Download Zipped Introduced WP 9 SB0031.ZIP
[Status][Bill Documents][Fiscal Note][Bills Directory]
S.B. 31
1
PROPERTY FORFEITURE AMENDMENTS
2
2003 GENERAL SESSION
3
STATE OF UTAH
4
Sponsor: John L. Valentine
5
This act modifies the Utah Uniform Forfeiture Procedures Act. This act provides
6
additional definitions, expands reporting and accountability requirements, repeals
7
provisions regarding criminal forfeiture, and specifies that all forfeiture proceedings
8
under the act are civil. This act creates the Law Enforcement Forfeiture Account, and
9
transfers funds remaining in the repealed Drug Forfeiture Account to the new account.
10
This act creates a special revenue fund known as the Attorney General Law Enforcement
11
Assistance Fund. The fund shall receive 2/3 of net forfeiture proceeds, to be used under
12
specified qualifications and terms for law enforcement activity. This act also creates the
13
Substance Abuse Forfeiture Account, and provides that 1/3 of net forfeiture proceeds will
14
go to this account. The Administrative Office of the Courts shall use these funds for drug
15
court purposes. This act repeals provisions allowing for forfeiture defense costs to be
16
allocated from forfeited property. This act also makes technical amendments. This act
17
has an immediate effective date.
18
This act affects sections of Utah Code Annotated 1953 as follows:
19
AMENDS:
20
24-1-2, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
21
24-1-3, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
22
24-1-4, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
23
24-1-6, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
24
24-1-7, as last amended by Chapter 185, Laws of Utah 2002
25
24-1-10, as last amended by Chapter 185, Laws of Utah 2002
26
24-1-11, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
27
24-1-12, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
28
24-1-13, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
29
24-1-14, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
30
24-1-15, as last amended by Chapter 185, Laws of Utah 2002
31
32A-13-103, as last amended by Chapter 185, Laws of Utah 2002
32
ENACTS:
33
24-1-3.5, Utah Code Annotated 1953
34
24-1-17, Utah Code Annotated 1953
35
24-1-18, Utah Code Annotated 1953
36
24-1-19, Utah Code Annotated 1953
37
24-1-20, Utah Code Annotated 1953
38
62A-15-113, Utah Code Annotated 1953
39
REPEALS:
40
24-1-8, as last amended by Chapter 185, Laws of Utah 2002
41
24-1-9, as enacted by Statewide Initiative B, Nov. 7, 2000, Laws of Utah 2000
42
24-1-16, as last amended by Chapter 185, Laws of Utah 2002
43
Be it enacted by the Legislature of the state of Utah:
44
Section 1.
Section
24-1-2
is amended to read:
45
24-1-2. Purpose.
46
It is the intent of this chapter to:
47
(1) provide [for] a uniform set of procedures and substantive standards for the
48
[criminal and] civil forfeiture of property within the state [of Utah];
49
(2) permit law enforcement personnel to deter crime by lawfully seizing and forfeiting
50
contraband and the instrumentalities and proceeds of criminal conduct;
51
(3) protect innocent owners and interest holders from the [wrongful taking] forfeiture
52
of their property;
53
(4) ensure that seizures and forfeitures of property from private citizens are [not
54
disproportionate] in proportion to the violation or crime committed;
55
(5) ensure direct control and accountability over the use and sale of forfeited property
56
and [the proceeds generated therefrom] the revenue resulting from the disposal of forfeited
57
property; [and]
58
(6) ensure the revenue resulting from property forfeiture allows continued law
59
enforcement, crime prevention, drug courts, and other appropriate activities related to these
60
functions;
61
(7) maximize the benefits of, and accountability of, federal asset forfeiture sharing for
62
the citizens of the state; and
63
[(6)] (8) direct that any and all revenues resulting from the sale of forfeited property be
64
[contributed to the Uniform School Fund] allocated to the Administrative Office of the Courts
65
for use in conducting drug courts, and to the state attorney general for grants to state and local
66
law enforcement agencies according to specified guidelines.
67
Section 2.
Section
24-1-3
is amended to read:
68
24-1-3. Definitions.
69
As used in this section:
70
(1) "Agency" [shall mean] means any agency of municipal, county, or state
71
government, including law enforcement agencies, law enforcement personnel, and
72
multijurisdictional task forces.
73
(2) "Claimant" means:
74
(a) any owner of property as defined in this section;
75
(b) any interest holder as defined in this section; and
76
(c) any other person or entity who asserts a claim to any property seized for forfeiture
77
under this section.
78
(3) "Complaint" means a verified civil complaint seeking the forfeiture of any real or
79
personal property pursuant to this chapter.
80
[(2)] (4) "Contraband" [shall mean] means any property, item, or substance which is
81
unlawful to produce or to possess under state or federal law.
82
(5) "Fund" means the Attorney General Law Enforcement Assistance Fund created in
83
Section
24-1-18
.
84
(6) (a) "Innocent owner" means an owner or interest holder who held an ownership
85
interest in property at the time the conduct subjecting the property to seizure occurred, and:
86
(i) did not have actual knowledge of the conduct subjecting the property to seizure; or
87
(ii) upon learning of the conduct subjecting the property to seizure, took reasonable
88
steps to prohibit the illegal use of the property.
89
(b) "Innocent owner" means an owner or interest holder who acquired an ownership
90
interest in the property after the conduct subjecting the property to seizure has occurred, and
91
who had no knowledge that the illegal conduct subjecting the property to seizure had occurred
92
or that the property had been seized for forfeiture, and:
93
(i) acquired the property in a bona fide transaction for value;
94
(ii) was a person, including a minor child, who acquired an interest in the property
95
through probate or inheritance; or
96
(iii) was a spouse who acquired an interest in property through dissolution of marriage
97
or by operation of law.
98
(7) (a) "Interest holder" means a secured party as defined in Subsection
99
70A-9a-102
(72), a mortgagee, lien creditor, or the beneficiary of a security interest or
100
encumbrance pertaining to an interest in property, whose interest would be perfected against a
101
good faith purchaser for value.
102
(b) "Interest holder" does not mean a person who holds property for the benefit of or as
103
an agent or nominee for another person, or who is not in substantial compliance with any
104
statute requiring an interest in property to be recorded or reflected in public records in order to
105
perfect the interest against a good faith purchaser for value.
106
(8) "Legal costs" means the costs and expenses incurred by the prosecuting agency, not
107
to exceed 20% of the net value of the forfeited property.
108
(9) "Legislative body" means:
109
(a) the state Legislature, county commission, county council, city commission, city
110
council, or town council that has fiscal oversight and budgetary approval authority over a
111
seizing agency or the seizing agency's governing political subdivision; or
112
(b) the lead governmental entity of a multijurisdictional task force, as designated in a
113
memorandum of understanding executed by the agencies participating in the task force.
114
[(3)] (10) "Multijurisdictional task force" [shall mean] means a law enforcement task
115
force or other agency comprised of persons who are employed by or acting under the authority
116
of different governmental authorities, including federal, state, county, or municipal
117
governments, or any combination [thereof] of these agencies.
118
[(4)] (11) "Owner" [shall mean] means any person or entity, other than an interest
119
holder as defined in this section, that possesses a bona fide legal or equitable interest in real or
120
personal property[, including a security interest].
121
(12) "Program" means the Attorney General Law Enforcement Assistance Program
122
created in Section
24-1-19
.
123
[(5)] (13) "Property" [shall mean] means all property, whether real or personal, tangible
124
or intangible.
125
[(6)] (14) "Prosecuting Attorney" [shall mean the public attorney authorized by a
126
specific provision of state law to initiate forfeiture proceedings under this chapter] means the
127
attorney general, and any assistant attorney general, district attorney, deputy district attorney,
128
county attorney, assistant county attorney, or other attorney authorized to commence an action
129
on behalf of the state under this chapter or other provisions of state law.
130
(15) "Seize for forfeiture" means seizure of property:
131
(a) by a law enforcement officer or law enforcement agency, including a constructive
132
seizure; and
133
(b) accompanied by an assertion by the officer or agency or by a prosecuting attorney
134
that the property is seized for forfeiture in accordance with this chapter.
135
[(7) "State law" means all Utah law, including municipal, county and state law.]
136
Section 3.
Section
24-1-3.5
is enacted to read:
137
24-1-3.5. Jurisdiction and venue.
138
(1) The state district court has jurisdiction over any action filed in accordance with this
139
chapter regarding:
140
(a) all interests in property if the property for which forfeiture is sought is within this
141
state at the time the action is filed; and
142
(b) the interests of owners or interest holders in the property, if the owner or interest
143
holder is subject to the personal jurisdiction of the district court.
144
(2) (a) In addition to the venue provided for under Title 78, Chapter 13, Place of Trial -
145
Venue, or any other provisions of law, a proceeding for forfeiture under this chapter may be
146
maintained in the judicial district in which:
147
(i) any part of the property is found; or
148
(ii) a civil or criminal action could be maintained against an owner or interest holder
149
for the conduct alleged to give cause for the forfeiture.
150
(b) A claimant may obtain a change of venue under Section
78-13-9
.
151
Section 4.
Section
24-1-4
is amended to read:
152
24-1-4. Forfeiture proceedings -- Agency notice of seizure -- Voiding of forfeiture.
153
(1) An agency which seizes property under any provision of state law subjecting [an
154
owner's] the property to [civil] forfeiture shall, as soon as practicable, but in no case more than
155
30 days after seizure:
156
(a) prepare a detailed inventory of all property seized and transfer the seized property
157
to a designated official within the agency, who shall be responsible for holding and maintaining
158
seized property pending a court order of release or final determination of forfeiture and
159
disposition of property under this chapter;
160
(b) notify the prosecuting attorney for the appropriate jurisdiction who is responsible
161
for initiating [civil] forfeiture proceedings under this chapter of the items of property seized,
162
the place of the seizure, and any persons arrested at the time of seizure; and
163
(c) give written notice to all owners and interest holders known, or reasonably
164
discoverable after due diligence, of [the following items]:
165
(i) the date of the seizure and the property seized;
166
(ii) the owner's or interest holder's rights and obligations under this chapter, including
167
the availability of [counsel and] hardship relief in appropriate circumstances; and
168
(iii) [an outline] a brief description of the [steps in the] statutory basis for the forfeiture
169
and the judicial proceedings by which property is forfeited under this chapter.
170
(2) (a) If the seizing agency fails to provide notice as required in [subparagraph (1)(c)]
171
Subsection (1), an owner or interest holder entitled to notice who does not receive notice may
172
void the forfeiture with respect to the owner's or interest holder's interest in the property by
173
bringing a motion before the appropriate district court and serving it upon the seizing agency.
174
[Such] The motion may be brought at any time prior to the final disposition of the property
175
under this chapter.
176
(b) If an owner or interest holder brings a motion to void the forfeiture for lack of the
177
notice required under [subparagraph (1)(c)] Subsection (1), the court shall void the forfeiture
178
unless the seizing agency demonstrates:
179
[(a)] (i) good cause for the failure to give notice to that owner; or
180
[(b)] (ii) that the owner otherwise had actual notice of the seizure.
181
(3) (a) Within [90] 60 days of any seizure, the prosecuting attorney shall file a
182
complaint for forfeiture in the appropriate district court and serve a summons and notice of
183
intent to seek forfeiture with a copy of the complaint upon all owners and interest holders
184
known to the prosecuting attorney to have an interest in the property. Service shall be by one
185
of the following methods:
186
[(i) personal service upon each owner whose name and address is known, or by mailing
187
a copy to the last known address; or]
188
[(ii) upon all other owners whose addresses are not known, by publication in a
189
newspaper of general circulation in the county where the seizure was made for a period of two
190
consecutive weeks.]
191
(i) if the owner's or interest holder's name and current address are known, either by
192
personal service by any person qualified to serve process, by a law enforcement officer, or by
193
certified mail, return receipt requested, to that address;
194
(ii) if the owner's or interest holder's name and address are required by law to be on
195
record with any state agency in order to perfect an interest in property, and the owner's or
196
interest holder's current address is not known, by mailing a copy of the notice by certified mail,
197
return receipt requested, to the most recent address listed by any of those agencies; or
198
(iii) if the owner's or interest holder's address is not known and is not on record as
199
provided in Subsections (3)(a)(i) or (ii), by publication for two successive weeks in a
200
newspaper of general circulation in the county in which the seizure occurred.
201
(b) Notice is effective upon the earlier of personal service, publication, or the mailing
202
of a written notice.
203
(c) The summons and notice of intent to seek forfeiture shall:
204
(i) be addressed to the known owners and interest holders of the seized property, and to
205
the person from whom the property was seized;
206
(ii) contain the name, business address, and business telephone number of the
207
prosecuting attorney seeking the forfeiture; and
208
(iii) contain:
209
(A) a description of the property which is the subject matter of the forfeiture
210
proceeding;
211
(B) notice that a complaint for forfeiture has been or will be filed;
212
(C) the time and procedural requirements for filing an answer or claim;
213
(D) notice of the availability of hardship or bond release of the property; and
214
(E) notice that failure to file an answer or other claim to the seized property will result
215
in a default judgment against the seized property.
216
[(b)] (d) The complaint shall describe with reasonable particularity:
217
(i) the property which is the subject matter of the forfeiture proceeding;
218
(ii) the date and place of seizure; and
219
(iii) the allegations which constitute a basis for forfeiture.
220
(4) (a) If the prosecuting attorney does not timely file a complaint for forfeiture of the
221
property in accordance with [subparagraph] Subsection (3), the agency shall promptly return
222
the property to its owner and the prosecuting attorney [shall] may take no further action to
223
effect the forfeiture of [such] the property.
224
(b) If the agency knows of more than one owner, it shall return the property to the
225
owner who was in possession at the time of the seizure.
226
(5) In any case where the prosecuting attorney files a complaint for forfeiture of
227
property, an owner or interest holder may file a claim and an answer to the complaint. The
228
claim and answer shall be filed within 30 days after the complaint is served in person or by
229
mail, or where applicable, within 30 days after publication under [subparagraph (3)(a)(ii)]
230
Subsection (3).
231
(6) (a) Except as otherwise provided in this chapter, [civil] forfeiture proceedings are
232
governed by the Utah Rules of Civil Procedure.
233
(b) The court shall take all reasonable steps to expedite forfeiture proceedings [and
234
shall give such proceedings the same priority as is given to criminal cases].
235
(c) In all suits or actions brought for the [civil] forfeiture of any property under this
236
chapter, the burden of proof is on the prosecuting attorney to establish, by clear and convincing
237
evidence, to what extent, if any, property is subject to forfeiture.
238
(d) The right to trial by jury applies to [civil] forfeiture proceedings under this chapter.
239
Section 5.
Section
24-1-6
is amended to read:
240
24-1-6. Innocent owners.
241
(1) An innocent owner's or interest holder's interest in property [shall] may not be
242
forfeited [civilly] under any provision of state law.
243
(2) The prosecuting attorney [shall have] has the burden of establishing by clear and
244
convincing evidence that an [individual is not an innocent] owner[.] or interest holder:
245
(a) is criminally responsible for the conduct giving rise to the forfeiture;
246
(b) knew of or could reasonably have been expected to know of the conduct giving rise
247
to the forfeiture, and allowed the property to be used in furtherance of the conduct;
248
(c) acquired the property with notice of its actual or constructive seizure for forfeiture
249
under this chapter;
250
(d) acquired the property with reason to believe the property was subject to forfeiture
251
under this chapter; or
252
(e) acquired the property in an effort to conceal, prevent, hinder, or delay its lawful
253
seizure or forfeiture under any provision of state law.
254
[(3) With respect to an ownership interest in existence at the time the conduct
255
subjecting the property to seizure took place, the term "innocent owner" means an owner who:]
256
[(a) did not have actual knowledge of the conduct subjecting the property to seizure;
257
or]
258
[(b) upon learning of the conduct subjecting the property to seizure, took reasonable
259
steps to prohibit such use of the property.]
260
[(4)] (3) For purposes of [subparagraph (3)(b)] this chapter, [no] an owner [shall] or
261
interest holder may not be required to take steps that he reasonably believes would be likely to
262
[subject any person (other than the person whose conduct gave rise to the forfeiture) to] result
263
in physical harm or danger to any person. An owner or interest holder may demonstrate that he
264
took reasonable action to prohibit [such] the illegal use of the property by, for example:
265
(a) timely notifying a law enforcement agency of information that led the owner to
266
know that conduct subjecting the property to seizure would occur, was occurring, or has
267
occurred; [or]
268
(b) timely revoking or attempting to revoke permission for those engaging in [such] the
269
illegal conduct to use the property; or
270
(c) taking reasonable actions to discourage or prevent the illegal use of the property.
271
[(5) With respect to an ownership interest acquired after the conduct subjecting the
272
property to seizure has occurred, the term "innocent owner" means a person who, at the time he
273
acquired the interest in the property, had no knowledge that the illegal conduct subjecting the
274
property to seizure had occurred or that the property had been seized for forfeiture, and:]
275
[(a) acquired the property in a bona fide transaction for value;]
276
[(b) was a person, including a minor child, who acquired an interest in property
277
through probate or inheritance; or]
278
[(c) was a spouse who acquired an interest in property through dissolution of marriage
279
or by operation of law.]
280
[(6)] (4) No owner may assert, under this [paragraph] section, an ownership interest in
281
contraband.
282
(5) Property is presumed to be subject to forfeiture under this chapter if the prosecuting
283
attorney establishes, by clear and convincing evidence, that:
284
(a) the owner or interest holder has engaged in conduct giving cause for forfeiture;
285
(b) the property was acquired by the owner or interest holder during that period of the
286
conduct giving cause for forfeiture or within a reasonable time after that period; and
287
(c) there was no likely source for the purchase or acquisition of the property other than
288
the conduct giving cause for forfeiture.
289
(6) A finding that property is the proceeds of conduct giving cause for forfeiture does
290
not require proof that the property was the proceeds of any particular exchange or transaction.
291
Section 6.
Section
24-1-7
is amended to read:
292
24-1-7. Property management and preservation -- Hardship release of seized
293
property.
294
(1) After property is seized for forfeiture, a person or entity may not alienate, convey,
295
sequester, or attach that property until the court issues a final order of dismissal or an order of
296
forfeiture regarding the property.
297
(2) The seizing agency or the prosecuting attorney may authorize the release of
298
property seized for forfeiture to its owner if retention of actual custody is unnecessary.
299
(3) With the consent of a court of competent jurisdiction, the prosecuting attorney may
300
discontinue forfeiture proceedings and transfer the action to another state or federal agency
301
which has initiated forfeiture proceedings involving the same property.
302
(4) Property seized for forfeiture is considered to be in the custody of the district court
303
and subject only to:
304
(a) the orders and decrees of the court having jurisdiction over the property or the
305
forfeiture proceedings; and
306
(b) the acts of the seizing agency or the prosecuting attorney pursuant to this chapter.
307
(5) (a) An owner of property seized pursuant to this chapter may obtain release of the
308
property by posting with the district court a surety bond or cash in an amount equal to the
309
current fair market value of the property as determined by the court or by the parties'
310
stipulation.
311
(b) The district court may refuse to order the release of the property if:
312
(i) the bond tendered is inadequate;
313
(ii) the property is contraband or is retained as evidence; or
314
(iii) the property is particularly altered or designed for use in conduct giving cause for
315
forfeiture.
316
(c) If a surety bond or cash is posted and the property seized and then released on a
317
bond or cash is forfeited, the court shall forfeit the surety bond or cash in lieu of the property.
318
(6) (a) As soon as practicable after seizure for forfeiture, and in no case later than 30
319
days after seizure for forfeiture, the seizing agency shall conduct a written inventory of the
320
property seized.
321
(b) The seizing agency shall deposit property that is in the form of cash or other readily
322
negotiable instruments into a restricted account maintained by the agency solely for the purpose
323
of managing and protecting the property from commingling, loss, or devaluation during the
324
pendency of the forfeiture proceedings.
325
(c) The seizing agency shall have in place written policy for the identification, tracking,
326
management, and safekeeping of seized property, which shall include a prohibition against the
327
transfer, sale, or auction of forfeited property to any employee of the seizing agency.
328
(d) An agency may not be awarded any funds from forfeiture through the Attorney
329
General Law Enforcement Assistance Program under Section
24-1-19
if the agency has not
330
established or maintained the inventory policy, restricted account, and written policies required
331
by this Subsection (6).
332
[(1)] (7) An owner is entitled to the immediate release of seized property from the
333
seizing agency pending the final determination of [civil] forfeiture if:
334
(a) the owner [has] had a possessory interest in the property at the time of seizure;
335
(b) continued possession by the agency or the state pending the final disposition of the
336
forfeiture proceedings will cause substantial hardship to the owner, such as:
337
(i) preventing the functioning of a legitimate business;
338
(ii) preventing any individual from working;
339
(iii) preventing any minor child or student from attending school;
340
(iv) preventing or hindering any person from receiving necessary medical care;
341
(v) hindering the care of an elderly or disabled dependent child or adult;
342
[(vi) preventing an owner from retaining counsel to provide a defense in the forfeiture
343
proceeding; or]
344
[(vii)] (vi) leaving any individual homeless[,]; or
345
(vii) any other condition that the court determines causes a substantial hardship; [and]
346
(c) the hardship from the continued possession by the agency of the seized property
347
substantially outweighs the risk that the property will be destroyed, damaged, lost, concealed,
348
or transferred if it is returned to the owner during the pendency of the proceeding[.]; and
349
(d) substantial hardship under this Subsection (7) is determined based upon the
350
property's use prior to the seizure.
351
[(2) The right to appointed counsel under Section
24-1-9
applies throughout civil
352
forfeiture proceedings, including an owner's motion for hardship release.]
353
(8) An owner may file a motion for hardship release:
354
(a) in the court in which forfeiture proceedings have commenced; or
355
(b) in any district court having jurisdiction over the property, if forfeiture proceedings
356
have not yet commenced.
357
(9) The motion for hardship release must also be served upon the prosecuting attorney
358
and the seizing agency within ten days after filing the motion.
359
[(3)] (10) The court shall render a decision on a motion [or complaint] for hardship
360
release filed under [Subsection (2)] this section not later than [ten] 20 days after the date of
361
filing, or ten days after service upon the prosecuting attorney and seizing agency, whichever is
362
earlier, unless [the ten-day] this period is extended by the [consent of the] parties or by the
363
court for good cause shown.
364
[(4)] (11) (a) If the owner demonstrates substantial hardship pursuant to [subparagraph
365
(1)] this section, the court shall order the property immediately released to the owner pending
366
completion of proceedings by the government to obtain forfeiture of the property.
367
(b) The court may place [such] conditions on release of the property as it finds [are]
368
necessary and appropriate to preserve the availability of the property or its equivalent for
369
forfeiture.
370
[(5)] (12) [Subparagraph (1) shall] The hardship release does not apply if the seized
371
property is:
372
(a) contraband;
373
(b) currency or other monetary [instrument] instruments or electronic funds[, unless
374
such property is used to pay for the costs of defending against the forfeiture proceeding or
375
constitutes the assets of a legitimate business]; or
376
(c) likely to be used to commit additional illegal acts if returned to the owner.
377
(13) (a) The court may order property which has been seized for forfeiture to be sold as
378
allowed by Subsection (14), leased, rented, or operated to satisfy a specified interest of any
379
owner or interest holder, or to preserve the interests of any party on motion of that party.
380
(b) The court may enter orders under Subsection (13)(a) after notice to persons known
381
to have an interest in the property, and after an opportunity for a hearing.
382
(14) A sale may be ordered under Subsection (13) when the property is liable to perish,
383
waste, be foreclosed, or significantly reduced in value, or when the expenses of maintaining the
384
property are disproportionate to its value. A third party designated by the court shall dispose of
385
the property by commercially reasonable public sale and distribute the proceeds in the
386
following order of priority:
387
(a) first, for the payment of reasonable expenses incurred in connection with the sale;
388
(b) second, for the satisfaction of exempt interests in the order of their priority as
389
determined by Title 70A, Uniform Commercial Code; and
390
(c) third, any balance of the proceeds shall be preserved in the actual or constructive
391
custody of the court, in an interest-bearing account, subject to further proceedings under this
392
chapter.
393
Section 7.
Section
24-1-10
is amended to read:
394
24-1-10. Prejudgment and postjudgment interest.
395
In any [civil or criminal] proceeding to forfeit currency or other negotiable instruments
396
under this chapter, the court shall award a prevailing [owner] party prejudgment and
397
postjudgment interest on the currency or negotiable instruments at the legal rate of interest
398
established by Section
15-1-1
.
399
Section 8.
Section
24-1-11
is amended to read:
400
24-1-11. Attorneys' fees and costs.
401
(1) In any [civil or criminal] proceeding to forfeit seized property under this chapter,
402
the court [shall] may award a prevailing [owner] party reasonable attorneys' fees and other
403
costs of [suit] litigation reasonably incurred [by the owner. An owner who prevails only in part
404
shall be entitled to recover reasonable attorneys' fees and reasonable costs of suit related to
405
those issues on which he prevailed].
406
(2) In determining whether or not to award attorneys' fees and costs, the court shall
407
consider the merit of each parties' allegations and pleadings, and whether a seizure, complaint,
408
claim, or answer was reasonable and based upon good faith, or was made for any improper
409
purpose.
410
Section 9.
Section
24-1-12
is amended to read:
411
24-1-12. Compensation for damaged property.
412
(1) [In any civil or criminal proceeding,] If property seized for forfeiture is returned by
413
operation of this chapter, an owner [shall have] has a [private] civil right of action against a
414
seizing agency for any claim based upon the negligent destruction, loss, damage, or other injury
415
to seized property while in the possession or custody of [a state] the agency[, if the property
416
was seized for the purpose of initiating forfeiture proceedings under this chapter].
417
(2) [For the purposes of] As used in this section, "damage or other injury" does not
418
include normal depreciation, deterioration, or ordinary wear and tear.
419
Section 10.
Section
24-1-13
is amended to read:
420
24-1-13. Limitation on fees for holding seized property.
421
In any [civil or criminal] proceeding under this chapter in which a judgment is entered
422
in favor of an owner, [or where a forfeiture proceeding against an owner is voluntarily
423
dismissed by the prosecuting attorney,] the seizing agency [shall be prohibited from charging]
424
may not charge that owner any fee for holding the seized property.
425
Section 11.
Section
24-1-14
is amended to read:
426
24-1-14. Proportionality.
427
(1) (a) An owner's interest in property, excluding contraband, [shall] is not [be civilly
428
or criminally forfeited] subject to forfeiture under [a] any provision of state law [unless such] if
429
the forfeiture is [substantially proportional] grossly disproportional to [both] the use of the
430
property in committing or facilitating a violation of state law and the value of the property.
431
(b) Forfeiture of property used solely in a manner that is merely incidental and not
432
instrumental to the commission or facilitation of a violation of law is not proportional[, as a
433
matter of law].
434
(2) (a) In determining proportionality, the court shall consider:
435
(i) the conduct giving cause for the forfeiture;
436
(ii) what portion of the forfeiture, if any, is remedial in nature; and
437
(iii) the gravity of the conduct for which the claimant is responsible in light of the
438
offense.
439
(b) If the court finds that the forfeiture is grossly disproportional to the conduct for
440
which the claimant is responsible, it shall reduce or eliminate the forfeiture, as it finds
441
appropriate.
442
(3) (a) The prosecuting attorney has the burden to demonstrate that any forfeiture is
443
proportional to an alleged violation of state law. [It is the province of the court, not the jury, to
444
decide questions of proportionality.]
445
(b) All proceedings in determining whether a forfeiture is grossly disproportional shall
446
be at a hearing conducted by the court without a jury.
447
Section 12.
Section
24-1-15
is amended to read:
448
24-1-15. Transfer and sharing procedures.
449
[(1) For purposes of this section, property is deemed to be "seized" whenever any
450
agency takes possession of the property or exercises any degree of control over the property.]
451
[(2) (a) Seizing agencies or prosecuting attorneys authorized to bring civil or criminal
452
forfeiture proceedings under this chapter shall not directly or indirectly transfer seized property
453
to any federal agency or any governmental entity not created under and subject to state law
454
unless the court enters an order, upon petition of the prosecuting attorney, authorizing the
455
property to be transferred. The court may not enter an order authorizing a transfer unless:]
456
[(i) the activity giving rise to the investigation or seizure is interstate in nature and
457
sufficiently complex to justify such transfer;]
458
[(ii) the seized property may only be forfeited under federal law; or]
459
[(iii) pursuing forfeiture under state law would unduly burden prosecuting attorneys or
460
state law enforcement agencies.]
461
[(b) Notwithstanding Subparagraph (2)(a), the court may refuse to enter an order
462
authorizing a transfer to the federal government if such transfer would circumvent the
463
protections of the Utah Constitution or this chapter that would otherwise be available to the
464
property owner.]
465
[(c) Prior to granting any order to transfer pursuant to Subparagraph (2)(a), the court
466
must give any owner the right to be heard with regard to the transfer.]
467
[(3) (a) All property, money or other things of value received by an agency pursuant to
468
federal law which authorizes the sharing or transfer of all or a portion of forfeited property or
469
the proceeds of the sale of forfeited property to an agency shall be promptly transferred to the
470
state treasurer and sold and deposited in the Uniform School Fund as provided under Section
471
24-1-16
.]
472
[(b) Subject to Subparagraph (3)(a), state]
473
(1) State agencies are encouraged to seek an equitable share of property forfeited by the
474
federal government and to cooperate with federal law enforcement agencies in all cases in
475
which [such] cooperation is in the interest of this state.
476
(2) In order for any property seized for forfeiture to be transferred to an agency of the
477
federal government for federal forfeiture proceedings:
478
(a) the district court with jurisdiction over the seized property must authorize the
479
transfer; or
480
(b) the federal agency seeking jurisdiction over the property must obtain a seizure
481
warrant, search warrant, arrest warrant in rem, or other federal process mandating the transfer.
482
(3) Each agency awarded any equitable share of property forfeited by the federal
483
government shall file copies of all federal equitable sharing certifications, applications, and
484
reports with the state auditor and the attorney general at least annually. This information shall
485
provide details of all awards received from the federal government during the preceding
486
reporting period, including for each award:
487
(a) the agency's case number or other identification;
488
(b) the amount of the award;
489
(c) the date of the award;
490
(d) the identity of the federal agency involved in the forfeiture; and
491
(e) how the awarded property has been used.
492
[(4) Any agency that violates Subparagraph (2) or (3) is civilly liable to the state for
493
three times the amount of the forfeiture diverted and for costs of suit and reasonable attorneys'
494
fees. Any damages awarded to the state shall be paid to the Uniform School Fund. Any agent,
495
including state law enforcement officers who are detached to, deputized or commissioned by,
496
or working in conjunction with a federal agency, who knowingly transfers or otherwise trades
497
seized property in violation of Subparagraph (2)(a) or who receives property, money or other
498
things of value under Subparagraph (3)(a) and knowingly fails to transfer such property to the
499
state treasurer is guilty of a class B misdemeanor.]
500
(4) Law enforcement agencies awarded any equitable share of property forfeited by the
501
federal government may only use that equitable share upon approval or appropriation by the
502
agency's legislative body.
503
Section 13.
Section
24-1-17
is enacted to read:
504
24-1-17. Disposition and allocation of forfeiture property.
505
(1) Upon finding that property is subject to forfeiture under this chapter, the court shall
506
order the property forfeited to the state, and the seizing agency shall then:
507
(a) make the payments as required under this chapter; and
508
(b) transfer possession, custody, and control of the net forfeiture property or proceeds
509
immediately to the state treasurer's office.
510
(2) If the forfeiture arises from any violation of Section
23-20-1
relating to wildlife
511
resources, the court shall:
512
(a) direct that the legal costs of the forfeiture proceeding be paid to the prosecuting
513
agency; and
514
(b) direct that the net forfeited property after the legal costs shall be deposited in the
515
Wildlife Resources Account created in Section
23-14-13
.
516
(3) (a) Prior to transferring forfeited property, the seizing agency shall authorize a
517
public or otherwise commercially reasonable sale of that property which is not required by law
518
to be destroyed and that is not harmful to the public.
519
(b) The proceeds of the forfeited property shall remain segregated from other property,
520
equipment, or assets of the seizing agency until transferred to the state in accordance with this
521
chapter.
522
(4) From the forfeited property, both currency and the proceeds or revenue from the
523
property, the seizing agency shall:
524
(a) deduct the seizing agency's costs, as approved by the court, for maintaining the
525
property pending forfeiture; and
526
(b) pay the legal costs to the prosecuting agency for the prosecution of the forfeiture
527
proceeding.
528
(5) One-third of the remaining forfeited property shall then be transferred by the
529
seizing agency to the state treasurer, to be deposited in the Substance Abuse Forfeiture Account
530
created in Section
62A-15-113
for appropriation by the Legislature.
531
(6) The residual 2/3 of the remaining forfeited property shall then be transferred by the
532
seizing agency to the state treasurer, to be deposited in the Attorney General Law Enforcement
533
Assistance Fund created in this section for award and distribution pursuant to the Attorney
534
General Law Enforcement Assistance Program created in Section
24-1-19
.
535
(7) (a) All property and proceeds awarded to the state through forfeiture proceedings
536
under this chapter and transferred to the fund shall be held by the state treasurer until the
537
attorney general approves awards and disbursements under the program.
538
(b) The property and proceeds held by the state treasurer shall be segregated from other
539
property, equipment, or assets of the state and from any department, office, or agency of the
540
state until awarded through the program.
541
Section 14.
Section
24-1-18
is enacted to read:
542
24-1-18. Attorney General Law Enforcement Assistance Fund.
543
(1) (a) There is created a special revenue fund known as the Attorney General Law
544
Enforcement Assistance Fund for the purpose of providing funding for the Attorney General
545
Law Enforcement Assistance Program, as created by Section
24-1-19
.
546
(b) The attorney general may expend monies from the fund for the program purposes
547
under Section
24-1-19
.
548
(c) The attorney general may pay program administrative costs from the fund.
549
(2) The fund consists of all monies deposited to the fund under Section
24-1-17
.
550
(3) (a) The fund shall earn interest.
551
(b) All interest earned on fund monies shall be deposited into the fund.
552
Section 15.
Section
24-1-19
is enacted to read:
553
24-1-19. Attorney General Law Enforcement Assistance Program.
554
(1) There is created the Attorney General Law Enforcement Assistance Program.
555
(2) The program shall fund law enforcement activities that have the purpose of:
556
(a) deterring crime by depriving criminals of the profits and proceeds of their illegal
557
activities;
558
(b) weakening criminal enterprises by removing the instrumentalities of crime;
559
(c) encouraging cooperation between local, state, and multijurisdictional law
560
enforcement agencies;
561
(d) allowing the costs and expenses of law enforcement to be defrayed by the forfeited
562
proceeds of crime;
563
(e) increasing the equitability and accountability of the use of forfeited property used to
564
assist law enforcement; and
565
(f) removing direct control of forfeited property from the seizing agency.
566
(3) (a) When property is forfeited under this chapter and transferred to the fund, the
567
attorney general shall make awards of monies from the fund to state, local, or
568
multijurisdictional law enforcement agencies in compliance with this section and to further the
569
program purposes under Subsection (2).
570
(b) In granting the awards, the attorney general shall ensure that the amount of each
571
award takes into consideration:
572
(i) the demonstrated needs of the law enforcement agency;
573
(ii) the demonstrated ability of the law enforcement agency to appropriately use the
574
award;
575
(iii) the degree to which the law enforcement agency's need is offset through the
576
agency's participation in federal equitable sharing or through other federal and state grant
577
programs; and
578
(iv) the law enforcement agency's cooperation with other state and local agencies and
579
task forces.
580
(4) Law enforcement agencies shall apply for program awards by completing and
581
submitting forms specified by the attorney general.
582
(5) Applying agencies shall demonstrate compliance with all reporting and policy
583
requirements applicable under this chapter in order to qualify as a potential award recipient.
584
(6) Recipient agencies may only use program awards after approval or appropriation by
585
the agency's legislative body.
586
(7) A recipient law enforcement agency shall use program awards only for law
587
enforcement or controlled substance law enforcement purposes as described in Subsection (8),
588
and only as these purposes are specified by the agency in its application for the award.
589
(8) Permissible law enforcement purposes and controlled substance law enforcement
590
purposes for which award monies may be used include:
591
(a) controlled substance interdiction and enforcement activities;
592
(b) activities calculated to enhance future investigations;
593
(c) law enforcement training;
594
(d) law enforcement operations or equipment which are not routine costs or operational
595
expenses;
596
(e) drug, gang, or crime prevention education programs which are sponsored in whole
597
or in part by the law enforcement agency or its legislative body; and
598
(f) matching funds for other state or federal law enforcement grants.
599
(9) Law enforcement purposes for which award monies may not be granted or used
600
include:
601
(a) payment of salaries or bonuses to any person;
602
(b) payment of enforcement expenses not related to law enforcement;
603
(c) uses not specified in the agency's award application;
604
(d) uses not approved or appropriated by the agency's legislative body;
605
(e) payments, transfers, or pass-through funding to entities other than law enforcement
606
agencies;
607
(f) uses, payments, or expenses that are not within the scope of the agency's functions;
608
or
609
(g) unreasonable expenditures.
610
(10) For each fiscal year, any state, local, or multijurisdictional agency that received a
611
program award shall execute, and file with the attorney general and the state auditor, a report in
612
a form specified by the attorney general. The report shall include the following regarding each
613
award:
614
(a) the agency's name;
615
(b) the amount of the award;
616
(c) the date of the award;
617
(d) how the award has been used; and
618
(e) a statement signed by both the agency's executive officer or designee and by the
619
agency's legal counsel, that the agency has complied with all inventory, policy, and reporting
620
requirements of this chapter, and that all program awards were used for law enforcement
621
purposes, as specified in the agency's application, and only upon approval or appropriation by
622
the agency's legislative body.
623
(11) The attorney general shall report in writing to the Legislature annually regarding
624
the forfeited property transferred to the fund, awards made by the program, and law
625
enforcement agency uses of program awards.
626
Section 16.
Section
24-1-20
is enacted to read:
627
24-1-20. State Law Enforcement Forfeiture Account created -- Revenue sources --
628
Use of account designated.
629
(1) (a) There is created in the General Fund a restricted account called the "State Law
630
Enforcement Forfeiture Account."
631
(b) All monies awarded to the Department of Public Safety or the Department of
632
Corrections, or any division or agency within either department, through federal asset forfeiture
633
equitable sharing or through the Attorney General Law Enforcement Assistance Program
634
created in Section
24-1-19
shall be deposited into the State Law Enforcement Forfeiture
635
Account.
636
(c) All monies previously deposited, or currently held in the Drug Forfeiture Account
637
created in Section
58-37-20
, and that were in that account when it was repealed by Initiative B,
638
2000, which was adopted November 7, 2000, shall be transferred to and deposited in the State
639
Law Enforcement Forfeiture Account created in this Subsection (1).
640
(2) The Department of Public Safety and the Department of Corrections may expend
641
amounts as appropriated by the Legislature from the State Law Enforcement Forfeiture
642
Account for law enforcement purposes or controlled substance law enforcement purposes as
643
specified in Subsection
24-1-19
(8).
644
(3) That portion of funds forfeited or that are required to be disbursed to other
645
governmental entities under existing contractual agreements or statutory requirements are
646
exempt from this section.
647
(4) Funds forfeited as a result of the Salt Lake Airport Drug Program, not to exceed the
648
Department of Public Safety's expenditure to that program, are exempt from this section.
649
(5) The Department of Public Safety and the Department of Corrections, as part of the
650
annual legislative budget hearings, shall provide to the Executive Offices and Criminal Justice
651
Appropriations Subcommittee a complete accounting of expenditures and revenues from the
652
funds received under this section.
653
(6) The Legislature may annually provide, in the appropriations act, legislative
654
direction for anticipated expenditures of the monies received under this section.
655
Section 17.
Section
32A-13-103
is amended to read:
656
32A-13-103. Searches, seizures, and forfeitures.
657
(1) The following are subject to forfeiture pursuant to the procedures and substantive
658
protections established in Title 24, Chapter 1, Utah Uniform Forfeiture Procedures Act:
659
(a) all alcoholic products possessed, used, offered for sale, sold, given, furnished,
660
supplied, received, purchased, stored, warehoused, manufactured, adulterated, shipped, carried,
661
transported, or distributed in violation of this title or commission rules;
662
(b) all packages or property used or intended for use as a container for an alcoholic
663
product in violation of this title or commission rules;
664
(c) all raw materials, products, and equipment used, or intended for use, in
665
manufacturing, processing, adulterating, delivering, importing, or exporting any alcoholic
666
product in violation of this title or commission rules;
667
(d) all implements, furniture, fixtures, or other personal property used or kept for any
668
violation of this title or commission rules;
669
(e) all conveyances including aircraft, vehicles, or vessels used or intended for use, to
670
transport or in any manner facilitate the transportation, sale, receipt, possession, or
671
concealment of property described in Subsection (1)(a), (b), (c), or (d); and
672
(f) all books, records, receipts, ledgers, or other documents used or intended for use in
673
violation of this title or commission rules.
674
(2) Any of the property subject to forfeiture under this title may be seized by any peace
675
officer of this state or any other person authorized by law upon process issued by any court
676
having jurisdiction over the property in accordance with the procedures provided in Title 77,
677
Chapter 23, Part 2, Search Warrants. However, seizure without process may be made when:
678
(a) the seizure is incident to an arrest or search under a search warrant or an inspection
679
under an administrative inspection warrant;
680
(b) the property subject to seizure has been the subject of a prior judgment in favor of
681
the state in a criminal injunction or forfeiture proceeding under this title;
682
(c) the peace officer or other person authorized by law has probable cause to believe
683
that the property is directly or indirectly dangerous to health or safety; or
684
(d) the peace officer or other person authorized by law has probable cause to believe
685
that the property is being or has been used, intended to be used, held, or kept in violation of this
686
title or commission rules.
687
(3) If the property is seized pursuant to a search or administrative warrant, the peace
688
officer or other person authorized by law shall make a proper receipt, return, and inventory and
689
ensure the safekeeping of the property as required by Sections
77-23-206
through
77-23-208
.
690
If the magistrate who issued the warrant is a justice court judge, upon the filing of the return
691
the jurisdiction of the justice court shall cease and the magistrate shall certify the record and all
692
files without delay to the district court of the county in which the property was located. From
693
the time of this filing, the district court has jurisdiction of the case.
694
(4) In the event of seizure of property without process, the peace officer or other person
695
authorized by law shall make a return of his acts without delay directly to the district court of
696
the county in which the property was located, and the district court shall have jurisdiction of
697
the case. The return shall describe all property seized, the place where it was seized, and any
698
persons in apparent possession of the property. The officer or other person shall also promptly
699
deliver a written inventory of anything seized to any person in apparent authority at the
700
premises where the seizure was made, or post it in a conspicuous place at the premises. The
701
inventory shall state the place where the property is being held.
702
(5) Property taken or detained under this section is not repleviable but is considered in
703
custody of the law enforcement agency making the seizure subject only to the orders of the
704
court or the official having jurisdiction. When property is seized under this title, the
705
appropriate person or agency may:
706
(a) place the property under seal;
707
(b) remove the property to a place designated by it or the warrant under which it was
708
seized; or
709
(c) take custody of the property and remove it to an appropriate location for disposition
710
in accordance with law.
711
(6) When any property is subject to forfeiture under this section, proceedings shall be
712
instituted in accordance with the procedures and substantive protections of Title 24, Chapter 1,
713
Utah Uniform Forfeiture Procedures Act.
714
(7) When any property is ordered forfeited under Title 24, Chapter 1, Utah Uniform
715
Forfeiture Procedures Act, by a finding of the court that no person is entitled to recover the
716
property, the property, if an alcoholic product or a package used as a container for an alcoholic
717
product, shall be disposed of as follows:
718
(a) If the alcoholic product is unadulterated, pure, and free from crude, unrectified, or
719
impure form of ethylic alcohol, or any other deleterious substance or liquid, and is otherwise in
720
saleable condition, sold in accordance with Section [
24-1-16
]
24-1-17
.
721
(b) If the alcoholic product is impure, adulterated, or otherwise unfit for sale, it and its
722
package or container shall be destroyed by the department under competent supervision.
723
Section 18.
Section
62A-15-113
is enacted to read:
724
62A-15-113. Substance Abuse Forfeiture Account created -- Revenue sources --
725
Use of account designated.
726
(1) (a) There is created in the General Fund a restricted account called the "Substance
727
Abuse Forfeiture Account."
728
(b) All monies awarded to or paid to the state treasurer through forfeitures in
729
accordance with Subsection
24-1-17
(5) shall be deposited into the Substance Abuse Forfeiture
730
Account.
731
(2) The Administrative Office of the Courts shall expend amounts as appropriated by
732
the Legislature from the Substance Abuse Forfeiture Account to aid in the creation,
733
administration, or operation of drug courts throughout the state through grants, awards, and
734
contracts with drug courts.
735
(3) The Administrative Office of the Courts, as part of the annual budget hearings,
736
shall provide the Executive Offices and Criminal Justice Appropriations Subcommittee and the
737
Health and Human Services Appropriations Subcommittee with a complete accounting of
738
expenditures and revenues from the funds received under this section.
739
(4) The Legislature may annually provide, in the appropriations act, legislative
740
direction for anticipated expenditures of the monies received under this section.
741
Section 19. Repealer.
742
This act repeals:
743
Section 24-1-8, Criminal procedures.
744
Section 24-1-9, Appointment of counsel for indigent claimants in civil and criminal
745
forfeiture proceedings.
746
Section 24-1-16, Disposition of proceeds from criminal or civil forfeiture.
747
Section 20. Effective date.
748
If approved by two-thirds of all the members elected to each house, this act takes effect
749
upon approval by the governor, or the day following the constitutional time limit of Utah
750
Constitution Article VII, Section 8, without the governor's signature, or in the case of a veto,
751
the date of veto override.
Legislative Review Note
as of 12-19-02 10:18 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.
Office of Legislative Research and General Counsel
Interim Committee Note
as of 02-05-03 6:03 PM
The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
[Bill Documents][Bills Directory]