dissenting.
As a result of his arrest for simple possession of a small amount of marijuana, appellant was fined $60. Because the arrest occurred while appellant was in his vehicle, he was subjected to the additional and far greater burden of forfeiting his ownership of the van. That forfeiture resulted in a loss many times greater than the criminal penalty actually imposed, and could well have been significantly greater than the maximum $1,000 fine authorized by the statute for first time possession of marijuana. I cannot agree with the majority that such an incongruous result is required under our statutes relating to drug offenses. I therefore dissent.
The majority relies exclusively upon the terse and general language of the forfeiture provisions of A.R.S. § 36-1041. However, it is clear from reading the carefully drawn provisions of the preceding article that the legislature intended to treat first time possession of marijuana for personal use as a less serious offense than, for example, the trafficking in marijuana, or the possession of so-called “hard drugs.”
Our own Supreme Court has forthrightly recognized that forfeiture, despite its civil trappings, is a punishment, and that the forfeiture statute should not be interpreted in an arbitrary or unreasonable manner. Indeed, in holding that an owner’s interest could not be forfeited under the statute without the owner’s knowledge of the connection between the use of a car and criminal offense, the Supreme Court rejected the same type of literal construction engaged in by the majority today. In Re One 1965 Ford Mustang, Motor No. 5R07A242628, License No. HGH-968. State v. Lewis, 105 Ariz. 293, 463 P.2d 827 (1970); In Re One 1962 Volkswagen Sedan, Motor No. 4230506, Arizona License No. JGR 254. State v. Cook, 105 Ariz. 315, 464 P.2d 338 (1970).
It is true that there are federal cases which would appear, at least indirectly, to sanction sweeping applications of forfeiture statutes. The most notable of these is Calero-Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 S.Ct. 2080, 40 L.Ed.2d 452 (1974), which upheld a forfeiture of an owner’s $20,000 yacht because a single marijuana cigarette was found on board while the yacht was leased to another party. The result in that case, however, is so directly contrary to the holding of our Supreme Court interpreting the Arizona statute in In Re One 1965 Ford Mustang that it can hardly be looked to as providing definitive guidance for this Court.
Par more compelling authority in my view is found in the decisions of those courts which have refused to permit forfeiture in mere possession cases. State v. One Porsche 2-Door I.D. No. 911211026, 526 P.2d 917 (Utah 1974); In Re 1972 Porsche 2-Door, ’74 Florida License Tag I.D. 91780, VIN # 9111200334, 307 So.2d 451 (Fla.App. 1975); and State v. One 1972 Pontiac Grand *484Prix, Two-Door Hardtop, VIN 2K57T2A161214, 242 N.W.2d 660 (S.D.1976). While the majority dismisses these cases as involving statutes with different language than our own, it is apparent upon reading them that the courts were motivated not by the precise language of the statute but by the harsh and unjust results which would flow from rigid application of the forfeiture statutes to marijuana possession cases. The Florida court concluded that the fundamental intent of forfeiture statutes is to punish individuals who are “significantly involved in a criminal enterprise.” With similar emphasis on the intent of the legislature to deter drug traffickers, the South Dakota court was “convinced” that the state legislature could not have intended this harsh sanction to apply to vehicles containing misdemeanor amounts of marijuana. The Utah court termed such a result “outrageous.”
Since I do not believe that the myopic literalism of the majority opinion is consistent with the overall purposes of forfeiture statutes or with the statutory scheme which the Arizona Legislature has established for controlling marijuana offenses, I respectfully dissent.