(dissenting).
I respectfully dissent. The question is close, but I conclude that the forfeiture of Barnes’s car, on these facts, is in violation of the federal and state constitutional protections against excessive fines. See U.S. Const. Amend. VIII; see also Minn. Const. Art. I, § 5 (both stating “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted”) (emphasis added).
The State of Minnesota faced the issue head on in State v. Rewitzer, 617 N.W.2d 407, 412 (Minn.2000). As the majority concedes, in Rewitzer, the Minnesota Supreme Court found that a district court “improperly imposed $273,600 in fines and surcharges on a defendant who pleaded guilty to one count each of controlled substance crimes in the fifth, third, and second degree * ⅜ ⅜.” Id. at 408 (finding that fines and surcharges were 1,368 times greater than value of drugs involved and violated excessive fines clauses of United States and Minnesota Constitutions). Rewitzer was a felony case in which the fine was excessive. Here we are dealing with a gross misdemeanor traffic offense. The Reivitzer court relied on United States v. Bajakajian, 524 U.S. 321, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998), for guidance on how to apply the excessive fines clause. Rewitzer, 617 N.W.2d at 412-13. Bajaka-jian was also a felony case where the forfeiture of $357,144 was found to be unconstitutionally excessive, based on the gravity of the offense compared to the amount of forfeiture. Neither Rewitzer nor Bajakajian came up with a “bright line,” but did come up with a proportionality test, set out in Solem v. Helm, 463 U.S. 277, 288, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). The Solem factors are
(1) the gravity of the offense and the harshness of the penalty,
*374(2) comparison of the contested fine with fines imposed for the commission of other crimes in the same jurisdiction, and
(3) comparison of the contested fine with fines imposed for commission of the same crime in other jurisdictions.
Rewitzer, 617 N.W.2d at 413 (citation omitted).
The forfeiture in this case miserably fails the first prong of Solem. The forfeiture also fails the second prong, the comparison of the punishment through forfeiture to fines imposed for other offenses in Minnesota.
The first prong under Solem is a common-sense test. It compares the gravity of the offense with the gravity of the punishment. If history teaches us anything, it is that when the Crown has a citizen in its grasp, the punishment has to be just. If it is too arbitrary, too capricious, and too punitive, and is laid on the citizen’s head simply because “we have the power to do it,” the government loses credibility, and when it loses credibility, it falls. People understand being punished and getting their just desserts. They do not understand getting kicked when they are down. When you kick people when they are down, they tend to get together in small groups, politely drive down to the nearest wharf, carefully park to avoid fire hydrants and no parking zones, and then start throwing tea and coffee into the harbor.
The majority opinion accurately sets out the facts. Barnes was sitting in his brand new car in his own driveway in his own yard listening to car music. The neighbors complained and the police came. If he had been charged with “disturbing the peace” or simply told, sensibly, to turn down the music, we wouldn’t even have this case in front of us. Barnes was not convicted of drunken driving. Barnes was convicted of “drunken listening to music in his own car, in his own driveway, in his own yard.” If he had not had the misfortune to be playing the Rolling Stones rather than Mantovani or Neil Diamond, he would still have his $40,000 vehicle. This is not facetious. These are the true facts of record.
On these facts, forfeiting a $40,000 vehicle is “off the wall” grossly disproportionate. Neither Rewitzer nor Bajakajian nor Solem set an exact mathematical formula for computing fines, forfeitures, and surcharges to determine if they are proportionate, proportionate bordering on harsh, or grossly disproportionate. But it can be said unequivocally that those cases stand for the proposition that a line in the sand has to be drawn somewhere by the courts when viewing the state’s treatment of its citizens. I can only conclude that here the state crossed the line.
The unabated arbitrariness of the forfeiture statute, with no controls present, is easily seen. You can have a poor person driving a $700 beater and he loses his car. You have a rich person driving a $40,000, or $60,000, or $100,000 luxury car and he commits the identical offense. He loses that car. You have a poor person who has saved all his life to finally buy a brand new car. He forfeits it. A rich person happens to be driving around in a $700 beater and commits the identical offense. He loses only that car. Normal criminal penalties, which include fines, are, at least, uniform. Misdemeanors are capped at $700, gross misdemeanors at $3,000, and felonies have limits in ascending order from least severe to more severe. For instance, the maximum fine for first degree aggravated robbery is $35,000 and $30,000 for second-degree aggravated robbery under Minn.Stat. § 609.245, subds. 1, 2 (1998); the maximum fine for first degree felony burglary is $35,000 under Minn.Stat. § 609.582, subds. 1 (1998); and the maximum fine for criminal vehicular homicide is $20,000 under Minn.Stat. § 609.21 (1998).
With a maximum fine for criminal vehicular homicide of $20,000, for a court to *375impose a $40,000 forfeiture for the “criminal offense” of listening to a car stereo while parked in your own driveway with a blood alcohol reading just over .10, is punitively disproportionate to the offense. I agree that Barnes has a prior record. That is why he is in the fix that he is in. But his vehicle was not forfeited on those prior offenses. It was forfeited on this one.
The second issue is whether Barnes’s spouse has standing to contest the forfeiture. I suggest that she does, that there is a fact question as to her partial ownership, and, consequently, this issue is not ripe for summary judgment. The record indicates the vehicle was purchased from an asset account to which Barnes’s spouse had contributed. That raises the issue of whether she has an equitable and/or a legal interest.
The majority simply cites the statute, which indicates that the owner of a vehicle is the registered owner according to the records of the Department of Public Safety. We know the statute says that; but we also know that at times the statute is simply incorrect and the development of relevant facts is needed to sort out who truly owns the vehicle. For instance, in Minnesota, when you sell a car, you sign off on the title. There is a little receipt on the car title, which the buyer signs showing you have sold it and he has bought it. It is up to the buyer to register his new title, show proof of insurance, and pay the necessary registration fees. Some buyers don’t do that right away. Some buyers don’t ever do that. An innocent, unsuspecting, previous owner of a vehicle can get a letter from the Department of Public Safety months, or even a few years, after a bona fide sale stating that there are unpaid traffic and/or parking tickets against the vehicle and that a warrant will be issued for your (the so-called registered owner) arrest if you don’t appear in court and pay the fines. You are entitled to go into court and show there was a bona fide sale and that the car is not yours.
The same is true when a buyer (who did not complete title transfer) later on is in a car accident and an injured plaintiff sues the driver and brings you in as the owner. Minnesota allows parties to sue the non-driving owner of vehicles under the Safety Responsibility Act. Minn.Stat. § 170.54. But an “owner” who is not a real owner because there was a bona fide sale, is entitled to go into court and attempt to prove that. See Carousel Automobiles, Inc. v. Gherity, 527 N.W.2d 813, 817 (Minn.1995) (stating avoidance of vicarious liability achieved with extrinsic evidence rebutting presumption of ownership created when party’s name appears as owner on certificate of title). There is some evidence in this record that another person, Barnes’s spouse, may have an equitable and/or legal ownership of the vehicle in question. Barnes and his spouse have the burden of proof. They may or may not be able to meet it, but they have raised a material fact issue that is in dispute and, thus, this issue is not ready for summary judgment. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993) (stating summary judgment is appropriate where no genuine issue of material fact exists and one party is entitled to judgment as matter of law).
In sum, I respectfully dissent on two issues, the first being that under this narrow set of facts, the forfeiture of a $40,000 vehicle for this offense violates the federal and state constitutional protection against excessive fines. Second, even if the forfeiture stands up, Barnes has raised a legitimate fact issue as to ownership of the vehicle, and that should be remanded for a trial on the merits.