Kahler v. Kernes

• Decision Date: 12 December 1985
• Docket Number: No. 7425-7-II,7425-7-II
• Citation: 711 P.2d 1043,42 Wn.App. 303
• Court: Washington Court of Appeals
• Parties: Rick Lewis KAHLER, Appellant, v. Steven T. KERNES, Clallam County Sheriff; and Clallam County, a Political Subdivision of the State of Washington, Respondents.

Page 303

42 Wn.App. 303

711 P.2d 1043

Rick Lewis KAHLER, Appellant, v. Steven T. KERNES, Clallam County Sheriff; and Clallam County, a Political Subdivision of the State of Washington, Respondents.

No. 7425-7-II.

Court of Appeals of Washington Division 2.

Dec. 12, 1985.

Craig A. Ritchie, Doherty, Doherty & Ritchie, Port Angeles, for appellant.

Christopher C. Melly, Deputy Pros. Atty., Port Angeles, for respondents.

WORSWICK, Chief Judge.

Richard Kahler appeals a Superior Court order forfeiting his truck to the State under the Uniform Controlled Substances Act, RCW 69.50. We reverse.

An undercover narcotics agent, posing as a drug user, enlisted Kahler to find him cocaine suppliers. Between June 17 and July 18, 1983, Kahler acted as go-between for the agent and several cocaine dealers. Kahler twice used his pickup truck to drive the agent to dealers' houses where the agent bought cocaine. Once, the agent and a cocaine dealer exchanged drugs and money in Kahler's parked truck. On July 18, 1983, officers of the Clallam County Sheriff's Office seized Kahler's truck pursuant to a Superior Court warrant.

Kahler sued the Sheriff's Office in Superior Court, ¹ alleging that the officers had unlawfully seized and converted his truck. The case was tried on stipulated facts. The court held that RCW 69.50.505 authorized the seizure and forfeiture of Kahler's truck and entered an order accordingly.

Kahler's contention here is that RCW 69.50.505 simply does not apply to his truck. He admits he used it to facilitate drug sales, but contends that it is not forfeitable because he never used it to transport a controlled substance. The State agrees that the truck was not used to transport drugs, but contends that the statute applies because the truck transported a drug buyer to the sites of several drug transactions.

The relevant statute, RCW 69.50.505(a)(4), provides:

The following are subject to seizure and forfeiture:

(4) All conveyances, including aircraft, vehicles, or vessels, which are 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 paragraphs (1) or (2), [controlled substances] ...

No Washington case has dealt with this language, and cases from other state courts are no help. ² Moreover, apart from general commentary on the uniform act, ³ there is no legislative history. We are left with principles of statutory construction, English grammar ⁴ and common sense. Of these tools, we get no help from the first, ⁵ a little from the second and most from the third.

Kahler argues that the statutory language, "transport" and "facilitate the transportation," refers directly to controlled substances. Thus, the statute subjects to forfeiture only those vehicles actually used to transport, or to facilitate the transportation of, controlled substances. The State contends that the verb "transport" and verb clause "facilitate the transportation" have no direct object, and that the key phrase is "for the purpose of sale or receipt of [controlled substances]." The State argues that, under this grammatical interpretation, what the vehicle transports is irrelevant, as long as it is used to further a drug transaction. Thus, argues the State, Kahler's truck is subject to forfeiture because it transported the narcotics agent for the purpose of enabling him to buy cocaine.

The State's interpretation is technically plausible; "transport" and "facilitate the transportation" indeed have no direct object as the statute is punctuated. In order to make "property" [controlled substances] their direct object, the drafters would have had to insert a comma after "receipt," and another comma between "of" and "property." However, this interpretation is no more reasonable than that urged by Kahler. The lack of a comma may well be due to carelessness rather than choice. If, as the State suggests, the drafters did not intend to restrict operation of the statute to vehicles used to transport drugs, they could have said so plainly. As written, the statute is ambiguous.

The State argues that reference to the federal model, 21 U.S.C. § 881, demonstrates that our statute applies to Kahler's truck. The State contends that the federal courts have applied the forfeiture provision of the federal Controlled Substances Act to vehicles used solely to transport people to the site of drug transactions. See United States v. One 1979 Mercury Cougar RX-7, 666 F.2d 228 (5th Cir.1982); United States v. One 1977 Cadillac Coupe DeVille, 644 F.2d 500 (5th Cir.1981); United States v. One 1974 Cadillac Eldorado Sedan, 548 F.2d 421 (2d Cir.1977); United States v. One 1976 Buick Skylark 2-Door Coupe, 453 F.Supp. 639 (D.Colo.1978). It correctly notes that the USCA is based on the federal Controlled Substances Act, PL 91-513, 21 U.S.C.A. § 801 et seq. (1970) (CSA). See 9 Uniform State Laws Ann. 188 (1979). (Uniform Act's purpose is to achieve uniformity between state and federal drug laws, and to provide an interlocking trellis of laws dealing with drug abuse). The State argues that we should give RCW 69.50.505 the same meaning as 21 U.S.C. § 881. We are not persuaded.

The State's argument, correct as far as it goes, has a fatal flaw. The language in the federal statute is different. 21 U.S.C. § 881(a)(4) subjects to forfeiture

(4) All conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of property [controlled substances]....

(Italics ours.)

This statute is far broader than RCW 69.50.505(a)(4). It reaches vehicles used to facilitate the sale, receipt, possession, or concealment of property regardless of whether they are used to transport anything.

The federal cases relied on by the State depend on that part of the federal statute missing in our state version. In each of those cases, the court held that the vehicle had been used to facilitate the transportation or sale of controlled substances. See e.g., One 1979 Mercury Cougar RX-7, supra ; One Cadillac Coupe DeVille, supra. Facilitating sale of a controlled substance does not subject a vehicle to forfeiture under our statute. Interpretations of 21 U.S.C. § 881(a)(4) do not help in interpreting RCW 69.50.505(a)(4).

In sum, our statute is reasonably susceptible of at least two meanings. As it is a penal statute, although civil in form, we must adopt the interpretation most favorable to Kahler. One Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 85 S.Ct. 1246, 14 L.Ed.2d 170 (1965); see also Jordin v. Vauthiers, 89 Wash.2d 725, 575 P.2d 709 (1978); State v. Gore, 101 Wash.2d 481, 681 P.2d 227 (1984); State v. Sayler, 36 Wash.App. 230, 673 P.2d 870 (1983). That meaning is that vehicles are subject to forfeiture only if used, or intended for use, to transport or facilitate the transportation of controlled substances. The statute does not apply to Kahler's truck.

Reversed.

PETRICH and ALEXANDER, JJ., concur.

1 RCW 69.50.505(e) provides that owners of vehicles seized for...