In re Forfeiture of Property: 1981 Oldsmobile, VIN 1G3AZ57N2BE32296

593 So. 2d 1087, 1992 Fla. App. LEXIS 737, 1992 WL 15868
CourtDistrict Court of Appeal of Florida
DecidedJanuary 28, 1992
DocketNo. 91-1145
StatusPublished
Cited by3 cases

This text of 593 So. 2d 1087 (In re Forfeiture of Property: 1981 Oldsmobile, VIN 1G3AZ57N2BE32296) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Forfeiture of Property: 1981 Oldsmobile, VIN 1G3AZ57N2BE32296, 593 So. 2d 1087, 1992 Fla. App. LEXIS 737, 1992 WL 15868 (Fla. Ct. App. 1992).

Opinions

BARFIELD, Judge.

Michael Etheridge and his wife, Maria Etheridge, timely appeal the forfeiture of the 1981 Oldsmobile he was driving on October 8, 1990, when he was arrested for possession of cocaine, marijuana, and drug paraphernalia.1 The parties do not dispute that section 932.703, Florida Statutes (1989), applies in this case. However, in his response to the Escambia County Sheriff’s Department’s motion for forfeiture, Etheridge raised the “innocent owner” exception to the statute, asserting that the vehicle was solely owned by Mrs. Ether-idge, who was out of town on business and “had no knowledge that the vehicle in question was used in any manner whatsoever.”

At the hearing, Mrs. Etheridge stated that she was a “salesperson-account executive” for a telephone company and that she was in Panama City when her husband was arrested. She testified that she was the registered owner of the Oldsmobile, which she bought to transport her three children because her business vehicle “only seats two.” She stated that the insurance was in her name only and that on the date her husband was arrested, she did not know he was using the Oldsmobile. She admitted she knew he had a criminal record, but denied that any of his prior convictions of which she was aware were drug-related or that she had any idea that he would be [1088]*1088using the car to engage in any type of criminal activity.

On cross-examination, she stated that she had been married to Etheridge for six years, that she did not know why his driver’s license was suspended, and that she did “not really” know why he had previously been arrested.2 She stated that her husband got rides to his work as a plumber and that he never drove the children around. She explained that they live with her father, who drives an old van and uses the Oldsmobile “only if something is wrong with the van.” She testified that a spare set of keys to the Oldsmobile “is hanging in my house for my father” and that she did not know how her husband got the car the day he was arrested, since she was in Panama City.

When she was asked what precautions she took to make sure her husband did not use the car, she stated, “Well, I think my understanding of our current family situation and financial situation, that’s prohibitive enough.” When asked if she took any physical precautions to keep him from using the car, she replied, “I do not see how I could.”

On redirect examination, she stated that she considered her not listing her husband on the insurance a precaution against his using the Oldsmobile, and that there was no physical way she could prevent him from having access to the car when she was out of town. Having stated that she “didn’t know the specifics” of her husband’s prior record, she then testified that there was nothing in that prior record involving drugs.

On recross-examination, she admitted that some of her husband’s arrests occurred during the course of the marriage, but again stated that she did not know “the specifics.” Upon the judge’s query, she testified that her husband did not have her permission to use the Oldsmobile while she was away.

The arresting officer had testified that Etheridge initially gave his brother’s name, then told him that the Oldsmobile was his “pride and joy” and bragged on the paint job. Etheridge called the officer a liar and denied telling him that the car was his pride and joy. On cross-examination he testified that he “never hardly used it at all” and that he did not tell his wife when he did.

Norma Sue Smith, the secretary to the attorney for the sheriff, testified that Mrs. Etheridge specifically told her on October 23, 1990, that “her husband” needed the Oldsmobile to transport their children when she was out of town on business.

Section 932.703(1) authorizes forfeiture of vehicles used to transport, conceal, or possess contraband articles (in this case, drugs). Section 932.703(2) provides an exception to the forfeiture statute “if the owner of such property establishes that he neither knew, nor should have known after a reasonable inquiry that such property was being employed or was likely to be employed in criminal activity.”

The Sheriff’s Department argued to the trial court that Mrs. Etheridge had not met her burden of proving she was an innocent owner, that it was clear there had been no “reasonable inquiry,” and that “she takes absolutely no measures to keep the vehicle out of her husband’s hands.” The Ether-idges argued that her unrefuted testimony shows Mrs. Etheridge was an innocent owner who had no reason to know that her husband was involved in drugs.

The judge’s memorandum order recited that Mrs. Etheridge was aware her hus[1089]*1089band had a prior criminal history and his driving privileges were suspended, and that she had taken some measures to keep her husband from driving the vehicle. The judge concluded that any use of the vehicle by Etheridge would constitute an illegal act because his driver’s license was suspended, and that both husband and wife were aware of the illegality. The judge found that these facts “placed the owner-wife who often left the car at home unattended while she was out of town and in the care of her father who had a key to it, on notice that the vehicle would be employed in criminal activity if her husband drove it.” The judge ruled that Mrs. Etheridge did not use reasonable care that her property was not used in criminal activity, and that her efforts to safeguard her vehicle from her husband’s unauthorized use “were minimal and insufficient to warrant remission from forfeiture.” The final judgment of forfeiture found that Maria Etheridge did not exercise reasonable care that her automobile would not be used in criminal activity.

Appellants argue that the court erred as a matter of law in basing forfeiture on the wife’s knowledge of her husband’s driver’s license suspension, because driving with a suspended license is a misdemeanor, not one of the felonies which would call into play the forfeiture provision of section 932.708, which should be strictly construed. They attempt to distinguish In Re: 1979 Lincoln Continental, 405 So.2d 249 (Fla. 3d DCA 1981),3 upon which the Sheriff had relied, on the fact that in that case the husband and wife were estranged, while here the Etheridges are married and see each other on weekends.

The Sheriff’s Department argues that the judge chose to believe the arresting officer and Ms. Smith, instead of the Ether-idges, and properly found that Mrs. Ether-idge was not an “innocent owner” in the sense contemplated by the statute. The brief points out that she admitted to Ms. Smith that her husband needed the car to transport the children when she was out of town, and that Etheridge indicated to the arresting officer that he regularly drove the car. It notes that Mrs. Etheridge testified she did not pay close attention to what went on in her husband’s life, points out that the law requires the owner who claims innocence to establish that she neither knew, nor should have known after a reasonable inquiry, that her automobile would be used in criminal activity, and argues that his prior criminal record put her on notice, or at least required her to make reasonable inquiry, which she failed to do.

The applicable standard of review in this case is “abuse of discretion,” i.e., the trial court’s ruling on forfeiture will be upheld unless no reasonable trial judge would have so ruled. Here, the factual determination of whether Mrs.

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Bluebook (online)
593 So. 2d 1087, 1992 Fla. App. LEXIS 737, 1992 WL 15868, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-forfeiture-of-property-1981-oldsmobile-vin-1g3az57n2be32296-fladistctapp-1992.