The opinion
McAULIFFE, Judge,
dissenting, in which CHASANOW and BELL, Judges, join.
I agree with the Court that nothing in Article 27, § 297, Maryland Code (1957, 1992 Repl.Vol.) gives a court the right to exercise its own discretion in determining whether to grant a petition for forfeiture of a motor vehicle. I part company with the Court, however, when it holds that the lower court has no function in determining whether executive branch officials abused their discretion, or acted outside the permissible bounds of the statute, in deciding to seek forfeiture. Specifically, I believe the legislature intended court review of the decision of the forfeiting authority, not to substitute the court’s judgment for that of the forfeiting authority, but to determine whether the forfeiting authority abused his or her discretion by seeking forfeiture under circumstances that clearly do not fall within any of the standards or conditions established by the statute. I believe the discretion given the forfeiting authority is broad, and the court would have to approve forfeiture if the record demonstrated any state of facts that would fit within the standards established by the legislature for the forfeiture of a motor vehicle, but that the discretion given to the forfeiting authority is not limitless, and the court is not powerless to correct an abuse of that discretion.
I agree with the Court that the trial judge erred in denying the forfeiture on the ground that the material transported in the vehicle was not a controlled dangerous substance. Section 297(b)(4) of Art. 27 makes eligible for forfeiture, subject to limitations thereafter set forth, conveyances of all types “in *377 tended for use” in the transportation of controlled dangerous substances, and this defendant intended to transport a controlled dangerous substance in this vehicle. This vehicle passed the threshold test for forfeiture.
The threshold test, however, is just that — an initial test applicable to all conveyances. If a conveyance does not qualify for forfeiture under subsection (b)(4), the inquiry ends and forfeiture is not permitted. If the conveyance is a motor vehicle, however, it must also qualify for forfeiture pursuant to subsection (i) of the § 297. It simply could not be clearer that the legislature, by adding subsection (i) to § 297 intended to impose a separate set of standards with which there would have to be compliance if the conveyance sought to be forfeited was a motor vehicle. The initial language of subsection (i), which introduces the standards that follow, clearly establishes that further limitation:
(i) In exercising the authority to seize motor vehicles pursuant to this section the following standards shall be utilized ....
The use of the words “standards” and “shall” make it clear that the legislature was not simply setting forth criteria that it would prefer the forfeiting authority consider in determining whether to forfeit a vehicle. Rather, the legislature mandated two specific conditions that could be shown to justify forfeiture of a vehicle, and then established a third “wild card” or “totality of circumstances” condition, with guidelines, that would serve to justify such a forfeiture. The introductory language to the three possible conditions that will justify forfeiture of a motor vehicle is clearly limiting. The legislature provided:
A motor vehicle used in violation of this section shall be seized and forfeiture recommended to forfeiting authority when....
I do not believe there is any disagreement that in this context, “when” means “when, and only when.” The first two condi *378 tions that follow are clear, and a court will ordinarily have little difficulty in determining whether they have been met: 1
1. Controlled dangerous substances in any quantity are sold or attempted to be sold in violation of this subtitle;
or
2. Although the violator has not sold or attempted to sell controlled dangerous substances in violation of this subtitle, an amount of such substances or paraphernalia is located which would reasonably indicate that sale is contemplated by the violator[.]
No one contends that the State can qualify this vehicle for forfeiture under either of these conditions.
The third condition is decidedly more general. The legislature said forfeiture of a motor vehicle could be accomplished when:
3. The total circumstances of the case dictate that seizure and forfeiture is justified; these circumstances would include such factors as the following:
a. The possession of controlled dangerous substances;
b. An extensive criminal record of the violator;
c. A previous conviction of the violator for a controlled dangerous substances violation;
d. Corroborated information is developed indicating that the violator is or was recently a seller, or frequently associates with individuals known to be distributors of illegal controlled dangerous substances or paraphernalia;
e. Circumstances of the arrest; or
f. The manner in which the vehicle was being used.
Assuming that this third condition is not void for vagueness, 2 it is apparent that the legislature intended by this language to permit forfeiture of a vehicle when the threshold test of subsection (b)(4) was met and in addition one or more of the *379 circumstances declared in this third condition demonstrated the presence of an additional factor of seriousness justifying seizure. It is here that the discretion of the forfeiting authority comes into play. That discretion is, in light of the legislative language, necessarily broad. It is not, however, limitless. By establishing the conditions for forfeiture, and requiring that the forfeiting authority file a petition with the court in order to obtain a forfeiture, the legislature has expressed its intention that the court exercise the limited, but traditional oversight of determining whether the forfeiting authority abused it’s discretion. 3 I cannot imagine the legislature acting to carefully circumscribe the power of forfeiture in the case of motor vehicles, as it obviously did in enacting subsection (i) by ch. 659 of the Acts of 1972, only to insert in that same statute language that permitted the forfeiting authority to forfeit a motor vehicle under any other circumstances that seemed appropriate to that authority, without any limit on that discretion or any judicial oversight to curb the possible abuse of that discretion. In subsection (j) of § 297, the legislature commanded that the forfeiting authority make an independent determination of whether the conditions of forfeiture have been met. Subsection (j) provides, in pertinent part, as follows:
If the forfeiting authority determines independent of the decision of the police department, bureau, or force that seized the motor vehicle that ... the standards to be utilized pursuant to subsection (i)(l) of this section were not met, the forfeiting authority shall surrender the vehicle upon request to the owner.
There is nothing tentative about that language. The legislature obviously did not want a motor vehicle forfeited that did not meet the standards of subsection (i)(l). The forfeiting authority was directed, by use of the mandatory word “shall” to surrender the vehicle if it did not meet the established conditions. Surely this decision is susceptible to judicial over *380 sight under an “abuse of discretion” or “clearly wrong” test; otherwise the subsequent judicial proceeding mandated by the legislature lacks meaning. It is interesting to note that in State v. One 1976 Dodge, 65 Md.App. 482 , 501 A.2d 103 (1985), cert. denied, 305 Md. 599 , 505 A.2d 856 (1986), the State argued that
[w]hen faced with a forfeiture petition under Md.Ann.Code art. 27, § 297 (1982 Repl.Vol. and 1985 Cum.Supp.), a circuit court is empowered to determine only “whether the police commissioner abused his discretion or was clearly erroneous in recommending forfeiture....’.
I agree with the position taken by the State in that case.
In the instant case, the trial judge indicated to counsel early in the proceedings his belief that forfeiture was not possible when a controlled dangerous substance was not involved. The State asked permission to make a full record for purposes of appeal, and did so by dictating into the record an agreed statement of facts. There is .nothing in the agreed statement of facts that would come within a country mile of satisfying any of the three conditions for forfeiture of a motor vehicle established by the legislature. No controlled dangerous substances or paraphernalia were found in the vehicle; there was no evidence the defendant had any prior record, much less an “extensive criminal record”; there was no “corroborated information” that the defendant was recently a seller, or frequently associated with individuals known to be distributors of controlled dangerous substances or paraphernalia; there was no evidence that there was anything unusual about the circumstances of the arrest; and, the manner of use of the vehicle was simply to transport a small quantity of a substance that the driver believed to be a controlled dangerous substance. On this record, there was an abuse of discretion or clear error in determining that the vehicle qualified for forfeiture.
Concededly, the focus of the parties and the court below was on a different issue — the availability of forfeiture when the substance was not a controlled dangerous substance. That question having been resolved, it may be appropriate to *381 afford the State an opportunity, if it so desires, to offer any evidence it may have to show the presence of any of the aggravating factors set forth by the legislature in the third condition. I would vacate the judgment and remand for further proceedings.
Judge Chasanow and Judge Bell have authorized me to state that they join in the views expressed herein.
. The numbers and letters used here to describe the conditions are not those used in the statute.
. The defendant does not challenge the statute on this ground.
. A failure to exercise discretion is, by definition, an abuse of discretion, and would also be subject to judicial oversight.