Wisconsin appellate court says “it is patently obvious” that the forfeiture of claimant’s car for pot possession is excessive

by Scott Alexander Meiner

A Wisconsin appellate court reversed a vehicle forfeiture as an unconstitutionally excessive penalty after noting that the forfeiture would have exceeded both the punishment permitted by the misdemeanor possession charge to which the defendant pleaded guilty and the original charge of felony possession with intent to deliver marijuana:

“Based on information from a confidential informant, the Drug
Enforcement Group began investigating Peloza for drug activity. Investigator
Jonathan Rivamonte made contact with Peloza and made arrangements to
purchase approximately one ounce of marijuana for $355. After that sale,
Rivamonte asked Peloza for a larger quantity. Peloza agreed to sell him another
six ounces of marijuana for about $1500. The sale was not completed, as Peloza
was arrested and charged with felony possession with intent to deliver marijuana.

Peloza entered a deferred prosecution agreement in which he pled
guilty to misdemeanor possession. Peloza successfully completed the agreement
and, upon payment of a $250 fine, Peloza’s conviction was ordered expunged. In
the meantime, the State filed a summons and complaint for the forfeiture of
Peloza’s car, a 2009 Mitsubishi Lancer GTS, because it had been used to transport
drugs. After the criminal case was resolved, the forfeiture case proceeded….”

“…When we consider the factors in this case, it is patently obvious that
forfeiture of Peloza’s car is excessive. Certainly, drug sales are not to be
encouraged, but Peloza was ultimately convicted of mere possession. Peloza’s
offense did not involve violence, did not result in injury to anyone, and was not
gang related. There is no suggestion that Peloza is a large-scale drug dealer, and
he had no prior criminal record. The total value of the drugs he sold was less than
$2000. The State apparently does not view the offense as exceptionally serious, as
it was willing to permit a disposition resulting in expunction of the conviction and
payment of a small $250 fine. The maximum fine for misdemeanor possession
was $1000, and even for the originally charged felony, the maximum fine was
only $10,000. Forfeiture of a $16,000 vehicle is unconstitutionally
disproportionate to the offense at hand. Upon remand, the circuit court shall
vacate the forfeiture order, direct return of the car to Peloza, and dismiss the
State’s forfeiture complaint.” State v. Peloza et al., Wis. Ct. App. 2012AP1650 (Unpublished)