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1 University of Tennessee, Knoxville Trace: Tennessee Research and Creative Exchange Tennessee Department of State, Opinions from the Administrative Procedures Division Law TENNESSEE DEPARTMENT OF SAFETY vs. One 1999 MERCEDES ML-420 VIN # 4JGAB72E0XA063244, SEIZED FROM: KIM C. SMITHDEAL, SEIZURE DATE: OCTOBER 26, 2008 CLAIMANT: JAMES H. MATHESON LIENHOLDER: N/A Follow this and additional works at: Part of the Administrative Law Commons This Initial Order by the Administrative Judges of the Administrative Procedures Division, Tennessee Department of State, is a public document made available by the College of Law Library, and the Tennessee Department of State, Administrative Procedures Division. For more information about this public document, please contact administrative.procedures@tn.gov

2 BEFORE THE COMMISSIONER OF THE TENNESSEE DEPARTMENT OF SAFETY IN THE MATTER OF: ) ) TENNESSEE DEPARTMENT ) OF SAFETY, ) Docket No J ) v. ) Department of Safety ) Case No. H8176 One 1999 MERCEDES ML-420 ) VIN# 4JGAB72E0XA ) SEIZED FROM: KIM C. SMITHDEAL ) SEIZURE DATE: OCTOBER 26, 2008 ) CLAIMANT: JAMES H. MATHESON ) LIENHOLDER: N/A ) INITIAL ORDER This matter came on to be heard on July 14, 2009, in Fall Branch, Tennessee before Joyce Grimes Safley, Administrative Judge, assigned by the Secretary of State, and sitting for the Commissioner of the Tennessee Department of Safety. Ms. Nina Harris, Attorney for the Department of Safety, represented the State. Claimant was present for the hearing and was represented by Mr. David Crockett of the Elizabethton, Tennessee Bar. The subject of this hearing was the proposed forfeiture of the abovestyled, 1999 Mercedes ML420, VIN# 4JGAB72E0XA063244, for Claimant s alleged use of this vehicle in violation of T.C.A and T.C.A (driving a vehicle on a revoked license). After consideration of the evidence offered, the arguments of counsel, and the entire record in this matter, it is ORDERED that the seized vehicle be FORFEITED to the seizing agency.

3 This decision is based upon the following Findings of Fact and Conclusions of Law. HISTORY OF THE CASE This case is a companion case to Department of Safety v. One 1991 Mercedes 500SL, Docket No J, Department of Safety Case Nos. H8463, H8464, which was also heard on July 14, Claimant Matheson was also the Claimant-Owner of the seized vehicle in the Department of Safety v. One 1991 Mercedes 500SL. Ms. Smithdeal was the driver in possession of the vehicle, and was arrested for DUI- 2 nd or subsequent and driving on a revoked license. The 1991 Mercedes was returned to Claimant Matheson because the evidence supported that Claimant Matheson was an innocent owner who did not know or have reason to know that Ms. Smithdeal would operate his vehicle in violation of DUI and Driving on Revoked License laws. The events of the above-styled case occurred a mere two (2) days after Ms. Smithdeal s arrest for DUI and Driving on a Revoked License. FINDINGS OF FACT 1. On Sunday, October 26, 2008, Kim Smithdeal asked Claimant Matheson to borrow his 1999 Mercedes ML-420 in order to attend church with her parents. Two days prior to this, Ms. Smithdeal had been driving another vehicle of Mr. Matheson s when she was arrested for Driving under the Influence (2 nd or Subsequent) and Driving on a Revoked License. The vehicle which was driven by Ms. Smithdeal on October 24, 2008 was involved in a

4 motor vehicle accident caused by Ms. Smithdeal, and the vehicle was seized by the police. 2. Claimant Matheson was aware that Ms. Smithdeal was arrested for Driving under the Influence (2 nd or Subsequent) and driving on a Revoked License two days earlier. Claimant Matheson was also aware that the 1991 Mercedes which Ms. Smithdeal was driving had been seized by the police. 3. Despite Claimant Matheson s knowledge of Ms. Smithdeal s earlier arrest and the seizure of his vehicle, he allowed Ms. Smithdeal to borrow the 1999 Mercedes ML-420 which is the subject of this case. 4. Ms. Smithdeal had a revoked driver s license; however, she had obtained a restricted license which allowed her to drive to and from her employment. Her restricted license was only valid if it was accompanied by documents granting her the restricted license and detailing the restrictions. 5. The Carter County Sheriff s Department received a call informing them that Ms. Smithdeal was driving the 1999 Mercedes ML-420 on Lynn Valley Road on October 26, The caller also informed the Carter County Sheriff s Department that the caller believed Ms. Smithdeal was driving on a revoked driver s license without the required accompanying documents for a restricted license. 6. Ms. Smithdeal asserted that her ex-husband or a relative of her exhusband set her up by reporting her to the Sheriff s Department for driving on a revoked license on the afternoon of October 26, Regardless of whether her ex-husband or some of his relatives decided to report Ms.

5 Smithdeal, the motivation for reporting Ms. Smithdeal does not negate that Ms. Smithdeal was operating the vehicle illegally. 7. Doubtless, any acts of reporting Ms. Smithdeal to the Sheriff s Department contributed to the already acrimonious relationship which Ms. Smithdeal had with her ex-husband and his relatives. Such reporting did nothing to endear Ms. Smithdeal to her ex-husband and his relatives, and undoubtedly made a bad relationship even worse. However, the caller to the Sheriff s department was within the caller s rights as a citizen to report a driver who was illegally operating a vehicle. Whether it was ill-will, tit for tat, or civic duty which prompted the reporting of Ms. Smithdeal s driving the vehicle on a revoked license, the fact remains that Ms. Smithdeal was indeed illegally operating the vehicle. 8. Lieutenant Thomas Smith of the Carter County Sheriff s Department testified that he received information that Kim Smithdeal would be operating the 1999 Mercedes ML-420 on a public roadway, Lynn Valley Road. Lt. Smith drove to the Lynn Valley Road area, observed Ms. Smithdeal driving the 1999 Mercedes, and made a traffic stop on Ms. Smithdeal. 9. Ms. Smithdeal did not have the required accompanying documents allowing her to drive with a restricted license. She admitted to Lt. Smith that she was driving outside her restrictions. 10. Ms. Smithdeal was cited for driving on a revoked license, and the vehicle she was driving was seized pursuant to forfeiture statutes.

6 CONCLUSIONS OF LAW 1. T.C.A (h)(1) and (2) provide that: (1) The vehicle used in the commission of a person s violation of , when the original suspension or revocation was made for a violation of , or a statute in another state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, part 2. The department designated as the applicable agency, as defined by , for all forfeitures authorized by this subsection. (2) For purposes clarifying the provisions of this subsection and consistent with the overall remedial purpose of the asset forfeiture procedure, a vehicle is subject to seizure and forfeiture upon the arrest or citation of a person for driving while such person s driving privileges are cancelled, suspended or revoked. A conviction for the criminal offense of driving while such person s driving privileges are cancelled, suspended or revoked is not required. (Emphasis added.) 2. T.C.A provides that property, including conveyances, shall be subject to forfeiture under the provisions of T.C.A (k) and T.C.A (h). 1 T.C.A Driving under the influence of an intoxicant, drug or drug producing stimulant effect prohibited Alcohol concentration in blood or breath. (a) It is unlawful for any person to drive or to be in physical control of any automobile or other motor driven vehicle on any of the public roads and highways of the state, or on any streets or alleys, or while on the premises of any shopping center, trailer park or any apartment house complex, or any other premises which is generally frequented by the public at large, while (1) under the influence of any intoxicant, marijuana, narcotic drug, or drug producing stimulating effects on the central nervous system; or (2)The alcohol concentration of such person s blood or breath is ten-hundredths of one percent (.10%) or more. (b) For the purpose of this section, drug producing stimulating effects on the central nervous system includes the salts of barbituric acid, also known as malonyl urea, or any compound, derivatives, or mixtures thereof that may be used for producing hypnotic or somnifacient effects, and includes amphetamines, derivatives of phenolethylamine or any of the salts thereof, except preparations intended for use in the nose and unfit for internal use.

7 3. Pursuant to T.C.A (a), in order to forfeit any property or a person s interest in property, the State has the burden to prove by a preponderance of evidence that: (1) The seized property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture[ ]; and (2) The owner or co-owner of the property knew that such property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture, [ ]. 4. The State presented a prima facie case for forfeiture, i.e., that the vehicle was used or intended to be used to facilitate a violation of T.C.A (h). 5. The burden of going forward with the evidence then shifted to claimant Matheson to prove that he did not know or have reason to know that the property would be used to Driving on Revoked License laws. 6. In light of Ms. Smithdeal s arrest two days earlier to driving while under the influence, causing an accident, and driving on a revoked license, Claimant Matheson cannot claim that he had no reason to know that Ms. Smithdeal would be driving his vehicle illegally, making it subject to forfeiture. 7. Claimant Matheson came across as a very intelligent businessman. His claim that he did not know that Ms. Smithdeal would be driving on a revoked license or driving his vehicle outside of her restrictions was not credible in light of her arrest two days earlier.

8 8. The old saying: Fool me once, shame on you. Fool me twice, shame on me. is applicable in this situation. The undersigned does not believe Claimant Matheson was fooled the second time. 9. The State has met its burden of proof in this case. It has proved, by a preponderance of the evidence, that the driver of the vehicle, Ms. Smithdeal, was driving on a revoked license for DUI at the time, and did not have the paperwork with her which would allow her to drive despite a revoked license. Further, Ms. Smithdeal admitted to the officer who made the traffic stop that she knew she was driving outside her restrictions. Claimant Matheson was placed on notice two days earlier that Ms. Smithdeal had a revoked license, and was restricted in her driving. Claimant Matheson also knew, from Ms. Smithdeal s behavior two days earlier, that she was apt to treat his vehicle in a cavalier manner without regard for applicable laws. It is ORDERED that the seized vehicle, the above styled 1999 Mercedes ML420, VIN# 4JGAB72E0XA063244, be FORFEITED to the seizing agency. It is so ordered. This Order entered and effective this 12th day of November, Thomas G. Stovall, Director Administrative Procedures Division

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