2022 IL App (3d) 210368
Opinion filed June 30, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ex rel. JAMES W. GLASGOW, State’s ) of the 12th Judicial Circuit, Attorney of Will County, Illinois, ) Will County, Illinois. ) Plaintiff-Appellant, ) Appeal No. 3-21-0368 ) Circuit No. 20-MR-2333 v. ) ) The Honorable 2017 FORD EXPLORER, ) Daniel Kennedy ) Judge, Presiding. Defendant-Appellee. ) ____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Hauptman and McDade concurred in the judgment and opinion. ____________________________________________________________________________
OPINION
¶1 The State of Illinois filed a complaint for forfeiture of a vehicle, a 2017 Ford Explorer,
VIN 1FM5K8GT0HGD16110, after its driver, Jeffrey Couch, was charged with driving under the
influence (DUI), third or subsequent offense (625 ILCS 5/11-501(a)(1), (d)(1)(A) (West 2020)).
Jeffrey’s wife, Jodi Couch, answered the complaint and requested an innocent owner hearing.
Following the innocent owner hearing, the trial court ordered the vehicle returned to Jodi. The
State appeals, arguing that Jodi, as a joint owner of the vehicle, was not entitled to have the vehicle
returned to her. We affirm. ¶2 BACKGROUND
¶3 On October 16, 2020, the State filed a complaint for forfeiture of the subject vehicle, a
2017 Ford Explorer, VIN 1FM5K8GT0HGD16110. The complaint alleged that on September 13,
2020, Trooper Curry of the Illinois State Police responded to a call about a vehicle in a ditch on
Interstate 80 westbound, west of Houbolt Road in Will County. When he arrived at the scene,
Curry found the vehicle in a ditch.
¶4 Curry spoke to the driver of the vehicle, Jeffrey Couch. Curry smelled a strong odor of an
alcoholic beverage on Jeffrey’s breath and observed that Jeffrey had red, glassy eyes. Jeffrey
agreed to perform field sobriety tests and failed them all. Jeffrey provided a breath sample on the
scene, which registered a breath-alcohol concentration (BrAC) of 0.187, more than twice the legal
limit (625 ILCS 5/11-501(a)(1) (West 2020)). Curry arrested Jeffrey for DUI and took him to the
Illinois State Police district headquarters for processing, where Jeffrey provided another breath
sample, which registered a BrAC result of 0.177.
¶5 Jeffrey’s driving abstract from the Illinois Secretary of State showed that on September 13,
2020, Jeffrey had at least two prior DUI charges in Illinois. As a result, Jeffrey was charged with
DUI, third or subsequent offense (625 ILCS 5/11-501(d)(1)(A) (West 2020)).
¶6 On January 12, 2021, Jodi, Jeffrey’s wife, filed an answer and affirmative defense to the
State’s forfeiture complaint, asserting she was co-owner of the vehicle Jeffrey was driving on
September 13, 2020. In her affirmative defense, Jodi denied having any knowledge or reason to
know that the vehicle was used in connection with DUI, third or subsequent offense. She also
denied consenting to the vehicle being used to commit DUI, third or subsequent offense.
¶7 On March 9, 2021, Jodi filed a motion for an innocent owner hearing along with an affidavit
supporting her motion. According to Jodi’s affidavit, Jeffrey had a “long history of alcoholism.”
2 In 2020, Jeffrey convinced Jodi that “he had finally turned the corner and had agreed to live the
rest of his life without consuming alcohol.” On September 13, 2020, Jeffrey left the marital home
at 9:30 am in the subject vehicle to put air in the tires and have it washed. According to Jodi,
Jeffrey “was sober when he left and had been sober for quite some time.” Jeffrey did not return all
day. Jodi received a phone call at approximately 9:30 pm informing her that Jeffrey had been
arrested for DUI. Jodi asserted she “would never have allowed [Jeffrey] to drive our new vehicle
if he had been drinking.”
¶8 An innocent owner hearing was held on May 12, 2021. At the hearing, Jodi testified that
she and Jeffrey purchased the 2017 Ford Explorer together on September 8, 2020. The vehicle was
titled in both her and Jeffrey’s names, and both she and Jeffrey were insured drivers of the vehicle.
After Jeffrey’s arrest on September 13, 2020, Jodi prohibited Jeffrey from returning to the marital
home and filed for divorce.
¶9 At the conclusion of the hearing, the trial court ordered that the 2017 Ford Explorer be
returned to Jodi, finding that she “is the true owner of the conveyance, that she has a 100% interest
in the conveyance and that she did not know nor did she have reason to know that the conduct
giving rise to the forfeiture was likely to occur.” The State filed a motion to reconsider, which the
trial court denied.
¶ 10 ANALYSIS
¶ 11 Pursuant to article 36 of the Criminal Code of 2012 (Criminal Code), a vehicle used with
the knowledge and consent of its owner in the commission of an enumerated offense is subject to
forfeiture. 720 ILCS 5/36-1 (West 2020). The list of enumerated offenses in article 36 is “fairly
extensive” (People ex rel. Kelly v. One 2008 Chevrolet Trailblazer, 2016 IL App (5th) 150338,
¶ 13), and includes a third or subsequent DUI (720 ILCS 5/36-1(a)(6)(C) (West 2020)). A
3 forfeiture proceeding is a civil proceeding in rem. People v. Dugan, 109 Ill. 2d 8, 17 (1985). “The
State brings the action against seized property pursuant to the legal fiction that the property itself
is guilty of facilitating a crime.” People v. Parcel of Property Commonly Known as 1945 North
31st Street, Decatur, Macon County, Illinois, 217 Ill. 2d 481, 497 (2005).
¶ 12 “The legislative policy underlying statutes allowing vehicle forfeitures is to repress crimes
that are facilitated by vehicles.” One 2008 Chevrolet Trailblazer, 2016 IL App (5th) 150338, ¶ 11
(citing People v. 1995 Ford Van, 348 Ill. App. 3d 303, 309 (2004)). Civil forfeitures also serve “to
punish the owner of the property subject to forfeiture.” People v. One 2005 Acura RSX, 2017 IL
App (4th) 160595, ¶ 19.
¶ 13 In 2018, the Illinois General Assembly enacted legislation that resulted in a
“comprehensive reform of the *** civil asset forfeiture process.” 100th Ill. Gen. Assem., Senate
Proceedings, May 31, 2017, at 15 (statements of Senator Harmon). The legislation made
substantial changes to article 36 of the Criminal Code, creating entirely new sections, including
section 36-2.5, which sets forth the “[j]udicial in rem procedures,” and section 36-2.7, which
provides for an “[i]nnocent owner hearing” separate from the “[j]udicial in rem procedures.” See
720 ILCS 5/36-2.5, 36-2.7 (West 2020).
¶ 14 Section 36-2.5 of the Criminal Code applies to forfeiture trials and provides that, at such
proceedings, the State must show by a preponderance of the evidence that “(1) the property is
subject to forfeiture; and (2) at least one of the following: (i) the claimant knew or should have
known that the conduct was likely to occur; or (ii) the claimant is not the true owner of the property
that is subject to forfeiture.” Id. § 36-2.5(e). “[A] claimant may present evidence to overcome
evidence presented by the State that the property is subject to forfeiture.” Id. “If the State does not
meet its burden of proof, the court shall order the interest in the property returned or conveyed to
4 the claimant and shall order all other property in which the State does meet its burden of proof
forfeited to the State.” Id. § 36-2.5(g). “If the State does meet its burden of proof, the court shall
order all property forfeited to the State.” Id.
¶ 15 Section 36-2.7 sets forth the procedures for an “[i]nnocent owner hearing.” Id. § 36-2.7.
Prior to the legislature’s 2018 amendments, the Criminal Code’s forfeiture provisions allowed
property owners to raise an “innocent owner” defense to a forfeiture complaint. See 720 ILCS
5/36-2(e) (West 2016). However, the legislature’s 2018 amendments created an “expedited process
for innocent owners” (100th Ill. Gen. Assem., Senate Proceedings, May 31, 2017, at 15 (statements
of Senator Harmon)) through a separate hearing. See 720 ILCS 5/36-2.7 (West 2020).
¶ 16 The “expedited process for innocent owners” is set forth in section 36-2.7 of the Criminal
Code. Id. It allows an owner of property for which a forfeiture complaint has been filed to request
“an innocent owner hearing prior to trial.” Id. § 36-2.7(a). At an innocent owner hearing, an
innocent owner must prove by a preponderance of the evidence that (1) she is the “true owner of
the conveyance as interpreted by case law,” and (2) she “did not know or did not have reason to
know the conduct giving rise to the forfeiture was likely to occur.” Id § 36-2.7(a), (c), (d). The
statute provides:
“(a) After a complaint for forfeiture has been filed and all claimants have
appeared and answered, a claimant may file a motion with the court for an innocent
owner hearing prior to trial. This motion shall be made and supported by sworn
affidavit and shall assert the following along with specific facts that support each
assertion:
(1) that the claimant filing the motion is the true owner of the
conveyance as interpreted by case law; and
5 (2) that the claimant did not know or did not have reason to know the
conduct giving rise to the forfeiture was likely to occur.
The claimant’s motion shall include specific facts which support these
assertions in their motion.
(b) Upon the filing, a hearing may only be conducted after the parties have
been given the opportunity to conduct limited discovery as to the ownership and
control of the property, the claimant’s knowledge, or any matter relevant to the
issues raised or facts alleged in the claimant’s motion. Discovery shall be limited
to the People’s requests in these areas but may proceed by any means allowed in
the Code of Civil Procedure.
(c) After discovery is complete and the court has allowed for sufficient time
to review and investigate the discovery responses, the court shall conduct a hearing.
At the hearing, the fact that the conveyance is subject to forfeiture shall not be at
issue. The court shall only hear evidence relating to the issue of innocent ownership.
(d) At the hearing on the motion, the claimant shall bear the burden of
proving each of the assertions listed in subsection (a) of this Section by a
preponderance of the evidence. If a claimant meets the burden of proof, the court
shall grant the motion and order the conveyance returned to the claimant. If the
claimant fails to meet the burden of proof, the court shall deny the motion and the
forfeiture case shall proceed according to the Code of Civil Procedure.” 720 ILCS
5/36-2.7 (West 2020).
¶ 17 Pursuant to case law, an individual is a “true owner” of a vehicle if she (1) is a title holder,
even if she holds title jointly with the wrongdoer, and (2) possesses some indicia of true ownership
6 over the vehicle so that her status as a title holder is not simply a sham or pretense. See Dugan,
109 Ill. 2d at 18-19; People v. 1991 Chevrolet Camaro, 251 Ill. App. 3d 382, 387-89 (1993);
People ex rel. Barra v. Wiebler, 127 Ill. App. 3d 488, 491-92 (1984). “[T]he owner of the vehicle
or any person whose right, title or interest is of record may show by a preponderance of the
evidence that he did not know or have reason to know that the vehicle was to be used in the
commission of an offense and, upon a sufficient showing, may successfully resist a forfeiture.”
(Emphases in original.) 1991 Chevrolet Camaro, 251 Ill. App. 3d at 388-89.
¶ 18 Here, the State does not dispute that Jodi established by a preponderance of the evidence
that she did not know or have reason to know that Jeffrey would use the Ford Explorer to commit
his third or subsequent DUI offense. Nor does the State dispute that Jodi established by the
preponderance of the evidence that she co-owned the vehicle with Jeffrey. However, the State
argues that even if Jodi meets the requirements of an “innocent owner,” the Ford Explorer is still
subject to forfeiture because Jodi’s interest in the vehicle can be severed from Jeffrey’s interest
pursuant to section 36-2.5(m) of the Criminal Code. Section 36-2.5(m) provides: “If property is
ordered forfeited under this Article from a claimant who held title to the property in joint tenancy
or tenancy in common with another claimant, the court shall determine the amount of each owner’s
interest in the property according to principles of property law.” 720 ILCS 5/36-2.5(m) (West
2020).
¶ 19 The State asks us to interpret statutory language, which involves a question of law;
therefore, our review is de novo. See Petersen v. Wallach, 198 Ill. 2d 439, 444 (2002). The primary
rule of statutory construction is to ascertain and give effect to the intent of the legislature by first
looking at the plain language of the statute. Davis v. Toshiba Machine Co., America, 186 Ill. 2d
181, 184 (1999). No rule of statutory construction allows the court to declare that the legislature
7 did not mean what the plain language of the statute imports. People v. Woodard, 175 Ill. 2d 435,
443 (1997). Where the language of a statute is clear and unambiguous, a court must give it effect
as written without reading into it exceptions, limitations, or conditions that the legislature did not
express. Id. “Where two statutes are allegedly in conflict, a court has a duty
to interpret the statutes in a manner that avoids an inconsistency and gives effect to both statutes,
where such an interpretation is reasonably possible.” Barragan v. Casco Design Corp., 216 Ill. 2d
435, 441-42 (2005).
¶ 20 The plain language of section 36-2.7 of the Criminal Code provides that an owner of a
vehicle is entitled to have her vehicle returned to her if she establishes by a preponderance of the
evidence that (1) she is a true owner of the vehicle and (2) she did not know or have reason to
know that the vehicle would be used in the commission of a crime. 720 ILCS 5/36-2.7(a), (d)
(West 2020). Nevertheless, the State contends that we should ignore this clear and unambiguous
language and read into it a limitation contained in section 36-2.5(m) (id. § 36-2.5(m)) that would
allow courts to order the forfeiture of a vehicle, even after an owner proves her status as an innocent
owner, by severing and dividing the joint interests of the innocent owner and the wrongdoer. We
refuse the State’s request to read subsection (m) of section 36-2.5 into the provisions of section
36-2.7 for several reasons.
¶ 21 First, not only is the State’s statutory interpretation a violation of the plain language of
section 36-2.7, but it also violates the plain language of section 36-2.5(m). Section 36-2.5(m)
applies only “[i]f property is ordered forfeited.” Id. § 36-2.5(m). If an individual meets her burden
of proof at an innocent owner hearing, the court must “order the conveyance returned” to her. Id.
§ 36-2.7(d). Such property would not be “ordered forfeited.” Thus, pursuant to its plain language,
8 a prerequisite necessary for application of section 36-2.5(m) does not exist when an individual is
successful at an innocent owner hearing.
¶ 22 It would be improper to apply the provisions of section 36-2.5, including subsection (m),
to section 36-2.7 because sections 36-2.5 and 36-2.7 apply in different circumstances. Section 36-
2.5 applies to forfeiture trials. See id. § 36-2.5(a). Section 36-2.7, on the other hand, applies to
innocent owner hearings, which take place “prior to trial.” Id. § 36-2.7(a). If an individual
successfully sustains her burden of proof at an innocent owner hearing, a forfeiture trial is
unnecessary. See id. § 36-2.7(d). Only if an individual fails to meet her burden of proof at an
innocent owner hearing would the case proceed to a forfeiture trial. See id. Thus, if an owner is
successful at an innocent owner hearing, there is no reason to look to any provisions of section 36-
2.5, including subsection (m).
¶ 23 Second, interpreting section 36-2.5(m) as suggested by the State would directly conflict
with section 36-2.7(d), which requires that property be returned to an innocent owner. It is a
generally accepted maxim of statutory construction that where two statutes are allegedly in
conflict, a court has a duty to interpret the statutes in a manner that avoids an inconsistency and
gives effect to both statutes, where such an interpretation is reasonably possible. Barragan, 216
Ill. 2d at 441-42. Here, both sections can be interpreted consistently and given effect only if section
36-2.5(m) does not apply to property owners who have established they are innocent owners.
While the State argues that such an interpretation renders section 36-2.5(m) meaningless, that
contention is untrue. Section 36-2.5(m) applies when the State seeks forfeiture of property held in
joint tenancy or tenancy in common but no owner requested an innocent owner hearing or was
successful at an innocent owner hearing. That is not the situation here, where Jodi was successful
at her innocent owner hearing.
9 ¶ 24 Third, public policy does not support applying section 36-2.5(m) to an innocent owner.
“The law generally disfavors forfeitures, and ‘statutes authorizing them must be construed strictly
in a manner as favorable to the person whose property is seized as is consistent with fair principles
of statutory interpretation.’ ” 1991 Chevrolet Camaro, 251 Ill. App. 3d at 388 (quoting People v.
United States Currency $3,108, 219 Ill. App. 3d 441, 446 (1991)). Courts must “be vigilant in
construing the law to safeguard the rights of innocent persons who have truly legitimate interests
in the property at issue.” Id. If we accept the State’s interpretation of article 36, an innocent owner
is not entitled to have her property returned to her if she holds the property in joint tenancy or in
tenancy in common with a wrongdoer. See 720 ILCS 5/36-2.5(m) (West 2020). Interpreting article
36 in this manner is not favorable to innocent owners or protective of their rights because it
severely limits the circumstances under which property will be returned to them. Applying section
36-2.5(m) to an innocent owner violates public policy.
¶ 25 Additionally, our conclusion that section 36-2.5(m) does not apply to section 36-2.7 does
not thwart the purposes of article 36’s forfeiture provisions, which are (1) to reduce crime
facilitated by vehicles (One 2008 Chevrolet Trailblazer, 2016 IL App (5th) 150338, ¶ 11) and
(2) to punish the wrongdoer (see One 2005 Acura RSX, 2017 IL App (4th) 160595, ¶ 19). Here,
Jeffrey used the 2017 Ford Explorer to drive while intoxicated. After that, Jodi prohibited Jeffrey
from returning to the marital home and instituted divorce proceedings against him. The State’s
interpretation serves to punish not only wrongdoers but those who co-own vehicles with
wrongdoers. We refuse to interpret article 36 in such a way. Jodi participated in no wrongdoing,
and as the wrongdoer, Jeffrey will have no access to the vehicle; the purposes of article 36 are
achieved.
10 ¶ 26 Finally, the State’s interpretation is refuted by the legislative history of article 36 of the
Criminal Code. While it is not necessary for us to examine the legislative history of sections 36-
2.5 and 36-2.7 because the language of those sections is plain and unambiguous, doing so lends
further support to our interpretations of those sections. See Ultsch v. Illinois Municipal Retirement
Fund, 226 Ill. 2d 169, 188 (2007) (finding legislative history supported court’s interpretation of
unambiguous statutory provisions). The chief sponsor of the bill that amended article 36 in 2018
stated that the bill’s main purposes were to (1) place “the burden of proof in forfeiture cases on the
government rather than on the innocent owner,” and (2) provide “an expedited process for innocent
owners.” 100th Ill. Gen. Assem., Senate Proceedings, May 31, 2017, at 15 (statements of Senator
Harmon). Thus, the amendments to article 36 were intended to make it quicker and easier for
innocent owners to have their property returned to them. Applying section 36-2.5(m) to innocent
owners in the manner suggested by the State would have the opposite effect—it would make it
much more difficult, if not impossible, for innocent owners of jointly titled property to have their
property returned to them. We refuse to interpret article 36 in a way that contradicts its legislative
history.
¶ 27 In conclusion, section 36-2.5(m) of the Criminal Code does not apply to individuals who
have met the requirements of an innocent owner, as set forth in section 36-2.7 of the Criminal
Code. Because Jodi proved she was an innocent owner, the trial court properly ordered the Ford
Explorer returned to her. See 720 ILCS 5/36-2.7(d).
¶ 28 CONCLUSION
¶ 29 For the foregoing reasons, the judgment of the Circuit Court of Will County is affirmed.
¶ 30 Affirmed.
11 2022 IL App (3d) 210368
Decision Under Review: Appeal from the Circuit Court of Will County, No. 20-MR-2333; the Hon. Daniel Kennedy, Judge, presiding.
Attorneys James W. Glasgow, State’s Attorney, of Joliet (Patrick for Delfino, and Thomas D. Arado, of State’s Attorneys Appellate Appellant: Prosecutor’s Office, of counsel), for the People.
Attorneys Katie D. Kryson, of Freeborn & Peters LLP, of Chicago, and for Douglas G. DeBoer, of Law Office of Douglas G. DeBoer, P.C., Appellee: of Joliet, for appellee Jodi Couch.
Jeffrey Couch, appellee pro se.