dissenting.
The majority concludes that even though defendant was afforded a jury trial on the underlying criminal charge, nevertheless he is entitled to a second jury trial before the forfeiture can be ordered, relying chiefly on State v. 1920 Studebaker Touring Car, 120 Or 254, 251 P 701, 50 ALR 81 (1927).
I cannot agree. Furthermore, a close reading of Studebaker will demonstrate that Studebaker is authority for exactly the opposite conclusion.
Contrary to the majority, there is no requirement in the law or elsewhere that a person who has been convicted after jury trial of possessing a contraband substance (which occurred in a motor vehicle) is entitled to a second trial on the issue of whether *864he was transporting the substance and whether he owns the automobile, before the vehicle can be forfeited under ORS 167.247. All that the above statute requires and all that defendant is entitled to ORS 471.660 and 471.665 is notice and hearing before the vehicle is ordered forfeited. This was done in this case.
The majority relies on State v. 1920 Studebaker Touring Car, supra, as authority for its position. There our Supreme Court held a prior version of ORS 167.247 involving intoxicating liquor unconstitutional for failure to provide the vehicle owner with a jury trial. The court also said that the statute was defective on account of its failure to provide the offending person with a jury trial on the underlying charge prior to forfeiture. It should also be pointed out that the facts in Studebaker were substantially different from the case at bar. The facts as set forth in that decision were as follows:
"There was evidence tending to show, that prior to the seizure of the car, the husband of appellant, while engaged in driving the car, but not in her presence, had carried on his person a bottle of intoxicating liquor, for which he had been arrested and bound over to await the action of the grand jury; that the grand jury had refused to indict him for said offense, and had returned a not true bill, and that appellant had no knowledge of the alleged unlawful act of her husband.” 120 Or at 255-56.
Following that decision the statute was amended. As amended, this statute expressly provides that no forfeiture may be ordered until the operator of the vehicle has been convicted of the crimes specified in the statute. ORS 471.660, 471.665(1). It also provides that no forfeiture may be ordered unless the vehicle is used by or with the knowledge of the owner in transporting the offending substance. Ibid.
The rationale of the Studebaker decision is found in the following language:
"If, under the provisions of this act, the property *865
The error of the majority’s position is plainly shown by the following quotation from Studebaker:
" * * * Nor is the question one which would arise had this statute, like the national Prohibition Act, provided that upon conviction of the offending person forfeiture of the property used in the commission of the offense would follow as a matter of law, reserving only to the owner or claimant of the property so used, the right to be heard upon the question of whether as against him, because of his negligence or other wrongful act, or otherwise, good cause does or does not exist for enforcing the forfeiture. "(Emphasis supplied.) 120 Or at 259.
Defendant was arrested while transporting the cocaine in the vehicle as required by ORS 471.660. This fact was proved as a part of the trial on the charge of possession. Defendant does not contend otherwise on appeal. Rather, he seems to be contending that he was entitled to a jury trial on the issue of transporting as a part of the forfeiture proceeding. Nothing in the statute requires that there be a separate trial and conviction on the issue of transportation. So long as defendant is afforded a jury trial on the underlying criminal charge, there is no right to a second jury trial in connection with the vehicle forfeiture. As to the forfeiture proceeding itself, so long as defendant is afforded notice and an opportunity to be heard in the *866forfeiture proceeding, he has received all necessary due process of law. See Robinson v. Hanrahan, 409 US 38, 93 S Ct 30, 34 L Ed 2d 47 (1972); State v. Glascock, 33 Or App 217, 222-31, 576 P2d 377, 34 Or App 659, 579 P2d 869, rev den 283 Or 235 (1978).