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State v. Ziepfel12/6/1995
PAINTER, Judge.
Defendant-appellant, George M. Ziepfel, Jr., was convicted of driving under the influence of alcohol pursuant to R.C. 4511.19(A)(3), his fourth DUI offense within five years. As part of the mandatory penalties in R.C. 4511.99(A)(4)(a) and (b), the trial court ordered that the motorcycle he was driving at the time of the offense be forfeited. At the forfeiture hearing, appellant testified that he had paid $23,000 for the limited production motorcycle and that he had recently been offered $30,000 for it. In contrast, the maximum fine that could have been imposed for the offense was $10,000. In his sole assignment of error, appellant contends that the trial court erred in ordering the forfeiture because it violates the Excessive Fines Clauses of the United States and Ohio Constitutions. This seems to be a matter of first impression in this state. The parties have cited nsOhio cases which have considered the constitutionality of the mandatory vehicle forfeitures under R.C. 4511.99(A)(4)(b).
In Austin v. United States (1993), 509 U.S. 602, 113 S.Ct. 2801, 125 L.Ed.2d 488, the United States Supreme Court concluded that the Excessive Fines Clause of the Eighth Amendment applies to in rem forfeitures when they constitute punishment for a criminal offense. However, the court declined to adopt a multifactor test for determining whether a forfeiture is constitutionally excessive. Instead, it remanded the case to the lower courts "to consider that question in the first instance." Id. at 622-623, 113 S.Ct. at 2812, 125 L.Ed.2d at 506.
In a separate concurrence, Justice Scalia discussed the difference between in rem and in personam forfeitures, noting that it is a much closer question whether in rem forfeitures constitute punishment. He went on to state that "the excessiveness analysis [regarding an in rem forfeiture] must be different from that applicable to monetary fines and, perhaps, to in personam forfeitures." Id. at 627, 113 S.Ct. at 2814, 125 L.Ed.2d at 509.
"* * * n in rem forfeiture goes beyond the traditional limits that the Eighth Amendment permits if it applies to property that cannot properly be regarded as an instrumentality of the offense--the building, for example, in which an isolated drug sale happens to occur. Such a confiscation would be an excessive fine. The question is not how much the confiscated property is worth, but whether the confiscated property has a close enough relationship to the offense.
"* * * The relevant inquiry for an excessive forfeiture under [Section] 881 is the relationship of the property to the offense: Was it close enough to render the property, under traditional standards, `guilty' and hence forfeitable?" (Emphasis sic.) Id. at 627-628, 113 S.Ct. at 2815, 125 L.Ed.2d at 509.
In response to Justice Scalia's concurrence, the majority stated in a footnote: "We do not rule out the possibility that the connection between the property and the offense may be relevant, but our decision today in no way limits the Court of Appeals from considering other factors in determining whether the forfeiture of Austin's property was excessive." Id. at 623, 113 S.Ct. at 2812, 125 L.Ed.2d at 506, fn. 15. See, also, United States v. Premises Known as RR# 1 (C.A.3, 1994), 14 F.3d 864, 873.
The same day, the court also decided Alexander v. United States (1993), 509 U.S. 544, 113 S.Ct. 2766, 125 L.Ed.2d 441, in which the defendant was convicted of three racketeering offenses predicated on obscenity convictions. Ultimatelysthe trial court ordered the defendant to forfeit his wholesale and retail businesses which had been used to conduct his racketeering enterprise and almost
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