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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law DEPARTMENT OF SAFETY, WESTERN DIVISION vs. ONE 2000 TOYOTA TACOMA, VIN # 4TASN92N1YZ622178, Seized from: Sean Devinci Cowan, Seizure date: September 6, 2007, Claimant: George W. Cowan, Jr., Agency: Memphis Police Department Organized Crime Unit, Lien Holder: None 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 FOR THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: DEPARTMENT OF SAFETY, WESTERN DIVISION, v. ONE: 2000 TOYOTA TACOMA. VIN: 4TASN92N1YZ DOCKET NO: J DOS No: G6684 R Seized from: Sean Devinci Cowan. Seizure date: September 6, Claimant: George W. Cowan, Jr. Agency: Memphis Police Department Organized Crime Unit. Lien Holder: None. INITIAL ORDER THIS MATTER was heard on June 18, 2008, at the Tennessee Department of Safety Office, Western Division, 6174 Macon Road, Memphis, Tennessee, before William Reynolds, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Joe Bartlett, Staff Attorney for the Tennessee Department of Safety ( State ) represented the Department. The Claimant was ably represented by Peggy J. Lee, Esquire, of the Shelby County Bar. Detective Benjamin O Brien, Memphis Police Department, Organized Crime Unit appeared as party representative and witness for the Department. Sean Cowan and George Cowan testified on behalf of the Claimant.

3 THE SUBJECT of this hearing was the proposed forfeiture of the above seized property for a violation of Tennessee Code Annotated, , i.e. Driving while license cancelled, suspended, or revoked; and et seq., regarding Seizure and Forfeiture; and, whether the seized property was used in a manner making it subject to forfeiture. Another issue to be resolved is whether the owner knew the property was being used in a manner making its possession illegal or was used in a manner making it subject to forfeiture in violation of Tennessee Code Annotated, et seq. After consideration of the entire record in this matter, including the evidence adduced at the hearing and the argument of Counsel for the Claimant and Counsel for the Department, it is determined that the Department has proven, by a preponderance of admissible evidence, that the subject vehicle is subject to forfeiture for the reasons set forth below and that it should be forfeited to the seizing agency. This determination is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT On August 30, 2007, at approximately 11:00 A.M., the Organized Crime Unit of the Memphis Police Department was patrolling a high crime area, including the observation of apartment complexes. Detective O Brien noticed someone in a 2000 Toyota Tacoma obstructing the flow of traffic. The vehicle was stopped in the traffic lane; and not in a parking place or positioned to park. The matter was investigated as a traffic stop. 2

4 The officer approached the subject vehicle cautiously watching the person behind the steering wheel of the subject vehicle for any signs or movements that might present a danger to the officer or any other person, including the sole occupant of the subject vehicle. The investigating officer interrogated Sean Cowan and found; Sean Cowan worked at the Apartment Complex., and the officer testified he believed the vehicle was driven to the spot where it was parked; the driver had never exited the vehicle, was behind the steering wheel, keys in the ignition switch with the motor running, and he was the only person in the vehicle as it was driven into place. Sean Cowan was in possession of the Toyota Tacoma and, on the officer s request; he, i.e. Sean Cowan, produced a Tennessee Drivers License. Review of Sean Cowan s Driver license revealed it had been cancelled, suspended, or revoked for a prior Driving Under the Influence conviction. The investigating officer found Claimant, behind the steering wheel of the subject vehicle with the engine running and hand tools in the bed of the truck. Sean Cowan told officers, His Dad let him use the truck to go to and from work. The occupant was issued a misdemeanor citation in lieu of physical arrest. The subject property was towed to the City lot, inasmuch as it was under the control of a DUI Offender. Claimant s testimony was the very antithesis of the Department s proof; particularly, regarding the location of the vehicle, the location of the keys and the corollary issue of whether the motor was running. The witness said the keys were in the console of the truck. He testified to eating lunch with friends, however, none appeared as a witness to support this claim. Additionally, he testified the events could be corroborated by his employer of one and half years, but this person was not subpoenaed to appear. 3

5 George Gilbert Cowan, Jr., the Claimant and Father of Sean Cowan, testified and was credible. His testimony indicated he was the owner of the vehicle and had paid the indebtedness on the vehicle, i.e. there was no Lien Holder. Additionally, Mr. Cowan had insured the vehicle. He testified to leaving the vehicle at the apartment complex because of mechanical deficits, i.e. the vehicle would only start or crank intermittently. The Claimant said the Apartment Manager could support his position that he had permission to leave the subject vehicle at the Apartment Complex for the aforesaid reason. However, the manager did not appear either in person, by deposition, or affidavit. Claimant testified his residence was only 10 minutes from the Apartment to prevent the necessity for Sean to be required to drive to this employment. When asked if he had given Sean a key to the vehicle the Claimant responded by advising that all family members had keys to the vehicles, including Sean Cowan. Also, the Claimant truthfully testified he knew Sean s License was suspended. Since Sean s license to drive was shown, by a voluminous official driver s record, to be revoked due to a conviction for DUI. When considered with his testimony, there exists ample proof that he was in control of and operating the vehicle while his license to drive was revoked for a prior conviction for DUI. CONCLUSIONS OF LAW The Administrative Court has considered the following Authorities and Precedents in making a determination in this cause: The Department bears the burden of proof in this matter to show, by a preponderance of the evidence, the seized property was more probably than not subject to seizure and forfeiture 4

6 because of it having been used in the commission of a violation of Driving while license cancelled, suspended, or revoked. If proven the seized property was used in this manner then it would make it subject to forfeiture. The term burden of proof is often used to refer to the amount of proof necessary to sustain a legal position. The standard burden of persuasion in a civil case is by a preponderance of the evidence. This degree of evidence is described as evidence which is greater weight or more convincing than evidence that is offered in opposition to it. The term of preponderance of the evidence means the amount of evidence that causes you to conclude that an allegation is probably true. To prove an allegation by a preponderance of the evidence, a party must convince you that the allegation is more likely true than not true. If the evidence on a particular issue is equally balanced, that issue has not been proven by a preponderance of the evidence and the party having the burden of proving that issue has failed. Austin v City of Memphis, 684 S.W.2d 624 (Tenn App 1984). By contrast, the highest standard of proof is beyond a reasonable doubt. It is the standard imposed upon the State in all criminal cases. This standard requires the factfinder to be fully satisfied, entirely convinced, or satisfied to a moral certainty. The applicable burden of proof in a civil administrative case, e.g. in this case, is proof by a preponderance of the evidence. The general test is as follows: If remedial relief is sought, the proceeding is civil; if the proceeding seeks to punish, it is criminal. The rudimentary distinction illustrates the reasons for opposing results between criminal and civil tribunals. The legislative intent is for the application of the forfeiture statute to provide remedial relief. It is the specific intent that a forfeiture action under this section shall serve as a remedial and not a punitive purpose. The purpose of the forfeiture of a vehicle after a person s second or 5

7 subsequent DUI violation is to prevent unscrupulous or incompetent persons from driving on Tennessee s highways while under the influence of alcohol or drugs...there is a reasonable connection between the remedial purpose of this section, ensuring safe roads, and the forfeiture of a motor vehicle Tennessee Code Annotated, (k) (3). Applicable statute also states in part, For purposes of clarifying this subsection (h) [i.e. Tennessee Code Annotated, (h), infra] and consistent with the overall remedial purpose of the asset forfeiture procedure, a vehicle is subject to seizure and forfeiture upon the arrest or citation of a person for driving while the person s driving privileges are cancelled, suspended or revoked. A conviction for the criminal offense of driving while the persons driving privileges are cancelled, suspended or revoked is not required. Tennessee Code Annotated,, (h) (2). Once there has been a violation for the offense of Driving Under the Influence pursuant to Tennessee Code Annotated,, , and et seq. The Department has the burden of Proof as to the illegal use of the seized property, The Rules of Procedure and Asset Forfeiture Hearings, Rule (4). Once the State has established a prima facie case the seized vehicle is subject to forfeiture, then the Claimant must show their interest was acquired in good faith and they neither had knowledge nor consented to the illegal use of the vehicle. Turner v. State, 1992 WL (Tenn. Ct. App. January 29, 1992). Tennessee Code Annotated,, , prohibits a person whose license has been cancelled, suspended, or revoked, from diving a motor vehicle within the entire width between the boundary lines of every way publicly maintained that is open to the use of the public for purpose of vehicular travel, or the premise of any shopping center, manufactured housing complex or apartment house complex (emphasis added) or any other premise frequented by the public at large. It is more probable to believe the Cowan vehicle was positioned to obstruct the 6

8 lanes of traffic and inadvertently drew the unwanted attention of the Memphis Police Department, Organize Crime Unit. Once the officers investigated the traffic stop it was revealed that Mr. Cowan was in violation of the statute for a prior Driving Under the Influence, supra. Tennessee Code Annotated, (d) provides that No person shall authorize or knowingly permit a motor vehicle owned by the person or under the person s control to be driven upon any highway by any person who is not authorized hereunder or in violation of any of the provisions of this chapter. The Claimant, although with no intention to break any rule or regulation, permitted, by providing a set of keys, Sean Cowan to have access and control of the vehicle. Therefore, he authorized Sean Cowan to operate the vehicle in violation of the statute, supra. Tennessee Code Annotated, (h) (1) provides the vehicle used in the commission of a person s violation of , when the original suspension or revocation was made for a violation of Tennessee Code Annotated, , or a statute in another state prohibiting driving under influence of an intoxicant, is subject to seizure and forfeiture (emphasis added) in accordance with the procedure established in title 40, chapter 33, part 2. The department is designated as the applicable agency, as defined by Tennessee Code Annotated, , for all forfeitures authorized by this subsection (h). The subject vehicle is subject to seizure and forfeiture for having been operated by a driver whose driver s license was revoked for DUI. The Department had the burden of proof to show by a preponderance of the evidence that the Claimant drove the vehicle while his license to drive was revoked for conviction of DUI. The Department has carried the burden because the proof showed that it was more probable than not that the Claimant drove the vehicle in the parking lot in front of the Memphis Police Department, 7

9 Organized Crime Unit, and was found and properly cited in lieu of physical arrest. This conduct made the vehicle subject to seizure and forfeiture. The Department has carried the burden. Once the Department established a prima facie case that the seized vehicle was subject to forfeiture; then the Claimant had to show they had a good faith interest in the vehicle and 2) had no knowledge the automobile would be used in violation of the statute. The Claimant is the legal and rightful owner of the vehicle, however, when he permitted Sean Cowan to have the keys to operate the vehicle, with knowledge of Sean Cowan s extensive driving record, he allowed Sean Cowan the use of the vehicle at the time of the offense. The Claimant has not carried the burden. Therefore, it is determine that the seized vehicle should be and is hereby forfeited to the seizing agency. ORDERED AND ENTERED this 10th day of February, WILLIAM REYNOLDS ADMINISTRATIVE JUDGE FILED IN the Administrative Procedures Division, Office of the Secretary of State, this 10th day of February, THOMAS G. STOVALL, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION 8