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H.B. 127
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ASSET FORFEITURE AMENDMENTS
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1999 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Bill Wright
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AN ACT RELATING TO CRIMINAL LAW; AMENDING THE CONTROLLED SUBSTANCE
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ACT FORFEITURE PROVISIONS, INCLUDING PROCEDURES, BURDEN OF PROOF, AND
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USE OF FORFEITED PROPERTY OR PROCEEDS.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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58-37-2, as last amended by Chapter 64, Laws of Utah 1997
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58-37-12, as last amended by Chapter 64, Laws of Utah 1997
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58-37-13, as last amended by Chapters 198 and 294, Laws of Utah 1996
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58-37-15, as enacted by Chapter 145, Laws of Utah 1971
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58-37-20, as last amended by Chapter 36, Laws of Utah 1996
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ENACTS:
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58-37-1.5, Utah Code Annotated 1953
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Be it enacted by the Legislature of the state of Utah:
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Section 1.
Section
58-37-1.5
is enacted to read:
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58-37-1.5. Purpose.
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It is the intent of this chapter to:
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(1) discourage the use of controlled substances by restricting availability, licensing,
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labeling, and packaging of controlled substances and the equipment used solely for manufacturing
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controlled substances;
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(2) recognize the need to prohibit and curtail illegal use of controlled substances while
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acknowledging that property rights of innocent property owners must be protected; and
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(3) limit law enforcement entities' seizures and forfeitures to the extent necessary to protect
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private citizens from unjustified intrusions, and ensure direct legislative control and accountability
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over the use of forfeited property and revenue acquired from the disposal of forfeited property.
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Section 2.
Section
58-37-2
is amended to read:
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58-37-2. Definitions.
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(1) As used in this chapter:
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(a) "Administer" means the direct application of a controlled substance, whether by
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injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:
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(i) a practitioner or, in his presence, by his authorized agent; or
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(ii) the patient or research subject at the direction and in the presence of the practitioner.
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(b) "Agent" means an authorized person who acts on behalf of or at the direction of a
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manufacturer, distributor, or practitioner but does not include a motor carrier, public
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warehouseman, or employee of any of them.
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(c) "Continuing criminal enterprise" means any individual, sole proprietorship, partnership,
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corporation, business trust, association, or other legal entity, and any union or groups of
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individuals associated in fact although not a legal entity, and includes illicit as well as licit entities
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created or maintained for the purpose of engaging in conduct which constitutes the commission
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of episodes of activity made unlawful by Title 58, Chapters 37, 37a, 37b, 37c, or 37d, which
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episodes are not isolated, but have the same or similar purposes, results, participants, victims,
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methods of commission, or otherwise are interrelated by distinguishing characteristics. Taken
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together, the episodes shall demonstrate continuing unlawful conduct and be related either to each
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other or to the enterprise.
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(d) "Control" means to add, remove, or change the placement of a drug, substance, or
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immediate precursor under Section
58-37-3
.
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(e) (i) "Controlled substance" means a drug or substance included in Schedules I, II, III,
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IV, or V of Section
58-37-4
, and also includes a drug or substance included in Schedules I, II, III,
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IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any controlled substance
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analog.
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(ii) "Controlled substance" does not include:
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(A) distilled spirits, wine, or malt beverages, as those terms are defined or used in Title
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32A, regarding tobacco or food;
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(B) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
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prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
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norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
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or furnished as an over-the-counter medication without prescription; or
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(C) dietary supplements, vitamins, minerals, herbs, or other similar substances including
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concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
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occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
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Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
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(f) (i) "Controlled substance analog" means a substance the chemical structure of which
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is substantially similar to the chemical structure of a controlled substance listed in Schedules I and
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II of Section
58-37-4
, or in Schedules I and II of the federal Controlled Substances Act, Title II,
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P.L. 91-513:
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(A) which has a stimulant, depressant, or hallucinogenic effect on the central nervous
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system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central
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nervous system of controlled substances in the schedules set forth in this [subsection] chapter; or
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(B) which, with respect to a particular individual, is represented or intended to have a
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stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar
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to the stimulant, depressant, or hallucinogenic effect on the central nervous system of controlled
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substances in the schedules set forth in this Subsection (1)(f)(i)(B).
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(ii) Controlled substance analog does not include:
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(A) a controlled substance currently scheduled in Schedules I through V of Section
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58-37-4
;
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(B) a substance for which there is an approved new drug application;
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(C) a substance with respect to which an exemption is in effect for investigational use by
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a particular person under Section 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 366, to the
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extent the conduct with respect to the substance is permitted by the exemption; or
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(D) any substance to the extent not intended for human consumption before an exemption
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takes effect with respect to the substance.
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(E) Any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
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prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
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norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
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or furnished as an over-the-counter medication without prescription.
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(F) Dietary supplements, vitamins, minerals, herbs, or other similar substances including
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concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
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occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
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Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
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(g) "Conviction" means a determination of guilt by verdict, whether jury or bench, or plea,
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whether guilty or no contest, for any offense proscribed by Title 58, Chapters 37, 37a, 37b, 37c,
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or 37d, or for any offense under the laws of the United States and any other state which, if
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committed in this state, would be an offense under Title 58, Chapters 37, 37a, 37b, 37c, or 37d.
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(h) "Counterfeit substance" means:
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(i) any substance or container or labeling of any substance that without authorization bears
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the trademark, trade name, or other identifying mark, imprint, number, device, or any likeness of
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them, of a manufacturer, distributor, or dispenser other than the person or persons who in fact
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manufactured, distributed, or dispensed the substance which falsely purports to be a controlled
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substance distributed by, any other manufacturer, distributor, or dispenser; or
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(ii) any substance that is represented to be a controlled substance.
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(i) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a
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controlled substance or a listed chemical, whether or not an agency relationship exists.
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(j) "Department" means the Department of Commerce.
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(k) "Depressant or stimulant substance" means:
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(i) a drug which contains any quantity of:
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(A) barbituric acid or any of the salts of barbituric acid; or
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(B) any derivative of barbituric acid which has been designated by the Secretary of
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Agriculture as habit-forming under Section 502 (d) of the federal Food, Drug, and Cosmetic Act,
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21 U.S.C. 352 (d);
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(ii) a drug which contains any quantity of:
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(A) amphetamine or any of its optical isomers;
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(B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or
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(C) any substance which the Secretary of Health and Human Services or the Attorney
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General of the United States after investigation has found and by regulation designated
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habit-forming because of its stimulant effect on the central nervous system; or
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(iii) lysergic acid diethylamide; or
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(iv) any drug which contains any quantity of a substance which the Secretary of Health and
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Human Services or the Attorney General of the United States after investigation has found to have,
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and by regulation designated as having, a potential for abuse because of its depressant or stimulant
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effect on the central nervous system or its hallucinogenic effect.
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(l) "Dispense" means the delivery of a controlled substance by a pharmacist to an ultimate
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user pursuant to the lawful order or prescription of a practitioner, and includes distributing to,
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leaving with, giving away, or disposing of that substance as well as the packaging, labeling, or
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compounding necessary to prepare the substance for delivery.
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(m) "Dispenser" means a pharmacist who dispenses a controlled substance.
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(n) "Distribute" means to deliver other than by administering or dispensing a controlled
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substance or a listed chemical.
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(o) "Distributor" means a person who distributes controlled substances.
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(p) "Drug" means:
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(i) articles recognized in the official United States Pharmacopoeia, Official Homeopathic
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Pharmacopoeia of the United States, or Official National Formulary, or any supplement to any of
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them;
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(ii) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of
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disease in man or other animals;
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(iii) articles, other than food, intended to affect the structure or function of man or other
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animals; and
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(iv) articles intended for use as a component of any articles specified in Subsection
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(1)(p)(i), (ii), or (iii); but does not include devices or their components, parts, or accessories.
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(q) "Drug dependent person" means any individual who unlawfully and habitually uses any
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controlled substance to endanger the public morals, health, safety, or welfare, or who is so
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dependent upon the use of controlled substances as to have lost the power of self-control with
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reference to his dependency.
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(r) "Food" means:
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(i) any nutrient or substance of plant, mineral, or animal origin other than a drug as
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specified in this chapter, and normally ingested by human beings; and
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(ii) foods for special dietary uses as exist by reason of a physical, physiological,
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pathological, or other condition including but not limited to the conditions of disease,
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convalescence, pregnancy, lactation, allergy, hypersensitivity to food, underweight, and
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overweight; uses for supplying a particular dietary need which exist by reason of age including but
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not limited to the ages of infancy and childbirth, and also uses for supplementing and for fortifying
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the ordinary or unusual diet with any vitamin, mineral, or other dietary property for use of a food.
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Any particular use of a food is a special dietary use regardless of the nutritional purposes.
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(s) "Government attorney" means the state attorney general, any county or district attorney,
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any municipal attorney, any deputy or assistant attorney in the office of any of these attorneys, and
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any attorney authorized to prosecute violations of Title 58, Chapter 37, Controlled Substances.
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(t) "Governmental entity" means:
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(i) the state or any agency, authority, instrumentality, quasi-governmental entity, or
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institution of the state;
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(ii) any county or municipal or quasi-municipal corporation, political subdivision, law
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enforcement entity, multijurisdictional task force, agency, school district, special district, or other
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governmental entity, including military forces, or any combination of these; or
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(iii) the federal government, including any agency, authority, instrumentality,
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quasi-governmental entity, or institution of the federal government.
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[(s)] (u) "Immediate precursor" means a substance which the Attorney General of the
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United States has found to be, and by regulation designated as being, the principal compound used
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or produced primarily for use in the manufacture of a controlled substance, or which is an
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immediate chemical intermediary used or likely to be used in the manufacture of a controlled
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substance, the control of which is necessary to prevent, curtail, or limit the manufacture of the
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controlled substance.
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(v) "Law enforcement entity" means any of the following entities that are authorized to
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enforce this chapter:
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(i) any municipal, county, or state agency or unit; and
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(ii) any entity comprised of law enforcement officers from more than one law enforcement
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entity or jurisdiction.
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[(t)] (w) "Manufacture" means the production, preparation, propagation, compounding,
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or processing of a controlled substance, either directly or indirectly by extraction from substances
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of natural origin, or independently by means of chemical synthesis or by a combination of
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extraction and chemical synthesis.
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[(u)] (x) "Manufacturer" includes any person who packages, repackages, or labels any
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container of any controlled substance, except pharmacists who dispense or compound prescription
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orders for delivery to the ultimate consumer.
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[(v)] (y) "Marijuana" means all species of the genus cannabis and all parts of the genus,
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whether growing or not; the seeds of it; the resin extracted from any part of the plant; and every
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compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
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The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake
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made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or
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preparation of the mature stalks, except the resin extracted from them, fiber, oil or cake, or the
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sterilized seed of the plant which is incapable of germination. Any synthetic equivalents of the
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substances contained in the plant cannabis sativa or any other species of the genus cannabis which
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are chemically indistinguishable and pharmacologically active are also included.
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[(w)] (z) "Money" means officially issued coin and currency of the United States or any
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foreign country.
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(aa) "Multijurisdictional task force" means any law enforcement entity:
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(i) authorized to enforce this chapter; and
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(ii) that has a jurisdiction that crosses municipal, county, or state boundaries.
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[(x)] (bb) "Narcotic drug" means any of the following, whether produced directly or
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indirectly by extraction from substances of vegetable origin, or independently by means of
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chemical synthesis, or by a combination of extraction and chemical synthesis:
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(i) opium, coca leaves, and opiates;
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(ii) a compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or
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opiates;
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(iii) opium poppy and poppy straw; or
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(iv) a substance, and any compound, manufacture, salt, derivative, or preparation of the
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substance, which is chemically identical with any of the substances referred to in Subsection
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(1)(bb)(i), (ii), or (iii), except narcotic drug does not include decocainized coca leaves or extracts
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of coca leaves which do not contain cocaine or ecgonine.
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[(y)] (cc) "Negotiable instrument" means documents, containing an unconditional promise
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to pay a sum of money, which are legally transferable to another party by endorsement or delivery.
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[(z)] (dd) "Opiate" means any drug or other substance having an addiction-forming or
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addiction-sustaining liability similar to morphine or being capable of conversion into a drug having
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addiction-forming or addiction-sustaining liability.
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[(aa)] (ee) "Opium poppy" means the plant of the species papaver somniferum L., except
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the seeds of the plant.
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[(bb)] (ff) "Person" means any corporation, association, partnership, trust, other institution
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or entity or one or more individuals.
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[(cc)] (gg) "Poppy straw" means all parts, except the seeds, of the opium poppy, after
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mowing.
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[(dd)] (hh) "Possession" or "use" means the joint or individual ownership, control,
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occupancy, holding, retaining, belonging, maintaining, or the application, inhalation, swallowing,
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injection, or consumption, as distinguished from distribution, of controlled substances and includes
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individual, joint, or group possession or use of controlled substances. For a person to be a
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possessor or user of a controlled substance, it is not required that he be shown to have individually
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possessed, used, or controlled the substance, but it is sufficient if it is shown that the person jointly
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participated with one or more persons in the use, possession, or control of any substances with
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knowledge that the activity was occurring, or the controlled substance is found in a place or under
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circumstances indicating that the person had the ability and the intent to exercise dominion and
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control over it.
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[(ee)] (ii) "Practitioner" means a physician, dentist, veterinarian, pharmacist, scientific
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investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted to
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distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical
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analysis a controlled substance in the course of professional practice or research in this state.
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[(ff)] (jj) "Prescribe" means to issue a prescription orally or in writing.
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[(gg)] (kk) "Prescription" means an order issued by a licensed practitioner, in the course
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of that practitioner's professional practice, for a controlled substance, other drug, or device which
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it dispenses or administers for use by a patient or an animal. The order may be issued by word of
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mouth, written document, telephone, facsimile transmission, computer, or other electronic means
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of communication as defined by rule.
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[(hh)] (ll) "Production" means the manufacture, planting, cultivation, growing, or
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harvesting of a controlled substance.
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[(ii)] (mm) "Securities" means any stocks, bonds, notes, or other evidences of debt or of
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property.
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[(jj)] (nn) "State" means the state of Utah.
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(oo) "Transfer jurisdiction" means:
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(i) the referral, facilitation, or submittal of any request, petition, application, or filing by
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any law enforcement entity or government attorney that enables seizure or forfeiture of any assets,
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proceeds, property, or proceeds from property by any governmental entity that is not created by and
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subject to the laws of the state; and
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(ii) the participation by the state, a law enforcement entity, or a government attorney in
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federal asset-sharing programs such as those that can be initiated by filing U.S. Justice Department
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Form DAG-71 or any similar form that authorizes the transfer of jurisdiction regarding a controlled
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substance investigation or prosecution to the federal government.
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[(kk)] (pp) "Ultimate user" means any person who lawfully possesses a controlled
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substance for his own use, for the use of a member of his household, or for administration to an
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animal owned by him or a member of his household.
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(2) If a term used in this chapter is not defined, the definition and terms of Title 76, Utah
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Criminal Code, shall apply.
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Section 3.
Section
58-37-12
is amended to read:
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58-37-12. Enforcement -- Coordination and cooperation of federal and state agencies
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-- Powers.
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(1) The department and all law enforcement agencies charged with enforcing this [act]
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chapter shall cooperate with federal and other state agencies in discharging their responsibilities
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concerning traffic in controlled substances and in suppressing the abuse of controlled substances.
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To this end, they are authorized to:
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[(1) Arrange] (a) arrange for the exchange of information between governmental officials
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concerning the use and abuse of dangerous substances[.];
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[(2) Coordinate] (b) coordinate and cooperate in training programs in controlled substance
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law enforcement at the local and state levels[.];
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[(3) Cooperate] (c) cooperate with the United States Department of Justice and the Utah
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Department of Pubic Safety by establishing a centralized unit which will receive, catalog, file, and
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collect statistics, including records of drug-dependent persons and other controlled substance law
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offenders within the state, and make the information available for federal, state, and local law
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enforcement purposes[.]; and
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[(4) Conduct] (d) conduct programs of eradication aimed at destroying the wild or illicit
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growth of plant species from which controlled substances may be extracted.
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(2) (a) Officers or agents of law enforcement entities authorized to enforce this chapter or
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any government attorney may not transfer jurisdiction of any seizure or forfeiture initiated under
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this chapter.
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(b) Any person who violates this Subsection (2) is civilly liable for three times the amount
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of actual damages sustained by the plaintiff, and for costs of suit and reasonable attorneys' fees.
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(3) (a) Law enforcement entities authorized to enforce this chapter or any government
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attorney may not directly or indirectly receive, accept, share, exchange, trade, or otherwise transfer
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forfeited assets, proceeds, property, or proceeds from property forfeited or seized under this
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chapter from or with the federal government, or any other governmental entity not created under
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and subject to the authority of the state.
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(b) These seized or forfeited assets, proceeds, property, or proceeds from property may
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only be deposited directly into the General Fund of the state or of a municipality or county, as
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required under this chapter.
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(c) Any person who violates this Subsection (3) is civilly liable for three times the amount
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of actual damages sustained by the plaintiff, and for costs of suit and reasonable attorneys' fees.
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Section 4.
Section
58-37-13
is amended to read:
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58-37-13. Property subject to forfeiture -- Seizure -- Procedure.
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(1) As used in this section:
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(a) "Complaint" means a verified civil in rem complaint seeking forfeiture or any criminal
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information or indictment which contains or is amended to include a demand for forfeiture of a
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defendant's in personam interest in any property which is subject to forfeiture.
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(b) "Drug distributing paraphernalia" means any property used or designed to be used in
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the illegal transportation, storage, shipping, or circulation of a controlled substance. Property is
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considered "designed to be used" for one or more of the above-listed purposes if the property has
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been altered or modified to include a feature or device which would actually promote or conceal
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a violation of this chapter.
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(c) "Drug manufacturing equipment or supplies" includes any illegally possessed
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controlled substance precursor, or any chemical, laboratory equipment, or laboratory supplies
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possessed with intent to engage in clandestine laboratory operation as defined in Section
58-37d-3
.
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(d) "Interest holder" means a secured party as defined in Section
70A-9-105
(1)(m), a
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mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to an
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interest in property, whose interest would be perfected against a good faith purchaser for value.
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A person who holds property for the benefit of or as an agent or nominee for another, or who is
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not in substantial compliance with any statute requiring an interest in property to be recorded or
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reflected in public records in order to perfect the interest against a good faith purchaser for value,
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is not an interest holder.
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(e) "Owner" means an individual who possesses a legal or equitable ownership in real or
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personal property, or if title to the property is held in the name of a partnership, trust, corporation,
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or other legal entity, an individual who possesses a legal or equitable ownership interest in the
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partnership, trust, corporation, or other legal entity.
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[(e)] (f) "Proceeds" means property, other than contraband, acquired directly or indirectly
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from, produced through, realized through, or caused by an act or omission and includes any
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property of any kind without reduction for expenses incurred in the acquisition, maintenance, or
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production of that property, or any other purpose.
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(g) "Real property" means:
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(i) land; and
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(ii) any building, fixture, improvement, appurtenance, structure, or other development that
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is affixed to land.
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[(f)] (h) "Resolution of criminal charges" occurs at the time a claimant who is also charged
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with violations under Title 58, Chapters 37, 37a, 37b, 37c, or 37d enters a plea, upon return of a
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jury verdict or court ruling in a criminal trial, or upon dismissal of the criminal charge.
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[(g)] (i) "Violation of this chapter" means any conduct prohibited by Title 58, Chapters 37,
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37a, 37b, 37c, or 37d [or any conduct occurring outside the state which would be a violation of the
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laws of the place where the conduct occurred and which would be a violation of Title 58, Chapters
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37, 37a, 37b, 37c, or 37d if the conduct had occurred in this state].
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(2) (a) [The following are] Property described in Subsections (3)(a) through (k) is subject
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to forfeiture [and no] under this section, except that property described in Subsections (3)(b), (c),
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(d), (e), (f), and (g), Subsection (3)(i), and Subsection (3)(j) is subject to forfeiture only as part of
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an in personam action against a defendant, and the forfeiture shall be proportional, as provided in
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Subsection (2)(b), to the use of the property in violation of this chapter.
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(b) Forfeiture of property [right exists in them:] under this section shall be proportional
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to the use of the property in violation of this chapter only if the property is not contraband or
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paraphernalia.
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(3) The following property is subject to forfeiture under this section in accordance with
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the limitation established under Subsection (2):
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(a) all controlled substances which have been manufactured, distributed, dispensed, or
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acquired in violation of this chapter;
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(b) all raw materials, products, and equipment of any kind used[, or] and intended by the
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owner for use, or used with the knowing consent of the owner, in manufacturing, compounding,
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processing, delivering, importing, or exporting any controlled substance in violation of this
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chapter;
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(c) all property used [or] and intended by the owner for use, or used with the knowing
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consent of the owner, as a container for property described in Subsections [(2)] (3)(a) and [(2)]
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(3)(b);
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(d) all hypodermic needles, syringes, and other paraphernalia, not including capsules used
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with health food supplements and herbs, used [or] and intended by the owner for use, or used with
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the knowing consent of the owner, to administer controlled substances in violation of this chapter;
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(e) all conveyances, including aircraft, vehicles, or vessels used [or] and intended by an
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interest holder for use, or used with the knowing consent of the owner, to transport, or in any
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manner facilitate the transportation, sale, receipt, simple possession, or concealment of property
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described in Subsections [(2)] (3)(a) and [(2)] (3)(b), except that:
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(i) a conveyance used by any person as a common carrier in the transaction of business as
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a common carrier may not be forfeited under this section unless the owner or other person in
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charge of the conveyance was a consenting party or knew or had reason to know of the violation
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of this chapter;
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(ii) a conveyance may not be forfeited under this section by reason of any act or omission
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committed or omitted without the owner's knowledge or consent; and
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(iii) any forfeiture of a conveyance is subject to the claim of an interest holder who did not
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know or have reason to know after the exercise of reasonable diligence that a violation would or
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did take place in the use of the conveyance;
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(f) all books, records, and research, including formulas, microfilm, tapes, and data used
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[or] and intended by the owner for use, or used with the knowing consent of the owner, in violation
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of this chapter;
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(g) everything of value furnished [or], and intended by the owner to be furnished, in
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exchange for a controlled substance in violation of this chapter, and all moneys, negotiable
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instruments, and securities used [or] and intended [to be used] by the owner for use, or used with
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the knowing consent of the owner, to facilitate any violation of this chapter[. An]; however,
375
interest in property may not be forfeited under this Subsection (3)(g) unless it is proven by [a
376
preponderance of the] clear and convincing evidence that the owner or interest holder knew, had
377
reason to know of, or consented to the conduct which made the property subject to forfeiture[.
378
The], and the burden of presenting this evidence [shall be] is upon the state;
379
(h) all imitation controlled substances as defined in Section
58-37b-2
[, Imitation
380
Controlled Substances Act];
381
(i) all warehousing, housing, and storage facilities, or interest in real property of any kind
382
used, [or] and intended by an interest holder for use, or used with the knowing consent of the
383
owner, in producing, cultivating, warehousing, storing, protecting, or manufacturing any controlled
384
substances in violation of this chapter, except that:
385
(i) any forfeiture of a housing, warehousing, or storage facility or interest in real property
386
is subject to the claim of an owner or interest holder who did not know or have reason to know
387
[after the exercise of reasonable diligence] that a violation would take place on the property; and
388
(ii) an interest in property may not be forfeited under this Subsection (3)(i) if the owner
389
or interest holder did not know or have reason to know of the conduct which made the property
390
subject to forfeiture, or did not willingly consent to the conduct; [and]
391
[(iii) unless the premises are used in producing, cultivating, or manufacturing controlled
392
substances, a housing, warehousing, or storage facility or interest in real property may not be
393
forfeited under this subsection unless cumulative sales of controlled substances on the property
394
within a two-month period total or exceed $1,000, or the street value of any controlled substances
395
found on the premises at any given time totals or exceeds $1,000. A narcotics officer experienced
396
in controlled substances law enforcement may testify to establish the street value of the controlled
397
substances for purposes of this subsection;]
398
(j) any firearm, weapon, or ammunition carried or used, and intended by the owner to be
399
carried or used, or carried or used with the knowing consent of the owner, during or in relation to
400
a violation of this chapter [or any firearm, weapon, or ammunition kept or located within the
401
proximity of controlled substances or other property subject to forfeiture under this section]; and
402
(k) [all] proceeds [traceable to] proximately resulting from any violation of this chapter[.
403
There is a rebuttable presumption that all money, coins, and currency found in proximity to
404
forfeitable controlled substances, drug manufacturing equipment or supplies, drug distributing
405
paraphernalia, or forfeitable records of importation, manufacture, or distribution of controlled
406
substances are], and the burden for proving proceeds [traceable to a] proximately result from any
407
violation of this chapter[. The burden of proof] is upon the [claimant of the property to rebut this
408
presumption] state.
409
[(3)] (4) (a) Property subject to forfeiture under this chapter may be seized by any peace
410
officer of this state upon process issued by any court having jurisdiction over the property.
411
However, seizure without process may be made when:
412
(i) the seizure is incident to an arrest or search under a search warrant or an inspection
413
under an administrative inspection warrant;
414
(ii) the property subject to seizure has been the subject of a prior judgment in favor of the
415
state in a criminal injunction or forfeiture proceeding under this chapter;
416
(iii) the peace officer has probable cause to believe that the property is directly or indirectly
417
dangerous to health or safety; or
418
(iv) the peace officer has probable cause to believe that the property, other than real
419
property, has been used or intended to be used in violation of this chapter and has probable cause
420
to believe the property will be damaged, intentionally diminished in value, destroyed, concealed,
421
or removed from the state.
422
(b) Subsection (4)(a) does not limit a law enforcement entity's authority under Amendment
423
IV, Constitution of the United States, or under Article 1, Sec. 14, Constitution of Utah.
424
[(b)] (c) Upon the filing of a complaint, the court [shall immediately] may, upon probable
425
cause, issue to the seizing agency a warrant for seizure of any property subject to forfeiture which
426
had been seized without a warrant in a manner described in this Subsection (4).
427
[(4)] (5) (a) In the event of seizure under Subsection [(3)] (4), forfeiture proceedings under
428
Subsection [(9)] (10) shall be instituted within [90] 30 days of the seizure.
429
(b) The time period may by extended by the court having jurisdiction over the property
430
[upon notice to] for good cause shown and upon approval by all claimants and interest holders [and
431
for good cause shown].
432
[(5)] (6) Property taken or detained under this section is not repleviable but is in custody
433
of the law enforcement agency making the seizure, subject only to the orders and decrees of the
434
court or the official having jurisdiction. When property is seized under this chapter, the
435
appropriate person or agency [may] shall:
436
(a) place the property under seal;
437
(b) remove the property to a place designated by it or the warrant under which it was
438
seized; or
439
(c) take custody of the property and remove it to an appropriate location for disposition
440
in accordance with law.
441
[(6)] (7) (a) All substances listed in Schedule I that are possessed, transferred, distributed,
442
or offered for distribution in violation of this chapter are contraband and no property right [shall
443
exist] exists in them.
444
(b) All substances listed in Schedule I which are seized or come into the possession of the
445
state may be retained for any evidentiary or investigative purpose, including sampling or other
446
preservation prior to disposal or destruction by the state.
447
[(7)] (8) (a) All marijuana or any species of plants from which controlled substances in
448
Schedules I and II are derived which have been planted or cultivated in violation of this chapter,
449
or of which the owners or cultivators are unknown, or are wild growths, may be seized and
450
retained for any evidentiary or investigative purpose, including sampling or other preservation
451
prior to disposal or destruction by the state.
452
(b) Failure, upon demand by the department or its authorized agent, of any person in
453
occupancy or in control of land or premises upon which species of plants are growing or being
454
stored, to produce an appropriate license or proof that he is the holder of a license, is authority for
455
the seizure and forfeiture of the plants.
456
[(8)] (9) (a) When any property is forfeited under this chapter by a finding of the court that
457
no person is entitled to recover the property, [it shall be deposited in the custody of the Division
458
of Finance. Disposition of all property is as follows:] the treasurer of the county or the
459
municipality where the property subject to seizure or forfeiture was initially located has authority
460
to dispose of the property forfeited as provided in this section. However, if a multijurisdictional
461
task force or employees of more than one law enforcement entity are actively involved in an
462
investigation which has resulted in property that is subject to seizure and forfeiture, the various law
463
enforcement entities involved shall jointly determine the proportionate distribution of the property
464
or proceeds from the property.
465
[(a) The state may include in its complaint seeking forfeiture, a request that the seizing
466
agency be awarded the property. Upon a finding that the seizing agency is able to use the forfeited
467
property in the enforcement of controlled substances laws, the court having jurisdiction over the
468
case shall award the property to the seizing agency. Each agency shall use the forfeited property
469
for controlled substance law enforcement purposes only. Forfeited property or proceeds from the
470
sale of forfeited property may not be used to pay any cash incentive, award, or bonus to any peace
471
officer or individual acting as an agent for the agency, nor may it be used to supplant any ordinary
472
operating expense of the agency. The seizing agency shall pay to the prosecuting agency the legal
473
costs incurred in filing and pursuing the forfeiture action. Property forfeited under this section may
474
not be applied by the court to costs or fines assessed against any defendant in the case.]
475
[(b) The seizing agency, or if it makes no application, any state agency, bureau, county,
476
or municipality, which demonstrates a need for specific property or classes of property subject to
477
forfeiture shall be given the property for use in enforcement of controlled substances laws upon
478
the payment of costs to the county attorney or, if within a prosecution district, the district attorney
479
for legal costs for filing and pursuing the forfeiture and upon application for the property to the
480
director of the Division of Finance. The application shall clearly set forth the need for the property
481
and the use to which the property will be put.]
482
[(c) The director of the Division of Finance shall review all applications for property
483
submitted under Subsection (8)(b) and, if the seizing agency makes no application, make a
484
determination based on necessity and advisability as to final disposition and shall notify the
485
designated applicant or seizing agency, where no application is made, who may obtain the property
486
upon payment of all costs to the appropriate department. The Division of Finance shall in turn
487
reimburse the prosecuting agency or agencies for costs of filing and pursuing the forfeiture action,
488
not to exceed the amount of the net proceeds received for the sale of the property. Any proceeds
489
remaining after payment shall be returned to the seizing agency or agencies.]
490
[(d) If no disposition is made upon an application]
491
(b) (i) The treasurer under Subsection [(8)] (9)(a) [or (b), the director of the Division of
492
Finance] shall dispose of the property by public bidding [or as considered appropriate, by
493
destruction. Proof of destruction shall be upon oath of two officers or employees of the
494
department having charge of the property, and verified by the director of the department or his
495
designated agent.] and deposit the proceeds in the general fund of the municipality or the county,
496
as applicable, except:
497
(A) if the property is cash, it shall be deposited in the general fund of the county or the
498
municipality, as applicable, or in the Drug Forfeiture Account, if a state law enforcement entity
499
receives the cash; and
500
(B) if the property is contraband or paraphernalia, or of no value, it may be destroyed as
501
provided in Subsection (9)(b)(ii) below.
502
(ii) If the forfeited property is determined to have no value, is paraphernalia, or otherwise
503
does not have a lawful purpose, as stated upon the signed statement of two persons who have no
504
legal or personal interest in the property and who are employees of the treasurer authorized to
505
dispose of the property, or if the treasurer does not have two employees, two employees of the
506
political subdivision employing the treasurer, other than employees of the law enforcement entity,
507
the treasurer may direct the destruction of the property.
508
(c) The proceeds under this section may be appropriated only by the respective state,
509
county, or municipal legislative body.
510
(d) (i) An officer with a law enforcement entity, a government attorney, an employee of
511
either of these, or any informant or witness who is part of the criminal case regarding which the
512
property is forfeited may not receive, accept, share, exchange, trade, or otherwise exercise control
513
over any forfeited assets, proceeds, property, or proceeds from property, except as necessary to
514
transfer the property for evidentiary purposes or to transfer the property to the treasurer under
515
Subsection (9)(b)(i).
516
(ii) Any person who violates this Subsection (9) is civilly liable for three times the amount
517
of actual damages sustained by the plaintiff, and for costs of suit and reasonable attorneys' fees.
518
[(9) ] (10) Forfeiture proceedings shall be commenced as follows:
519
(a) For actions brought [under Subsections (2)(a) through (2)(j)] regarding property under
520
Subsection (3), a complaint shall be prepared by the county attorney, or if within a prosecution
521
district, the district attorney, or the attorney general, and filed in a court of record where the
522
property was seized or is to be seized. In cases in which the claimant of the property is also
523
charged as a criminal defendant, the complaint shall be filed in the county where the criminal
524
charges arose, regardless of the location of the property. The complaint shall include:
525
(i) a description of the property which is subject to forfeiture;
526
(ii) the date and place of seizure, if known; and
527
(iii) the allegations of conduct by the owner which gives rise to forfeiture.
528
(b) (i) In cases where a claimant is also charged as a criminal defendant, the forfeiture shall
529
proceed as part of the criminal prosecution as an in personam action against the defendant's
530
interest in the property subject to forfeiture. A defendant need not file a written answer to the
531
complaint, but may acknowledge or deny interest in the property at the time of first appearance on
532
the criminal charges. If a criminal information or indictment is amended to include a demand for
533
forfeiture, the defendant may respond to the demand at the time of the amendment.
534
[(i)] (ii) Unless a motion for disposition is made by the defendant, the determination of
535
forfeiture shall be stayed until resolution of the criminal charges. Hearing on the forfeiture shall
536
be before the court [without a jury], or before a jury if a demand is submitted. However, a jury
537
trial is considered waived unless demanded. The court may consider any evidence presented in
538
the criminal case, and receive any other evidence offered by the state or the defendant. The court
539
shall [determine by a preponderance of the evidence the issues in the case and order forfeiture or
540
release of the property as it determines] release the property to the claimants unless the court finds
541
the state has proven the property is subject to forfeiture under this section by clear and convincing
542
evidence.
543
[(ii)] (iii) A defendant may move the court to transfer the forfeiture action, to stay all
544
action, including discovery, in the forfeiture, or for hearing on the forfeiture any time prior to trial
545
of the criminal charges. Either party may move the court to enter a finding of forfeiture as to
546
defendant's interest in part or all of the property, either by default or by stipulation. Upon entry
547
of a finding, the court shall stay the entry of judgment until resolution of the criminal charges.
548
[Any finding of forfeiture entered by the court prior to resolution of the criminal charges may not
549
constitute a separate judgment, and any motion for disposition, stay, severance, or transfer of the
550
forfeiture action may not create a separate proceeding. Upon the granting of a motion by the
551
defendant for disposition, stay, severance, or transfer of the forfeiture action, the defendant shall
552
be considered to have waived any claim that the defendant has been twice put in jeopardy for the
553
same offense.]
554
[(iii)] (iv) Any other person claiming an interest in property subject to forfeiture under this
555
Subsection (10) may not intervene in a trial or appeal of a complaint filed under this subsection.
556
Following the entry of an in personam forfeiture order, or upon the filing of a petition for release
557
under Subsection (10)(e), the county attorney, district attorney, or attorney general may proceed
558
with a separate in rem action to resolve any other claims upon the property that is not contraband,
559
paraphernalia, or proceeds, and that is subject to forfeiture.
560
(c) (i) A complaint seeking forfeiture under Subsection [(2)] (3)(k), regarding proceeds,
561
shall be prepared by the county attorney, or if within a prosecution district, the district attorney,
562
or by the attorney general, either in personam as part of a criminal prosecution, or in a separate
563
civil in rem action against the property alleged to be proceeds, and filed in the county where the
564
property is seized or encumbered, if the proceeds are located outside the state.
565
(ii) A finding that property is the proximate result of proceeds of a violation of this chapter
566
[does not require] requires proof that the property is the proceeds of [any] a particular exchange
567
or transaction. Proof that property is the proximate result of the proceeds [may] shall be shown
568
by [evidence which establishes all of the following by a preponderance of the] the state by clear
569
and convincing evidence[:].
570
[(i) that the person has engaged in conduct in violation of this chapter;]
571
[(ii) that the property was acquired by the person during that period when the conduct in
572
violation of this chapter occurred or within a reasonable time after that period; and]
573
[(iii) that there was no likely source for the property other than conduct in violation of the
574
chapter.]
575
(d) Notice of the seizure and intended forfeiture shall be filed with the clerk of the court,
576
and served upon all persons known to the county attorney or district attorney to have a claim in the
577
property by:
578
(i) personal service upon [a claimant who is charged in a criminal information or
579
indictment] all claimants whose addresses are known; and
580
(ii) [certified mail to each claimant whose name and address is known or to each owner
581
whose right, title, or interest is of record in the Division of Motor Vehicles to the address given
582
upon the records of the division, which service is considered complete even though the mail is
583
refused or cannot be forwarded. The] if the addresses of claimants under Subsection (10)(d) are
584
unknown, the county attorney, district attorney, or attorney general shall make [one publication]
585
three publications in a newspaper of general circulation in the county where the seizure was made
586
[for all other claimants whose addresses are unknown, but who are believed to have an interest in
587
the property].
588
(e) (i) Except under Subsection [(9)] (10)(a) in personam actions, when property is seized
589
under this section, any claimant or interest holder shall file with the court a verified answer to the
590
complaint within 20 days after receipt of service. [When property is seized under this chapter, any]
591
(ii) A claimant or interest holder [or claimant of the property], prior to being served with
592
a complaint under this [section] chapter, may file a petition in the court having jurisdiction for
593
release of his interest in the property. The petition shall specify the claimant's interest in the
594
property and his right to have it released. A copy shall be served upon the county attorney or, if
595
within a prosecution district, the district attorney in the county of the seizure[, who]. The
596
government attorney shall answer the petition within 20 days. A petitioner need not subsequently
597
answer a complaint of forfeiture.
598
(f) (i) For civil actions in rem, after 20 days following service of a complaint or petition
599
for release, the court shall examine the record and if no answer is on file, the court shall allow the
600
complainant or petitioner an opportunity to present evidence in support of his claim and order
601
forfeiture or release of the property as the court determines.
602
(ii) If the county attorney or district attorney has not filed an answer to a petition for
603
release and the court determines from the evidence that the petitioner is not entitled to recovery
604
of the property, it shall enter an order directing the county attorney or district attorney to answer
605
the petition within ten days. If no answer is filed within that period, the court shall order the
606
release of the property to the petitioner entitled to receive it.
607
(g) When an answer to a complaint or petition appears of record at the end of 20 days, the
608
court shall set the matter for hearing. At this hearing all interested parties may present evidence
609
of their rights of release of the property following the state's evidence for forfeiture. The court
610
shall [determine by a preponderance of the evidence the issues in the case and order] release the
611
property to the petitioner unless the state proves its case for forfeiture [or release] of the property
612
[as it determines] by clear and convincing evidence. If the state fails to meet its burden, the
613
property shall be released and the court shall award reasonable attorney fees and costs.
614
(h) When the court determines that claimants have no right in the property in whole or in
615
part, it shall declare the property to be forfeited.
616
(i) When the court determines that property, in whole or in part, is not subject to forfeiture,
617
it shall order release of the property to the proper claimant. If the court determines that the
618
property is subject to forfeiture and release in part, it shall order partial release and partial
619
forfeiture. When the property cannot be divided for partial forfeiture and release, the court shall
620
order it sold and the proceeds distributed:
621
(i) first, proportionally among the legitimate claimants; and
622
(ii) second, [to defray the costs of the action, including seizure, storage of the property,
623
legal costs of filing and pursuing the forfeiture, and costs of sale; and] by the procedures described
624
in Subsection (9).
625
[(iii) third, to the Division of Finance for the General Fund.]
626
[(j) In a proceeding under this section where forfeiture is declared, in whole or in part, the
627
court shall assess all costs of the forfeiture proceeding, including seizure and storage of the
628
property, against the individual or individuals whose conduct was the basis of the forfeiture, and
629
may assess costs against any other claimant or claimants to the property as appropriate.]
630
Section 5.
Section
58-37-15
is amended to read:
631
58-37-15. Burden of proof in proceedings on violations -- Enforcement officers
632
exempt from liability.
633
(1) [It is not necessary for] The burden of proof is upon the state to negate any exemption
634
or exception set forth in this [act] chapter in any complaint, information, indictment or other
635
pleading or trial, hearing, or other proceeding under this [act, and the burden of proof of any
636
exemption or exception is upon the person claiming its benefit] chapter.
637
(2) In absence of proof that a person is the [duly] authorized holder of an appropriate
638
license, registration, order form, or prescription issued under this [act] chapter, he shall be
639
presumed not to be the holder of a license, registration, order form, or prescription, and the burden
640
of proof is upon [him] the state to rebut the presumption.
641
(3) No liability [shall be] is imposed upon any [duly] authorized state or federal officer in
642
good faith engaged in the enforcement of this [act] chapter who is engaged in the enforcement of
643
any law, municipal ordinance, or regulation relating to controlled substances.
644
Section 6.
Section
58-37-20
is amended to read:
645
58-37-20. Drug Forfeiture Account created -- Revenue sources -- Use of account
646
designated.
647
(1) (a) There is created in the General Fund a restricted account called the "Drug Forfeiture
648
Account."
649
(b) All monies forfeited or seized to the state through the state or federal court process as
650
a result of activity involving a controlled substance violation as prohibited under Title 58, Chapter
651
37, 37a, 37b, 37c, or 37d, or prohibited under federal law, shall be deposited into the Drug
652
Forfeiture Account.
653
(2) The Department of Public Safety may expend amounts as appropriated by the
654
Legislature from the Drug Forfeiture Account to aid in enforcement efforts to combat drug
655
trafficking.
656
(3) (a) That portion of funds forfeited or [siezed] seized that are required to be disbursed
657
to other governmental entities under existing contractual agreements, including agreements
658
established under Section
58-37-13
, regarding involvement of more than one law enforcement
659
entity, are exempt from this section.
660
(b) Property and proceeds subject to Subsection
58-37-13
(9) are exempt from this section.
661
(4) Funds forfeited or seized as a result of the Salt Lake Airport Drug Program, not to
662
exceed the Department of Public Safety's expenditure to that program, are exempt from this
663
section.
664
(5) The Department of Public Safety as part of the annual budget hearings shall:
665
(a) provide the Executive Offices, Criminal Justice, and Legislature Appropriations
666
Subcommittee with a complete accounting of expenditures and revenues from the funds under this
667
section; and
668
(b) submit a request for appropriations for the coming fiscal year from the Drug Forfeiture
669
Account, which shall enumerate the specific purposes for which the appropriation is requested.
670
(6) The Legislature may annually provide, in the Appropriations Act, legislative direction
671
for anticipated expenditures of the monies received under this section.
Legislative Review Note
as of 2-15-99 9:43 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.