SF 942

as introduced - 80th Legislature (1997 - 1998) Posted on 12/15/2009 12:00am

  1.1                          A bill for an act
  1.2             relating to crimes; broadening the permissible use of 
  1.3             preliminary breath test results obtained in DWI 
  1.4             situations; broadening the scope of the DWI forfeiture 
  1.5             law to include certain implied consent license 
  1.6             revocations; authorizing an administrative forfeiture 
  1.7             process; requiring that the alcohol concentration of a 
  1.8             person who is driving while impaired be placed on the 
  1.9             person's driving record; amending Minnesota Statutes 
  1.10            1996, sections 169.121, subdivision 6; 169.1217; and 
  1.11            171.12, by adding a subdivision. 
  1.12  BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
  1.13     Section 1.  Minnesota Statutes 1996, section 169.121, 
  1.14  subdivision 6, is amended to read: 
  1.15     Subd. 6.  [PRELIMINARY SCREENING TEST.] (a) When a peace 
  1.16  officer has reason to believe from the manner in which a person 
  1.17  is driving, operating, controlling, or acting upon departure 
  1.18  from a motor vehicle, or has driven, operated, or controlled a 
  1.19  motor vehicle, that the driver may be violating or has violated 
  1.20  subdivision 1 or section 169.1211, the officer may require the 
  1.21  driver to provide a sample of the driver's breath for a 
  1.22  preliminary screening test using a device approved by the 
  1.23  commissioner of public safety for this purpose. 
  1.24     (b) The results of this preliminary screening test shall be 
  1.25  used for the purpose of deciding whether an arrest should be 
  1.26  made and whether to require the tests authorized in section 
  1.27  169.123, but shall not be used in any court action except the 
  1.28  following: 
  2.1      (1) to prove that a test was properly required of a person 
  2.2   pursuant to section 169.123, subdivision 2; 
  2.3      (2) to prove the element of probable cause in a criminal 
  2.4   prosecution for a violation of subdivision 1a; 
  2.5      (3) in a civil action arising out of the operation or use 
  2.6   of the motor vehicle; 
  2.7      (3) (4) in an action for license reinstatement under 
  2.8   section 171.19; or 
  2.9      (4) (5) in a prosecution or juvenile court proceeding 
  2.10  concerning a violation of section 340A.503, subdivision 1, 
  2.11  paragraph (a), clause (2). 
  2.12     (c) Following the screening test additional tests may be 
  2.13  required of the driver pursuant to the provisions of section 
  2.14  169.123. 
  2.15     (d) The driver who refuses to furnish a sample of the 
  2.16  driver's breath is subject to the provisions of section 169.123 
  2.17  unless, in compliance with section 169.123, the driver submits 
  2.18  to a blood, breath or urine test to determine the presence or 
  2.19  amount of alcohol, controlled substances, or hazardous 
  2.20  substances.  
  2.21     Sec. 2.  Minnesota Statutes 1996, section 169.1217, is 
  2.22  amended to read: 
  2.23     169.1217 [VEHICLE FORFEITURE FOR COMMISSION OF DESIGNATED 
  2.24  OFFENSES AND LICENSE REVOCATIONS.] 
  2.25     Subdivision 1.  [DEFINITIONS.] As used in this section, the 
  2.26  following terms have the meanings given them: 
  2.27     (a) "Appropriate agency" means a law enforcement agency 
  2.28  that has the authority to make an arrest for a violation of a 
  2.29  designated offense or to require a test under section 169.123. 
  2.30     (b) "Designated license revocation" includes a license 
  2.31  revocation under section 169.123: 
  2.32     (1) within five years of three prior impaired driving 
  2.33  convictions, three prior license revocations, or any combination 
  2.34  of three prior impaired driving convictions and prior license 
  2.35  revocations, based on separate incidents; or 
  2.36     (2) within 15 years of the first of four or more prior 
  3.1   impaired driving convictions, four or more prior license 
  3.2   revocations, or any combination of four or more prior impaired 
  3.3   driving convictions or prior license revocations, based on 
  3.4   separate incidents. 
  3.5      (c) "Designated offense" includes a violation of section 
  3.6   169.121, an ordinance in conformity with it, or 169.129: 
  3.7      (1) within five years of three prior impaired driving 
  3.8   convictions or, three prior license revocations, or any 
  3.9   combination of three prior impaired driving convictions or prior 
  3.10  license revocations, based on separate incidents; 
  3.11     (2) within 15 years of the first of four or more prior 
  3.12  impaired driving convictions or the first of, four or more prior 
  3.13  license revocations, or any combination of four or more prior 
  3.14  impaired driving convictions or prior license revocations, based 
  3.15  on separate incidents; 
  3.16     (3) by a person whose driver's license or driving 
  3.17  privileges have been canceled under section 171.04, subdivision 
  3.18  1, clause (8) (9); or 
  3.19     (4) by a person who is subject to a restriction on the 
  3.20  person's driver's license under section 171.09 which provides 
  3.21  that the person may not use or consume any amount of alcohol or 
  3.22  a controlled substance. 
  3.23     "Designated offense" also includes a violation of section 
  3.24  169.121, subdivision 3, paragraph (c), clause (4): 
  3.25     (1) within five years of two prior impaired driving 
  3.26  convictions or, two prior license revocations, or a prior 
  3.27  impaired driving conviction and a prior license revocation, 
  3.28  based on separate incidents; or 
  3.29     (2) within 15 years of the first of three or more prior 
  3.30  impaired driving convictions or the first of, three or more 
  3.31  prior license revocations, or any combination of three or more 
  3.32  prior impaired driving convictions or prior license revocations, 
  3.33  based on separate incidents. 
  3.34     (c) (d) "Motor vehicle" and "vehicle" have the meaning 
  3.35  given "motor vehicle" in section 169.121, subdivision 11.  The 
  3.36  terms do not include a vehicle which is stolen or taken in 
  4.1   violation of the law. 
  4.2      (d) (e) "Owner" means the registered owner of the motor 
  4.3   vehicle according to records of the department of public safety 
  4.4   and includes a lessee of a motor vehicle if the lease agreement 
  4.5   has a term of 180 days or more. 
  4.6      (e) (f) "Prior impaired driving conviction" has the meaning 
  4.7   given it in section 169.121, subdivision 3.  A prior impaired 
  4.8   driving conviction also includes a prior juvenile adjudication 
  4.9   that would have been a prior impaired driving conviction if 
  4.10  committed by an adult. 
  4.11     (f) (g) "Prior license revocation" has the meaning given it 
  4.12  in section 169.121, subdivision 3. 
  4.13     (g) (h) "Prosecuting authority" means the attorney in the 
  4.14  jurisdiction in which the designated offense occurred who is 
  4.15  responsible for prosecuting violations of a designated offense. 
  4.16     Subd. 2.  [SEIZURE.] A motor vehicle subject to forfeiture 
  4.17  under this section may be seized by the appropriate agency upon 
  4.18  process issued by any court having jurisdiction over the 
  4.19  vehicle. Property may be seized without process if: 
  4.20     (1) the seizure is incident to a lawful arrest or a lawful 
  4.21  search; 
  4.22     (2) the vehicle subject to seizure has been the subject of 
  4.23  a prior judgment in favor of the state in a criminal injunction 
  4.24  or forfeiture proceeding under this section; or 
  4.25     (3) the appropriate agency has probable cause to believe 
  4.26  that the delay occasioned by the necessity to obtain process 
  4.27  would result in the removal or destruction of the vehicle.  If 
  4.28  property is seized without process under clause (3), the 
  4.29  prosecuting authority must institute a forfeiture action under 
  4.30  this section as soon as is reasonably possible. 
  4.31     Subd. 3.  [RIGHT TO POSSESSION VESTS IMMEDIATELY; CUSTODY 
  4.32  OF SEIZED VEHICLE.] All right, title, and interest in a vehicle 
  4.33  subject to forfeiture under this section vests in the 
  4.34  appropriate agency upon commission of the conduct resulting in 
  4.35  the designated offense or designated license revocation giving 
  4.36  rise to the forfeiture.  Any vehicle seized under this section 
  5.1   is not subject to replevin, but is deemed to be in the custody 
  5.2   of the appropriate agency subject to the orders and decrees of 
  5.3   the court having jurisdiction over the forfeiture proceedings.  
  5.4   When a vehicle is so seized, the appropriate agency may: 
  5.5      (1) place the vehicle under seal; 
  5.6      (2) remove the vehicle to a place designated by it; 
  5.7      (3) place a disabling device on the vehicle; and 
  5.8      (4) take other steps reasonable and necessary to secure the 
  5.9   vehicle and prevent waste. 
  5.10     Subd. 4.  [BOND BY OWNER FOR POSSESSION.] If the owner of a 
  5.11  vehicle that has been seized under this section seeks possession 
  5.12  of the vehicle before the forfeiture action is determined, the 
  5.13  owner may, subject to the approval of the appropriate agency, 
  5.14  give security or post bond payable to the appropriate agency in 
  5.15  an amount equal to the retail value of the seized vehicle.  On 
  5.16  posting the security or bond, the seized vehicle may be returned 
  5.17  to the owner only if a disabling device is attached to the 
  5.18  vehicle.  The forfeiture action shall proceed against the 
  5.19  security as if it were the seized vehicle. 
  5.20     Subd. 5.  [EVIDENCE.] Certified copies of court records and 
  5.21  motor vehicle and driver's license records concerning prior 
  5.22  impaired driving convictions and prior license revocations are 
  5.23  admissible as substantive evidence where necessary to prove the 
  5.24  commission of a designated offense or the occurrence of a 
  5.25  designated license revocation. 
  5.26     Subd. 6.  [MOTOR VEHICLES SUBJECT TO FORFEITURE.] A motor 
  5.27  vehicle is subject to forfeiture under this section if it was 
  5.28  used in the commission of a designated offense or was used in 
  5.29  conduct resulting in a designated license revocation. 
  5.30     Subd. 7.  [LIMITATIONS ON FORFEITURE OF MOTOR VEHICLES.] 
  5.31  (a) A vehicle is subject to forfeiture under this section only 
  5.32  if: 
  5.33     (1) the driver is convicted of the designated offense upon 
  5.34  which the forfeiture is based; or 
  5.35     (2) the driver fails to appear with respect to the 
  5.36  designated offense charge in violation of section 609.49; or 
  6.1      (3) the driver's conduct results in a designated license 
  6.2   revocation and the driver either fails to seek administrative or 
  6.3   judicial review of the revocation in a timely manner as required 
  6.4   by section 169.123, subdivision 5b or 5c, or the revocation is 
  6.5   sustained under section 169.123, subdivision 5b or 6. 
  6.6      (b) A vehicle encumbered by a bona fide security interest, 
  6.7   or subject to a lease that has a term of 180 days or more, is 
  6.8   subject to the interest of the secured party or lessor unless 
  6.9   the party or lessor had knowledge of or consented to the act 
  6.10  upon which the forfeiture is based. 
  6.11     (c) Notwithstanding paragraph (b), the secured party's or 
  6.12  lessor's interest in a vehicle is not subject to forfeiture 
  6.13  based solely on the secured party's or lessor's knowledge of the 
  6.14  act or omission upon which the forfeiture is based if the 
  6.15  secured party or lessor took reasonable steps to terminate use 
  6.16  of the vehicle by the offender. 
  6.17     (d) A motor vehicle is subject to forfeiture under this 
  6.18  section only if its owner knew or should have known of the 
  6.19  unlawful use or intended use. 
  6.20     (e) A vehicle subject to a security interest, based upon a 
  6.21  loan or other financing arranged by a financial institution, is 
  6.22  subject to the interest of the financial institution.  
  6.23     Subd. 7a.  [ADMINISTRATIVE FORFEITURE PROCEDURE.] (a) A 
  6.24  motor vehicle used to commit a designated offense or used in 
  6.25  conduct resulting in a designated license revocation is subject 
  6.26  to administrative forfeiture under this subdivision. 
  6.27     (b) When a motor vehicle is seized under subdivision 2, the 
  6.28  appropriate agency shall serve the driver or operator of the 
  6.29  vehicle with a notice of the seizure and intent to forfeit the 
  6.30  vehicle.  Additionally, when a motor vehicle is seized under 
  6.31  subdivision 2, or within a reasonable time after that, all 
  6.32  persons known to have an ownership or possessory interest in the 
  6.33  vehicle must be notified of the seizure and the intent to 
  6.34  forfeit the vehicle.  Notice mailed by certified mail to the 
  6.35  address shown in department of public safety records is 
  6.36  sufficient notice to the registered owner of the vehicle.  
  7.1   Otherwise, notice may be given in the manner provided by law for 
  7.2   service of a summons in a civil action. 
  7.3      (c) The notice must be in writing and contain:  
  7.4      (1) a description of the vehicle seized; 
  7.5      (2) the date of seizure; and 
  7.6      (3) notice of the right to obtain judicial review of the 
  7.7   forfeiture and of the procedure for obtaining that judicial 
  7.8   review, printed in English, Hmong, and Spanish.  Substantially 
  7.9   the following language must appear conspicuously:  "IF YOU DO 
  7.10  NOT DEMAND JUDICIAL REVIEW EXACTLY AS PRESCRIBED IN MINNESOTA 
  7.11  STATUTES, SECTION 169.1217, SUBDIVISION 7a, YOU LOSE THE RIGHT 
  7.12  TO A JUDICIAL DETERMINATION OF THIS FORFEITURE AND YOU LOSE ANY 
  7.13  RIGHT YOU MAY HAVE TO THE ABOVE DESCRIBED PROPERTY.  YOU MAY NOT 
  7.14  HAVE TO PAY THE FILING FEE FOR THE DEMAND IF DETERMINED YOU ARE 
  7.15  UNABLE TO AFFORD THE FEE.  YOU DO NOT HAVE TO PAY THE FILING FEE 
  7.16  IF THE PROPERTY IS WORTH LESS THAN $500 AND YOU FILE YOUR CLAIM 
  7.17  IN CONCILIATION COURT." 
  7.18     (d) Within 60 days following service of a notice of seizure 
  7.19  and forfeiture under this subdivision, a claimant may file a 
  7.20  demand for a judicial determination of the forfeiture.  The 
  7.21  demand must be in the form of a civil complaint and must be 
  7.22  filed with the court administrator in the county in which the 
  7.23  seizure occurred, together with proof of service of a copy of 
  7.24  the complaint on the prosecuting authority having jurisdiction 
  7.25  over the forfeiture, and the standard filing fee for civil 
  7.26  actions unless the petitioner has the right to sue in forma 
  7.27  pauperis under section 563.01.  If the value of the seized 
  7.28  property is less than $500, the claimant may file an action in 
  7.29  conciliation court for recovery of the seized vehicle without 
  7.30  paying the conciliation court filing fee.  No responsive 
  7.31  pleading is required of the prosecuting authority and no court 
  7.32  fees may be charged for the prosecuting authority's appearance 
  7.33  in the matter.  The proceedings are governed by the rules of 
  7.34  civil procedure.  
  7.35     (e) The complaint must be captioned in the name of the 
  7.36  claimant as plaintiff and the seized vehicle as defendant, and 
  8.1   must state with specificity the grounds on which the claimant 
  8.2   alleges the vehicle was improperly seized and the plaintiff's 
  8.3   interest in the vehicle seized.  Notwithstanding any law to the 
  8.4   contrary, an action for the return of a vehicle seized under 
  8.5   this section may not be maintained by or on behalf of any person 
  8.6   who has been served with a notice of seizure and forfeiture 
  8.7   unless the person has complied with this subdivision. 
  8.8      (f) If the claimant makes a timely demand for a judicial 
  8.9   determination under this subdivision, the appropriate agency 
  8.10  must conduct the forfeiture under subdivision 8. 
  8.11     (g) If a demand for judicial determination of an 
  8.12  administrative forfeiture is filed under this subdivision and 
  8.13  the court orders the return of the seized vehicle, the court 
  8.14  shall order that filing fees be reimbursed to the person who 
  8.15  filed the demand.  In addition, the court may order the payment 
  8.16  of reasonable costs, expenses, and attorney fees under section 
  8.17  549.21, subdivision 2.  
  8.18     Subd. 8.  [JUDICIAL FORFEITURE PROCEDURE.] (a) This 
  8.19  subdivision governs judicial determinations of the forfeiture of 
  8.20  a motor vehicle used to commit a designated offense is subject 
  8.21  to forfeiture under this subdivision or used in conduct 
  8.22  resulting in a designated license revocation. 
  8.23     (b) A separate complaint shall be filed against the 
  8.24  vehicle, describing it, and specifying that it was used in the 
  8.25  commission of a designated offense or was used in conduct 
  8.26  resulting in a designated license revocation, and specifying the 
  8.27  time and place of its unlawful use.  If the person charged with 
  8.28  a designated offense appears in court as required and is not 
  8.29  convicted of the offense, the court shall dismiss the complaint 
  8.30  against the vehicle and order the property returned to the 
  8.31  person legally entitled to it.  Likewise, if a designated 
  8.32  license revocation is rescinded under section 169.123, 
  8.33  subdivision 5a or 6, the court shall dismiss the complaint 
  8.34  against the vehicle and order the property returned to the 
  8.35  person legally entitled to it.  If the lawful ownership of the 
  8.36  vehicle used in the commission of a designated offense or used 
  9.1   in conduct resulting in a designated license revocation can be 
  9.2   determined and it is found the owner was not privy to commission 
  9.3   of a designated offense or was not privy to the conduct 
  9.4   resulting in the designated license revocation, the vehicle 
  9.5   shall be returned immediately. 
  9.6      Subd. 9.  [DISPOSITION OF FORFEITED VEHICLES.] (a) If the 
  9.7   vehicle is administratively forfeited under subdivision 7a, or 
  9.8   if the court finds under subdivision 8 that the vehicle is 
  9.9   subject to forfeiture under subdivisions 6 and 7, it shall order 
  9.10  the appropriate agency to shall: 
  9.11     (1) sell the vehicle and distribute the proceeds under 
  9.12  paragraph (b); or 
  9.13     (2) keep the vehicle for official use.  If the agency keeps 
  9.14  a forfeited motor vehicle for official use, it shall make 
  9.15  reasonable efforts to ensure that the motor vehicle is available 
  9.16  for use by the agency's officers who participate in the drug 
  9.17  abuse resistance education program. 
  9.18     (b) The proceeds from the sale of forfeited vehicles, after 
  9.19  payment of seizure, storage, forfeiture, and sale expenses, and 
  9.20  satisfaction of valid liens against the property, must be 
  9.21  forwarded to the treasury of the political subdivision that 
  9.22  employs the appropriate agency responsible for the forfeiture 
  9.23  for use in DWI-related enforcement, training and education.  If 
  9.24  the appropriate agency is an agency of state government, the net 
  9.25  proceeds must be forwarded to the state treasury and credited to 
  9.26  the general fund. 
  9.27     Sec. 3.  Minnesota Statutes 1996, section 171.12, is 
  9.28  amended by adding a subdivision to read: 
  9.29     Subd. 2a.  [ALCOHOL CONCENTRATION ON DRIVING RECORD.] When 
  9.30  a person's driver's license or permit to drive is revoked or 
  9.31  suspended pursuant to section 169.123, or when a person is 
  9.32  convicted for violating section 84.91, 86B.331, 169.121, 
  9.33  169.1211, 169.1218, 169.129, 360.0752, or 609.21, and a test of 
  9.34  the person's breath, urine, or blood has been made to determine 
  9.35  the person's alcohol concentration, the commissioner of public 
  9.36  safety shall record the test results on the person's driving 
 10.1   record pertaining to that violation.  The alcohol concentration 
 10.2   is classified as public data on individuals, as defined in 
 10.3   section 13.02, subdivision 15, and must be kept for the period 
 10.4   of time specified in subdivision 3, clause (2).