigating the same issues in a forfeiture proceeding. One 1979 Chevrolet C-20Van, 248 Ill. App. 3d at 644. We also parenthetically noted that in 1990, the legislature enacted theDrug Asset Forfeiture Procedure Act (Act) (725 ILCS 150/1 et seq. (West 1992)), which states thata criminal acquittal does not bar a civil forfeiture action (725 ILCS 150/9(J) (West 1992)). One 1979Chevrolet C-20 Van, 248 Ill. App. 3d at 645.

The claimant in this case argues that One 1979 Chevrolet C-20 Van is distinguishable becausethat forfeiture arose under the Act rather than section 36--1. The claimant points out that while the Act specifically states that a criminal acquittal will not bar a forfeiture action, section 36--1 does notinclude such language. Citing the doctrine of expressio unius est exclusio alterius, the claimantmaintains that this difference shows that the legislature intended to treat the two forfeiture proceedingsdifferently and allow collateral estoppel to apply to proceedings under section 36--1. We disagree. To begin with, in One 1979 Chevrolet C-20 Van we were interpreting the 1987 version ofsection 12(a)(3) of the Cannabis Control Act (Ill. Rev. Stat. 1987, ch. 56