Helen Marie Mauch, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0461

Helen Marie Mauch, et al.,
Appellants,

vs.

2015 Chevrolet Silverado,
VIN: 1GC4KZC81FF187398, MN Plate: YNA3873,
Defendant,

Nobles County Sheriff, claimant,
Respondent.

Filed November 26, 2018
Affirmed
Jesson, Judge

Nobles County District Court
File No. 53-CV-15-1096

Richard P. Ohlenberg, Ohlenberg Law Office, P.C., Prior Lake, Minnesota (for appellants)

Kathleen A. Kusz, Nobles County Attorney, Worthington, Minnesota; and

Travis J. Smith, Special Assistant County Attorney, Slayton, Minnesota (for respondent)

Considered and decided by Brat vold, Presiding Judge; Rodenberg , Judge; and
Jesson, Judge.

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellants Helen Mauch (Helen) and David Mauch (David) appeal the forfeiture of
their jointly owned $52,110 Chevrolet Silverado truck after David was arrested for driving
the Silverado while impaired in 2015. 1 In Minnesota, the vehicle forfeiture law, Minn.
Stat. § 169A.63 (2016), allows for the civil forfeiture and aut omatic seizure of vehicles
used during designated crimes including first-degree driving while impaired (DWI). Helen
asserts that, as an innocent owner, she should not forfeit the Silverado. David argues that
the forfeiture procedure contained in the vehicle forfeiture statute violates the constitutional
protection against double jeopardy as applied to him. And the Mauches both contend that
the forfeiture procedure violates the constitutional protection of due process. We affirm.
FACTS
In November 2015, David was driving a 2015 Silverado when he w as stopped and
arrested for DWI in Adrian. The Mauches, mother and son, had r ecently purchased the
Silverado together. At the time of the stop, David provided a breath sample indicating a
0.26 alcohol concentration. He provided a second breath sample at the Nobles County jail,
indicating a 0.27 alcohol concentration.2

1 Civil forfeiture is a process th at enables the government to t ake ownership of property
that was involved in suspected criminal actions. See Black’s Law Dictionary 765 (10th ed.
2014) (defining “civil forfeiture ” as “[a]n in rem proceeding b rought by the government
against property that either fac ilitated a crime or was acquire d as a result of criminal
activity.”).
2 The result of David’s test was over 0.16 within two hours of the time of the offense, which
qualified as an aggravating factor under Minn. Stat. § 169A.03, subd. 3 (Supp. 2015).
Because David had a previous licen se revocation within ten year s of the current offense,
stemming from a test result of 0 .32 alcohol concentration in 20 12, this revocation
constituted a second aggravating factor under the statute.

3
Early the next morning, the Nobles County Sheriff’s Office serv ed David with a
“Notice of Seizure and Intent to Forfeit” the Silverado. Nobles County took possession of
the truck, and David was charged with two counts of gross misde meanor second-degree
DWI.3 He pleaded guilty to the charges.
In December 2015, the Mauches filed a timely demand for judicial determination of
forfeiture of motor vehicle. The district court held a bench t rial to determine the legality
of the forfeiture in February 2017 . In April 2017, before the district court had made a
decision, the Minnesota Legislature amended the vehicle forfeit ure statute to expand the
innocent-owner defense in Minnesota forfeiture cases. 2017 Minn. Laws ch. 12, § 1, at 37-
38. The 2017 language provides that “[a] motor vehicle is not subject to forfeiture under
this section if any of its owners who petition the court can demonstrate by clear and
convincing evidence” that they ar e innocent owners. Minn. Stat . § 169A.63, subd. 7(d)
(Supp. 2017) (emphasis added). Prior to amendment, the statute provided a narrower
innocent-owner defense.4 In response to the statutory amendment, and before a ruling had
been issued, the district court ordered supplemental briefing r egarding the impact of the
amendment on the outcome of the Mauches’ case. The district co urt issued its ruling in
September 2017, finding in favor of the state and ordering forfeiture of the Silverado.

3 In violation of Minn. Stat. §§ 169A.20, .25 (2016).
4 The earlier statute provided that “[a] motor vehicle is not su bject to forfeiture under this
section if its owner can demonstrate by clear and convincing evidence that the owner did
not have actual or constructive knowledge that the vehicle woul d be used or operated in
any manner contrary to law . . . . ” Minn. Stat. § 169A.63, sub d. 7(d) (2016) (emphasis
added).

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The Mauches moved for a new trial. Following a hearing, the di strict court issued
its orders on January 26, 2018, denying the motion for a new tr ial, and determining the
Silverado was legally forfeited according to statute.
The Mauches appeal.
D E C I S I O N
The Mauches raise three issues on appeal: (I) whether the inno cent-owner defense
is available to Helen; (II) whether civil forfeiture of the Sil verado constitutes double
jeopardy in violation of the United States and Minnesota Constitutions because David had
already been punished for his D WI; and (III) whether the applic ation of the vehicle
forfeiture statute violates due process as applied to the Mauches. We address each issue in
turn.
I. The 2017 amendment to the vehicle forfeiture statute does no t apply
retroactively.

Helen argues that the 2017 amendment to the vehicle forfeiture statute should apply
retroactively because it is unfair that she is barred from using the innocent-owner defense
that was expanded under the amendment. Whether or not a statute applies retroactively is
a question of law, which this court reviews de novo. Sletto v. Wesley Constr., Inc. ,
733 N.W.2d 838, 842 (Minn. App. 2007). In applying this standa rd, we first turn to the
legislative directive that “[n]o law shall be construed to be r etroactive unless clearly and
manifestly so intended by the legislature.” Minn. Stat. § 645.21 (2016).
David’s DWI occurred in November 2015. At that time, the innoc ent-owner
defense was not available to a joint owner of a vehicle who was unaware of the other
owner’s unlawful use of the vehicle. See Laase v. 2007 Chevrolet Tahoe, 776 N.W.2d 431,

5
439 (Minn. 2009). In other words, the innocent-owner defense was not available in DWI
forfeiture matters unless all owners of the vehicle were “innocent.” Id. But the vehicle
forfeiture statute was amended in April 2017 to permit a joint owner to keep a forfeited
vehicle if they could demonstrate by clear and convincing evidence that they individually
were an innocent owner. See 2017 Minn. Laws ch. 12, § 1, at 37-38. The statutory
amendment contained no effective date, so the effective date defaulted to August 1, 2017.
See Minn. Stat. § 645.02 (2016) (mandating an effective date of August 1 unless a different
date is specified). Therefore, the only question remaining is whether the legislature clearly
and manifestly intended the stat utory amendment to apply retroa ctively. Minn. Stat. §
645.21.
We see no clear and manifest intent on the part of the legislature that the amendment
apply retroactively. There is no language in the amendment to suggest any such intent.
See 2017 Minn. Laws Ch. 12, § 1, at 37-38. We therefore conclude t hat Helen was not
entitled to claim the innocent-ow ner defense under the statute in effect at the time of
David’s DWI.
II. David’s constitutional challe nge of the vehicle forfeiture statute on double
jeopardy grounds is forfeited.

David argues that the district court erred in concluding that the forfeiture did not
constitute double jeopardy in violation of the United States an d Minnesota Constitutions
as applied. David contends that, because he only had one prior warning that the Silverado
may be forfeited, and because the value of the Silverado is sub stantial, the forfeiture was
so punitive that it violated h is constitutional protection agai nst being twice punished for
the same offense. See U.S. Const. amend. V; Minn. Const. art. I, § 7. But we need no t

6
reach the merits of this argumen t because David has failed to g ive proper notice of this
constitutional challenge to the Mi nnesota Attorney General as r equired by the Minnesota
Rules of Civil Appellate Procedure. See Minn. R. Civ. App. P. 144.
This rule of appellate procedure protects the attorney general’ s right to intervene
and defend a Minnesota statute by requiring a party who challenges the constitutionality of
a statute to “file and serve on th e attorney general notice of that assertion within time to
afford an opportunity to intervene.” Id. If an appellant fails to notify the attorney general
of a constitutional challenge, this court deems the constitutio nal challenge waived. See
Losen v. Allina Health Sys. , 767 N.W.2d 703, 711 (Minn. App. 2009), review denied
(Minn. Sept. 29, 2009).
The subject of this challenge, a civil forfeiture statute with frequent application in
support of the important goal of enhancing public safety, is ex actly the type of challenge
that the drafters of Minnesota Rules of Appellate Procedure 144 contemplated in requiring
notice that affords the attorney general an opportunity to intervene. Here, both parties seek
changes to the law in this area based upon their interpretation s of the constitution. David
challenges the statute’s constitutionality based on double jeop ardy, while Nobles County
implores this court to overturn our own precedent and to clarify this area of the law. Such
an exercise would be flawed without providing the attorney general the opportunity to brief
the issue as required by Minnesota Rules of Appellate Procedure 144.
David failed to notify the attorney general of this constitutio nal challenge.
Therefore, we will not consider the issue.

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III. The Mauches’ constitutional challenge to the vehicle forfeiture statute on due-
process grounds is forfeited.

The Mauches argue that the vehicle forfeiture statute violates due process as applied
to the Mauches in this case. The Mauches concede that this issue was not raised before the
district court.
We have refused to address claims raised for the first time on appeal. See Brocks v.
State, 753 N.W.2d 672, 676 (Minn. 2008). Such claims are forfeited, and the circumstances
of this case demonstrate the wisdom of this practice.
The Mauches argue that their due-process rights were violated b ecause the district
court took too long to decide their forfeiture case. This argument requires a fully developed
record for the appellate court to review in order to account for any scheduling delays. Since
the Mauches failed to raise the issue before the district court, no such record exists. In the
absence of a properly developed record, it would be impossible to accurately assess the
Mauches’ argument on the merits. See Erickson v. Fullerton , 619 N.W.2d 204, 208-09
(Minn. App. 2000) (declining to address constitutional issue because attorney general was
not notified, issue was not adequately considered by the distri ct court, and record was
insufficient for review).
Still, the Mauches contend that t he traditional rules governin g forfeiture of issues
raised for the first time on appeal should not apply here becau se this court issued a ruling
in Olson v. One 1999 Lexus after the disposition of the Mauches’ district court case. 91 0
N.W.2d 72 (Minn. App. 2018), review granted (Minn. June 19, 2018). The Olson decision
concluded that the vehicle forfeiture statute violated due process as applied to Olson. Id.
at 76-77. We are not persuaded.

8
An intervening change in the la w can excuse a failure to asser t what would have
otherwise been a futile objection in the district court, but th is exception applies to
arguments that have previously a nd consistently been rejected b y the courts of this state.
See State v. Beaulieu , 859 N.W.2d 275, 281 n.5 (Minn. 2015); State v. Osborne ,
715 N.W.2d 436, 442 (Minn. 2006). That is not what happened here.
Procedural due-process claims are not a novel concept. See U.S. Const. amend.
XIV, § 1; Minn. Const. art. I, § 7. Neither have the courts of this state consistently rejected
such challenges to the DWI statutes. Further, Olson does not necessarily represent a
change in the law, because the decision in Olson ruled that the vehicle forfeiture statute
was unconstitutional as applied to the Olsons, not to everyone in general. 910 N.W.2d at
77. In sum, the Mauches cannot take advantage of this exceptio n to the rule that issues
must not be raised for the first time on appeal.
Because the Mauches failed to present this issue to the distric t court, their
due-process claim is forfeited.
Affirmed.