This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Jay Paul Olson,
1992 Mack Dumptruck,
VIN # 1MP264C1NM010516,
Filed April 18, 2006
Sherburne County District Court
File No. C8-04-2773
John L. Delmore, Charles A. Beckjord,
Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.
challenges the district court order and judgment granting summary judgment to
respondent and concluding that the forfeiture of respondent’s dump truck
constituted an excessive fine in violation of the
On a weekday in
November 2004, at approximately 7:45 a.m., the police found respondent Jay Paul
Olson passed out in the driver’s seat of a 1992 Mack 6000 tandem-axle dump truck
near a rural intersection in
The deputy searched respondent incident to the arrest and found a small plastic baggie containing what appeared to be marijuana and a marijuana pipe in respondent’s pocket. The deputy also performed an inventory search of the vehicle, finding an open one-liter bottle of vodka inside a cooler on the passenger side floorboard. Respondent was then transported to jail. Subsequently, an Intoxilyzer test was performed on respondent, which revealed that respondent’s blood-alcohol level was .32. A background check revealed that respondent was convicted in 1992 and 1996 for DWI. Respondent’s truck was towed, impounded, and searched. The police found a handgun inside the cab, even though respondent did not possess a handgun permit.
was served with a notice of seizure and intent to forfeit his vehicle pursuant
to Minn. Stat. § 169A.63, subd. 8(d) (2004).
Respondent pleaded guilty to one count of second-degree gross misdemeanor DWI pursuant to Minn. Stat. §§ 169A.20, subd. 1(5), 169A.25, in exchange for the state’s dismissal of all other charges. The district court sentenced respondent to one year in jail, with 215 days stayed for six years under certain terms and conditions, including respondent serving 150 days in jail under a staggered sentencing structure, paying $420 in fines, and completing treatment as recommended by a chemical use evaluation.
Before sentencing, respondent filed a demand for judicial determination of the forfeiture pursuant to Minn. Stat. § 169A.63, subd. 8(d) (2004). Both parties filed motions for summary judgment. The county submitted an affidavit, which included an appraisal of respondent’s truck indicating that it was in “fair condition” and was valued between $15,000 and $21,000. Respondent submitted an affidavit indicating that he was self-employed as a dump-truck operator; he paid $22,500 for the truck in July 2002 and recently spent another $5,000 on new brakes and a clutch for the vehicle; his previous income of $60,000 per year as an independent gravel hauler had been reduced to $14 per hour as a sheetrock deliverer; he could not afford to purchase another dump truck; he had a wife and a five-year-old son; and his family had experienced “severe financial hardship” since the forfeiture.
Following a hearing, the district court filed an order and memorandum of law granting summary judgment to respondent, concluding that the forfeiture of the vehicle was unconstitutionally excessive. The district court determined that the harshness of the forfeiture penalty would outweigh the gravity of respondent’s DWI offense, reasoning: “While others may lose necessary transportation through DWI forfeiture, creating difficulty in maintaining employment, those cases do not, as here, destroy the livelihood itself.” The district court did not make findings regarding how the forfeiture of the truck would destroy respondent’s livelihood or regarding the truck’s value. This appeal follows.
D E C I S I O N
On appeal, the county contends
that the district court erred in granting summary judgment in favor of respondent
by holding that the seizure of respondent’s dump truck pursuant to Minn. Stat.
§ 169A.63, subd. 2 (2004) constituted an excessive fine. In reviewing orders granting summary judgment,
this court makes two determinations: (1) whether there are any genuine
issues of material fact; and (2) whether the district court erred in its
application of the law. State by Cooper v. French, 460 N.W.2d 2,
determine whether a fine is unconstitutionally excessive, the Minnesota Supreme
Court has adopted the federal standard of “gross disproportionality”
articulated in Solem v. Helm,
463 U.S. 277, 288, 103 S. Ct. 3001, 3008 (1983). Miller,
669 N.W.2d at 896. Under this standard,
“a fine is unconstitutional if it is grossly disproportional to the gravity of
The first Solem factor requires the court to
compare the gravity of the offense and harshness of the penalty.
Here, the facts of the offense are particularly
egregious. Respondent had an abnormally
high .32 blood-alcohol level, which was over three times the legal limit at
that time. He was intoxicated on a
weekday at 7:30 a.m., and the engine of the vehicle was running, which suggests
that he was operating heavy equipment at a time when others could have been
driving to work. He was behind the wheel
of a dangerous instrumentality, i.e., a dump truck capable of inflicting
serious injury to the public. Solem,
further argues that the penalty is not harsh, and notes that the undisputed
testimony was that the dump truck was only worth $15,000 to $21,000. Respondent argues that the findings of the
district court regarding his personal financial situation and the harshness of
the penalty are supported by the record.
The district court’s findings of fact will not be set aside unless
Here, the district court, relying solely on respondent’s affidavit, found that the forfeiture of the dump truck will destroy respondent’s livelihood. But respondent does not reach that conclusion in his affidavit. Instead, respondent states that as a result of the forfeiture, he was forced to obtain other employment at substantially less income resulting in “severe financial hardship.” Respondent has presented no testimony that he is being permanently deprived of his livelihood as a direct result of the forfeiture. Consequently, the district court’s conclusion is clearly erroneous.
Next, we must examine the
second Solem factor, which requires a
comparison of the contested fine with fines imposed for the commission of other
As to the second Solem factor, the Miller court concluded that “the value of appellant’s vehicle was
not much different than other vehicles, nor is it grossly different than other
fines for crimes of a similar serious nature.”
669 N.W.2d at 898. In Miller, the vehicle was valued at
third Solem factor requires the court to compare the contested fine with
fines imposed for commission of the same crime in other jurisdictions. Miller,
669 N.W.2d at 898. The district court
did not examine this factor. In Miller,the supreme court concluded that “many other states, in addition
on our review of all three Solem factors, we conclude that the
forfeiture of respondent’s dump truck is not “grossly disproportional” to the
gravity of the offense. On the one hand,
we have egregious facts and a level of culpability that establish the
commission of a very serious offense. We
are mindful that the legislature concluded that vehicle forfeiture for this
type of offense is in the public interest.
See Minn. Stat. § 169A.63, subd. 1(e)(1) (designating DWI as
an offense giving rise to forfeiture).
The statute provides for forfeiture for all types of vehicles from a
Chevrolet to a dump truck. Minn. Stat.
§ 169A.63, subd. 1(g) (broadly defining “motor vehicle”); Miller, 669 N.W.2d at 897-98 (affirming the forfeiture of a vehicle
valued at $16,000); New Brighton, 622
N.W.2d at 367 (affirming the forfeiture of a vehicle valued at $40,000); Lukkason v. 1993 Chevrolet Extended Cab
Pickup, 590 N.W.2d 803, 805 (
On the other hand, respondent will clearly suffer financially by the forfeiture of the dump truck. But the statute contemplates that the vehicle forfeiture will cause financial hardship. Here, that financial impact is not disproportionately harsh. Respondent is not being permanently deprived of his livelihood as a result of the forfeiture of the dump truck. Initially, respondent’s loss of income was a direct result of the suspension of his driving privileges and not the forfeiture of the vehicle. Upon reinstatement of his driving privileges, respondent is not precluded from renting the necessary equipment and operating a dump-truck business. And the other two Solem factors favor forfeiture. On this record, forfeiture of the vehicle is not “grossly disproportionate.”