State v. Ginn, 94-1427
| Decision Date | 30 August 1995 |
| Docket Number | No. 94-1427,94-1427 |
| Citation | 660 So.2d 1118 |
| Parties | 20 Fla. L. Weekly D1961 STATE of Florida, Appellant, v. Barbara GINN, Appellee. |
| Court | Florida District Court of Appeals |
Robert A. Butterworth, Attorney General, Tallahassee, and Charles M. Fahlbusch, Assistant Attorney General, Hollywood, for appellee.
Alan H. Schreiber, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for appellee.
We have before us an order from the county court of Broward County certified to be of great public importance, holding the vehicle impoundment provision in section 316.193(6)(d), Florida Statutes (1993), unconstitutional. We accept jurisdiction and reverse the decision of the county court.
Defendant was charged with driving under the influence in a vehicle that she owned, to which she pleaded no contest. The court adjudicated her guilty, placed her on probation for six months, and suspended her driver's license for six months. More pertinent to this opinion, relying on section 316.193(6)(d), 1 he ordered that the vehicle she was driving at the time of the offense be impounded for a period of 10 days following the completion of her probation. She then filed a motion for resentencing, arguing that the impoundment provision is facially unconstitutional. The court granted that motion.
In a detailed order, the county judge found that the provision violates the Due Process and Equal Protection Clauses of the Florida Constitution. See Fla. Const. art. I, Secs. 2 and 9. The judge concluded that the statute applies differently to those who own the vehicle in whole or in part, as well as those who rent or lease the vehicle. He reasoned that the statute invidiously discriminates against indigent vehicle owners who would be unable to afford to rent or lease a substitute vehicle during the period of the impoundment. He also found that the statute lacks "adequate, meaningful notice to an owner/lessee, and a absence of any fair opportunity to be heard to contest the removal and impoundment." He therefore deleted the portion of the sentence imposing the 10 day impoundment. The state timely invoked our discretionary jurisdiction.
We begin by noting that defendant's contention that the statute denies procedural due process for lack of notice or an opportunity to be heard is based on her observation that there is no provision requiring that a pre-impoundment written notice be sent to a vehicle owner "regarding" impoundment. In Department of Law Enforcement v. Real Property, 588 So.2d 957 (Fla.1991), and Lamar v. Universal Supply Co. Inc., 479 So.2d 109 (Fla.1985), the court found constitutional approval for deprivations of property under the forfeiture laws without a pre-seizure hearing, so long as the owner was promptly given notice and an opportunity for an immediate hearing after the seizure.
Of course, in that instance the state sought a permanent deprivation of property that it claimed had been used or acquired as part of a criminal enterprise. But the holdings in Real Property and Lamar apply whether the property owner was involved in the crime or merely an innocent owner of the property so used. In section 316.193(6)(d), the vehicles are not permanently taken; rather they are only temporarily taken, or impounded, after a conviction for drunk driving. We cannot say that the limited deprivation here requires even more constitutional protection than the permanent takings involved in Real Property and Lamar.
By the time of the conviction, the owner here had been arrested, given formal notice of the charges, had the assistance of counsel, and had an opportunity to have the case tried to a jury. She did not complain that she was not given some separate notice as to the penalty for DUI, which is effectually what she contends about the impoundment, yet the impoundment is part of the penalty for the conviction. Defendant apparently seeks to distinguish between cases where the owner of the vehicle is found guilty of driving that vehicle while drunk, and those cases where the vehicle was driven under the influence by someone other than the vehicle's owner. In the former instance, which happens to be the case here, all owners who undertake to drive their vehicles while under the influence have notice by virtue of the statutory provision that the vehicle is subject to impoundment if they are convicted of the offense.
They have notice of the impoundment in the same way they have notice that they can be fined and jailed for drunk driving. All persons are presumed to know the contents of criminal statutes and the penalties provided within them. Certainly, a statute may provide in express terms for an additional, written notice from the prosecutor if the state seeks certain penalties; e.g. the death penalty and the habitual felony offender statutes require prior written notice. We do not think that the due process clause, however, requires a formal, separate, written notice of vehicle impoundment to owner/drivers in addition to the notice given the offender when arrested.
We find little difference between taking away a DUI offender's driver's license for a discrete period and taking away the offender's vehicle. If the state can validly do the one, it can surely do the other. As in the case of drivers' licenses, the statute has explicit protection for those offenders who have no other public or private means of transportation.
Criminal laws often have different practical effects on wealthy offenders than they do on poor people. The rich may be able to afford bail, while the poor may not. The rich may be able to select and pay for their own lawyers, while the poor get what the system gives them. The rich are in many respects different because they have more money than the rest of us do. 2 Not every difference of wealth, however, gives rise to a constitutional confrontation. The fact that a wealthy drunk driver may afford a leased car--or even a chauffeur driven limousine--while his automobile is impounded does not produce an invalidity of equal protection or due process.
To the extent that defendant seeks to argue that...
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Mulligan v. City of Hollywood, 4D02-3626.
...taking. Temporary forfeitures may therefore be just as constitutionally significant as permanent ones. Our decision in State v. Ginn, 660 So.2d 1118 (Fla. 4th DCA 1995), is not to the contrary. In that case we considered a state statute allowing for a temporary seizure of a motor vehicle at......
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State v. Muller
...The subsection itself provides notice that upon a conviction of DUI, the driver's vehicle will be impounded. See State v. Ginn, 660 So.2d 1118 (Fla. 4th DCA 1995) (drivers are given notice of impoundment in the same way that they have notice that they can be fined and jailed if convicted of......
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State v. Muller, 94-02958
...owner of the vehicle, has no standing to raise these questions. See State v. Summers, 651 So.2d 191 (Fla. 2d DCA 1995); State v. Ginn, 660 So.2d 1118 (Fla. 4th DCA 1995), review denied, 669 So.2d 251 The impoundment statute is fatally defective because it provides no mechanism for enforceme......
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State v. Wichmann
...court and, even so, that section of the statute has already been found to be constitutional by the Fourth District in State v. Ginn, 660 So.2d 1118 (Fla. 4th DCA 1995), rev. den, 669 So.2d 251 The challenged section provides that when an individual is convicted of DUI, in addition to any ot......