Suppose that when a criminal defendant appears in court, he is advised of the right to have counsel appointed if indigent, tells the judge he wants to hire his own lawyer, and signs a written waiver of his right to appointed counsel. When the defendant next appears in court, he does not have a lawyer. May the judge rely on the waiver of appointed counsel to require the defendant to proceed, without inquiring whether the defendant wants the assistance of counsel? Continue reading
Tag Archives: forfeiture
In an opinion last week, the court of appeals helpfully summarized the law about how a defendant may lose the right to counsel, and may have recognized a new way that a defendant may lose that right. The case is State v. Blakeney, and this post explores it briefly. Continue reading →
On Friday, Attorney General Eric Holder announced major new limits on asset forfeiture. In a nutshell, he put a stop to the federal civil forfeiture of assets seized by state and local law enforcement and “adopted” under the Equitable Sharing program. The details are a little fuzzy, but this may be a very big deal in the world of forfeiture, for reasons I discuss below. Continue reading →
Part I of this post ended by noting that, like the racing forfeiture provisions in G.S. 20-141.3—and unlike the DWI seizure and forfeiture laws—the new felony speeding to elude seizure and forfeiture provisions in G.S. 20-141.5 fail to specify that payment of towing and storage costs is required to obtain the release of a motor vehicle before sale, giving rise to the question of who bears the towing and storage costs when a motor vehicle is seized but not sold. Cf. G.S. 20-28.3(e), (e2), (e3), and (n) (making “payment of all towing and storage charges” a condition of a motor vehicle’s release).
Perhaps the legislature’s failure to address this issue reflects the view that an entity in the regular business of towing and storing motor vehicles that contracts with a sheriff to tow and store vehicles seized pursuant to G.S. 20-141.5 acquires a possessory lien for reasonable charges for towing and storage. See G.S. 44A-2(d) (providing that “[a]ny person who . . . tows or stores motor vehicles in the ordinary course of the person’s business pursuant to an express or implied contract with an owner or legal possessor of the motor vehicle, except for a motor vehicle seized pursuant to G.S. 20‑28.3, has a lien upon the motor vehicle for reasonable charges for such . . . towing [and] storing”); State v. Davy, 100 N.C. App. 551, 561 (1990) (recognizing that a private storage facility acquired a lien for storage fees for a truck impounded as an item of evidence pursuant to G.S. 15-11.1 and declining the defendant’s request to “create a judicial exception to N.C.G.S. sec. 44A–1 [by holding] that when property is seized by a law enforcement agency who thereafter directs the local storage facility to store and retain said property . . . the lawful owner is entitled to immediate possession of said property and the law enforcement agency is thereafter held accountable for all storage liens”). Possessory liens under Chapter 44A arise when the lienor acquires possession of the property and terminate when the lienor voluntarily relinquishes possession of the property. G.S. 44A-3. Given that a motor vehicle seized and held pursuant to G.S. 20-141.5 cannot be sold until it is relinquished by the entity holding it in storage, the requirement in G.S. 20-141.5(h)(1) that towing and storage fees be deducted from sale proceeds accounts for any payments the sheriff is required to make to obtain the motor vehicle’s release.
Even if the entities in the business of towing and storing motor vehicles acquire possessory liens for reasonable towing and storage charges, which they may enforce by refusing to release motor vehicles before sale without payment of the lien by the party seeking release, questions remain regarding who bears towing and storage expenses when either no lien arises or any lien that was acquired has been terminated by the lienor’s relinquishment of the motor vehicle to another.
As discussed in Part I, new G.S. 20-141.5(g) requires that that the law enforcement agency that arrests a person for felony speeding to elude seize the motor vehicle driven and deliver it to the sheriff. Thus, with some frequency, motor vehicles will be seized by a law enforcement agency other than the sheriff’s department. That law enforcement agency must then itself tow or pay a private company to tow the seized motor vehicle for delivery to the sheriff. If the law enforcement agency tows the vehicle itself, no possessory lien arises since law enforcement agencies do not tow or store vehicles in the “ordinary course of . . . business.” See G.S. 44A-2(d). If a private company in the business of towing tows the vehicle for delivery to the sheriff, may it refuse that delivery until the sheriff pays reasonable charges for towing? If private entities may enforce their possessory liens by refusing to release vehicles to owners and lienholders absent payment of reasonable towing and storage charges, it seems to me the same rules would apply to the sheriff. If that is so, the sheriff will be required to pay any private towing company to obtain possession of the seized motor vehicle. Of course, if the motor vehicle is sold, this is among the amounts that the sheriff may recover from sale proceeds.
Likewise, even if the sheriff initially seizes the vehicle but arranges for it to be towed to a storage facility by a private entity that is not also the storage entity, it seems unlikely that the private tower would relinquish possession of the motor vehicle to the storage facility—thereby terminating its lien—absent payment by the sheriff. And, again, while these amounts may be recovered if the motor vehicle is sold, if the vehicle is permanently released before sale to a lienholder or qualifying owner, there is no statutory mechanism for exacting payment of those towing charges, for which there is no lien, from the party obtaining the motor vehicle’s permanent release.
Thus, in circumstances that may arise with some frequency, it appears to me that the sheriff bears the burden of paying for towing and for expenses associated with storage (if carried out by an entity not in the business of storing motor vehicles) without the prospect of being reimbursed from the proceeds at sale.
It’s worth noting, however, that my views on the payment of towing and storage fees differ from those expressed by some other experts. The North Carolina Sheriff’s Association has advised sheriffs that the law does not require the sheriff to pay a towing company for vehicles seized when the arrest is made by another law enforcement agency and that the person seeking a motor vehicle’s release always must pay towing and storage fees to obtain the motor vehicle’s release.
Other aspects of the law not discussed in this or the earlier post are explored in this memorandum from the Administrative Office of the Courts. If you have questions about the new law or views that expound upon or differ from those expressed above, please use the comment feature to share your thoughts.
My nomination for catchiest short title of the 2011 legislative session goes to House Bill 427, enrolled and chaptered as S.L. 2011-271, and short-titled “Run and You’re Done.” The aptly captioned act provides for seizure and forfeiture of motor vehicles driven on or after December 1, 2011 in the commission of felony speeding to elude, an offense defined in G.S. 20-141.5. Defendants were charged with felony speeding to elude in about 1,600 cases in 2010, indicating that fewer than half the number of motor vehicles will be seized under new G.S. 20-141.5 than are currently seized pursuant to the seizure and forfeiture provisions for motor vehicles used for impaired driving. A lot of folks have asked about the act and I thought I’d spend a couple of posts reviewing what it says.
New subsections (g)–(j) of G.S. 20-141.5 require law enforcement agencies, upon arresting a defendant for felony speeding to elude, to seize the motor vehicle driven and to deliver it to the sheriff of the county in which the offense is committed. Where delivery of actual possession is impracticable, G.S. 20-141.5(g) provides for constructive possession by the sheriff. The sheriff must hold the vehicle pending trial of the driver or drivers charged with the felony offense unless the motor vehicle is released before trial pursuant to a petition made (depending upon the basis for release and the procedural posture of the case) to the sheriff, the clerk or to the district or superior court.
G.S. 20-141.5(g)(1) requires the sheriff to release a seized motor vehicle to an owner who executes a satisfactory bond in double the value of the motor vehicle conditioned upon the owner’s return of the motor vehicle on the day of trial. The sheriff also must return the motor vehicle to its owner upon acquittal or dismissal of any felony charge. Lienholders may petition the court for pre-trial release of the motor vehicle. G.S. 20-141.5(g)(2); see also AOC-CR-276 (form petition for lienholder). The court with which this petition is made likely is the court before which the criminal case is pending at the time of the petition. Thus, if the defendant has not yet been bound over to superior court pursuant to G.S. 15A-612 (or been indicted), district court appears to be the appropriate venue for the lienholder’s petition. If the lienholder sells the motor vehicle, it must file with the court an accounting of proceeds and pay into the court all proceeds in excess of the lien.
Certain other owners also may prevent a motor vehicle seized under these provisions from being sold. A court must restore a motor vehicle to its owner if the owner demonstrates at the forfeiture hearing or during any other proceeding at which the matter is considered the following three factors:
1) the defendant was an immediate member of the owner’s family at the time of the offense;
2) the defendant had no previous convictions or previous or pending violations of any provision in Chapter 20 of the General Statutes for the three years before the offense; and
3) the defendant was under the age of 19 at the time of the offense.
G.S. 20-141.5(h)(3); see also AOC-CR-277 (form owner’s petition for release).
The owner is entitled to trial by jury on these issues. The owner of a motor vehicle driven by someone else in the commission of felony speeding to elude also may seek release of the motor vehicle by filing a petition with the clerk of court seeking a pretrial determination that he or she is an innocent owner. G.S. 20-141.5(h)(4). While the term “innocent owner” is defined in G.S. 20-28.2(a1)(2) for purposes of obtaining the release of a motor vehicle seized from an impaired driver, the term is not separately defined for purposes of felony speeding to elude seizures. Because the “innocent owner” definition in G.S. 20-28.2(a1)(2) corresponds to the statutory bases for seizure under the impaired driving laws, which differ from those for felony speeding to elude, this definition does not provide much guidance for purposes of determining how a motor vehicle owner establishes his or her status as an innocent owner pursuant to G.S. 20-141.5(h)(4). The form petition and order created by the Administrative Office of the Courts, AOC-CR-275, reflects the ambiguity regarding how one establishes himself or herself as an innocent owner. In any event, if the clerk determines that the petitioner is an innocent owner, the clerk must release the vehicle to the petitioner. A determination by the clerk that the petitioner failed to establish that he or she is an innocent owner may be reconsidered by the court as part of the forfeiture hearing. G.S. 20-141.5(h)(4); see also AOC-CR-277 (form petition for reconsideration).
When a seized motor vehicle has been specially equipped or modified to increase its speed, the court must, before its sale, order that the special equipment or modification be removed and destroyed and the vehicle restored to its original manufactured condition. See G.S. 20-141.5(j). If the modifications are so extensive as to render restoration impractical, the court may order that the vehicle be turned over to a governmental agency or public official within the territorial jurisdiction of the court to be used for official duties. Id. These provisions do not affect the rights of lienholders and other claimants. Id.
If the driver of a seized motor vehicle is convicted, the court must order the motor vehicle sold at public auction, unless, as noted above, the vehicle has been reclaimed by a lienholder upon order of the court or restored to the owner pursuant to the criteria set forth above relating to use by a family member under the age of 19 or based on the owner’s status as an innocent owner. See AOC-CR-278. Liens are paid from net proceeds of sale, after deducting storage expenses, the “fee for the seizure” (which presumably means towing expenses) and sale costs. The balance of the proceeds are payable to the county schools.
The provisions in new G.S. 20-141.5(h) governing sale proceeds are virtually identical to those governing the distribution of sale proceeds for motor vehicles seized and sold pursuant to G.S. 20-141.3 based upon their use in prearranged speed competitions. Like the racing forfeiture provisions—and unlike the DWI seizure and forfeiture laws—G.S. 20-141.5 fails to specify that payment of towing and storage costs is required to obtain the release of a motor vehicle before sale, giving rise to the question of who bears the towing and storage costs when a motor vehicle is seized but not sold. Cf. G.S. 20-28.3(e), (e2), (e3), and (n) (making “payment of all towing and storage charges” a condition of a motor vehicle’s release). The matter of who pays is significant, particularly when one considers that towing and storage costs easily can equal or exceed the value of a motor vehicle before the underlying criminal case is resolved. I’ll address this aspect of the new law in Part II of this post.
In response to my recent post (here) about waivers of counsel, a number of you emailed asking me to write about forfeiture of the right to counsel. Your wish is my command.
Although cases sometimes confuse the terms, waiver is different from forfeiture. A waiver of counsel involves a knowing, voluntary, and intelligent relinquishment of the right to counsel. Forfeiture of the right to counsel involves an involuntary relinquishment of the right. Typically, forfeiture is understood to occur when the defendant’s misconduct results in a relinquishment of the right. State v. Montgomery, 138 N.C. App. 521, 524 (2000) is a commonly cited N.C. case on point. The facts were as follows. In January 1997, the defendant was found to be indigent and assistant public defender Thurston Fraizer was appointed as counsel. One month later, the defendant’s family retained George Laughrun to represent him. Then, in August 1997, Laughrun successfully moved to withdraw; a month later, the public defender again was appointed. In December 1997, private attorney Thomas Duncan filed a notice of appearance as defendant’s counsel. On February 16, 1998, the day of trial, Duncan moved for a continuance, and apparently to withdraw, saying that he was retained by the defendant’s girlfriend but that the defendant no longer wished to be represented by him. The court denied the motion to withdraw, informed the defendant of his right to proceed pro se, and told him that he was not entitled to appointment of another lawyer. The next day, the defendant appeared in court, reiterated his objection to Duncan’s representation, and disrupted court with profanity, leading to a finding of contempt. On February 23, 1998, the defendant appeared before another judge. After Duncan again unsuccessfully sought to withdraw, the defendant again became disruptive and again was found in contempt. Trial was set for February 25, 1998. In the courtroom on the day of trial, the defendant threw water in Duncan’s face. He again was found in contempt, and was charged with assault on Duncan. Duncan was allowed to withdraw and the case was continued. In April 1998, the defendant appeared before yet another judge, this time with attorney Fraizer, who said that he had been appointed to represent the defendant in connection with the assault case involving Duncan and that the defendant required representation in the present case. The judge refused to appoint Fraizer but allowed him to serve as standby counsel. After the defendant was convicted, he appealed, arguing that the trial judge had erred by requiring him to proceed pro se. The court of appeal disagreed, finding that the defendant had forfeited his right to counsel. It stated:
A forfeiture results when the state’s interest in maintaining an orderly trial schedule and the defendant’s negligence, indifference, or possibly purposeful delaying tactic, combine to justify a forfeiture of defendant’s right to counsel. A defendant who misbehaves in the courtroom may forfeit his constitutional right to be present at trial and a defendant who is abusive towards his attorney may forfeit his right to counsel.
Applying that rule, the court found that the defendant’s “purposeful conduct and tactics to delay and frustrate the orderly processes of our trial courts simply cannot be condoned.” Thus, it held he forfeited his right to counsel.
Following Montgomery, the court of appeals has found that forfeitures occurred in other cases. See State v. Quick, 179 N.C. App. 647 (2006) (failure to retain counsel over an eight month period amounted to “obstruction and delay of the proceedings” resulting in a forfeiture); State v. Leyshon, __ N.C. App. __, 710 S.E.2d 282 (2011) (forfeiture occurred when the defendant refused to sign a waiver of counsel form and refused to answer the court’s questions about whether he wanted counsel or to proceed pro se); State v. Boyd, 200 N.C. App. 97 (2009) (the defendant willfully obstructed and delayed court proceedings by refusing to cooperate with his appointed attorneys and insisting that his case would not be tried).
Notwithstanding this case law, some cautionary notes are in order. Specifically, in State v. Wray, __ N.C. App. __, 698 S.E.2d 137 (2010), the court articulated “a presumption against the casual forfeiture” of constitutional rights and stated that forfeiture should be restricted cases of “severe misconduct.” In that case, the defendant’s first lawyer was allowed to withdraw because of a breakdown in the attorney-client relationship. His second lawyer withdrew on grounds of conflict of interest. The defendant’s third lawyer was allowed to withdraw after the defendant complained that counsel had not promptly visited him and had “talked hateful” to his wife and after counsel reported that the defendant accused him of conspiring with the prosecutor and contradicted everything the lawyer said. The trial court appointed Mr. Ditz and warned the defendant that failure to cooperate with Ditz would result in a forfeiture of the right to counsel. After the defendant indicated that he did not want to be represented by Ditz, the trial court explained that the defendant either could accept representation by Ditz or proceed pro se. The defendant rejected these choices and asked for new counsel. When Ditz subsequently moved to withdraw, the trial court allowed the motion and found that the defendant had forfeited his right to counsel. On appeal the court held, among other things, that the record did not establish serious misconduct required to support a finding of forfeiture. Specifically, there was no evidence that the defendant used profanity in court, threatened counsel or court personnel, was abusive, or was otherwise inappropriate. Additionally, the court found that the record failed to support a finding of forfeiture because the defendant “was given no opportunity to be heard or to participate in the hearing at which the trial court ruled that he had forfeited his right to counsel.” Thus, Wray suggests that the trial judge should proceed with caution when finding a forfeiture of counsel, making sure that the record fully reflects the defendant’s “severe misconduct” and that the defendant was afforded an opportunity to be heard.
Eating the evidence might yield a stomach ache but it won’t ensure an acquittal. That is the lesson learned from State v. James, a case recently decided by the N.C. Court of Appeals. In James, an officer was patrolling in an unmarked vehicle when the defendant waived her over. As the officer opened her car door, displaying her uniform and badge, the defendant started running, dropping something along the way but ultimately abandoning his flight. After the defendant was secured, officers located the object that the defendant had dropped. One of the officers performed a Narcotics Field Test Kit (NIK test) on the item, which indicated that it was cocaine. The defendant was arrested on drug charges and taken to the police station for processing. While there, the defendant managed to access the seized substance and swallow it. When he was taken to the hospital for treatment, the treating doctor asked the defendant what he had taken or eaten. The defendant responded “that he ate approximately a gram of crack cocaine.” At the hospital, the defendant also asked an officer how he could be charged “since he had ate the crack.” After being treated, the defendant was brought to a magistrate. The defendant asked the magistrate, “How are they charging me with the crack, when I ate it? Or possessing the crack when I ate it?”
At the defendant’s trial, one of the officers testified that based on his training and experience, the substance appeared to be crack cocaine. Another testified that the NIK test indicated that the substance was cocaine. The defendant was convicted and he appealed, arguing that the trial court erred by allowing the officer to testify that the substance was crack cocaine based solely on a visual inspection and by allowing testimony regarding the results of the NIK test.
As to the visual identification, the court of appeals concluded that as a general rule, under State v. Ward, 364 N.C. 133, 142 (2010), visual identification of cocaine is inadmissible. It also concluded that that testimony regarding the NIK test results was inadmissible because the State did not sufficiently establish the reliability of the test. However, it determined that “[u]nder the unique circumstances of this case,” the defendant “forfeited his right to challenge the admission of this otherwise inadmissible testimony.” The court reasoned that North Carolina cases already have “recognized that even constitutional protections are subject to forfeiture as a result of improper conduct by a defendant.” In this regard it noted, among other things, the forfeiture by wrongdoing exception to the confrontation clause. It concluded:
Just as a defendant can lose the benefit of a constitutional right established for his or her benefit, we hold a defendant can lose the benefit of a statutory or common law legal principle established for his or her benefit in the event that he or she engages in conduct of a sufficiently egregious nature to justify a forfeiture determination. In this case, having prevented the State from conducting additional chemical analysis by eating the crack cocaine, Defendant has little grounds to complain about the trial court’s decision to admit the police officers’ testimony identifying the substance as crack cocaine based on visual inspection and the NIK test results.
Significant to the court’s opinion was evidence that in the normal course, all seized substances suspected to be narcotics are submitted to the SBI for further testing. Also significant were the defendant’s statements making it clear that he “swallowed the crack cocaine for the express purpose of preventing the State from charging him with possession of cocaine.”
James is interesting for a few reasons. First, it creates a new forfeiture exception to the evidence rules. Whether that exception gets extended to wrongdoing beyond the facts present in James will be fleshed out in later cases. Second, the James exception appears broader than the forfeiture exception that applies in the confrontation context, an exception cited by the court in support of its decision. Under the equitable forfeiture by wrongdoing exception that applies to hearsay statements in the constitutional confrontation context, a forfeiture only gets the prosecution through the “confrontation hoop.” For the evidence to be admitted the prosecution also must leap the “evidence hoop”—meaning that the evidence still must be admissible under the evidence rules (which at a minimum means that a hearsay exception applies). In James, however, the court creates a broader forfeiture rule with perhaps no “stopgap” as to otherwise inadmissible evidence. Another interesting point is that the court addressed the forfeiture issue at all. The fact that it did so suggests that it believed that the conviction could not be sustained—perhaps under Ward or perhaps under the corpus delecti rule (the State may not rely solely on the extrajudicial confession of a defendant, but must produce substantial independent corroborative evidence that supports the facts underlying the confession)—even with the defendant’s repeated admissions that he had possessed cocaine. If the court had thought that those admissions were sufficient to sustain the conviction, it could have concluded that even if admission of the visual identification and testimony about the NIK test was error, no prejudice occurred. It is not uncommon for the court to avoid ruling on a substantive evidence issue by assuming arguendo that an error occurred but concluding that no prejudice resulted. In fact, it did just that in State v. Trogden, decided the same day as James. But the court didn’t take that approach, suggesting that it believed the defendant’s admissions wouldn’t have been enough to sustain the conviction. Whether that was because of the corpus delecti rule or because of Ward isn’t clear. In any event, I predict that James is going to generate some interesting case law. We’ll keep you updated when that happens.
Three bills introduced in the General Assembly this session provide for seizure and forfeiture of motor vehicles involved in certain motor vehicle offenses. House Bill 451 provides for seizure of motor vehicles driven by persons charged with driving while license revoked if the person has two or more prior convictions for driving while license revoked. House Bill 427 and Senate Bill 271 provide for seizure of vehicles driven by defendants charged with felony speeding to elude. Each bill provides for forfeiture of the vehicles, subject to certain exceptions, upon conviction. H 451 and S 271 incorporate procedures set forth in G.S. 20-28.3, which currently govern the seizure and forfeiture of vehicles in certain impaired driving cases, while H 427 amends G.S. 20-141.5 to set forth offense-specific procedures for seizure and forfeiture.
Given this proposed legislation, I thought it might be worthwhile to review the seizure and forfeiture of motor vehicles driven in impaired driving offenses. Certain vehicles driven by repeat DWI offenders have been subject to forfeiture upon conviction since enactment of the Safe Roads Act in 1983. However, exceptions for vehicles used by other family members and vehicles subject to liens resulted in infrequent use of the penalty as initially drafted. See James C. Drennan and Ben F. Loeb, Jr, Motor Vehicles, in North Carolina Legislation 1997 245 (John L. Saxon, ed. 1997). That changed, however, with the enactment of S.L. 1997-379, which required law enforcement officers to seize motor vehicles subject to forfeiture and limited the ability of non-defendant owners to reclaim such motor vehicles. Id.
G.S. 20-28.3 currently provides that a motor vehicle driven by a person charged with an offense involving impaired driving is subject to seizure if at the time of the violation (1) the driver’s license of the person driving the motor vehicle was revoked as a result of a prior impaired driving license revocation or (2) the person was not validly licensed and was not covered by an automobile liability policy.
According to this report to the General Assembly, from October 1, 2009 until September 30, 2010, more than 4,000 motor vehicles were seized from drivers charged with impaired driving offenses. Of those, 3,596 were impounded by one of the three contractors authorized to tow, store, and sell such vehicles pursuant to a contract with the state’s Department of Public Instruction: Tarheel Specialties, Eastway Wrecker Services and Martin Edwards and Associates.
Most of these vehicles were sold under the expedited sales provisions in G.S. 20-28.3(i), which permits sale of the vehicle before the underlying criminal case is resolved and without a court order. A motor vehicle valued at $1500 or less may be sold after ninety days from the date it was seized. In addition, a seized motor vehicle may be sold any time outstanding towing and storage costs exceed 85 percent of the vehicle’s fair market value. Such a vehicle also may be sold with the consent of all the motor vehicle owners. Any net proceeds from such a sale are deposited with the clerk of court in the county where the charges are pending. When (as is typically the case) there are no net proceeds, this is the end of the process, and no forfeiture order is entered. In fact, only 71 of the more than 4,000 motor vehicles seized in 2009-2010 were ordered forfeited by the courts.
Net proceeds from the sale of forfeited vehicles as well as a portion of storage proceeds are paid to the county schools in the county in which the motor vehicle was ordered forfeited. G.S. 20-28.5(b). County schools received $348,401 in proceeds from October 1, 2009 through September 30, 2010. An additional $90, 868 was deposited with clerks of court to be paid to county schools upon entry of an order of forfeiture. Contractors retained about $1.1 million in proceeds for storage.
Of course, vehicles aren’t seized from repeat DWI offenders for the purpose of generating revenue. Instead, the measure is aimed at “keeping impaired drivers and their cars off the roads.” State v. Chisholm, 135 N.C. App. 578, 584 (1999). Indeed, the National Highway Traffic Safety Administration concluded in a 2011 Highway Safety Countermeasure Guide that vehicle impoundment for DWI offenders “reduces recidivism while the vehicle is in custody and to a lesser extent after the vehicle has been released.” (NHTSA Guide at 1-34). NHTSA reported that “[a]n evaluation of California’s impoundment law found both first-time and repeat offenders whose vehicles were impounded had fewer subsequent arrests for driving with a suspended license and fewer crashes.” Id. at 1-35.
Owners of motor vehicles driven by another person in the commission of an impaired driving offense as well as lienholders may secure release of seized motor vehicles before they are sold or ordered forfeited upon satisfying certain conditions and by paying towing and storage costs (which may never be waived). A defendant-owner may secure a motor vehicle’s early release only by demonstrating that his or her license was not revoked for a prior impaired driving revocation, see G.S. 20-28.3(e2), or—presumably—by demonstrating that he or she had a valid license and/or insurance (if this condition is the basis for the seizure). I say “presumably,” because when G.S. 20-28.3(a)(2) (the no license/no insurance basis for seizure) was enacted in 2006, no corresponding amendments were made to G.S. 20-28.3(e2) to allow a defendant to reclaim a seized vehicle by demonstrating that he or she in fact was licensed and/or insured. Arguably, however, affording a defendant the right to make such a showing is required by due process, and a court could construe the statute accordingly.
For readers who want to know more about DWI vehicle seizure and the process for reclaiming seized vehicles, the AOC has published this guide containing answers to frequently asked questions.
I’ve been asked a couple of questions related to forfeiture lately, which has led me to realize that I don’t know much about it. So I’ll offer a little information below, and in exchange, will ask for some information from readers who know whether, and how, forfeiture is being used around the state.
Forfeiture generally refers to the transfer of property from the defendant (or sometimes a third party) to the government as a result of the property’s involvement in criminal activity. For example, it might be used to deprive the defendant permanently of money he obtained by selling drugs, or of a car he used in transporting the drugs.
There are two general types of forfeiture. In criminal forfeiture, the court imposes forfeiture on the defendant as a part of the defendant’s punishment. In civil forfeiture, the government files a civil lawsuit against the property itself — which leads to goofy case names like United States vs. One Thousand Six Dollars and a 1987 Chevrolet Camaro. Anyone who wants to contest the forfeiture must intercede in the lawsuit. A slightly more detailed explanation of these two kinds of forfeiture is here.
North Carolina’s two principal forfeiture statutes are:
- G.S. 14-2.3, which generally provides that property acquired as a result of a felony is subject to forfeiture. The statute states that “[a]n action to recover such property shall be brought by either a District Attorney or the Attorney General pursuant to G.S. 1‑532.” Chapter 1 of the General Statutes is entitled “Civil Procedure” and G.S. 1-532 says that “an action for the recovery of [property subject to forfeiture], alleging the grounds of the forfeiture, may be brought by the proper officer in any superior court,” which makes it sound as though G.S. 14-2.3 is a civil forfeiture provision. However, G.S. 14-2.3 requires that “[t]he action must be brought within three years from the date of the conviction for the offense.” Civil forfeiture doesn’t generally require a conviction, so perhaps G.S. 14-2.3 is actually some sort of hybrid statute. Only two appellate cases even cite G.S. 14-2.3, and neither clarifies this issue. Of course, that makes me wonder if this provision is ever used at all.
- G.S. 90-112, which provides for the forfeiture of a wide range of property that is acquired through, used in, or intended to be used in certain drug offenses. This is a criminal forfeiture statute that requires a criminal conviction. See, e.g., State v. Jones, 158 N.C.App. 465 (2003).
There are other forfeiture statutes, too, such as G.S. 20-28.3, which provides for forfeitures in certain impaired driving offenses. But I’m especially interested in the general and drug forfeiture statutes summarized above. So here’s the request: please let me know whether these provisions are being used, and if so, when, how, and by whom. If most forfeiture is being done under the auspices of the federal equitable sharing program — where state officers conduct the investigation, but federal authorities effect the forfeiture and share the proceeds with the state agency — I’d be interested in that. If there are recognized experts on forfeiture practice in the state — either on the state’s side or the defense — or if there are authoritative written materials on this issue, I’d be much obliged to learn about that, too. As always, you can post a comment or you can call or email me with your thoughts.
I’ll get to the topic of today’s post in just a moment, but first I wanted to note what I found to be a fascinating little tidbit about the Willingham case, which I’ve previously addressed here and here. It has to do with Willingham’s final words, and I promise that if you have the slightest interest in the case, you’ll be interested in this.
OK. On to today’s feature presentation. I got started thinking about whether child pornography offenders can be required to forfeit their homes because of this article from Kentucky. (Hat tip: Sentencing Law & Policy.) The short summary is that a federal criminal defendant who pled guilty to receiving child pornography was sentenced to 15.5 years in prison — and was required to forfeit his home, “because of the high volume of images and the length of time [he] used his home to download and view child pornography.”
I’ve blogged before about the controversy over child pornography sentencing. But the forfeiture question is a bird of a different feather. Would something like this be possible under North Carolina law?
The short answer is no. There are lots and lots of forfeiture provisions scattered among North Carolina’s criminal laws. Some are quite narrow, like the provisions for forfeiture of items used in and acquired as a result of wildlife and marine fisheries offenses, G.S. 113-137, and for forfeiture of motor vehicles involved in the disposal of more than 500 pounds of litter, G.S. 14-399(g).
Others are somewhat less narrow, insofar as they relate to very common offenses, but still remain tailored to a limited class of crimes. The provision for forfeiture of any vehicle used in a DWI after a DWI license revocation, G.S. 20-28.2 et seq., is of this type, as is the provision for forfeiture of property connected to violations of the controlled substances laws, G.S. 90-112 et seq.
Although the General Assembly presumably could have included a forfeiture provision in the child pornography laws, it didn’t. There’s no specific provision for, as an example, forfeiture of premises used for the possession of child pornography — or even of computers used to store it. See generally G.S. 14-190.13 et seq.
Thus, the question becomes whether our general forfeiture law could encompass premises used for the possession of child pornography. The general forfeiture statute is G.S. 14-2.3, and it provides that “any money or other property . . . acquired” by commission of a felony is subject to forfeiture, with a few narrow exceptions. But the home of a person who possesses child pornography is not acquired by the offense. It is arguably used to commit the offense, but our courts have held that to be distinct. See, e.g., State v. Triplett, 70 N.C. App. 341 (1984) (money used to commit a crime, but not obtained as a result of a crime, not subject to forfeiture).
A quick scan of the reported federal cases suggests that forfeiture is increasingly a part of federal child pornography cases. Forfeiture of the computers used to commit the crimes appears to be very common, and forfeiture of the defendant’s home is not unheard of. See, e.g., Keys v. United States, 545 F.3d 644 (8th Cir. 2008) (discussing history of a case in which the government sought forfeiture of the defendant’s house, only to have the district court judge rule that the forfeiture violated the Eighth Amendment’s prohibition against excessive fines); United States v. Sarras, 575 F.3d 1191 (11th Cir. 2009) (discussing whether a child pornography defendant should have been permitted to cross-examine a law-enforcement officer about his agency’s financial interest in forfeiting the defendant’s house). Anyone think that North Carolina should go down this road?