Rule 23 order filed              2016 IL App (5th) 150338
September 19, 2016;
Motion to publish granted             NO. 5-15-0338
October 26, 2016.
                                          IN THE

                            APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
________________________________________________________________________

THE PEOPLE ex rel. BRENDAN F. KELLY, )      Appeal from the
State's Attorney of St. Clair County,   )   Circuit Court of
                                        )   St. Clair County.
        Plaintiff-Appellant,            )
                                        )
v.                                      )   Nos. 15-FA-047 & 15-MR-179
                                        )
ONE 2008 CHEVROLET TRAILBLAZER,         )
                                        )
        Defendant                       )
                                        )   Honorable
(Latoya Radford and Nathaniel D. Dukes, )   Robert P. LeChien,
Claimants-Appellees).                   )   Judge, presiding.
________________________________________________________________________

      PRESIDING JUSTICE SCHWARM delivered the judgment of the court, with
opinion.
      Justices Goldenhersh and Moore concurred in the judgment and opinion.

                                     OPINION

¶1     On May 17, 2015, following a traffic stop in Fairview Heights, claimant Nathaniel

D. Dukes was arrested and charged with driving under the influence of alcohol (DUI)

(625 ILCS 5/11-501 (West 2014)) and driving while license revoked (DWLR) (625 ILCS

5/6-303 (West 2014)). The registered owner of the 2008 Chevrolet Trailblazer (VIN

1GNET13H582256890) that Dukes had been driving at the time of his arrest was his live-

in girlfriend, claimant Latoya Radford.
                                           1
¶2     On May 18, 2015, when interviewed by a detective with the Fairview Heights

police department, Dukes stated, among other things, that Radford allowed him to use her

Trailblazer "whenever he need[ed] it" and that the vehicle essentially belonged to "both

of them." Dukes explained that he could not title a vehicle in his own name because his

driver's license had been revoked.

¶3     On May 21, 2015, the State commenced a forfeiture action against the Trailblazer

pursuant to article 36 of the Criminal Code of 2012 (720 ILCS 5/36-1 et seq. (West

2014)). Specifically, pursuant to section 36-1.5, the State filed a request that the circuit

court hold a preliminary review hearing to determine whether there was probable cause

that the vehicle "may be subject to forfeiture." 720 ILCS 5/36-1.5 (West 2014). Stating

that Dukes was the "driver" of the Trailblazer and that Radford was the "registered

owner," the request referred to both as "the known claimants."

¶4     An affidavit in support of forfeiture was attached as an exhibit to the State's

request for a preliminary review hearing. The affidavit set forth a detailed account of the

events that led to Dukes's arrest and stated, among other things, that Dukes had been

observed driving the Trailblazer erratically, that he had exhibited slurred speech and

smelled of alcohol when the vehicle was stopped, and that a subsequent breath test

revealed that his blood alcohol concentration was nearly twice the legal limit of 0.08.

See 625 ILCS 5/11-501(a)(1) (West 2014). The affidavit further stated that Dukes had

been arrested or convicted for DUI on five prior occasions since 1997 and that his driver's

license was both suspended and revoked. The affidavit identified the Trailblazer by its

vehicle identification number and its license plate number.         The affidavit did not
                                          2
reference Radford at all, nor did it reference the statements that Dukes had made when

interviewed on May 18, 2015.

¶5     On June 2, 2015, the cause proceeded to a preliminary review hearing.              A

transcript of the hearing is not included in the record on appeal, but the record indicates

that the aforementioned affidavit was the only evidence presented for the circuit court's

consideration. See 720 ILCS 5/36-1.5(b) (West 2014) ("The rules of evidence shall not

apply to any proceeding conducted under this Section.").        At the conclusion of the

hearing, the circuit court entered a written order finding that the State had failed to

establish probable cause that Radford knew or should have known that Dukes would be

driving her Trailblazer on the date that it was seized. The court noted that its finding was

based on "a lack of evidence." The court therefore determined that the State had failed to

establish probable cause for purposes of section 36-1.5 and ordered that the Trailblazer be

returned to Radford.

¶6     On June 30, 2015, the State filed a motion asking that the circuit court reconsider

its June 2, 2015, order. The motion alleged that the affidavit in support of forfeiture

overwhelmingly supported a finding of probable cause that the Trailblazer "may" be

subject to forfeiture and that "the elements of 'knowledge and consent' are not part of the

legal standard for a preliminary review determination." The State thus requested that the

court enter an order finding probable cause so that the matter could proceed pursuant to

section 36-2.

¶7     On August 4, 2015, the circuit court denied the State's motion to reconsider

following a hearing. On August 20, 2015, the State filed its notice of appeal.
                                           3
¶8                                    DISCUSSION

¶9     Asserting that the Trailblazer was subject to forfeiture based solely on the fact that

Dukes used it in the commission of the offenses of DUI and DWLR, the State argues that

the circuit court improperly determined that the State was required to preliminarily prove

that Radford knew or should have known that Dukes would be driving the vehicle on the

date that it was seized. The State further argues that the circuit court's finding that the

State failed to establish probable cause is against the manifest weight of the evidence.

We agree.

¶ 10   An article 36 forfeiture proceeding is a civil proceeding in rem. People v. Dugan,

109 Ill. 2d 8, 17 (1985). The State therefore brings its action against the seized property

"pursuant to the legal fiction that the property itself is guilty of facilitating a crime."

People v. A Parcel of Property Commonly Known as 1945 North 31st Street, Decatur,

Macon County, Illinois, 217 Ill. 2d 481, 497 (2005).

¶ 11   The legislative policy underlying statutes allowing vehicle forfeitures is to repress

crimes that are facilitated by vehicles. People v. 1995 Ford Van, 348 Ill. App. 3d 303,

309 (2004). Courts have also noted that repeat DUI offenders and individuals who would

commit the offense while their licenses are revoked or suspended are particularly

concerning. See People v. One 2000 GMC, 357 Ill. App. 3d 873, 877-78 (2005); Toia v.

People, 333 Ill. App. 3d 523, 530-31 (2002).

¶ 12   The circuit court's findings in a forfeiture proceeding will not be disturbed on

appeal unless they are against the manifest weight of the evidence. People v. 1998 Lexus

GS 300, 402 Ill. App. 3d 462, 465 (2010). A finding is against the manifest weight of the
                                           4
evidence where "the opposite conclusion is clearly evident." Best v. Best, 223 Ill. 2d 342,

350 (2006). Issues involving the interpretation of a forfeiture statute, however, are

reviewed de novo. People ex rel. Nerheim v. 2005 Black Chevrolet Corvette, 2015 IL

App (2d) 131267, ¶ 19.

¶ 13   Section 36-1 provides that any vehicle used with the knowledge and consent of the

owner in the commission of an enumerated offense may be seized and impounded by the

arresting law enforcement agency. 720 ILCS 5/36-1(a) (West 2014). Section 36-1's list

of offenses is fairly extensive and includes crimes such as aggravated kidnapping, armed

robbery, arson, burglary, DUI, DWLR, first degree murder, predatory criminal sexual

assault of a child, and stalking. Id. A vehicle is deemed to have been "used in the

commission of an offense described in Section 36-1" (720 ILCS 5/36-2(d) (West 2014))

if the offense was "in some way facilitated by the utilization of the vehicle" (People ex

rel. Mihm v. Miller, 89 Ill. App. 3d 148, 149 (1980); see also People v. Adams, 318 Ill.

App. 3d 539, 544 (2001)).

¶ 14   Section 36-1.5 provides that "[w]ithin 14 days of the seizure, the State's Attorney

in the county in which the seizure occurred shall seek a preliminary determination from

the circuit court as to whether there is probable cause that the property may be subject to

forfeiture." 720 ILCS 5/36-1.5(a) (West 2014). "Upon making a finding of probable

cause as required under [section 36-1.5], the circuit court shall order the property subject

to the provisions of the applicable forfeiture Act held until the conclusion of any

forfeiture proceeding." 720 ILCS 5/36-1.5(e) (West 2014). Notably, section 36-1.5 does

not require that a vehicle owner be given notice of the preliminary review hearing.
                                             5
¶ 15   Section 36-2 gives the State's Attorney of the county in which the seizure occurred

the discretion to remit a forfeiture "if he or she finds that the forfeiture was incurred

without willful negligence or without any intention on the part of the owner *** to

violate the law." 720 ILCS 5/36-2(a) (West 2014). Section 36-2 directs that if the State's

Attorney does not remit the forfeiture, then he or she "shall forthwith bring an action for

forfeiture" and give notice to the owner of record. 720 ILCS 5/36-2(b) (West 2014). The

owner may thereafter file a verified answer to the State's complaint and "may appear at

the hearing on the action for forfeiture." 720 ILCS 5/36-2(c) (West 2014).

¶ 16   At the hearing on the State's action for forfeiture, the State has the burden of

proving by a preponderance of the evidence that the vehicle "was used in the commission

of an offense described in Section 36-1." 720 ILCS 5/36-2(d) (West 2014). The burden

then shifts to the owner to show by a preponderance of the evidence that he or she did not

know, and did not have reason to know, that the vehicle was to be used in the

commission of such an offense or that any of the exceptions set forth in section 36-3 are

applicable. 720 ILCS 5/36-2(e) (West 2014); Nerheim, 2015 IL App (2d) 131267, ¶ 18.

Implicitly, the State could then present evidence to rebut the owner's defense. See

Barrett v. Fonorow, 343 Ill. App. 3d 1184, 1189 (2003); People v. Gutierrez, 239 Ill.

App. 3d 536, 541 (1992).

¶ 17   If the State fails to meet its burden of establishing that the seized vehicle was used

in the commission of an enumerated offense, then the court must order that the vehicle be

released to its owner. 720 ILCS 5/36-2(f) (West 2014). If the State meets its burden,

then the court "may order" that the vehicle be forfeited. Id.
                                             6
¶ 18   If the owner shows that he or she did not know, and did not have reason to know,

that the vehicle was to be used in the commission of the offense, then the court may order

that the vehicle be returned. Id.; People v. One 1998 GMC, 2011 IL 110236, ¶ 17.

Article 36 does not, however, provide for the "automatic return" of the vehicle if the

owner makes such a showing. One 1998 GMC, 2011 IL 110236, ¶ 17. "Instead, the

statute makes such a return discretionary with the court." Id. Thus, to the extent that

article 36 provides for an innocent-owner exception that can be raised as an affirmative

defense (see People ex rel. Foreman v. Estate of Kawa, 152 Ill. App. 3d 792, 800

(1987)), the exception is not a "pure innocent-owner exception" (One 1998 GMC, 2011

IL 110236, ¶ 45). We also note that such exceptions are not constitutionally required.

One 1998 GMC, 2011 IL 110236, ¶¶ 43-47; McGrath v. City of Kankakee, 2016 IL App

(3d) 140523, ¶ 23; Jackson v. City of Chicago, 2012 IL App (1st) 111044, ¶¶ 36-41.

¶ 19   Here, we agree with the State's contention that by requiring it to show probable

cause that Radford knew or should have known that Dukes would be driving her

Trailblazer on the date that it was seized, the circuit court improperly elevated the

applicable burden of proof and essentially required the State to preemptively disprove an

affirmative defense that, even if raised and accepted, would not make the return of a

seized vehicle "automatic." One 1998 GMC, 2011 IL 110236, ¶ 17. We also note that

section 36-1.5 went into effect on January 1, 2012 (see Pub. Act 97-544, § 5 (eff. Jan. 1,

2012) (adding 720 ILCS 5/36-1.5)) and that prior to its enactment, article 36 was deemed

constitutional despite its lack of a provision providing for a prompt probable cause

hearing (see One 1998 GMC, 2011 IL 110236, ¶¶ 48, 69, 71). Moreover, it has long been
                                        7
the law that the State's burden at a forfeiture proceeding is to prove by a preponderance of

the evidence that the seized vehicle was used in the commission of an offense described

in section 36-1. See, e.g., Dugan, 109 Ill. 2d at 17; People ex rel. Hanrahan v. One 1965

Oldsmobile, 52 Ill. 2d 37, 41-44 (1972), rev'd on other grounds by Robinson v.

Hanrahan, 409 U.S. 38 (1972) (per curiam); People ex rel. Ward v. 1963 Cadillac

Coupe, 38 Ill. 2d 344, 346-47 (1967). We cannot conclude that when the legislature

enacted section 36-1.5, it intended to alter the State's well-established burden by

requiring proof of facts which prior thereto, the State had never been required to prove

and might only have been required to rebut. See People v. Jones, 214 Ill. 2d 187, 199

(2005) ("In general, a statute will not be construed to change the settled law of the state

unless its terms clearly require such a construction.").

¶ 20   Additionally, by its terms, section 36-1.5 does not contemplate that issues

regarding a vehicle owner's consent and knowledge be considered at the preliminary

hearing stage. Section 36-1.5(d) states that the circuit court "may accept *** as sufficient

evidence of probable cause" a finding of probable cause made at a preliminary hearing

following the filing of a complaint or information charging a related criminal offense or

following the return of indictment by a grand jury charging the related criminal offense.

720 ILCS 5/36-1.5(d) (West 2014). A probable cause determination on a related criminal

offense would not require proof of vehicle ownership, however, or "necessarily concern

the identity of the vehicle." One 1998 GMC, 2011 IL 110236, ¶ 48. This would seem

especially so where the underlying offense is a crime such as arson or first degree

murder. The probable cause determination would rather focus on whether there was
                                       8
probable cause that the criminal defendant committed the offense. Id. If pursuant to

section 36-1.5, the court "may accept" a probable cause determination made with respect

to the related criminal offense "as sufficient evidence of probable cause" that the vehicle

"may be subject to forfeiture" (720 ILCS 5/36-1.5(a), (d) (West 2014)), then in such

instances, the State would ostensibly need only identify the seized vehicle as having been

used in the commission of the offense, irrespective of the owner's knowledge and

consent.

¶ 21   In any event, we conclude that to establish "probable cause that the property may

be subject to forfeiture" (720 ILCS 5/36-1.5(a) (West 2014)), the State is only required to

show that there is probable cause that the property may have been "used in the

commission of an offense described in Section 36-1" (720 ILCS 5/36-2(d) (West 2014)).

To pass preliminary review, the State is not required to allege or prove facts tending to

disprove an affirmative defense that an owner might subsequently raise. The circuit court

thus erred in determining that pursuant to section 36-1.5, the State had to show probable

cause that Dukes had used the Trailblazer with Radford's knowledge and consent.

¶ 22   Lastly, the affidavit in support of forfeiture that the State presented at the

preliminary review hearing specifically identified the Trailblazer as the vehicle that

Dukes had been driving at the time of his arrest. The affidavit further set forth facts that

clearly supported a finding of probable cause that Dukes had used the vehicle in the

commission of the offenses of DUI and DWLR. See One 1998 GMC, 2011 IL 110236,

¶ 68; People v. Ernst, 311 Ill. App. 3d 672, 679 (2000); People v. Wingren, 167 Ill. App.

3d 313, 320-21 (1988).       The State therefore established probable cause that the
                                          9
Trailblazer may be subject to forfeiture.        We thus find that the circuit court's

determination that the State had failed to establish probable cause for purposes of section

36-1.5 is against the manifest weight of the evidence.

¶ 23                                 CONCLUSION

¶ 24   For the foregoing reasons, we hereby reverse the judgment of the circuit court and

remand for further proceedings pursuant to section 36-2.



¶ 25   Reversed and remanded.




                                            10
                                        2016 IL App (5th) 150338

                                              NO. 5-15-0338

                                                  IN THE

                                    APPELLATE COURT OF ILLINOIS

                                      FIFTH DISTRICT
_____________________________________________________________________________________

THE PEOPLE ex rel. BRENDAN F. KELLY,          )     Appeal from the
State's Attorney of St. Clair County,         )     Circuit Court of
                                              )     St. Clair County.
        Plaintiff-Appellant,                  )
                                              )
v.                                            )     Nos. 15-FA-047 & 15-MR-179
                                              )
ONE 2008 CHEVROLET TRAILBLAZER,               )
                                              )
        Defendant                             )
                                              )     Honorable
(Latoya Radford and Nathaniel D. Dukes,       )     Robert P. LeChien,
Claimants-Appellees).                         )     Judge, presiding.
_____________________________________________________________________________________

Rule 23 Order Filed:             September 19, 2016
Motion to Publish Granted:       October 26, 2016
Opinion Filed:                   October 26, 2016
_____________________________________________________________________________________

Justices:              Honorable S. Gene Schwarm, P.J.

                    Honorable Richard P. Goldenhersh, J., and
                    Honorable James R. Moore, J.,
                    Concur
_____________________________________________________________________________________

Attorneys           Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public Square,
for                 Belleville, IL 62220; Patrick Delfino, Director, David J. Robinson, Acting
Appellant           Deputy Director, Kelly M. Stacey, Staff Attorney, Office of the State's Attorneys
                    Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2,
                    Mt. Vernon, IL 62864
_____________________________________________________________________________________

Attorneys (pro se)  Latoya Radford, Nathaniel D. Dukes, 912 Pacific Crossing Drive, O'Fallon,
for                 IL 62269
Appellee
_____________________________________________________________________________________
