                                              First Division
                                              June 14, 2010




No. 1-09-0444


THE PEOPLE OF THE STATE                 )     Appeal from the
OF ILLINOIS,                            )     Circuit Court of
                                        )     Cook County
          Plaintiff-Appellee,           )
                                        )
     v.                                 )     No.08 COFO 00312
                                        )
                                        )
1998 LEXUS GS 300,                      )     Honorable
VIN JT8D68S4W0028350, Defendant         )     Mark J. Ballard
(Derrick B. Reese, Claimant-Appellant). )     Judge Presiding.



     JUSTICE HALL delivered the opinion of the court:

     This is an appeal from a forfeiture order concerning an

automobile.   On May 22, 2008, at about 3:10 p.m., claimant-

appellant Derrick B. Reese was arrested for driving with a

license that had been revoked because of a prior out-of-state

driving under the influence of alcohol (DUI) conviction.   He was

issued traffic citations for driving with a revoked license and

for having tinted windows and a tinted rear license plate cover.

     Claimant's vehicle, a 1998 Lexus GS 300, was seized and

subsequently forfeited to the county following a civil in rem

forfeiture proceeding under section 36-1 of the Criminal Code of

1961 (Criminal Code) (720 ILCS 5/36-1 (West 2002)).   This appeal

arises out of that proceeding.   For the reason that follow, we

affirm.

     Claimant's vehicle was seized pursuant to a forfeiture
No. 1-09-0444

provision contained in section 36-1 of the Criminal Code, which

provides in relevant part:

            "Any vessel, vehicle or aircraft used with the

     knowledge and consent of the owner in the commission of, or

     in the attempt to commit    ***    an offense described in

     subsection (g) of Section 6-303 of the Illinois Vehicle

     Code[ ] may be seized and delivered forthwith to the sheriff

     of the county of seizure." 720 ILCS 5/36-1 (West 2002).

     Subsection (g) of section 6-303 of the Illinois Vehicle Code

(Vehicle Code) provides in relevant part:

            "The motor vehicle used in violation of this Section is

     subject to seizure and forfeiture as provided in Section 36-

     1 and 36-21 of the Criminal Code of 1961 if the person's

     driving privilege was revoked or suspended as a result of a

     violation listed in paragraph (1) *** of subsection (c) of

     this Section." 625 ILCS 5/6-303(g) (West 2004).

     Paragraph (1) of subsection (c) of section 6-303 of the

Vehicle Code refers to section 11-501 of the Vehicle Code (625

ILCS 5/11-501 (West 2002)), which prohibits driving while under

the influence of alcohol. 625 ILCS 5/6-303(c)(1) (West 2004).



     1
         Section 36-2 of the Criminal Code authorizes the State's

Attorney of the county in which the seizure occurred to file a

complaint seeking forfeiture of the seized vehicle. 720 ILCS

5/36-2 (West 2002).

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No. 1-09-0444

     Claimant first contends on appeal that discretionary

language and terms such as "subject to seizure and forfeiture"

found in subsection (g) of section 6-303 of the Vehicle Code

require trial courts to consider mitigating evidence prior to

awarding forfeiture of a subject vehicle.     Claimant maintains

that the legislative intent behind the vehicle forfeiture

statutes is aimed at drivers who fail to stop using alcohol or

controlled drugs or drivers who fail to stop committing crimes

while under the influence of these substances.

     Claimant argues that the necessary nexus for a valid

forfeiture is an alcohol- or drug-impaired driver, driving on a

revoked license.   In this regard, claimant contends that in

awarding forfeiture of his vehicle, the trial court erroneously

ignored mitigating evidence of his alcohol rehabilitation and

evidence that he was not driving under the influence of alcohol

when he was stopped and arrested.     Claimant also contends the

trial court failed to consider that he had completed the

statutory requirements both in Illinois and Georgia to have his

license reinstated.   We must reject claimant's contentions.

     First, as a factual matter, the record shows that the trial

court considered mitigating factors and still concluded that

forfeiture was warranted.   Second, there is nothing in the

statutes or case law which requires a trial court to consider

mitigating evidence in determining the propriety of a vehicle

forfeiture.


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     A forfeiture action is civil in nature and is an in rem

proceeding against the item used in the commission of a crime.

People ex rel. Carey v. 1976 Chevrolet Van, 72 Ill. App. 3d 758,

760, 391 N.E.2d 137 (1979); People v. 1991 Chevrolet Camaro, 251

Ill. App. 3d 382, 386, 620 N.E.2d 563 (1993).   A trial 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. One 1999 Lexus, 367 Ill. App. 3d 687, 689,

855 N.E.2d 194 (2006).

     The legislative policy behind statutes allowing the

forfeiture of vehicles is to repress certain types of crimes when

such vehicles are used in their commission. People v. 1995 Ford

Van, 348 Ill. App. 3d 303, 309, 809 N.E.2d 811 (2004); 1976

Chevrolet Van, 72 Ill. App. 3d at 760.   As an overview, we

observe that our courts have determined that driving with a

revoked license is treated by the legislature as one of the most

serious driving offenses one can commit absent bodily injury when

the underlying revocation stems from a DUI conviction. Reynolds

v. Edgar, 188 Ill. App. 3d 71, 75, 544 N.E.2d 77 (1989).

     Contrary to claimant's assertions, vehicle forfeiture

statutes are not aimed at preventing individuals from drinking

alcohol or using controlled substances, but rather are aimed

specifically at keeping alcohol- or drug-impaired drivers off the

roadways. See, e.g., People v. One 2000 GMC, 357 Ill. App. 3d

873, 877-78, 829 N.E.2d 437 (2005) (explaining that the vehicle


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forfeiture law " 'reflects the concern of the legislature over

the threat to the public imposed by drivers impaired by alcohol

or other drugs and serves to deter and remove problem drivers

from the highways, thus making the highways safer' "), quoting

People v. Bailey, 243 Ill. App. 3d 871, 873, 612 N.E.2d 960

(1993).

     Our legislature has determined that one of the best ways to

achieve the objective of keeping alcohol and drug impaired

drivers off the roadways is to subject their vehicles to

forfeiture if they are caught driving with a license that has

been revoked or suspended because of a previous DUI conviction.

See, e.g., One 2000 GMC, 357 Ill. App. 3d at 877-78 (" '[W]hen

implemented pursuant to a carefully drafted statute, civil

forfeiture of automobiles can be an extremely effective tool in

the battle against drunk driving' "), quoting County of Nassau v.

Canavan, 1 N.Y. 3d 134, 138, 802 N.E.2d 616, 620, 770 N.Y.S.2d

277, 281 (2003).

     Based on the foregoing, we find that the trial court's

ruling ordering the forfeiture of claimant's vehicle was not

against the manifest weight of the evidence.

     Claimant next contends that the forfeiture of his vehicle

violated the excessive fines clause of the eighth amendment to

the United States Constitution.     The eighth amendment provides

that "[e]xcessive bail shall not be required, nor excessive fines

imposed, nor cruel and unusual punishments inflicted." U.S.


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No. 1-09-0444

Const., amend. VIII.

     A fine is considered excessive " ' if it is grossly

disproportional to the gravity of a defendant's offense. ' "

Express Valet, Inc. v. City of Chicago, 373 Ill. App. 3d 838,

856, 869 N.E.2d 964 (2007), quoting United States v. Bajakajian,

524 U.S. 321, 334, 118 S. Ct. 2028, 2036, 141 L. Ed. 2d 314, 329

(1998).   "Application of the constitutional standard for

determining excessiveness to a given set of facts presents a

question of law subject to de novo review." One 2000 GMC, 357

Ill. App. 3d at 875.

     Our supreme court has adopted the following nonexhaustive

list of three factors to be considered in assessing whether a

forfeiture constitutes an excessive fine: (1) the inherent

gravity of the offense compared to 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

property was extensive in terms of time and/or spatial use.

People ex rel. Waller v. 1989 Ford F350 Truck, 162 Ill. 2d 78,

90, 642 N.E.2d 460 (1994).

     Applying these factors, we find that the forfeiture of

claimant's vehicle was not grossly disproportionate to his

offense of driving on a license that had been revoked as a result

of a prior DUI conviction.

     The first factor concerns the inherent gravity of the

offense compared to the harshness of the penalty.   In regard to


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No. 1-09-0444

the inherent gravity of the offense, our courts have determined

that when the underlying revocation of a license stems from a DUI

conviction, as in this case, driving with the revoked license is

then treated by the legislature as one of the most serious

driving offenses one can commit absent bodily injury. Reynolds,

188 Ill. App. 3d at 75.

     In evaluating the harshness of the penalty (forfeiture),

courts agree that forfeiture of personal property is less harsh

than forfeiture of real property. One 2000 GMC, 357 Ill. App. 3d

at 876; People v. $5,970 United States Currency, 279 Ill. App. 3d

583, 592, 664 N.E.2d 1115 (1996).     Moreover, in conducting this

evaluation, it is appropriate to consider the forfeiture

statutes' remedial goals of deterring drunk drivers and removing

them from the roadways. One 2000 GMC, 357 Ill. App. 3d at 878.

     The record indicates that claimant's vehicle was worth

$9,000.   In One 2000 GMC, the reviewing court determined that the

forfeiture of a $28,000 vehicle was not grossly disproportionate

to the claimant's offense of driving on a license that had been

previously summarily suspended under the implied consent statute

(625 ILCS 5/11-501.1 (West 2002)). One 2000 GMC, 357 Ill. App. 3d

at 878.

     In light of the inherent gravity of claimant's offense and

the remedial purposes of the forfeiture statutes, and given the

fact that the reviewing court in One 2000 GMC upheld a much

greater forfeiture under similar circumstances, we find that the


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No. 1-09-0444

forfeiture of claimant's vehicle was not grossly disproportionate

to the gravity of the offense as to violate the excessive fines

clause.

     Claimant next raises for the first time in his reply brief

the argument that the forfeiture provisions of the Criminal Code

(720 ILCS 5/36-1 et seq. (West 2002)) are unconstitutional

because they do not provide for a postseizure/preforfeiture

probable cause hearing.   This argument was not raised in

claimant's initial brief and is therefore deemed waived under

Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)).

     Pursuant to Supreme Court Rule 341(h)(7), points not argued

in an initial brief are waived and "shall not be raised in the

reply brief, in oral argument, or on petition for rehearing."

"The mere fact that attempted arguments raise constitutional

questions does not prevent the otherwise proper application of

the waiver rule." Ming Kow Hah v. Stackler, 66 Ill. App. 3d 947,

955, 383 N.E.2d 1264 (1978).

     In any event, claimant's argument has recently been

addressed and rejected in People v. 1998 Ford Explorer, Nos. 2-

08-1024, 2-08-1025, 2-08-1027 (March 31, 2010), where the

reviewing court cited to United States v. Eight Thousand Eight

Hundred & Fifty Dollars ($8,850) in United States Currency, 461

U.S. 555, 562 n.12, 103 S. Ct. 2005, 2011 n.12, 76 L. Ed. 2d 143,

150 n.12 (1983), for the proposition that the government may

seize property subject to forfeiture without a preseizure


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No. 1-09-0444

hearing.

     Accordingly, for the reasons set forth above, the judgment

of the circuit court of Cook County is affirmed.

     Affirmed.

     PATTI and LAMPKIN, JJ., concur.




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