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Cars seized over packs of cigarettes

 

Revenue agents surveil Tennessee residents who buy cigarettes in neighboring states. Those found in possession of two cartons +1 pack will have their car confiscated.

Tennessee Governor Phil Bredesen announcing his plans for a smoke free Tennessee.Tennessee revenue agents will be watching, ready to accuse residents of the new crime of driving with 21 packs of cigarettes purchased across state lines. Those carrying just over two cartons of smokes in their car might lose their vehicle for good. The crackdown announced late last month is part of an effort to defend a July hike in the cigarette tax from 20 to 62 cents per pack from nearby states with much lower levies.

The net result is that Tennessee will confiscate and sell cars worth thousands or tens of thousands each over a claimed loss of tax revenue of $13.02. Cigar lovers likewise become criminals under the statute and face six months in jail if accused of driving with 51 cigars. A heavy smoker carrying a three-month supply — enough to evade an alleged $155.62 in cigarette tax — is guilty of a felony under the Tennessee law. The penalty, in addition to car confiscation, is up to six years in prison and an additional $3000 fine. Earlier this month Governor Phil Bredesen (D) embraced an official anti-cigarette policy to complement the confiscation program.

“It’s also a historic occasion as Tennessee becomes the first traditional tobacco state to enact such a comprehensive statewide smoking ban…”- Phil Bredesen

The most controversial aspect of the seizure program is that Tennessee Department of Revenue agents on September 27 began placing stores lawfully selling cigarettes in other states under surveillance. In Kentucky, for example, agents watch for cars bearing Tennessee license plates leaving shops that sell tobacco products. Once these cars cross back into Tennessee, they will be stopped and searched. If cigarettes are found, state law does not recognize that such cigarettes could be for personal use.

“Every person who transports within this state cigarettes not bearing Tennessee revenue stamps… shall be presumed to be transporting such products in violation of the provisions of this part, and such products and any vehicles used to transport them shall be deemed contraband,” Tennessee Code Section 67-4-1019 states. “Such products shall be confiscated and disposed of as provided for in this part. Such vehicles may likewise, in the discretion of the commissioner, be confiscated and disposed of as provided for in this part.”

Even a dealer with the lawful right to carry 21 out-of-state cigarette packs will lose his car on the mere accusation of revenue agents until the commissioner decides to accept the evidence presented.

“Any unstamped tobacco products found in any vehicle… shall be prima facie evidence that such were intended to be used for gift, sale or distribution,” Tennessee Code Section 67-4-1020 states.

Seized vehicles are sold with 90 percent of the profit going into the state general fund, and 10 percent into the revenue department’s own budget. The tax program is designed to raise $228 million.

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2 Responses to “Cars seized over packs of cigarettes”

  1. Bill Larson Says:
    October 11th, 2007 at 7:20 am
    Bill Larson

    The main issues I see are once the state starts generating revenue from the seizure of people’s cars for buying cigarettes, how long is it before they also expand the program to cover people who cross the borders for bargains, no sales tax at all on food items, and a lower sales tax on everything else.

    I also see this affecting a disproportionately lower income group of people. Not because they smoke more, but because the Tennessee sales tax hits them the hardest, forcing them to save as much as they can, where they can.

    Does this program also include monitoring the Fort Campbell Army Commissary and are Tennessee tagged cars leaving Fort Campbell military base also searched. I seriously doubt it, however excessive cigarettes bought there are just as illegal under Tennessee law.

    Next do the search, seizures, and forfeitures of vehicles violate the 4th amendment protections granted by the US Constitution. I feel in this case a court would rule that in fact it did.

    We also have constitutional issues under the commerce clause.

    Article I, Section 8, Clause 3 of the United States Constitution, known as the Commerce Clause, states that Congress has the exclusive authority to manage trade activities between the states and with foreign nations and Indian tribes. Courts and commentators have tended to discuss each of these three areas as a separate power granted to Congress. It is common to see the Commerce Clause referred to as “the Foreign Commerce Clause”, “the Interstate Commerce Clause”, and “the Indian Commerce Clause”, each of which refers to the same single sentence in the constitution that covers all three. – The Wikipedia

    Some commerce clause court cases sound like they are very applicable to this situation.

    Baldwin v G. A. F. Seelig (1935) invalidated a New York law prohibiting the sale in the state of milk bought outside of New York. New York argued the law was necessary to avoid price competition that would drive dairies into producing less wholesome milk. The Court, more realistically, saw the law as protectionist. Justice Cardozo wrote that when “a state tries to isolate itself economically” it must show an important interest for doing so and that it had no less discriminatory mean open for accomplishing its goal. Cardozo’s test has become the standard test for evaluating state laws that discriminate against out-of-state commerce.

    In another New York milk case, H. P. Hood and Sons v Dumond (1949), the Court applied the Baldwin test for protectionist laws to the state’s denial of a license to operate a depot to collect milk for distribution to Boston. The Court saw the license denial as an effort by New York to horde a resource and thereby keep prices for its consumers low.

    Edwards v California (1941) considered a challenge to a California law aimed at reducing the influx of dust bowl indigents to the state. The California statute made it a crime to bring into the state any indigent non-resident. Finding people in this case to be “articles of commerce,” the majority found the statute to be a form of unconstitutional discrimination against out-of-state commerce. (Four concurring justices would have preferred to invalidate the law on 14th Amendment privileges and immunities grounds.)

    Dean Milk Co. v Madison (1951) deals with discrimination against out-of-state (as well as much in-state) commerce not by a state, but by a city. At issue in the case was a Madison, Wisconsin ordinance that prohibited the sale of milk in Madison that was bottled more than five miles from the city’s center. The ordinance was justified by Madison as necessary to facilitate inspection by city dairy inspectors. Finding the ordinance discriminatory and believing that reasonable non-discriminatory alternatives existed, the Supreme Court invalidated the ordinance despite the fact that a Milwaukee dairy was shut out of town just as much as one from Illinois.

    In Hunt v Washington State Apple Ass’n (1977), the Court determined that a North Carolina law that allowed only one grade (the U. S. Dep’t of Agriculture’s grade) to be placed on containers of apples sold in the state. Washington’s State Apple Ass’n contended that the law discriminated against Washington apples which are shipped in containers that include its own tougher state grades. Concluding that a discriminatory effect (not a discriminatory intent) is all that is necessary to trigger the Baldwin test of a significant state interest and no non-discriminatory alternatives available, the Court invalidated North Carolina’s apple-grading law.

    Exploring Constitutional Law by Doug Linder (2007)

    So the State of Tennessee should take another look at the program as it is likely to be struck down by the courts, as soon as the first court case hits the judicial dockets.

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