dissenting.
I do not agree with that portion of the majority opinion that invalidates the lien.
As the majority points out, the present problem involves "construction of our [forfeiture] statutes.” 30 *787Or App at 781. The majority construes ORS 471.665 as providing that "the only lienors protected from the forfeiture are those whose liens attached prior to the illegal act or acts.” 30 Or App at 785. ORS 471.665 does not stand for that proposition. The indications in the statute are to the contrary.
ORS 471.665(3) provides for forfeiture of vehicles used to violate drug statutes. It repeatedly refers to paying all liens upon forfeiture, e.g., "The sheriff shall pay all the liens.” ORS 471.665(1) provides for forfeiture of vehicles used to violate liquor statutes. It states in part:
" * * * No claim of * * * interest in or to such vehicle that is otherwise valid shall be held invalid unless the state shows to the satisfaction of the court, by clear and convincing evidence, that the claimant had knowledge that the vehicle was used or to be used in violation of law * * (Emphasis supplied.)
I presume the legislature intended that ORS 471.665(3) — forfeiture for illegal drug activities — and ORS 471.665(1) — forfeiture for illegal liquor activities — be interpreted together and harmoniously. I read them to mean that all liens, both those perfected before a police seizure and those perfected thereafter, are judged by the same standard, i.e., they are equally valid unless the claimant had actual knowledge that the vehicle was used or to be used in violation of law.1
The majority instead interprets ORS 471.665 to mean that "forfeiture takes effect immediately upon the commission of the [illegal] act” and that all subsequent "sales and alienations, even to purchasers in good faith,” are void. 30 Or App at 785.1 agree that United States v. Stowell, 133 US 1, 10 S Ct 244, 33 L Ed *788555 (1890), does so interpret a federal forfeiture statute. I do not agree that this is the proper interpretation of ORS 471.665. Unlike the federal forfeiture statute involved in Stowell, ORS 471.665(1) provides that all otherwise valid claims of interest in an impounded vehicle remain valid unless "the claimant had knowledge that the vehicle was used or to be used in violation of law.” (Emphasis supplied.) The majority interpretation, which would cut off the rights of even a good-faith purchaser, nullifies the "was used” language of ORS 471.665(1).
Assuming for the sake of discussion that ORS 471.665 is inconclusive and does not already foreclose adoption of the majority’s interpretation, I would reject that position for policy reasons. I would hold that between the time police seize property and the subsequent issuance of any judicial process, writ or attachment the owner has complete property rights, including the right to grant a lien, until there is a judicially sanctioned seizure of his property by process, writ or attachment, etc., subject in the meantime to the state’s superior claim to temporary possession.»
The rule I propose has the advantage of certainty— the time that a judicial attachment occurs being readily ascertainable. The majority’s rule has the disadvantage of vagueness — it not being as readily ascertainable when "property has been seized by police under the provisions of a seizure and forfeiture statute.” 30 Or App 785. Does this mean an officer’s subjective intent? Or his articulated reason for a seizure? Or the reason he could have but did not articulate? With warrantless seizures of motor vehicles we often deal with shades-of-gray probabilities — will the crime laboratory report the pills seized from an arrested driver were illegal drugs, as suspected by the police, or a prescription medication, as claimed by the driver? Until the investigation is complete, it is impossible to say, as the majority would require, whether the vehicle was seized under a forfeiture statute.
*789Admittedly, the longer a person whose car is seized is able to convey an interest in it, the greater the danger of subterfuge to circumvent the forfeiture statute — although the actual-knowledge test in ORS 471.665(1) at least reduces this danger. On the other hand, immediately suspending all ownership rights in a vehicle impounded by the police is a drastic step. The rule I propose is a reasonable accommodation of these conflicting considerations; full ownership rights would continue for the hopefully brief interval it would require public officials, moving expeditiously, to obtain some form of court order which would, in effect, be a judicially sanctioned lien on the vehicle in question.
My concerns are not purely theoretical. The trial court’s finding in this case included the following:
"3. The vehicle of a co-defendant in the same factual occurrence was initially also seized under ORS 167.247, but forfeiture was ultimately not requested by the sheriffs office nor initiated by the District Attorney because that vehicle was subject to an outstanding preexisting lien well over $1000 which expense the sheriffs office was not prepared to pay.”
The record does not reveal how long this other vehicle was in police custody while the decision not to initiate forfeiture proceedings was made. I infer it was a substantial length of time. Cf., State ex rel Haas v. One 1965 Ford, 19 Or App 879, 529 P2d 410 (1974), Sup Ct review denied (1975). I find no persuasive basis in the majority opinion for joining the holding that, for what was apparently a substantial length of time, the owner lost his usual right to convey a lien while the district attorney weighed the decision whether to initiate forfeiture proceedings.
I would uphold the lien in this case and therefore respectfully dissent.
It may well be that on the facts of this case the state could have made a showing that this claimant had sufficient knowledge that the vehicle upon which he took a lien was previously used in connection with illegal drug activities. But the state here makes no such claim, arguing instead for a rule, adopted by the majority, that makes all post-seizure liens per se invalid.