What’s On Their Minds: Does Ohio’s Criminal Vehicle Forfeiture Statute Constitute an Excessive Fine? State of Ohio v. James O’Malley
On May 12, 2021, the Supreme Court of Ohio heard oral argument in State of Ohio v. James O’Malley, 2020-0859. At issue in this case is whether Ohio’s criminal vehicle forfeiture statute constitutes an excessive fine in violation of the Eighth Amendment to the U.S. Constitution or Article I Section 9 of the Ohio Constitution. Also at issue is whether the statute infringes the equal protection guarantee under the U.S. and Ohio Constitutions.
Case Background
On July 4, 2018, James O’Malley was stopped by an Ohio police officer for driving outside the marked lines. Suspecting O’Malley was intoxicated, the officer conducted a field sobriety test. Ultimately, O’Malley was charged, among other things, with one count of operating a vehicle under the influence (“OVI”). O’Malley entered a plea of no contest. The trial court found O’Malley guilty of violating Ohio’s OVI statute as codified in R.C. 4511.19.
This was O’Malley’s third OVI conviction within ten years. R.C. 4511.19(G) requires that courts impose certain penalties against offenders who have been convicted of three OVIs within a ten-year period. Pertinent here, R.C. 4511.19(G)(1)(c)(v) states that if the vehicle used in the OVI offense is registered in the name of the offender, the court must conduct a mandatory criminal forfeiture proceeding. Pursuant to that statute, O’Malley’s truck was seized, and forfeiture proceedings were begun in accordance with R.C. 4503.234.
According to O’Malley, his 2014 Chevrolet Silverado truck had an approximate value of $31,000. At the forfeiture hearing, O’Malley testified that due to the loss of his truck, he had lost his job, was unable to find work without a means of transportation, and had to move in with his grandmother, who was supporting him. While the truck was registered and titled in O’Malley’s name, he had received it from his grandparents in exchange for a $5,000 down payment. The truck was O’Malley’s only personal asset, and he argued the truck’s value greatly exceeded the maximum fine in his case.
The trial court rejected O’Malley’s arguments and ordered forfeiture of the truck. First, the judge noted that O’Malley had no notable expenses or obligations as he had enjoyed a stable standard of living since the OVI offense, even without employment. Second, O’Malley’s investment in the truck was only $5,000 and because he was subject to $2,750 in OVI fines, this fine-to-forfeiture ratio was low enough not to constitute an excessive fine. Third, any financial hardship to O’Malley from the forfeiture was comparatively low because he was single, lived with his grandmother, and had no family to support. O’Malley timely appealed.
The Appeal
In a 2-1 decision in which one judge concurred in judgment only and one dissented in part, the Ninth District Court of Appeals affirmed the trial court’s forfeiture order.
The lead opinion found that the trial court did consider O’Malley’s financial position in determining whether forfeiture of his truck constituted an excessive fine. First, the trial court considered the fine-to-forfeiture ratio in O’Malley’s case as compared to other similar cases. Second, the trial court did discuss the hardship that forfeiture would impose on O’Malley, given his employment status and living arrangements. After balancing these proportionality factors, the trial court properly concluded the forfeiture was not excessive.
The lead opinion also found O’Malley’s equal protection arguments to be without merit. While R.C. 4511.19 does impose a higher forfeiture punishment for offenses committed in vehicles registered in the offender’s name, R.C. 4511.19 does not make a distinction based on a suspect class. Under an equal protection analysis, a non-suspect classification is subject only to the highly deferential rational basis review, which is satisfied here. First, R.C. 4511.19 embodies the State’s valid, legitimate interest in preventing impaired driving. And second, the narrow arguments O’Malley made before the trial court, which he is limited to on appeal, fail to show how the forfeiture distinctions made in R.C. 4511.19 are not rationally related to deterring impaired driving.
The partial concurrence disagreed with the lead opinion’s finding that O’Malley failed to develop his argument that the forfeiture constituted an unconstitutionally excessive fine. But the concurring judge agreed that on the merits the fine was not excessive, given that O’Malley’s investment in the truck was only $5,000, less than three times the maximum fine for the offense. She also agreed that the equal protection argument was without merit.
The dissenting judge, dissenting on the Eighth Amendment ground, would find that the trial court failed to consider the drastic impact that forfeiture of O’Malley’s truck would have on his personal financial condition as an unemployed single person living with his grandmother.
Read the oral argument preview of the case here.
Key Precedent
*U.S. Constitution, Amendment VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”)
*U.S. Constitution, Amendment XIV, Section 1 (“No State shall […] deny to any person within its jurisdiction the equal protection of the laws.”)
*Ohio Constitution, Article I, Section 2 (“[a]ll political power is inherent in the people. Government is instituted for their equal protection and benefit.”)
*Ohio Constitution, Article I, Section 9 (“Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.”)
R.C. 4511.19(G)(1)(c)(v) (“an offender who, within ten years of the offense, previously had been convicted of or pleaded guilty to two [OVI] violations or other equivalent offenses is guilty of a misdemeanor. The court shall sentence the offender to all of the following: (v) ‘In all cases, if the vehicle is registered in the offender’s name, criminal forfeiture of the vehicle involved in the offense in accordance with section 4503.234 of the Revised Code.’”)
*R.C. 4503.324 (Ohio’s criminal forfeiture of vehicle statute. Details the procedures by which courts must conduct forfeiture hearings, limits what vehicles can and cannot be forfeited, and directs law enforcement agencies on what to do with forfeited vehicles.)
United States ex rel. Smith v. Gilbert Reality Co., 840 F.Supp. 71 (E.D. Mich. 1993) (found a civil statutory penalty of $290,000 unconstitutionally excessive where the actual damages were $1,630.)
*State v. Hill, 70 Ohio St.3d 25 (1994) (Only Supreme Court of Ohio case applying the Excessive Fines Clause. “Prior to entering an order of forfeiture, the trial court must make an independent determination whether forfeiture of that property is an ‘excessive fine’ prohibited by the Excessive Fine Clauses of the Ohio and United States Constitutions.”)
*State v. Ziepfel, 107 Ohio App.3d 646 (1st Dist. 1995) (Noting that the fine to forfeiture ratio is only one factor in an Excessive Fines analysis. Upheld the forfeiture of a $23,000 motorcycle when the maximum offense fine was $10,000.)
*State v. Harold, 109 Ohio App.3d 87 (9th Dist. 1996) (applied proportionality test to conclude that forfeiture of a home was not unconstitutionally excessive. The court considered the fair market value of the home, financial hardship to the defendant, the level of culpability, and the property’s relation to the offense.)
*United States v. Bajakajian, 524 U.S. 321 (1998) (a punitive forfeiture violates the Excessive Fines Clause if it is grossly disproportional to the gravity of a defendant’s offense. In assessing gross disproportionality, courts must consider whether the violation was willful, whether the forfeited property was obtained by illegal means, whether the violator fit into the class of persons for whom the statute was principally designed, the maximum statutory punishment, and the harm caused by the violator.)
*State v. Kish, 2003-Ohio-2426 (9th Dist.) (to determine whether a forfeiture is a constitutionally excessive fine, a court must conduct a proportionality review. A proportionality review entails: “(1) the culpability of the defendant; (2) the gravity of the offense; (3) the relationship of the property to the offense; and (4) the harm to the community.” Also to be considered are the fair market value of the property, the intangible and subjective value of the property, harm caused by illegal activity, whether the defendant was directly involved in the activity, and the hardship to the defendant, including the effect of forfeiture on the defendant’s family and financial condition.)
*Timbs v. Indiana, 139 S.Ct. 682 (2019) (Incorporated the Excessive Fines Clause to the States. Economic sanctions must be proportional to the wrong and not be so large as to deprive an offender of his livelihood.)
* Cited by counsel at argument.
O’Malley’s Propositions of Law Accepted for Review
Proposition of Law 1
Was the vehicle forfeiture order under R.C. 4511.19 (G)(1)(c)(v), as applied to Appellant, an unconstitutionally excessive fine in violation of the Eighth Amendment to the U.S. Constitution?
Proposition of Law 2
Is Ohio’s OVI forfeiture statute (R.C. 4511.19 (G)(1)(c)(v)) unconstitutional under the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution and Section Two, Article One of the Ohio Constitution?
Arguing Counsel
Ronald A. Annotico, Parma, for Appellant James O’Malley
Kenneth J. Fischer, Law Director, City of Brunswick, for Appellee State of Ohio
O’Malley’s Argument
This is a case of first impression on both Eighth and Fourteenth Amendment grounds. In both Bajakajian and Timbs the U.S. Supreme Court gave lengthy historical dissertations on the reasoning behind the Eighth Amendment. Additionally, this court has stated on a number of occasions over many decades that forfeiture is generally a highly disfavored form of punishment. There is more federal than state jurisprudence on this topic. But this court is free to provide greater protection under the Ohio Constitution than federal law provides. Mr. O’Malley did not waive his state constitutional challenge, and this court could provide that greater protection in this context in this case.
The trial court’s reliance on the Ziepfel and Kish cases is problematic. Ziepfel predates most of the new caselaw in this area, especially federal law. It is also very distinguishable on its facts. And Kish treats all the listed factors equally, giving no one factor more weight than any other. Federal court decisions in this area stand for the proposition that some of the factors should hold more weight than others, particularly the forfeiture-to-fine ratio.
The Ohio legislature has made the policy decision that a third OVI is still a misdemeanor offense, with a maximum fine of $2750. That should place an upper limit on the amount of a vehicle forfeiture. The forfeiture in this case was $31,000, which greatly exceeds both the felony OVI maximum penalty and the maximum penalty for a first-degree felony. The state did not object to the $31,000 valuation, so that is not at issue.
The legislature has given the courts the power to do a number of things for any OVI offenses, such as license suspension, immobilization of the vehicle so it can’t be driven, alcohol monitoring, and interlock machines. Now, on a second OVI, immobilization of the vehicle is mandatory for 90 days, a license suspension is mandatory and limited driving privileges can only be granted if an interlock machine is installed in the vehicle. But there are Eighth Amendment implications in the forfeiture in this case.
If someone with a suspended license is going to break the law, the forfeiture of his or her primary vehicle is not going to stop that person from doing so. There are so many ways around that law that the forfeiture does not accomplish what the state wants to accomplish.
Mr. O’Malley’s truck in presently in the possession of the Ohio Highway Patrol pending the outcome of this case. If the court rules in his favor he would get the truck back.
State’s Argument
On July 4, 2018 at 1:45 in the morning the defendant was stopped by a state highway patrol officer for erratic driving and a marked lane violation. When asked to produce his driver’s license, he produced a credit card. He did not know his home address and refused a breathalyzer. He pled no contest with a finding of guilt, fully understanding that his truck could be forfeited at a subsequent hearing.
The trial court set a separate date for the forfeiture hearing, which was conducted with the defendant present with his counsel, with the full opportunity to present evidence and testimony. The testimony at the hearing was that the defendant had paid $5000 for the truck, had put $8000 worth of improvements into it, and that it was worth $31,000. But there is nothing in the record other than the defendant’s testimony to support any of this. The value of the vehicle is not clearly established in the record. Nor was the defendant working at the time of his arrest, or several months later.
The trial court used the criteria from State v. Harold and made a determination based on the totality of the circumstances to order forfeiture of the truck. The Harold criteria that were examined in detail were the culpability of the defendant, the gravity of the offense, the relationship between the property and the offense, the harm to the community, the fair market value of the property, the intangible and subjective value and hardship to the defendant. These are the factors under current Ohio law that are to be considered in determining excessiveness.
It is crucial to be clear that the defendant is not arguing that the trial court’s decision was against the manifest weight of the evidence. The decision as to whether the trial court should be reversed is not before the court. What is before the court is the constitutional challenge as to whether the statute violates the Eighth Amendment and Article I Section 9 of the Ohio Constitution with respect to O’Malley’s forfeiture.
It is true that the more expensive the car, the more disproportionate the amount is to the $2750 fine. But when an offender disregards the law and is convicted of three OVIs in 10 years, it makes sense that any car, no matter how expensive, would still be subject to forfeiture. In the future trial courts would simply balance the criteria from State v. Harold to determine if the fine was excessive on a case-by-case basis.
The equal protection argument that individuals who don’t own vehicles are not subject to forfeiture under the recidivism provision in the OVI statutes is clearly wrong. There are several examples in the statute where forfeiture is treated separately from ownership, such as forfeiture based on registration and forfeiture based on negligent entrustment. There is no valid equal protection argument here.
While there are other preventive measures, such as putting a boot on the vehicle and interlocking devices, the legislature has determined that based upon three OVI convictions there should be a forfeiture proceeding hearing. This defendant is an example of how the alternative measures are ineffective in deterring drunk driving. The public has a strong interest in keeping people that are intoxicated off the road. This defendant has three separate disorderly conduct convictions, two of which have an alcohol specification. While forfeiture may be harsh and drastic, so is the conduct that created this situation.
What Was On Their Minds
Proportionality/Excessiveness
What exactly is the Court to take into consideration in trying to determine what “excessive” is, asked Chief Justice O’Connor? If the car was only worth $1000, would we even be here? When we look at “excessive” do we take into consideration the value of the vehicle? She added that there are two things that facilitate an OVI, one is the consumption of alcohol to the point of impairment, the other is to get behind the wheel of the vehicle. Does that nexus and that intent not prompt this argument about proportionality? Are we not to take into account the value of the vehicle and relationship to alternatives and other factors here? The Ohio Constitution bans excessive fines, O’Connor noted, adding that the court would have to take into consideration what is excessive in relation to this defendant including the effect on his ability to make a living and to do other things that are required of an individual with a vehicle who is now without a vehicle. Are these all things that must be balanced in order to figure out whether it is excessive?
Would the state have moved to forfeit if the defendant had been driving a $150,000 car, asked Justice Stewart? Would the procedures have been any different? Would that be unconstitutional as applied? Assume a defendant has a car worth $150,000 and it was one of three vehicles that he owned, as opposed to a defendant who had only one vehicle that was worth $2500. If the latter lost his vehicle that was his only source of transportation that is a hardship. If someone lost a $150,000 vehicle that would only be a financial hardship.
What about the defendant’s income, asked Justice DeWine? One of the arguments is that the trial court erred by not taking into account the defendant’s own personal circumstances and the impact this would have on him. Should that be something that is considered in the analysis? Did the trial court find the value of the vehicle to be $31,000?
Alternatives to Forfeiture
Aren’t there intermediate steps before forfeiture, such as admission locks that could be placed on the vehicle so that the defendant couldn’t use it, asked Justice Brunner? Couldn’t those be used whether the defendant owns the vehicle or not? Is the stay still in effect on the forfeiture?
Was there any interlock or mobilization used on the defendant before foreclosure, asked Chief Justice O’Connor? (answer: yes) So, he’s had an interlock before, he’s had license suspension before, he’s had these intermediate interventions, to no avail. Are there any studies done to show all the effect of these alternatives being employed by people who are similarly situated to the defendant?
Doesn’t the forfeiture only go to the car that was being operated, asked Justice Kennedy? She added that nothing stops a person from buying a second car, or from borrowing a car and driving that one.
Why not just put a boot on the car so it can’t move, asked Justice Fischer?
As Applied Challenge
Does it make any difference here that the challenge was an as applied, not a facial challenge, asked Justice Brunner? What is the case law that should be used in interpreting this new 10 year statute and how it affects Ohioans based on forfeiture?
Protection Under the Ohio Constitution
Historically the U.S. Supreme Court caselaw has not been all that favorable to defendants on excessive fines, noted Justice DeWine, adding that the Ohio high court had never really developed what its excessive fines clause means. Why not bring a claim under the Ohio Constitution? He added that if no one ever raises a state constitutional excessive fines claim the law will never be developed on that issue.
Didn’t the trial judge also consider Article I Section 9 of the Ohio Constitution when he looked at the Eighth Amendment concerns, asked Justice Brunner? The defendant didn’t waive this, did he? (answer:he did not).
Typical Forfeiture Cases
Isn’t this case a little different than most forfeiture cases, asked Justice DeWine? Wouldn’t a typical case be someone has drugs in a house, and the government seizes the house and proportionality obviously matters a lot there. But here it seems that part of the intent of the statute is that this individual driving a vehicle is dangerous because he continues to refuse to follow the law about drunk driving. What the statute does is take that dangerous instrumentality out of his hands after so many offenses, regardless of what kind of car he is driving. Doesn’t that make this case a little different than some of those other cases? This situation involves a vehicle which at least in the legislature’s judgment is dangerous for the defendant to continue to be driving because he keeps driving drunk. That’s a little different than saying we’re going to seize your car because it happened to have drugs in it.
How It Looks from the Bleachers
To Professor Emerita Bettman
This one was hard to read. While none of the justices had any sympathy for having three OVIs within 10 years, some of the justices did seem to show some sympathy for the impact of this forfeiture on O’Malley’s life situation. The dissenting judge in the court of appeals case emphasized “the drastic impact that forfeiture of O’Malley’s truck would have on his personal financial condition” and several of the justices seemed to agree with this.
I think O’Malley missed an opportunity to develop an argument under the Ohio Constitution’s excessive fines provision. As I have written many times, the justices keep asking for more state constitutional law development, but O’Malley didn’t really do that here, and didn’t include the state constitutional provision in his proposed proposition of law on the Eighth Amendment. O’Malley’s lawyer seemed to concede he had not really made a state constitutional law argument but after a softball question from Justice Brunner that the trial court had referenced Article I Section 9, that argument may be saved even though it wasn’t really developed.
The excessive fines provision dominated the argument, with little time spent on the equal protection argument, which I predict will go nowhere.
Further confusing matters, the City Law Director stated more than once that this was a facial challenge, which it clearly wasn’t. Mr. Fischer was also very rigid about what he believed the court could consider in this case, since he also said more than once that O’Malley had not raised a manifest weight of the evidence challenge to the trial court’s decision. According to Mr. Fischer, that took most everything off the table until the Chief finally got a concession about the factors that had to be examined in determining excessiveness in this case.
I think when all is said and done, the court will find for the state but may well take the opportunity to refine and clearly define what constitutes excessiveness in this context, and whether some of the factors should be given more weight than others.
To Student Contributor Brandon Bryer
The Justices were difficult to read at oral argument. Justice DeWine hinted his agreement with the State, Justice Stewart suggested favorability toward O’Malley. But Justices Fischer and Brunner were quite interested in the alternatives to forfeiture, namely why the State couldn’t just put a boot on the car. The State’s core rationale is that forfeiture was necessary to keep O’Malley, and other repeat drunk drivers, off the roads. Justices Fischer and Brunner asked why forfeiture had to be the answer. I found the State’s answer unsatisfactory. I think the Court will primarily use this case to set a clearer Eighth Amendment standard for lower courts to follow. The Court will likely disagree on what that standard ought to be or how it applies in this case, but I anticipate the Court will include a defendant’s financial hardship as one of many factors in deciding what an “excessive” fine is.
Ultimately, I predict that the Court sets a new standard and either finds against O’Malley outright or remands to the trial court. Regardless of the standard, most problematic for me is that O’Malley’s truck was not forfeited on his first offense, but rather after three drunk driving convictions. I agree with Justice DeWine that, for that reason, this case can be distinguished from ordinary forfeiture proceedings. If Ohio’s OVI statute mandated forfeiture after one offense, that’s a different story. But as a repeat offender is placed on notice not once but twice of potential forfeiture, yet still disregards the law, the harshness of forfeiture diminishes. Moreover, the severity of the offense and defendant’s culpability are both higher after three convictions.
Oral argument focused almost entirely on the Eighth Amendment issue, leaving the Equal Protection issue in the background. But the State’s distinction made between owners and non-owners seems, to me, rationally related to deter drunk driving recidivism. The distinction is rational because, as noted at oral argument, the State does this in many other statutes, and it avoids the State having to seize vehicles that are not registered in the offender’s name. The State only needs one purported rationale for its distinction. While O’Malley made great arguments, I believe the Court will find a rational basis standard too deferential to overcome.