University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 1-4-2010 TENNESSEE DEPARTMENT OF SAFETY vs. KEVIN BEATY Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions 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
BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: ) ) TENNESSEE DEPARTMENT ) OF SAFETY, ) Docket No. 19.01-104469J ) v. ) Department of Safety ) Case No. J3046 One 2006 YAMAHA 4 WHEELER ATV, ) VIN# JY4AMO7436C024156 ) SEIZED FROM: KEVIN BEATY ) SEIZURE DATE: APRIL 10, 2009 ) CLAIMANT: KEVIN BEATY ) LIENHOLDER: N/A ) ) INITIAL ORDER This matter came on to be heard on January 4, 2010, in Cookeville, Tennessee before Joyce Grimes Safley, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. District Attorney Randy York, 13 th Judicial District, and Mr. Orvil Orr, Attorney for the Department of Safety, represented the State. The Claimant, Kevin Beaty, was present, and was represented by counsel, Mr. Matthew Edwards, attorney, of the Cumberland County, Tennessee Bar. The subject of this hearing was the proposed forfeiture of the above referenced 2006 Yamaha 4 wheeler All Terrain Vehicle (ATV), VIN# JY4AMO7436C024156, for Claimant s alleged use of this vehicle in violation of T.C.A 55-50-504 (driving a vehicle on a revoked license).
After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is ORDERED that the seized vehicle be FORFEITED to the seizing agency. This decision is based upon the following Findings of Fact and Conclusions of Law. FINDINGS OF FACT 1. On April 10, 2009, Deputy Joseph Williams of the White County Sheriff s Department was dispatched to Kevin Beaty s residence in Sparta, Tennessee at around 5 a.m. to investigate alleged domestic violence. 2. Upon arriving at Mr. Beaty s residence, Deputy Williams learned that Mr. Beaty had left the scene on an all terrain vehicle ( four wheeler ). 3. Deputy Williams telephoned Mr. Beaty on Mr. Beaty s cell phone, and requested that he return to his residence. 4. Mr. Beaty returned to his home by driving the ATV down East Ravenscroft Road, a public road in Sparta, Tennessee. 5. Deputy Williams determined that no domestic violence had actually occurred. 6. However, Deputy Williams learned from dispatch that Mr. Beaty had his driver s license revoked on July 31, 2008 for a DUI conviction. 7. Because Mr. Beaty was driving a vehicle with a revoked license for DUI while on a public road, Deputy Williams arrested Mr. Beaty. 8. At the time of the arrest, Mr. Beaty stated that he was the owner of the ATV, and further stated that his wife has the title. 2
9. When Deputy Williams checked the ATV s VIN number, the registered owner of record was listed as Jason Shepard. 10. Deputy Williams seized the ATV for violation of T.C.A. 55-50-504 (driving on a revoked license). The affidavit in support of seizure noted the owner as Kevin Beaty. 11. Jason Shepard testified that he had sold the ATV at issue to Kevin Beaty. Mr. Shepard stated that Mr. Beaty had made several payments for the ATV. When Mr. Beaty made a final payment of $1500, Mr. Shepard signed the certificate of title for the vehicle over to Mr. Beaty. 12. Mr. Beaty did not record the transfer of title with the state as required by law. 13. Mr. Beaty filed a claim with the Department of Safety as the owner for the return of the seized vehicle. 14. Claimant Beaty s certified driving record was entered into evidence. 15. Claimant was driving a vehicle on a public roadway when he did not have a valid driver s license due to his driver s license being revoked for a DUI conviction. part: CONCLUSIONS OF LAW 1. T.C.A. 55-50-504 applies to this matter. It states, in pertinent Driving while license cancelled, suspended or revoked.---[ ] Forfeiture---Notice.---(a)(1) A person who drives 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 purposes of vehicular travel, or the premises of any shopping center, manufactured housing complex or apartment house 3
complex or any other premises frequented by the public at large at a time when the person s privilege to do so is cancelled, suspended, or revoked commits a Class B misdemeanor. *** (h)(1) The vehicle used in the commission of a person s violation of 55-50-504, when the original suspension or revocation was made for a violation of 55-10-401 1, or a statute in another state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, part 2. The department designated as the applicable agency, as defined by 40-33-020, for all forfeitures authorized by this subsection. (2) For purposes clarifying the provisions of this subsection 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 such person s driving privileges are cancelled, suspended or revoked. A conviction for the criminal offense of driving while such person s driving privileges are cancelled, suspended or revoked is not required. (Emphasis added.) 2. T.C.A. 40-33-201 provides that property, including conveyances, shall be subject to forfeiture under the provisions of T.C.A. 55-10-403(k) and T.C.A. 55-50-504(h). 1 T.C.A. 55-10-401 Driving under the influence of an intoxicant, drug or drug producing stimulant effect prohibited Alcohol concentration in blood or breath. (a) It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is generally frequented by the public at large, while (1) under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or (2)The alcohol concentration of such person s blood or breath is ten-hundredths of one percent (.10%) or more. (b) For the purpose of this section, drug producing stimulating effects on the central nervous system includes the salts of barbituric acid, also known as malonyl urea, or any compound, derivatives, or mixtures thereof that may be used for producing hypnotic or somnifacient effects, and includes amphetamines, derivatives of phenolethylamine or any of the salts thereof, except preparations intended for use in the nose and unfit for internal use. 4
3. Pursuant to T.C.A. 40-33-210, in order to forfeit any property or a person s interest in property, the State has the burden to prove by a preponderance of evidence that: (1) The seized property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture[ ]; and (2) The owner or co-owner of the property knew that such property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture, [ ]; Burden of Proof 4. The State has the initial burden of proving, by a preponderance of the evidence, that the seized vehicle was subject to forfeiture because it was being used to violate T.C.A. 55-10-403. See T.C.A. 40-33-210. Failure to carry the burden of proof operates as a bar to any forfeiture and the property shall be immediately returned to the Claimant, T.C.A. 40-33-210(b)(1). 5. Preponderance of the evidence means: the greater weight of the evidence or that, according to the evidence, the conclusion sought by the party with the burden of proof is the more probable conclusion. Rule 1340-2-2-.15(2) of the Rules of Procedure for Asset Forfeiture Proceedings. 6. Claimant originally argued, in a proceeding before the Commissioner s Designee, that the vehicle should be returned because the forfeiture warrant was defective. Claimant s reasoning was that the registered owner of the vehicle, according to state records, was Jason Shepard. The reason that Mr. Shepard was still listed in public records as the vehicle s 5
registered owner was because Claimant had neglected to file the transfer to title. 7. The seizing agency amended the forfeiture warrant, and the Commissioner s Designee correctly ruled that the matter could proceed to hearing because Claimant was the owner of the vehicle. Claimant s argument that the vehicle should be returned because Claimant had not recorded the transfer of the vehicle was disingenuous at best. This is particularly true when Claimant filed a Petition for Hearing and a claim for the vehicle at issue as the vehicle s OWNER. 8. It is also noted that Claimant s argument could easily have backfired with regard to the issue of standing. If Claimant s argument was accepted that he was not the registered owner and the vehicle could not be forfeited as a result, it would also be true that as a non-owner, Claimant would have no standing to assert a claim for the return of the vehicle. The undersigned agrees with the Commissioner s Designee that Claimant s argument (that the vehicle is not subject to forfeiture due to Claimant s failure to record his purchase of the vehicle and the transfer of the title) is without merit. 9. The State has met its burden of proof in this case. It has proved, by a preponderance of the evidence, that Claimant was driving a vehicle on a public roadway at a time when his driver s license had been revoked for a DUI conviction. 6
10. For all the above reasons, it is ORDERED that the seized vehicle, the above styled 2006 Yamaha 4 wheeler All Terrain Vehicle (ATV), VIN# JY4AMO7436C024156, be immediately FORFEITED to the seizing agency. It is so ordered. This Order entered and effective this 26th day of February, 2010. Thomas G. Stovall, Director Administrative Procedures Division 7