The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Is The Illinois Vehicle Forfeiture Statute Unconstitutional?
By Alexander J. Geocaris

In Illinois, the law permits the seizure of any vehicle that was used in the commission of certain crimes by the sheriff of the county of seizure and could result in possible forfeiture proceedings.[1] To illustrate, a person who gets arrested for driving under the influence (DUI) of alcohol, while their license is suspended because of a prior DUI, can be charged with an aggravated DUI. Under the Illinois forfeiture statute, the arrested person’s vehicle can be seized by the county sheriff and a forfeiture proceeding could also result.[2]  At the time of the arrest, the sheriff seizes the person’s vehicle since it was used for the commission of the aggravated DUI.  The State’s Attorney in the county could bring a forfeiture proceeding against the person and, if successful, the proceeds of any sale of the vehicle would go to the county.[3]  However, a problem arises because the statute does not require a pre-seizure or a post-seizure hearing to allow the vehicle to be seized by the sheriff.  For that reason, in this author’s opinion, the statute should be held unconstitutional.

The Eighteenth Judicial Circuit Court (DuPage County) held in People v. One 1998 GMC[4] that the Illinois Vehicle Statute violated “the Due Process Clause of the Illinois Constitution and the Fifth and Fourteenth Amendment of the United States Constitution.”[5] The court held that when depriving a person of his property, the State is required to have either a pre-seizure hearing or a post-seizure hearing since depriving a person of property has been a long protected right.[6]  Two Illinois Appellate Courts disagree with the circuit court’s conclusion.

The Second District Appellate Court of Illinois in People v. 1998 Ford Explorer[7] affirmed the judgment of the circuit court of Kane County that the Illinois Vehicle Statute is not unconstitutional.[8] The appellate court held that a pre-seizure hearing or a post-seizure hearing is not required since a forfeiture proceeding satisfies due process.[9] Similarly, the First District Appellate Court of Illinois in People v. 1998 Lexus GS 300 [10] affirmed the judgment of the circuit court of Cook County holding that the statute is constitutional, and no pre-seizure or post-seizure hearing is required.[11] The appellate court did not go as in-depth as the Second District since it merely relied on the Second District’s analysis in 1998 Ford Explorer.[12]  Even though both appellate courts held that the statute was constitutional, the Eighteenth Judicial Circuit Court of DuPage County makes a strong argument that the forfeiture statute is unconstitutional.

In examining the Illinois Vehicle Forfeiture Statute and the decisions from the Eighteenth Judicial Circuit Court and the Second District Court, the rationale articulated by the Circuit Court makes a stronger argument that the forfeiture statute is unconstitutional.

The Illinois Vehicle Forfeiture Statute. Section 36-1 of the statute states, “Any vessel, vehicle or aircraft used with the knowledge and consent of the owner in the commission of, or in the attempt to commit as defined in Section 8-4 of this Code, an offense…  may be seized and delivered forthwith to the sheriff of the county of seizure.”[13] If a person commits one of the offenses listed by the statute with his vehicle or an owner of a vehicle had knowledge and gave consent to a person to use his vehicle in the commission of one of the offenses listed, then that vehicle used in commission of the offense could be seized and delivered to the sheriff of the county of seizure.[14]

Section 36-1 further states that the sheriff must give notice of the seizure within fifteen days after delivery of the vehicle “[u]pon each such person whose right, title or interest is of record in the office of the Secretary of State, the Secretary of Transportation . . . by mailing a copy of the notice by certified mail to the address as given upon the records of the Secretary of State . . . . Within that 15 day period the sheriff shall also notify the State’s Attorney of the county of seizure about the seizure.”[15]

Section 36-1 allows a spousal exception to forfeiture if the spouse of the owner of the vehicle can “make a showing that the seized vehicle is the only source of transportation and it is determined that the financial hardship to the family as a result of the seizure outweighs the benefit to the State from the seizure.”[16]  In which case, the vehicle may be turned over to the spouse or family member and the title to the vehicle should be transferred to the spouse or family member who is properly licensed and who requires the use of the vehicle for employment or family transportation purposes

The requirements for a forfeiture action are set forth in Section 36-2. Paragraph (a) grants the State’s Attorney the discretion to determine whether there exist any mitigating factors which would justify causing the sheriff to release the vehicle back to the owner.[17]  If the State’s Attorney “finds that such forfeiture was incurred without willful negligence or without any intention on the part of the owner of the vessel, vehicle or aircraft . . . to violate the law, or finds the existence of such mitigating circumstances as to justify remission of the forfeiture. . . .” the State’s Attorney may cause the sheriff to remit the vehicle “upon such terms and conditions as the State’s Attorney deems reasonable and just.”[18] Section 36-2 also provides that “[t]he State’s Attorney shall give notice of the forfeiture proceeding by mailing a copy of the Complaint in the forfeiture proceeding to the persons, and upon the manner, set forth in Section 36-1.”[19]

The State bears the burden to prove “by a preponderance of the evidence” that the vehicle was used in the commission of an offense set forth in Section 36-1.[20] The owner of a vehicle, however, may also show “by a preponderance of the evidence” that the owner did not know or have reason to know the vehicle was used in commission of a crime.[21] If the State proves its burden, then the vehicle can be destroyed, sent to a State agency, or sold at a public auction with the proceeds going to the county of seizure.[22]  The same discretion conferred upon the State’s Attorney prior to an action for forfeiture, is afforded to the Attorney General under Section 36-4, which provides that a person or interested person can file a petition for remission of forfeiture with the Attorney General before the sale or destruction of vehicle that was seized.[23] Remission should be granted if the Attorney General finds that there was no willful negligence or intention on part of the owner to violate the law, or if there is some mitigating circumstances.[24]

The Statute is silent as to whether a pre-seizure or a post-seizure hearing is required prior to a full forfeiture proceeding. Section 36-2 only states that the State’s Attorney should give prompt notice when exercising discretion on whether to bring an action for forfeiture.[25] Once a vehicle is seized, a person is deprived of his vehicle, which could be for a substantial amount of time.  It is at the seizure stage that the constitutionality of the statute is questioned.

The DuPage Circuit Court’s Reasoning That the Forfeiture Statute is Unconstitutional. The Eighteenth Judicial Circuit Court in One 1998 GMC found that the forfeiture statute was unconstitutional.[26] In One 1998 GMAC, three cases were consolidated to one trial in which all three of the claimants challenged the forfeiture statute as violating “the Due Process Clause of the Illinois Constitution and the Fifth and Fourteenth Amendments of the United States Constitution because it fails to provide a mechanism to challenge the State’s right to seize and hold their vehicles while awaiting trial on the merits of the State’s claim.”[27]

To analyze whether the statute violates the Due Process Clause of the Fourteenth Amendment, the court looked at three factors established by the Supreme Court in Matthews v. Eldridge:[28]

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”[29]

In its conclusion, the Circuit Court discussed the importance of property rights and the protections of a person’s property.  The court found, “The right to own and to possess property free from governmental interference is as old as the Magna Carta and is bedrock to the Anglo-American legal system.”[30]

The Circuit Court cited the U.S. Circuit Court in Krimstock v. Kelly.[31] In Krimstock, the court applied the Matthews factors to a New York City ordinance that permitted vehicle forfeiture proceedings.[32] The court in Krimstock found that once a person challenges the validity of a seizure before a trial, if the government cannot “establish probable cause for the initial seizure or offer post-seizure evidence to justify continued impoundment, retention of the seized property runs afoul of the Fourth Amendment.”[33]  According to the DuPage County Circuit Court, “Krimstock reasoned, therefore, that a procedural mechanism must exist to enable a person deprived of his or her property to test the government’s rights to hold the seized property during the pendency of the forfeiture proceeding.”[34]

When applying the Matthews factors, the DuPage County Circuit Court found that the private interest affected would be significant.[35] The court reasoned that the loss of use and possession of using ones vehicle while waiting for a forfeiture action on the merits is a serious interest that is affected in today’s society.[36] The court also found that, “[The forfeiture statute] runs substantial risks of erroneously depriving owners of their property pending trial. It fails to provide either a meaningful, timely or procedurally correct mechanism to test the State’s right to hold their vehicles as required by the Due Process Clause of the Illinois and United States Constitutions.”[37]

The court recognized the government’s interest in enforcing the forfeiture statute to deter crime and the administrative burden for requiring such hearings.  However, the court found that the government’s interest is “overshadowed by the importance of the right at stake.”[38] The court thus concluded that the forfeiture statute violates the Due Process Clause of the Illinois Constitution and the Fifth and Fourteenth Amendments of the United States Constitution.[39]

The Second District’s Reasoning As to the Constitutionality of the Forfeiture Statute.  In an unrelated case, the Second District Illinois Appellate Court came to the opposite conclusion.  The Second District in 1998 Ford Explorer, found that the Illinois forfeiture statute is constitutional.[40] Similar to the DuPage County case, in 1998 Ford Explorer, three Kane County cases were consolidated into one trial in which all three claimants alleged the forfeiture statute violated their due process rights by not providing a post-seizure hearing.[41] The appellate court started its analysis by looking at the Matthews factors, but then did not apply those factors.  The court looked instead to a Supreme Court case that dealt with delays in forfeiture proceedings,[42] United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency.[43]

In $8,850, the Supreme Court held that an 18 month delay from the seizure of the claimant’s currency from the time the forfeiture action is filed did not violate the claimant’s due process rights.[44] The Court held that the delay was reasonable based on a four-part test set forth in Barker v. Wingo.[45] The Court found, “Under Barker, a speedy trial case, a court must weigh four factors: (1) the length of the delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and (4) prejudice to the defendant.”[46]

The Court thus held that, 18 months was a substantial time, the delay was justified since the Government made reasonably diligent efforts to process the petition for forfeiture and the claimant did not assert her right to an earlier forfeiture proceeding or show the delay prejudiced her ability to defend against the forfeiture.[47]

The Second District, in reliance on Barker, held in 1998 Ford Explorer that the claimants did not meet the Barker factors or argue that the delays were unreasonably long from the seizure of their vehicles to the time that the orders of forfeiture were entered.[48] The court noted that the claimants had argued they were deprived of the use of their vehicles during the delay, but the court stated “the Supreme Court has held that a forfeiture proceeding satisfying the Barker test satisfies any due process right with respect to the vehicle itself.”[49] The court concluded that the claimants did not make a showing that the delayed forfeiture proceedings prejudiced them and therefore affirmed the Kane County circuit court.[50]

The DuPage Circuit Court Makes a Stronger Argument for Holding the Forfeiture Statute Unconstitutional. One of the main reasons that the DuPage Circuit Court makes a stronger argument than the Second District Illinois Appellate Court is the Circuit Court’s conclusion that $8,850 does not apply when a claimant is seeking a prompt pre-seizure or prompt post-seizure hearing to challenge the seizure of a claimant’s vehicle.

The facts of $8,850 are distinguishable from the facts in Krimstock, 1998 Ford Explorer, and One 1998 GMC. There is a unique difference when the forfeiture is for currency and when the forfeiture is for a person’s vehicle.[51]  In $8,850, the seizure was of currency which occurred after the claimant lied to customs inspectors about not having currency over $5,000.[52] The issue argued by the claimant was not that the seizure proceeded without a hearing, but that his due process rights were violated due to the 18 month delay between the initial seizure and the filing of the forfeiture proceeding.[53] 

The argument presented by the claimants in both 1998 Ford Explorer and One 1998 GMC was that the Illinois forfeiture statute is unconstitutional because it does not provide for a pre-seizure or post-seizure hearing to allow the claimant to challenge the initial seizure of the vehicle. The court in $8,850, on the other hand, analyzed whether the delay between the seizure and forfeiture proceeding was unreasonable in light of the Barker factors.  The Barker factors should not apply to cases like 1998 Ford Explorer and One 1998 GMC,[54] as the Barker factors deal with the Sixth Amendment right to a speedy trial, not the Fifth Amendment Due Process right.[55] Accordingly, the Second District Illinois Appellate Court in 1998 Ford Explorer should not have looked to $8,850 nor the factors set forth from Barker.

Instead, the Second District should have applied the same analysis that the DuPage Circuit Court applied in One 1998 GMC, following Krimstock’s analysis and evaluating the Matthews factors. The Matthews factors “should be used to evaluate the adequacy of process offered in post-seizure, pre-judgment deprivations of property in civil forfeiture proceedings.”[56] The court in Krimstock stated that the seizure of one’s property even in the civil forfeiture context is also protected by the Fourth Amendment’s protection against unreasonable seizures.[57] The Krimstock court stated that:

“[A]t a minimum, the hearing must enable claimants to test the probable validity of continued deprivation of their vehicles, including the City's probable cause for the initial warrantless seizure. In the absence of either probable cause for the seizure or post-seizure evidence supporting the probable validity of continued deprivation, an owner's vehicle would have to be released during the pendency of the criminal and civil proceedings.”[58]

Unlike in Krimstock, the claimants in One 1998 GMC and 1998 Ford Explorer requested that the Illinois forfeiture statute be declared unconstitutional for not providing a pre-seizure or post-seizure hearing.  The DuPage Circuit Court in One 1998 GMC so held that the statute was unconstitutional applying the Matthews factors.[59]

Conclusion.  The DuPage County Circuit Court in the case of One 1998 GMC makes a very strong argument that the Illinois Vehicle Forfeiture Statute is unconstitutional. The protections against depriving a person of property without due process of law have been a protected right as old as the Constitution itself. The forfeiture statute provides limited protections against erroneous deprivation, but not enough given the importance of the property rights at stake and the importance of vehicles in today’s society. There should be a requirement for a pre-seizure or post-seizure hearing to challenge the continued seizure of a person’s vehicle. The DuPage Circuit Court in One 1998 GMC was correct to rely on Krimstock, rather than the case of $8,850, since the relevant issue is the continued deprivation of property, rather than the delay of the forfeiture proceeding. The Illinois Second District in 1998 Ford Explorer should not have relied on the case of $8,850, since the Matthews factors are much more applicable than the Barker factors. A person in Illinois should be afforded the right to challenge the continued seizure of his vehicle prior to a forfeiture proceeding, and the failure of the forfeiture statute to do so should render it unconstitutional.

[1] See 720 ILCS 5/36-1 et seq. (2008); 720 ILCS 5/36-2 (2008).

[2] Under the statute, certain offenses are listed from the Illinois Vehicle Code, such as: 625 ILCS 5/11-204.1 (“Aggravated fleeing or attempting to elude a peace officer”); 625 ILCS 5/11-501(d)(1)(A) (“Aggravated driving under the influence of alcohol, other drug or drugs . . . .”); 625 ILCS 5/11-501(d)(1)(G) (Getting a DUI while the defendant’s driving privileges were revoked or suspended); 625 ILCS 5/6-303 (“Driving while driver’s license, permit or privilege to operate a motor vehicle is suspended or revoked.”); 625 ILCS 5/6-101 (Driving without a license or permit).

[3] See 720 ILCS 5/36-2 (2008).

[4] People v. One 1998 GMC, 2009 WL 3856411, at *1 (18th Cir. Nov.  17, 2009).

[5]  People v. One 1998 GMC, 2009 WL 3856411, at *2 (18th Cir. Nov.  17, 2009).

[6]  People v. One 1998 GMC, 2009 WL 3856411, at *19 (18th Cir. Nov.  17, 2009).

[7] People v. 1998 Ford Explorer, 399 Ill. App. 3d 99, 926 N.E. 2d 999 (2d Dist. 2010).

[8]1998 Ford Explorer, 399 Ill. App. 3d at 100.

[9] 1998 Ford Explorer, 399 Ill. App. 3d at 103.

[10] People v. 1998 Lexus GS 300, ___ Ill. App. 3d ___, 930 N.E.2d 582 (1st Dist. 2010).

[11]1998 Lexus GS 300, 930 N.E.2d at 587.

[12] 1998 Lexus GS 300, 930 N.E.2d at 587.

[13] 720 ILCS 5/36-1 et seq. (2008).

[14] 720 ILCS 5/36-1 et seq. (2008).

[15] 720 ILCS 5/36-1 et seq. (2008).

[16] 720 ILCS 5/36-1 et seq. (2008).

[17] 720 ILCS 5/36-2 (2008).

[18] 720 ILCS 5/36-2 (2008).

[19] 720 ILCS 5/36-2 (2008).

[20] 720 ILCS 5/36-2 (2008).

[21] 720 ILCS 5/36-2 (2008).

[22] 720 ILCS 5/36-2 (2008).

[23] 720 ILCS 5/36-4 (2008).

[24]  720 ILCS 5/36-4 (2008).

[25] 720 ILCS 5/36-2 (2008).

[26] People v. One 1998 GMC, 2009 WL 3856411, *1 (18th Cir. Nov.  17, 2009).

[27] People v. One 1998 GMC, 2009 WL 3856411, *4 (18th Cir. Nov.  17, 2009).

[28] Matthews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893 (1976).

[29] Matthews, 424 U.S. at 335.

[30] People v. One 1998 GMC, 2009 WL 3856411, *5 (18th Cir. Nov.  17, 2009). The court also stated the protection of property “is echoed in Thomas Jefferson’s paraphrase of John Locke’s statement of the inalienable rights of mankind—‘life liberty and property’—contained in the Declaration of Independence. It is preserved, verbatim, in the Bill of Rights of the Illinois Constitution, the Fifth Amendment to the United States Constitution and made applicable to all 50 states by the Fourteenth Amendment: ‘[N]o person shall . . . be deprived of life liberty or property, without due process of law.’” Id. at *5.

[31] 306 F.3d 40 (2d Cir. 2002).

[32] One 1998 GMC, 2009 WL 3856411, at *4-5.

[33] Krimstock v. Kelly, 306 F.3d 40, 50 (2d Cir. 2002), quoting Marine Midland Bank, N.A. v. United States, 11 F.3d 1119, 1125 (2d Cir. 1993).

[34]People  v. One 1998 GMC, 2009 WL 3856411, *5 (18th Cir. Nov.  17, 2009). The court in Krimstock provided a good example of why a post-seizure hearing would be warranted. “For example, at a retention hearing, the City might succeed in showing that police officers had probable cause for seizing the vehicle of a DWI arrestee, yet be unable to establish the probable validity of continued deprivation pendente lite in the face of proof of innocent ownership or evidence that the Breathalyzer test had registered inaccurate results.” Krimstock, 306 F.3d at 49.

[35] One 1998 GMC, 2009 WL 3856411, at *7.

[36] One 1998 GMC, 2009 WL 3856411, at *7 (“Automobiles have been recognized as the means by which citizens get to work, take their children to school, purchase groceries and other necessities of life and attend medical appointments....  The loss of the use and possession of a vehicle is often compounded by the fact that payments are owed on those vehicles. The loss of use of that vehicle may result in that person’s inability to hold a job and generate the income necessary to maintain those payments. In such a situation, the owner may lose the vehicle to a bank or finance company whether or not the State prevails on its claim and continue owing their creditor on any deficiency that may result on the loan”).

[37] One 1998 GMC, 2009 WL 3856411, at *15. The court found that the safeguards in the forfeiture against erroneous deprivation were not enough since there are no deadlines for the forfeiture hearing to take place once the action is filed. Id. at *8. The State argued that the statute protects erroneous deprivation with Sections 5/36-1, 5/36-2, and 5/36-4 but the court argued that these Sections set no time limits and 5/36-4 does not have a “promptly” time requirement like 5/36-2. Id. at *9.

[38]  One 1998 GMC, 2009 WL 3856411, at *16. The court reasoned that “we are dealing with a right regarded by the Constitution as worthy of due process protection and historically fundamental to our legal system. Providing a forum to ensure the protection of such rights is what courts do.” Id.

[39] One 1998 GMC, 2009 WL 3856411, at *16.

[40]  People v. 1998 Ford Explorer, 399 Ill. App. 3d 99, 100, 926 N.E. 2d 999 (2d Dist. 2010).

[41]  1998 Ford Explorer, 399 Ill. App. 3d at 101.

[42] 1998 Ford Explorer, 399 Ill. App. 3d at 101.

[43] United States v. Eight Thousand Eight Hundred & Fifty Dollars ($8,850) in United States Currency 461 U.S. 555, 103 S.Ct. 2005 (1983).

[44] $8,850, 461 U.S. at 556.

[45] Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182 (1972).

[46] 1998 Ford Explorer, 399 Ill. App. 3d at 102, citing $8,850, 461 U.S. at 564.

[47] $8,850, 461 U.S. at 569-70.

[48] 1998 Ford Explorer, 399 Ill. App. 3d at 103.

[49] 1998 Ford Explorer, 399 Ill. App. 3d at 103, citing United States v. Von Neumann, 474 U.S. 242, 251, 106 S.C.t. 610 (1986).

[50]  1998 Ford Explorer, 399 Ill. App. 3d at 103-04.

[51] The court in One 1998 GMC recognized this in finding, “[a]s Krimstock noted, ‘the particular importance of motor vehicles derives from their use as a mode of transportation and, for some, the means to earn a livelihood.’” One 1998 GMC, 2009 WL 3856411, at *9, quoting Krimstock, 306 F.3d at 61.

[52] $8,850, 461 U.S. at 558.

[53] $8,850, 461 U.S. at 560-61.

[54] The court in Krimstock stated, “[t]he Constitution, however, distinguishes between the need for prompt review of the propriety of continued government custody, on the one hand, and delays in rendering final judgment, on the other.” 306 F.3d 40, 68 (2d Cir. 2002).

[55] The Supreme Court in $8,850 acknowledged this but proceeded to apply the Barker factors to the forfeiture of the currency since the claimant was challenging the length of time between the seizure and the forfeiture proceeding. See 461 U.S. at 564.

[56] Krimstock, 306 F.3d. at 60.

[57] Krimstock, 306 F.3d at 49. The court stated, “[s]ome risk of erroneous seizure exists in all cases, and in the absence of prompt review by a neutral fact-finder, we are left with grave Fourth Amendment concerns as to the adequacy of an inquiry into probable cause that must wait months or sometimes years before a civil forfeiture proceeding takes place. Our concerns are heightened by the fact that the seizing authority in this case ‘has a direct pecuniary interest in the outcome of the proceeding.’” Id. at 50-51, quoting United States v. James Daniel Good Real Prop., 510 U.S. 43, 55-56, 114 S.Ct. 492 (1993).

[58] Krimstock, 306 F.3d. at 69.

[59] One 1998 GMC, 2009 WL 3856411, at *19 (“[T]he Krimstock litigants did not request that the New York City Ordinance be declared unconstitutional. Instead, they requested that the court grant them a post-seizure, pre-trial hearing to test the city’s right to hold their vehicles.”).

Alexander J. Geocaris, obtained his B.A. from Augustana College in 2008, and is currently a J.D. Candidate for graduation in May 2011 from Northern Illinois University College of Law. He is currently Managing Editor of the Northern Illinois University Law Review.

 
 
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