This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1458

 

Jay Paul Olson,

Respondent,

 

vs.

 

1992 Mack Dumptruck,

VIN # 1MP264C1NM010516, Plate # YAP 8581,

Appellant.

 

Filed ­­­April 18, 2006

Reversed

Dietzen, Judge

 

Sherburne County District Court

File No. C8-04-2773

 

John L. Delmore, Charles A. Beckjord, 2600 Wayzata Boulevard North, Minneapolis, MN 55405 (for respondent)

 

Arden J. Fritz, Assistant Sherburne County Attorney, Sherburne County Attorney’s Office, 13880 Highway 10, Elk River, MN 55330 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

 

DIETZEN, Judge

 

            Appellant 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 United States and Minnesota Constitutions.  Because we conclude the forfeiture of the dump truck does not constitute an excessive fine, we reverse.

FACTS

 

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 Livonia Township, Sherburne County, Minnesota.  The dump truck was located in the ditch with the engine running.  After detecting a strong odor of an alcoholic beverage on respondent’s breath, and observing bloodshot eyes and slurred speech, the deputy ordered respondent to exit the vehicle and perform sobriety tests, which indicated that respondent was impaired.  Respondent was placed under arrest for driving while impaired (DWI).

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.

            Respondent was served with a notice of seizure and intent to forfeit his vehicle pursuant to Minn. Stat. § 169A.63, subd. 8(d) (2004).  Sherburne County (the county) filed a criminal complaint, charging respondent with three counts of second-degree DWI in violation of Minn. Stat. §§ 169A.20, subd. 1, 169A.25 (2004), carrying a handgun without a permit in violation of Minn. Stat. § 624.714, subd. 1a (2004), possessing an open bottle of liquor inside a motor vehicle in violation of Minn. Stat. § 169A.35, subds. 3, 5 (2004), possession of small amounts of marijuana in violation of Minn. Stat. § 152.027, subd. 4(a) (2004), and possession of drug paraphernalia in violation of Minn. Stat. § 152.092.

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, 4 (Minn. 1990).  The reviewing court must view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  “The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts.”  Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn. 2004).   Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).

            Minnesota law authorizes the county to forfeit the vehicle involved with the commission of a designated offense.  Minn. Stat. § 169A.63, subd. 6(a) (2004).  Because respondent’s conviction of second-degree DWI is a designated offense, the county seized his dump truck.  Id., subds. 1(e)(1), 3 (2004).  Respondent argued, and the district court agreed, that the application of subdivision 1(e) constituted an unconstitutional fine.

The United States and Minnesota Constitutions protect individuals from excessive fines.  Both state: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”  U.S. Const. amend. VIII; Minn. Const. art. I, § 5.  “[A] large discretion is necessarily vested in the legislature to impose penalties sufficient to prevent the commission of an offense, and it would have to be an extreme case to warrant the courts in holding that the constitutional limit has been transcended.”  Miller v. One 2001 Pontiac Aztek, 669 N.W.2d 893, 895 (Minn. 2003) (citing State v. Rodman, 58 Minn. 393, 59 N.W. 1098, 1100 (1894)).  The Minnesota Supreme Court has “previously validated the practice of vehicle forfeitures as long as a sufficient nexus exists between the crime and the vehicle.”  Id. at 896. 

            To 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 offense.”  Id. at 895.  A three-factor test established in Solem is employed to determine “gross disproportionality.”  Id.  These factors are: “(1) the gravity of the offense and the harshness of the penalty; (2) a comparison of the contested fine with fines imposed for the commission of the other crimes in the same jurisdiction; and (3) comparison of the contested fine with fines imposed for commission of the same crime in other jurisdictions.” Id. at 895 (citing Solem,463 U.S. at 290–91, 103 S. Ct. at 3010–11).  The supreme court has concluded that while “Solem does not explicitly call for a personal financial analysis, the first factor does not expressly preclude consideration of a defendant’s financial condition in determining harshness.”  Id. at 897.

            The first Solem factor requires the court to compare the gravity of the offense and harshness of the penalty.  Id.  The district court concluded that respondent’s conviction for second-degree DWI constituted a serious offense.  We agree.

            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, 463 U.S. at 292, 103 S. Ct. at 3011 (“Comparisons can be made in light of the harm caused or threatened to the victim or society, and the culpability of the offender.”).  And respondent had two prior DWI convictions—one in 1992 and the other in 1996.  See City of New Brighton v. 2000 Ford Excursion, 622 N.W.2d 364, 371 (Minn. App. 2001) (“In adopting the vehicle forfeiture statute the legislature was concerned with the well-documented dangers of intoxicated drivers on streets and highways and the particularly troubling problem of multiple DWI offenders . . . who continue to expose the public to these dangers.”), review denied (Minn. Apr. 17, 2001).

            Appellant 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 clearly erroneous.  Minn. R. Civ. P. 52.01.

            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 crimes in Minnesota. Miller, 669 N.W.2d at 897.  The district court concluded that the second and third factors “are not of concern in this case,” reasoning that forfeiture “is common in Minnesota and other jurisdictions, and is typically determined to be disproportional to other forfeitures.”  But the supreme court has directed courts to consider all three factors.  See id.

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 $16,000.  Id. at 894.  Here, the dump truck was valued between $15,000 and $21,000, or roughly equivalent to the vehicle in Miller.  Based on the holding of the Miller court, and the lack of evidence in the record that the fines imposed for crimes of a similar serious nature have substantially changed, we conclude that the second Solem factor favors forfeiture.

The 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 to Minnesota, subject a person’s vehicle to forfeiture when such person has been convicted of several impaired driving offenses.”  Id. (quoting New Brighton, 622 N.W.2d at 372).  Thus, we conclude that the third Solem factor also favors forfeiture of respondent’s vehicle.

Based 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 (Minn. App. 1999) (affirming the forfeiture of a vehicle valued at $13,550), review denied (Minn. May 18, 1999). 

            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.”

Reversed.