University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law October 2013 Gary F. Bickford vs. Safety Follow this and additional works at: http://trace.tennessee.edu/utk_lawopinions 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 AND HOMELAND SECURITY IN THE MATTER OF: TENNESSEE DEPARTMENT OF SAFETY AND HOMELAND SECURITY v. DOCKET NO. 19.05-121980J [D.O.S. Case Nos. N2622 & N2624] One 1971 Chevrolet C10 V.I.N. No.: CS141F649871 Seized from: Gary Bickford Date of Seizure: October 28, 2012 Claimant: Gary Bickford Lienholder: N/A INITIAL ORDER The contested case hearing in this matter came forward on July 9, 2013, in Knoxville, Tennessee, before Mattielyn B. Williams, Administrative Judge, assigned by the Secretary of State, Administrative Procedures Division, sitting for the Commissioner of the Tennessee Department of Safety and Homeland Security. Ms. Nina Harris, Staff Attorney III, Tennessee Department of Safety and Homeland Security, represented the State/seizing agency. Claimant Gary Bickford represented himself. The subject of this matter was the proposed forfeiture of the subject 1971 1
Chevrolet C10, seized for its alleged operation by an individual who was driving on a revoked license, pursuant to Tennessee Code Annotated 55-50-504, and also seized because Claimant was engaging in his second or subsequent DUI at the time of the seizure, pursuant to Tennessee Code Annotated Section 55-10-401 and 55-10-403. After consideration of the record, it is DETERMINED that the subject vehicle should be FORFEITED to the seizing agency for disposition as provided by law. This decision is based upon the following Findings of Fact and Conclusions of Law: FINDINGS OF FACT 1. Sevierville Police Sergeant Terry Bryan testified that on October 28, 2012, at approximately 1 AM, he received a call regarding an accident. The accident occurred at 307 Henderson Avenue, in Sevierville. A truck had been run into a tree. Sergeant Bryan ran the tags on the vehicle and the vehicle belonged to Claimant Gary Bickford of 319 Henderson Avenue. 2. Sergeant Bryan approached Claimant s residence. Sergeant Bryan heard a male voice say, I wrecked my truck. Angela Bacon, the Claimant s estranged wife, was present. 3. When the front door was opened, Claimant was sitting on the couch, just inside the front door. Claimant was uncooperative and refused both field 2
sobriety and blood tests. Claimant was arrested for both DUI and for driving on a revoked license. 4. Ms. Bacon provided a written statement, voluntarily. Ms. Bacon indicated that when she arrived at Claimant s residence, Claimant was already intoxicated. Claimant left the residence and returned about 12:30 AM. 5. Sergeant Bryan testified that Claimant smelled of alcoholic beverages, was loud, boisterous, uncooperative, and unsteady on his feet. Claimant had red eyes and slurred speech. Sergeant Bryan described the property damage involved as scarring of the tree, hitting of the mailbox, and damage to the truck. 6. Sergeant Bryan admitted that no alcohol was found when the Sergeant searched the vehicle. The subject vehicle was seized. 7. Sergeant Bryan reported that Claimant denied he had been driving the subject truck. Claimant said that someone else had been driving the truck that night to get car parts. Claimant never named the person who had allegedly been driving. It is unclear what car parts businesses would have been open at 12:30 AM or 1AM. 8. Exhibit 1, a certified copy of Claimant s driving record, showed that Claimant s driver s license was already revoked for DUI, on October 28, 2012. 9. The State called Claimant Bickford as an adverse witness. Claimant explained that he is legally separated from Ms. Bacon and that the couple has two (2 children, ages 11 and 14. Claimant indicated that Ms. Bacon was supposed to 3
go Halloween shopping in the truck. Claimant further testified that he used to work at Country Two Welding. 10. When the State asked Claimant about his driving history and whether he was driving the subject vehicle that evening, Claimant took the 5 th Amendment. 11. During Closing Argument, Claimant exclaimed that no one has put him behind the wheel of the truck; that it was Claimant s fourteen (14 year old son that was yelling about his truck being wrecked. CONCLUSIONS OF LAW 1. The State was required to carry its burden of proof, by a preponderance of the evidence, that Claimant Gary Bickford was driving the subject vehicle at a time when his driver s license was revoked for a DUI conviction, thus making the vehicle subject to forfeiture, pursuant to T.C.A. 55-50-504, and that Claimant was in the process of committing his second or subsequent DUI at the time of the seizure, pursuant to Tennessee Code Annotated Section 55-10-401 and 55-10-403. 2. It is true that no witness saw Claimant Bickford behind the wheel of the subject vehicle on the night/morning in question; however, circumstantial evidence can be just as persuasive as direct evidence. 3. An adverse inference is taken from Claimant s decision to rely on the 5 th Amendment. Taking an adverse inference means that it is assumed that the 4
answers to the questions posed would have been against Claimant s interests, if Claimant had elected to answer them. 4. Claimant s decision not to reveal the name of the someone else who was driving Claimant s vehicle that night/morning to get auto parts contributes to the Undersigned s impression that Claimant is not a person whose testimony is credible, in this matter. Claimant s decision to refuse both field and blood sobriety tests strongly suggests that Claimant knew or suspected that he was under the influence. In addition, if Claimant were not the one driving, it is unclear why Claimant would refuse those tests. It is CONCLUDED that Claimant s refusal of both the field and blood sobriety tests is inconsistent with Claimant s theory of the case, i.e. that someone else was driving the subject vehicle when it was wrecked. 5. Based on the above, it is CONCLUDED that the State has MET its burden, by a preponderance of the evidence. 6. Therefore, based on the subject vehicle being driven by a person whose driving privileges were revoked for DUI, and based on Claimant s arrest and behavior consistent with a second DUI on the morning/night in question, it is hereby ORDERED that the seized 1971 Chevrolet C10 IS FORFEITED to the seizing agency, for disposition as provided by law. 5
This Initial Order entered and effective this day of _October _2013. Mattielyn B. Williams Administrative Judge Filed in the Administrative Procedures Division, Office of the Secretary of State, this day of October_ 2013. J. Richard Collier, Director Administrative Procedures Division 6