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  • WisBar News
    September 23, 2015

    Appeals Court: Vehicle Forfeiture Unconstitutional Against Generous Grandma

    Joe Forward

    Sept. 23, 2015 – Gladys Vogel and her grandson, Steven Baumgard, jointly purchased a new Toyota Corolla for $22,500. But Vogel put down the lion’s share, $20,000. Police later impounded the car. Recently, a state appeals court overturned a forfeiture order against Vogel, concluding that forfeiture against her would be constitutionally excessive.

    Under Wis. Stat. section 961.55, vehicles are subject to forfeiture if used to transport or sell illegal drugs. Baumgard, a college student at the time, was arrested for selling about 3.5 grams of marijuana on three occasions, two involving the use of the Toyota Corolla.

    The charges were later dropped as part of a deferred prosecution agreement, but the circuit court in Walworth County ordered forfeiture of the vehicle against both Baumgard and Vogel as co-owners. That meant Vogel could not recoup any money upon sale.

    However, in State v. One 2013, Toyota Corolla, 2014AP2226 (Sept. 23, 2015), a three-judge appeals court panel ruled that the forfeiture order, related to Vogel, violates the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution, which prohibits fines that are grossly disproportional to the gravity of the offense.

    “This holding balances the purpose of the forfeiture statute with the need to apply the law in a constitutional manner based on the individualized culpability of persons with an ownership interest in the subject property,’ wrote District II Judge Mark Gundrum.

    The panel noted that Wisconsin’s forfeiture statute includes an “innocent owner” exception, barring forfeiture orders against “actual owners” who did not know the vehicle was being used for illegal drug-related purposes. But that exception did not apply.

    Although Vogel was named as a joint-owner on the title and held a significant ownership interest in the vehicle, Baumgard was the actual owner. Vogel did not drive the car, and Baumgard paid for gas, maintenance, and insurance on the car, the panel noted.

    Thus, Vogel could not invoke the “innocent owner” exception. However, the panel accepted her argument that forfeiture of her full financial interest in the car was an excessive fine against her, since it was grossly disproportionate to her culpability.

    Baumgard, who contributed a $2,500 trade-in credit towards the Corolla and paid $550 towards his informal debt to Vogel, forfeited this financial interest in the car, the panel ruled. But it also ruled that Vogel will receive any remaining proceeds if the car is sold.

    Baumgard argued that the forfeiture was also excessive against him, since the car was worth $22,500 and his crime involved the sale of minor amounts of marijuana. But the panel used a “proportionality test” to determine the forfeiture was not disproportionate.

    “While the total amount of illegal drugs Baumgard sold was less than that of many large-scale drug dealers, and the charges were ultimately dropped pursuant to a deferred prosecution agreement, as the State points out, each of Baumgard’s sales took place in the middle of the day in parking lots where members of the public would likely be present,” wrote Judge Gundrum, noting the sales created some safety risk.

    The panel also noted that delivering marijuana is a felony subject to imprisonment of up to three-and-a-half years and a fine of $10,000 for each charge.

    “His exposure to fines of up to $30,000 dwarfs the $3,050 financial interest he will lose through forfeiture here,” Gundrum explained.

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