author: CARTER, Justice. TERNUS, Justice

text:
    STATE of Iowa, Appellee, v. Rodney Dale McDOWELL, Appellant.
    No. 99-0227.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Linda Del Gallo, State Appellate Defender, and Shellie L. Knipfer, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Sheryl A. Soich, Assistant Attorney General, Patrick C. Jackson, County Attorney, and Andrew B. Prosser, Assistant County Attorney, for appellee.
   CARTER, Justice.

Defendant, Rodney Dale McDowell, appeals from his conviction and sentence for possession with intent to deliver a controlled substance while in immediate possession or control of a firearm in violation of Iowa Code sections 124.401(l)(c)(3), 124.401(1)(e) (1997). He urges that the evidence was insufficient to establish his immediate possession and control of a firearm. The court of appeals affirmed the judgment of the district court. After reviewing the record and considering the arguments presented, we vacate the judgment of the court of appeals. The judgment of the district court is reversed, and the case remanded for resentencing of defendant.

The evidence, viewed most favorably toward the State, reveals that prior to the initiation of these criminal charges defendant had on two occasions sold cocaine and cocaine base to a confidential informant working for the police. That informant testified that these controlled buys took place in the home of defendant’s girlfriend, Bertha Mae Scott. He also testified that on seven other occasions within a five-month period preceding the controlled buys he had been in Scott’s home when defendant was present and drugs were being sold.

Using information obtained from the informant, the police obtained a search warrant that was executed on Bertha Mae Scott’s residence. During the search of that residence, police discovered and seized small plastic bags of crack cocaine base located in a closet and on the kitchen table. They also found and seized a police scanner, an electronic scale, and crack cocaine paraphernalia.

When police entered Scott’s residence, defendant was in the northwest bedroom. The confidential informant testified that it was in this bedroom that the two controlled buys had been transacted. In that bedroom police found a letter addressed to defendant and Scott at the address where the warrant was being executed. In a closet in that bedroom they found two charts converting grams to ounces and ounces to pounds. Next to these charts on a shelf was a woman’s purse containing a .22 caliber revolver. That pistol formed the basis for the charge involving immediate possession or control of a firearm.

Defendant testified that his principal place of residence was Waterloo. He claimed that he had come to Burlington to mediate a child custody squabble between his daughter and son-in-law who lived in that city. During part of this time, both his daughter and son-in-law were confined in the Des Moines County jail. Following his release from jail, defendant’s son-in-law took one of defendant’s daughter’s children and absconded from the area. Defendant testified that he remained around to help his daughter recover her child. He stayed in the apartment of his daughter, but they eventually had to give it up for financial reasons. He testified that he frequently visited the Scott residence and slept there on occasion. He denied having any knowledge of the revolver that was contained in Scott’s purse on the closet shelf or that a firearm of any kind was in the home.

Much of defendant’s testimony concerning his living arrangements was.corroborated by Ms. Scott. She also testified that defendant had no knowledge of the existence of the .22 caliber revolver. She testified that he did not live in her home, although he would visit frequently. Occasionally he would sleep with her in the northwest bedroom and other times he slept on a couch in the living room. She testified that the .22 revolver was hers and had been given to her by her ex-husband. She stated that she had never advised defendant of the gun’s existence.

Defendant was convicted of two counts of delivery of a controlled substance as an habitual offender based on the two controlled buys. He was also convicted of possession with intent to deliver a controlled substance while in immediate possession or control of a firearm, which is a matter at issue on this appeal. Other facts relevant to this appeal will be discussed in connection with the legal issues presented.

I. The Sufficiency-of-the-Evidence Issue.

At trial defendant’s counsel did not object to the sufficiency of the evidence to establish that he had immediate possession or control of the revolver found in the purse on the closet shelf. This omission is now the basis of a claim that defendant received ineffective assistance from his trial counsel. To establish such a claim requires the usual showing that counsel failed to perform an essential duty and that prejudice resulted therefrom. See, e.g., State v. Hopkins, 576 N.W.2d 374, 378 (Iowa 1998).

In the present case, both the breach-of-duty component and the prejudice component of defendant’s ineffective-assistance claim depend entirely on the merit of the claim that his trial counsel failed to assert. If a motion to withdraw the issue of firearm possession or control from the jury would have been successful and thus reduced defendant’s sentence, a failure to make that motion was indeed a breach of an essential duty and was prejudicial. Conversely, if the evidence was sufficient to submit the issue of defendant’s immediate possession or control of a firearm to the jury, the failure to challenge that action was not ineffective assistance of counsel.

On the merits of defendant’s claim that the evidence was insufficient to show that he was in immediate possession or control of a firearm, defendant and the State are in agreement on some matters. These are:

(1) Based on State v. Eickelberg, 574 N.W.2d 1, 5 (Iowa 1997), immediate possession of a firearm means actual possession on one’s person.
(2) Also based on Eickelberg, immediate control of a firearm may be established by showing that the defendant was in such close proximity to the weapon as to claim immediate dominion over it. Eickelberg, 574 N.W.2d at 5. Defendant does not dispute that he was within such proximity to the revolver on the closet shelf.
(3) To show either immediate possession or immediate control, it must be established that defendant had knowledge of the presence of the firearm.

From the foregoing, it appears that this is an immediate-control case rather than an immediate-possession case.

Defendant urges that, notwithstanding the proximity of the firearm to Ms person, the State failed to establish that he knew of the weapon’s existence. The State contends that knowledge of the pistol’s presence may be inferred from the surrounding facts. On this issue, we find the pronouncements made in State v. Reeves, 209 N.W.2d 18 (Iowa 1973), to be helpful. In that case, we considered what must be shown to establish constructive possession of a controlled substance. In so doing, we discussed the inferences that may be employed and the inferences that are not available. We stated in Reeves that “[p]roof of opportunity of access to a place where narcotics are found will not, without more, support a finding of unlawful possession.” Reeves, 209 N.W.2d at 22. Later in the opinion, we stated:

If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.

Id. at 23 (emphasis added). .

The circumstantial evidence on which the State relies to establish defendant’s knowledge of the firearm’s presence all pertains to his frequent presence in Scott’s home and his use of the northwest bedroom to sleep and conduct drug transactions. There is no evidence that defendant had ever accessed the purse belonging to Scott in which the firearm was contained. To the extent that this evidence shows some dominion and control by defendant over various portions of Scott’s residence, that dominion or control was certainly not exclusive. There is no evidence of the type credited in the Reeves case to establish his -knowledge of or control over the firearm in Scott’s purse. Consequently, if a motion to withdraw the issue of defendant’s immediate possession or control of the firearm from the jury had been made, it should have been granted. This omission does constitute ineffective assistance of trial counsel and requires us to set aside the jury’s finding on the issue involving defendant’s possession or control of a firearm. Defendant should be resentenced on count III of the trial information as if such finding had not been made.

II. Jury Instructions on Immediate Possession or Control of a Firearm.

Defendant also urges that the district court erred in failing to include in the instructions defining immediate possession or control of a firearm the element of knowledge of the firearm’s existence. The court of appeals agreed that the jury should have been so instructed. It concluded, however, that the omission was harmless. The district court had instructed the jury that the State was required to show defendant’s “direct physical control of the firearm on or about his person.” The court of appeals concluded that knowledge of the gun’s presence inheres in a finding of such control. This issue will not be retried in the present case. However, for the benefit of the bench and bar, we admonish trial courts to include in instructions defining the immediate possession or control of a firearm the element of knowledge of the firearm’s existence and location.

We have considered all issues presented and conclude that the decision of the court of appeals should be vacated. The judgment of the district court is reversed and the case remanded to that court for resen-tencing on count III of the trial information in the absence of a finding that defendant had immediate possession or control of a firearm.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND REMANDED.

All justices concur except TERNUS, J., who concurs specially.

TERNUS, Justice

(concurring specially).

I concur in the court’s opinion for two reasons. First, our opinion signals the court’s return to a proper application of the principles of constructive possession as set forth in State v. Reeves, 209 N.W.2d 18 (Iowa 1993). Secondly, our opinion implicitly rejects the erroneous application of those principles made in State v. Simpson, 528 N.W.2d 627 (Iowa 1995).

      . This was not the closet in which the cocaine base was found. That closet was in a different room.

      . The Eickelberg criteria for immediate control of a firearm, stated at 574 N.W.2d at 3-4, relied on the criteria for controlled substance constructive possession established in State v. Rudd, 454 N.W.2d 570, 571 (Iowa 1990). Those criteria included knowledge of the existence and location of the substance alleged to have been controlled by the accused.


source: Caselaw Access Project

author: CARTER, Justice.

license: Public Domain

text:
    STATE of Iowa, Appellant, v. Dennis Leroy HOUTS, Jr., Appellee.
    No. 99-1792.
    Supreme Court of Iowa.
    Feb. 14, 2001.

      Thomas J. Miller, Attorney General, Chris Odell, Assistant Attorney General, Thomas Mullin, County Attorney, and Jill Pitsenbarger, Assistant County Attorney, for appellant.
    Linda Del Gallo, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellee.
   CARTER, Justice.

This appeal by the State arises from the district court’s dismissal on motion of a trial information charging defendant, Dennis Leroy Houts, Jr., with two counts of failure to appear in violation of Iowa Code section 811.2(8) (1999). These charges pertain to defendant’s failure to appear for a bond review hearing and for sentencing subsequent to his entry of a guilty plea to the aggravated misdemeanor of attempted burglary in the third degree. In dismissing the charges, the district court concluded that a person could not be guilty of failure to appear under section 811.2(8) until after sentence and entry of final judgment. After reviewing the record and considering the arguments presented, we reverse the judgment of the district court and remand the case for reinstatement of the criminal charges against defendant.

Defendant was charged by trial information with third-degree burglary, a class “D” felony, in violation of Iowa Code section 713.6A (1997). Pursuant to a plea agreement, the State amended the charge to third-degree attempted burglary, an aggravated misdemeanor, in violation of Iowa Code section 713.6(B) (1997). Defendant pleaded guilty to the reduced charge, and the district court scheduled a sentencing hearing. Defendant failed to appear for a presentence investigation interview. The State then filed a motion requesting that the court schedule a bond review hearing, alleging it had reason to believe that defendant had absconded from the jurisdiction. The court scheduled a bond review hearing for April 2, 1999, which was six days prior to sentencing. Defendant failed to appear for either his bond review hearing or for sentencing.

The State filed a trial information charging defendant with two counts of failure to appear under Iowa Code section 811.2(8) (1999). That statute provides:

Any person who, having been released pursuant to this section, willfully fails to appear before any court or magistrate as required shall, ... if the person was released in connection with a charge which constitutes a felony, or while awaiting sentence or pending appeal after conviction of any public offense, be guilty of a class “D” felony.

Iowa Code § 811.2(8) (emphasis added). Defendant filed a motion for bill of particulars, which the district court treated as a motion to dismiss the trial information. After considering the motion, the district court dismissed the charges on the ground that the failure to appear did not follow a criminal conviction.

There are two situations in which a person may be charged for felony failure to appear under Iowa Code section 811.2(8). These include (1) failing to appear “if the person was released in connection with a charge which constitutes.a felony,” or (2) failure to appear “while awaiting sentence or pending appeal after conviction of any public offense.” The first situation is not applicable here because the charge against defendant had been reduced to an aggravated misdemeanor. In ruling that the second situation also does not apply, the district court concluded that until sentence was pronounced and final judgment entered defendant was not convicted. It appears that the court interpreted the words “after conviction” to modify the words “while awaiting sentence.”

In seeking reversal of the district court’s ruling, the State urges that defendant’s guilty plea was the equivalent of a conviction for purposes of applying section 811.2(8). Defendant contends that it was not. This court has recognized that the term “conviction” may have different meanings as it is used in different statutes. State v. Brodene, 493 N.W.2d 793, 796 (Iowa 1992); State v. Kluesner, 389 N.W.2d 370, 372 (Iowa 1986). As used

[i]n the restricted or technical legal sense ... “conviction” [refers to] ... the final consummation of the prosecution against the accused including the judgment or sentence....
In its general and popular sense and frequently in its ordinary legal sense, the word “conviction” is used in the sense of establishment of guilt prior to and independently of judgment and sentence by a verdict of guilty or plea of guilty.

Kluesner, 389 N.W.2d at 372 (quoting State v. Hanna, 179 N.W.2d 503, 507-08 (Iowa 1970)) (emphasis added). Thus, the meaning of conviction in each case is an issue of legislative intent. Brodene, 493 N.W.2d at 796; see also State v. Wiseman, 614 N.W.2d 66, 67-68 (Iowa 2000) (recognizing that in some instances conviction is intended to denote final judgment).

In interpreting the statute as a whole, we are convinced that one of its primary purposes is to punish, as a class “D” felony, any failure to appear while awaiting sentence irrespective of the seriousness of the charge. This .purpose would be thwarted under the district court’s interpretation because persons awaiting sentence would not be subject to the statute.

In giving the statutory language its intended meaning, we are convinced that another rule of interpretation should be applied. That is the maxim that in interpreting written language modifiers must be taken as relating to the immediate preceding antecedent unless a contrary legislative intent appears. State v. Chang, 587 N.W.2d 459, 461 (Iowa 1998); Kluesner, 389 N.W.2d at 371. In the application of the latter rule, we conclude that the words “after conviction” modify the antecedent phrase “pending appeal” and do not modify the phrase “awaiting sentence.” Consequently, we reverse the judgment of the district court and remand the case to that court with directions to reinstate the trial information against defendant.

In an effort to save the judgment, defendant argues for the first time on appeal that the trial information and minutes of testimony when read together state no offense because it does not appear in those documents that defendant was aware that his presence was required at a bond review hearing or the sentencing hearing. Issues not raised in the district court will not be considered on appeal. State v. Rutledge, 600 N.W.2d 324, 325 (Iowa 1999); State v. Dann, 591 N.W.2d 635, 637 (Iowa 1999). Consequently, we give no consideration to this claim. We have considered all issues presented and conclude that the judgment of the district court must be reversed.

REVERSED AND REMANDED.


author: AMUNDSON, Judge

text:
    STATE of Minnesota, Respondent, v. Delfino G. MIRANDA, Appellant.
    No. C4-00-524.
    Court of Appeals of Minnesota.
    Jan. 23, 2001.

      Mike Hatch, Attorney General, St. Paul, MN; and Susan Gaertner, Ramsey County Attorney, Jeanne L. Schleh, Assistant Ramsey County Attorney, St. Paul, MN, (for respondent).
    John M. Stuart, State Public Defender, Marie L. Wolf, Assistant State Public Defender, Minneapolis, MN, (for appellant).
    Considered and decided by AMUNDSON, Presiding Judge, SCHUMACHER, Judge, and HALBROOKS, Judge.
   OPINION

AMUNDSON, Judge

Appealing from a conviction for first-degree controlled substance offense, the appellant argues that he was prejudiced by police failure to notify him of his right to have the Mexican consul notified of his arrest. Appellant argues that a violation of the Vienna Convention is a structural error and that, in any event, he has shown prejudice by providing an affidavit from the Mexican consul stating of what he would have been advised if the consul had been notified. He claims that, because the police lacked valid consent and that no exigent circumstances existed to warrant an invasion of his residence, their entrance was illegal. We affirm.

FACTS

On June 21, 1999, the St. Paul police received a 911 call from the daughter of appellant Delfino Miranda. Miranda’s daughter reported that he had poured gasoline throughout their home and was threatening to burn it with the family inside. Miranda’s daughter also told police that he was hallucinating and high on heroin. She informed police that her 21 year-old sister, her sister’s six-month-old baby, and her mother were present in the home.

Officer Suzanne Drutsehmann was dispatched to the residence. When she arrived, Miranda’s wife and daughter were in the front yard. Officer Drutschmann heard a man, later identified as Miranda, inside the house yelling. Miranda’s wife and daughter gave Officer Drutschmann permission to enter the home.

Upon entering the residence, Officer Drutschmann smelled a strong odor of gasoline or kerosene, noted that the floor was wet, and observed Miranda holding a lighter in his right hand. Officer Drutsch-mann arrested and handcuffed Miranda. After his arrest, but before he was placed inside the squad car, Officer Drutschmann searched Miranda and discovered a white rolled up sock in his left front pant pocket. Tests revealed that the sock contained 38.6 grams of methamphetamine. An investigation also revealed a red gasoline can in the bushes near the home.

During an interview with Sergeant Kel-lerman the following day, Miranda confessed that the drugs found inside his pocket were for his own use and that he injected a mixture of heroin and crank twice daily. At no time was Miranda, a Mexican national, notified of his right to contact the Mexican consulate as provided by the Vienna Convention on Consular Relations. After waiving his right to a jury trial, and after a trial before the court, Miranda was convicted on October 21, 1999, of a first-degree controlled substance violation. This appeal followed.

ISSUES

I. Under the Vienna Convention on Consular Relations, must a foreign national, who was arrested and detained but never informed of his right to contact his consular representative, demonstrate that he was prejudiced by such a violation before his confession can be suppressed?

II. Did appellant demonstrate that he was prejudiced by law enforcement’s failure to inform him of his right to contact his consular representative?

III. Was the warrantless entry into appellant’s home rendered reasonable by either the presence of exigent circumstance or co-occupant consent?

ANALYSIS

I. Vienna Convention on Consular Relations

■ The Vienna Convention on Consular Relations requires that foreign nationals who are arrested or detained must be advised of the right to consult their consular officials. Vienna Convention on Consular Relations, April 24, 1963 [1970], art. 36(l)(b), 21 U.S.T. 77, T.I.A .S. No 6820 [hereinafter “Vienna Convention”]. As a treaty made under the authority of the United States Constitution, the Vienna Convention is the supreme law of the land. U.S. Const, art. VI, cl. 2; see also Antoine v. Washington, 420 U.S. 194, 201, 95 S.Ct. 944, 949, 43 L.Ed.2d 129 (1975) (treaties are binding upon affected states under the Supremacy Clause).

The parties agree that Miranda was not informed of his rights under the Vienna Convention. The district court concluded that while the terms of the Vienna Convention had been violated, Miranda failed to demonstrate any prejudice arising as a result. It denied Miranda’s motion to suppress his statement.

Miranda contends that even without a showing of prejudice, the failure of the police to notify him of his right to speak with his consular representative requires a reversal of his conviction and a new trial. Alternatively, he argues that, even if a showing of prejudice is required, the district court erred in concluding that Miranda failed to demonstrate prejudice. The state contends that Miranda must make a showing of prejudice to be entitled to any relief for the violation of his right to consult his consulate and that the district court correctly concluded that Miranda failed to make such a showing.

A. Is a showing of prejudice required?

State courts have jurisdiction to enforce rights that arise under federal law. Ademodi v. State, 616 N.W.2d 716, 717 n. 2 (Minn.2000) (citing Owens v. Chicago Great Western Ry. Co., 113 Minn. 49, 53, 128 N.W. 1011, 1013 (1910)). Whether a showing of prejudice is required when seeking a judicial remedy for violation of the Vienna Convention is an issue of first impression for this court. The Minnesota Supreme Court has declined to interpret the requirements of the treaty. Ademodi, 616 N.W.2d at 717 n. 2 (finding that the appellant waived his Vienna Convention claim, thereby avoiding any discussion of whether a person whose rights have been violated under the Vienna Convention must first demonstrate prejudice before obtaining relief.)

This issue is currently being reviewed in several courts throughout the United States. The Vienna Convention itself does not prescribe any recourse for violation of its requirement that a foreign national be informed of the right to consult with a consular representative upon being arrested. United States v. Ademaj, 170 F.3d 58, 67 (1st Cir.1999). Thus, foreign nationals charged with criminal law violations have been seeking judicial remedies for violation of their Vienna Convention rights.

The Ninth Circuit has concluded that the Vienna Convention confers on foreign nationals the right of consular assistance following arrest. United States v. Lombera-Camorlinga, 170 F.3d 1241, 1242-43 (9th Cir.1999); United States v. Rangel-Gonzales, 617 F.2d 529, 530 (9th Cir.1980); United States v. Calderon-Medina, 591 F.2d 529, 530 (9th Cir.1979).

While the United States Supreme Court has not addressed the issue on the merits, it has stated that if the Vienna Convention is violated and the issue was raised properly at trial and proved,

it is extremely doubtful that the violation should result in the overturning of a final judgment of conviction without some showing that the violation had an effect on the trial.

Breard v. Greene, 523 U.S. 371, 377, 118 S.Ct. 1352, 1355, 140 L.Ed.2d 529 (1998); see also Lombera-Camorlinga, 170 F.3d at 1244 (defendant bears initial burden of showing prejudice); Murphy v. Netherland, 116 F.3d 97, 100 (4th Cir., 1997) (defendant failed to demonstrate prejudice from alleged violation of his Vienna Convention rights); Faulder v. Johnson, 81 F.3d 515, 520 (5th Cir.1996) (reversal of conviction due to alleged Vienna Convention violation unwarranted because help from Canadian consulate would have been the same as or cumulative of defense counsel’s assistance); Waldron v. I.N.S., 17 F.3d 511, 518-19 (2d Cir.1993) (showing of prejudice required when alien seeks to avoid deportation based on violation of Vienna Convention right); United States v. Proa-Tovar, 975 F.2d 592, 595 (9th Cir. 1992) (alien seeking to exclude evidence of deportation order must establish that prejudice resulted from violation of Vienna Convention right).

The remedy of suppression is not available for every violation of federal law, but is limited to the violation of the most basic and valued constitutional rights. Courts addressing the issue appear reluctant to equate a violation of a defendant’s right to consular notification with other rights such as the right to counsel. Similarly persuaded, we conclude that Miranda bears the burden of proving he was prejudiced by the violation.

B. Did Miranda demonstrate that he was prejudiced by violation of his Vienna Convention rights?

Miranda contends that, in fact, he made a sufficient showing of prejudice. He submitted an affidavit from the Mexican consulate outlining the policies of the consulate. It would have advised Miranda not to speak with investigative authorities without an attorney present and not to answer any questions asked of him in English.

Before giving his statement to the police, Miranda was informed of his right to counsel and the right to remain silent. He voluntarily waived those rights. Thereafter, Sergeant Kellerman interviewed Miranda who confessed that the drugs in his pocket were for his personal use and that he had a $250-$300 a day heroin and crank habit. This confession was part of the evidence presented to the court and provided the basis for Miranda’s conviction for possession of methamphetamine.

Miranda’s confession was given in English. But he makes no claim that he did not understand English or that he did not understand his right to counsel and his right to remain silent. There is no indication that he did not know how to retain an attorney. Simply put, Miranda failed to demonstrate that assistance from the Mexican consul would have resulted in a different, more beneficial, outcome.

II. The Search

Miranda next argues that the warrant-less entry into his residence constituted an unreasonable search in violation of the Fourth Amendment prohibition against unreasonable searches and seizures. Miranda argues that his conviction should be reversed because the seizure of illegal drugs on his person incident to his arrest violated his constitutional rights.

The Fourth Amendment of the United States Constitution and Article I of the Minnesota Constitution prohibit unreasonable searches and seizures of persons and their homes. U.S. Const, amend. IV; Minn. Const, art. I, § 10. Warrantless searches and seizures are per se unreasonable, subject to only a few established exceptions. State v. Dickerson, 481 N.W.2d 840, 843 (Minn.1992). The recognized exceptions include “(1) a search conducted incident to a lawful arrest, (2) a search conducted because of exigent circumstances, and (3) a search conducted with consent.” State v. Hatton, 389 N.W.2d 229, 232 (Minn.App.1986), review denied (Minn. Aug. 13, 1986). The state contends that consent to search the residence by a third party was given and that exigent circumstances existed to justify a search.

A. Exigent Circumstances

Two exigencies justify a warrant-less search: (1) a situation where the danger to persons or to evidence is highly compelling and (2) when an aggregation of factors creates a ‘totality of the circumstances’ situation. State v. Hummel, 483 N.W.2d 68, 72 (Minn.1992). In certain circumstances a single factor such as protection of human life can create exigent circumstances. State v. Gray, 456 N.W.2d 251, 256 (Minn.1990) (citing Warden, Maryland Penitentiary v. Hayden, 387 U.S. 294, 299-300, 87 S.Ct. 1642, 1646-47, 18 L.Ed.2d 782 (1967)).

Here the risk of an explosion in the home suffices alone to create an exigent circumstance. Officer Drutschmann testified that she observed gasoline on the floor and Mifianda brandishing a lighter. She testified that she was concerned that a lighter spark could “blow up the place along with me as well.”

Additionally, an examination of the totality of circumstances reveals exigent circumstances were present, permitting a warrantless entry into Miranda’s home. We look to the following factors:

(a) whether a grave or violent offense is involved; (b) whether the suspect is reasonably believed to be armed; (c) whether there is strong probable cause connecting the suspect to the offense; (d) whether police have strong reason to believe the suspect is on the premises; (e) whether it is likely the suspect will escape if not swiftly apprehended; and (f) whether peaceable entry was made.

Gray, 456 N.W.2d at 256. Applying these factors, we find that exigent circumstances existed to justify an entry into Miranda’s residence.

First, this offence was certainly a grave one. The 911 caller, Miranda’s daughter, told police that Miranda was threatening to burn down the house and everybody in it. Second, while not armed with a firearm, Miranda was holding a lighter and standing on a floor covered with of highly inflammable liquid. Third, more than sufficient probable cause existed to connect Miranda to the attempted arson offense. In addition to the information police received from members of his family, an officer observed Miranda in his home, which was covered in gasoline, holding a lighter. Fourth, Miranda was obviously in the home. Co-residents told police that Miranda was inside and Officer Drutsch-mann heard Miranda yelling from inside the house and observed him there from the threshold of the open front door. Fifth, although the likelihood of Miranda attempting to escape is unknown, peaceable entry was made. Under either analysis the requisite exigent circumstances were present and the warrantless entry in to Miranda’s home was proper. ⅛

B. Consent

Did officer Drutchmann have permission to enter the premises? The district court found that Officer Drutschmann was given permission to enter the home. We will not reverse the findings of the district court unless those findings are clearly erroneous. State v. Byers, 570 N.W.2d 487, 491 (Minn.1997), cert. denied 523 U.S. 1123, 118 S.Ct. 1807, 140 L.Ed.2d 946 (1997). Where there is reasonable evidence to support them, findings of fact are not disturbed unless clearly erroneous. State v. Danh, 516 N.W.2d 539, 544 (Minn.1994).

An individual may certainly consent to a search of his or her own premises. State v. Thomas, 598 N.W.2d 389, 391 (Minn.App.1999). Similarly, a person with ‘common authority’ or other sufficient relationship to the premises, may consent to a search of the dwelling. State v. Pilot, 595 N.W.2d 611, 519 (Minn.1999).

Officer Drutschmann testified that both Miranda’s wife and daughter, occupants with common authority over the premises, consented to the search of the dwelling. Both Miranda’s wife and daughter testified that they gave no such permission. Following Officer Drutchmann’s testimony, the district court specifically found that Officer Drutschmann was given permission to enter the home.

Weighing the credibility of the witnesses is the exclusive province of the factfinder. State v. Larson, 520 N.W.2d 456, 461 (Minn.App.1994), review denied (Minn. Oct. 14, 1994). This court defers to the district court’s ability to judge the credibility of witnesses. Minn.R.Civ.P. 52.01. The district court’s finding that Officer Drutschmann was given permission to enter the home is not clearly erroneous. The warrantless entry into Miranda’s residence was proper.

DECISION

While appellant’s right to consular notification under the Vienna Convention was violated, appellant was not prejudiced thereby, and suppression of his confession was not warranted. The warrantless entry into appellant’s residence was proper. Accordingly appellant’s conviction is affirmed.

Affirmed.


author: SHUMAKER, Judge.

text:
    STATE of Minnesota, Respondent, v. Barbara Mae JOSEPH, et al., Respondents, Church Mutual Insurance Company, Appellant, William Henry, Respondent.
    No. C2-00-1364.
    Court of Appeals of Minnesota.
    Jan. 30, 2001.
    Review Granted March 27, 2001.

      Byron M. Peterson, Tomsche, Sonnesyn & Tomsche, P.A., Minneapolis, MN, for respondent State of Minnesota.
    Thomas D. Jensen, William L. Davidson, Lind, Jensen & Sullivan, P.A., Minneapolis, MN, for respondents Josephs.
    Patrick T. Tierney, Thomas E. McEllis-trem, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, MN, for appellant.
    John M. Steele, John M. Steele, P.A., Minneapolis, MN, for respondent William Henry.
    Considered and decided by WILLIS, Presiding Judge, SHUMAKER, Judge, and MULALLY, Judge.

       Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

SHUMAKER, Judge.

Appellant Church Mutual Insurance Company appeals from the district court’s determination that the expiration of the statute of limitations and the application of collateral estoppel preclude appellant from raising the defense of lack of coverage in a proceeding to garnish insurance benefits. Because the district court erroneously applied the statute of limitations and collateral estoppel, we reverse and remand. Appellant moves that portions of respondent Henry’s appendix be stricken; we grant the motion.

FACTS

On November 27, 1992, Barbara Mae Joseph was driving a minivan owned by her husband, James Marshall Joseph, when she struck and injured state trooper William Henry as he was giving a traffic citation to another motorist.

Both Josephs were employed by Two Harbors Gospel Tabernacle (Tabernacle) as ministers. Both were insured under their own liability policy, issued by Royal Insurance Company, covering the minivan. Tabernacle carried an excess liability insurance policy, written by Church Mutual Insurance Company, that covered Tabernacle employees acting within the scope of their employment.

After receiving notice of a claim by Henry, Church Mutual reserved its right to deny coverage. Henry sued the Josephs for damages in October 1993. In January 1994, the Josephs and Royal Insurance entered a settlement with Henry whereby Henry would receive the $250,000 Royal policy limit, and would continue his lawsuit against the Josephs so as to attempt to reach the excess coverage provided by Church Mutual, but would not hold the Josephs personally liable for any damages beyond the Royal policy limit. The Josephs then tendered the defense of the action to Church Mutual, who accepted the tender but continued to reserve its right to deny coverage.

During the next five years there were two trials and two appeals in the Henry lawsuit; the State of Minnesota intervened as a plaintiff in that action to claim reimbursement for workers’ compensation benefits it paid to Henry; Barbara Mae Joseph pleaded guilty to the petty misdemeanor offenses of operating the minivan with unsafe equipment and following too close at the time of the accident; and the Josephs, Henry, and the state engaged in a dispute with Church Mutual as .to whether Barbara Mae Joseph was acting within the scope of her employment for Tabernacle when she struck Henry. Final judgment in the personal injury lawsuit was entered in July 1999 in favor of Henry and the State of Minnesota. No party appealed from this judgment.

On October 28, 1999, Church Mutual brought a declaratory judgment action in Washington County against Henry and the Josephs, seeking a determination that there was no coverage under the Church Mutual policy because Barbara Mae Joseph was not acting within the scope of her employment for Tabernacle at the time of the accident.

In January 2000, the State of Minnesota brought a garnishment proceeding against Church Mutual in Chisago County, seeking proceeds of the excess insurance policy. While that matter was pending, Henry moved to dismiss Church Mutual’s declaratory judgment action.

The district court in Washington County entered its order on February 11, 2000, granting Henry’s motion on the ground that the declaratory judgment action was time-barred. The court stated that a “cause of action for a declaratory judgment on coverage” accrued not later than the date of Henry’s notice of claim to Church Mutual, and that the six-year statute of limitations for contract claims had expired prior to the commencement of the declaratory judgment action. Church Mutual did not appeal.

On July 14, 2000, the district court in Chisago County granted summary judgment in the garnishment proceeding in favor of Henry and the State of Minnesota. The court ruled that Church Mutual was not only time-barred from challenging coverage but was also collaterally estopped from doing so because of the judgment entered upon the dismissal order of February 11, 2000. Church Mutual appeals from the summary judgment.

ISSUES

1. Is there a statute of limitations for the commencement of a declaratory judgment action by an insurer who seeks the court’s determination as to the validity of a coverage defense?

2. Does collateral estoppel preclude the litigation of an issue as to which the party estopped had no opportunity to be heard in a prior action?

3. Does the law-of-the-case doctrine apply to an issue that has not been litigated?

ANALYSIS

On appeal from summary judgment, we determine whether any genuine issue of material fact exists and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The bases for the district court’s summary judgment order were purely issues of law. We need not defer to the district court on questions of law. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989) (citation omitted).

Statute of Limitations

In ruling that Church Mutual’s declaratory judgment action was time-barred, the district court applied the six-year statute of limitations in Minn.Stat. § 541.05, subd. 1(a) (1998), for actions on contracts, and said: “The statute of limitations on an underinsured motorist claim begins to run on the accident date.” The court then said that, by not bringing a declaratory judgment action within six years following the date of the accident, “Church Mutual should be barred from now asserting coverage defenses * ⅜ ⅜.”

The district court erred in two respects. First, there is no statute of limitations for declaratory judgment actions. Second, statutes of limitations apply to claims and not to defenses.

A declaratory judgment is an alternative and optional remedy available to parties who want the courts to declare their “rights, status, and other legal relations * * Minn.Stat. § 555.01 (1998). “A contract may be construed either before or after there has been a breach thereof.” Minn.Stat. § 555.03 (1998); Harrington v. Fairchild, 235 Minn. 437, 441, 51 N.W.2d 71, 73 (1952) (declaratory judgment action proper to determine parties’ rights under contract even though there had been no default).

We have held that, absent a statutory mandate, the commencement of a declaratory judgment action is not subject to any statute of limitations. Fryberger v. Township of Fredenberg, 428 N.W.2d 601, 605 (Minn.App.1988), review denied (Minn. Nov. 16, 1988).

Nothing in the Uniform Declaratory Judgments Act or in the caselaw interpreting that act suggests that anyone is ever required to bring a declaratory judgment action. Minn.Stat. § 555.01-555.16 (1998). Furthermore, the court may refuse to render a declaratory judgment if rendering a judgment would not resolve the uncertainty that precipitated the action. Minn.Stat. § 555.06 (1998). The district court here held that Church Mutual not only had to bring the action within six years after the accident but also had to obtain a favorable ruling. Implicit in this holding is the erroneous proposition that Church Mutual would have lost its coverage defense even if it had commenced the action within six years if the court then exercised its discretion not to render judgment.

It should be noted that a declaratory judgment action to determine the validity of an insurance coverage defense may become moot if the claimant has failed to commence its breach of contract action within the statute of limitations.

When a legal remedy is optional and a party elects not to pursue that remedy, logically the party cannot lose rights to pursue another available remedy. But the district court held to the contrary and we believe that was error.

The district court also applied to the declaratory judgment action a time limit for bringing an underinsured motorist claim. Church Mutual has not prosecuted a claim. Rather, it has raised a defense to a claim by other parties that the excess insurance contract covers Henry’s accident.

We know of no law, and none has been cited to us, that applies a statute of limitations to a defense. A defense is a response to a claim and logically could not be asserted prior to a claim being made. If the defense is affirmative, as presumably Church Mutual’s coverage defense is, it must be asserted responsively or it is deemed waived. See Minn.R.Civ.P. 12.02 (“every defense, in law or fact, to a claim for relief * ⅜ * shall be asserted in the responsive pleading * * Minn. R.Civ.P. 8.03 (a party must plead affirmatively any defense of avoidance).

There is no rational purpose for applying a statute of limitations to a defense. The question is whether the claim has been brought in a timely manner. Only if it has do we even reach a concern about a defense. And once a claim has been brought within the statute of limitations, the time limit is met and is no longer relevant to the action. Other time limits as provided by the rules of civil procedure then control.

Thus, the district court erred as a matter of law and its ruling on the statute of limitations must be reversed.

Collateral Estoppel

The district court also ruled that Church Mutual is precluded by collateral estoppel from asserting a coverage defense. Collateral estoppel, a rule of issue-preclusion, can apply when there has been a prior proceeding involving the same issue and the same parties or their privies; a final adjudication on the merits; and the estopped party has had a full and fair opportunity to be heard on the issue. Colonial Ins. Co. v. Anderson, 588 N.W.2d 531, 533 (Minn.App.1999). The court found that all elements of collateral estop-pel had been established:

Church Mutual is presenting the same coverage defenses it did in the declaratory judgment action — foremost, that there was no coverage under the policy because the Josephs were not on church business at the time of the accident. After a full and fair opportunity to be-heard, Church Mutual’s coverage defenses were disposed of in Judge Carlson’s Order dismissing the declaratory judgment action and entering judgment in favor of William Henry.

The order to which the court was referring is the Washington County order of February 11, 2000. That order was premised on the same error as the order under review. In the earlier order, the district court dismissed the action as time-barred because Church Mutual failed to bring a declaratory judgment action within six years after the accident. The court never reached the merits of the coverage defense. The parties never had any opportunity to present evidence on the critical coverage issue of whether or not Barbara Mae Joseph was on church business at the time of the accident. Thus, an essential element of collateral estoppel is lacking, and Church Mutual is not precluded by that doctrine from litigating its coverage defense in this garnishment proceeding.

The district court erred as a matter of law in applying collateral estoppel as a bar to Church Mutual’s coverage defense, and the ruling must be reversed.

Law-of-the-Case Doctrine

The parties did not raise the issue of law of the case below. Generally, we will not consider matters that were not argued and considered in the district court. Thiele v. Stick, 425 N.W.2d 580, 582 (Minn.1988) (citation omitted). However, we may do so if justice requires. Minn.R.Civ.App.P. 103.04. Because this case is being remanded, we will briefly address the law-of-the-case doctrine so that the parties will understand its inapplicability on remand.

The State of Minnesota argues that the issues the district court decided in the declaratory judgment action became the law of the case because Church Mutual did not appeal from the judgment.

The doctrine of the law of the case is a principle of practice and is not a substantive rule of law. Sands v. American Ry. Express Co., 159 Minn. 25, 26, 198 N.W. 402, 402 (1924). It has no res judica-ta or stare decisis effect:

The doctrine of law of the case is distinct from the doctrine of res judicata and stare decisis, even though similar underlying policy considerations are involved. Law of the case applies most commonly to situations where an appellate court has passed on a legal question and remanded to the [lower court] for further proceedings. The legal question thus determined by the appellate court will not be re-examined on a second appeal of the same case.

Brezinka v. Bystrom Bros. Inc., 403 N.W.2d 841, 843 (Minn.1987). Furthermore, the law of the case does not reach issues that were not litigated. See Sigurdson v. Isanti County, 448 N.W.2d 62, 66 (Minn.1989) (noting that, unlike res judica-ta, the “law of the case” doctrine “applies only to litigated issues and does not reach issues which could have been but were not litigated.”) (citation omitted).

The parties have never litigated the coverage defense, and this is the first appellate case that raises the issue of that defense. The law-of-the-case doctrine does not preclude Church Mutual from litigating its coverage defense in the garnishment action.

Motion to Strike

Church Mutual moved to strike portions of Henry’s appendix. We “will strike documents included in a party’s brief that are not part of the appellate record.” Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn.App.1992), aff'd, 504 N.W.2d 758 (Minn.1993). We grant Church Mutual’s motion to strike those documents in Henry’s appendix that had not been presented to the district court in the garnishment action.

DECISION

The district court erred by holding that the contract statute of limitations applies to an insurer’s declaratory judgment action where the insurer seeks to determine the validity of a coverage defense and by holding that the insurer is precluded by collateral estoppel from litigating an issue as to which the insurer had no opportunity to be heard in a prior related proceeding.

Reversed and remanded; motion granted.


author:
DANIEL F. FOLEY, Judge
     RANDALL, Judge

text:
    CITY OF NEW BRIGHTON, Respondent, v. 2000 FORD EXCURSION VIN# 1FMNU43S2YEA74156 Driven and Owned by Bruce Russell Barnes, Appellant, and Bruce Russell Barnes, Appellant, v. 2000 Ford Excursion VIN# 1FMNU43S2YEA74156, Respondent.
    No. C1-00-1064.
    Court of Appeals of Minnesota.
    Feb. 6, 2001.
    Review Denied April 17, 2001.

      Samuel A. McCloud, Kelly Vince Grif-fitts, Richard P. Ohlenberg, Shakopee, MN, (for appellant).
    Thomas R. Hughes, Hughes & Costello, St. Paul, MN, (for respondent).
    Considered and decided by CRIPPEN, Presiding Judge, RANDALL, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge

This appeal is from a judgment ordering forfeiture of appellant’s vehicle following a DWI violation. We affirm.

FACTS

On October 19, 1999, appellant Bruce Barnes purchased a 2000 Ford Excursion worth approximately $40,000 and registered it in his name only. A portion of the money used to purchase the vehicle was withdrawn from an asset account Barnes and his wife shared, valued at $2,983,687.20.

After leaving the dealership, Barnes drove to a bar and consumed alcohol. He then drove home, parked the vehicle in his driveway, and went inside his house. Barnes returned to his vehicle later that evening with some compact discs to test the vehicle’s stereo system. A neighbor called the police complaining of loud music. The police arrived at Barnes’s home and found him sitting in the driver’s seat of his vehicle listening to music. Barnes submitted to a blood alcohol test, which indicated an alcohol concentration of 0.14. Barnes was arrested for driving while intoxicated.

Because Barnes had two prior impaired driving convictions or license revocations within five years of the October 19,1999, arrest, his vehicle was seized pursuant to Minn.Stat. § 169.1217, subd. 2 (1998). Subsequently, the state began forfeiture proceedings pursuant to Minn.Stat. § 169.1217, subd. 8 (1998). Pursuant to the statute’s procedure for determination of a forfeiture, Barnes filed a civil complaint on November 10, alleging that the seizure of his vehicle violated double jeopardy and constituted an excessive fine. After Barnes was convicted of the DWI charge on January 18, 2000, the state filed a motion for summary judgment in the forfeiture proceeding. There was a motion hearing on March 17, 2000. On May 8, the district court issued an order granting the state’s motion for summary judgment and directing that Barnes’s vehicle be forfeited to the City of New Brighton. The district court amended this order on May 18,'but the amendment did not affect the prior order regarding the forfeiture. Also on May 18, the district court issued another amended order dismissing Barnes’s civil complaint. On June 12, 2000, the district court issued an order consolidating Barnes’s civil claim and the state’s forfeiture claim.

ISSUES

I. Does vehicle forfeiture under Minn. Stat. § 169.1217 violate constitutional prohibitions against double jeopardy?

II. Does the forfeiture of appellant’s vehicle under Minn.Stat. § 169.1217 violate constitutional prohibitions against excessive fines?

III. Is appellant’s wife an owner of the forfeited vehicle within the meaning of Minn.Stat. § 169.1217?

IV. Did the district court err in granting the state’s motion for summary judgment?

ANALYSIS

“On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990) (citation omitted). A statute's constitutionality is a question of law, which we review de novo. Estate of Jones by Blume v. Kvamme, 529 N.W.2d 335, 337 (Minn.1995). We exercise the power to declare a statute unconstitutional with extreme caution and only when absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn.1989). One who challenges the constitutionality of a statute must overcome every presumption in favor of its constitutionality. Miller Brewing Co. v. State, 284 N.W.2d 353, 356 (Minn.1979). Absent good reason, this court will apply federal interpretations to a state constitutional provision with “almost identical language to the federal.” Hawes v. 1997 Jeep Wrangler, 602 N.W.2d 874, 877 (Minn.App.1999) (quotation omitted).

Minnesota’s vehicle forfeiture statute provides for forfeiture of a vehicle used in the commission of a “designated offense.” Minn.Stat. § 169.1217, subd. 6 (1998). “Designated offense” includes a DWI violation “within five years of two prior impaired driving convictions, or two prior license revocations, or a prior impaired driving conviction and a prior license revocation.” Id., subd. 1(c)(1)® (Supp.1999). After a person commits a designated offense, “[a]ll right, title, and interest in a vehicle subject to forfeiture ⅜ ⅜ ⅜ vests in the appropriate agency.” Id., subd. -3 (1998). A vehicle is subject to forfeiture only if “its owner knew or should have known of the unlawful use or intended use.” Id., subd. 7(d) (Supp.1999). Once a judicial determination of forfeiture has been made, the agency must either sell the vehicle and distribute the proceeds, or keep the vehicle for official use. Id., subd. 9(1), (2) (Supp.1999).

I. Double Jeopardy

Appellant first argues that forfeiture of his Ford Excursion constitutes double jeopardy in violation of the United States and Minnesota Constitutions. The Fifth Amendment to the United States Constitution provides that no person shall “be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. The Minnesota Constitution similarly provides that “no person shall be put twice in jeopardy of punishment for the same offense.” Minn. Const, art. I, § 7. “The Double Jeopardy Clauses of the United States and Minnesota Constitutions prohibit both multiple punishment and successive prosecution.” City of Pine Springs v. One 1992 Harley Davidson, 555 N.W.2d 749, 750 (Minn.App.1996) (citation omitted); see also Hudson v. United States, 522 U.S. 93, 99, 118 S.Ct. 488, 493, 139 L.Ed.2d 450 (1997) (stating that “[t]he Clause protects only against the imposition of multiple criminal punishment for the same offense.” (citations omitted)). “Thus, a criminal adjudication followed by a civil forfeiture, or vice versa, violates double jeopardy only if the forfeiture constitutes ‘punishment.’ ” One 1992 Harley Davidson, 555 N.W.2d at 750.

The district court’s determination that forfeiture of Barnes’s vehicle would not violate double jeopardy is consistent with our prior holdings. See Hawes, 602 N.W.2d at 877-79; Lukkason v. 1993 Chevrolet Extended Cab Pickup, 590 N.W.2d 803, 807-08 (Minn.App.1999), review denied (Minn. May 18, 1999); One 1992 Harley Davidson, 555 N.W.2d at 750-52; City of New Hope v. 1986 Mazda 626, 546 N.W.2d 300, 303-04 (Minn.App.1996). In Lukkason, we stated that section 169.1217 passes the constitutional test for double jeopardy articulated in United States v. Ursery, 518 U.S. 267, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996). Lukkason, 590 N.W.2d at 807.

In Ursery, the Supreme Court articulated a two-step test for determining whether a civil forfeiture constitutes “punishment” for double jeopardy purposes. Under that test:

First, a court must examine the governing statute to determine whether the legislative body intended the forfeiture proceedings to be criminal/punitive or civiVremedial. Next, the court must consider whether the party challenging the statute has shown by the clearest proof that the forfeiture is so punitive in fact that it may not legitimately be viewed as civil in nature.

Hawes, 602 N.W.2d at 878 (quotation and citations omitted). A civil in rem forfeiture “that has some punitive aspects will not necessarily violate double jeopardy provisions if it still serves important non-punitive goals.” Id. (citing Ursery, 518 U.S. at 290, 116 S.Ct. at 2148).

Barnes does not dispute that the legislature designed forfeiture under Minn. Stat. § 169.1217 as a civil proceeding. See 1986 Mazda 626, 546 N.W.2d at 302 (assuming that forfeiture under section 169.1217 is civil proceeding). As we have recognized before:

[T]he legislature intended vehicle forfeiture under Minn.Stat. § 169.1217 to serve the important, nonpunitive remedial goal of enhancing public safety by removing from repeat intoxicated drivers the instrumentality used to commit their violations.

Hawes, 602 N.W.2d at 878 (citing Lukkason, 590 N.W.2d at 806; One 1992 Harley Davidson, 555 N.W.2d at 751; 1986 Mazda 626, 546 N.W.2d at 303-04). We presume that civil forfeitures do not violate double jeopardy. Lukkason, 590 N.W.2d at 807.

Given the “well-intended purpose” of the statute, the only question remaining under the test articulated in Ursery is

whether the record contains the requisite clearest proof that the effect of the statute is so punitive that it negates the legislature’s intent to establish a civil, remedial mechanism.

Hawes, 602 N.W.2d at 878 (quotation omitted). Barnes argues that the value of his vehicle is the clearest proof that the effect of section 169.1217 is so punitive that it can only be characterized as criminal. We disagree. To reiterate:

The primary remedial purpose of protecting public safety is effectuated by vehicle forfeiture. The statute applies only where the driver of the vehicle has not heeded the warnings of previous sentences and license revocations. Only where those sanctions have failed is the instrumentality forfeited as another means toward the desired end of removing intoxicated drivers from public streets and highways.

Hawes, 602 N.W.2d at 878 (citing 1986 Mazda 626, 546 N.W.2d at 304, quoting Lukkason, 590 N.W.2d at 806). In light of the broad purpose of Minn.Stat. § 169.1217, the seriousness of the risks associated with multiple DWI-related occurrences, and Barnes’s disregard of warnings from previous instances of intoxicated driving, we conclude that forfeiture of his Ford Excursion does not constitute punishment for double jeopardy purposes. See id. (“A civil in rem forfeiture that has some punitive aspects will not necessarily violate double jeopardy provisions if it still serves important non-punitive goals.” (citation omitted)).

Barnes argues that Hawes and Lukka-son are not dispositive because the vehicles forfeited in those cases were of “relatively inexpensive values.” In Hawes, we estimated the potential loss after forfeiture of his vehicle to be approximately $4,000. Id. at 878-79. In Lukk&son, we found that the value of the vehicle forfeited was $11,534.92. Lukkason, 590 N.W.2d at 807. In both cases, we found that the forfeitures were not excessively punitive to render the cases criminal rather than civil. While Barnes’s vehicle is of higher value than the vehicles cited above, the financial loss he has suffered is simply a permissible punitive aspect of an otherwise civil and remedial statute.

Because Barnes articulates no compelling reason to justify departing from this court’s previous decisions that proceedings under section 169.1217 do not violate double jeopardy, we reject his double jeopardy claim.

II. Excessive Fines

Barnes also argues that forfeiture of his Ford Excursion violates federal and state constitutional protections against excessive fines. “The punitive aspects of the primarily remedial vehicle forfeiture statute, however, place it within the purview of the Eight Amendment’s Excessive Fines Clause.” Lukkason, 590 N.W.2d at 807-08 (citation and footnote omitted); Minn. Const, art. I § 5. “A civil in rem forfeiture with dual remedial and punitive purposes may violate the Excessive Fines Clause even if it passes the constitutional test for double jeopardy.” Hawes, 602 N.W.2d at 879 (citations omitted).

The Minnesota Supreme Court recently analyzed the state and federal excessive fines clauses. State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000). Although Rewitzer involved criminal fines imposed on a person convicted of several crimes, we believe the supreme court’s analysis of the excessive fines clause is also applicable to civil in rem forfeitures with both punitive and remedial purposes. See Austin v. United States, 509 U.S. 602, 620-22, 113 S.Ct. 2801, 2811-12, 125 L.Ed.2d 488 (1993) (although labeled in rem, civil forfeiture of property used to “facilitate” commission of drug crimes was partly punitive and thus subject to review under excessive fines clause); Lukkason, 590 N.W.2d at 808 (“[A] modern, statutory forfeiture is a fine for Eighth Amendment purposes if it constitutes punishment even in part, regardless of whether the proceeding is styled in rem or in personam.” (quotation omitted)).

In Rewitzer, the supreme court held that a district court “improperly imposed $273,600 in fines and surcharges on a defendant who pleaded guilty to one count each of controlled substance crimes in the fifth, third, and second degree.” 617 N.W.2d at 408 (finding that fines and surcharges were 1,368 times greater than value of drugs involved and violated excessive fines clauses of United States and Minnesota Constitutions). The court relied on United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), for guidance on how to apply the excessive fines clause. Rewitzer, 617 N.W.2d at 412-14.

The facts of Bajakajian are as follows:

Hosep Bajakajian was leaving the United States from the Los Angeles International Airport when customs inspectors discovered that he was carrying $357,144 in currency. Bajakajian was charged with violating a federal statute requiring that person's transporting more than $10,000 in currency from the United States report that they are doing so. Federal statutes further provided that a court in imposing sentence on a person convicted of an offense in violation of [the statute] shall order that' the person forfeit to the United States any property, real or personal, involved in such an offense.

Rewitzer, 617 N.W.2d at 413 (quotation and citations omitted). A federal grand jury later indicted Bajakajian on a separate count seeking forfeiture of the $357,144 seized from him. Id.

A district court and the Ninth Circuit Court of Appeals found that in light of the offense committed, full forfeiture would be too harsh. The United States Supreme Court granted certiorari and found that full forfeiture would violate the excessive fines clause. Bajakajian, 524 U.S. at 337,118 S.Ct. at 2038. In reaching its decision, the Supreme Court formulated a standard for evaluating the constitutionality of a fine under the excessive fines clause. See id. at 336, 118 S.Ct. at 2037. “Specifically, the Court adopted the standard of gross disproportionality as articulated in Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), and held that a fine is unconstitutionally excessive if it is grossly disproportional to the gravity of the offense.” Rewitzer, 617 N.W.2d at 413 (citation omitted). Under Solem, there are three factors to consider in determining proportionality:

(1) the gravity of the offense and the harshness of the penalty,
(2) comparison of the contested fine with fines imposed for the commission of other crimes in the same jurisdiction, and
(3) comparison of the contested fine with fines imposed for commission of the same crime in other jurisdictions.

Id. (citation omitted). The Minnesota Supreme Court has adopted this test to determine whether a fine violates the excessive fines clause. Id. at 414.

Appellant contends the forfeiture of his vehicle was grossly disproportional to the gravity of his offense. We must examine the Solem factors to determine the validity of his contention. “The first Solem factor compares the gravity of the offense with the severity of the fine.” Id. The district court found that Barnes, a “repeat and unreconstructed drunk driver,” is exactly the type of driver the vehicle forfeiture law was designed for. We agree. In adopting the vehicle forfeiture statute

the legislature was concerned with the well-documented dangers of intoxicated drivers on streets and highways and the particularly troubling problem of multiple DWI offenders * * * who continue to expose the public to these dangers.

Lukkason, 590 N.W.2d at 808. In view of the “seriousness of the risks associated with multiple DWI-related occurrences,” we conclude that the perceived harshness of the forfeiture of Barnes’s vehicle does not exceed the gravity of Barnes’s third DWI offense within five years.

The second Solem factor compares the contested fine, or forfeiture, with fines imposed for the commission of other crimes in Minnesota. Rewitzer, 617 N.W.2d at 414. Appellant pleaded guilty to a gross misdemeanor DWI. The maximum fine for a gross misdemeanor in Minnesota is $3,000. Minn.Stat. § 609.02, subd. 4 (2000). Felonies in Minnesota also have maximum fines. See, e.g., Minn.Stat. § 609.245, subds. 1, 2 (2000) (listing maximum fines for aggravated robbery: $35,000 for first degree, $30,000 for second degree); 609.582, subds. 1, 2, 3 (2000) (listing maximum fines for felony burglary: $35,000 for first degree, $20,000 for second degree, $10,000 for third degree). The maximum fine for criminal vehicular homicide is $20,000. Minn.Stat. § 609.21, subd. 1 (2000). Therefore, the value of the vehicle forfeited from Barnes is higher than the fines imposed for many other offenses committed in Minnesota. But, a forfeiture is not excessive merely because the value of Barnes’s car is higher than the maximum fines he might receive for committing similarly classified offenses. Under prior cases, forfeitures have not been deemed excessive simply because the value of the car forfeited was higher than the fines authorized for similarly ranked offenses. For example, in Lukkason, another DWI forfeiture case, the value of the vehicle forfeited was $11,534.92, an amount substantially higher than the maximum fine for a gross misdemeanor DWI. 590 N.W.2d at 807-08 (finding forfeiture constitutional because the value of the vehicle was not grossly disproportional to the gravity of the offense).

“The third and final Solem factor compares the contested fine with fines imposed for the same crimes in other jurisdictions.” Rewitzer, 617 N.W.2d at 415. In Michigan, a person’s vehicle may be forfeited if he or she operates the vehicle while “under the influence of intoxicating liquor.” Mich. Comp.Laws Ann. § 257.625n(l)(a) (West 2000). In Tennessee, “[tjhe vehicle used in the commission of a person’s second or subsequent” offense of driving while under the influence of alcohol is “subject to seizure and forfeiture.” Tenn.Code Ann. § 55-10-403(k)(l)(3) (1998). Similarly, in Oregon

[a] motor vehicle may be seized and forfeited if the person operating the vehicle is arrested or issued a citation for driving while under the influence of intoxicants * * * and the person, within three years prior to the arrest or issuance of the citation, has been convicted of* * *.
(a) Driving while under the influence of intoxicants[.]

Or.Rev.Stat. § 809.730(l)(a) (1999). In North Dakota, a motor vehicle may be forfeited if a person drives under the influence of alcohol and has been convicted of driving under the influence of alcohol “within five years preceding the violation.” N.D.Cent.Code § 39-08-01.3 (1999). In Montana

[o]n the third or subsequent conviction of [driving under the influence of alcohol], the court * * * shall order the motor vehicle owned and operated by the person at the time of the offense to be seized and subjected to the [forfeiture] procedure provided [by statute].

Mont.Code Ann. § 61-8-733(1) (1999). Finally, in South Carolina

[i]n addition to the penalties for a person convicted of a * ⅜ * third or subsequent violation within the last ten years of operating a motor vehicle while under the influence of intoxicating liquor * * * the person must have the motor vehicle he drove during [the] offense forfeited!.]

S.C.Code Ann. § 56-5-6240(A) (West Supp.2000).

In examining the vehicle forfeiture statutes of other states, we have determined that many other states, in addition to Minnesota, subject a person’s vehicle to forfeiture when such person has been convicted, of several impaired driving offenses. The statutes from the other jurisdictions mentioned above do not place a monetary limit on the value of a vehicle that may be forfeited.

Based on our analysis of the Solem factors, we conclude that the forfeiture of Barnes’s vehicle was not “disproportionately harsh” when compared with

(1) the gravity of his offensef], (2) the fines that can be imposed for other same-level offenses in Minnesota, and
(3) the [penalties] imposed for the same [proceedings] in other jurisdictions.

Remtzer, 617 N.W.2d at 415. Therefore, we find Barnes’s excessive fines claim to be without merit.

III.

Barnes argues that because his wife contributed money toward the purchase of the Ford Excursion, she is an owner, making forfeiture of the vehicle improper. “A motor vehicle is subject to forfeiture under this section only if its owner knew or should have known of the unlawful use or intended use.” Minn.Stat. § 169.1217, subd. 7(d) (Supp.1999). “ ‘Owner’ means the registered owner of the motor vehicle according to records of the department of public safety * * ⅜.” Minn.Stat. § 169.1217, subd. 1(e) (Supp. 1999). Here, the vehicle was registered in Barnes’s name, not his wife’s name.

Barnes cites Rife v. One 1987 Chevrolet Cavalier, to support the proposition that his wife is an owner of the Ford Excursion because the vehicle was purchased with funds from an asset account to which she contributed. Rife v. One 1987 Chevrolet Cavalier, 485 N.W.2d 318, 321-22 (Minn.App.1992) (finding that even though car registered in father’s name, evidence that seized car was owned, operated, and paid for with daughter’s money was sufficient to establish that car was owned by daughter, not father), review denied, (Minn. June 30, 1992). Here, there is no evidence that the Ford Excursion was owned and operated by Barnes’s wife. In fact, his wife testified that she drives her own BMW. In addition, even if Barnes’s wife may have contributed substantially to the bank account from which the vehicle was purchased, the money was not exclusively her own since both were signatories on the account.

Furthermore, Rife involves Minn.Stat. § 609.531, a different forfeiture statute than the one involved in this case. The statute analyzed in Rife

designates the registered owner only as the “alleged owner” for purposes of forfeiture proceedings. The legislature’s use of the word “alleged” indicates that ownership is not uncontrovertible, and the reference coincides with decisions for other purposes that registration is only a prima facie indication of title.

485 N.W.2d at 321 (citation omitted). Minn.Stat. § 169.1217 (Supp.1999), however, defines “owner” as the registered owner, and makes no mention of “alleged owners.”

Because appellant was the owner of the vehicle and knew of the unlawful use, his vehicle was properly subject to forfeiture under section 169.1217.

IV.

Finally, Barnes argues that summary judgment in favor of the City of New Brighton was improper because there was a genuine issue of material fact regarding who owned the Ford Excursion. However, as mentioned above, the statute at issue defines an “owner” as the registered owner of a vehicle. Minn.Stat. § 169.1217, subd. 1(e) (Supp.1999). There is no dispute that Barnes was the registered owner of the vehicle. “Once a court determines that the agency seeking forfeiture has met all the statutory requirements, an order for forfeiture is mandatory.” Hawes, 602 N.W.2d at 880 (citation omitted).

Under the terms of the statute, a motor vehicle used to commit a designated offense is subject to forfeiture if the driver is convicted of the offense and the owner knew of the intended use. Minn.Stat. § 169.1217, subd. 7(a), (d) (Supp.1999). There are no material issues of fact that the vehicle was owned by Barnes and was used by him in the commission of a designated offense.

DECISION

We affirm the district court’s determination that the civil forfeiture in this case does not constitute double jeopardy or violate the excessive fines clause. Because no genuine issues of material fact exist, we conclude that Barnes’s Ford Excursion is subject to forfeiture as a matter of law.

Affirmed.

RANDALL, Judge

(dissenting).

I respectfully dissent. The question is close, but I conclude that the forfeiture of Barnes’s car, on these facts, is in violation of the federal and state constitutional protections against excessive fines. See U.S. Const. Amend. VIII; see also Minn. Const. Art. I, § 5 (both stating “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”) (emphasis added).

The State of Minnesota faced the issue head on in State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000). As the majority concedes, in Rewitzer, the Minnesota Supreme Court found that a district court “improperly imposed $273,600 in fines and surcharges on a defendant who pleaded guilty to one count each of controlled substance crimes in the fifth, third, and second degree * ⅜ ⅜.” Id. at 408 (finding that fines and surcharges were 1,368 times greater than value of drugs involved and violated excessive fines clauses of United States and Minnesota Constitutions). Rewitzer was a felony case in which the fine was excessive. Here we are dealing with a gross misdemeanor traffic offense. The Reivitzer court relied on United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), for guidance on how to apply the excessive fines clause. Rewitzer, 617 N.W.2d at 412-13. Bajaka-jian was also a felony case where the forfeiture of $357,144 was found to be unconstitutionally excessive, based on the gravity of the offense compared to the amount of forfeiture. Neither Rewitzer nor Bajakajian came up with a “bright line,” but did come up with a proportionality test, set out in Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The Solem factors are

(1) the gravity of the offense and the harshness of the penalty,
(2) comparison of the contested fine with fines imposed for the commission of other crimes in the same jurisdiction, and
(3) comparison of the contested fine with fines imposed for commission of the same crime in other jurisdictions.

Rewitzer, 617 N.W.2d at 413 (citation omitted).

The forfeiture in this case miserably fails the first prong of Solem. The forfeiture also fails the second prong, the comparison of the punishment through forfeiture to fines imposed for other offenses in Minnesota.

The first prong under Solem is a common-sense test. It compares the gravity of the offense with the gravity of the punishment. If history teaches us anything, it is that when the Crown has a citizen in its grasp, the punishment has to be just. If it is too arbitrary, too capricious, and too punitive, and is laid on the citizen’s head simply because “we have the power to do it,” the government loses credibility, and when it loses credibility, it falls. People understand being punished and getting their just desserts. They do not understand getting kicked when they are down. When you kick people when they are down, they tend to get together in small groups, politely drive down to the nearest wharf, carefully park to avoid fire hydrants and no parking zones, and then start throwing tea and coffee into the harbor.

The majority opinion accurately sets out the facts. Barnes was sitting in his brand new car in his own driveway in his own yard listening to car music. The neighbors complained and the police came. If he had been charged with “disturbing the peace” or simply told, sensibly, to turn down the music, we wouldn’t even have this case in front of us. Barnes was not convicted of drunken driving. Barnes was convicted of “drunken listening to music in his own car, in his own driveway, in his own yard.” If he had not had the misfortune to be playing the Rolling Stones rather than Mantovani or Neil Diamond, he would still have his $40,000 vehicle. This is not facetious. These are the true facts of record.

On these facts, forfeiting a $40,000 vehicle is “off the wall” grossly disproportionate. Neither Rewitzer nor Bajakajian nor Solem set an exact mathematical formula for computing fines, forfeitures, and surcharges to determine if they are proportionate, proportionate bordering on harsh, or grossly disproportionate. But it can be said unequivocally that those cases stand for the proposition that a line in the sand has to be drawn somewhere by the courts when viewing the state’s treatment of its citizens. I can only conclude that here the state crossed the line.

The unabated arbitrariness of the forfeiture statute, with no controls present, is easily seen. You can have a poor person driving a $700 beater and he loses his car. You have a rich person driving a $40,000, or $60,000, or $100,000 luxury car and he commits the identical offense. He loses that car. You have a poor person who has saved all his life to finally buy a brand new car. He forfeits it. A rich person happens to be driving around in a $700 beater and commits the identical offense. He loses only that car. Normal criminal penalties, which include fines, are, at least, uniform. Misdemeanors are capped at $700, gross misdemeanors at $3,000, and felonies have limits in ascending order from least severe to more severe. For instance, the maximum fine for first degree aggravated robbery is $35,000 and $30,000 for second-degree aggravated robbery under Minn.Stat. § 609.245, subds. 1, 2 (1998); the maximum fine for first degree felony burglary is $35,000 under Minn.Stat. § 609.582, subds. 1 (1998); and the maximum fine for criminal vehicular homicide is $20,000 under Minn.Stat. § 609.21 (1998).

With a maximum fine for criminal vehicular homicide of $20,000, for a court to impose a $40,000 forfeiture for the “criminal offense” of listening to a car stereo while parked in your own driveway with a blood alcohol reading just over .10, is punitively disproportionate to the offense. I agree that Barnes has a prior record. That is why he is in the fix that he is in. But his vehicle was not forfeited on those prior offenses. It was forfeited on this one.

The second issue is whether Barnes’s spouse has standing to contest the forfeiture. I suggest that she does, that there is a fact question as to her partial ownership, and, consequently, this issue is not ripe for summary judgment. The record indicates the vehicle was purchased from an asset account to which Barnes’s spouse had contributed. That raises the issue of whether she has an equitable and/or a legal interest.

The majority simply cites the statute, which indicates that the owner of a vehicle is the registered owner according to the records of the Department of Public Safety. We know the statute says that; but we also know that at times the statute is simply incorrect and the development of relevant facts is needed to sort out who truly owns the vehicle. For instance, in Minnesota, when you sell a car, you sign off on the title. There is a little receipt on the car title, which the buyer signs showing you have sold it and he has bought it. It is up to the buyer to register his new title, show proof of insurance, and pay the necessary registration fees. Some buyers don’t do that right away. Some buyers don’t ever do that. An innocent, unsuspecting, previous owner of a vehicle can get a letter from the Department of Public Safety months, or even a few years, after a bona fide sale stating that there are unpaid traffic and/or parking tickets against the vehicle and that a warrant will be issued for your (the so-called registered owner) arrest if you don’t appear in court and pay the fines. You are entitled to go into court and show there was a bona fide sale and that the car is not yours.

The same is true when a buyer (who did not complete title transfer) later on is in a car accident and an injured plaintiff sues the driver and brings you in as the owner. Minnesota allows parties to sue the non-driving owner of vehicles under the Safety Responsibility Act. Minn.Stat. § 170.54. But an “owner” who is not a real owner because there was a bona fide sale, is entitled to go into court and attempt to prove that. See Carousel Automobiles, Inc. v. Gherity, 527 N.W.2d 813, 817 (Minn.1995) (stating avoidance of vicarious liability achieved with extrinsic evidence rebutting presumption of ownership created when party’s name appears as owner on certificate of title). There is some evidence in this record that another person, Barnes’s spouse, may have an equitable and/or legal ownership of the vehicle in question. Barnes and his spouse have the burden of proof. They may or may not be able to meet it, but they have raised a material fact issue that is in dispute and, thus, this issue is not ready for summary judgment. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (stating summary judgment is appropriate where no genuine issue of material fact exists and one party is entitled to judgment as matter of law).

In sum, I respectfully dissent on two issues, the first being that under this narrow set of facts, the forfeiture of a $40,000 vehicle for this offense violates the federal and state constitutional protection against excessive fines. Second, even if the forfeiture stands up, Barnes has raised a legitimate fact issue as to ownership of the vehicle, and that should be remanded for a trial on the merits.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Neither Barnes’s arrest for DWI nor his conviction are at issue in this case.