The Proportionality Test for Excessive Fines
Written by: Lauren Kisner
Under Tennessee Law, the Tennessee Department of Safety (“TDS”) has been authorized the forfeiture of a vehicle being driven if the driver is found driving with a revoked license under the influence of an intoxicant. T.C.A. §55-5-504(h)(1). West, Westlaw current through 2017. However, the court may remand the case if the TDS administrative judge inaccurately applied the proportionality test, which would mean that the seizure of a vehicle was a violation of the Eighth Amendment of the United States Constitution. Thurman v. Tennessee of Safety and Homeland Sec., No. M201602215COAR3CV, 2017 WL 2895934, at *1 (Tenn. Ct. App. July 7, 2017).
If a driver is arrested while driving with a cancelled, suspended, or revoked license, resulting from a DUI conviction, then the vehicle is subject to seizure or forfeiture. Hawks v. Greene, No. M199902785COAR3CV, 2001 WL 1613889, at *2 (Tenn. Ct. App. 2001). In Stuart v. State Department of Safety, a driver, indicted for his role in drug trafficking, pleaded guilty to multiple felony offenses, including: conspiracy to deliver over 70 lbs. of marijuana and delivery of over 70 lbs. of marijuana. Stuart v. State Department of Safety, 963 S.W.2d 28, 31 (Tenn. 1998). The TDS administrative law judge concluded that all money claimed by the driver from drug dealings were subject to forfeiture under the law, as well as the vehicle used to facilitate the delivery of drugs. Id. The driver challenged this order as a violation of the Eighth Amendment.“Excessive Bail Shall not be Required, nor Excessive Fines Imposed, nor Cruel and Unusual Punishmentsinflicted." VIII Amendment, United States Constitution.
The Tennessee Supreme Court held that the forfeiture of the vehicle did not violate the excessive fines clause of either the Tennessee or United States Constitution. Firstly, the Court believed that proceeds of illegal drug transactions were not subject to an excessive fines analysis, because the driver was never legally entitled to it, “in the same way that a bank robber is not entitled to the stolen money.” Id. at 34. However, the vehicle that facilitated the drug transactions was subject to an excessive fines analysis, because it could not be categorized as proceeds or purchased with proceeds from an illegal transaction. Id. at 35.
In order to compare the value of the forfeited property with the gravity of the criminal conduct, the Court used the following factors: (1) the harshness of the penalty compared with the gravity of the underlying offense; (2) the harshness of the penalty compared with the culpability of the claimant; and (3) the relationship between the property and the offense, including whether use of the property was important to the success of the crime, deliberate and planned or merely incidental and fortuitous, and extensive in terms of time and spatial use. Id. The “harshness” aspect of the first and second factors can be determined by the driver’s current financial resources; in other words, the driver’s “ability to replace the property without undue hardship,” and the intangible value of that property. Id. at 36. For example, a forfeiture of a house has been viewed as excessive more often than a vehicle, because a person can more easily find another means of transportation, but alternative housing can prove difficult, especially if the move would affect more than one person. Id.
Under the first factor, the court used several principles to determine the gravity of the underlying offense: whether intentional conduct outweighed negligent conduct; whether completed crimes outweighed the attempted conduct; and whether violent crimes outweighed the nonviolent crimes. Id. In that case, after reviewing the penalty in relation to the underlying offense, the Court found that the forfeiture of a vehicle valued at $18,000 was not a particularly harsh penalty for the driver, earning hundreds of thousands of dollars for years preceding his indictment, and transporting copious amounts of drugs across the country. Id.
Under the second factor, the court evaluated the culpability of the driver along three principles: a driver acquitted of an offense was regarded as the least culpable; a driver convicted of an offense was the most culpable; and a driver never charged with an offense must be presumed innocent. Id. In that case, the Court found the driver to be the most culpable, since the crime was intentional, complete, potentially violent, and involved a major conspiracy to sell large amounts of illegal drugs. Moreover, the driver actually pleaded guilty to three felony drug offenses. Id.
Under the third factor, the court assessed the relationship between the property and the offense, whether the property was important to the success of the crime. Id. In that case, the vehicle was simply used to transport the driver from one location to another location. Any vehicle could have transported the driver; however, the vehicle was selected with purpose of carrying drugs from one location to another as well. Id. at 37.
The proportionality test continues to be applied in forfeiture cases, where the defendant filed a petition alleging that the forfeiture violated Eighth Amendment protection against excessive fines. At the beginning of 2017, a driver was stopped for speeding, and while stopped the officer discovered that the driver’s license had been revoked by another state in 2013 for driving while under the influence of an intoxicant. Thurman v. Tennessee of Safety and Homeland Sec., No. M201602215COAR3CV, 2017 WL 2895934, at *1 (Tenn. Ct. App. 2017). The driver valued his vehicle at $8,500, and testified that he endured undue hardship by not having a vehicle. Id. at *4.
The court held that the TDS violated the Eighth Amendment by seizing the vehicle, because the seizure caused infliction of undue hardship, driving privileges were eligible to be reinstated, and there was no involvement of any other criminal conduct. Id. at *5. The court used the proportionality test to determine the presence of excessive fines. First, when analyzing the harshness of the penalty to the gravity of the underlying offense, the court declared the forfeiture of the car unnecessary, given that it was unrebutted that without a vehicle the driver could not gain employment, creating an undue hardship. Id. at *4. Second, the court evaluated the culpability of the driver, and found that was no record of any convictions for driving without a license prior to the charge in that case. Id. At the time of the arrest, the driver had completed the mandatory suspension period, and was eligible to have his driving privileges reinstated. Id. Lastly, the court did not consider the relationship between the property and the offense dispositive in that case. Id.
Driving with a cancelled, suspended, or revoked license after the mandatory suspension period has ended is viewed the same as driving with a cancelled, suspended, or revoked license. Hawks v. Greene, No. M199902785COAR3CV, 2001 WL 1613889, at *11 (Tenn. Ct. App. Dec. 18, 2001). In Hawks v. Greene, a driver received information that her two toddlers were sick and she needed to pick them up. On the way to the doctor’s office, the driver was pulled over by an officer for speeding. Id. at *1. At the time, the driver’s license was revoked due to a DUI conviction; however, the driver’s license was eligible to be reinstated. The driver presented the issue: she was actually driving at a time when her driving privileges were revoked because of her DUI conviction, if her license was eligible to be reinstated. Id. at *3.
The court held that the statutory language did not support a distinction between “driving at a time when that person’s license is revoked” and “driving without a valid license.” Id. at *4. Under that analysis, the court found that a person driving without a valid license at any time after revocation, whether within or without the mandatory revocation period, committed the offense of driving while the license is revoked, in violation of T.C.A. §55-50-504(a). Id. The court also declared that determining whether the excessive fines prohibition is applicable to a forfeiture turned on the question whether the forfeiture was punitive, serving primarily as remedial. Id. at *7. The United States Supreme Court has defined that text of the Eighth amendment as, “monetary punishment” and “focus[ing] on the owner’s culpability.” Austin v. U.S., 113 S.Ct. 2801, 2802 (1993). The legislative history has clearly shown that forfeitures serve to deter certain behaviors and punish the wrong doer.
In conclusion, if the TDS administrative judge inaccurately applied the proportionality test, the seizure of a vehicle has violated the Eighth Amendment excessive fines clause. Tennessee courts still apply the proportionality test to determine if the harshness of the penalty (or forfeiture) outweighed the driver’s culpability. Forfeitures were designed to punish the wrong doer, and deter certain behaviors that our nation views as dangerous or malicious; however, Tennessee courts have recognized that the TDS cannot create undue hardships on convicted drivers.