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H.B. 124
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ASSET FORFEITURE REVISIONS
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2000 GENERAL SESSION
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STATE OF UTAH
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Sponsor: Bill Wright
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John E. Swallow
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AN ACT RELATING TO CRIMINAL LAW AND PROCEDURE; AMENDING FORFEITURE
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PROCESS UNDER THE CONTROLLED SUBSTANCES LAW.
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This act affects sections of Utah Code Annotated 1953 as follows:
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AMENDS:
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58-37-13, 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
58-37-13
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) "CCJJ" means the Commission on Criminal and Juvenile Justice created under Section
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63-25a-101
.
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(b) "Claimant" means:
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(i) any owner as defined in this section;
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(ii) any interest holder as defined in this section, and any other person or entity who asserts
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a claim to any property seized for forfeiture under this section;
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(iii) any person who files an answer to a forfeiture complaint in a proceeding instituted
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under this section; or
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(iv) any person who files a petition for release of seized property under this section.
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[(a)] (c) "Complaint" means a verified civil in rem complaint seeking forfeiture or any
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criminal information or indictment which contains or is amended to include a demand for
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forfeiture of a defendant's in personam interest in any property which is subject to forfeiture.
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(d ) "Controlled substance law enforcement purposes" means:
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(i) any law enforcement agency action directed toward reduction in the illegal production,
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distribution, or use of controlled substances; or
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(ii) any controlled substance abuse education, prevention, or treatment program sponsored
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in whole or in part by a state or local governmental entity.
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[(b)] (e) "Drug distributing paraphernalia" means any property used or designed to be used
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in the illegal transportation, storage, shipping, or circulation of a controlled substance. Property
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is considered "designed to be used" for one or more of the above-listed purposes if the property
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has been altered or modified to include a feature or device which would actually promote or
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conceal a violation of this chapter.
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[(c)] (f) "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)] (g) "Interest holder" means a secured party as defined in Section
70A-9-105
(1)(m),
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a mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to
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an 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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(h) "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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(i) (i) "Owner" means an individual or entity who holds a legitimate legal or equitable
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ownership in real or personal property.
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(ii) "Owner" does not include an individual or entity who holds property as the nominee
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or nominal owner for another if that nominee or nominal owner has no legitimate interest in the
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property.
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[(e)] (j) "Proceeds" means property acquired directly or indirectly from, produced through,
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realized through, or caused by an act or omission and includes any property of any kind without
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reduction for expenses incurred in the acquisition, maintenance, or production of that property, or
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any other purpose.
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(k) "Prosecuting agency" means:
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(i) a county attorney;
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(ii) the district attorney if the prosecution is taking place within a prosecution district; or
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(iii) the state attorney general.
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(l) "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 permanently to land.
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[(f)] (m) "Resolution of criminal charges" occurs at the time a claimant who is also
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charged with violations under Title 58, Chapters 37, 37a, 37b, 37c, or 37d enters a plea, upon
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return of a jury verdict or court ruling in a criminal trial, or upon dismissal of the criminal charge.
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(n) "Seizing agency" means any of the following entities that are authorized to enforce this
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chapter:
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(i) any municipal, county, or state law enforcement agency or unit; and
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(ii) any entity comprised of law enforcement officers from more than one state or federal
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law enforcement entity, including multijurisdictional task forces.
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[(g)] (o) "Violation of this chapter" means any conduct prohibited by Title 58, Chapters
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37, 37a, 37b, 37c, or 37d or any conduct occurring outside the state which would be a violation
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of the laws of the place where the conduct occurred and which would be a violation of Title 58,
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Chapters 37, 37a, 37b, 37c, or 37d if the conduct had occurred in this state.
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(2) The following [are subject to forfeiture and no property right exists in them] shall be
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forfeited:
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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 intended for use, in
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manufacturing, compounding, processing, delivering, importing, or exporting any controlled
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substance in violation of this chapter;
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(c) all property used or intended for use as a container for property described in
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Subsections (2)(a) and (2)(b); and
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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 intended for use to administer controlled
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substances in violation of this chapter[;].
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(3) The following are subject to forfeiture, but property rights exist in them as provided
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in this section regarding innocent owners and interest holders:
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[(e)] (a) all conveyances, including aircraft, vehicles, or vessels used or intended for use[,]
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to transport, or in any manner facilitate the transportation, sale, receipt, simple possession, or
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concealment of property described in Subsections (2)(a) and (2)(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
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or did take place in the use of the conveyance;
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[(f)] (b) all books, records, and research, including formulas, microfilm, tapes, and data
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used or intended for use in violation of this chapter;
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[(g)] (c) (i) everything of value furnished or intended to be furnished, by the owner of the
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thing of value, or with the owner's knowledge or consent, in exchange for a controlled substance
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in violation of this chapter, and all moneys, negotiable instruments, and securities used [or
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intended to be used] by the owner of these items, or with the owner's knowledge or consent, to
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facilitate any violation of this chapter[. An], but an interest in property may not be forfeited under
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this Subsection (3)(c)(i) unless it is proven by a preponderance of the evidence that the property
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owner or interest holder knew[, had reason to know] of, or consented to the conduct which made
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the property subject to forfeiture[. The]; and
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(ii) the burden of presenting this [evidence shall be] proof is upon the state;
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[(h)] (d) all imitation controlled substances as defined in Section
58-37b-2
, Imitation
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Controlled Substances Act;
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[(i)] (e) all warehousing, housing, and storage facilities, or interest in real property of any
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kind used, or intended for use, in producing, cultivating, warehousing, storing, protecting, or
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manufacturing any controlled substances in violation of this chapter, except that:
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(i) a court may not grant or order any forfeiture of a housing, warehousing, or storage
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facility or interest in real property [is subject to the claim of an interest holder who did not know
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or have reason to know after the exercise of reasonable diligence that] unless the state proves that
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the owner or any interest holder knew, or consented to or participated in a violation [would] of this
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chapter that would or did take place on the property; and
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(ii) an interest in real property may not be forfeited under this Subsection (3)(e)(ii) if the
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owner or interest holder did not know [or have reason to know] of the conduct which made the
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property subject to forfeiture, or did not willingly consent to the conduct; [and]
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[(iii) unless the premises are used in producing, cultivating, or manufacturing controlled
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substances, a housing, warehousing, or storage facility or interest in real property may not be
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forfeited under this subsection unless cumulative sales of controlled substances on the property
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within a two-month period total or exceed $1,000, or the street value of any controlled substances
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found on the premises at any given time totals or exceeds $1,000. A narcotics officer experienced
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in controlled substances law enforcement may testify to establish the street value of the controlled
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substances for purposes of this subsection;]
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[(j)] (f) any firearm, weapon, or ammunition carried or used during or in relation to a
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violation of this chapter or any firearm, weapon, or ammunition kept or located within the
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proximity of controlled substances or other property subject to forfeiture under this section but
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only if the owner of the firearm, weapon, or ammunition, or another person acting with the consent
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and knowledge of the owner, used the weapon, firearm, or ammunition, or intended that the
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weapon, firearm, or ammunition be used in a manner that would subject it to forfeiture under this
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Subsection (3)(f); and
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[(k)] (g) all proceeds [traceable to] proximately resulting from any violation of this
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chapter, but the burden of proof is upon the prosecuting agency to establish that the proceeds
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proximately resulted from any violation of this chapter. [There is a rebuttable presumption that
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all money, coins, and currency found in proximity to forfeitable controlled substances, drug
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manufacturing equipment or supplies, drug distributing paraphernalia, or forfeitable records of
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importation, manufacture, or distribution of controlled substances are proceeds traceable to a
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violation of this chapter. The burden of proof is upon the claimant of the property to rebut this
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presumption.]
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[(3)] (4) (a) Property subject to forfeiture under this chapter may be seized by any peace
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officer of this state upon process issued by any court having jurisdiction over the property.
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However, seizure without process may be made when:
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(i) the seizure is incident to an arrest or search under a search warrant or an inspection
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under an administrative inspection warrant;
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(ii) the property subject to seizure has been the subject of a prior judgment in favor of the
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state in a criminal injunction or forfeiture proceeding under this chapter;
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(iii) the peace officer has probable cause to believe that the property is directly or indirectly
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dangerous to health or safety; [or]
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(iv) the peace officer has probable cause to believe that the property has been used [or
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intended to be used] in violation of this chapter and has probable cause to believe the property will
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be damaged, intentionally diminished in value, destroyed, concealed, or removed from the state[.];
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or
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(v) if the property subject to forfeiture is a conveyance under Subsection (4)(a), the law
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enforcement officer may seize the property based solely upon probable cause to believe:
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(A) the conveyance has been used in violation of this chapter; and
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(B) the property is readily mobile and located in an area open to the public at the time of
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the seizure.
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(b) (i) [Upon the filing of a complaint, the] The agency responsible for the seizure of the
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property without process shall apply for a search warrant to the court having jurisdiction.
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(ii) The application shall be made within 30 days of the seizure and shall contain a
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statement of the cause justifying the seizure.
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(iii) The court, upon a showing of probable cause to believe the seized property is subject
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to forfeiture under this section, shall immediately issue to the seizing agency a warrant for seizure
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of any property subject to forfeiture which had been seized without a warrant in a manner
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described in this Subsection (4).
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(iv) This Subsection (4) does not apply to property seized regarding which a search warrant
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or seizure warrant was issued prior to the seizure of the property.
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[(4)] (5) In the event of seizure under Subsection [(3)] (4), forfeiture proceedings under
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Subsection [(9)] (10) shall be instituted within 90 days of the seizure. The time period may by
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extended by the court having jurisdiction over the property upon notice to all claimants, owners,
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and interest holders and for good cause shown.
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[(5)] (6) (a) Property taken or detained under this section is not repleviable but is in
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custody of the law enforcement agency making the seizure, subject only to the orders and decrees
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of the court or the official having jurisdiction. When property is seized under this chapter, the
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appropriate person or agency [may] shall:
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[(a)] (i) place the property under seal;
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[(b)] (ii) remove the property to a place designated by it or the warrant under which it was
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seized; or
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[(c)] (iii) take custody of the property and remove it to an appropriate location for
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disposition in accordance with law.
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(b) (i) The seizing agency is responsible for the management and safekeeping of any
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property seized under this chapter, from the time of seizure until an order of forfeiture is entered
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or the property is ordered to be returned to a claimant or interest holder.
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(ii) The seizing agency shall deposit property in the form of cash or other readily
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negotiable instruments into a restricted account maintained by the agency solely for the purpose
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of managing and protecting the property from commingling, loss, or devaluation during the
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pendency of the forfeiture action.
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(iii) The seizing agency shall have in place written rules and protocol for the identification,
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tracking, management, and safekeeping of seized property.
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[(6)] (7) (a) All substances listed in [Schedule] Schedules I through V, and all items listed
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in Subsections (2) and (3)(a), (b), and (d) that are possessed, transferred, distributed, or offered for
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distribution in violation of this chapter are contraband and [no property right shall exist in them]
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are subject to summary forfeiture.
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(b) All substances listed in Schedule I which are seized or come into the possession of the
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state may be retained for any evidentiary or investigative purpose, including sampling or other
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preservation prior to disposal or destruction by the state.
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[(7)] (8) (a) All marijuana or any species of plants from which controlled substances in
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Schedules I and II are derived which have been planted or cultivated in violation of this chapter,
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or of which the owners or cultivators are unknown, or are wild growths, may be seized and
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retained for any evidentiary or investigative purpose, including sampling or other preservation
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prior to disposal or destruction by the state.
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(b) Failure, upon demand by the department or its authorized agent, of any person in
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occupancy or in control of land or premises upon which species of plants are growing or being
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stored, to produce an appropriate license or proof that he is the holder of a license, is authority for
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the seizure and forfeiture of the plants.
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[(8)] (9) When any property is forfeited under this chapter [by a finding of the court that
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no person is entitled to recover the property, it shall be deposited in the custody of the Division of
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Finance. Disposition of all], the property [is] shall be disposed of, managed, and used as follows:
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(a) (i) The [state may include] prosecuting agency may in its complaint seeking forfeiture[,
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a] request that the legislative body having jurisdiction over the seizing agency be awarded the
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property. The request shall include a statement demonstrating to the court that the agency has
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established rules and protocol for managing seized property, in accordance with Subsection
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(6)(b)(iii).
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(ii) Upon a finding that the seizing agency [is able to use the forfeited property in the
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enforcement of controlled substances laws] meets the requirements of Subsection (9)(a)(i), the
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court having jurisdiction over the case shall award the property to the legislative body having
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jurisdiction over the seizing agency.
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(iii) Property forfeited under this section may not be applied by the court to costs or fines
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assessed against any defendant in the case.
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(iv) The court shall direct that all seized property which is not awarded under Subsection
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(9)(a)(ii) or is not returned to a claimant, owner, or interest holder be disposed of, and the proceeds
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deposited in the state General Fund, to be appropriated as determined by the Legislature to CCJJ
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under Subsection (9)(e).
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(b) (i) Each [agency shall] law enforcement entity to which is appropriated forfeited
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property by its legislative body, or to which is awarded forfeited property by CCJJ, may use the
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forfeited property for controlled substance law enforcement purposes only.
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(ii) Forfeited property or proceeds from the sale of forfeited property may not be used to
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pay any cash incentive, award, or bonus to any peace officer or individual acting as an agent for
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the agency, nor may it be used to supplant any ordinary operating expense of the agency. [The
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seizing agency shall pay to the prosecuting agency the legal costs incurred in filing and pursuing
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the forfeiture action. Property forfeited under this section may not be applied by the court to costs
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or fines assessed against any defendant in the case.]
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[(b) The seizing agency, or if it makes no application, any state agency, bureau, county,
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or municipality, which demonstrates a need for specific property or classes of property subject to
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forfeiture shall be given the property for use in enforcement of controlled substances laws upon
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the payment of costs to the county attorney or, if within a prosecution district, the district attorney
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for legal costs for filing and pursuing the forfeiture and upon application for the property to the
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director of the Division of Finance. The application shall clearly set forth the need for the property
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and the use to which the property will be put.]
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[(c) The director of the Division of Finance shall review all applications for property
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submitted under Subsection (8)(b) and, if the seizing agency makes no application, make a
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determination based on necessity and advisability as to final disposition and shall notify the
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designated applicant or seizing agency, where no application is made, who may obtain the property
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upon payment of all costs to the appropriate department. The Division of Finance shall in turn
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reimburse the prosecuting agency or agencies for costs of filing and pursuing the forfeiture action,
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not to exceed the amount of the net proceeds received for the sale of the property. Any proceeds
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remaining after payment shall be returned to the seizing agency or agencies.]
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[(d) If no disposition is made upon an application under Subsection (8)(a) or (b), the
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director of the Division of Finance shall dispose of the property by public bidding or as considered
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appropriate, by destruction. Proof of destruction shall be upon oath of two officers or employees
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of the department having charge of the property, and verified by the director of the department or
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his designated agent.]
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(c) (i) The legislative body to which forfeited property and proceeds are awarded by the
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court, by the federal government, or by any other entity shall maintain and account for the property
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and proceeds.
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(ii) All forfeited monies shall be deposited in the legislative body's general fund for
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appropriation by that body. Other forfeited property may be disposed of, and the proceeds
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deposited in the general fund, or the property may be allocated directly to the seizing agency, if the
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legislative body determines the allocation results in the most effective use of the property in
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enforcing controlled substances laws.
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(iii) From the forfeited monies the legislative body shall first reimburse the prosecuting
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agency for the legal costs of filing and pursuing the forfeiture, but only to the extent that the
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monies and property cover those costs.
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(iv) All appropriations or allocations of forfeited property by the legislative body shall be
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only as limited by Subsection (9)(b), and may be used for matching grants to be used in controlled
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substance law enforcement.
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(d) The legislative body shall appropriate the money for the purposes under Subsection
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(9)(b)(ii) within three years of receipt of the money, or at the end of the three years shall deposit
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the remaining money in the state General Fund to be appropriated by the Legislature to CCJJ as
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provided in Subsection (9)(e).
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(e) (i) If the forfeited property is not awarded to the seizing agency or returned to a
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claimant, the court shall order the sale of the property and that the proceeds and monies be
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deposited in the General Fund. The Legislature shall appropriate these funds to CCJJ as a line
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item, to be used through its grant program for funding law enforcement agencies' controlled
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substance law enforcement purposes.
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(ii) Out of the funds appropriated by the Legislature to CCJJ under Subsection (9)(e)(i),
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CCJJ shall reimburse each prosecuting agency for the legal costs of filing and pursuing the
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forfeiture, to the extent of funds resulting from that forfeiture. The balance of the funds shall be
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allocated by CCJJ to law enforcement agencies through its grant program, but may be used only
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for the purposes under Subsection (9)(b).
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(f) (i) If the seizing agency is comprised of actively involved law enforcement officers who
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are employees of more than one law enforcement entity or jurisdiction, such as a
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multijurisdictional task force, the various involved law enforcement entities involved shall jointly
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determine the proportionate distribution of the property or proceeds from the property. The court
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shall allocate the property in accordance with this determination.
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(ii) If the involved law enforcement agencies have not established a distribution, the court
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shall allocate the forfeited property among the involved law enforcement entities.
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(iii) All property allocated among the various law enforcement entities shall be deposited
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in the general fund of the political subdivision having jurisdiction over the law enforcement agency
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to which property is allocated. The legislative body of the political subdivision shall manage and
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appropriate the property in accordance with Subsection (9)(c).
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(g) Law enforcement entities authorized to enforce this chapter or any prosecuting agency
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may not directly or indirectly receive, accept, share, exchange, trade, or otherwise transfer forfeited
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assets, proceeds, property, or proceeds from property forfeited or seized under this chapter from
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or with the federal government except as necessary to transfer the property for evidentiary purposes
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or to dispose of the property under this section.
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[(9) ] (10) Forfeiture proceedings shall be commenced as follows:
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(a) For actions brought under [Subsections (2)(a) through (2)(j)] Subsection (3)(a), (c), (e),
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or (f), a complaint shall be prepared by the [county attorney, or if within a prosecution district, the
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district attorney, or the attorney general] prosecuting agency, and filed in a court of record where
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the property was seized or is to be seized. In cases in which the claimant of the property is also
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charged as a criminal defendant, the complaint shall be filed in the county where the criminal
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charges arose, regardless of the location of the property. The complaint shall include:
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(i) a description of the property which is subject to forfeiture;
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(ii) the date and place of seizure[, if known]; and
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(iii) the allegations of conduct which gives rise to forfeiture.
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(b) (i) In cases brought under Subsection (3)(a), (c), (e), or (f) where the owner or a
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claimant is also charged as a criminal defendant, the forfeiture shall proceed as part of the criminal
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prosecution as an in personam action against the defendant's interest in the property subject to
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forfeiture. A defendant need not file a written answer to the complaint, but may acknowledge or
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deny interest in the property at the time of first appearance on the criminal charges. If a criminal
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information or indictment is amended to include a demand for forfeiture, the defendant may
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respond to the demand at the time of the amendment.
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[(i)] (ii) Unless motion for disposition is made by the defendant, the determination of
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forfeiture shall be stayed until resolution of the criminal charges. Hearing on the forfeiture shall
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be before the court without a jury. The court may consider any evidence presented in the criminal
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case, and receive any other evidence offered by the state or the defendant. The court shall
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determine by a preponderance of the evidence the issues in the case and order forfeiture or release
345
of the property as it determines.
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[(ii)] (iii) A defendant may move the court to transfer the forfeiture action, to stay all
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action, including discovery, in the forfeiture, or for hearing on the forfeiture any time prior to trial
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of the criminal charges. Either party may move the court to enter a finding of forfeiture as to
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defendant's interest in part or all of the property, either by default or by stipulation. [Upon entry
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of a finding, the court shall stay the entry of judgment until resolution of the criminal charges. Any
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finding of forfeiture entered by the court prior to resolution of the criminal charges may not
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constitute a separate judgment, and any motion for disposition, stay, severance, or transfer of the
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forfeiture action may not create a separate proceeding. Upon the granting of a motion by the
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defendant for disposition, stay, severance, or transfer of the forfeiture action, the defendant shall
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be considered to have waived any claim that the defendant has been twice put in jeopardy for the
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same offense.]
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[(iii)] (iv) Any other person claiming an interest in property subject to forfeiture under this
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subsection may not intervene in a trial or appeal of a complaint filed under this subsection.
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Following the entry of an in personam forfeiture order, or upon the filing of a petition for release
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under Subsection (10)(e), the county attorney, district attorney, or attorney general may proceed
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with a separate in rem action to resolve any other claims upon the property subject to forfeiture.
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(c) [A complaint] In actions seeking forfeiture under Subsection [(2)(k)] (3)(g), a
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complaint shall be prepared by the [county attorney, or if within a prosecution district, the district
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attorney, or by the attorney general] prosecuting agency, either in personam as part of a criminal
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prosecution, or in a separate civil in rem action against the property alleged to be proceeds[, and]
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obtained in violation of this chapter. The complaint shall be filed in the county where the property
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is seized or encumbered, if the proceeds are located outside the state. A finding that property is
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the proceeds of a violation of this chapter does not require proof that the property is the proceeds
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of any particular exchange or transaction. Proof that property is proceeds may be shown by
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evidence which establishes all of the following by a preponderance of the evidence:
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(i) that the owner, if any claim of ownership is made, and the person [has] from whom the
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property was seized have engaged in conduct in violation of this chapter;
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(ii) that the property was acquired by the owner, if any claim of ownership is made, and
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the person from whom the property was seized during that period when the conduct in violation
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of this chapter occurred or within a reasonable time after that period; and
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(iii) that there was no likely source for the property other than conduct in violation of the
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chapter.
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(d) Notice of the seizure and intended forfeiture shall be filed with the clerk of the court,
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and served upon all persons known to the county attorney or district attorney to have a claim in the
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property by:
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(i) personal service upon [a] any owner or claimant [who is charged in a criminal
382
information or indictment] in all in personam forfeiture actions, and upon all owners of real
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property subject to forfeiture in all cases, whether in personam or in rem; and
384
(ii) certified mail to each owner, interest holder, or claimant, in an in rem forfeiture
385
proceeding not affecting real property, whose name and address is known or to each owner whose
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right, title, or interest is of record in the Division of Motor Vehicles to the address given upon the
387
records of the division, which service is considered complete upon mailing even though the mail
388
is refused or cannot be forwarded.
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(iii) The [county attorney, district attorney, or attorney general] prosecuting agency shall
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make one publication in a newspaper of general circulation in the county where the seizure was
391
made for all other claimants whose addresses are unknown, but who are believed to have an
392
interest in the property.
393
(e) Except under Subsection [(9)] (10)(a) in personam actions, any claimant or interest
394
holder shall file with the court a verified answer to the complaint within 20 days after service.
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When property is seized under this chapter, any interest holder or claimant of the property, prior
396
to being served with a complaint under this section, may file a petition in the court having
397
jurisdiction for release of his interest in the property. The petition shall specify the claimant's
398
interest in the property and his right to have it released. A copy shall be served upon the [county
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attorney or, if within a prosecution district, the district attorney] prosecuting agency in the county
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of the seizure, who shall answer the petition within 20 days. A petitioner need not answer a
401
complaint of forfeiture.
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(f) (i) For civil actions in rem, after 20 days following service of a complaint or petition
403
for release, the court shall examine the record and if no answer is on file, the court shall allow the
404
complainant or petitioner an opportunity to present evidence in support of his claim and order
405
forfeiture or release of the property as the court determines.
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(ii) If the [county attorney or district attorney] prosecuting agency has not filed an answer
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to a petition for release and the court determines from the evidence presented to the court by the
408
petitioner that the petitioner is not entitled to recovery of the property, it shall enter an order
409
directing the county attorney or district attorney to answer the petition within ten days. If no
410
answer is filed within that period, the court shall order the release of the property to the petitioner
411
entitled to receive it.
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(g) When an answer to a complaint or petition appears of record at the end of 20 days, the
413
court shall set the matter for hearing. At this hearing all [interested parties] claimants, owners, and
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interest holders may present evidence of their rights of release of the property following the state's
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evidence for forfeiture. The court shall determine by a preponderance of the evidence the issues
416
in the case and order forfeiture or release of the property as it determines.
417
(h) When the court determines that the claimants under Subsection (10)(g) have no right
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in the property in whole or in part, it shall declare the property to be forfeited.
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(i) When the court determines that property, in whole or in part, is not subject to forfeiture,
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it shall order release of the property to the proper claimant. If the court determines that the
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property is subject to forfeiture and release in part, it shall order partial release and partial
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forfeiture. When the property cannot be divided for partial forfeiture and release, the court shall
423
order it sold and the proceeds distributed:
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(i) first, proportionally among the legitimate claimants; and
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(ii) second, [to defray the costs of the action, including seizure, storage of the property,
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legal costs of filing and pursuing the forfeiture, and costs of sale; and] by the procedures under
427
Subsection (8).
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[(iii) third, to the Division of Finance for the General Fund.]
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(j) In a proceeding under this section where forfeiture is declared, in whole or in part, the
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court shall assess all costs of the forfeiture proceeding, including seizure and storage of the
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property, against the individual or individuals whose conduct was the basis of the forfeiture, and
432
may assess costs against any other claimant or claimants to the property as appropriate.
433
Section 3.
Section
58-37-15
is amended to read:
434
58-37-15. Burden of proof in proceedings on violations -- Exemptions -- Enforcement
435
officers exempt from liability.
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(1) It is not necessary for the state to negate any exemption or exception set forth in this
437
act in any complaint, information, indictment or other pleading or trial, hearing, or other
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proceeding under this act, and the burden of proof of any exemption or exception is upon the
439
person claiming its benefit.
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(2) In absence of proof that a person is the duly authorized holder of an appropriate license,
441
registration, order form, or prescription issued under this act, he shall be presumed not to be the
442
holder of a license, registration, order form, or prescription, and the burden of proof is upon him
443
to rebut the presumption.
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(3) The provisions of Subsections (1) and (2) do not apply to forfeiture proceedings under
445
this chapter.
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[(3)] (4) No liability shall be imposed upon any duly authorized state or federal officer
447
engaged in the enforcement of this act who is engaged in the enforcement of any law, municipal
448
ordinance, or regulation relating to controlled substances.
449
Section 4.
Section
58-37-20
is amended to read:
450
58-37-20. Drug Forfeiture Account created -- Revenue sources -- Use of account
451
designated.
452
(1) (a) There is created in the General Fund a restricted account called the "Drug Forfeiture
453
Account."
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(b) All monies and property forfeited [or seized to the state] to the Department of Public
455
Safety or the Department of Corrections, or any division or agency within either department,
456
through the state or federal court process as a result of activity involving a controlled substance
457
violation as prohibited under Title 58, Chapter 37, 37a, 37b, 37c, or 37d, or prohibited under
458
federal law, shall be deposited into the Drug Forfeiture Account.
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(2) The Department of Public Safety may expend amounts as appropriated by the
460
Legislature from the Drug Forfeiture Account to aid in enforcement efforts to combat drug
461
trafficking.
462
(3) That portion of funds forfeited or [siezed] seized that are required to be disbursed to
463
other governmental entities under existing contractual agreements are exempt from this section.
464
(4) Funds forfeited or seized as a result of the Salt Lake Airport Drug Program, not to
465
exceed the Department of Public Safety's expenditure to that program, are exempt from this
466
section.
467
(5) The Department of Public Safety as part of the annual budget hearings shall provide
468
the Executive Offices, Criminal Justice, and Legislature Appropriations Subcommittee with a
469
complete accounting of expenditures and revenues from the funds under this section.
470
(6) The Legislature may annually provide, in the Appropriations Act, legislative direction
471
for anticipated expenditures of the monies received under this section.
Legislative Review Note
as of 2-8-00 1:48 PM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.