Richard Paul Hokanson, Respondent, vs. 2001 Dodge SSE, and City of Bloomington, Appellant.

Richard Paul Hokanson, Respondent, vs. 2001 Dodge SSE, and City of Bloomington, Appellant. A05-1573, Court of Appeals Unpublished, July 11, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1573

 

 

Richard Paul Hokanson,

Respondent,

 

vs.

 

2001 Dodge SSE, and City of Bloomington,

Appellant.

 

 

Filed July 11, 2006

Affirmed; motion granted in part, denied in part

Lansing, Judge

 

Hennepin County District Court

File No. FP 04-003743

 

William G. Peterson, Peterson Law Office, P.A., 3601 Minnesota Drive, Suite 800, Bloomington, MN 55435(for respondent)

 

Jennifer K. Tichey, 1800 West Old Shakopee Road, Bloomington, MN 55431 (for appellant)

 

Considered and decided by Lansing, Presiding Judge; Randall, Judge; and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In a judicial-forfeiture action, the district court determined that a seized vehicle was not subject to forfeiture because the owner neither knew nor should have known that his wife would drive the vehicle while she was impaired.  Because the record supports the district court's determination on the owner's lack of actual or constructive knowledge of the unlawful use, we affirm.

F A C T S

 

Katherine Hokanson was driving her husband Richard Hokanson's 2001 Dodge SSE on February 14, 2004, when she was arrested and charged with two counts of driving while impaired (DWI).  Three days after the arrest, the city of Bloomington sent Richard Hokanson a notice of seizure and intent to forfeit the vehicle.  Richard Hokanson filed a demand for judicial review in March 2004.  Katherine Hokanson was convicted of second-degree DWI in April 2004.

Following a contested forfeiture hearing, the district court issued findings of facts, conclusions of law, and an order denying forfeiture and directing the city to return the vehicle to Richard Hokanson.  The district court found that, at 11:30 a.m. on the day of the driving incident, the Hokansons had a conversation in which Katherine Hokanson said that she intended to go to an Alcoholics Anonymous (AA) meeting at 4:30 that afternoon.  The findings credit Richard Hokanson's testimony that he observed no indication that Katherine Hokanson had consumed alcohol before or after the midday conversation and that, when she left the house at 4:00 p.m., he reasonably believed that she would use the vehicle to drive to an AA meeting.

The district court's findings also credit Katherine Hokanson's consistent testimony.  She testified that she intended to go to an AA meeting when she left her home on February 14.  Shortly after she left, however, she changed her mind, went to a liquor store, and purchased wine.  She then sat in her vehicle in a parking lot and drank the wine.  About 6:00 p.m. she left the parking lot to return home.  On the way, she turned a corner too sharply and struck another motor vehicle.  Following her arrest, Katherine Hokanson submitted to chemical testing that revealed an alcohol concentration of .26.

The city appeals the district court's order for the return of the seized vehicle.  Specifically, the city challenges the district court's failure to consider Richard Hokanson's constructive knowledge in addition to his actual knowledge and the absence of findings on whether Richard Hokanson took reasonable steps to terminate Katherine Hokanson's use of the car.  Richard Hokanson moves to strike a portion of the appendix to the state's appellate brief.

D E C I S I O N

I

A vehicle is subject to forfeiture if it is used in the commission of a statutorily designated offense.  Minn. Stat. § 169 A. 63, subd. 6 (2002).  Second-degree driving while impaired is a designated offense.  Id., subd. 1(d)(1) (2002).  If the vehicle owner was not the driver when the designated offense occurred, however, the vehicle is subject to forfeiture "only if its owner knew or should have known of the unlawful or intended use."  Id., subd. 7(d) (2002); see also id., subd. 1(f) (2002) (defining owner as registered owner of vehicle). 

The city does not directly challenge the accuracy of the district court's factual findings, but instead argues, that the findings are deficient because they address only Richard Hokanson's actual knowledge and not his constructive knowledge of the vehicle's unlawful use.  We are unable to find a basis for this contention in the record. 

The district court made thirty findings of fact drawn from the testimony of Richard and Katherine Hokanson and the police officer who responded to the February 14 accident.  The Hokansons testified extensively on Katherine Hokanson's struggle with alcohol over the past ten years.  She participated in an in-patient treatment program in 1995 and an out-patient program following a 2001 conviction for DWI.  She began a second in-patient treatment program in January 2004 and was released about one week before the February 2004 accident.  Richard Hokanson testified that he was initially suspicious on the morning of February 14 that Katherine Hokanson was relapsing, but, during their 11:30 a.m. conversation, he observed no signs that she had been drinking.  Katherine Hokanson testified that she had consumed alcohol the previous evening, but Richard Hokanson did not see her drinking.  She confirmed that she did not consume alcohol on February 14 and that she planned to go to a 4:30 p.m. AA meeting.  She told her husband of her intention to go to the meeting, and she left the house at 4:00 p.m.  The testimony is undisputed that she had a valid driver's license and that she had not previously lied about her AA attendance.  Richard Hokanson testified that he had, in the past, prevented her from driving when he thought she had been drinking.

The record does not support the city's contention that the district court failed to include a constructive-knowledge standard in evaluating the evidence.  In the order's recitation of the applicable law, the district court states that a vehicle is subject to forfeiture if the owner "knew or should have known" of the unlawful or intended use of the vehicle.  In its conclusions of law, the district court determined that Richard Hokanson "did not have reason to disbelieve Katherine Hokanson that she was going to an AA meeting," and that he "had no reason to believe that Katherine Hokanson was about to ingest a considerable quantity of alcohol" after she left their home.  Finally, the district court concluded that the evidence did not show that "Richard Hokanson knew or should have known of Katherine Hokanson's illegal use of the subject vehicle" on February 14, 2004.

The city appears to argue that Katherine Hokanson's history of alcohol abuse is alone sufficient to establish that Richard Hokanson knew that she would consume alcohol and drive.  The law does not support this argument.  The city acknowledges that, at the time of Katherine Hokanson's arrest, the forfeiture statute did not create a presumption of knowledge based on a family member's past driving record.  The city further acknowledges that, even after a 2004 amendment that created a presumption of knowledge, Katherine Hokanson's past driving record would not trigger the presumption.  See 2004 Minn. Laws ch. 235, § 5, at 730 (amending Minn. Stat. § 169 A. 63, subd. 7(d), to impose presumption on vehicle owner that family or household member who has three or more prior impaired-driving convictions will use vehicle for unlawful purpose). 

The city also appears to rely mistakenly on a subsequent legislative change as the legal basis of its claim that Richard Hokanson failed to take reasonable steps to terminate Katherine Hokanson's use of the vehicle.  See id. (amending Minn. Stat. § 169 A. 63, subd. 7(d), to require that owner show by clear and convincing evidence that owner did not have actual or constructive knowledge that vehicle would be used contrary to law "or that the owner took reasonable steps to prevent use of the vehicle by the offender").  The 2004 amendment neither applies to this case nor would it change the result.  The amendment requires proof of either the owner's lack of knowledge or that the owner took reasonable steps to prevent the vehicle use, not both.  The district court's finding on Richard Hokanson's lack of actual or constructive knowledge is a sufficient basis for denying forfeiture of his vehicle.

The district court properly applied Minn. Stat. § 169 A. 63, subd. 7(d), in determining that Richard Hokanson neither knew nor should have known "of [Katherine Hokanson's] unlawful use or intended use" of the vehicle. 

II

The record on appeal consists of "[t]he papers filed in the trial court, the exhibits, and the transcript of the proceedings."  Minn. R. Civ. App. P. 110.01.  The court "may not base its decision on matters outside the record on appeal and may not consider matters not produced and received in evidence" in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988).  A reviewing court may, however, consider publicly available legal resources that were not presented to the district court.  Fairview Hosp. v. St. Paul Fire & Marine Ins. Co., 535 N.W.2d 337, 340 n.3 (Minn. 1995); Podvin v. Jamar Co., 655 N.W.2d 645, 648 (Minn. App. 2003).  We will strike documents that are not properly part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd 504 N.W.2d 758 (Minn. 1993).

            In the appendix to its appellate brief in this case, the city included an appellate brief it prepared in a previous case, unrelated to the Hokansons, that raises a similar issue.  The city also included a copy of a settlement agreement between the city and Richard Hokanson that pertains to the city's attempt to institute forfeiture proceedings in a previous case involving Katherine Hokanson.  Neither document was filed with the district court in this action.  We therefore grant Hokanson's motion to strike the copy of the settlement agreement.  Because an appellate brief is a publicly available document, however, we deny the motion to strike the appellate brief from the previous case.  See Minn. R. Pub. Access to Recs. of Jud. Branch 2 (stating that records of Minnesota courts are generally presumed to be open to public).

Affirmed; motion granted in part, denied in part.