People v. 1998 Lexus GS 300 ( 2010 )

First Division
June 14, 2010
No. 1-09-0444
THE PEOPLE OF THE STATE ) Appeal from the
OF ILLINOIS, ) Circuit Court of
) Cook County
Plaintiff-Appellee, )
)
v. ) No.08 COFO 00312
)
)
1998 LEXUS GS 300, ) Honorable
VIN JT8D68S4W0028350, Defendant ) Mark J. Ballard
(Derrick B. Reese, Claimant-Appellant). ) Judge Presiding.
JUSTICE HALL delivered the opinion of the court:
This is an appeal from a forfeiture order concerning an
automobile. On May 22, 2008, at about 3:10 p.m., claimant-
appellant Derrick B. Reese was arrested for driving with a
license that had been revoked because of a prior out-of-state
driving under the influence of alcohol (DUI) conviction. He was
issued traffic citations for driving with a revoked license and
for having tinted windows and a tinted rear license plate cover.
Claimant's vehicle, a 1998 Lexus GS 300, was seized and
subsequently forfeited to the county following a civil in rem
forfeiture proceeding under section 36-1 of the Criminal Code of
1961 (Criminal Code) (720 ILCS 5/36-1 (West 2002)). This appeal
arises out of that proceeding. For the reason that follow, we
affirm.
Claimant's vehicle was seized pursuant to a forfeiture
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provision contained in section 36-1 of the Criminal Code, which
provides in relevant part:
"Any vessel, vehicle or aircraft used with the
knowledge and consent of the owner in the commission of, or
in the attempt to commit *** an offense described in
subsection (g) of Section 6-303 of the Illinois Vehicle
Code[ ] may be seized and delivered forthwith to the sheriff
of the county of seizure." 720 ILCS 5/36-1 (West 2002).
Subsection (g) of section 6-303 of the Illinois Vehicle Code
(Vehicle Code) provides in relevant part:
"The motor vehicle used in violation of this Section is
subject to seizure and forfeiture as provided in Section 36-
1 and 36-21 of the Criminal Code of 1961 if the person's
driving privilege was revoked or suspended as a result of a
violation listed in paragraph (1) *** of subsection (c) of
this Section." 625 ILCS 5/6-303(g) (West 2004).
Paragraph (1) of subsection (c) of section 6-303 of the
Vehicle Code refers to section 11-501 of the Vehicle Code (625
ILCS 5/11-501 (West 2002)), which prohibits driving while under
the influence of alcohol. 625 ILCS 5/6-303(c)(1) (West 2004).
1
Section 36-2 of the Criminal Code authorizes the State's
Attorney of the county in which the seizure occurred to file a
complaint seeking forfeiture of the seized vehicle. 720 ILCS
5/36-2 (West 2002).
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Claimant first contends on appeal that discretionary
language and terms such as "subject to seizure and forfeiture"
found in subsection (g) of section 6-303 of the Vehicle Code
require trial courts to consider mitigating evidence prior to
awarding forfeiture of a subject vehicle. Claimant maintains
that the legislative intent behind the vehicle forfeiture
statutes is aimed at drivers who fail to stop using alcohol or
controlled drugs or drivers who fail to stop committing crimes
while under the influence of these substances.
Claimant argues that the necessary nexus for a valid
forfeiture is an alcohol- or drug-impaired driver, driving on a
revoked license. In this regard, claimant contends that in
awarding forfeiture of his vehicle, the trial court erroneously
ignored mitigating evidence of his alcohol rehabilitation and
evidence that he was not driving under the influence of alcohol
when he was stopped and arrested. Claimant also contends the
trial court failed to consider that he had completed the
statutory requirements both in Illinois and Georgia to have his
license reinstated. We must reject claimant's contentions.
First, as a factual matter, the record shows that the trial
court considered mitigating factors and still concluded that
forfeiture was warranted. Second, there is nothing in the
statutes or case law which requires a trial court to consider
mitigating evidence in determining the propriety of a vehicle
forfeiture.
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A forfeiture action is civil in nature and is an in rem
proceeding against the item used in the commission of a crime.
People ex rel. Carey v. 1976 Chevrolet Van, 72 Ill. App. 3d 758,
760, 391 N.E.2d 137 (1979); People v. 1991 Chevrolet Camaro, 251
Ill. App. 3d 382, 386, 620 N.E.2d 563 (1993). A trial court's
findings in a forfeiture proceeding will not be disturbed on
appeal unless they are against the manifest weight of the
evidence. People v. One 1999 Lexus, 367 Ill. App. 3d 687, 689,
855 N.E.2d 194 (2006).
The legislative policy behind statutes allowing the
forfeiture of vehicles is to repress certain types of crimes when
such vehicles are used in their commission. People v. 1995 Ford
Van, 348 Ill. App. 3d 303, 309, 809 N.E.2d 811 (2004); 1976
Chevrolet Van, 72 Ill. App. 3d at 760. As an overview, we
observe that our courts have determined that driving with a
revoked license is treated by the legislature as one of the most
serious driving offenses one can commit absent bodily injury when
the underlying revocation stems from a DUI conviction. Reynolds
v. Edgar, 188 Ill. App. 3d 71, 75, 544 N.E.2d 77 (1989).
Contrary to claimant's assertions, vehicle forfeiture
statutes are not aimed at preventing individuals from drinking
alcohol or using controlled substances, but rather are aimed
specifically at keeping alcohol- or drug-impaired drivers off the
roadways. See, e.g., People v. One 2000 GMC, 357 Ill. App. 3d
873, 877-78, 829 N.E.2d 437 (2005) (explaining that the vehicle
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forfeiture law " 'reflects the concern of the legislature over
the threat to the public imposed by drivers impaired by alcohol
or other drugs and serves to deter and remove problem drivers
from the highways, thus making the highways safer' "), quoting
People v. Bailey, 243 Ill. App. 3d 871, 873, 612 N.E.2d 960
(1993).
Our legislature has determined that one of the best ways to
achieve the objective of keeping alcohol and drug impaired
drivers off the roadways is to subject their vehicles to
forfeiture if they are caught driving with a license that has
been revoked or suspended because of a previous DUI conviction.
See, e.g., One 2000 GMC, 357 Ill. App. 3d at 877-78 (" '[W]hen
implemented pursuant to a carefully drafted statute, civil
forfeiture of automobiles can be an extremely effective tool in
the battle against drunk driving' "), quoting County of Nassau v.
Canavan, 1 N.Y.3d 134, 138, 802 N.E.2d 616, 620, 770 N.Y.S.2d
277, 281 (2003).
Based on the foregoing, we find that the trial court's
ruling ordering the forfeiture of claimant's vehicle was not
against the manifest weight of the evidence.
Claimant next contends that the forfeiture of his vehicle
violated the excessive fines clause of the eighth amendment to
the United States Constitution. The eighth amendment provides
that "[e]xcessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted." U.S.
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Const., amend. VIII.
A fine is considered excessive " ' if it is grossly
disproportional to the gravity of a defendant's offense. ' "
Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838,
856, 869 N.E.2d 964 (2007), quoting United States v. Bajakajian,
524 U.S. 321, 334, 118 S. Ct. 2028, 2036, 141 L. Ed. 2d 314, 329
(1998). "Application of the constitutional standard for
determining excessiveness to a given set of facts presents a
question of law subject to de novo review." One 2000 GMC, 357
Ill. App. 3d at 875.
Our supreme court has adopted the following nonexhaustive
list of three factors to be considered in assessing whether a
forfeiture constitutes an excessive fine: (1) the inherent
gravity of the offense compared to the harshness of the penalty;
(2) whether the property was an integral part of the commission
of the crime; and (3) whether the criminal activity involving the
property was extensive in terms of time and/or spatial use.
People ex rel. Waller v. 1989 Ford F350 Truck, 162 Ill. 2d 78,
90, 642 N.E.2d 460 (1994).
Applying these factors, we find that the forfeiture of
claimant's vehicle was not grossly disproportionate to his
offense of driving on a license that had been revoked as a result
of a prior DUI conviction.
The first factor concerns the inherent gravity of the
offense compared to the harshness of the penalty. In regard to
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the inherent gravity of the offense, our courts have determined
that when the underlying revocation of a license stems from a DUI
conviction, as in this case, driving with the revoked license is
then treated by the legislature as one of the most serious
driving offenses one can commit absent bodily injury. Reynolds,
188 Ill. App. 3d at 75.
In evaluating the harshness of the penalty (forfeiture),
courts agree that forfeiture of personal property is less harsh
than forfeiture of real property. One 2000 GMC, 357 Ill. App. 3d
at 876; People v. $5,970 United States Currency, 279 Ill. App. 3d
583, 592, 664 N.E.2d 1115 (1996). Moreover, in conducting this
evaluation, it is appropriate to consider the forfeiture
statutes' remedial goals of deterring drunk drivers and removing
them from the roadways. One 2000 GMC, 357 Ill. App. 3d at 878.
The record indicates that claimant's vehicle was worth
$9,000. In One 2000 GMC, the reviewing court determined that the
forfeiture of a $28,000 vehicle was not grossly disproportionate
to the claimant's offense of driving on a license that had been
previously summarily suspended under the implied consent statute
(625 ILCS 5/11-501.1 (West 2002)). One 2000 GMC, 357 Ill. App. 3d
at 878.
In light of the inherent gravity of claimant's offense and
the remedial purposes of the forfeiture statutes, and given the
fact that the reviewing court in One 2000 GMC upheld a much
greater forfeiture under similar circumstances, we find that the
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forfeiture of claimant's vehicle was not grossly disproportionate
to the gravity of the offense as to violate the excessive fines
clause.
Claimant next raises for the first time in his reply brief
the argument that the forfeiture provisions of the Criminal Code
(720 ILCS 5/36-1 et seq. (West 2002)) are unconstitutional
because they do not provide for a postseizure/preforfeiture
probable cause hearing. This argument was not raised in
claimant's initial brief and is therefore deemed waived under
Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)).
Pursuant to Supreme Court Rule 341(h)(7), points not argued
in an initial brief are waived and "shall not be raised in the
reply brief, in oral argument, or on petition for rehearing."
"The mere fact that attempted arguments raise constitutional
questions does not prevent the otherwise proper application of
the waiver rule." Ming Kow Hah v. Stackler, 66 Ill. App. 3d 947,
955, 383 N.E.2d 1264 (1978).
In any event, claimant's argument has recently been
addressed and rejected in People v. 1998 Ford Explorer, Nos. 2-
08-1024, 2-08-1025, 2-08-1027 (March 31, 2010), where the
reviewing court cited to United States v. Eight Thousand Eight
Hundred & Fifty Dollars ($8,850) in United States Currency, 461
U.S. 555, 562 n.12, 103 S. Ct. 2005, 2011 n.12, 76 L. Ed. 2d 143,
150 n.12 (1983), for the proposition that the government may
seize property subject to forfeiture without a preseizure
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hearing.
Accordingly, for the reasons set forth above, the judgment
of the circuit court of Cook County is affirmed.
Affirmed.
PATTI and LAMPKIN, JJ., concur.
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