John J. Muhar, Itasca County Attorney, Respondent, vs. One (1) 1997 Harley-Davidson Motorcycle, Lic. No. 640 OMC, VIN #1HD1BJL44VY018575, (Fairbanks, Douglas Sidney), Appellant.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

John J. Muhar,
Itasca County Attorney,
Respondent,

vs.

One (1) 1997 Harley-Davidson Motorcycle,
Lic. No. 640 OMC, VIN #1HD1BJL44VY018575,
(Fairbanks, Douglas Sidney),
Appellant.

Itasca County District Court
File No. C0971273

John J. Muhar, Itasca County Attorney, Itasca County Courthouse, 123 Northeast 4th Street, Grand Rapids, MN 55744 (respondent)

Daniel Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue South, Minneapolis, MN 55404 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Harten, Judge.

Appellant Douglas S. Fairbanks challenges the district court's order granting summary judgment to respondent John J. Muhar, Itasca County Attorney, in this action for the forfeiture of appellant's 1997 Harley Davidson under Minn. Stat. § 169.1217. Appellant argues the forfeiture violates the Excessive Fines Clause of the Minnesota and United States Constitutions. We affirm.

In an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact; and (2) whether the lower courts erred in their application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). A statute's constitutionality is a question of law, which we review de novo. Estate of Jones by Blume v. Kvamme, 529 N.W.2d 335, 337 (Minn. 1995). One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality. Miller Brewing Co. v. State, Dep't of Revenue, 284 N.W.2d 353, 356 (Minn. 1979). Absent good reason, we will apply federal interpretations to a state constitutional provision with "almost identical" language to the federal. City of Pine Springs v. One 1992 Harley Davidson, 555 N.W.2d 749, 752 (Minn. App. 1996) (quotation omitted). The Excessive Fines Clauses of the Minnesota and United States Constitutions are virtually identical. City of Worthington Police Dep't v. One 1998 Chevrolet Berreta, 516 N.W.2d 581, 583 n.1 (Minn. App. 1994).

The district court considered the parties' cross-motions for summary judgment based on stipulated facts. At the time of appellant's arrest on June 8, 1997, his driving privileges had been canceled as inimical to public safety and he had three prior convictions for driving while under the influence (DWI) violations and/or license revocations. He was convicted in May 1998 of aggravated DWI in violation of Minn. Stat. § 169.129 (Supp. 1997) as a result of the June 1997 arrest. Thus, appellant's prior record was more than sufficient to render this conviction a "designated offense" under Minnesota's vehicle forfeiture statute, and respondent accordingly moved for summary judgment in the pending forfeiture action. Minn. Stat. § 169.1217, subd. 1(c) (Supp. 1999). Once a court determines that the agency seeking forfeiture under Minn. Stat. § 169.1217 (1998 & Supp. 1999) has met all of the statutory requirements, an order for forfeiture is mandatory. Adkins v. 1979 Midas R.V., 546 N.W.2d 768 (Minn. App. 1996) (noting mandatory language of forfeiture statute), review denied (Minn. July 10, 1996).

Appellant does not dispute the district court's determination that his motorcycle is subject to forfeiture under the express terms of Minn. Stat. § 169.1217. Rather, he argues that the forfeiture of his $21,000 motorcycle is "grossly disproportionate" to the offense he committed, and therefore violates the Excessive Fines Clause of the Eighth Amendment to the United States Constitution and Article I, Section 5 of the Minnesota Constitution. We have previously acknowledged that forfeiture under Minn. Stat. § 169.1217 has both a remedial purpose and a punitive effect and is therefore subject to the limitations of the Excessive Fines Clause. Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 807 (Minn. App. 1999), review denied (Minn. May 18, 1999); One 1988 Chevrolet Berreta, 516 N.W.2d at 583.

Although the Excessive Fines Clause applies to vehicle forfeitures, it is not settled as to what measure a court must apply to gauge whether the forfeiture is "excessive." Respondent argues that we should assess appellant's excessive fines challenge under the "instrumentality" approach to civil in rem forfeitures, consistent with our decision in One 1988 Chevrolet Berreta, 516 N.W.2d at 584. In One 1988 Chevrolet Berreta, we held that any property that plays a significant part in committing an offense is subject to forfeiture, regardless of its value. Id. at 584 (construing Minn. Stat. § 609.5312, subd. 1) (1992). Here, the parties stipulated that appellant used the 1997 Harley Davidson to commit the aggravated DWI for which he was convicted; therefore, under the "instrumentality test" of One 1998 Chevrolet Berreta, the forfeiture would not violate the Excessive Fines Clause.

But since our decision in One 1988 Chevrolet Berreta, the Supreme Court has held that an excessive fines challenge to a civil in personam forfeiture must be assessed under a "gross disproportionality" standard. In United States v. Bajakajian, the Court held that an in personam forfeiture is unconstitutional "if the amount of the forfeiture is grossly disproportional to the gravity of defendant's offense." United States v. Bajakajian, 118 S. Ct. 2028, 2038 (1998).

We have since applied Bajakajian's "gross disproportionality" test in upholding an excessive-fines challenge to the vehicle forfeiture statute. See Lukkason, 590 N.W.2d at 808. While noting in Lukkason that Bajakajian does not mandate application of that test to civil in rem forfeitures, we concluded that if the test did apply to Minn. Stat. § 169.1217, the forfeiture of a vehicle in which the claimant-owner had a net $11,534 interest was not grossly disproportionate to the gravity of his third DWI violation in five years, given the serious risks such behavior posed to the public. Lukkason, 590 N.W.2d at 808.

Here, the district court relied on Lukkason in determining that, even if the gross disproportionality test applies, the forfeiture of the motorcycle in which appellant had a net interest of just over $21,000 is not excessive given the gravity of his offense. We agree. As we noted in Lukkason, the legislature designed the forfeiture statute to address well-documented dangers of repeat offenders, and the statute serves a valid remedial goal of enhancing public safety by removing the means to offend from those who repeatedly drive while intoxicated. Id. at 808-09.

Appellant argues that application of additional factors cited by the Supreme Court in Bajakajian to determine whether the forfeiture in that case was grossly disproportionate, which were not addressed by the district court here, leads to the conclusion that the forfeiture is grossly disproportionate to the gravity of his offense. We disagree.

While the financial impact of the forfeiture is several times the maximum statutory fine of $3,000 for an aggravated DWI, it does not necessarily follow that $21,000 is grossly disproportionate to the financial equivalent of six months or a year in jail. Moreover, although the legislature was aware that the value of an automobile often far exceeds the statutory maximum fines for DWI violations, it nevertheless determined that forfeiture of the vehicle used by a serious repeat DWI offender is an appropriate means of achieving the remedial purpose of reducing dangers posed by such offenders.

Analysis of the remaining Bajakajian factors also supports the district court's decision. Unlike the defendant in Bajakajian, appellant falls within the category of individuals that the forfeiture was intended to reach, namely, repeat intoxicated drivers. 118 S. Ct. at 2038. Moreover, appellant's underlying criminal conduct was not "harmless" in the same manner as the defendant's reporting offense in Bajakajian. See id. at 2039. Appellant was arrested after an officer witnessed him forcing other drivers onto the shoulder of a highway because of his erratic drunk driving. Thus, he was engaged in the type of conduct the legislature intended to curtail when it enacted the vehicle forfeiture statute.

We conclude that the value of appellant's motorcycle is within the range of ordinary motor vehicles, and its forfeiture is not disproportionate to the gravity of his offense. The district court did not err in determining the motorcycle was subject to forfeiture as a matter of law.