NO ARREST NEEDED FOR STATE TO TAX ILLEGAL DRUGS

Defense Lawyers Say Tennessee's New Law Is Ripe For Abuse

Police suspect that Michael Garcia used his car in April to run
interference for a drug dealer who was later caught transporting 10
pounds of marijuana through Springfield, a town 35 minutes northeast
of Nashville. Garcia said he merely found himself driving behind
another motorist while in town to visit a girl and was mysteriously
pulled over by an officer.

He wasn't arrested, but six days later the 30-year-old landscaper from
Nashville received a letter from the state Department of Revenue
demanding that he pay $17,592 in taxes he owed for his role in drug
trafficking. He figured it was a mistake or maybe a joke. "The revenue
guys showed up with the bulletproof vests and the guns and stuff, and
that's when I knew it was for real," Garcia said. Garcia is among the
first targets of a new state law that requires people who profit from
illicit drugs to pay their fair share of taxes.

In January, Tennessee became one of 23 states that tax illicit drugs,
according to the National Conference of State Legislatures. Since the
law took effect in January, Tennessee's Department of Revenue has
collected nearly $400,000 in taxes.

An additional $11 million in taxes has been levied but not collected,
often because the debtors are in jail or can't afford to pay. Some
defense attorneys say the new law is quickly becoming an example of
government running amok, with innocent residents who have not been
convicted of crimes, or even charged, being bullied into paying
thousands of dollars in taxes. "That's the biggest beef the attorneys
and citizens have with this is that you're guilty until proven
innocent," said Nashville attorney Erik Herbert, who represents
Garcia. Under the law, drug traffickers must go to any of the state
revenue offices within 48 hours of coming into possession of illegal
drugs.

They pay a tax on the value of the illegal drugs and get a stamp to
show they have paid. Taxpayer privacy laws keep Department of Revenue
officials from reporting these people to police agencies, state
officials said. After drug arrests, local authorities are required to
notify the state Department of Revenue within 48 hours.

Drug-trafficking suspects who haven't obtained the stamps are then
assessed the taxes and additional fines and interest. Those who can't
make immediate payments can have their cars, homes and other personal
property seized. Taxed, but not convicted After stopping Garcia on the
night of April 6, police questioned him about whether he knew the man
suspected of drug smuggling.

Garcia, of Nashville, said he knew of the man, as he knew of many
Springfield residents because of his frequent trips there. Garcia
denied any involvement in drug trafficking. According to an arrest
affidavit filed against John Jernigan, the motorist Garcia was
suspected of following, a confidential informant told Springfield
police that the suspect's vehicle would be followed by a second
vehicle of an "unknown color, make and model." Garcia and Jernigan
were in different areas when police stopped them. Jernigan said last
night that he did not wish to comment without his lawyer present. The
Department of Revenue has sent a notice of lien on Garcia's property
while he appeals. "(Garcia) wasn't in possession of anything," his
lawyer said. Springfield police said this week that they were
investigating the case and had submitted reports to the Robertson
County grand jury for possible indictment. They said they had nothing
to do with the decision to levy taxes against him. "We submit our
paperwork to them, and then they determine who needs to be taxed,"
Springfield Police Lt. William Watkins said. Even if the grand jury
decides there is not enough evidence to indict a suspect, such as in
Garcia's case, taxes can still be collected, state officials said.
"It's two completely separate issues," said Sam Chessor, an assistant
commissioner for the Department of Revenue. "The tax is a civil
matter, and the other is a criminal matter.

They may very well possess the substance and owe the tax and yet be
acquitted later in a criminal court." Difficult to prove tax isn't
owed To convict someone of a criminal charge, a judge or jury must
find that the defendant is guilty beyond a reasonable doubt.

But in a civil case, there exists a lower legal standard for finding
someone liable, known as "a preponderance of evidence." "When we go
out and our auditors determine that a tax is owed, then it's on the
taxpayer to show that the tax is not owed," Chessor said. Chessor
declined to discuss Garcia's case specifically, citing laws protecting
the confidentiality of taxpayers. People who think they have been
assessed the drug tax unfairly have 30 days to file an appeal to the
Department of Revenue. Lawyers for the state tax department hear the
appeals. "That's like the fox guarding the henhouse," said Herbert,
Garcia's attorney. Garcia's meeting is scheduled later this month. If
the department denies his appeal, he can file a lawsuit against the
Department of Revenue in Chancery Court. Garcia has been paying for an
attorney to handle his tax case. Some critics say that many people who
are assessed the tax cannot afford to hire private lawyers. "This law
is tailor-made for governmental abuse," said Nashville criminal
defense attorney Glenn Funk. Funk has sued the Department of Revenue
over the tax assessment on behalf of a number of clients. One case
making its way through the court system involves Harold Steven West of
Nashville, who was arrested Feb. 28 on suspicion of drug possession.
West, 52, has maintained his innocence and is scheduled to appear in
court on the criminal charges in August. But two weeks after his
arrest, agents from the Department of Revenue went to West's home and
demanded that he immediately pay $834 in drug taxes or his boat would
be seized, according to the lawsuit filed in Davidson County Chancery
Court. In their response to the lawsuit, Department of Revenue lawyers
confirmed that West "went to his bank accompanied by (a tax officer)
and procured a cashier's check in order to pay the full amount of the
assessment." Drug tax could face more legal challenges Tennessee's
drug tax is modeled after a similar law in North Carolina. That state
has collected more than $89 million in the 15 years since it was put
on the books.

The drug taxes are intended as a way to generate money that can be
used to offset the cost of drug trafficking to law enforcement. In
both states, the bulk of the taxes that are being collected have been
levied after the drugs were seized, not before. The controversial
nature of drug tax laws has resulted in legal challenges throughout
the country. In some states, the drug laws have become so watered down
after the legal battles that they are seldom used, said Allen St.
Pierre, executive director of the National Organization for the Reform
of Marijuana Laws (NORML). He acknowledged that North Carolina's law,
the model Tennessee used, had withstood legal scrutiny.

But he doesn't expect criminal defendants to accept the new law lying
down. "The Tennessee Supreme Court will absolutely, positively, be
litigating a case having to do with these drug taxes," St. Pierre
said. The drug tax is an attempt to circumvent laws designed to
protect people not yet convicted of crimes, said Funk, the Nashville
defense lawyer. "The burden is on the citizen to initiate the lawsuit
and get their money back, and not everybody will be able to do that,"
he said. "There has to be in America some responsibility for the
government to prove the citizen did something wrong before it punishes
the citizen."