JACOBSON, Presiding Judge.
The sole issue involved in this civil appeal from a denial of forfeiture of an automobile, is whether a prior plea agreement in a criminal case precludes the forfeiture.
While there is some dispute as to the facts surrounding the possession and knowledge of the appellee, Paul Kevin Swanson, as to the marijuana found in his vehicle, there is no dispute as to those facts which the court deems material in disposing of this appeal.
On May 27, 1973, appellee was arrested for possession of marijuana found in his 1972 Dodge van. At that time he was charged with possession of marijuana, driving while under the influence, and failure to yield to an emergency vehicle. At the time of his appearance before the Justice of the Peace in Parker, Arizona, the appellee's court-appointed counsel and the deputy county attorney entered into an oral plea bargain. The terms of the bargain were that appellee would enter a plea of guilty to misdemeanor possession of marijuana; that the sentence to be imposed would be a fine only; and that the remaining traffic charges against appellee would be dismissed. The bargain was consummated by the appellee pleading guilty to possession of marijuana, a misdemeanor, and the remaining charges were dismissed. The Justice of the Peace imposed a fine of $220 which was paid by the appellee and he was discharged from custody. It was agreed by both counsel who negotiated the plea bargain that at the time the bargain was struck nothing was agreed upon or discussed concerning the possibility of forfeiture of the appellee's van.
Subsequently, the State of Arizona, through the Yuma County Attorney, brought this civil action to forfeit the 1972 Dodge van under authority of Article 2, Chapter 9, Title 36, Arizona Revised Statutes.
A.R.S. § 36-1041 provides: "The interest of the legal owner or owners of record of any vehicle used to transport unlawfully a narcotics drug, or in which a narcotic drug is unlawfully kept, deposited or concealed, or in which a narcotic is unlawfully possessed by an occupant, shall be forfeited to the state."
The matter was tried to the court which held "the court is . . . satisfied that the circumstances surrounding the plea bargain were such that the state cannot now forfeit the car." The state has appealed the judgment denying forfeiture.
To place this matter in proper perspective, it is first necessary to ascertain exactly what is being accomplished by the civil forfeiture action. The obvious intent of the legislature in enacting the forfeiture legislation was to deter the trafficking in narcotics by penalizing the owner of the vehicle transporting the narcotic through forfeiture of ownership. The constitutionality of the statute is upheld on this basis. As was stated in In re One 1965 Ford Mustang, 105 Ariz. 293, 463 P.2d 827 (1970):
"Under the present state of constitutional development, there can be no question but that forfeiture of an automobile is
punishment for a criminal offense. It is the only way the car could be forfeited; otherwise, it would be taking property without due process of law. In the instant case, under the statute, the forfeiture was likewise
a penalty because the automobile was used in a criminal offense." (emphasis added)
105 Ariz. at 299,
463 P.2d at 833.
That a civil forfeiture of this nature is in fact a criminal penalty has been recognized by the United States Supreme Court:
". . . [It is] aptly pointed out in
Boyd [
Boyd v. United States, 116 U.S. 616,
6 S.Ct. 524,
29 L.Ed. 746 (1886)] a forfeiture proceeding is quasi-criminal in character. Its object, like a criminal proceeding is to penalize for the commission of an offense against the law.
* * * * * *
"That the forfeiture is clearly a penalty for the criminal offense and can result in even greater punishment than the criminal prosecution has in fact been recognized. . . ."
One Plymouth Sedan v. Pennsylvania, 380 U.S. 693,
85 S.Ct. 1246,
14 L.Ed.2d 170 (1965).
Thus it is clear that the forfeiture of the appellee's automobile is punishment for the criminal offense to which he pled guilty, and in fact is greater punishment, if forfeiture is allowed, than was exacted for the original offense. (Compare $220 fine with the value of a 1972 Dodge van). The question then becomes, can the State exact this additional punishment in view of the prior plea bargain? We do not believe it can.
It is clear that one element of the plea bargain was that appellee would plead guilty to a crime which would be treated as a misdemeanor and that a "fine only" would be paid as punishment. The appellee kept his part of the bargain. The State can do no more than keep its. As was stated in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971):
"This phase of the process of criminal justice [plea bargaining], and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled." (emphasis added)
404 U.S. at 262,
92 S.Ct. at 499.
We have no doubt that at the time that the bargain between the prosecutor and defense counsel was struck, neither contemplated nor considered the possibility that forfeiture of the appellee's vehicle might ensue. We consider this fact, if it be a fact, to be immaterial. What is material is that one of the considerations given by the state and accepted by the appellee for his guilty plea was a punishment certain. The State may not now be heard to say that it can increase that punishment certain merely because the agreement did not specifically negate the punishment inherent in the proposed forfeiture.
The judgment of the trial court is affirmed.
HAIRE, C.J., Division 1, concurs.