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University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law 1-18-2006 DEPARTMENT OF SAFETY, EASTERN DIVISION, vs. ONE 1998 JEEP, VIN: 1J4FJ68JSXWL147007, Seized From: Nicholas Poet Jones, Seizure Date: August 3, 2006, Claimant: Nicholas Poet Jones, Seizing Agency: Chattanooga PD, Lienholder: None Filed 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 FOR THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: DEPARTMENT OF SAFETY, EASTERN DIVISION, v. DOCKET No: 19.05-094858J D.O.S. Nos. F4754 & F4755 ONE: 1998 JEEP VIN: 1J4FJ68JSXWL147007 Seized From: Nicholas Poet Jones Seizure Date: August 3, 2006 Claimant: Nicholas Poet Jones Seizing Agency: Chattanooga PD Lienholder: None Filed INITIAL ORDER OF DEFAULT & DISMISSAL PROCEDURAL This contested matter was heard in Chattanooga, Tennessee on 18 January 2006, before William J. Reynolds, Administrative Judge assigned by the Secretary of State, Administrative Procedures Division, sitting for the Commissioner of the Tennessee Department of Safety. Ms. Lori Long represented the Department. The Claimant was not present, either in person or through competent legal counsel. Ms. Brenda C. Jones, mother of the Claimant, appeared as a person/lay advocate holding a General Power of Attorney on behalf of the principal/ maker, Nicholas Poet Jones.

The Department moved for consolidation of case Nos. F-4754 and F4755 because the issues arise from the same incident; said motion was granted. There being no objection, the Technical Record was received into evidence as Exhibit 1, the Department of Safety driving history for Nicholas Poet Jones was received and marked as Exhibit 2, the General Power of Attorney of Nicholas Poet Jones, maker, and Brenda C. Jones, holder, was received and marked as Exhibit 3, and a copy of the State of Tennessee Certificate of Title, naming N. Poet Jones as the Registered Owner of the Subject 1998 Jeep, was received and marked as Exhibit 4. The matter was fully and finally heard on said date and the record was closed. This hearing was convened to consider the proposed forfeiture of the subject vehicle for its alleged operation by the Claimant, whose driving privileges were revoked for driving a motor vehicle under, inter alia, the influence of an intoxicant, (See, TCA 55-10-401 et seq., 55-50-504 & 40-33-201 et seq.) On the Claimant s failure to appear at the hearing, and at the close of proof, counsel for the Department objected to Brenda C. Jones representation of the Claimant and made an oral motion for an order finding the Claimant to be in default, pursuant to TCA 4-5-309. Upon full consideration of the evidence received at the hearing, statements and proof, and the entire record in this case, the Department s motion was granted. The Claimant was found to be in default, and the claim filed in this matter was stricken, as supported by the following Findings of Fact and Conclusions of Law. 2

FINDINGS OF FACT 1. The certified driving record of the Claimant, Nicholas Poet Jones, was entered as an exhibit at the hearing of this matter. 2. On August 3, 2006, Officer Jeffery Ballard of the Chattanooga Police Department was on patrol. He stopped a vehicle driven by Nicholas Poet Jones for traveling 73 mile per hour in a 55 mile per hour zone. Detecting an odor of intoxicant, he asked Nicholas Poet Jones to perform field sobriety tests. Mr. Jones cooperated but failed the sobriety tests. 3. While checking the Claimant s driver s license and registration, he discovered the Claimant s driver s license had been revoked due to two prior DUI offenses. A copy of the Certificate of title shows N. Poet Jones was the name of the registered owner of the subject vehicle. Citizens National Bank appeared on the certificate as the first lienholder. 4. Nicholas Poet Jones was placed under arrest and charged with: Third Offense of Driving Under the Influence, Driving On Revoked license, and Speeding. 5. The Claimant s vehicle was seized and a Property Forfeiture Warrant was issued. The Claimant filed a claim seeking the return of the vehicle and requesting a hearing. No claim was filed by the lienholder noted on the Certificate of Title. 3

6. A hearing was scheduled for 18 January 2006. The Department sent notification of the hearing time and location, by certified mail, to the Claimant. The Notice was sent to the address of record provided by Claimant on the August 25, 2006 Petition For Hearing. 7. The Department s Notice was duly delivered to the Claimant s address of record. 8. Ms. Brenda C. Jones, mother of the Claimant, appeared at the hearing and announced the Claimant was incarcerated. Ms. Jones presented a General Power of Attorney made from Nicholas Poet Jones to Ms. Brenda C. Jones. 9. Ms. Jones presented the General Power of Attorney with the pretense of substituting for her son s claim. 10. Ms. Brenda C. Jones testified she had previously paid the indebtedness to the noted lienholder, in the approximate amount of Eight Thousand and No/100 ($8,000) Dollars; however, she had not, nor the first lienholder, filed a claim for the vehicle. 11. Being incarcerated, the Claimant did not make any further effort to appear at the hearing and was not otherwise represented. Based on the Claimant s failure to appear, prosecute, or defend, the Department made an oral motion for the entry of an Order of Default. 4

CONCLUSIONS OF LAW and ANALYSIS The Court has considered the following legal authorities and precedents in making a determination and ruling in this cause. 1. Tennessee Code Annotated, 55-10-401 provides as follows: 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 frequently 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 eight-hundredths of one percent (.08%) 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 amphetamine, desoxyephedrine or compounds or mixtures thereof, including all derivatives of phenolethylamine or any of the salts thereof, except preparations intended for use in the nose and unfit for internal use. Further, Tennessee Code Annotated, 55-10-403(k) states in pertinent part: (1) The vehicle used in the commission of a person s second or subsequent violation of 55-10-401, or the second or subsequent violation of any combination of 55-10-401, and a statue of any other state prohibiting driving under the influence of an 5

intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in Title 40, chapter 33, part 2. The department of safety is designated as the applicable agency, as defined by 40-33-202, for all forfeitures authorized by this subsection (k). (2) In order for the provisions of subdivision (k)(1) to be applicable to a vehicle, the violation making the vehicle subject to seizure and forfeiture must occur on or after January 1, 1997, and the second offense after January 1, 1997, occurs within five (5) years of the first offense occurring after January 1, 1997. (3) It is the specific intent that a forfeiture action under this section shall serve a remedial and not a punitive purpose. The purpose of the forfeiture of a vehicle after a person s second or subsequent DUI violation is to prevent unscrupulous or incompetent persons from driving on Tennessee s highways while under the influence of alcohol or drugs. Driving a motor vehicle while under the influence of alcohol or drugs endangers the lives of innocent people who are exercising the same privilege of riding on the state s highways. There is a reasonable connection between the remedial purpose of this section, insuring safe roads, and the forfeiture of a motor vehicle. While this section may serve as a deterrent to the conduct of driving a motor vehicle while under the influence of alcohol or drugs, it is nonetheless intended as a remedial measure. Moreover, the statute serves to remove a dangerous instrument from the hands of individuals who have demonstrated a pattern of driving a motor vehicle while under the influence of alcohol or drugs. Additionally, Tennessee Code Annotated, at 55-50-504 (h) (1) and (2) provides that: (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, 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 6

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. (Bold emphasis added.) The statute prohibits driving under the influence of an intoxicant and makes it unlawful for any person to drive, or be in physical control of an automobile, on any public roads and highways of the state, or on any streets or alleys, or any premises which are generally frequented by the public at large. Nicholas Poet Jones was driving the subject vehicle while under the influence of an intoxicant. His conduct appears to be of the kind the statute seeks to discourage and prohibit. Consequently, this conduct causes engagement of the statutory seizure and forfeiture procedures. 2. Ms. Brenda C. Jones, mother of the Claimant, comes as a holder of a General Power of Attorney on behalf of the maker, Nicholas Poet Jones. The form is entitled General Power of Attorney. Interestingly, in the last paragraph of the instrument the term Durable Power of Attorney is noted. It includes durability language similar to the definition at Tennessee Code Annotated, at 34-6-102. 7

General Power of Attorney is a written document in which one person (the principal) appoints another person to act as an agent on his or her behalf (i.e. in the stead of another), thus conferring authority on the agent to perform certain acts or functions on behalf of the principal. Powers of attorney are routinely granted, as here, to allow the agent to manage all financial and business activities without limiting the scope to any particular transaction or act. The principal can revoke the power of attorney at any time (emphasis added). The form offered into evidence provides the duration shall continue until the death of the maker or until revoked, at any time, accompanied by written notice to the holder. That is to say, this power of attorney is revocable and could have been revoked prior to the administrative hearing. A Durable Power of Attorney, by design, survives the mental incapacity of the Maker. The maker of a Power of Attorney, appointing someone to act as their attorney-in-fact, does not confer to the holder the power to conduct litigation, or render advocacy services, on the maker s behalf. For example, Tennessee Code Annotated, at 25-2-101 declares any power of attorney or authority to confess judgment, which is given before an action is instituted and before the service of process is issued, as void. Any subsequent judgment based on the power of attorney is also void under the statute. It appears to limit a predisposition because of the precarious nature of confessing the judgment. Namely, rights and interests can t always, if ever, be quantified. The appearance before a court is an official act according to Kirkwood v Smith, 77 Tenn 228 (1882). 3. The authority of the Power of Attorney would, if applicable, permit Brenda C. Jones to act in the place and stead of Nicholas Poet Jones. The power does not permit the reverse, which is for Brenda C. Jones to assert her interest or claim. Brenda C. Jones did not, nor the Citizens National bank, file a claim for any interest as a secured party (i.e. lienholder) or innocent coowner. The virtue of paying the lien amount against the subject vehicle did not obviate the requirement to file a claim pursuant to the Statute and Department 8

Rules. Tennessee Code Annotated, at 34-6-102 regarding forfeiture procedures generally provides in part, (a) Any person asserting a claim to any property seized pursuant to the provisions of law set out in 40-33-201, and described on the notice of seizure, may within thirty (30) days of being notified by the applicable agency that a forfeiture warrant has issued, file with the agency a written claim requesting a hearing and stating the person's interest in the seized property for which a claim is made. The claims may be on forms provided by the applicable agency. (b)(1) Except as provided in 40-33-205(a), with the claim the claimant shall also file a cash bond or attorney or corporate surety bond in the sum of three hundred fifty dollars ($350), the bond being made payable to the state of Tennessee; and (2) An indigent person may file a claim in forma pauperis by filing with the claim an affidavit stating that the person is unable to bear the cost of the proceeding. (c) If a claim or proof of a security interest is not filed with the applicable agency within the time specified by this part, the seized property shall be forfeited and disposed of as provided by law. (Bold emphasis added.) 9

Neither Citizens Bank nor Brenda C. Jones timely filed a claim, through inadvertence or unfamiliarity with the rules, to protect any interest; accordingly, their interest, if any, in and to the seized property shall be forfeited. 4. The court herein does not recognize a lay advocate with a General Power of Attorney and applies the following statute to the interest of the Claimant, Nicholas Poet Jones: Tennessee Code Annotated 4-5-309(a) provides that if a party fails to attend or participate in a pre-hearing conference, hearing or other stage of a contested case, the administrative judge... may hold the party in default... An order holding an absent party in default at the second setting of a forfeiture hearing is authorized by Rule 1340-2-2-.17(1) (a), TENN. COMP. R. & REGS., Rules of Procedure for Asset Forfeiture Hearings. As of the date of this order, no attorney authorized to practice law in the State of Tennessee has appeared on behalf of Claimant, Nicholas Poet Jones. 5. Further, the Department of Safety Regulations governing asset forfeiture hearings provide: (d) No default shall be entered against a claimant for failure to attend [the hearing] except upon proof by the filing of the return receipt card, that the legal division has given notice of the hearing per Rule 1340-2-2-.11(3). (e) Upon default by a party, an administrative judge may enter either an initial default order or an order for an uncontested proceeding... Rule 1340-2-2-.17(1), TENN. COMP. R. & REGS., Rules of Procedure for Asset Forfeiture Hearings. And, that Upon a default by a claimant, a claimant s claim shall be stricken by initial default order, or, if the agency requests, the agency may proceed uncontested. 10

See, Rule 1340-2-2-.17(2)(b), TENN. COMP. R. & REGS., Rules of Procedure for Asset Forfeiture Hearings. (Bold emphasis added.) 6. The legal impact of striking a claim is to render the claim void ab initio, as though it had never been filed. Failure to file a claim results in the forfeiture of the property for disposition as provided by law. See, Tennessee Code Annotated 40-33-206(c), supra. 7. The Department met its burden of proof. The Department established that the Claimant s operator s license had been previously revoked for DUI convictions, and that it had not been restored by the date of the hearing. The Department proved that the Claimant was (1) driving the vehicle on the date of the vehicle seizure, and (2) that he was intoxicated on that date. The Department therefore proved the essential elements of its case. 8. In accordance with the law, as set forth above, it is determined that the Department s motion for default is well-taken. The Claimant was notified of the hearing, as shown by the appearance of his mother, and he failed to appear at the hearing to pursue his claim. Pursuant to the cited authority, the Claimant is hereby found to be in default for failing to appear at the hearing scheduled to consider his claim. 11

Accordingly, it is hereby ORDERED that the Claimant s claim is stricken from the record, and dismissed. The Claimant s interest in the subject vehicle is Ordered forfeited to the Seizing Agency, the Chattanooga Police Department, for disposition as provided by law. ENTERED this 1st day of April, 2008. WILLIAM J. REYNOLDS ADMINISTRATIVE JUDGE Filed in the Administrative Procedures Division, Office of the Secretary of State, this 1st day of April, 2008. THOMAS G. STOVALL, DIRECTOR ADMINISTRATIVE PROCEDURES DIVISION 12