Pubdate: Wed, 31 Jan 2001 Source: Advocate, The (LA) Copyright: 2001 The Advocate, Capital City Press Contact: 525 Lafayette St., Baton Rouge, LA 70802 Website: http://www.theadvocate.com/ Author: Joe Gyan, Jr., New Orleans Bureau HIGH COURT TO HEAR CHALLENGE TO DWI VEHICLE SEIZURE NEW ORLEANS -- Norman Keith Edwards' truck has been impounded ever since he pleaded guilty nearly two years ago to a driving while intoxicated charge stemming from his third DWI arrest in a four-month span. Now, the Denham Springs man not only wants his truck back, but he also is asking the Louisiana Supreme Court to strike down the state law that allows for the seizure, impoundment and sale at public auction of a vehicle that a person convicted of third-offense DWI was driving at the time of the arrest. The Supreme Court will hear oral arguments Feb. 21 from Edwards' attorney and the East Baton Rouge Parish District Attorney's Office. In an unusual move, the high court also has invited comments from the Louisiana District Attorneys Association. "Clearly it's a serious issue," said Baton Rouge lawyer Scott Collier, who represents the 39-year-old Edwards. Longtime Louisiana District Attorneys Association executive director Pete Adams said that only once before have the justices sought comment from the association. Normally, the LDAA must ask for the high court's permission to intervene in a case, he said. Collier contends the forfeiture provision of the third-offense DWI law is unconstitutional because the 1974 Louisiana Constitution says "personal effects shall never be taken." "The plain language of the constitution says they can't do that," he said. But in 1989, the state Legislature passed the Seizure and Controlled Dangerous Substances Property Forfeiture Act, which involves property involved in illegal drug activity or derived from such activity. The state Supreme Court upheld the act's constitutionality in 1996. Collier claims the 1997 seizure provision of the third-offense DWI law does not fall under the 1989 drug contraband exception to the constitutional prohibition against the taking of personal effects. "A constitutionally protected right always and necessarily trumps an act of the legislature in conflict with that right," Collier argues in documents filed at the high court. Assistant District Attorney Creighton Abadie disagrees and draws a distinction between the 1989 drug forfeiture act and the third-offense DWI seizure provision. Abadie says the '89 act allows for the forfeiture of property in a "civil proceeding," while the DWI vehicle seizure provision is part of a criminal sentence. "The forfeiture of a vehicle upon conviction is no different than a person being sentenced to pay a fine upon conviction equal to the value of the vehicle he was driving at the time of the offense, and thus, the provision is constitutional," Abadie argued in documents filed at the state 1st Circuit Court of Appeal that now are part of the Supreme Court record. A three-judge 1st Circuit panel voted 2-1 last February to affirm Edwards' sentence, which included the forfeiture of his car. The two-judge majority said it agreed with Edwards that the DWI vehicle seizure statute "does not fall under the contraband drug exception," but the judges found the statute to be constitutional under the U.S. and Louisiana constitutions' due process clauses. The judges said Edwards was given fair notice and a chance to be heard before his vehicle was taken. "Advance notice does not create authority to do that which the Constitution expressly states not to do," Collier argues. State District Judge Tony Clayton gave Edwards a suspended two-year prison term and put him on probation for 18 months with numerous conditions. Edwards was booked in December with fourth-offense DWI after he backed into another vehicle on North Harrell's Ferry Road, according to Baton Rouge police. Edwards, who refused to take a field sobriety test, also was booked with reckless operation of a vehicle and driving without carrying a license, police said. Supreme Court records show Edwards' first DWI arrest came Dec. 18, 1997; he was convicted Jan. 14, 1998, in Baton Rouge City Court. His second DWI arrest was March 7, 1998, with an April 13, 1998, conviction in Denham Springs City Court. Edwards' third DWI arrest came the day before his April 13, 1998, conviction. He pleaded guilty to the third-offense charge Feb. 1, 1999. The truck Edwards was driving at the time of his third DWI arrest remains in the custody of the East Baton Rouge Parish Sheriff's Office, Collier said. - --- MAP posted-by: Jo-D