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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 One 2004 Chevrolet Trailblazer, VIN : 1GNDS13S , Claimant: Candice Jones, Seized from: Candace Jones, Date of Seizure: September 14, 2007, Lienholder: JP Morgan/ Chase Finance 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 IN THE MATTER OF: One 2004 Chevrolet Trailblazer VIN : 1GNDS13S Claimant: Candice Jones Seized from: Candace Jones Date of Seizure: September 14, 2007 Lienholder: JP Morgan/Chase Finance DOCKET NO: J DOS Case No. G6914 INITIAL ORDER This matter was heard on July 31, 2008, in Memphis, Tennessee, Tennessee, before Anthony A. Adgent, Administrative Law Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. 1 The State of Tennessee was represented by Joe R. Bartlett, Attorney for the Department of Safety. The Claimant, Candice Jones, was represented by Thomas E. hansom, of the Memphis Bar. The subject of this hearing was the proposed forfeiture of the subject vehicle for its alleged use in the commission of the Claimant s second or subsequent violation of the state law prohibiting driving a motor vehicle under the influence of an intoxicant ( DUI ). Upon full consideration of the entire record in this matter, it is determined that the subject vehicle should be RETURNED to the 1 An Order of Transfer was issued by Chief Administrative Judge Thomas G. Stovall on November 19, 2008.

3 Claimant. This decision is based on the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. The State seeks the forfeiture of the subject 2004 Chevrolet Trailblazer, seized by the Tipton County Sheriff s Department from the Claimant/Registered Owner. On September 14, 2007, Deputy Bryan Childress of the Tipton County Sheriff s Department stopped the vehicle, which was being driven by the Claimant. 2. Following a brief investigation, the Claimant was charged with Driving Under the Influence The Claimant, prior to the instant offense, was convicted of DUI in Tennessee in February of The Claimant presented testimony of John Starnes, Esq. that Claimant had left his home only a few minutes prior to the stop. It was his opinion that she did not exhibit any signs or symptoms of intoxication. He observed both her speech and her gait. 5. Approximately 1 mile down the road, the Claimant s right passenger mirror struck the door of a mailbox of an off duty police officer. That officer then pursued the Claimant in his own vehicle. Approximately one-half mile down the road Deputy Childress stopped the Claimant. 2 Affidavit in support of forfeiture warrant was submitted as testimony by arresting officer. 2

4 5. The Claimant testified that more than 2 ½ to 3 hours earlier she had consumed two beers. She then consumed grape juice not too long before she was stopped. She had not eaten in the interim. 6. The Claimant further presented testimony of J. Pervis Milnor, III, MD. Dr. Milnor is a board certified anesthesiologist, and a former City of Memphis police officer and certified DUI technician. It was his opinion, within a reasonable degree of medical certainty, that Claimant had suffered some level of hypoglycemia which was exacerbated by the consumption of a sugary drink and a small amount of alcohol. No testimony to the contrary was presented by the State. CONCLUSIONS OF LAW & ANALYSIS 1. The law provides that it is illegal for a person to operate a motor vehicle under the influence of an intoxicant. TCA , et. seq. It further provides that any vehicle used in the commission of a person s second or subsequent violation of the DUI law is subject to seizure and forfeiture by the State. TCA (k)(1). 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). The burden of proof is 3

5 the duty imposed upon a party to establish, by a preponderance of the evidence, that an allegation is true, or that an issue should be resolved in favor of that party. A preponderance of the evidence means the greater weight of the evidence, or the more probable conclusion, based on the evidence presented. Rule (7), TENN. COMP. R. & REGS. Clearly, this is a significantly lower standard of proof than the beyond a reasonable doubt standard required for a criminal DUI conviction. 3. In order to prevail in this case, the State must prove (1) that the Claimant was driving the subject vehicle, (2) that she was doing so under the influence of an intoxicant, and (3) that she had previously been convicted of a DUI, after January 1, 1997 [and that the current offense occurred within five (5) years after the most recent offense]. TCA (k)(1)&(2). The State has carried its burden as to (1) and (3) above. However, the State failed to prove that she was under the influence of an intoxicant. 4. The State failed to prove by a preponderance of the evidence that the Claimant was under the influence of an intoxicant rather than suffering from a medical condition. The testimony presented by the Claimant that she suffered from hypoglycemia is not disputed by the State. Accordingly, it is hereby ORDERED that the subject 2004 Chevrolet Trailblazer shall be RETURNED to the Claimant. This Initial Order entered and effective this 13th day of January,

6 Lynn M. England Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this 13th day of January, Thomas G. Stovall, Director Administrative Procedures Division 5