State v. Curran
| Citation | 609 P.2d 427,45 Or.App. 859 |
| Decision Date | 14 April 1980 |
| Docket Number | No. 78-11-122,78-11-122 |
| Parties | STATE of Oregon, Respondent, v. Scott Hunter CURRAN, Appellant. ; CA 14335. |
| Court | Court of Appeals of Oregon |
Howard R. Lonergan, Portland, argued the cause for appellant. With him on the brief were Clinton A. Lonergan and Richard L. Lonergan, Portland.
Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
This is an appeal from an order forfeiting a motor vehicle. The forfeiture was ordered upon motion, affidavit and citation, following defendant's conviction after jury trial for possession of a controlled substance, namely, cocaine. ORS 475.992(4).
Defendant's assignment of error has two parts: that his vehicle was forfeited without authorized procedure and that he was entitled to a jury trial on the issue of transportation of a controlled substance in the vehicle.
Following defendant's conviction, the district attorney filed a motion and affidavit for the forfeiture and caused a citation to be served on defendant requiring him to appear and show cause why the vehicle used in transporting the contraband drug should not be forfeited to the state pursuant to ORS 167.247.
The statute, in pertinent part, provides as follows:
"(2) Any boat, vehicle or other conveyance used by or with the knowledge of the owner, operator or person in charge thereof for the unlawful transportation or concealment of controlled substances shall be forfeited to the state in the same manner and with like effect as provided in ORS 471.660 and 471.665 ()." ORS 167.247(2).
By letter opinion the trial court stated:
First, defendant's contention that the forfeiture was void because the procedure was not provided for in the Code of Criminal Procedure cannot be sustained. The legislature, in ORS 167.247, 471.660, and 471.665, has provided a procedure for forfeiture of a conveyance in which drugs have been unlawfully transported or concealed. Appellant has given us no reason why the procedure need be spelled out in the Code of Criminal Procedure, and we perceive none.
In State v. 1920 Studebaker Touring Car, 120 Or. 254, 257 P. 701 (1927), the Supreme Court held a prior version of ORS 167.247 involving intoxicating liquor unconstitutional for failure to provide the vehicle owner with a jury trial. The rationale of the Studebaker decision is found in the following language:
"If, under the provisions of this act, the property which was made the subject of forfeiture had consisted of intoxicating liquor, gambling devices, or anything which in its nature is injurious to the public welfare, or if the act had required, as a condition of the forfeiture, the conviction of the offending person, the question would be different, but where as here, the lawful property of an innocent person may be forfeited to the state without the previous conviction of any one, and without the opportunity of a jury trial at any stage of the proceedings, we think the act in so far as it provides that the forfeiture shall be tried by the court without the intervention of a jury is unconstitutional and void, because denying a trial by jury as guaranteed by the state Constitution. * * * " 120 Or. at 271, 251 P. at 706.
When defendant was arrested he and cocaine were both in the vehicle. Some of the cocaine was concealed in a bag. This was all in evidence in the trial to prove defendant's possession. Defendant does not contend otherwise. Nor does he claim he was not both owner and operator. Rather, he contended simply that he was entitled to a jury trial on the issue of transporting, which was the basis of the claim for forfeiture.
Studebaker supports a right to a jury trial for the vehicle forfeiture. While defendant was afforded notice and an opportunity to be heard in the forfeiture proceeding, and thereby received all necessary due process of law (See Robinson v. Hanrahan, 409 U.S. 38, 93 S.Ct. 30, 34 L.Ed.2d 47 (1972); State v. Glascock, 33 Or.App. 217, 222-31, 576 P.2d 377 (1978), the present form of the statute is still within the strictures of Studebaker relating to the right to trial by jury under Article I, section 17 of the Oregon Constitution. 1 The vehicle is, of course, not "injurious to the public welfare" (see Smith v. One Super Wild Cat, 10 Or.App. 587, 500 P.2d 498 (1972)), nor is conviction of an offense arising out of the transportation or concealment made a condition of the forfeiture by ORS 167.247, ORS 471.660 or 471.665. While this proceeding was ancillary to the prosecution of defendant, the issue of transportation was not part of that prosecution. Defendant was entitled to a jury trial.
Reversed and remanded.
The majority concludes that even though defendant was afforded a jury trial on the underlying criminal charge, nevertheless he is entitled to a second jury trial before the forfeiture can be ordered, relying chiefly on State v. 1920 Studebaker Touring Car, 120 Or. 254, 251 P. 701, 50 A.L.R. 81 (1927).
I cannot agree. Furthermore, a close reading of Studebaker will demonstrate that Studebaker is authority for exactly the opposite conclusion.
Contrary to the majority, there is no requirement in the law or elsewhere that a person who has been convicted after jury trial of possessing a contraband substance (which occurred in a motor vehicle) is entitled to a second jury trial on the issue of whether he was transporting the substance and whether he owns the automobile, before the vehicle can be forfeited under ORS 167.247. All that the above statute requires and all that defendant is entitled to under ORS 471.660 and 470.665 is notice and hearing before the vehicle is ordered forfeited. This was done in this case.
The majority relies on State v. 1920 Studebaker Touring Car, supra, as authority for its position. There our Supreme Court held a prior version of ORS 167.247 involving intoxicating liquor unconstitutional for failure to provide the vehicle owner with a jury trial. The court...
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State v. Curran
...defendant on the first contention but for him on the right to a jury trial and reversed and remanded for a jury trial. State v. Curran, 45 Or.App. 859, 609 P.2d 427 (1980). Both defendant and the state petitioned for review, which we allowed, ORS 2.520, 289 Or. 587 (1980), to consider the b......