                                         2018 IL 121636



                                            IN THE

                                   SUPREME COURT

                                               OF

                             THE STATE OF ILLINOIS




                                       (Docket No. 121636)


         THE PEOPLE OF THE STATE OF ILLINOIS ex rel. MATTHEW HARTRICH,

     State’s Attorney of Crawford County, Illinois, Appellant, v. 2010 HARLEY-DAVIDSON

                                  (Petra Henderson, Appellee).



                                 Opinion filed February 16, 2018.



           JUSTICE KILBRIDE delivered the judgment of the court, with opinion.

           Justices Freeman, Thomas, Garman, and Theis concurred in the judgment and
        opinion. 


           Chief Justice Karmeier dissented, with opinion. 


           Justice Burke dissented, with opinion.




                                            OPINION

¶1          The last time this court addressed the application of the excessive fines clause
        of the federal constitution’s eighth amendment to the civil forfeiture of personal
     property was our decision in People ex rel. Waller v. 1989 Ford F350 Truck, 162
     Ill. 2d 78 (1994). In this appeal, we return to that issue.

¶2       After the trial court ordered the forfeiture of the claimant’s motorcycle based on
     her husband’s criminal conduct while driving it, she first raised an as-applied
     constitutional challenge to the Illinois civil forfeiture statute (720 ILCS 5/36-1
     (West 2012)). She argued that the statute, as applied to the specific facts in this
     case, violated the excessive fines clause of the United States Constitution (U.S.
     Const., amend. VIII). Those facts showed that her husband was driving on a
     revoked license while under the influence of alcohol after an earlier revocation was
     extended due to his prior conviction for driving while his license was revoked,
     following multiple driving under the influence (DUI) convictions and statutory
     summary suspensions. The trial court rejected her claim, but the appellate court
     reversed. The appellate court concluded the forfeiture of the motorcycle constituted
     a constitutionally excessive penalty, violating the excessive fines clause of the
     eighth amendment. 2016 IL App (5th) 150035, ¶ 41. We reverse the judgment of
     the appellate court and reinstate the trial court’s forfeiture order.


¶3                                    I. BACKGROUND

¶4       After midnight on April 26, 2014, a police officer in Robinson, Illinois, heard a
     motorcycle “revving” before observing a trike-style motorcycle make a “very
     wide” right turn, swerve, and nearly hit a telephone pole. The officer followed and
     turned on his car’s emergency lights, but the motorcycle did not stop. The officer
     then activated his siren, but the motorcycle still did not stop. Instead, it continued to
     weave across the road for a total of about 12 blocks before turning into a driveway.
     The motorcycle was driven by Mark Henderson, whose wife, Petra, was a
     passenger on the back.

¶5       When Mark got off the motorcycle, the officer noted that he exhibited “a strong
     odor of alcohol,” slurred speech, and poor balance. The officer placed him under
     arrest. A breath test revealed his blood alcohol concentration was 0.161, over twice
     the legal limit. Mark was charged with aggravated DUI (625 ILCS 5/11-501(d)
     (West 2014)) and driving with a suspended or revoked driver’s license (625 ILCS




                                               -2­
     5/6-303 (West 2014)). 1 Since 1996, his license had been summarily suspended
     multiple times, and his license was revoked following his 2008 DUI conviction.
     That revocation was extended after he was convicted of driving with a revoked
     license in 2012; as of April 2014, Mark’s license remained revoked. The police
     seized the motorcycle, a 2010 Harley-Davidson, and the State filed initial and
     amended forfeiture complaints in the circuit court of Crawford County pursuant to
     section 36-1 of the Criminal Code of 2012 (720 ILCS 5/36-1(a)(6)(A)(i) (West
     2012)).

¶6       At a December 2014 hearing on the State’s forfeiture request, Mark’s wife
     Petra, the claimant in this case, was shown to be the title owner of the motorcycle,
     although Mark took care of the maintenance on the vehicle. Mark also had the key
     fob with him throughout the night of his arrest. The evidence showed that the
     motorcycle could be started whenever its key fob was near.

¶7       The claimant and her husband provided similar descriptions of that evening’s
     events. The claimant testified that Mark was a passenger as she drove the
     motorcycle to a number of bars in nearby towns. Prior to the couple’s 12-block ride
     home from the Corner Place bar in Robinson, Illinois, he jumped on the motorcycle
     before her for the first time that night and started it. The claimant, who had not been
     drinking, initially objected to her husband driving. He, however, refused to get off
     the motorcycle. At the forfeiture hearing, the claimant admitted that she knew Mark
     was intoxicated and had no driver’s license. That statement matched the account
     she gave to the police when Mark was arrested. Nonetheless, she allowed him to
     drive her home because he told her the only alternative was for her to walk. The
     claimant testified that she had purchased the motorcycle in 2010 for $35,000, but
     no evidence was adduced about its value at either the time of her husband’s arrest or
     the forfeiture hearing.

¶8       After hearing the evidence and the parties’ arguments, the trial court entered an
     order of civil forfeiture, expressly finding that the claimant’s testimony was
     self-serving and not credible. The trial court concluded that the claimant consented
     to her husband driving the motorcycle even though she knew he was intoxicated

         1
          Mark pled guilty to aggravated DUI on October 15, 2014. The State dismissed the charge of
     driving while his driver’s license was revoked.




                                                 -3­
       and did not have a valid driver’s license, making the motorcycle subject to civil
       forfeiture. In a posttrial motion, the claimant argued for the first time that the
       forfeiture order created an as-applied violation of the excessive fines clause of the
       federal constitution’s eighth amendment. The trial court rejected her claim, and she
       filed a timely notice of appeal.

¶9         The appellate court declined to overturn the trial judge’s factual findings that
       the claimant’s testimony was not credible and that she knowingly consented to her
       husband driving the motorcycle that night. Nonetheless, the court reversed the
       forfeiture order, concluding that, in light of the claimant’s limited culpability, the
       penalty was unconstitutionally excessive under this court’s three-part test in
       Waller, 162 Ill. 2d at 89-90. We allowed the State’s petition for leave to appeal
       pursuant to Illinois Supreme Court Rule 315(a) (eff. Mar. 15, 2016).


¶ 10                                       II. ANALYSIS

¶ 11       This appeal addresses the constitutionality of the Illinois civil forfeiture statute
       (720 ILCS 5/36-1(a)(6)(A)(i) (West 2012)) as applied to the court-ordered
       forfeiture of the claimant’s 2010 Harley-Davidson motorcycle. The claimant
       specifically alleges that the trial court’s application of the civil forfeiture statute to
       her motorcycle under the facts of this case violates the excessive fines clause of the
       eighth amendment of the federal constitution (U.S. Const., amend. VIII). The
       claimant makes it clear that she is bringing only an as-applied constitutional
       challenge to the statute, not a facial one. The distinction is crucial.

¶ 12       While a successful facial challenge faces the heavy burden of establishing that a
       statute is unconstitutional under any possible set of facts, an as-applied challenge
       has the burden of showing that a constitutional violation arises from the application
       of the statute to a specific set of facts and circumstances. People v. Holman, 2017
       IL 120655, ¶ 29. For that reason, the facts necessarily play a critical role in the
       resolution of an as-applied constitutional challenge. Both facial and as-applied
       challenges face the same considerable burden of clearly overcoming the strong
       judicial presumption that the statute in question is constitutional. McElwain v.
       Office of the Illinois Secretary of State, 2015 IL 117170, ¶ 14 (stating the
       presumption in the context of an as-applied constitutional challenge); People v.
       Kitch, 239 Ill. 2d 452, 466 (2011) (stating the presumption in the context of a facial



                                                 -4­
       constitutional challenge). In fact, our courts are obliged to construe all statutes so
       that they comport with the applicable constitutional provisions whenever
       reasonably possible. People v. Minnis, 2016 IL 119563, ¶ 21.

¶ 13       Because the constitutionality of a statute presents a legal question, we review
       the present as-applied challenge to the civil forfeiture statute de novo. People v.
       One 1998 GMC, 2011 IL 110236, ¶ 20. We will, of course, continue to give
       deference to the trial court’s underlying credibility and factual findings, reversing
       them only if they are against the manifest weight of the evidence. Kalata v.
       Anheuser-Busch Cos., 144 Ill. 2d 425, 433 (1991).

¶ 14       We note that the focus of the claimant’s arguments has changed significantly
       since the forfeiture proceedings began in the trial court. In that court as well as the
       appellate court, the claimant relied heavily on her status as an “innocent owner,”
       insisting that she did not knowingly consent to her husband driving the motorcycle
       on the night of his arrest. Both courts rejected that argument, with the appellate
       court concluding the manifest weight of the evidence supported the trial court’s
       factual finding that the claimant permitted her husband to drive prior to his arrest
       despite knowing that he was intoxicated and did not have a driver’s license. The
       appellate court also upheld the trial court’s determination that the claimant’s
       contrary exculpatory testimony was not credible. 2016 IL App (5th) 150035, ¶ 25.
       Before this court, however, the claimant has completely abandoned her prior legal
       argument, now openly conceding that she knowingly consented to her husband
       driving the motorcycle that night. After reviewing the trial record, we agree with
       the appellate court that the trial court’s factual and credibility findings were not
       against the manifest weight of the evidence. Therefore, we will rely on those
       findings throughout the remainder of our as-applied constitutional analysis.

¶ 15       The standard for whether a forfeiture violates the federal excessive fines clause
       was first broadly set out by the United States Supreme Court in United States v.
       Bajakajian, 524 U.S. 321 (1998). In that case, the Court addressed the
       constitutionality of requiring Hosep Bajakajian to forfeit over $357,000 in cash that
       he willfully attempted to take out of the country without informing the United
       States government, in violation of a federal reporting statute. The district court
       found that the forfeiture of the entire sum Bajakajian failed to report, as requested
       by the government, would create an “extraordinarily harsh” and “grossly




                                                -5­
       disproportionate” penalty when compared to his offense, thereby violating the
       excessive fines clause of the eighth amendment. The Ninth Circuit Court of
       Appeals affirmed. Bajakajian, 524 U.S. at 325-26.

¶ 16        The Supreme Court agreed, holding that the forfeiture of the full amount of the
       cash undisclosed by Bajakajian would create an eighth amendment violation. In
       reaching that conclusion, the Court established the first broad analytical framework
       for reviewing constitutional claims brought under the excessive fines clause. After
       initially having “little trouble” concluding the forfeiture of the statutory amount
       was a “fine” for purposes of an eighth amendment analysis, the Supreme Court
       discussed the historical development of in rem and in personam forfeitures, as well
       as their differences, and concluded the federal forfeiture statute was derived from
       the in personam criminal forfeiture tradition. Bajakajian, 524 U.S. at 328-33. The
       Court then addressed what it deemed to be the “touchstone” of the excessive fines
       clause: proportionality. Proportionality had long required “some relationship”
       between the amount of the forfeiture and the gravity of the offense. Until that case,
       however, the Court had not “articulated a standard for determining whether a
       punitive forfeiture is constitutionally excessive.” Bajakajian, 524 U.S. at 334.

¶ 17        To fill that analytical void, the Court borrowed from its own case law on the
       cruel and unusual punishments clause. In recognition of the “ ‘substantial deference
       to the broad authority that legislatures necessarily possess in determining the types
       and limits of punishments for crimes,’ ” the Court expressly declined to require
       strict proportionality between the forfeiture and the misconduct. Bajakajian, 524
       U.S. at 336 (quoting Solem v. Helm, 463 U.S. 277, 290 (1983)). Instead, it held that
       the proper standard for deciding if a specific punitive forfeiture was
       constitutionally excessive, thereby violating the eighth amendment’s excessive
       fines clause, was if the forfeiture was “grossly disproportional to the gravity” of
       that misconduct. Bajakajian, 524 U.S. at 336-37. While continuing to recognize the
       traditional distinctions between an in personam forfeiture and the in rem forfeiture
       at issue here, the court explained that the same “grossly disproportionate” standard
       applies whenever a forfeiture is intended, at least in part, to impose punishment.
       Bajakajian, 524 U.S. at 332-34; Von Hofe v. United States, 492 F.3d 175, 184 (2d
       Cir. 2007).




                                               -6­
¶ 18       Although this court has not reviewed an issue involving the excessive fines
       clause since the Supreme Court decided Bajakajian, in Waller, 162 Ill. 2d at 90, we
       relied on then-emerging federal case law to conclude that an excessive fine clause
       challenge required a fact-intensive, case-by-case approach. We also adopted a
       three-part test from the federal courts. That test required courts to weigh (1) the
       gravity of the offense against the harshness of the penalty, (2) how integral the
       property was in the commission of the offense, and (3) whether the criminal
       conduct “ ‘involving the defendant property was extensive in terms of time and/or
       spatial use.’ ” Waller, 162 Ill. 2d at 89-90 (quoting United States v. Real Property
       Located at 6625 Zumirez Drive, 845 F. Supp. 725, 732 (C.D. Cal. 1994)). While
       those factors are not exclusive, they provide the starting point for judicial review.
       Waller, 162 Ill. 2d at 90. Despite preceding the Supreme Court’s decision in
       Bajakajian, the three-prong test in Waller largely foreshadowed both the general
       standard announced in that case and the factors later defined by federal case law
       (see, e.g., Von Hofe, 492 F.3d at 186).

¶ 19       Here, the parties’ focus is largely on the first factor, comparing the gravity of
       the offense to the harshness of the forfeiture. The State argues that the motorcycle’s
       forfeiture was proportionate to the inherent dangers presented by Mark’s
       aggravated DUI. This court has previously recognized the seriousness of the public
       safety threat created by the commission of a DUI, especially when the driver’s
       license was already revoked due to a prior DUI. The legislature has also
       undoubtedly deemed aggravated DUI to be a serious criminal offense. See, e.g.,
       People ex rel. Glasgow v. Carlson, 2016 IL 120544, ¶ 28 (acknowledging the
       seriousness of successive DUI convictions). It is a Class 4 felony and carries a
       prison sentence of one to three years, with a fine of up to $25,000. 625 ILCS
       5/11-501(d)(2)(A) (West 2014); 730 ILCS 5/5-4.5-45(a), 5-4.5-50(b) (West 2014).
       The State asserts that the claimant’s culpability in this case is high because she
       knew her husband was intoxicated and had no license but permitted him to drive the
       motorcycle anyway, making her legally accountable for his criminal conduct.

¶ 20      The claimant, on the other hand, maintains that her conduct was merely
       negligent. She points out that she was not personally prosecuted for any offense




                                               -7­
       that would have subjected the motorcycle to forfeiture. 2 According to her, an
       unconstitutional imbalance exists between her minimal culpability and her
       monetary loss due to the forfeiture. She notes that forfeiture is generally disfavored.
       People v. 1991 Chevrolet Camaro, 251 Ill. App. 3d 382, 388 (1993). She also
       attempts to distinguish this case from the $28,000 vehicle forfeiture approved in
       People v. One 2000 GMC, 357 Ill. App. 3d 873 (2005), by arguing that the claimant
       in One 2000 GMC pled guilty to DUI and driving on a suspended license, while
       here she was not prosecuted or convicted of any offense. She asserts that the case
       most similar to this one is a Pennsylvania decision, Commonwealth v. 1997
       Chevrolet, 106 A.3d 836 (Pa. Commw. Ct. 2014) (en banc). There, the appellate
       court reversed an order forfeiting the homeowner’s residence and minivan because
       they were used to facilitate $90 in controlled marijuana sales transacted by her son,
       who lived with her, and remanded the cause for a new forfeiture proceeding
       applying the proper test.

¶ 21       In our view, the Pennsylvania court’s 1997 Chevrolet decision does not help
       this claimant. To the contrary, that decision undermines her argument for a number
       of reasons. First, the degree of knowledge the two property owners had about the
       underlying offenses varied considerably. The homeowner in 1997 Chevrolet
       consistently alleged she did not know her son was selling drugs out of her home.
       1997 Chevrolet, 106 A.3d at 844-45. In contrast, here the claimant has now
       abandoned the “innocent owner” defense that she maintained throughout the
       proceedings in the trial and appellate courts, openly admitting to this court that she
       knowingly consented to her husband driving the motorcycle even though she knew
       he was intoxicated and did not have a driver’s license.

¶ 22       Second, the Pennsylvania court emphasized the unique position that personal
       residences hold in eighth amendment forfeiture analysis. The evidence in that case
       showed the homeowner had resided in her house for over 30 years. 1997 Chevrolet,
       106 A.3d at 848. The court noted that the forfeiture of a home is “not readily
       granted” and explained that courts have “ ‘traditionally drawn a distinction
       between one’s personal property and one’s home, according the latter far greater
       protection under the law.’ ” 1997 Chevrolet, 106 A.3d at 859 (quoting United

           2
            The claimant was initially cited for permitting a person under the influence of alcohol to drive
       a motor vehicle (625 ILCS 5/6-304.1 (West 2014)), but the State later dismissed that charge.




                                                      -8­
       States v. Certain Lots in Virginia Beach, 657 F. Supp. 1062, 1065 (E.D. Va. 1987)).
       Here, the claimant has not attempted to argue that her motorcycle warrants the
       same degree of heightened protection provided to personal residences, and we have
       found no case law to support that position.

¶ 23       Third, the Pennsylvania court expressly adopted the Second Circuit Court of
       Appeals’ analytical framework in Von Hofe, 492 F.3d 175, to determine “the
       culpability of a property owner who is not the perpetrator of the criminal conduct
       that prompts the forfeiture.” 1997 Chevrolet, 106 A.3d at 860. The analysis in
       Von Hofe largely undercuts the claimant’s arguments before this court. As the
       Second Circuit explained, in an in rem forfeiture such as this one, the legal fiction
       of the property’s purported “guilt” is measured by examining “the relationship
       between the property and the criminal offense.” Von Hofe, 492 F.3d at 185. Here,
       the relationship between Mark’s aggravated DUI and the motorcycle is very close
       indeed; he would not have committed that offense if he had not been driving the
       claimant’s motorcycle that night.

¶ 24       The Von Hofe decision also addressed the traditional distinction between in rem
       and in personam forfeitures. Unlike in in personam forfeitures, the absence of
       criminal charges against the claimant is not a hindrance in an in rem forfeiture case.
       An in rem forfeiture may withstand constitutional scrutiny even if the property
       owner has never been criminally charged. “Neither conviction nor even the
       commencement of criminal proceedings is a necessary precondition to an in rem
       forfeiture. *** Nonetheless, the culpability of a claimant is relevant to our
       excessiveness determination.” Von Hofe, 492 F.3d at 185.

¶ 25       In reviewing a property owner’s degree of culpability, a court must consider
       any “criminal conduct he or she let transpire on the property.” Von Hofe, 492 F.3d
       at 185. The Pennsylvania case relied on by the claimant expressly agreed with the
       Second Circuit’s decision to look beyond any criminal charges in considering the
       claimant’s culpability, stating that “the property owner’s culpability must be
       evaluated by his own knowledge and actions, not the knowledge and actions of the
       wrongdoer.” 1997 Chevrolet, 106 A.3d at 862. That position is, however,
       completely contrary to the one taken by the claimant at oral argument before this
       court. During oral argument, counsel for the claimant alternatively argued that
       Mark’s criminal offense was the only relevant consideration and, after further




                                               -9­
       questioning by the court, that we must look at the misconduct of both the claimant
       and her husband in deciding whether the forfeiture was justified.

¶ 26       Applying the Von Hofe analysis, we conclude that the claimant’s culpability in
       her husband’s aggravated DUI was far more than negligible. Although the claimant
       was not criminally prosecuted, she candidly admitted to this court that she
       consented to her husband driving the motorcycle on the night of his arrest despite
       knowing about his intoxication and revoked license. Even in the absence of that
       admission, however, we would have reached the same conclusion. First, the trial
       court determined that the claimant’s exculpatory testimony during the forfeiture
       hearing was not credible. We afford great deference to that finding because that
       court was in a superior position to evaluate the testimony and credibility of the
       witnesses than is this court, with our review limited to a cold, written record.
       People ex rel. Madigan v. J.T. Einoder, Inc., 2015 IL 117193, ¶ 40. We cannot say
       that the trial court erred in making its credibility determination.

¶ 27       Next, the forfeiture statute requires the State to establish by a preponderance of
       the evidence that the vehicle to be forfeited was “used with the knowledge and
       consent of the owner in the commission of” one of the specified offenses, in this
       case an aggravated DUI, after the driver’s license had been revoked for a prior DUI.
       720 ILCS 5/36-1(a)(6)(A)(i), 36-2 (West 2012). At the time of Mark’s arrest, he
       undoubtedly had been driving the claimant’s motorcycle despite having a revoked
       driver’s license for the second time and a blood alcohol concentration of over twice
       the legal limit in Illinois.

¶ 28       The record also shows, and the claimant now admits, that she knew of those
       conditions at the time she consented to her husband driving the couple home. A
       reasonable trier of fact could conclude that, under the facts and circumstances of
       this case, the claimant’s conduct in knowingly granting her husband consent to
       drive her motorcycle was more than merely negligent. Based on the record and the
       deference we necessarily give to the trier of fact, we cannot say that the trial court’s
       finding that the statutory perquisites for civil forfeiture were satisfied was against
       the manifest weight of the evidence. See Kalata, 144 Ill. 2d at 433 (specifying the
       standard of review for findings made by the trier of fact). The trial court’s findings
       adequately support the conclusion that the claimant bore more than marginal
       culpability for both her husband’s subsequent aggravated DUI and the inherent




                                                - 10 ­
       public danger it created. Accordingly, we reject the claimant’s contention that she
       lacked sufficient culpability for her husband’s criminal conduct to warrant the
       forfeiture of her motorcycle.

¶ 29       Nonetheless, the claimant maintains that the forfeiture of her 2010
       Harley-Davidson trike motorcycle was constitutionally excessive because her
       financial loss from the forfeiture was disproportionately large when compared to
       her degree of culpability. Because we have already concluded that the evidence
       supports the conclusion that the claimant bore more than minimal culpability, we
       turn to the matter of the financial loss incurred by the claimant when her
       motorcycle was forfeited. The resolution of that question necessarily requires
       evidence about the value of the motorcycle. On that point, however, the record is
       woefully lacking. It shows only that the claimant originally acquired the
       motorcycle in May 2010 for the purchase price of $35,000 and has continued to
       make payments of $160 every two weeks since that time. The remaining balance
       due at the time of the forfeiture hearing was approximately $6000. Critically, the
       claimant failed to present any evidence on the value of the motorcycle at or around
       the time of the forfeiture hearing.

¶ 30       Even though the claimant did not raise her as-applied eighth amendment
       excessive fines clause challenge until after the trial court had entered its forfeiture
       order, it undoubtedly remains incumbent on her, as the party challenging the
       constitutionality of the forfeiture statute, to shoulder the heavy burden of rebutting
       the strong judicial presumption of the statute’s validity and establishing the alleged
       as-applied constitutional violation. People v. Rizzo, 2016 IL 118599, ¶ 23. On that
       count, the claimant has fallen far short.

¶ 31       At oral argument, the claimant’s counsel cited only general public knowledge
       and common experience in speculating that the motorcycle retained a substantial
       portion of its initial value despite being subject to depreciation during the four years
       between its purchase and its seizure by the police. Supposition, however, does not
       suffice to carry the claimant’s burden of “clearly establishing” that the application
       of a particular statute is unconstitutional. (Emphasis in original.) Rizzo, 2016 IL
       118599, ¶ 48. All as-applied challenges are, by definition, reliant on the application
       of the law to the specific facts and circumstances alleged by the challenger.
       “Therefore, it is paramount that the record be sufficiently developed in terms of




                                                - 11 ­
       those facts and circumstances for purposes of appellate review.” People v.
       Thompson, 2015 IL 118151, ¶ 37. “The challenger cannot shift the burden of proof
       and research to the circuit court—it is his burden alone to overcome the
       presumptions of unconstitutionality, which exist for a reason.” Rizzo, 2016 IL
       118599, ¶ 48.

¶ 32       As this court explained in Rizzo, without an evidentiary hearing and sufficient
       factual findings, a court cannot properly conclude that a statute is unconstitutional
       as applied. Any finding of a statute’s unconstitutionality as applied to a given set of
       facts would be premature without a sufficient factual predicate. Rizzo, 2016 IL
       118599, ¶ 26. In this case, the record is entirely devoid of any evidence on the value
       of the motorcycle at the time of the forfeiture. Without any evidentiary predicate,
       this court cannot conclude that the claimant has met her substantial burden of
       establishing that section 36-1 is unconstitutional as applied to the specific facts and
       circumstances of this case. Our abeyance is further warranted by our duty to
       construe legislative enactments as constitutional whenever possible. Minnis, 2016
       IL 119563, ¶ 21. We cannot shirk that duty here by intentionally overlooking the
       challenger’s complete failure to shoulder her burden of establishing that the
       forfeiture ordered by the trial court under the specific facts of this case is grossly
       disproportionate to the property owner’s culpability for her personal misconduct.
       The claimant has simply not met her burden of proof in mounting an as-applied
       constitutional challenge to the forfeiture statute at issue.

¶ 33        Nonetheless, the claimant cites our legislature’s recently enacted reforms to the
       civil asset forfeiture scheme in Illinois to support her constitutional challenge. The
       new measures adopted include requiring law enforcement to provide additional
       public disclosures as well as mandating judicial proportionality review hearings in
       all forfeiture cases. At those review hearings, the State must support its forfeiture
       request with clear and convincing evidence, not just a preponderance of the
       evidence. Critically, the effective date of that legislation is July 1, 2018. Because
       the proceedings in this case long preceded that future date, the new requirements do
       not apply here. Consequently, we leave any questions addressing the interaction
       between the newly amended forfeiture provisions and the eighth amendment for
       another day and the appropriate case.




                                               - 12 ­
¶ 34                                    III. CONCLUSION

¶ 35       Here, the trial court properly concluded that the State provided enough proof to
       establish the statutory prerequisites for civil forfeiture of the claimant’s motorcycle
       by a preponderance of the evidence. 720 ILCS 5/36-1 (West 2012). The evidence
       showed, and the claimant now admits, that she knowingly gave her husband
       consent to drive her 2010 Harley-Davidson trike motorcycle even though she knew
       he was intoxicated and his driver’s license had been revoked. That revocation was
       an extension of an initial revocation entered after her husband was convicted of
       driving with a revoked license following multiple DUI convictions and statutory
       summary suspensions. For the reasons previously discussed, the claimant’s
       culpability was sufficient to subject the motorcycle to forfeiture. Moreover,
       because the claimant did not present sufficient evidence of the value of her 2010
       Harley-Davidson trike motorcycle to enable this court to determine whether its
       forfeiture constituted an unconstitutionally excessive penalty, she has failed to
       meet her substantial burden of proof in challenging the constitutionality of the
       forfeiture statute as applied here.

¶ 36       For those reasons, we must reject her claim that section 36-1 of the Illinois
       forfeiture statute (720 ILCS 5/36-1 (West 2012)) violates the excessive fines clause
       of the eighth amendment of the United States Constitution (U.S. Const., amend.
       VIII) as applied to the facts in this case. Due to our resolution of this matter, we
       need not address the remainder of the eighth amendment excessive fines clause test
       set out in Waller, 162 Ill. 2d at 89-90. Accordingly, we reverse the judgment of the
       appellate court that overturned the trial court’s forfeiture order because the
       application of section 36-1 violated the eighth amendment. We reinstate the trial
       court’s order of forfeiture.


¶ 37      Appellate court judgment reversed.

¶ 38      Circuit court judgment affirmed.




                                               - 13 ­
¶ 39      CHIEF JUSTICE KARMEIER, dissenting:

¶ 40       Standing alone outside the Corner Place sports bar in the middle of the night
       along an empty street in her small, rural town, Petra Henderson had to make a
       difficult choice, and she had to make it fast. Her husband, who had no driver’s
       license and was drunk again, had stepped out ahead of her as they left the bar near
       closing time, jumped on her $35,000 Harley-Davidson “trike” motorcycle, and
       insisted, over her protests, that he be allowed to drive it home. Petra was powerless
       to physically stop him, and they both knew it.

¶ 41       With the resigned pragmatism one might develop from being married to a
       59-year-old chronic drunk, Petra figured she had only two options. Neither one was
       good. If she got on her trike with her husband at the controls, she risked injury but
       could at least exercise some oversight to make sure he drove straight to their house,
       six-tenths of a mile away, without hurting the trike or anyone they might encounter
       along the way. If, on the other hand, she let him drive off without her, it might be
       safer for her (although, of course, there was still danger in her walking home alone
       after midnight), but her husband would be left with unsupervised control over her
       expensive vehicle and might simply decide to head off into the night to “who
       knows where,” putting him, the public, and her trike at considerable risk. Revving
       the engine for effect, Petra’s husband insisted she either get on now or she would be
       walking.

¶ 42       She got on. They made it safely home after a drive that could have taken no
       more than a couple of minutes and parked the vehicle in the driveway of their
       house, but it proved to be a costly decision. While the husband’s engine revving
       was intended to pressure Petra, it also attracted the attention of local police, who
       followed the couple home with lights flashing and siren blaring and placed the
       husband under arrest.

¶ 43       Had Petra not been married to her husband, she could have been prosecuted for
       a Class A misdemeanor for allowing him to drive while under the influence of
       alcohol, an offense for which the maximum statutory fine is $2500. Because she
       was his spouse, however, she was not, as a matter of law, subject even to that minor
       offense. In the eyes of the law, she was guilty of nothing. That was not true of her
       husband. He was charged with multiple offenses and ultimately pled guilty to




                                              - 14 ­
       aggravated driving under the influence (DUI), for which he was fined and given
       probation.

¶ 44       Although no evidence was presented that the wife had any knowledge that her
       husband’s conduct might constitute aggravated DUI and although the State never
       sought to implicate her in commission of that or any crime under an accountability
       theory, it used the husband’s offense as justification to seize and then bring this
       in rem civil forfeiture proceeding against her $35,000 trike so that it could keep and
       then sell the vehicle and use the proceeds to support the Robinson Police
       Department. 3

¶ 45       The appellate court unanimously and correctly held that seizure and forfeiture
       of Petra’s vehicle under the circumstances of this case were incompatible with the
       eighth amendment’s excessive fines clause (U.S. Const., amend. VIII) and that the
       circuit court’s judgment granting the State’s forfeiture complaint must therefore be
       reversed. 2016 IL App (5th) 150035. A majority of my colleagues now reverses the
       appellate court’s judgment and reinstates the trial court’s forfeiture order. For the
       reasons that follow, the majority’s disposition interprets Illinois’s seizure and
       forfeiture statutes incorrectly, applies that law in a way that yields an absurd result
       the legislature could not have intended, upholds a determination by the trial court
       that is contrary to the manifest weight of the evidence, employs erroneous
       presumptions, fails to follow the proper legal framework regarding the excessive
       fines clause of the United States Constitution, cites erroneous authority, and
       ultimately reaches a result that is opposite the one commanded by the standards
       adopted by this court and consistently followed by the courts of Illinois in assessing
       whether an in rem civil forfeiture contravenes the excessive fines clause. For all of
       these reasons, I respectfully dissent.




           3
             Money from the sale would go to the Robinson Police Department because, under section 36-1
       of the Criminal Code of 2012 (720 ILCS 5/36-2(h) (West 2012), the proceeds from any public sale
       of forfeited vehicles must be paid to the law enforcement agency that seized the vehicle, less
       payments of any liens and deduction of the reasonable charges and expenses incurred by the State’s
       Attorney.




                                                    - 15 ­
¶ 46                                           BACKGROUND

¶ 47       The vehicle at issue in these proceedings is a 2010 Harley-Davidson Tri Glide
       Ultra Classic three-wheeled (trike) motorcycle owned by Petra (hereinafter the
       owner), who is employed as a bus driver by “Rides Mass Transit,” a public
       transportation system in southeastern Illinois. 4 The owner had purchased the trike
       new for $35,000 and was making loan payments of $160 every two weeks. 5 The
       trike’s value was not disputed by the State at trial.

¶ 48       The vehicle was titled in the owner’s name alone. Although she was married,
       her husband (age 59 at the time of these events) did not have, had never held, and
       did not claim any ownership interest in the vehicle. The record showed that the
       owner possessed a Class M license that permitted her to operate the vehicle
       lawfully, and she did operate it herself. While the husband maintained the vehicle
       as a hobby, there was no evidence that he ever drove it, or was allowed to drive it,
       on public roads. He would work on the vehicle at the couple’s house, taking it out
       of the garage and onto the lawn in front of the house when it needed service.

¶ 49       The husband had a history of alcohol abuse reflected in a criminal record dating
       back to the mid-1990s. At the time of the events giving rise to this action, his
       driver’s license had been revoked for operating a motor vehicle while under the
       influence. The revocation had been in place many years and predated the owner’s
       acquisition of the vehicle. The record is silent as to whether the couple’s marriage
       came before or after the husband lost his license. While the owner was aware that
       her husband’s driver’s license had been revoked and that he was not allowed to


           4
             In its brief, the State claimed that reversing the appellate court and upholding the forfeiture of
       the owner’s vehicle in this case is necessary to insure that the wealthy are not treated more favorably
       under the law than persons of more modest means. Unless Rides Mass Transit pays exceptionally
       well, I doubt the owner can be counted among the wealthy. So far as can be ascertained from the
       record, she is a regular working person. I, for one, have difficulty understanding how confiscating
       what is probably a working person’s most valuable piece of personal property serves to prevent
       preferential treatment of the rich.
            5
             Three-wheeled motorcycles like this one are becoming popular among more mature riders and
       women. Because of their comfort and stability, they have been described as being as much easy
       chair as Easy Rider. Jesse McKinley, Born to Be Wild, Aging Bikers Settle for Comfy, N.Y. Times,
       Sept. 13, 2012, http://www.nytimes.com/2012/09/14/us/trikes-three-wheeled-motorcycles-on-rise­
       as-riders-age html.




                                                       - 16 ­
       drive, no evidence was presented by the State to establish that she had any
       knowledge that the basis for the revocation was a DUI.

¶ 50       On Friday, April 25, 2014, the husband got off work before the owner did and
       called her to suggest that they go for a pleasure drive when she returned home from
       work. When she agreed, he took the key fob for the vehicle from the hook where it
       hung in the kitchen by the back door of the couple’s house so he could move the
       vehicle out of the garage and prepare it for the drive. The vehicle did not need an
       actual key to operate. The engine could be started with a switch so long as the fob
       was within a certain distance (8 to 10 feet) of the vehicle. The fob could be carried
       by either the passenger or the driver. As long as the requisite proximity was
       maintained, the vehicle would operate.

¶ 51       With fob in pocket, the husband checked the vehicle’s tire pressure, dusted it
       off, started the engine, and pulled it out of the garage. As soon as the owner
       returned home and got ready for the drive, she took control of the vehicle, and the
       couple began their trip. Their route for the evening was a large (approximately
       103-mile) loop beginning at their house in Robinson, then going first to the village
       of Oblong. From Oblong they proceeded to Lawrenceville. From Lawrenceville
       they drove to Palestine and from Palestine they returned to Robinson, stopping at a
       sports bar near their house called the Corner Place. There is no dispute that the
       owner drove the entire time.

¶ 52       The couple left the Corner Place, at approximately 12:30 a.m. on April 26,
       2014. As they approached the vehicle, the husband asked the owner to let him drive
       back home. The husband testified that she said no because he did not have a license
       and had too much to drink. Disregarding her objections, he jumped on first, got
       behind the controls and started it up. The owner “told [him] to get off or get in the
       back rather. [H]e couldn’t drive it.” He refused, kept revving the engine “to get her
       to get on,” and told her he intended to take it home. She could “either get on or
       walk.” She got on. When asked if the owner had ever allowed him to operate the
       trike that night, he replied, “No, she didn’t give me her permission. She told me I
       couldn’t; I was too intoxicated and I didn’t have a license.” But he “ignored that”
       and insisted on driving anyway because he was “buzzed.”

¶ 53       The owner did not attempt to stop her husband physically. On
       cross-examination, the husband said that the owner had merely told him he could



                                              - 17 ­
       not drive but explained that “she couldn’t stop me dude” because “I’m stronger
       than she is” and “how is she going to stop me? And she didn’t have the fob. I did.”

¶ 54       The owner’s testimony was to the same effect. She explained that as they were
       leaving the bar, her husband indicated he wanted to drive it home, she told him no
       because he was drunk and did not have a license, but he stepped ahead of her and
       jumped on the trike and started it anyway. She told him he could not and needed to
       get in the backseat. Revving the engine, he looked at her, refused, and told her she
       could either walk or get on. She stated that she could not physically control him and
       could not have pulled him off. She concluded by stating that “No, I did not tell him
       that he could [drive the trike home]. I do not consent to it, no. I just did not, I just
       didn’t want to walk home at that point.” On cross-examination she confirmed that
       she was “adamant that he not drive the vehicle and he did this over [her] consent.”
       She eventually stopped, she said, because “I knew there was no arguing anymore
       with him. He was very adamant about driving the [trike] home, and short of me
       walking home I decided to go ahead and get on and go from there.” The husband
       then did drive home, with no stops or detours.

¶ 55       The trip was short. The distance between the Corner Place and the couple’s
       house was described at trial in terms of blocks, 12 to be specific. Because “blocks”
       can vary significantly in size from place to place, it was not clear how far that
       actually was. It is well established, however, that courts may take judicial notice of
       distances between two or more locations and the customary routes and usual time to
       travel between them. Dawdy v. Union Pacific R.R. Co., 207 Ill. 2d 167, 177 (2003).
       A check here reveals the actual distance between the Corner Place and the couple’s
       residence to be only about six-tenths of a mile. The route is largely a straight line
       with some turns at the very end. It would have taken the husband only a couple of
       minutes to make the drive home.

¶ 56       To describe what occurred during this brief drive, the State called Dan Strauch,
       a Robinson city police officer. Officer Strauch was the State’s only witness. He
       testified that on the night in question, he was alerted to the couple by the sound of
       the husband’s revving the vehicle’s engine. He and an auxiliary officer riding with
       him saw the vehicle and followed it in their squad car. After observing the vehicle
       make a wide right turn and swerve back, nearly hitting a telephone pole, he
       activated his car’s emergency lights and then its siren to signal the vehicle to stop.




                                                - 18 ­
       The vehicle did not stop but instead proceeded to the couple’s home and drove into
       the driveway. On the way, Officer Strauch testified, it weaved back and forth and
       crossed into the oncoming traffic lane while making a left turn just before the
       couple’s home. While erratic, the driver caused no injuries to any person and no
       damage to any property.

¶ 57       Once in the driveway, the husband dismounted the trike and was promptly
       arrested by Officer Strauch. Following the arrest, Officer Strauch interviewed the
       owner and asked her what the two were doing. Corroborating a statement made by
       the owner during her own testimony, Officer Strauch recalled that she replied that
       “she told him [(her husband)] to stop but he kept going.” The officer also stated
       that, in response to his questioning at the scene, the owner indicated that she knew
       the husband had a revoked driver’s license and that she knew he was intoxicated.
       On cross-examination, the officer stated that the owner had not specifically said
       that she had allowed her husband to drive.

¶ 58       Officer Strauch transported the husband to the Crawford County Sheriff’s
       office, where he administered a Breathalyzer test. After the test disclosed a breath
       alcohol concentration of 0.161, more than twice the legal limit, the husband was
       charged with aggravated DUI under section 11-501(d) of the Illinois Vehicle Code
       (625 ILCS 5/11-501(d) (West 2014)) and driving while driver’s license is
       suspended or revoked in violation of section 6-303 of the Vehicle Code (id.
       § 6-303). The husband ultimately pled guilty to aggravated DUI, for which he was
       fined and placed on probation. The charge for driving while license suspended or
       revoked was dismissed.

¶ 59      The owner was also charged, but she was only cited for violating section
       6-304.1 of the Vehicle Code (id. § 6-304.1). That statute provides:

          “No person shall knowingly cause, authorize, or permit a motor vehicle owned
          by, or under the control of, such person to be driven or operated upon a highway
          by anyone who is under the influence of alcohol, other drugs, or combination
          thereof.” Id.

       Conviction of this offense is a Class A misdemeanor. Id. Under Illinois law, the
       maximum fine that may be imposed for conviction of a Class A misdemeanor is
       $2500 (730 ILCS 5/5-4.5-55(e) (West 2014)).




                                              - 19 ­
¶ 60       No claim has been made that the owner could have been or was charged with
       any other offense based on what happened on the night in question. At some point
       the State apparently realized that she should not even have been charged with
       violating section 6-304.1 of the Vehicle Code. The reason she could not be charged
       for that offense is contained in the statute itself. The law expressly provides that it
       “shall not apply to a spouse of the person who owns or has control of” the vehicle.
       625 ILCS 5/6-304.1 (West 2014). It was undisputed that the husband had control of
       the vehicle and that the owner was his spouse. The charge was dismissed, and at no
       time did the State contend that she could or should be subjected to prosecution for
       the crimes with which her husband was charged based on a theory of
       accountability. So far as Illinois law is concerned, the owner committed no wrong.

¶ 61       While the owner was not the driver, was free of any wrongdoing herself, and
       could not be charged even with a misdemeanor given that the person in control of
       the trike was her husband, that did not stop the State from confiscating her vehicle.
       Following the husband’s arrest, the police towed it from the couple’s driveway and
       then seized and impounded it pursuant to section 36-1(a)(6)(A)(i) of the Criminal
       Code of 2012 (720 ILCS 5/36-1(a)(6)(A)(i) (West 2012)). That statute permits a
       vehicle to be seized and impounded by a law enforcement agency if it is used “with
       the knowledge and consent of the owner in the commission of, or in the attempt to
       commit,” an offense prohibited by “Section 11-501 of the Illinois Vehicle Code
       (driving while under the influence of alcohol[, etc.,]) *** during a period in which
       his or her driving privileges are revoked or suspended if the revocation or
       suspension was for (i) Section 11-501 (driving under the influence of alcohol[,
       etc.])[.]” (Emphasis added.) Id. 6

¶ 62       Following some preliminary procedural steps taken after the vehicle was seized
       and impounded, the State filed a complaint for forfeiture. It subsequently amended
       its complaint after the owner moved to dismiss based on various defects in the
       State’s claim.




           6
            Initially, the State also predicated its claim on the allegation that the husband had been “driving
       while license revoked” in violation of section 6-303 of the Vehicle Code (625 ILCS 5/6-303 (West
       2012)). It abandoned that prong of its claim after that charge was dismissed.




                                                       - 20 ­
¶ 63       The State’s action was an in rem civil proceeding. Actions for in rem civil
       forfeiture are governed by section 36-2 of the Criminal Code of 2012 (id. § 36-2).
       That provision, which was not specifically mentioned in either the amended
       complaint or the circuit court’s forfeiture order, authorizes forfeiture of a vehicle to
       the State, following a hearing, where the State has shown “by a preponderance of
       the evidence, that such *** vehicle *** was used in the commission of an offense
       described in Section 36-1.” Id.

¶ 64       In challenging the State’s action, and consistent with the evidence adduced at
       the hearing on the matter, the owner adamantly denied that the vehicle had been
       used with her knowledge and consent in the commission of the offense of
       aggravated DUI, as asserted in the State’s amended complaint. The trial court
       rejected that defense and ruled in favor of the State. It stated on the record that it
       was basing its decision on the following factors:

              (1) it was undisputed that the husband was driving on a revoked license;

              (2) the husband had a prior DUI conviction;

              (3) he had indications of being intoxicated on the night in question; and

              (4) “actions speak louder than words,” and the owner’s actions in getting on
          the motorcycle and allowing the husband to drive home rendered doubtful the
          “self-serving” testimony of the owner and her husband that she had not given
          him permission to drive that night.

¶ 65       After making these observations, the court asked the State to prepare and
       submit a draft written order, and that was so noted in the clerk’s docket sheet. The
       judge’s subsequent written order, entered the same day, included no additional
       findings. It merely stated that the court had found that “the vehicle is subject to
       forfeiture for the reasons outlined in the Amended Verified Complaint for
       Forfeiture.”

¶ 66       Following entry of the forfeiture order, the owner petitioned the Attorney
       General for remission of the forfeiture pursuant to section 36-4 of the Criminal
       Code of 2012 (id. § 36-4), arguing that the events giving rise to the forfeiture
       involved no willful negligence or intention on her part to violate the law and that
       there were mitigating circumstances warranting relief. Specifically, she asserted




                                                - 21 ­
       that she had not been the driver; that her husband, who was the driver, was
       intoxicated and demanded that she “get on or walk home”; and that she was
       “powerless to act or prevent him from driving off.” She further contended, among
       other things, that she

          “simply got on the back of the motorcycle to protect and look after her property,
          the motorcycle, and as well as look after her husband, to avoid him driving off
          on her motorcycle to who knows where, and prevent herself from walking to
          her home, alone, in the darkest of night, as she knew he was intoxicated and did
          not have a driver’s license to operate her motorcycle which she had been
          operating the entire evening. Her simple act of getting on the back of the
          motorcycle that night[,] in compliance to her drunk husband’s demands, did not
          constitute consent to allowing him to drive.”

¶ 67       The owner also asked the circuit court to reconsider its forfeiture order. As
       grounds for that motion, she asserted that the State had failed to prove its case by a
       preponderance of the evidence and that she had not exercised any dominion or
       control over the trike after the couple had left the bar or when the stop was made by
       the Robinson Police Department. The motion further protested that at no time had
       she contemplated, authorized, or consented to her husband’s operation of the
       vehicle and was “powerless to act against her strong husband, who was intoxicated
       when he drove off on the motorcycle with [her] as a passenger.” The owner
       contended that her decision to get on the vehicle rather than walk home alone late at
       night “could not, and did not[,] equate to any type or kind of knowing consent.”
       Rather,

          “she got on the motorcycle to make sure it was secure and protect it from harm,
          as it was her property to try and protect, as well as prevent injury to *** her
          husband, who was inebriated. In his intoxicated state, who knows where he
          would have driven off to on the motorcycle alone, if he did not have [her] as a
          passenger.”

¶ 68       In addition to the foregoing, the motion pointed out that the owner, herself, did
       not use the vehicle to violate any criminal laws and argued that the penalty of
       forfeiture of the motorcycle because it was used by her husband to facilitate “a
       felony DUI violation, for which he pled guilty, paying his high fines and costs, and
       performing his probation, is an excessive fine against the owner, *** (the value of



                                               - 22 ­
       this motorcycle being in excess of $35,000), and is excessive as a fine in violation
       of the Eighth Amendment of the U.S. Constitution.” She contended that an in rem
       forfeiture’s excessiveness for eighth amendment purposes “is the relationship
       between the forfeited property and the offense. [The owner] never committed an
       offense.” The motion argued that reconsideration should also be granted because
       the trial court wrongly construed the forfeiture statute strictly in favor of the
       sovereign, the Robinson Police Department, and not, as it should have, in favor of
       the owner and that to punish through forfeiture of this expensive vehicle because
       she got on the back of it and rode home “in compliance with her drunken husband’s
       demand, which she was powerless to act against or prevent” is repugnant to the
       protections of the eighth amendment.

¶ 69       The circuit court was not persuaded. It rejected the owner’s eighth amendment
       challenge simply by citing, without discussion, People v. One 2000 GMC, 357 Ill.
       App. 3d 873 (2005), where, in contrast to the situation before us here, the seized
       vehicle was actually owned by the person who had been convicted of driving on a
       suspended license and DUI. It turned aside the owner’s arguments regarding the
       State’s failure to prove its case by reasserting its view that the testimony by her and
       her husband that she had not consented was self-serving and not credible.

¶ 70       The owner appealed, raising both the lack of consent and eighth amendment
       issues. 7 The appellate court rejected the lack of consent arguments on the grounds
       that consent turned on credibility and the trial court’s determination was not against
       the manifest weight of the evidence. In reaching this conclusion, the appellate court
       gave weight to the husband’s testimony that “due to the configuration of the
       motorcycle, the passenger had to get on first,” a statement the appellate court
       thought contradicted the parties’ claim that the husband had mounted the trike first.
       2016 IL App (5th) 150035, ¶ 25.

¶ 71       The appellate court’s reading of the record was erroneous. Contrary to the
       appellate court’s interpretation, the husband did not testify that the passenger must
       get on first. Rather, he explained the passenger gets on first for reasons of ease and

           7
            The record does not disclose what became of the owner’s request to the Attorney General for
       remission of the forfeiture. Because the owner is still actively pursuing recovery of the vehicle, I
       assume her request was not granted.




                                                     - 23 ­
       convenience. “If the driver would get on first he would have to lean, she would
       have to lean way over for the passenger to get on.”

¶ 72       The appellate court then turned to the owner’s eighth amendment arguments. It
       agreed that “forfeiture of the $35,000 motorcycle was constitutionally excessive
       under all the circumstances of this case.” In reaching this conclusion, the court gave
       weight to the fact that the harshness of the penalty, namely, seizure of the vehicle,
       must be measured against the conduct of the person who would actually be
       punished by the forfeiture, in this case the owner. It also looked at other factors,
       finding some that supported forfeiture and others that did not, but the key factor
       was the disparity between what the wife had done, “acquiescing to [the husband’s]
       use of the motorcycle,” and the penalty she suffered, loss of the vehicle. Id. ¶ 41.

¶ 73       The State petitioned for leave to appeal, which we allowed. Ill. S. Ct. R. 315(a)
       (eff. Mar. 15, 2016). It characterized the owner’s trike as a “luxury vehicle” and
       argued that forfeiture of the vehicle does not violate the eighth amendment’s
       excessive fines clause because the owner “knowingly consent[ed] to its use in the
       Commission of an Aggravated DUI.” In addition, it asserted that while the
       forfeiture can withstand eighth amendment scrutiny even if the vehicle is valued at
       $35,000, there was no hearing on the question of valuation once the eighth
       amendment challenge was raised. Because of that, it contended, we should remand
       for further proceedings if we do not accept its argument that the appellate court’s
       judgment should be reversed outright.

¶ 74       The owner, for her part, contended that the trial court erred in rejecting her
       testimony that she had not consented; that, because the vehicle belonged to her
       alone, the constitutional validity of the forfeiture must be assessed based on her
       conduct rather than the conduct of her husband; that she did not stand charged or
       convicted of any offense, much less one that would subject her property to
       forfeiture; and that under the standards followed by the courts of Illinois, forfeiture
       of her vehicle would constitute an excessive fine for eighth amendment purposes
       and was therefore properly reversed by the appellate court. The owner opposed
       remand for further hearing, asserting that the record was adequate to establish that
       the forfeiture violated the excessive fines clause, as the appellate court had found,
       and that additional proceedings would only add to the harm she had already




                                               - 24 ­
       sustained while giving the State a second bite of the apple in aid of what she
       condemned as “policing for profit.”

¶ 75       The majority now reverses the judgment of the appellate court and affirms
       forfeiture of the vehicle. Its opinion is wrong on the facts, wrong in its
       interpretation and application of the applicable state statutes, and wrong on its
       understanding and application of governing eighth amendment principles.


¶ 76                                       ANALYSIS

¶ 77              I. The Majority’s Disposition Is Incorrect Under Illinois Law

¶ 78                  A. The Majority Fails to Follow the Correct Standard

                                 for Scrutinizing Civil Forfeitures

¶ 79       A threshold flaw in the majority’s opinion is that it completely overlooks the
       basic legal standards governing civil forfeiture proceedings. Forfeitures are
       generally disfavored under the law, and courts must be vigilant in safeguarding the
       rights of innocent persons who have legitimate interests in the property at issue.
       People v. 1991 Chevrolet Camaro, 251 Ill. App. 3d 382, 387-88 (1993). Although
       civil in form, “[f]orfeiture statutes and proceedings *** are in their nature criminal.
       (Boyd v. United States (1886), 116 U.S. 616, 634, 29 L. Ed. 746, 752, 6 S. Ct. 524,
       534.) The object of a forfeiture proceeding like a criminal proceeding, is to penalize
       for the commission of an offense against the law. (One 1958 Plymouth Sedan v.
       Pennsylvania (1965), 380 U.S. 693, 700, 14 L. Ed. 2d 170, 175, 85 S. Ct. 1246,
       1250.)” In re Fifty-Three Thousand Two Hundred Sixty Three Dollars, 159 Ill.
       App. 3d 114, 126 (1987). We must therefore construe forfeiture statutes and
       proceedings strictly in favor of the property’s owner (id.; People v. One 1986 White
       Mazda Pickup Truck, 251 Ill. App. 3d 79, 81 (1993), aff’d, 162 Ill. 2d 67; People
       ex rel. Neal v. Ryan, 284 Ill. App. 3d 318, 325 (1996)), so far as we may do so
       consistent with fair principles of statutory interpretation (1991 Chevrolet Camaro,
       251 Ill. App. 3d at 388; People v. 1991 Dodge Ram Charger, 250 Ill. App. 3d 810,
       816 (1993)).

¶ 80       The foregoing principles are fundamental to our assessment of whether the
       State met its burden of establishing that the forfeiture challenged by the owner in




                                               - 25 ­
       this case comported with Illinois law. If that burden was not met, the seizure and
       forfeiture cannot stand, and the trike must be returned to the owner. See 720 ILCS
       5/36-2(c) (West 2012); People v. One 1980 Mercedes Automobile, 166 Ill. App. 3d
       467, 469 (1988). There would be no need to consider whether the forfeiture would
       also violate the excessive fines clause of the eighth amendment. The majority’s
       disposition, however, fails to give these principles even a passing reference. The
       omission is a fatal one, for application of these principles yields the conclusion that
       the seizure and forfeiture of the owner’s trike cannot be sustained.


¶ 81          B. The Majority Fails to Properly Construe the Governing State Statutes

¶ 82       As noted earlier, the trike was initially confiscated by the State pursuant to
       section 36-1(a)(6)(A)(i) of the Criminal Code of 2012 (720 ILCS
       5/36-1(a)(6)(A)(i) (West 2012). That statute permits a vehicle to be seized and
       impounded by a law enforcement agency if it is used “with the knowledge and
       consent of the owner in the commission of, or in the attempt to commit,” an offense
       “prohibited by *** Section 11-501 of the Illinois Vehicle Code (driving while
       under the influence of alcohol[, etc.,] during a period in which his or her driving
       privileges are revoked or suspended if the revocation or suspension was for: (i)
       Section 11-501 (driving under the influence of alcohol[, etc.])[.]” 720 ILCS
       5/36-1(a)(6)(A)(i) (West 2012).

¶ 83       By its terms, this statute only authorizes law enforcement agencies to seize and
       impound a vehicle when the vehicle has been used “with the knowledge and
       consent of the owner in the commission of *** an offense prohibited by ***
       Section 11-501 *** during a period in which his or her driving privileges are
       revoked or suspended.” (Emphasis added.) Id. Because revocation or suspension of
       driving privileges is a necessary condition under the law, it is important to know
       whose driving privileges the statute is talking about when it uses the pronouns “his
       and her.”

¶ 84       A pronoun, relative pronoun, or demonstrative adjective generally refers to the
       nearest reasonable antecedent. Antonin Scalia & Bryan A. Garner, Reading Law:
       The Interpretation of Legal Texts 144 (2012). In this statute, the nearest reasonable
       antecedent to the pronouns “his or her” is “the owner.” Indeed, “the owner” is not
       only the nearest reasonable antecedent to those pronouns, it is the only possible



                                               - 26 ­
       antecedent. No other person or category of persons is mentioned. To trigger the
       statute, the owner’s privileges must therefore be the ones under suspension or
       revocation.

¶ 85       This construction poses no problem, of course, where the owner of the vehicle
       is one and the same as the person who has been caught driving under the influence
       with his or her driving privileges revoked or suspended. That more common
       scenario is no doubt the one the legislature had in mind when it drafted the law. But
       that is not the situation before us here. In our case, the owner was not using the
       vehicle to drive under the influence while her license was suspended or revoked. To
       the contrary, it is undisputed that the owner herself was not driving, that she was not
       under the influence, and that her license was not suspended or revoked. The
       statutory conditions were therefore not met as a matter of law, and the vehicle must
       be released to her.

¶ 86       Of course, one can speculate that the legislature meant “his or her” to refer not
       simply to the owner, but to extend more broadly to include anyone who might be
       driving the owner’s vehicle. But that is not what the statute says. It is fundamental
       that we may not rewrite a statute under the guise of statutory construction to add
       provisions the legislature did not include. Zahn v. North American Power & Gas,
       LLC, 2016 IL 120526, ¶ 15. And to the extent the statute is ambiguous, the
       previously discussed rules of strict construction applicable to forfeiture statutes
       mandate that any uncertainty be resolved in favor of the property owner and against
       the State.

¶ 87       This is not the only barrier to the State’s claim posed by the forfeiture statutes.
       To return to the portion of section 36-1 at issue in this case, it specifies that the
       vehicle must have been used with knowledge and consent of the owner in the
       commission of an offense prohibited by section 11-501 of the Vehicle Code (625
       ILCS 5/11-501 (West 2014)), not merely during a period in which his or her driving
       privileges are revoked or suspended but during a period in which his or her driving
       privileges have been revoked for one of four specified offenses. 720 ILCS
       5/36-1(a)(6)(A) (West 2012).

¶ 88       In this case, the particular prior offense alleged as being the basis for the
       revocation or suspension was the husband’s prior conviction for driving under the
       influence under section 11-501 (625 ILCS 5/11-501 (West 2014)). Accordingly,



                                               - 27 ­
       even if, for the sake of argument, the reference to “his or her” in section 36-1 of the
       Vehicle Code could legitimately be construed as extending to any user of the
       owner’s vehicle and was not limited to the owner himself or herself, the statute, by
       its terms, would require that the State prove that the owner had knowledge of and
       gave consent to the vehicle being used (a) in the commission of the offense of
       driving under the influence and (b) while the driver’s license had previously been
       suspended or revoked for the same offense, driving under the influence.
       Correspondingly, under section 36-2(e) of the Criminal Code of 2012 (720 ILCS
       5/36-2(e) (West 2012)), the owner could defeat forfeiture and recover the vehicle if
       he or she could establish by a preponderance of the evidence that he or she did not
       know and did not have any reason to know that the vehicle would be used in the
       commission of the offense that served as the predicate for the State’s action,
       namely, aggravated driving under the influence based on her husband’s driver’s
       license having been previously suspended or revoked for driving under the
       influence. See People ex rel. Barra v. Wiebler, 127 Ill. App. 3d 488, 490-91 (1984).

¶ 89       There was no dispute that the owner in this case knew her husband was too
       drunk to drive, nor was there any real question that she knew or had reason to know
       that he would be subject to prosecution for driving under the influence if he drove
       her trike home on the night in question. The owner also freely admitted that she
       knew that her husband had lost his driver’s license. Critically, however, the record
       fails to show, and the State made no attempt to prove, that the owner had any idea
       why her husband had lost his license, much less that she knew he had lost it because
       of a prior DUI conviction. To impute such knowledge to her would require pure
       speculation unsupported by any evidence. The couple was married, to be sure, but
       we do not know for how long, and in any case, observation and experience in the
       ordinary affairs of life counsel that chronic drunks can rarely be counted on to make
       full disclosure to their wives regarding the details of their encounters with the law.

¶ 90       This gap in proof presents an insurmountable barrier to the State’s case. As the
       State concedes in its brief, the “law does not permit forfeiture for every instance of
       drunk driving.” Indeed, Illinois law does not permit the State to bring even
       misdemeanor charges against a spouse like the owner here, who, at most, merely
       permitted her husband to drive her vehicle while under the influence of alcohol.
       625 ILCS 5/6-304.1 (West 2014). Under the controlling statutes, the viability of the
       State’s forfeiture claim depended on her knowing or having reason to know that her




                                               - 28 ­
       husband’s conduct in driving her trike would constitute aggravated driving under
       the influence and that she nevertheless consented to such use. Again, evidence of
       such knowledge is completely lacking. The contention made by the State in its brief
       that “there is no question here that [the owner] had full knowledge of [her
       husband’s] illegal conduct” is simply wrong. The majority’s assertion that the
       “record also shows, and the claimant now admits” that she knew the reason her
       husband’s license was revoked for a prior DUI and that he would be subject to
       conviction for aggravated DUI (supra ¶ 28) is likewise groundless. The owner
       admitted nothing of the kind, and the record shows no such thing.


¶ 91                   C. The Majority’s Analysis of the Issue of Consent

                                 Is Legally and Factually Wrong

¶ 92                              1. Consent Was Not Conceded

¶ 93       Not only did the State fail to establish the requisite knowledge on the part of the
       owner, it failed even to meet its burden of proving that the owner had consented to
       her husband’s use of her trike. Although the majority asserts that the owner had
       abandoned her arguments related to consent and “openly conced[es]” that she
       “knowingly consented to her husband driving the motorcycle that night” (supra
       ¶ 14), such is not the case. Lack of consent has been central to the owner’s position
       throughout these proceedings, and she continued to dispute consent in her
       arguments before our court.


¶ 94                             2. Acquiescence Is Not Consent

¶ 95       It is true that during oral argument, the owner’s attorney stated that his client
       did not contest that she had “allowed” her husband to drive her trike home on the
       night in question, knowing him to be drunk, but that was never really contested.
       The owner “allowed” the husband to drive the trike home in the sense that she did
       not try to wrestle the fob from his pocket, where it had been since he prepared the
       vehicle for their evening out, or attempt to physically pull him off the vehicle or
       block his way and eventually gave up arguing with him to take the backseat and let
       her drive. As my detailed recitation of the record shows, however, the owner never,




                                               - 29 ­
       at any point, gave her husband permission to drive the trike. In the end, she simply
       decided to acquiesce to his drunken demands rather than be left to walk home alone
       in the middle of the night as he drove off “to who knows where” on her valuable
       vehicle. And what else could she do? Physical confrontation would have been both
       pointless and potentially dangerous. And even if she had had access to a phone to
       call 911 (and there is no evidence she did), no police response would have been fast
       enough to stop him from taking off, where, unsupervised, he might have done
       actual harm to himself, other drivers, or her trike.

¶ 96       While the majority may not care for the choice the owner made, she had no
       good choices, and the decision she did make, to submit in the face of her husband’s
       threat to leave her alone on the street in the middle of the night, was one many
       women may have made under similar circumstances. But whether one agrees with
       the choice or not, the owner’s decision to “allow” her husband to drive off behind
       the controls of her trike is not enough to subject the trike to seizure and forfeiture.
       The statute, by its terms, requires consent, not mere acquiescence.

¶ 97        Both the circuit court and the majority here clearly failed to appreciate that
       these concepts are different. Under the law, acquiescence does not constitute
       consent (People v. Anthony, 198 Ill. 2d 194, 202-03 (2001); People v. Schmitt, 99
       Ill. App. 3d 184, 188 (1981); People v. Kelly, 76 Ill. App. 3d 80, 87 (1979); People
       v. Green, 358 Ill. App. 3d 456, 462 (2005); Sparling v. Fon du Lac Township, 319
       Ill. App. 3d 560, 565 (2001)), and the State’s burden to prove that consent was
       voluntary cannot be discharged by showing no more than acquiescence (see
       Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968)).

¶ 98       “No” means “no,” and Illinois long ago rejected the notion that “voluntary
       submission by a female who still has the power to resist, no matter how reluctantly
       yielded, amounts to her consent to the act.” Schmitt, 99 Ill. App. 3d at 188. The
       majority’s opinion takes us backwards to a time when some thought otherwise. I
       will not go there with them. The owner acquiesced. She did not consent.




                                               - 30 ­
¶ 99                       3. The Trial Court’s Ruling Was Contrary to the

                                    Manifest Weight of the Evidence

¶ 100       As discussed earlier in this dissent, the trial court rejected the owner’s claim
        that she had not given her husband permission to drive her trike home because, it
        said, her actions in getting on the motorcycle and allowing her husband to drive
        rendered doubtful the “self-serving” testimony of the owner and her husband.
        Aside from the trial court’s failure to see that the acts of acquiescence he noted are
        not sufficient to constitute affirmative consent, the owner challenges the court’s
        determination as against the manifest weight of the evidence. Because the majority
        erroneously concludes that the question of consent was conceded by the owner, it
        does not address the merits of the owner’s argument. If the argument were properly
        addressed, the owner would prevail on it as well.

¶ 101       It is true, of course, that

                 “[a] reviewing court should not overturn a trial court’s findings merely
            because it does not agree with the lower court or because it might have reached
            a different conclusion had it been the fact finder. The trial judge, as the trier of
            fact, is in a position superior to a reviewing court to observe witnesses while
            testifying, to judge their credibility, and to determine the weight their testimony
            should receive. Consequently, where the testimony is conflicting in a bench
            trial, the trial court’s findings will not be disturbed unless they are against the
            manifest weight of the evidence.” Bazydlo v. Volant, 164 Ill. 2d 207, 214-15
            (1995).

        It is also clear, however, that

            “the fact finder may not arbitrarily or capriciously reject unimpeached
            testimony. Where the testimony of a witness is neither contradicted, either by
            positive testimony or by circumstances, nor inherently improbable, and the
            witness has not been impeached, that testimony cannot be disregarded by the
            trier of fact.” Id. at 215.

¶ 102      In the case before us, the testimony of the owner and her husband was
        consistent and uncontradicted. No witnesses disputed their version of what
        occurred, and there was nothing about it that was inherently improbable. To the




                                                 - 31 ­
        contrary, undisputed circumstances supported the scenario they described. There
        was no question that their evening progressed exactly as they described, with the
        husband taking the fob from the kitchen so he could prepare the bike for the
        couple’s evening ride, that the bike belonged to the wife alone and that she drove it
        until they reached their final stop a short distance from home, that the husband
        insisted on driving home after he had gotten “buzzed” at that final stop, that he took
        control of the vehicle and would not yield despite a heated argument in which the
        owner told him he could not drive because he was drunk and had no license, that the
        owner was powerless to stop him and did not want to have to walk home in the dark
        alone late at night, and that she told him to stop when the local police tried to pull
        him over. The husband’s arrogant response on cross-examination (“she couldn’t
        stop me dude” because “I’m stronger than she is” and “how is she going to stop me?
        And she didn’t have the fob. I did”) provide an insight into the extent of the
        challenge the owner was facing on the evening in question.

¶ 103       The parties testified under penalties of perjury, and while the husband had a
        checkered driving record and might not have been candid with his spouse, there
        was nothing to suggest that he would lie under oath or that the owner, who had a
        home and was employed as a transit company driver, a position of responsibility,
        was not being completely candid and accurate when explaining what had taken
        place. The testimony did support the owner’s position, to be sure, but that alone
        does not render it “self-serving” and unreliable. To hold otherwise given the
        complete absence of impeaching or contradicting evidence here would be
        tantamount to saying that the testimony of a party in interest is inherently unworthy
        of belief.

¶ 104        The only specific “fact” noted by the lower courts as inconsistent with the
        couple’s version of what occurred is the appellate court’s description of the
        husband’s testimony regarding the sequence in which riders had to mount the
        vehicle. As I have noted earlier, however, the appellate court misread the record,
        and its characterization is simply wrong. Accordingly, the trier of fact should not
        have disregarded the couple’s testimony. On the question of consent, the judgment
        it reached was not only erroneous as a matter of law but contrary to the manifest
        weight of the evidence.




                                                - 32 ­
¶ 105          D. The Majority’s Construction of the Statutes Yields an Absurd Result

¶ 106       The majority’s interpretation and application of the Illinois seizure and
        forfeiture statutes must be rejected for another reason as well: it yields an absurd
        result the legislature could not have intended. When the State initially seized the
        owner’s trike, it did so on multiple grounds, including the fact that the husband had
        previously been convicted under section 6-303 of the Vehicle Code (625 ILCS
        5/6-303 (West 2014)) for driving while license suspended or revoked. Had the
        vehicle been owned by the husband and not by her, she, as the spouse, could
        actually have filed a hardship petition and had title to the vehicle forfeited to her
        under the provisions of section 36-1(d) of the Criminal Code of 2012 (720 ILCS
        5/36-1(d) (West 2012)). If certain conditions were satisfied and her petition were
        successful, title would have been placed in her name. Id. Accordingly, even if every
        other single fact about the incident were the same, the result could have been
        exactly the opposite of the one reached by the majority today. Because the owner
        actually owns the trike, she has now lost title to it even though she committed no
        offense. If her husband, the actual wrongdoer, had been the owner, the case could
        have ended with the trike being titled to her and the vehicle put right back in the
        couple’s garage ready for another ride. This is not only nonsensical but manifestly
        unfair. The supreme court has an obligation to construe statutes in a manner that
        will avoid absurd, unreasonable, or unjust results that the legislature could not have
        intended. People v. Hunter, 2017 IL 121306, ¶ 28. The majority’s disposition
        abandons that duty. Under Illinois law, the seizure and forfeiture were improper.
        The trike should be returned to its owner.


¶ 107          II. The Majority’s Disposition Is Incorrect Under the Eighth Amendment

¶ 108       Even if the State could clear the statutory and evidentiary obstacles I have just
        set out, the seizure and forfeiture of the owner’s trike would violate the excessive
        fines clause of the eighth amendment to the United States Constitution (U.S.
        Const., amend. VIII) and would still have to be set aside. In reaching a contrary
        conclusion, the majority’s opinion applies the wrong legal framework, departs from
        long-followed precedent, and reaches a result that is incompatible with eighth
        amendment principles.




                                                - 33 ­
¶ 109       The eighth amendment reads: “Excessive bail shall not be required, nor
        excessive fines imposed, nor cruel and unusual punishments inflicted.” Id. It is
        based directly on article I, section 9, of the Virginia Declaration of Rights, which
        adopted verbatim language from the English Bill of Rights of 1689.
        Browning-Ferris Industries of Vermont, Inc. v Kelco Disposal, Inc., 492 U.S. 257,
        266 (1989). The pertinent language in the English Bill of Rights is, in turn,
        traceable to values found in Magna Carta. United States v. Bajakajian, 524 U.S.
        321, 335 (1998); David Pimentel, Forfeitures and the Eighth Amendment: A
        Practical Approach to the Excessive Fines Clause as a Check on Government
        Seizures, 11 Harv. L. & Pol’y Rev. 541, 562 (2017). The protections afforded by
        the eighth amendment are thus as deeply rooted as any in our constitutional order.
        We must be vigilant in ensuring that those protections are honored and given effect.


¶ 110          A. The Majority Applies the Wrong Standards for Evaluating Claims

                   Under the Excessive Fines Clause in In Rem Civil Proceedings

¶ 111       The meaning and application of the excessive fines clause of the eighth
        amendment presents a question of federal law on which the United States Supreme
        Court is, of course, the ultimate arbiter. The majority’s opinion claims that “the
        standard for whether a forfeiture violates the federal excessive fines clause was first
        broadly set out by the United States Supreme Court in United States v. Bajakajian,
        524 U.S. 321 (1998).” Supra ¶ 15. The disposition then discusses the Bajakajian
        standard; references earlier case law from Illinois in light of Bajakajian; and
        invokes authority from an intermediate court of review in Pennsylvania, a federal
        court in Virginia, and the United States Court of Appeals for the Second Circuit, in
        undertaking its analysis as to whether the forfeiture here crossed a constitutional
        line.


¶ 112                   1. The Majority Is Wrong to Begin With Bajakajian:

               Austin Provides the Proper Starting Point in In Rem Civil Proceedings

¶ 113       As a preliminary matter, this case is different from Bajakajian in several key
        respects, not the least of which is that the forfeiture in Bajakajian, which involved




                                                - 34 ­
        currency, was sought in the context of a criminal prosecution against the criminal
        defendant personally for failure to report exported currency. The money was the
        defendant’s, and the government wanted to take it in the criminal prosecution as
        part of his punishment for failure to properly report it. In contrast to the case before
        us here, Bajakajian was not an in rem civil proceeding and was not directed against
        property owned by someone who was not being criminally prosecuted and who had
        neither committed nor been found guilty of committing any crime.

¶ 114       The leading case on applicability of the eighth amendment excessive fines
        clause to in rem civil proceedings like this one is actually Austin v. United States,
        509 U.S. 602 (1993). That case held for the first time that in rem civil forfeiture
        proceedings are subject to the limitations of the excessive fines clause where the
        statutes under which they are brought do not solely serve a remedial purpose but,
        rather, can only be explained as also serving either a retributive or deterrent
        purpose and thus constitute punishment. Id. at 621.

¶ 115       In rem civil forfeiture has a much different history than forfeiture in the context
        of a criminal case. Prior to Austin, the eighth amendment did not even extend to
        civil forfeitures. In any discussion regarding applicability of the eighth amendment
        to in rem civil forfeitures, Austin must therefore be our starting point. The State
        correctly cited Austin at the outset of the argument section of its brief. Inexplicably,
        the majority’s opinion fails to mention it at all.

¶ 116       The United States Supreme Court itself has not spoken on the standards
        applicable to in rem civil forfeitures following Austin. Austin declined to articulate
        a specific test for determining whether an in rem civil forfeiture is constitutionally
        “excessive,” leaving it to lower federal courts to consider that question in the first
        instance. Id. at 622.


¶ 117              2. In the Wake of Austin, Illinois Adopted the Zumeriz Standard

¶ 118       Failing to recognize the distinctions between Austin and Bajakajian, the
        majority’s opinion relies heavily on Bajakajian’s standards as if that case were
        dispositive. It is not. As noted, the United States Supreme Court in Austin left it to
        lower courts to determine an appropriate test. Following Austin, some jurisdictions
        have taken the view that Bajakajian’s standards, developed in the criminal context,




                                                 - 35 ­
        should be adopted for use when applying the eighth amendment in in rem civil
        forfeiture cases. This view is not universal. At least two other approaches have been
        adopted by courts around the country. Brent Skorup, Ensuring Eighth Amendment
        Protection From Excessive Fines in Civil Asset Forfeiture Cases, 22 Geo. Mason
        U. Civ. Rts. L.J. 427, 440 (2012).

¶ 119       One such approach is the “hybrid instrumentality-proportionality test” first
        formulated by a United States district court in California in a case called United
        States v. 6625 Zumirez Drive, 845 F. Supp. 725 (C.D. Cal. 1994). Skorup, supra, at
        440. Our court expressly adopted the Zumirez standard in People ex rel. Waller v.
        1989 Ford F350 Truck, 162 Ill. 2d 78, 89-90 (1994). That standard has since been
        applied consistently by the courts of Illinois, including the appellate court in the
        case before us. 2016 IL App (5th) 150035, ¶¶ 27-28; People v. One 2005 Acura
        RSX, 2017 IL App (4th) 160595, ¶ 20; People v. 1998 Lexus GS 300, 402 Ill. App.
        3d 462, 466 (2010); One 2000 GMC, 357 Ill. App. 3d at 875-76 (2005); People
        ex rel. Waller v. 1996 Saturn, 298 Ill. App. 3d 464, 470 (1998). That is the test we
        should continue to apply here.


¶ 120                  3. The Majority’s Discussion of the Pennsylvania Case

                   and Precedent From Other Jurisdictions Is Flawed and Erroneous

¶ 121       In the course of addressing the owner’s eighth amendment arguments in the
        case before us, the majority spends a considerable part of its analysis discussing
        Commonwealth v. 1997 Chevrolet, 106 A.3d 836 (Pa. Commonw. Ct. 2014)
        (en banc). That discussion, and the discussion of case law from other jurisdictions,
        is undertaken with little, if any, regard for how the standards applied by those
        courts compares to the Zumeriz standard adopted in Illinois. In so doing, it adds
        needless uncertainty to what already is a challenging area of the law. Adding to that
        uncertainty is that the decision in the Pennsylvania case to which the majority gives
        such attention was subsequently appealed to the Pennsylvania Supreme Court.
        While affirming the lower reviewing court’s decision to reverse and remand the
        challenged forfeiture order, the Pennsylvania Supreme Court did so only after
        formulating a different and considerably more elaborate analytical framework.
        Commonwealth v. 1997 Chevrolet & Contents Seized From Young, 160 A.3d 153
        (Pa. 2017). If the lower court’s opinion no longer represents controlling law in



                                               - 36 ­
        Pennsylvania, it is difficult to see why we are following it here. Again, our
        guidepost is and should be the Zumirez standard adopted by this court in 1989 Ford
        F350 Truck, 162 Ill. 2d 78, and consistently followed by the appellate court.


¶ 122                  4. Application of the Zumeriz Factors Mandates That

                                    This Forfeiture Be Reversed

¶ 123                    (a) The Factors and How They Should Be Applied

¶ 124       Under the Zumeriz standard, a court must weigh three factors when determining
        whether an in rem civil forfeiture violates the excessive fines clause of the eighth
        amendment: (1) the inherent gravity of the offense compared with the harshness of
        the penalty, (2) whether the property was an integral part of the commission of the
        crime, and (3) whether the criminal activity involving the defendant property was
        extensive in terms of time and/or spatial use. Id. at 90.

¶ 125       These foregoing factors are not exhaustive. The inherent case-by-case nature of
        these cases “precludes simple cookbook application of any method of review.” Id.
        A trial court may consider additional factors not specifically listed. Id. In addition,
        when applying the first factor, “inherent gravity of the offense compared with the
        harshness of the penalty,” the court must keep in mind that its focus must be on the
        conduct of the person whose property is being confiscated. That is so because the
        eighth amendment is addressed to the punitive aspect of the forfeiture, and the
        property’s owner is the person who will suffer the punishment. Zumirez, 845 F.
        Supp. at 733 n.4; Austin, 509 U.S. at 615; 1996 Saturn, 298 Ill. App. 3d at 471-72.

¶ 126       The trial court did not mention any of these principles when rendering its
        judgment. When the principles are properly applied to the case before us, it is clear
        that the appellate court was correct when it concluded that the forfeiture of the
        owner’s trike violated the excessive fines clause.


¶ 127              (b) Only One of the Zumeriz Factors Clearly Supports the State

¶ 128      Of the three core Zumeriz factors, only the second one, whether the owner’s
        property was an integral part of the commission of the crime, clearly supports the




                                                - 37 ­
        State’s position. Of course, the owner herself was not actually convicted of any
        offense, nor could she have been for the reasons explained earlier in this dissent.
        The only criminal offense here was the husband’s aggravated DUI, which involved
        driving under the influence when his driving privileges had been revoked or
        suspended for having previously driven under the influence. That is the offense on
        which the seizure and forfeiture were predicated, and it is the one relevant to
        assessment of factor two. The owner’s trike was obviously integral to that offense.
        The owner conceded the point in the appellate court, the appellate court so found
        (2016 IL App (5th) 150035, ¶ 38), and there is no basis for us to hold otherwise.

¶ 129       Factor three, whether the criminal activity involving the subject property was
        extensive in terms of time and/or spatial use, adds little to the analysis. This part of
        the test is similar to the second factor in that it touches on the connection between
        the property and the criminal conduct. It looks not only at whether the property was
        an integral part of the criminal activity but whether the “property played an
        extensive or pervasive role in the commission of the crime.” Zumeriz, 845 F. Supp
        at 734; 1996 Saturn, 298 Ill. App. 3d at 473. Again, the only criminal activity in this
        case was the husband’s aggravated DUI. As noted with respect to the second factor,
        the vehicle was unquestionably an essential part of that offense. However, the
        offense itself was extremely limited in duration and scope. While the owner had
        owned the trike for several years prior to the husband’s DUI arrest, there is no
        evidence that the husband had ever used it in an unlawful manner on any other
        occasion, and on the night in question here, his unlawful operation of the trike
        lasted no more than a couple of minutes and covered only six-tenths of a mile. In no
        sense could the criminal activity involving the trike be regarded as extensive.




                                                 - 38 ­
¶ 130                  (c) When the Inherent Gravity of the Offense Is Properly

                   Measured Against the Harshness of the Penalty, the Forfeiture

                                       Cannot Be Sustained

¶ 131                  (i) The Majority Erroneously Focused on the Husband’s

                         Offense Rather Than the Conduct of the Owner

¶ 132       Of much greater significance is that factor one, inherent gravity of the offense
        compared with the harshness of the penalty, strongly favors the owner. As
        explained earlier, for purposes of this prong of the analysis, the focus is on the
        culpability of the owner seeking return of the property. Zumirez, 845 F. Supp. at
        733 n.4. In making its assessment, a court may consider whether the underlying
        offense was violent or nonviolent, whether the offense was completed or merely
        attempted, and whether the conduct was intentional or merely negligent. Courts
        should also consider whether the person seeking return of the property has been
        convicted of the criminal act or acts underlying the forfeiture, whether the person
        was ever charged with any crime, or whether that person was charged but acquitted
        of the act or acts underlying the forfeiture. The gravity of the person’s conduct
        decreases in each of the three situations. Id. at 733.

¶ 133       In this case, the underlying offense, aggravated DUI, was unquestionably
        serious, and driving under the influence often has tragic consequences, but the
        offense was committed by the husband, not by the owner. Where, as here, the
        owner herself was not convicted of the criminal acts underlying the forfeiture,
        courts “must be careful to focus only on the inherent gravity of the offensive
        conduct engaged in by the [owner herself], rather than the inherent gravity of the
        offense or offenses that the government had probable cause to believe were
        committed on the property.” Id.; People v. One 2005 Acura RSX, 2017 IL App (4th)
        160595, ¶ 23. The majority faults the owner’s counsel for vacillating on this point
        during oral argument, but there is no question that this is what the constitutional
        standard requires. We abandon our obligation to insure a just, sound, and uniform
        body of law if we disregard controlling principles simply because of a perceived
        stumble by appellate counsel.




                                               - 39 ­
¶ 134       Not only was the owner herself not charged or convicted of the underlying
        offense, she was not convicted of any offense. Contrary to the majority’s assertions
        to the contrary, there was not even any evidence that she knew or should have
        known that the reason her husband had no license was because of a prior DUI and
        that he would therefore be guilty of aggravated DUI when she acquiesced in his
        drunken demand to drive the trike home.

¶ 135       The State argues that we should hold the owner responsible for her husband’s
        criminal conduct under an accountability theory, but if it had thought there was
        sufficient evidence to charge her under that theory, it could have brought such
        charges. It did not do so. Based on the record before us, that decision is hardly
        surprising. It is difficult to see how such a charge or any criminal charge against the
        owner could have been successfully prosecuted. Indeed, because the owner was
        married to her husband, her conduct in allowing him to drive while under the
        influence could not even subject her to prosecution for a misdemeanor under
        section 6-304.1 of the Vehicle Code (625 ILCS 5/6-304.1 (West 2014)). As a
        matter of law, she committed no wrongdoing.

¶ 136       The most the owner can be said to have done is allow her belligerent husband to
        drive a couple of minutes to their house in the middle of the night even though he
        was drunk and had no license, a trip which he made with no injury to any person or
        property and which she was powerless to stop. By riding along, she avoided a
        possibly unsafe walk home and was able to watch over her property. And to the
        extent her presence may have deterred her husband from heading out into the night,
        alone, “to who knows where,” she may have helped avert actual injury to the
        public, her husband, and her trike.

¶ 137       In the end, perhaps the owner’s real “offense” was simply her poor decision to
        make the Corner Place sports bar the last stop on their otherwise uneventful ride
        through the country. Sports bars, Friday nights, and chronic drunks can be an
        invitation for trouble, even when the wife is there as a designated driver. Bad
        choices, however, are not a crime. The owner committed no crime. Her husband is
        the one who broke the law. His violation was very serious indeed, and he is the one
        who deserved the punishment. Had the State’s central concern here really been with
        cracking down on drunk drivers, a range of punishments was at its disposal,
        including imprisonment. As the majority points out, he could have been sentenced




                                                - 40 ­
        to up to three years in the Department of Corrections and fined up to $25,000. I fail
        to see what legitimate governmental purpose is served by going after his wife’s
        $35,000 vehicle as well. Justice does not need to confiscate her trike to subsidize
        the Robinson Police Department (see 720 ILCS 5/36-2(h) (West 2012)) in order to
        feel served. If the State and the trial court thought harsher punishment was due, the
        husband should not have been given probation.


¶ 138              (ii) The State’s Arguments Regarding Deterrence Are Untenable

¶ 139       In resisting this conclusion, the State suggests that the seizure can be justified,
        in part, because it may advance the remedial purpose of deterring repeat drunk
        drivers and impairing their access to the roadways. The cases it cites for this
        proposition, however, both involved situations where the forfeited vehicles were
        owned by the individuals who committed the drunk driving offenses. See 1998
        Lexus GS 300, 402 Ill. App. 3d 462; One 2000 GMC, 357 Ill. App. 3d 873. Neither
        addressed circumstances like those present here, where the seized vehicle belonged
        to someone else who committed no crime and, until this single, brief incident, had
        apparently been entirely successful, on her own, without State intervention, in
        deterring the actual offender from using her vehicle on public roads in violation of
        the law. Considering the husband’s background, that was surely no small
        achievement. If the trike were returned to the owner, as it should be, it seems highly
        unlikely she would permit a recurrence of these unfortunate events.


¶ 140                  (iii) The Majority’s Attempt to Diminish the Financial

                       Impact of the Forfeiture by Faulting the Owner for Not

                                Making a Better Record Is Meritless

¶ 141       Aside from the fact that the owner is employed as a transit company driver, we
        know little of her personal financial circumstances. For most people in the owner’s
        part of the Illinois, however, the loss of a $35,000 motor vehicle would
        unquestionably be a harsh and heavy burden to bear. The majority attempts to
        undercut this factor by questioning the trike’s value and faulting the owner for not




                                                - 41 ­
        providing evidence of its value as of the time of the forfeiture hearing. Supra ¶ 29.
        My colleagues’ position, however, is wholly without merit.

¶ 142       As noted earlier, the record established that the trike was a 2010 model that had
        been purchased new for $35,000. At no time in the trial court did the State
        challenge this valuation or dispute that the vehicle retained substantial value at the
        time it was seized in the owner’s driveway in 2014. The owner therefore had no
        reason to think that value at the time of forfeiture was at issue, and the State cannot
        now be heard to complain that it was somehow denied an opportunity to show that
        the trike’s value was different than the figure presented by the owner.

¶ 143       The majority’s treatment of the valuation issue must be rejected for another
        reason as well. In the absence of specific evidence of value as of the time of
        forfeiture, the majority effectively treats the vehicle’s value as zero. That is
        patently wrong. The majority can take judicial notice that vehicles generally lose
        value over time, but if it wants to do that here, notwithstanding the lack of a
        challenge to valuation by the State during trial, it should not make wholly
        unsubstantiated assumptions. There are reliable, readily available guides to vehicle
        valuation, including the NADA guide, which has been recognized by Illinois
        courts. See Deverman v. Country Mutual Insurance Co., 56 Ill. App. 3d 122, 123
        (1977). According to that source, the vehicle’s current retail value in the Robinson
        area is in the range of $16,000 to $21,000. NADA Guides, 2010 Harley-Davidson
        FLHTCUTG Triglide Ultra Classic Prices, http://www.nadaguides.com/
        Motorcycles/2010/Harley-Davidson/FLHTCUTG-TRIGLIDE-UL-CLSC-1687cc/
        Values (last visited Feb. 2, 2018). It was surely higher in 2014. And while less than
        the original purchase price, $16,000 to $21,000 remains a considerable sum, whose
        sudden loss would be an extremely harsh burden. There is no hint in the record that
        the trial court thought otherwise. So far as the court provided any explanation for its
        ruling, it seems clear that uncertainty as to the vehicle’s significant value played no
        role in the decision it made.




                                                - 42 ­
¶ 144              B. Citing Inapposite Principles, the Majority’s Analysis Turns the

                       Constitution on Its Head—The Eighth Amendment Requires

                            This Forfeiture to Be Set Aside, Not Upheld

¶ 145       Finally, the majority cannot justify the result it reaches through its repeated
        resort to the principles that we have a duty to construe statutory enactments as
        constitutional whenever possible (supra ¶¶ 12, 32) and that the burden of
        establishing that a statute is unconstitutional lies with the challenger (supra ¶ 30).
        Those principles apply where a statute is being challenged as unconstitutional on its
        face, as People v. Minnis, 2016 IL 119563, and People v. Rizzo, 2016 IL 118599,
        the very cases cited by the majority, demonstrate. This, of course, is not such a case.
        The owner here makes no claim that the governing state statutes are facially
        unconstitutional. So far as the constitution is concerned, her argument is simply
        that, under the particular facts of this case, the seizure and forfeiture of her trike
        cross the line established by the excessive fines clause and must therefore be set
        aside. The cases cited by the majority are therefore inapposite. If the majority were
        truly interested in upholding the principles contained in the United States
        Constitution, the way for it to do so would be by properly following the precedent
        established by the United States Supreme Court and the courts of Illinois and to
        hold, as the appellate court did, that the seizure and forfeiture of the owner’s trike
        contravened the excessive fines clause of the eighth amendment.


¶ 146                                      CONCLUSION

¶ 147       For the foregoing reasons, the owner is entitled to return of her vehicle under
        both state law and the federal constitution. We should order the State to give it back
        to her. Because the majority holds otherwise, I dissent.


¶ 148      JUSTICE BURKE, dissenting:

¶ 149       I agree with Chief Justice Karmeier that the trial court’s ruling sustaining the
        forfeiture of claimant’s motorcycle pursuant to Illinois’s civil forfeiture statute
        (720 ILCS 5/36-1 (West 2012)) was against the manifest weight of the evidence.
        Like Chief Justice Karmeier, I believe that the trial court erred in rejecting




                                                - 43 ­
        claimant’s statutory defense that she did not consent to her husband driving her
        motorcycle. The court improperly equated acquiescence with consent and, in doing
        so, unfairly punished claimant for failing to prevent her husband from driving while
        intoxicated. I therefore dissent from the majority’s holding that claimant conceded
        the issue of consent and that the State established the requisite statutory elements
        for forfeiture.

¶ 150       I also disagree with the majority’s holding that, based on the record before us,
        claimant failed to establish an eighth amendment violation. Unlike a majority of my
        colleagues, I would not address the merits of the eighth amendment claim in the
        absence of a proper factual record. In my view, this court should remand the cause
        to the trial court with directions to hold a hearing on claimant’s eighth amendment
        claim and to make appropriate findings of fact. Accordingly, I respectfully dissent
        from the majority’s ruling rejecting the eighth amendment claim on the merits.

¶ 151       As the majority notes, claimant’s eighth amendment claim is an as-applied
        constitutional challenge. A party raising an as-applied challenge must show that a
        statute violates the constitution as applied to the specific facts and circumstances of
        the challenging party. See People v. Thompson, 2015 IL 118151, ¶ 36. Due to the
        fact-dependent nature of such a claim, “it is paramount that the record be
        sufficiently developed in terms of those facts and circumstances for purposes of
        appellate review.” Id. ¶ 37. The appropriate venue for developing the facts
        necessary for resolution of an as-applied constitutional claim is the trial court, not a
        reviewing court. Id. ¶ 38.

¶ 152       A court’s analysis of an excessive fines challenge involving the forfeiture of a
        vehicle entails different considerations than an analysis of whether the vehicle is
        subject to forfeiture in the first instance. A court considering an eighth amendment
        challenge to an in rem civil forfeiture must weigh “ ‘(i) the inherent gravity of the
        offense compared with the harshness of the penalty; (ii) whether the property was
        an integral part of the commission of the crime; and (iii) whether the criminal
        activity involving the defendant property was extensive in terms of time and/or
        spatial use.’ ” People ex rel. Waller v. 1989 Ford F350 Truck, 162 Ill. 2d 78, 89-90
        (1994) (quoting United States v. Real Property Located at 6625 Zumirez Drive, 845
        F. Supp. 725, 732 (C.D. Cal. 1994)). These factors are not exclusive. Indeed, this




                                                 - 44 ­
        court has explicitly advised trial courts to avoid an inflexible approach and to
        consider other relevant factors on a case-by-case basis. See id. at 90.

¶ 153       It has been held that an excessive fines analysis may include consideration of
        the following facts: whether the claimant was negligent or reckless in allowing the
        illegal use of her property, the extent of the claimant’s involvement in the illegal
        activity, the harm caused by the illegal activity, the duration of the illegal activity,
        the possible penalties that would result from conviction of the underlying offense,
        the nature of the forfeited property, the monetary value of the property, the
        intangible, subjective value of the property, and the hardship to the claimant,
        including the effect of the forfeiture on the claimant’s family and finances. See,
        e.g., Zumirez Drive, 845 F. Supp. at 733; People v. One 2005 Acura RSX, 2017 IL
        App (4th) 160595, ¶¶ 20-32; People v. 1998 Lexus GS 300, 402 Ill. App. 3d 462,
        466-67 (2010); People v. One 2000 GMC, 357 Ill. App. 3d 873, 876-79 (2005);
        People ex rel. Waller v. 1996 Saturn, 298 Ill. App. 3d 464, 470-74 (1998); People v.
        $5,970 United States Currency, 279 Ill. App. 3d 583, 592-93 (1996).

¶ 154        In this case, claimant raised her eighth amendment claim for the first time in a
        motion to reconsider the trial court’s forfeiture order. Claimant’s motion was filed
        after the forfeiture hearing took place. Accordingly, the only issues that were
        litigated at the forfeiture hearing were whether the statutory elements for forfeiture
        were established. No factual record was developed on the eighth amendment
        question, nor did the trial judge make any findings as to the seriousness of
        claimant’s conduct, the harm or lack thereof caused by her conduct, the extent of
        her involvement in her husband’s crime, the monetary value of the motorcycle, the
        intangible value of the motorcycle, or any other relevant eighth amendment factors.
        Nevertheless, the trial court ruled on the merits of her claim, denying claimant
        relief. The court’s written ruling consists of three conclusory sentences and
        contains no analysis or discussion of why the forfeiture was not constitutionally
        excessive as applied to the totality of the circumstances. This was error on the part
        of the trial court.

¶ 155      The majority now compounds the trial court’s error, rejecting claimant’s
        constitutional claim on the merits even though the facts necessary for a proper
        analysis of that claim are completely absent from the record. The majority’s
        decision to reach the merits under these circumstances is a troublesome departure




                                                 - 45 ­
        from our settled precedent. This court has consistently held that a trial court’s
        ruling on the merits of an as-applied constitutional claim in the absence of a
        sufficient factual record is premature. See People v. Minnis, 2016 IL 119563, ¶ 19;
        People v. Rizzo, 2016 IL 118599, ¶ 26; People v. Mosley, 2015 IL 115872,
        ¶¶ 47-48; Lebron v. Gottlieb Memorial Hospital, 237 Ill. 2d 217, 228 (2010); In re
        Parentage of John M., 212 Ill. 2d 253, 268 (2004); see also City of Chicago v.
        Alexander, 2017 IL 120350, ¶¶ 78-92 (Kilbride, J., dissenting). We have also held
        that it is inappropriate for a reviewing court to consider the merits of an as-applied
        constitutional claim where the record is not sufficiently developed. See Minnis,
        2016 IL 119563, ¶ 19 (refusing to consider an as-applied challenge in the absence
        of an evidentiary hearing); Thompson, 2015 IL 118151, ¶¶ 37-39 (holding that the
        defendant forfeited his as-applied challenge by raising it for the first time on appeal
        and refusing to consider the claim based on an insufficient factual record).

¶ 156       In a stark departure from this precedent, the majority is now ruling against
        claimant on the merits of her eighth amendment claim while acknowledging that
        the record lacks the necessary facts for an eighth amendment analysis. The majority
        holds the lack of a record against claimant, concluding that she did not sustain her
        burden of presenting a complete record on appeal. This is fundamentally unfair. In
        essence, the majority is holding that claimant’s as-applied claim, although raised
        for the first time in a motion to reconsider, is timely and should be resolved on the
        merits despite the fact that claimant never had an opportunity to present evidence in
        support of her constitutional claim in the trial court. Holding the lack of a record
        against claimant while rejecting her as-applied challenge on the merits violates
        principles of fundamental fairness and implicates due process concerns. See In re
        Parentage of John M., 212 Ill. 2d at 268 (citing Desnick v. Department of
        Professional Regulation, 171 Ill. 2d 510, 555-56 (1996) (McMorrow, J.,
        dissenting)). 8

¶ 157       Consistent with our settled case law, this court should refrain from addressing
        claimant’s as-applied claim on the merits and remand the cause with directions for
        the trial court to hold an evidentiary hearing on the eighth amendment issue.


            8
             Indeed, even the State recognized in its petition for leave to appeal that more fact finding is
        necessary before a reviewing court can address the eighth amendment claim on the merits.




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¶ 158   For the foregoing reasons, I respectfully dissent.




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