TENNESSEE DEPARTMENT OF SAFETY vs. One 1996 Honda Accord Vin Number 1HGCE1822TA , Date of Seizure: October 21, 2010, Claimant: Lesile Frazier

Transcription

1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF SAFETY vs. One 1996 Honda Accord Vin Number 1HGCE1822TA , Date of Seizure: October 21, 2010, Claimant: Lesile Frazier Follow this and additional works at: Part of the Administrative Law Commons 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 IN THE MATTER OF: Leslie (L0484 & L0499) Frazier, Claimant. DOCKET NO: J Case Number L0484 & L0499 THE TENNESSEE DEPARTMENT OF SAFETY Vs One 1996 Honda Accord Vin Number 1HGCE1822TA Date of Seizure: October 21, 2010 Claimant: Lesile Frazier ORDER This matter came to be heard on September 21, 2011 before the Honorable Dewayne Bunch, Administrative Judge, while sitting in Knoxville. The State was represented by Nina Harris, legal counsel and the Claimant was represented by Gregory Harrison, attorney of law in Knoxville. ISSUE The issue before the Court is whether the law enforcement agency that conducted a lawful stop of a third party driving the Claimant s vehicle without her consent or knowledge is entitled to seize the vehicle pursuant to existing state law which permits the law enforcement agency conducting the stop the elective remedy of moving to seize the auto if a lawful stop occurs under enumerated circumstances. The law enforcement agency must file a civil petition

3 against the owner of the property that the law enforcement agency is attempting to use the elective remedy of law against. Thus the issue is whether the law enforcement agency is entitled to seize the Claimant s automobile. The Claimant has offered the viable defense that she did not consent to the third party to drive the auto nor was the Claimant aware that the third party had actually taken her auto. Further the Claimant was not aware of the third party having had his license revoked in RULING This issue turns upon the facts of the case and the testimony of the witnesses and their creditability, the law in question and the legislative intent of the law at issue. The law was intended to be an elective remedy that law enforcement agencies could utilize to fulfill the public policy of the state of Tennessee. The public policy is to punish those driver s that violate the laws of Tennessee for the serious violations of laws that pertain to DUI, driving on a revoked license and violations of drug laws. This public policy also rewards law enforcement agencies for performing their duties and obligations by permitting the use of the seized property for law enforcement activities. Conflict often arises when the party driving the auto in question is not the owner. Such is the case in this matter. Clearly the facts of this case do not give rise for a law enforcement agency to seize the auto. The Claimant is an innocent party and a victim of the third party s act of taking her auto without her consent or knowledge in the late hours of the evening after she had retired for the night in her upstairs bedroom. Accordingly, the Claimant is entitled to the return of her automobile without further delay or cost as the State has the burden of proof in this matter and the State has not meet its burden of proof. The facts of this case do not rise to the level of 2

4 being a proper case for the law enforcement agency to consider seizing the automobile once a proper review and oversight was conducted by the State or the supervising law enforcement agency. The burden of proof does not shift to the Claimant simply because the State has a valid stop and arrest on a third party driving the Claimant s auto with a revoked license.. CONCLUSIONS OF FACT 1) That the law enforcement agency conducted a lawful stop of Joshua King while driving the 1996 Honda Accord owned by the Claimant. 2) That the Claimant and King have had an off again on again relationship in the past that resulted in the birth of their child some 3 years ago. The minor child resides with the Claimant. 3) That King is believed to reside in Johnson City, Tennessee and started visiting the minor child in September of ) That King visited the minor child for a few days in October of 2010 in which King stayed in the lower level of the Claimant s home. 5) That the Claimant owns the 1996 Honda Accord that is the subject of this seizure. 6) That on October 21 st, 2011 that the Knox County Sheriff s Department officer John Sharp pulled King over for speeding and no seat belt. Officer Sharp also conducted a review of Kings License to operate an automobile and found that King s license was revoked in April of

5 7) That Officer Sharp testified that when the Claimant was called at approximately one AM on October 22, 2010 that the Claimant seemed surprised to find out that King had her car. 8) That the Claimant did not give King permission to drive or use her car on the night in question nor on any date previously. 9) That King had never driven the Claimant s auto on any previous occasion. 10) That King acknowledged that he took the car without consent to get some beer and beef jerky. 11) That the Claimant never was made aware of King s past DUI issues. 12) That when the Claimant contacted the Knox County Sherriff s Department concerning her car, she was advised that she would have to report the car stolen to get the car back. It should be noted for the record that it was not Officer Sharp that advised the Claimant of the above comment. 13) That King had never driven an auto the entire time that the Claimant has known King. 14) That the Claimant did not leave the keys to the auto in the car. CONCLUSIONS OF LAW 1) The law provides that it is illegal for a person to operate a motor vehicle at a time when his license to drive has been revoked. It further provides that, if the revocation was ordered due to a DUI conviction, any vehicle driven by the offender during the period of revocation is subject to seizure and forfeiture. TCA (a)(1) and (h)(1). 4

6 2. The State has the burden of proving, by a preponderance of the evidence that the seized property fits within the statute defining its illegal use thereby rendering it subject to forfeiture. Rule (4), TENN. COMP. R. & REGS., Rules of the Tennessee Department of Safety. 3. In order to prevail in this case, the State must prove (1) That King was driving the subject vehicle, (2) That he was doing so at a time when his license to drive had been revoked for a DUI conviction, and (3) That the Claimant owner knew or should have known that King s driving privilege had been revoked for a prior DUI. ANAYLSIS The State s evidence proved that King was driving the vehicle in question at a time when his license was revoked due to a prior DUI. That established, the State failed to prove that the Claimant knew or should have known that King s driving privileges had been revoked in While the actions of the Claimant in her decision making in the past may give rise to questions, the burden of proof remains with the State to prove their case. The State simply failed to prove that the Claimant knew or should have known that King would drive her car without permission or that the Claimant knew or should have 5

7 known that King did not have a valid driver s license or that his driver s license had been revoked. The State cannot simply present a case in which the primary proof is merely that the law enforcement agency caught a third party driving the Claimant s automobile on a revoked license. To deprive our citizens of their property requires a much greater showing than the arrest of a third party driving an owner s automobile. ORDER The auto should be returned to the Claimant without further delay or cost as the State has failed to meet their burden of proof. IT IS SO ORDERED. This Order entered and effective this 27 day of October, 2011 Dewayne Bunch Administrative Judge 6

8 Filed in the Administrative Procedures Division, Office of the Secretary of State, this 27 day of October, 2011 Thomas G. Stovall, Director Administrative Procedures Division 7