Back in the old days, a nationwide service station chain had the popular musical jingle, "You can trust your car to the man who wears the star." Nowadays, there are several ways you can lose your car to the man (or woman) who wears the star. Several Illinois statutes provide for the seizure and potential forfeiture of vehicles used in the commission of a variety of criminal offenses. Such statutes provide law enforcement with powerful new measures to combat offenses such as DUI and Driving While License Suspended or Revoked. As these measures are now being employed with increasing frequency in DuPage County, local practitioners must familiarize themselves with the various seizure and forfeiture provisions of Illinois law. This article discusses the case law interpreting the seizure of vehicles made under 720 ILCS 5/36-1 and corresponding forfeiture proceedings conducted pursuant to 720 ILCS 5/36-2.1
Statutory Guidelines for Seizing and Forfeiting Vehicles Involved in Crime
Section 5/36-1 of the Criminal Code2 includes a lengthy list of predicate offenses for which any vehicle used in the commission (or attempted commission) of such an offense is subject to seizure by the State. The statute lists a variety of serious felony offenses, including first degree murder,3 reckless homicide,4 aggravated battery with a firearm,5 and aggravated criminal sexual assault.6 In addition to the foregoing Criminal Code violations, a number of Vehicle Code offenses may also be the basis for a vehicle seizure, including all felony DUI charges,7 and aggravated fleeing to elude a police officer.8 This year, section 6-303 of the Illinois Vehicle Code was amended to include the following provision:
The motor vehicle used in a violation of this section is subject to seizure and forfeiture as provided in section 36-1 and 36-2 of the criminal Code of 1961 if the person’s driving privilege was revoked or suspended as a result of a violation listed in paragraph (1), (2), or (3) of subsection (c) of this Section or as a result of a summary suspension as provided in paragraph (4) of subsection (c) of this Section.9
This amendment expands the number of vehicles potentially subject to seizure and forfeiture under sections 36-1 and 36-2 exponentially, because arrests for driving while the license was suspended (based on a statutory summary suspension) or revoked (based on a previous DUI conviction) are common.
Overview of the Seizure/Forfeiture Process
The process begins with an arrest for an offense included within section 36-1 (discussed above) and the subsequent seizure of the vehicle by the arresting police department. The vehicle must be delivered "forthwith"10 to the to the sheriff of the county in where the seizure occurred. Black’s Law Dictionary defines "forthwith" as "immediately; without delay; directly; within a reasonable time under the circumstances of the case."11 No reported case specifically addresses the definition of "forthwith" as used in section 36-1. However, in Crosby v. City of Chicago,12 the First District Appellate Court held that the retention of a vehicle by the Chicago Police for 14 months without ever delivering it to the Sheriff of Cook County to be unlawful, thus entitling the owner to nominal damages.
Upon delivery of the vehicle, the sheriff must notify everyone listed on the title within 15 days via certified mail to the address on file with the Secretary of State.13 In addition, the sheriff must notify the State’s Attorney in the county of seizure within the same 15-day period.14 The statute also provides that the spouse of an owner of a seized vehicle may be able to have the vehicle’s title transferred upon making a sufficient showing that the seized vehicle is the family’s only source of transportation, and that the hardship to the family outweighs the benefit to the State.15
However, this "hardship" provision only applies to vehicles seized for felony DUI violations and for driving with a suspended or revoked license as set forth in subsection (g) of Section 6-303 of the Illinois Vehicle Code.16 In addition, "hardship" relief is only available once per family.17 Therefore, if someone commits a second or subsequent violation in a vehicle previously returned under the hardship provision, relief is unavailable.18 Likewise, if someone who previously had a vehicle seized and then returned to a spouse on a hardship application commits a subsequent violation in another vehicle owned by the arrestee, the affected spouse would be unable to attempt to reclaim the vehicle.19 The statute does not specify the manner by which an affected spouse demonstrates hardship. One suggestion is to send a letter detailing the families’ situation to both the Assistant State’s Attorney in charge of asset forfeiture and to the appropriate supervisory personnel at the Sheriff’s Department.
Once the State’s Attorney receives notice of a seizure, he must "forthwith" file a complaint for forfeiture in the circuit court of venue unless other mitigating circumstances warrant remission of the forfeiture.20 The complaint must be served on the same persons and in the same manner as the notice of seizure required pursuant to Section 36-1.21 The recipients have 20 days from the date of mailing of the complaint to file a verified answer.22 Lienholders of seized vehicles typically file an answer setting forth their security interest along with averments that they had no knowledge the vehicle would be used to commit any offense. Lienholders also routinely file a petition seeking return of the vehicle pursuant to their security interest.
If the vehicle is not released because of hardship or other appropriate mitigating circumstances, or pursuant to a lien holder’s petition, the next step is a hearing on the forfeiture action. As forfeiture proceedings are civil in rem proceedings against an item or thing used in the commission of a crime, the State need only show by a preponderance of the evidence that the vehicle was used in the commission of a crime.23 Moreover, the statute does not require that the vehicle owner be convicted of the underlying offense involving the vehicle as a prerequisite to upholding a forfeiture proceeding.24
Frequently Litigated Seizure/Forfeiture Issues
If the case proceeds to a hearing, the most frequently litigated issues appear to be: (1) the ownership of the vehicle and the owner’s participation in or knowledge of the offense; and (2) whether the vehicle was used in the commission of the offense. These are factual inquiries decided by the court on a case-by-case basis.
1. Determining "ownership" of the vehicle and the owner’s participation in or knowledge of the offense
In People v. 1991 Chevrolet Camaro, the court established a detailed analysis of how to determine an ownership interest in a seized vehicle. 25 In that case, a father and son purchased a vehicle with jointly owned funds. Contemporaneously, the father purchased insurance, listing himself and his wife as primary drivers on the application, but also listing the son as an insured. The title initially listed only the son, but once the father realized the omission, he immediately had it corrected to include both himself and his son. The family’s intention was to share the vehicle. The son also owned another vehicle. One day after the vehicle was purchased, the son used it to commit a burglary. The son was not arrested until two months later. Four months after his arrest, a forfeiture complaint was filed, claiming that the vehicle was owned by the son though titled in the father’s name as well. The father filed an answer asserting his ownership interests and denying any knowledge, until his son’s arrest, that the vehicle was used in commission of a burglary.
At the hearing, the father testified that in the time period between the car’s purchase and the filing of the complaint, his wife drove the car whenever she wanted. The father acknowledged driving the car only four times, as he usually drove his own truck. The father also testified that he had no knowledge the car would be used in a burglary, a point conceded by the State. A police officer testified that during his interrogation, the son claimed that he was the sole driver; that the vehicle was titled in his father’s name for insurance purposes only; and that items found in the vehicle belonged to him. The son testified on rebuttal that these statements were made in an attempt to protect his father who knew nothing about the burglary. The trial court denied the request for forfeiture and the State appealed, claiming the father’s interest was that of a bare titleholder and the son was the true owner because he exercised dominion and control over the vehicle.
The Second District Appellate Court began its analysis by reviewing a variety of definitions of the word "owner":
An "owner" has been defined, for example "as one who has possession of or any other interest in the property involved and may include one who has title and the right to possession of the property." (Citations omitted). While it’s true that "owner" may be used to describe one who has do minion or control over a thing, the title to which is in another, an "owner" may also be described as one who has the legal title or rightful title whether he is the possessor or not. (Citations omitted). Thus, "owners" include people who are entitled to have dominion and control over the property.26
After reviewing Section 36-2, the court determined that "an owner or any person whose right, title or interest is of record may show by a preponderance of the evidence that he did not know or have any reason to know that the vehicle would be used in the commission of an offense, and upon a sufficient showing, may successfully resist forfeiture."27 Based on the facts presented, the court upheld the trial court’s finding that the father was an "innocent owner," entitled to exercise dominion and control over the vehicle, as opposed to a "sham owner" whose purpose is to defeat the intent of the forfeiture statute.28
In its ruling, the court also distinguished People v. Dugan,29 upon which the State had relied. In Dugan, the defendant actually negotiated the purchase and paid for the car, paid for repairs, and kept the car for a period of time. The court, therefore, found that he exercised dominion and control over the vehicle and that, therefore, he was the "true" owner of the car.30 The titled owner was unemployed at the time of the purchase and did not have a bank account. Additionally, the court found that her testimony, namely, that she purchased the car with money she had invested in a house, was incredible.31
2. Was the vehicle "used" in the commission of the offense?
The other issue frequently litigated is whether the vehicle was "used" in the commission of an offense. In People v. Adams, the court held that a vehicle is "used in the commission of a crime if it in some way facilitates the commission of the crime." 32 The Adams court went on to acknowledge that the foregoing was a "broad" definition.33 In Adams, the defendant’s admission that he drove the vehicle to the scene of a burglary, coupled with the inference that he drove the vehicle away from the scene, was found to have facilitated the crime.34 The use of a car to drive to and from gambling locations was found insufficient to justify forfeiture in People ex rel Spencer v. One 1978 Pontiac.35 Conversely, driving to and from gambling activities while transporting gambling documents was found sufficient to justify forfeiture in People ex rel Daley v. One 1978 Buick.36
In People ex rel Barra v. Lee, the court found that the State was not entitled to the forfeiture of a van based on facilitating the commission of unlawful possession of a controlled substance, even though the driver of van was convicted of unlawful possession of a controlled substance in the van.37 However, the controlled substance was contained in a small plastic bag completely concealed within the closed purse of the driver, and the Lee court held the vehicle did not really facilitate the crime, as it furnished no additional dimension of privacy.38 By contrast, in People ex rel Mihm v. Miller, a forfeiture was upheld where a driver possessed a small amount of cocaine in his pocket, on the ground that the vehicle added a dimension of privacy, thus facilitating the offense of possession of a controlled substance.39
Seizures and subsequent forfeiture proceedings against vehicles used in the commission of felony DUIs as well as driving while license suspended or revoked offenses set forth in section 6-303 (g) of the Illinois Vehicle Code40 are occurring with ever increasing frequency in DuPage County. While challenges to "use" of the vehicle in the commission of the offense will not be applicable, challenges relating to "innocent owners" are frequently present. In addition, the "law generally disfavors forfeitures, and statutes authorizing them must be construed strictly in manner as favorable to person whose property is seized as is consistent with fair principles of statutory interpretation."41 Therefore, practitioners handling these cases should review all the procedures and issues set forth in the applicable sections of the Criminal Code carefully to determine whether any defenses to a seizure or forfeiture exist.42
1 In addition to seizures under 720 ILCS 5/36-1, vehicles and other items can also be seized and subjected to forfeiture for violations of, inter alia, the Cannabis Control Act, see 720 ILCS 550/12, and the Controlled Substances Act, see 720 ILCS 570/505. Numerous constitutional challenges have been raised to various aspects of Illinois’ seizure and forfeiture statutes. Due to space limitations, constitutional issues will not be addressed in this article.
2 720 ILCS 5/36-1.
3 720 ILCS 5/9-1.
4 720 ILCS 5/9-3.
5 720 ILCS 5/12-4.2.
6 720 ILCS 5/13.
7 625 ILCS 5/11-501 (c-1) (1); (c-1) (2); (c-1) (3); (d) (1) (A), and (d) (1) (C).
8 625 ILCS 11-204.1.
9 625 ILCS 5/6-303(g).
10720 ILCS 5/36-1. But see People v. Adams, 318 Ill. App. 3d 539, 742 N.E.2d 1256 (2nd Dist. 2001) (holding that the failure to physically deliver the vehicle to the sheriff was insufficient to overturn the trial court’s forfeiture order, where the police immediately notified the sheriff of the seizure and the sheriff then immediately notified the owner as required by section 36-1). In Adams, the Appellate Court found that a constructive delivery had occurred and declined to place a literal interpretation on the statute that would achieve an absurd result.
11 Black’s Law Dictionary (6th ed. 1990).
12 11 Ill. App. 3d 635, 298 N.E.2d 719 (1st Dist. 1973).
13 720 ILCS 36-1.
16 Id. A State’s Attorney also has the discretion to direct the sheriff to release a seized vehicle to an owner who demonstrates that an alleged violation occurred without his knowledge or intent or for other appropriate mitigating circumstances pursuant to 5/36-2(a) and this section is apparently not limited to seizures subsequent to arrests for felony DUIs or violations of 625 ILCS 5/6-303(g). In Adams, the Second District declined to consider a section 5/36-1 hardship request to release a vehicle to a spouse because it was seized in connection with an offense (burglary) not listed therein. Adams, 318 Ill. App. 3d at 541, 742 N.E.2d at 1257.
17 720 ILCS 5/36-1.
20 720 ILCS 5/36-2. In People ex rel Ward v. 1963 Cadillac, 38 Ill. 2d. 344, 231 N.E.2d 445 (1967), an automobile was seized following its owner’s arrest on gambling charges, but a complaint for its forfeiture was not filed until three and a half months later. The court held that the proceedings were untimely and would be dismissed. But see People v. Glenn, 142 Ill. App. 3d 1108, 492 N.E. 2d 957 (5th Dist. 1986) (holding that a 12 month delay between the filing of a complaint and the initiation of the proceedings did not deny due process, despite the fact that the State was required to file a forfeiture complaint "forthwith," as there is no statutory requirement for a speedy judicial determination and the speedy trial provisions of the criminal code are inapplicable to a civil forfeiture).
21 720 ILCS 5/36-2.
23 See e.g., People v. 1991 Chevrolet Camaro, 251 Ill. App. 3d 382, 620 N.E.2d 563 (2nd Dist 1993); People v. Dugan, 125 Ill. App. 3d 820, 466 N.E.2d 687 (2nd Dist. 1984).
24 People ex rel Hanrahan v. One 1965 Oldsmobile, 52 Ill. 2d 37, 284 N.E.2d 646 (1972); People v. Dugan, 125 Ill. App. 3d 820, 466 N.E.2d 687 (2nd Dist. 1984).
25 251 Ill. App. 3d 382, 620 N.E.2d 563 (2nd Dist. 1993).
26 Id. at 388, 620 N.E.2d at 568.
27 Id. at 388-89, 620 N.E.2d at 568.
29 125 Ill. App. 3d 820, 466 N.E.2d 687 (2nd Dist. 1984).
30 Id. at 830-31, 466 N.E.2d at 694-95.
31 Id. at 695, 466 N.E.2d at 831.
32 318 Ill. App. 3d 539, 742 N.E.2d 1256 (2nd Dist. 2001).
33 Id. at 544, 742 N.E.2d at 1260.
34 Id. at 544, 742 N.E.2d at 1261.
35 242 Ill. App. 3d 411, 610 N.E. 2d 142 (3rd Dist. 1993).
36 195 Ill. App. 3d 711, 553 N.E.2d 49 (1st Dist. 1990).
37 128 Ill. App. 3d 128, 470 N. E.2d 46 (3rd Dist. 1984).
38 Id. at 130, 470 N.E.2d at 47.
39 89 Ill. App. 3d 148, 149-50, 411 N.E.2d 592, 593 (3rd Dist. 1980).
40 625 ILCS 5/6-303 (g).
41 1991 Chevrolet Camaro, 251 Ill. App. 3d at 388, 620 N.E.2d at 567.
42 720 ILCS 5/36-1 & 2.
Steve Armamentos is a principal in the Wheaton law firm of Ramsell & Armamentos, L.L.C. Mr. Armamentos concentrates his practice in the areas of DUI, criminal defense, and driver’s license rein-statement hearings. He is chair of the DuPage County Bar Association Criminal Law Committee and a member of the Judiciary Committee. He received his B.A. from Northern Illinois University in 1980 and his J.D. from DePaul College of Law in 1984.