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People v. One 2000 GMC VIN 3GNFK16T2YG169852
State: Illinois
Court: 2nd District Appellate
Docket No: 2-04-0744 Rel
Case Date: 05/27/2005

No. 2--04--0744
IN THE
 
APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Du Page County.
  )  
                Plaintiff-Appellee, )  
  )  
v. ) No. 02--MR--1074
  )  
ONE 2000 GMC )  
VIN 3GNFK16T2YG169852, )  
  )  
               Defendant ) Honorable
  ) Bonnie M. Wheaton,
(Daniel Durham, Claimant-Appellant). ) Judge, Presiding.

JUSTICE HUTCHINSON delivered the opinion of the court:

Claimant, Daniel Durham, appeals from the judgment of the circuit court of Du Page Countyin favor of the State on its complaint for the forfeiture of a GMC vehicle owned by Durham. Durhamcontends that the forfeiture violates the prohibition against excessive fines set forth in the eighthamendment to the United States Constitution (U.S. Const., amend. VIII). Durham also contends thatthe State failed to comply with certain procedural requirements for forfeiture. We affirm.

On October 18, 2002, the State filed its complaint for the forfeiture of Durham's vehicle. Thecomplaint sought forfeiture solely on the basis that the vehicle had been used in the commission ofthe offense of driving with a suspended license (625 ILCS 5/6--303(a), (g) (West 2002)). The vehiclewas seized from Durham after he was arrested for that offense and for driving under the influence ofalcohol (DUI) (625 ILCS 5/11--501 (West 2002)). Durham subsequently pleaded guilty to bothoffenses. At the time of his arrest, a summary suspension of Durham's driver's license was in effectpursuant to section 11--501.1 of the Illinois Vehicle Code (Vehicle Code) (625 ILCS 5/11--501.1(West 2002)). Pursuant to a judicial driving permit, Durham was allowed to drive between 5:30 a.m.and 7:30 p.m., but his arrest occurred at 12:54 a.m. The record establishes that the vehicle was worth$28,000. Durham filed an answer to the State's complaint, and following a hearing, the trial courtordered the forfeiture of the vehicle. Durham filed a timely notice of appeal.

Section 36--1 of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/36--1 (West 2002))provides, in pertinent part, that "[a]ny vessel, vehicle or aircraft used with the knowledge and consentof the owner in the commission of, or in the attempt to commit *** (g) an offense described insubsection (g) of Section 6--303 of the Illinois Vehicle Code[] may be seized and delivered forthwithto the sheriff of the county of seizure." Section 36--2 of the Criminal Code (720 ILCS 5/36--2 (West2002)) authorizes the State's Attorney of the county in which the seizure occurred to file a complaintseeking forfeiture of the seized vehicle. Section 6--303(a) of the Vehicle Code (625 ILCS 5/6--303(a) (West 2002)) provides that a person commits a Class A misdemeanor by driving on anyhighway when his or her license has been suspended. Section 6--303(g) provides, in pertinent part,that "[t]he motor vehicle used in a violation of this Section is subject to seizure and forfeiture asprovided in Sections 36--1 and 36--2 of the Criminal Code of 1961 if the person's driving privilegewas *** suspended *** as a result of a summary suspension [under section 11--501.1 of the VehicleCode]." 625 ILCS 5/6--303(g) (West 2002).

The record shows that the statutory criteria for seizure and forfeiture have been met, butDurham initially contends that the forfeiture nonetheless violates the eighth amendment to the UnitedStates Constitution, which prohibits, among other things, the imposition of "excessive fines" (U.S.Const., amend. VIII). This prohibition "limits the government's power to extract payments, whetherin cash or in kind, 'as punishment for some offense.' " (Emphasis in original.) Austin v. UnitedStates, 509 U.S. 602, 609-10, 125 L. Ed. 2d 488, 497, 113 S. Ct. 2801, 2805 (1993), quotingBrowning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 265, 106 L. Ed.2d 219, 232, 109 S. Ct. 2909, 2915 (1989). Civil forfeiture proceedings serve, at least in part, topunish the owner of the property subject to forfeiture and are therefore subject to the excessive finesclause even though the forfeiture may also serve a remedial purpose. Austin, 509 U.S. at 618, 621-22, 125 L. Ed. 2d at 503, 505-06, 113 S. Ct. at 2810, 2812. However, a punitive forfeiture violatesthe excessive fines clause if it is grossly disproportional to the gravity of the offense for which it isforfeited. United States v. Bajakajian, 524 U.S. 321, 334, 141 L. Ed. 2d 314, 329, 118 S. Ct. 2028,2036 (1998). Application of the constitutional standard for determining excessiveness to a given setof facts presents a question of law subject to de novo review. Bajakajian, 524 U.S. at 336 n.10, 141L. Ed. 2d at 331 n.10, 118 S. Ct. at 2037 n.10.

In People ex rel. Waller v. 1989 Ford F350 Truck, 162 Ill. 2d 78 (1994), our supreme courtadopted a multifactor analysis of the eighth amendment excessiveness issue. 1989 Ford F350 Truck,162 Ill. 2d at 89. Specifically, the court held that the determination of excessiveness requiresconsideration of the following factors:

" '(i) the inherent gravity of the offense compared with the harshness of the penalty; (ii)whether the property was an integral part of the commission of the crime; and (iii) whetherthe criminal activity involving the defendant property was extensive in terms of time and/orspatial use.' " 1989 Ford F350 Truck, 162 Ill. 2d at 90, quoting United States v. RealProperty Located at 6625 Zumirez Drive, 845 F. Supp. 725, 732 (C.D. Cal. 1994).

The court noted, however, that these factors are not exclusive. 1989 Ford F350 Truck, 162 Ill. 2dat 90.

A divided panel of this court elaborated on these factors in People ex rel . Waller v. 1996Saturn, VIN 1G82H5282TZ113572, 298 Ill. App. 3d 464 (1998), in which the State secured theforfeiture of a vehicle on the basis that it had been used in the commission of burglaries involving thetheft of about $100 in cash and other property. In affirming the forfeiture, the majority indicated thatthe value of the seized property is germane to assessing the harshness of the penalty, but noted that"a court must consider not only the monetary value of the property forfeited but also the intangiblevalue of the property." 1996 Saturn, 298 Ill. App. 3d at 472. Forfeiture of personal property is lessharsh than forfeiture of real estate. 1996 Saturn, 298 Ill. App. 3d at 472. The majority specificallyrejected the claimant's argument that the court should simply compare the value of the forfeitedproperty with the value of the stolen property. 1996 Saturn, 298 Ill. App. 3d at 471. As far as thegravity of the offense is concerned, the majority stated that relevant factors include whether the crimewas one of violence; whether the offense was a completed crime (as opposed to an attempted one);whether the conduct involved was intentional or negligent; and whether the claimant was convicted,acquitted, or never charged with a criminal offense. 1996 Saturn, 298 Ill. App. 3d at 471-72. Themajority explained that comparing the maximum fine for the offense with the value of the seizedproperty is not a proper way to gauge excessiveness, although the maximum fine for the offense isrelevant to determining the gravity of the offense. 1996 Saturn, 298 Ill App 3d at 471.

Mindful of these principles, we cannot say that the forfeiture here was grossly disproportionalto Durham's offense. We first consider the inherent gravity of Durham's offense: driving with asuspended license. Although Durham argues that his offense was only a misdemeanor, it is importantto recognize that sections 36--1 and 36--2 do not authorize the seizure and forfeiture of vehicles usedin all cases of driving with a suspended license. Rather, in such cases, seizure and forfeiture areauthorized only where (as here) a vehicle owner's driving privileges have previously been summarilysuspended under section 11--501.1 of the Vehicle Code. Summary suspension is imposed where amotorist who has been arrested for DUI fails or refuses to submit to testing of the alcohol level of hisor her blood, breath, or urine. 625 ILCS 5/11--501.1 (West 2002). Thus, the offense in questionmust be considered with reference to the objective of keeping alcohol-impaired drivers off the road. The summary suspension law "reflects the concern of the legislature over the threat to the publicimposed by drivers impaired by alcohol or other drugs and serves to deter and remove problemdrivers from the highways, thus making the highways safer." People v. Bailey, 243 Ill. App. 3d 871,873 (1993). Driving in violation of a summary suspension seriously undermines this important publicpolicy, subverting legislative efforts to keep roads safe. Viewed in this light, Dunham's offense iscomparable in severity to DUI. In its basic form, DUI is a Class A misdemeanor (625 ILCS 5/11--501(c) (West 2002)), as is Durham's offense. Indeed, driving with a license that has been summarilysuspended carries mandatory jail time or community service. 625 ILCS 5/6--303(c)(4) (West 2002). First-time DUI offenders do not face this mandatory penalty.

There can be no question that the presence of intoxicated motorists on Illinois roads is aserious threat to public safety. Society's decreasing tolerance in recent years for impaired drivers isreflected in legislation lowering the legal limit for a driver's blood-alcohol level (Pub. Act 90--43, eff.July 2, 1997) and increasing penalties for repeat offenders (e.g., Pub. Act 92--248, eff. August 3,2001). As noted, whether the crime was one of violence is a consideration in determining its gravity. It is true that Durham's crime was not one of violence, but the public safety considerations we haveidentified exacerbate the offense and arguably set it apart from other nonviolent offenses. Moreover,although Durham's offense was a misdemeanor rather than a felony, it is in the most serious class ofmisdemeanors (Class A) and carries potentially severe penalties--any term of imprisonment of lessthan a year (730 ILCS 5/5--8--3(a)(1) (West 2002)) and a fine of up to $2,500 (730 ILCS 5/5--9--1(a)(2) (West 2002)). Moreover, as noted above, Durham's offense carries mandatory jail time orcommunity service.

We note that courts in other jurisdictions have upheld vehicle forfeitures based on DUI. SeeAnnotation, Validity, Construction, and Application of Statute Permitting Forfeiture of MotorVehicle for Operation of Vehicle While Intoxicated, 89 A.L.R. 5th 539

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