I filed an asset forfeiture in January using the VIN supplied on the State 28 and the agency. I received a judgment in August. Now, the VIN is incorrect. Is there any way to correct this? I think I know the answer but I wanted to know the opinion statewide so that I can tell the agency that it isn't just me that thinks we are hosed.

As this is a "clerical error," I believe the issue can be resolved by way of a Nunc Pro Tunc. Did you obtain a default or an agreed judgment? Surely the defense on an agreed judgment would not be opposed to correcting the VIN.

But the VIN was wrong from the beginning. I know I can correct with a nunc pro tunc if I originally had the right VIN but I never had the right VIN in any of the papers.

There was a previous discussion on this topic: Wrong VIN.

I think the ultimate conclusion was that you need a motion for new trial, then amend the seizure petition to allege the correct vin, and then handle the suit from there as with any other suit.

I would be interested in any thoughts on this scenario...

Police instigate a stop on a vehicle leaving a known drug house. The driver initially consents to a search of her vehicle, but (surprise) withdraws consent when the officer gets to the console. A drug detection canine is called to the scene and alerts to (surprise) the console. Further examination shows it to have been tampered with. Under the console, officers find (surprise) a bag full of a crystalized substance. 26 grams. The field test indicates the presence of methamphetamine. The driver is arrested and booked on a charge of possession of a controlled substance (meth) with intent to deliver. At no time during this process did the driver claim that the substance was anything other than narcotics. Unfortunately, when the test came back from the lab it was (surprise) not meth. Just some unknown crystalized substance...that just happens to alert the canine and show positive on the field test. I think the driver was as surprised as anyone else that the bag did not contain meth. Ultimately, the driver plead to possession of a simulated controlled substance. She wants her car back.

Any ideas on how to make the forfeiture stick?

By the way...the driver was recently re-arrested on another possession of meth charge.

On a quick glance, I don't see any way to make it stick. I assume when you say that they driver pled to "Possession of a Simulated Controlled Substance" that the driver actually pled to "Unlawful Delivery or Manufacture with Intent to Deliver a Simulated Controlled Substance" under HSC 482.002.

I don't know the whole fact scenario as to what your driver told you / didn't tell you about what occurred at the house. Further, I don't know the price of an oz of meth in Lubbock. Assuming that your defendant told you she purchased the simulated substance at the house for an amount in excess of $1500--I would think that you have a money laundering charge under �34.02 of the Penal Code. That qualifies you under Art. 59.01(2)(B)(iv) for forfeiture proceedings.

The other thing that occurs to me is that a forfeiture done under Chapter 481 of the HSC states that a property is contraband if it is "used or intended to be used" in the commission of a felony offense. I can't imagine your defendant would tell you in a deposition that she knowingly went over and invested real money for fake dope. She INTENDED to purchase real dope and to transport it in that vehicle. Whether or not you take a deposition largely depends on the value of the vehicle sought to be seized.

So, what does "intended to be used" mean? I think it covers this situation. From the unpublished opinion in Roundtree v. State, No. 10-88-149-CV (Tex.App.- Waco delivered April 27, 1989) in which forfeiture of the pickup was affirmed: "The record reflects that the State's witness testified that Roundtree had asked her if she would be interested in 'dealing' coke for him; that thereafter she went to a roping arena where Roundtree was also present; that he showed her vials that he said contained cocaine; that Roundtree telephoned her on February 4, 1988, and told her that everything was set and 'we were going to Burleson to get the dope"; that the dope was coke; that Roundtree then picked her up at her home in Hamilton and they drove to Hico and picked up Roundtree's friend Gary Klepper; that they then went to the Hico Bank where they [Roundtree and Klepper] cashed a check; that Roundtree told her 'we are going to Burleson to a guy's house and get some 'coke'; that he was getting a good deal on a kilo of coke for $6000 up front and $6000 after it was dealt; that they went to Burleson, and to a house off a farm road in Johnson County; that they were in Roundtree's 1983 Ford pickup; that they went in the house and there were two men inside; 'they said it wasn't here, it will be here Saturday'; that Roundtree asked about pot and purchased a quarter bag [2.7 grams]; that there were discussions about when the cocaine would arrive and that it would be Saturday; that Roundtree said 'they would come back' Saturday; and that they all left the residence in Burleson, made one stop, and then headed back to Hamilton [where his vehicle was stopped by the police and seized]." The court held this was more than enough evidence to show that at the time of seizure "the money and the pickup were intended for use to transport, facilitate sale, possession and delivery of cocaine." This is one of my favorite opinions because there is not a single precedent cited anywhere for any of the holdings. I would be happy to fax you a copy John.

$8500 v. State, 774 S.W.2d at 792 may also help.