Matthew McBee vs. Safety

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law Matthew McBee vs. Safety Follow this and additional works at: This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY AND HOMELAND SECURITY IN THE MATTER OF: ) ) Tennessee Department of Safety and ) Homeland Security ) ) DOCKET NO J v. ) D.O.S. Case No. P 4148 ) One 2003 Ford Taurus ) VIN No:1FAFP55S33A ) Seized From: Matthew McBee ) Date of Seizure: November 25, 2013 ) Claimant: Matthew McBee ) Lienholder: N/A ) ) INITIAL ORDER This matter was heard on March 27, 2014, in Knoxville, Tennessee by Mattielyn B. Williams, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, and sitting on behalf of the Tennessee Commissioner of Safety and Homeland Security. Attorney Nina Harris represented the State. Claimant Matthew McBee represented himself. The subject of this matter was the proposed forfeiture of the subject 2003 Ford Taurus for its alleged operation by an individual who was engaging in his second or subsequent DUI, pursuant to Tennessee Code Annotated and After consideration of the record, it is DETERMINED that the subject vehicle should be FORFEITED to the seizing agency. 1

3 This decision is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Deputy Sheriff L. Strzelecki, of the Knox County Sherriff s Department s Narcotics Division, testified that he was dispatched to the scene of a car in a church parking lot, with the driver passed out in the car, on November 25, The vehicle s motor was running because of the cold weather, per Claimant Matthew McBee. Claimant was the driver of the subject Ford Taurus. 2. Claimant s eyes were bloodshot and his (Claimant s) speech was slurred. Claimant did poorly on walk and turn field sobriety tests. Claimant s blood alcohol level was 0.15, according to Exhibit 1, the Toxicology Report is the legal limit. 3. Review of Claimant s driving record showed that he was arrested for a DUI on July 24, That earlier arrest for DUI was pled down to a conviction for DWI, ages Claimant was arrested for what Deputy Strzelecki believed to be Claimant s second DUI on November 25, The subject Ford Taurus was seized. 5. Claimant admitted that he was in control of the seized vehicle on November 25, Claimant testified that he had been drinking, so he pulled over at the church parking lot, where he intentionally fell asleep. Claimant thought that he could sleep off the alcohol that he had ingested. 2

4 6. Claimant testified that the seized vehicle used to belong to his late grandfather, so the Claimant is especially interested in having the seized vehicle returned to him. 7. Claimant further testified that he was 19 or 20 years old when he got his first DUI. Claimant is now 24 years of age. Claimant continued that since that first DUI was pled down to DWI, ages 16-21, that the November 25, 2013 DUI should be considered his first DUI and the vehicle returned to him. 8. Deputy Strzelecki did not know whether Claimant McBee was convicted of the November 25, 2013 DUI, as of the date of the hearing. 9. As a matter of law, conviction on the underlying criminal charge is not necessary as a prerequisite to the vehicle being forfeited. CONCLUSIONS OF LAW 1. The State was required to carry its burden of proof, by a preponderance of the evidence, that on November 25, 2013, Claimant was driving or had driven the subject vehicle when engaging in his second or subsequent DUI, pursuant to Tennessee Code Annotated and Claimant does not deny his previous DUI arrest, but relies on the DUI having been pled down to DWI, ages 16 to Based on the record presented, from the Claimant s blood shot eyes to Claimant s 0.15 blood alcohol reading, it is CONCLUDED that Claimant was legally intoxicated on November 25, Claimant admits that he had been 3

5 driving while legally intoxicated on November 25, 2013, until he made the decision to pull over to try to sleep off the alcohol. 4. The sole question that remains is whether or not reduction of the first arrest for DUI down to DWI, ages 16-21, means that the November 25, 2013 was Claimant s first DUI, not his second. 5. T. C. A. Section c establishes that the offense of underage driving while impaired is a lesser included offense of driving while intoxicated. 6. Section (k)(1) states that the vehicle used in the commission of a person s second or subsequent violation of Section is subject to seizure and forfeiture It is CONCLUDED that the Claimant violated Section (the DUI statute) in July of 2009, even though his conviction was for DWI, ages Thus, the November 25, 2013 offense is the Claimant s second violation of Section It is CONCLUDED that the State has met its burden of proof. 8. Therefore, it is hereby ORDERED that the seized Ford Taurus is hereby FORFEITED to the seizing agency, for disposition as provided by law This Initial Order entered and effective this day of July_, Mattielyn B. Williams Administrative Judge 4

6 Filed in the Administrative Procedures Division, Office of the Secretary of State this day of July_, J. Richard Collier, Director Administrative Procedures Division 5