The Sunday Oakland Press reported that recently elected Oakland County Prosecuting Attorney Jessica Cooper has announced a new vehicle forfeiture program for Michigan drivers accused of repeat drunk driving. First offenders accused of drunk driving causing death will also be included in the program.
There are many potential problems with this program and first among them is that law enforcement officers, including prosecuting attorneys, derive a direct benefit from the money collected from forfeiture. This connection between the forfeiture and the money collected provides too much incentive for abuse.
There is a secondary problem in that there are few “checks and balances” with Oakland County’s program. The prosecuting attorney and the police officer are both part of the executive branch of government. The judges of course are part of the judicial branch of government and at least in theory, are supposed to “check” the potential abuses of the executive branch.
Cooper’s office has already told certain judges that if they try to “check” vehicle forfeiture then there will be a price to pay. According to Judge Kuhn (and as reported in the Oakland Press), Cooper sent an email saying essentially that “if you try to challenge me (and my use of forfeiture) then we won’t participate in your sobriety court program.” It is exactly such abuse of power that our founders sought to avoid with our system of checks and balances.
Here how the Oakland Press article describes Cooper’s vehicle forfeiture program:
When someone is arrested for a second or subsequent offense of operating a vehicle while intoxicated, a police officer will give that person a notice of intent to forfeit. The vehicle is usually impounded at the time of arrest.
A police officer will prepare an ex-parte order of emergency seizure and fax it to the prosecutor’s office’s new Economic Recovery Section for review. If an assistant prosecutor believes the case meets criteria, he or she will sign the seizure order and give it back to police. Officers from the arresting agency will present the order and a supporting affidavit to a judge.
If a judge decides that there is enough probable cause by which the vehicle is subject to forfeiture, the judge then signs the ex-parte order of emergency seizure and the vehicle is seized and held.
A person can contest the seizure and seek a hearing. They also can settle the matter out-of-court by paying either $900 or $1,800 to avoid vehicle forfeiture.
The Oakland Press article suggests that the money collected from this process is then divvied up with the prosecutor’s office getting 25% and the police agency making the arrest getting 50%.
Another problem with Cooper’s program is that might be illegal. Again, according to the Oakland Press article, Judge Powers of the Novi Michigan District Court said he can’t find any authority for the prosecutor’s program. According to the Judge the law does not allow forfeiture pre-conviction. The Oakland County Prosecutor claims that the program is legal and does not first require a conviction.
Why the difference of opinion, and who is right? To answer this question it will first help to understand the history of forfeiture cases in this country.
We get much of our law in this country from England. In fact, every law student in the country will learn about some ancient English cases when learning about property law, and it is from old England that we derive forfeiture in this country.
Back in the old days of kings and queens all of the property in the kingdom was thought to be owned by the crown. Back then there really was no concept of private property rights, and when our founders wrote the Constitution, they wanted to make sure that this was changed because property rights were and are fundamental to freedom and liberty. This is one of the reasons why our Constitution says that a person may not be deprived of life liberty or property without due process of law. (A fancy way of saying that judges should keep the police from illegal or abusive seizure of property).
So, if you lived in old England, and you used property to commit a crime, then the crown had the right to take back that property. This was called forfeiture because by committing the crime you “forfeited” your possession of the property back to its true owner - the crown.
In the United States this law was rarely used until Ronald Reagan’s “war on drugs.” Under the Reagan administration there was a desire to take the profit out of the drug trade, so that if money possessed by drug dealers could be traced back to the sale of drugs, the government could take the money.
But the idea of forfeiture actually goes back almost to the beginning of recorded history. According to the book: United States and Civil in rem Forfeiture: The History and Its Ancient Roots:
The practice of civil in rem forfeiture has roots in ancient codes and commandments. It is found in the common law doctrine of deodand and in the laws of the nomadic agricultural Israelites. In the second section of the Torah or Book of the Law known as the Book of Exodus there are three groups of laws: (1) the Ten Commandments or Decalogue; (2) Ritual Decalogue; and (3) the Book of the Covenant or the Covenant Code. The Covenant Code is thought to be the earliest lengthy codification of primitive law among the Hebrews; it contains detailed laws for all phases of ancient Israelite life: religious, moral, commercial and humanitarian and crime and penalties.
Understanding that brief history lesson, here’s the twist in all this. Even though it is alleged criminal activity that starts the property forfeiture, the forfeiture itself is a civil case and it is against the property not the person allegedly committing the crime. Because it’s a civil case the burden of proof is preponderance of evidence, and civil forfeiture does not require that a criminal case ever be filed. Thus, if the government lacks proof beyond a reasonable doubt that a crime was committed, they can still take your property from you!
Keep in mind also that the theory here is that the property is the wrong doer. Consequently, the caption in a forfeiture case might be United States vs. $100,000.00, or United States vs. 485 Ocean View Lane (a fictional multimillion dollar home). Now for the kicker – because the property is the “defendant” the Constitution does not apply. No Constitution, no due process of law!
It should now be clear how easily forfeiture laws can be abused. Here is an interesting video showing an eggregious example of this:
In Michigan in a drunk driving case there are two ways for the prosecutor to obtain forfeiture. The first is through the drunk driving statute, and as Judge Powers points out, this requires a conviction. The other is with traditional forfeiture, which the prosecutor can seek almost any time a car is used to commit a crime, including the crime of drunk driving. All the prosecutor needs to do is file a compliant requesting that they keep the vehicle. The caption of such a case would not be People vs. Drinking Driver, instead it would be People vs. 2005 Ford Taurus.
Understanding all this it is easy to see how abusive civil forfeiture can be and it is our opinion that the Oakland County Prosecutor is being rather blithe in stating that forfeiture is “just another tool to battle drunk driving.” There is no correlation between the use of forfeiture and a reduction in drunk driving. The truth of the matter is that forfeiture is just another way for the government to “lawfully” extort money from its citizens.
At the Barone Defense Firm is it our intention to fight forfeiture whenever it is appropriate to do so. The problem is that the cost of fighting forfeiture often outweighs the cost of not fighting it. In fact, this is exactly why the prosecutor’s office collects “only” $900.00 or $1,800.00 per car. The cost of the drinking driver’s vehicle is nearly always far greater that this, and to really fight a civil forfeiture, legal fees can be two to three times this amount or more. Plus, the risk is that losing the forfeiture can mean losing the entire value of the car.
I discuss one possible way to fight civil forfeiture in my book Defending Drinking Drivers. Here is an excerpt discussing the concept of double jeopardy and how this applies to the pre-conviction forfeiture of an alleged Michigan drunk driver’s car:
§531.8 Double Jeopardy and Civil Penalties, Forfeitures and License Suspensions
A number of cases have addressed the extent to which there are constitutional limits on the government’s ability to seek criminal penalties and civil “forfeitures” or penalties. The basic element of the Double Jeopardy Clause is its protection afforded against successive prosecutions: The government may not impose a punishment for the same offense in two or more separate proceedings. The Double Jeopardy Clause’s protection applies equally whether the first prosecution results in a conviction or an acquittal. See Burks v. United States, 437 U.S. 1 (1978). “The basis of the Fifth Amendment protection against double jeopardy is that a person shall not be harassed by successive trials; that an accused shall not have to marshal the resources and energies necessary for his defense more than once for the same alleged criminal acts.” Abbate v. United States, 359 U.S. 187, 198-199 (1959).
These double jeopardy principles are deeply rooted in the criminal law jurisprudence, see Green v. United States, 355 U.S. 184, 187 (1957). Recent cases have also made it clear that civil forfeiture or penalty actions coupled with criminal prosecutions for the same offense also implicate the Double Jeopardy Clause. In United States v. Halper, 490 U.S. 435 (1989), the Court analyzed the application of a $130,000 civil fine to a $585 fraud committed against the government, holding that such an “overwhelming disproportionate” assessment acted as a punishment within the meaning of the double jeopardy clause. Id. at 448, 449.
Court noted that multiple punishments that arise out of one proceeding fall outside the scope of the analysis concerning the proportionality of a civil sanction. Id. at 450. Accordingly, the Double Jeopardy Clause does not prohibit the State from prosecuting someone for multiple offenses in a single prosecution. See Ohio v. Johnson, 467 U.S. 493 (1984). The Halper Court also held that “the labels of ‘criminals’ and ‘civil’ are not of paramount importance” in determining whether a sanction constitutes punishment for double jeopardy purposes. Rather, in the Court’s view “[t]he notion of punishment … cuts across the division between the civil and the criminal law, and for the purposes of assessing whether a given sanction constitutes multiple punishment barred by the Double Jeopardy Clause, we must follow the notion where it leads.” Id. at 447-48.
Applying these principles, the Court adopted a new test for determining whether a nominally civil sanction constitutes “punishment” for double jeopardy purposes: “[A] civil sanction that cannot fairly be said solely to serve a remedial purpose, but rather can only be explained as also serving either retributive or deterrent purposes is punishment, as we have come to understand the term.” Id. at 448.
In Austin v. United States, 113 S. Ct. 2801 (1993), the Court emphasized once again that a sanction designed, even in part, to deter or punish will constitute punishment, even if the sanction also has some remedial purpose. See also United States v. Hudson, 14 F.3d 536, 540 (10th Cir. 1994) (“Appellants contend that… unless a sanction is ‘solely’ remedial, i.e., not serving deterrent or retributive ends, it is punishment. This position is confirmed by the recent Supreme Court decision in Austin v. United States.”).
The specific holding in Austin was that the Eighth Amendments Excessive Fines Clause applies to civil forfeiture actions. In determining whether the Excessive Fines Clause applies, however, the Court also determined that certain forfeiture statutes constituted “punishment.” A fair reading of the Court’s decision in Austin is that it resolved the “punishment” issue in respect of the forfeiture cases for purposes of the Double Jeopardy Clause, as well as the Excessive Fines Clause. This means that if forfeiture constitutes a punishment under the Halper criteria, it also constitutes “punishment” for purposes of both clauses.
If you are facing possible vehicle forfeiture then it is critical that you move quickly, please contact us right away to discuss how we can help you.