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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 3-25-2008 TENNESSEE DEPARTMENT OF SAFETY vs., one 2000 FORD F250 TRUCK consolidated cases, VIN # 1FTNX21S5YED90251, SEIZED FROM: ELVIS PARKER, SEIZURE DATE: NOVEMBER 10, 2007, CLAIMANT: ELVIS PARKER, LIENHOLDER: N/A 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 IN THE MATTER OF: ) ) TENNESSEE DEPARTMENT ) OF SAFETY, ) Docket No. 19.05-098589J ) v. ) Department of Safety ) Case Nos. G8758 and G8759 one 2000 FORD F250 TRUCK, ) (consolidated cases) VIN# 1FTNX21S5YED90251 ) SEIZED FROM: ELVIS PARKER ) SEIZURE DATE: NOVEMBER 10, 2007 ) CLAIMANT: ELVIS PARKER ) LIENHOLDER: N/A ) ) INITIAL ORDER This matter came on to be heard on March 25, 2008, in Chattanooga, Tennessee before Joyce Grimes Safley, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Lori Long, Attorney for the Department of Safety, represented the State. The Claimant, Elvis Parker, was present, and was represented by counsel, Mr. Doug Aaron, attorney, of the Manchester, Tennessee Bar. The subject of this hearing was the proposed forfeiture of a 2000 Ford F250 Truck, VIN# 1FTNX21S5YED90251, for Claimant s alleged use of this vehicle in violation of T.C.A. 55-10-401 and 55-10-403 (Driving Under the Influence Second or Subsequent Violation), and 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. The State s witness, Deputy Heath Luttrell, of the Coffee County Sheriff s Department, testified that at approximately 4:55 A.M. on November 10, 2007, he was on duty when he received a call that a vehicle was off the roadway in front of a residence 1 at 2164 Pleasant Knoll Road. 2. Deputy Luttrell responded to the call. When he arrived at the scene, he observed Claimant s vehicle in a ditch. The vehicle s motor was running and the headlights were on. The vehicle was in drive. 3. When Deputy Luttrell approached the vehicle, he saw that Claimant Parker was leaning against the vehicle s window. 4. Upon opening the door to check on Claimant, he immediately smelled the odor of alcohol. 5. Deputy Luttrell awakened Claimant and asked for Claimant s driver s license and proof of insurance. 6. Claimant had a bottle of mouthwash in his vehicle. When Claimant attempted to use the mouthwash, Deputy Luttrell told him he couldn t use the mouthwash. 1 The residence was not Claimant s residence. 2

7. After Claimant had fumbled through his wallet and several papers in his vehicle for a while, Deputy Luttrell asked Claimant if he had had anything to drink that night. Claimant replied yes that he had had too much and had just left a friend s house. 8. Claimant could not provide Deputy Luttrell with a driver s license or proof of insurance. 9. Claimant s certified driving record was entered into evidence 2. 2 Claimant objected to the introduction of Claimant s driving record into evidence on the basis of hearsay and further objected on the grounds that there was no signature on the document or a stamp to indicate reliability. Claimant s driving record states that it is a certified copy and has the printed name of the Commissioner of Safety on it. Public records and reports are excluded from the Hearsay Rule pursuant to Rule 803(8), Tennessee Rules of Evidence. Rule 803(8) states as follows: Public Records and Reports.--- Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness, records, reports, statements, or data compilations in any form of public offices or agencies setting forth the activities of the office or agency or matters observed pursuant to a duty imposed by law as to which matters there was a duty to report, excluding, however, matters observed by police officers and other law enforcement personnel. See also State v. Baker, 842 S.W. 2d 261, 1992 (Tenn. Crim. Ct. App. 1992) (The trial court was correct in admitting the defendant s driving record into evidence as a public record.). Rule 901(7), Tennessee Rules of Evidence addresses the requirement of authentication or identification of documents admitted into evidence. It states, in pertinent part: Requirement of authentication or identification.---(a) General Provision.--- The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to the court to support a finding by the trier of fact that the matter in question is what its proponent claims. *** (7) Public Records and Reports.---Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office (or a purported public record, report, statement, or data compilation of any form) is from the public office where items of this nature are kept. Rule 902, Tennessee Rules of Evidence, sets forth the rules for self authentication : Self-authentication.---Extrinsic evidence of authenticity as a condition precedent to admissibility is not required as to the following: (4) Certified copies of Public Records.---A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and 3

10. Claimant s driving record reflects that Claimant was driving on a revoked license due to a DUI conviction on December 14, 2006. 11. Deputy Luttrell administered a field sobriety test on Claimant. After completion of the test, Deputy Luttrell concluded that Claimant was driving under the influence. Deputy Luttrell asked Claimant if he would submit to a breath test, however, Claimant Parker refused the breath test. 12. Deputy Luttrell placed Claimant Parker under arrest for driving under the influence and driving on a revoked license. When Claimant and Deputy Luttrell reached the Sheriff s Department, Deputy Luttrell read the implied actually recorded or filed in a public office (including data compilations in any form), certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or the Tennessee Legislature or rule prescribed by the Tennessee Supreme Court. T.C.A. 55-50-204 requires the Department of Safety to maintain records of certain driving license information, including the revocation or suspension of licenses. The Court in State v. McGowan makes it very clear that driving records kept by the Tennessee Department of Safety are admissible. State. v. McGowan, 2003 WL 213778, at 2. (Tenn. Crim. Ct. App. 2003) The McGowan Court states: We conclude that such a driving record is admissible as substantive evidence under the public records hearsay exception, see Tenn. R. Evid. 803(8), and may be introduced at any point prior to the close of the offering party s proof either by simply offering the document as an exhibit if the document contains no other objectionable material or, if the document does contain objectionable material, by reading the relevant and unobjectionable portions of the document into evidence. In either case, an authenticating witness is unnecessary. quoting with approval, State v. Donnie Ray Sisk, 01C01-9803-CC-00143 LEXIS 463, at 3-5, (Tenn. Crim. Ct. App. 1999). It was determined that the certified driver s record was properly entered to evidence, and Claimant s objection was overruled. 4

consent form to Claimant, and once again asked Claimant Parker to submit to an alcohol breath test. Claimant Parker again refused. 3 13. Thereafter, Claimant s vehicle was seized pursuant to a forfeiture warrant under the provisions of Tennessee s forfeiture and DUI statutes. 14. Deputy Luttrell s testimony is deemed credible. 15. Claimant Parker also testified at the hearing. He asserted his 5 th Amendment privilege against self-incrimination in response to whether or not he had been driving at the time of the arrest and whether or not he had had alcoholic beverages prior to the incident. Claimant Parker testified that he drank a few beers. 4 16. Deputy Luttrell s testimony that Claimant s vehicle was in drive with the motor running was unrebutted. 17. Claimant admitted that at the time Deputy Luttrell investigated the reported incident, his driver s license was revoked for a prior DUI. 18. Claimant testified that he is a dairy farmer, and needs his truck for farm business. 3 Deputy Luttrell admitted, under cross examination, that there were problems with the alcohol breath machine at the Coffee County Sheriff s department. The Tennessee Bureau of Investigation has test results that show that one out of seven tests is incorrect. If Claimant Parker had taken the breath test, the results could very well have been challenged. 4 The state requested that a negative inference be drawn due to Claimant s invoking his 5 th amendment rights. 5

CONCLUSIONS OF LAW 1. T.C.A. 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 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 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. (Emphasis added.) 2. T.C.A. 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 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 6

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. (Emphasis added). 3. T.C.A. 55-50-504 (h)(1) and (2) provide 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 5, or a statute in another state 5 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, 7

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.) 4. 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). 5. 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, [ ]; Implied Consent 6. Tennessee has an Implied Consent law, codified in T.C.A. 55-10- 406. T.C.A. 55-10-406 provides in relevant part: 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. 8

Tests for alcoholic or drug content of blood---implied consent---administration---liability---refusal to submit to test---suspension of license---fine--- Mandatory jail or workhouse sentence---notice--- Hearing--- (a)(1) Any person who drives any motor vehicle in the state is deemed to have given consent to a test for the purpose of determining the alcoholic or drug content of that person s blood; provided, that such test is administered at the direction of a law enforcement officer having reasonable grounds to believe such person was driving while under the influence of an intoxicant or drug, as defined in 55-10-405. *** (2) Any law enforcement officer who requests that the driver of a motor vehicle submit to a test pursuant to this section for the purpose of determining the alcoholic or drug content of the driver s blood shall, prior to conducting such test, advise the driver that refusal to submit to such test will result in the suspension of the driver s operator s license by the court, and if such driver is driving on a revoked, suspended or cancelled license, when the person s privilege to do so is cancelled, suspended or revoked because of [certain convictions] will, in addition, result in a fine and mandatory jail or workhouse sentence. *** (3) If such person having been placed under arrest and thereafter having been requested by a law enforcement officer to submit to such test and advised of the consequences for refusing to do so, refuses to submit, the test shall not be given, and such person shall be charged with violating this subsection(a). 7. It is clear that Claimant has violated the implied consent law which is codified in T.C.A. 55-10-406. However, whether or not Claimant has violated the implied consent law is not the issue to be determined in this case. The State has a separate proceeding against Claimant for violating the implied consent law which is contained within that statute. 9

8. The State argues that Claimant s refusal to submit to an alcohol breath test gives rise to a presumption that he was driving under the influence of alcohol. 9. The Court in State v. Nevels, 2003 WL 1787294 p.8 (Tenn. Ct. App. 2003), held that the refusal of a defendant (in a criminal proceeding) to submit to a blood alcohol test raises the inference of the defendant s guilt. Such refusal may be considered probative of guilt. Id. at 8. However, while such an inference can be made, it does not have to be made. Id. at 8. 10. Greater weight is placed in Deputy Luttrell s testimony, that based upon his experience and training, the smell of alcohol from Claimant, and the sobriety tests he conducted, he determined Claimant was driving under the influence. Claimant admitted that he had had too much to drink. Claimant further admitted that he had several beers. 11. The undersigned declines to apply the presumption of intoxication from the Claimant s violation of the implied consent law. However, based upon Deputy Luttrell s testimony and Claimant s admissions, it is determined that Claimant was driving under the influence of alcohol at the time he was arrested by Deputy Luttrell. Driving/Control of the Vehicle 12. Claimant next argues he was not driving the vehicle at the time Deputy Luttrell investigated the reported accident. Thus, Claimant argues that he could not violate the driving while revoked or driving under the influence statutes. 10

13. T.C.A. 55-10-10 states, in pertinent part: It is unlawful for any person to drive or to be in physical control of any automobile or other motor vehicle while (1) under the influence of any intoxicant [.] (Emphasis added) 14. In State v. Lawrence, 849 S.W.2d 761, 765 (Tenn. 1993), the Tennessee Supreme Court set forth a totality of the circumstances test to determine whether a defendant in a DUI case is in physical control of a vehicle. 15. The totality of the circumstances test adopted by the Lawrence court states: Id. at 765. This method is neither so restrictive so as to thwart the obvious statutory aim of enabling the drunken driver to be apprehended before he maims or kills himself or someone else, nor is it so expansive as to permit a conviction where clearly not warranted, i.e., an intoxicated person sitting in the driver s seat of an automobile having no tires and mounted on blocks. Thus, when the issue is the extent of the accused s activity necessary to constitute physical control the test allows the trier of fact to take into account all circumstances, i.e., the location of the defendant in relation to the vehicle, the whereabouts of the ignition key, whether the motor was running, the defendant s ability, but for his intoxication, to direct the use or non-use of the vehicle, or the extent to which the vehicle is capable of being operated or moved under its own power or otherwise. The same consideration can be used as circumstantial evidence that the defendant had been driving the vehicle. (Emphasis in the original.) 16. In the instant case, when Deputy Luttrell approached Claimant s vehicle, the motor was running, the vehicle s headlights were on, the keys were in the ignition, the Claimant was seated in the driver s seat, and the truck was in drive. There was no other person present who could have been driving the vehicle. Additionally, Claimant told Deputy Luttrell that he had just come from a friend s house. 11

17. This was not a case of a person sitting in the driver s seat of an automobile having no tires and mounted on blocks. Under the totality of the circumstances test, the evidence preponderates that Claimant was in control of the vehicle, and had been driving the vehicle prior to the vehicle ending up in a ditch. Excessive Fines/ Proportionality Test 18. Lastly, Claimant argues that the proportionality rule applies in this proceeding, such that Claimant s vehicle should not be subject to forfeiture. 19. Tennessee case law supports that in certain circumstances forfeiture of a vehicle violates the excessive fines clause of the Eighth Amendment to the U.S. Constitution and Article I, 16 of the Tennessee Constitution. See Taylor v. Greene, 2002 WL 75929 (Tenn. Ct. App. 2002); Hawks v. Greene, 2001 WL 1613889 (Tenn. Ct. App. 2001). 20. A vehicle is subject to seizure and forfeiture when the driver is arrested or cited for driving while the driver s driving privileges are cancelled, suspended, or revoked. See T.C.A. 55-50-504. 21. In the Taylor v. Greene case, the court ruled that the seizure and forfeiture of Mr. Taylor s vehicle violated the excessive fines prohibitions of the U.S. Constitution and the Tennessee Constitution because of the length of time between the revocation of his driver s license and the offense of driving on a revoked license. Taylor v. Greene, 2002 WL 75929 (Tenn. Ct. App. 2002). Mr. Taylor was convicted of driving under the influence of an intoxicant in April 1986, and his driver s license was revoked for one (1) year. More than eleven years 12

later, in 1997, Mr. Taylor was involved in a minor traffic accident. Mr. Taylor had failed to obtain a new license at the end of his revocation period in 1987. Mr. Taylor was cited with driving on revoked due to DUI. His vehicle was seized and forfeiture was ordered. 22. Similarly, in Hawks v. Greene, 2001 WL 1613889 (Tenn. Ct. App. 2001), Ms. Hawks was convicted of driving under the influence on March 28, 1996, with a one year revocation of her driver s license. Ms. Hawks became eligible apply for a new license in April 1997. Ms. Hawks did not apply for a new license at the end of the one year revocation. Around sixteen months after her conviction for DUI and the revocation of her license, Ms. Hawks was stopped for speeding, and her vehicle was seized and ordered forfeited. 6 23. In the Taylor case and the Hawks case, the Court of Appeals determined that forfeiture of the vehicles violated the excessive fines prohibitions of the U.S. Constitution and the Tennessee Constitution because in both cases the drivers periods of license revocation had expired and the drivers were eligible to apply for a new license. 24. In determining that forfeiture was not appropriate due to constitutional limitations in the Taylor case and the Hawks case, the court applied a proportionality test which considered the following: (1) the harshness of the penalty compared with the gravity of the underlying offense; (2) the harshness of the penalty with the culpability of the claimant; and (3) the relationship between the property and the offense, including whether use of the property was (a) important to the 6 Neither Ms. Hawks or Mr. Taylor was stopped for DUI following revocation of their licenses. 13

success if the crime, (b) deliberate and planned or merely incidental and fortuitous, and (c) extensive in terms of time and spatial use. Taylor v. Greene, 2002 WL 75929 *4 (Tenn. Ct. App. 2002) 25. The court in the Hawks and Greene cases determined that forfeitures in those cases failed the proportionality test because the only injury to the state was the failure of the drivers to apply for new driver s licenses at the end of their revocation period. 26. The present case is distinguishable from the Hawks and Greene cases. Claimant Parker had his driver s license revoked, due to a DUI, on December 14, 2006. Less than a year later, at a time when Claimant Parker was not yet eligible to obtain a new license, he was arrested for a second DUI and driving on a revoked license. 27. The seizure and forfeiture of Claimant Parker s vehicle passes the proportionality test under the facts and circumstances of this case. For the above reasons, seizure and forfeiture of Claimant Parker s vehicle does not violate the excessive fines clauses of the state and federal constitutions. 28. Claimant s excessive fines argument is without merit and must fail based on the facts and circumstances of this case. Burden of Proof 29. 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 14

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). 30. 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. 31. The State has met its burden of proof in this case. It has proved, by a preponderance of the evidence, that Claimant was driving under the influence of alcohol. It has also proved that Claimant was driving on a revoked license for DUI at a time he was not yet eligible to apply for a new license. 32. Claimant testified that he needs his truck for his farming business. While the undersigned may feel sympathy for the Claimant, and understands that the Claimant does indeed need a truck to conduct his dairy farm business, it is concluded that the Petitioner has violated the above cited DUI and Driving on Revoked License statutes, subjecting his vehicle to forfeiture. 33. The statutes were enacted for public safety reasons to prevent 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 endangers the lives of innocent people who are exercising the same privilege of riding on the state s highways as Claimant. Driving a motor vehicle while under the influence of alcohol also endangers Claimant s life. 34. Claimant is fortunate that he merely drove his vehicle into a ditch, rather than hitting a tree or a telephone/electric pole. The outcome of his drive in 15

the early hours of November 10, 2007 could have had a far worse outcome than just the loss of Claimant s truck. 35. For all the above reasons, it is ORDERED that the seized vehicle, a 2000 Ford F250 Truck, VIN# 1FTNX21S5YED9025, be immediately FORFEITED to the seizing agency. It is so ordered. This Order entered and effective this 15th day of April, 2008. Thomas G. Stovall, Director Administrative Procedures Division 16