In re FORFEITURE OF ONE 1983 CADILLAC
Docket No. 103961
Court of Appeals of Michigan
Submitted November 8, 1988. Decided April 3, 1989.
176 Mich App 277 | 439 NW2d 346
Leave to appeal denied, 432 Mich 931.
The Court of Appeals held:
1. By dеfinition provided in the controlled substances act, a controlled substance is dispensed when prescribed. Since the automobile was used to receive an unlawfully dispensed controlled substance and to facilitate the transportation of the controlled substance, the automobile was properly subject to forfeiture under the controlled substances act.
2. The fоrfeiture proceedings in this case were not initiated promptly as required by the controlled substances act. Although the act does not provide for a specific time period in which tо initiate forfeiture proceedings after an interested party files a claim and bond for property seized pursuant to the act, the four-month delay in this case between seizure and forfеiture was excessive.
Reversed.
WEAVER, J., concurred with the majority‘s conclusion that the automobile was properly subject to forfeiture, but dissented from the majority‘s holding that the forfeiture proceedings were not instituted promptly. Judge Weaver would affirm.
- FORFEITURES AND PENALTIES — CONTROLLED SUBSTANCES ACT — AUTOMOBILES.
An automobile is properly subject to seizure and forfeiture under
REFERENCES
Am Jur 2d, Drugs, Narcotics, and Poisons §§ 27.24-27.28, 48.7.
Relief to owner of motor vehicle subject to state forfeiture for use in violation of narcotics laws. 50 ALR3d 172.
- FORFEITURES AND PENALTIES — CONTROLLED SUBSTANCES ACT — TIMELINESS OF FORFEITURE ACTION.
Factors considered in determining the promptness of a forfeiture action pursuant to the controlled substances act include the lapse of time between seizure and filing of the complaint, the reason for the delay, the resulting prejudice to the defendant and the nature of the property seized (
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief, Appellate Division, and Daniel J. Garber, Jr., Assistant Prosecuting Attorney, for the people.
Richard J. Levine, for the Woods.
Before: MACKENZIE, P.J., and WEAVER and E. A. QUINNELL,* JJ.
E.A. QUINNELL, J. This is an appeal as of right from a circuit court order forfeiting proceeds from the sale of a 1983 Cadillac pursuant to enforcement of the controlled substances act,
The subject 1983 Cadillаc was owned by Robert D. Wood, D.D.S., P.C. On November 22, 1983, Dr. Wood met with an undercover detective in the 1983 Cadillac, where Dr. Wood gave the detective a prescription for dilaudid, a controlled substanсe. On November 23, 1983, the car was seized without process pursuant to
The first issue is whether the 1983 Cadillac was a proper object for seizure and forfeiture.
The relevant part of the statute covering property subject to forfeiture in effect at the time of the seizure reads as follows:
The following are subject to forfeiture:
(a) A controlled substance which has been manufactured, distributed, dispensed, possessed, or acquired in violation of this article.
(b) A raw material, product, or equipment of any kind which is used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting a controlled substance in violation of this article.
* * *
(d) A conveyance, including an aircraft, vehicle, or vessel used or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in subdivision (a) or (b) . . . . [
MCL 333.7521 ;MSA 14.15(7521) . Emphasis added.]
By statutory definition:
“Dispense” means to deliver or issue a controlled substance to an ultimate user or research
subject by or pursuant to the lawful order of a practitioner, including the prescribing, administering, or compounding necessary to preрare the substance for the delivery or issuance. [ MCL 333.7105(2) ;MSA 14.15(7105)(2) . Emphasis added.]
By this definition, the term “dispense” in
Next, we review whether the forfeiture proceedings werе instituted “promptly” as required by § 7523 of the controlled substances act,
We strictly construe § 7523 as requiring the prompt institution of in rem forfeiture proceedings to ensure that the due process rights of the claimants are protected.
In defining promptness, this Court has established certain factors which must be considerеd by the trial court. These factors include, but are not limited to
the lapse of time between seizure and filing of the
complaint, the reason for the delay, the resulting prejudice to the defendant and the nature of the property seized. [Dep‘t of Natural Resources v Parish, 71 Mich App 745, 750; 249 NW2d 163 (1976).]
We find thаt the above factors clearly militate in favor of the Woods.
The length of time between seizure and complaint, as contemplated by the Legislature, can be gleaned at least in part from a 1985 amendment to the statute. 1985 PA 135, § 1. Following seizure, the government must give notice of the seizure to the owner by personal delivery or by certified mail. If notice cannot be so accоmplished, notice may be given by publication for ten consecutive days.
In context, it is clear that the Legislature was thinking in terms of days in using “promptly.” Since the Legislature allowed a claimant only twenty days in which to file a claim and bond, and required action by the government “promptly” if a claim was filed, it appears reasonable that the Legislature had some similar period of time in mind in which the government could file a complaint. However, we decline to adopt any bright
As to the second factor, the prosecutor justified its delay by the need to do a search and investigation into whether forfeiture actions could be brought аgainst Dr. Wood‘s dental practice and his building. However, we believe that forfeiture proceedings against the practice and building have no real bearing on whether forfeiture procеedings could be instituted against the car. As such, this factor weighs in favor of the Woods.
The third factor is the resulting prejudice to the Woods from the delay. Here, the Woods were prejudiced because the automobile is a wasting asset whose value diminishes when it is impounded and upon which the Woods continued to make payments to protect their interest. See Parish, supra at 752. We believe the Woods were prejudiced by the delay.
Fourth, since the automobile was inherently harmless and therefore of little interest to the government, this factor weighs in the Woods’ favor. See Parish, supra at 753.
In our determination, we are mindful that:
“We must not lose sight of the fact that this is a seizure of property, a very drastic, direct, and immediate remedy. Such a seizure is justified on apparently ancient doctrines that the sovereign may seize the instrumentality of a crime in addition to punishing its perpetrator. The instrumentality of а crime is something quite different from what we call contraband, such as goods smuggled across a border, or narcotics. Yet, the instrumentality of a crime is treated the same in terms of the sovereign‘s right to employ summary seizure proceedings.” United States v One 1971 Opel GT, 360 F Supp 638, 642 (CD Cal, 1973). [Parish, supra at 753.]
Reversed.
MACKENZIE, P.J., concurred.
WEAVER, J. (concurring in part and dissenting in part). While I agree with the majority‘s finding that the 1983 Cadillac was a proper object for seizure and forfeiture, I cannot agree with the finding that the prosecutor failed to institute the forfeiture proceedings “promрtly” as required by § 7523 of the controlled substances act.
This Court has upheld a delay of 2 1/2 months between the time of seizure and the institution of forfeiture proceedings. People v One 1979 Honda Automobile, 139 Mich App 651; 362 NW2d 860 (1984). However, a 6 1/2-month delay betweеn seizure and institution of forfeiture proceedings was found excessive. Lenawee Prosecutor v One 1981 Buick Two-Door Riviera, 165 Mich App 762; 419 NW2d 458 (1988).
Here the time of delay was four months. The trial court weighed the Parish factors and considered dispositive the prosecutor‘s reason for delay, to do research and investigation into whether forfeiture proceedings could be brought against additional property of the Woods. Dep‘t of Natural Resources v Parish, 71 Mich App 745; 249 NW2d 163 (1976). A nonjury finding of fact should not be set аside unless clearly erroneous. People v Vandergrift, 107 Mich App 555, 558; 309 NW2d 665 (1981). A finding of fact is clearly erroneous when “although there is evidence to support it, the
I am not left with a definite and firm conviction that a mistake has been committed.
I would affirm.