2020 -- S 2754 | |
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LC005216 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2020 | |
____________ | |
A N A C T | |
RELATING TO CRIMINAL PROCEDURE -- ASSET FORFEITURE | |
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Introduced By: Senators Metts, Cano, Crowley, Quezada, and Goodwin | |
Date Introduced: March 04, 2020 | |
Referred To: Senate Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Title 12 of the General Laws entitled "CRIMINAL PROCEDURE" is hereby |
2 | amended by adding thereto the following chapter: |
3 | CHAPTER 33 |
4 | ASSET FORFEITURE PROCESS AND PROPERTY RIGHT PRESERVATION ACT |
5 | 12-33-1. Title. |
6 | This act shall be known and may be cited as the "Asset Forfeiture Process and Property |
7 | Right Preservation Act." |
8 | 12-33-2. Definitions. |
9 | As used in this chapter, the terms defined in this section have the following meanings: |
10 | (1) "Actual knowledge" means direct and clear awareness of information, a fact, or a |
11 | condition. |
12 | (2) "Adoptive seizure" means a seizure of property for which all of the pre-seizure activity |
13 | and related investigations are performed by the state or local seizing agency, and thereafter a request |
14 | is made to the federal government for adoption. There must be a state violation and a federal basis |
15 | for forfeiture in order for the seizure to be an adoptive seizure. A seizure resulting from a joint |
16 | investigation or task force case is not an adoptive seizure. |
17 | (3) "Contraband" means goods that are unlawful to possess, including scheduled drugs |
18 | without a valid prescription. |
19 | (4) "Conveyance" means a device used for transportation and includes a motor vehicle, |
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1 | trailer, snowmobile, airplane, vessel, and any equipment attached to it. The term does not include |
2 | property that is stolen or taken in violation of the law. |
3 | (5) "Instrumentality" means property otherwise lawful to possess that is used in the |
4 | furtherance or commission of an offense of a law subject to forfeiture. An "instrumentality" |
5 | includes land, buildings, a container, a conveyance, equipment, materials, products, a tool, a |
6 | computer, computer software, a telecommunications device, a firearm or ammunition. |
7 | (6) "Law enforcement agency" means any non-federal police force, or other local county, |
8 | or state agency that has the authority under state law to engage in seizure and forfeiture. |
9 | (7) "Law subject to forfeiture" means a state law that carries a felony penalty and that |
10 | explicitly includes forfeiture as a punishment or sanction for the offense. |
11 | (8) "Proceeds" means money, securities, negotiable instruments, or other means of |
12 | exchange obtained by the sale of property. |
13 | 12-33-3. Purpose. |
14 | This purpose of this chapter is to: |
15 | (1) Deter criminal activity by reducing its economic incentives; |
16 | (2) Increase the pecuniary loss from criminal activity; |
17 | (3) Protect against the wrongful forfeiture of property; and |
18 | (4) Ensure that only criminal forfeiture is allowed in this state. |
19 | 12-33-4. Criminal forfeiture; Property subject to forfeiture. |
20 | (a) When a person is convicted of violating a law subject to forfeiture, a prosecutor having |
21 | jurisdiction over a law subject to forfeiture has authority to pursue forfeiture. The court, consistent |
22 | with this chapter, may order the person to forfeit: |
23 | (1) Proceeds the person derived from the commission of the crime; |
24 | (2) Property directly traceable to proceeds derived from the commission of the crime; and |
25 | (3) Instrumentalities the person used in the commission of the crime. |
26 | (b)Property subject to forfeiture is limited to land, buildings, containers, conveyances, |
27 | equipment, materials, products, money, securities, negotiable instruments, ammunition, firearms, |
28 | and ammunition and firearm accessories. Mere presence or possession of U.S. currency, prepaid, |
29 | debit/credit card, or alternative forms or methods of store of U.S. currency, without other indicia, |
30 | is insufficient probable cause for seizure. |
31 | 12-33-5. Exemptions. |
32 | U.S. currency totaling one thousand dollars ($1,000) or less is exempt from forfeiture. |
33 | 12-33-6. Contraband. |
34 | No property right exists in contraband. Contraband is subject to seizure and shall be |
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1 | disposed of according to state law. Contraband is not subject to forfeiture under this chapter. |
2 | 12-33-7. Conviction required; Standard of proof. |
3 | (a) Property may be forfeited only if: |
4 | (1) The offense is of a state law felony subject to forfeiture; |
5 | (2) The offense is established by proof of a criminal conviction; and |
6 | (3) The state establishes that the property is forfeitable under §§ 12-33-3 through 12-33-5 |
7 | by clear and convincing evidence. |
8 | (b) Nothing herein prevents property from being forfeited by plea agreement approved by |
9 | the court. For the avoidance of doubt and not by way of expansion or limitation, this subsection |
10 | shall apply without regard to whether the criminal conviction under a plea agreement meets the |
11 | standard of subsection (a)(1) of this section. |
12 | (c) The court may waive the conviction requirement if the prosecuting authority shows by |
13 | clear and convincing evidence that the defendant: |
14 | (1) Died; |
15 | (2) Was deported by the U.S. government; |
16 | (3) Is granted immunity or reduced punishment in exchange for testifying or assisting a |
17 | law enforcement investigation or prosecution and has agreed to forfeiture as a component of that |
18 | grant or reduction; |
19 | (4) Fled the jurisdiction after being arrested, charged with a crime that includes the |
20 | forfeiture of property, and released on bail; or |
21 | (5) Intentionally abandoned the property. Notwithstanding the prosecuting authority's |
22 | motion for a waiver, the property remains subject to claims by innocent owners, creditors, and other |
23 | third parties pursuant to this chapter. |
24 | (d) Property that either is seized from a person who flees the jurisdiction or is abandoned |
25 | shall be delivered to the general treasurer within thirty (30) days without further forfeiture-related |
26 | litigation. The general treasurer shall dispose of all non-currency property. The sale proceeds and |
27 | any currency seized from a person who flees the jurisdiction or abandons the currency shall be |
28 | deposited into the state's general fund. |
29 | (e) Asset forfeiture for civil violations shall not be permitted under state or local law or |
30 | administrative rule. |
31 | (f) The court shall resolve any ambiguity in this chapter relating to the state taking property |
32 | through asset forfeiture in favor of the property owner. |
33 | (g) If a court determines that a person opposing forfeiture is financially unable to obtain |
34 | representation by counsel, the court, at the request of the person, shall ensure that the person is |
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1 | represented by an attorney at the state's expense. The attorney shall submit a statement of |
2 | reasonable fees and costs to the court in a manner directed by the court. |
3 | 12-33-8. Substitution of assets. |
4 | Upon the state's motion following conviction, the court may order the forfeiture of |
5 | substitute property owned by the defendant up to the value of unreachable property that is beyond |
6 | the court's jurisdiction or cannot be located through due diligence only if the state proves by a |
7 | preponderance of the evidence that the defendant intentionally transferred, sold, or deposited |
8 | property with a third party to avoid forfeiture. |
9 | 12-33-9. Exclusivity/No additional remedies. |
10 | This chapter establishes the exclusive process governing forfeitures in the state of Rhode |
11 | Island and supersedes any conflicting provisions in law. The state may not seek personal money |
12 | judgments or other remedies not provided for in this chapter. |
13 | 12-33-10. No joint-and-several liability. |
14 | A defendant is not jointly and severally liable for forfeiture awards owed by other |
15 | defendants. When ownership is unclear, a court may order each defendant to forfeit property on a |
16 | pro rata basis or by another means the court finds equitable. |
17 | 12-33-11. Seizure of personal property with process. |
18 | At the request of the state at any time, a court may issue an ex parte preliminary order to |
19 | attach, seize or secure personal property for which forfeiture is sought and to provide for its custody. |
20 | Application, issuance, execution, and return are subject to state statute or court rules. |
21 | 12-33-12. Seizure of personal property without process. |
22 | Personal property subject to forfeiture may be seized at any time without a court order if: |
23 | (1) The seizure of personal property is incident to a lawful arrest or a search lawfully |
24 | conducted; |
25 | (2) The personal property subject to seizure has been the subject of a prior judgment in |
26 | favor of the state; or |
27 | (3) The state has probable cause to believe that the delay occasioned by the necessity to |
28 | obtain process would result in the removal or destruction of the personal property and that the |
29 | personal property is forfeitable under this chapter. |
30 | (4) Mere presence or possession of U.S. currency, debit cards or credit cards, without other |
31 | indicia of a crime that includes the forfeiture of property, is insufficient probable cause for seizure |
32 | of U.S. currency, debit cards or credit cards. |
33 | 12-33-13. Seizure of real property with process. |
34 | (a) Seizure of real property requires a court order. A court may issue an order to seize or |
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1 | secure real property for which forfeiture is sought only after proper notice to property owners and |
2 | an opportunity for a contested hearing to determine the sufficiency of probable cause for the seizure. |
3 | (b) Nothing in this section prohibits the prosecuting authority from seeking a lis pendens |
4 | or restraining order to hinder the sale or destruction of the real property. |
5 | (c) Application, issuance, execution, and return of any order are subject to state law. |
6 | 12-33-14. Receipt, storage, and records. |
7 | (a) When property is seized, the law enforcement officer shall give an itemized receipt to |
8 | the person possessing the property; or in the absence of any person, leave a receipt in the place |
9 | where the property was found, if reasonably possible. |
10 | (b) When property is seized, the state shall use reasonable diligence to secure the property |
11 | and prevent waste. |
12 | (c) Any entity having custody of seized property that is subject to forfeiture shall maintain |
13 | the following records: |
14 | (1) The exact kinds, quantities, and forms of the property; |
15 | (2) The date and from whom it received the property; |
16 | (3) The violation of law that subjected the property to seizure; |
17 | (4) The liens against the seized property; |
18 | (5) The make, model, and serial number of each seized vehicle or firearm; |
19 | (6) To whom and when the notice of forfeiture was given; |
20 | (7) To whom it delivered the property; and |
21 | (8) The date and manner of destruction or disposition of the property. |
22 | (d) The records required under subsection (c) of this section are public records and subject |
23 | to the requirements of chapter 2 of title 38. |
24 | (e) The attorney general shall establish and maintain a tracking system and searchable |
25 | public website that includes the following information about property seized and forfeited under |
26 | state law and under any agreement with the federal government. |
27 | (1) Name of the law enforcement agency that seized the property; |
28 | (2) Date the property was seized; |
29 | (3) Type of property seized, including year, make, model and serial number, as applicable; |
30 | (4) Location of the seizure: home, business, traffic stop including street name and traffic |
31 | direction where seizure occurred, such as eastbound, westbound, southbound or northbound; |
32 | (5) Estimated value of the seizure; |
33 | (6) Criminal offense alleged that led to the seizure (include under state or federal law); |
34 | (7) Crime for which suspect was charged (include under state or federal law); |
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1 | (8) Criminal case number; |
2 | (9) Outcome of related criminal action, such as whether no charges were brought, charges |
3 | dropped a plea bargain was reached, a conviction was obtained or an acquittal was issued; |
4 | (10) If forfeiture not processed under state law, reason for the federal transfer adoption or |
5 | joint task force: |
6 | (11) Forfeiture case number; |
7 | (12) If a property owner filed a claim or counterclaim, who by: the suspect, innocent owner, |
8 | joint owner or third-party owner; |
9 | (13) Type of forfeiture procedure: criminal forfeiture, civil-administrative forfeiture or |
10 | civil judicial forfeiture; |
11 | (14) Whether property owner was represented by an attorney in the forfeiture case; |
12 | (15) Date of forfeiture decision; |
13 | (16) Total administrative and other expenses deducted as part of the forfeiture process; |
14 | (17) Net amount received from the forfeiture; |
15 | (18) Disposition of property following seizure, such as whether the property was |
16 | (i) Returned to the owner; |
17 | (ii) Partially returned to owner; |
18 | (iii) Destroyed; |
19 | (iv) Sold after forfeiture; or |
20 | (v) Retained after forfeiture by law enforcement. |
21 | (19) Date of forfeiture decision; and |
22 | (20) Whether the seizure was an adoptive seizure. |
23 | (f) The attorney general shall also establish and maintain a searchable public website that |
24 | includes: |
25 | (1) The total value of seized and forfeited property held by each law enforcement agency |
26 | at the end of the reporting period; and |
27 | (2) The total amount of funds expended, in each of the categories delineated in §§ 12-33- |
28 | 23(c) and 12-33-23(d). Provided, further the attorney general may require information not specified |
29 | in this section also be reported. |
30 | (g) The law enforcement agency that seizes property and prosecutors that litigate related |
31 | criminal cases and forfeiture proceedings shall update the general treasurer's website with the |
32 | information required by this section at the end of the month following each seizure of property. |
33 | The commander of a multi-jurisdictional task force may appoint one agency to report its seizures. |
34 | If an agency has made no seizures during the previous year, a null report shall be filed by the agency |
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1 | specifying that it did not engage in seizures or forfeitures under this title during the reporting period. |
2 | (h) The law enforcement agency that expends forfeiture-related proceeds shall update the |
3 | general treasurer's website with the information required under this section within thirty (30) days |
4 | after the end of the fiscal year. The commander of a multi-jurisdictional task force may appoint one |
5 | agency to report its expenditures. |
6 | (i) The attorney general shall develop a standard form, webpage, process, and deadlines for |
7 | electronic data entry for submission of seizure data, forfeiture data and expenditures of proceeds |
8 | by law enforcement agencies. |
9 | (j) The state auditor shall perform annually a financial audit under the generally accepted |
10 | auditing standards of records related to inventory of seized property and expenditures of forfeiture |
11 | proceeds. A copy of the final audit report shall be submitted to the attorney general and the general |
12 | treasurer no later than ninety (90) days after the end of the fiscal year and shall be made public. |
13 | (k) The attorney general, one hundred twenty (120) days after the close of the fiscal year, |
14 | shall submit to the speaker of the house of representatives, president of the senate, general treasurer, |
15 | and governor a written report summarizing activity in the state, for the preceding fiscal year, the |
16 | type, approximate value, and disposition of the property seized and the amount of any proceeds |
17 | received or expended at the state and local levels. The report shall provide a categorized accounting |
18 | of all proceeds expended. The aggregate report shall also be made available on the attorney |
19 | general's website. |
20 | (1) The attorney general shall include in its aggregate report information on law |
21 | enforcement agencies not in compliance with this chapter. It shall order the general treasurer to |
22 | withhold payment of any funds to those agencies until compliance is achieved. |
23 | (m) The attorney general may recoup its costs by charging a fee to law enforcement |
24 | agencies that engage in seizures or forfeitures during the reporting period. Each law enforcement |
25 | agency may use forfeiture proceeds to pay the cost of compiling and reporting data under this |
26 | chapter, including any fee imposed by the attorney general. |
27 | (n) The data and reports compiled and prepared under this chapter about completed |
28 | forfeitures are public information under the state's access to public records act. They are not |
29 | exempted from disclosure required by § 38-2-2(4). |
30 | (o) The attorney general may adopt rules that are necessary to implement the requirements |
31 | of this section. |
32 | 12-33-15. Waiver prohibition. |
33 | (a) A law enforcement officer may not request, require or in any manner induce any person |
34 | to execute a document purporting to waive, for purpose· of forfeiture under this section, the person's |
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1 | interest in rights to property seized. |
2 | (b) Any document obtained by a law enforcement officer purporting to waive a person's |
3 | interest in or right to property seized under this chapter is null and void. |
4 | 12-33-16. Bond by owner for possession -- Title to property. |
5 | (a) If the owner of property that has been seized seeks its possession before the criminal |
6 | trial, the owner may post bond or give substitute property in an amount equal to the fair market |
7 | value of the seized property at the time the bond amount is determined. On the posting of bond or |
8 | the giving of substitute property, the state shall return the seized property to the owner within a |
9 | reasonable period of time not to exceed three (3) business days. The forfeiture action may then |
10 | proceed against the bond or substitute property as if it were the seized property. |
11 | (b) Subsection (a) of this section shall not apply to property reasonably held for |
12 | investigatory purposes. |
13 | (c) Title to the property subject to forfeiture vests with the state when the court issues a |
14 | forfeiture judgment and the applicable appeal period runs, and relates back to the time when the |
15 | state seizes or restrains the property. |
16 | (d) Title to substitute assets vests when the court issues an order forfeiting substitute assets |
17 | and the applicable appeal period runs. |
18 | (e) For either subsection (c) or (d) of this section, however, title is subject to claims by third |
19 | parties adjudicated under this chapter. |
20 | 12-33-17. Pretrial replevin hearing. |
21 | (a) Following the seizure of property, a defendant or a third party has a right to a pretrial |
22 | hearing to determine the validity of the seizure. |
23 | (b) The claimant may claim at any time prior to sixty (60) days before trial of the related |
24 | criminal offense the right to possession of property by motion to the court to issue a writ of replevin. |
25 | (c) The claimant shall file a motion establishing the validity of the alleged right, title, or |
26 | interest in the property. |
27 | (d) The court shall hear the motion no more than thirty (30) days after the motion is filed. |
28 | (e) The state shall file an answer showing probable cause for the seizure, or cross motions |
29 | at least ten (10) days before the hearing. |
30 | (f) Either party may, by agreement or for good cause, move the court for one extension of |
31 | no more than ten (10) days. Any such motion may be supposed by affidavits or other submissions. |
32 | (g) The court shall issue a writ of replevin if it finds that: |
33 | (1) It is likely the final judgment will be that the state must return the property to the |
34 | claimant; |
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1 | (2) The property is the only reasonable means for a defendant to pay for legal representation |
2 | in the forfeiture or criminal proceeding; or |
3 | (3) With respect to claims of innocent third parties, there are extenuating circumstances |
4 | which justify the remission or mitigation of the forfeiture. |
5 | (h) In lieu of ordering the issuance of the writ, the court may order the state to give security |
6 | or written assurance for satisfaction of any judgment, including damages, that may be rendered in |
7 | the action, or order other relief as may be just. |
8 | 12-33-18. Discovery. |
9 | Discovery by the defendant is subject to the rules of criminal procedure. Discovery by an |
10 | innocent owner claimant, lienholder, or other third party is subject to the rules of civil procedure. |
11 | 12-33-19. Trial proceedings. |
12 | (a) Within ten (10) days of the seizure of property or, if less, simultaneously upon filing a |
13 | related criminal charge, the state shall file a forfeiture charge that shall include: |
14 | (1) A description of the property seized; |
15 | (2) The date and place of seizure of the property; |
16 | (3) The name and address of the law enforcement agency making the seizure; |
17 | (4) The specific statutory and factual grounds for the seizure; |
18 | (5) Whether the property was seized pursuant to an order of seizure, and if the property |
19 | was seized without an order of seizure, an affidavit from a law enforcement officer stating the legal |
20 | and factual grounds why an order of seizure was not required; and |
21 | (6) The names of persons known to the state who may claim an interest in the property and |
22 | the basis for each person's alleged interest. |
23 | (b) The charging document shall be served upon the person from whom the property was |
24 | seized, the person's attorney of record and all persons known or reasonably believed to claim an |
25 | interest in the property. |
26 | (c) The litigation related to the forfeiture of property shall be held in a single proceeding |
27 | following the trial of the related alleged offense unless the defendant moves to bifurcate the trial. |
28 | (d) The court, upon motion of a defendant, shall separate the trial of the criminal matter |
29 | against the defendant from the matter related to the forfeiture of property. |
30 | (e) The court, upon motion of a defendant, shall allow a defendant to waive the right to |
31 | trial by jury related to the forfeiture of property while preserving the right to trial by jury of any |
32 | crime alleged. Notwithstanding the forgoing, the litigation associated with the forfeiture of property |
33 | of less than ten thousand dollars ($10,000) in value shall be held before only a judge. |
34 | (f) If the court bifurcates the jury trial, the court shall first instruct and submit to the jury |
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1 | the issue of the guilt or innocence of the defendant to be determined by proof beyond a reasonable |
2 | doubt and shall restrict argument of counsel to those issues. |
3 | (g) If the court bifurcates the jury trial each party may introduce evidence in the forfeiture |
4 | phase that was not introduced in the criminal phase. |
5 | (h) If the jury finds a defendant guilty of the related criminal offense and the defendant did |
6 | not waive the right to trial by jury related to the forfeiture, the court shall instruct and submit to the |
7 | jury the issue of the forfeiture. The court may use interrogatories to address the forfeiture issue. |
8 | 12-33-20. Proportionality hearing. |
9 | (a) At any time following determination of forfeiture by the trier of fact, the defendant may |
10 | petition the court to determine whether the forfeiture is unconstitutionally excessive under the state |
11 | or federal constitution. |
12 | (b) The defendant has the burden of establishing the forfeiture is disproportional to the |
13 | seriousness of the offense by a preponderance of the evidence at a hearing conducted by the court |
14 | without a jury. |
15 | (c) In determining whether the forfeiture of an instrumentality is unconstitutionally |
16 | excessive, the court may consider all relevant factors including: |
17 | (1) The seriousness of the offense and its impact on the community, including the duration |
18 | of the activity and the harm caused by the defendant; |
19 | (2) The extent to which the defendant participated in the offense; |
20 | (3) The extent to which the property was used in committing the offense; |
21 | (4) The sentence imposed for committing the crime subject to forfeiture; and |
22 | (5) Whether the offense was completed or attempted. |
23 | (d) In determining the value of the instrumentality subject to forfeiture, the court may |
24 | consider all relevant factors including: |
25 | (1) The fair market value of the property; |
26 | (2) The value of the property to the defendant including hardship to the defendant if the |
27 | forfeiture is realized and if the forfeiture would deprive the property owner of the owner's |
28 | livelihood; and |
29 | (3) The hardship from the loss of a primary residence, motor vehicle or other property to |
30 | the defendant's family members or others if the property is forfeited. |
31 | (e) The court may not consider the value of the instrumentality to the state in determining |
32 | whether the forfeiture of an instrumentality is constitutionally excessive. |
33 | 12-33-21. Secured interest. |
34 | (a) Property encumbered by a bona fide security interest is not subject to forfeiture. A |
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1 | person claiming a security interest must establish by a preponderance of the evidence the validity |
2 | of the interest perfected under state statute or under a lease or rental agreement. |
3 | (b) The prosecuting authority shall summarily return the seized property to the person with |
4 | a bona fide security interest. Any value in excess of their secured claim received by the person with |
5 | the secured interest, which would have otherwise, by law or contract, been returned to the party |
6 | from whom the property was seized, shall be returned to the state and shall be thereafter subject to |
7 | the provisions of this chapter in place of the original seized property. |
8 | (c) If the person alleges a valid security interest but the state seeks to proceed with the |
9 | forfeiture against the property, the state shall prove by a preponderance of the evidence that the |
10 | person had actual knowledge of the underlying crime giving rise to the forfeiture. |
11 | 12-33-22. Innocent owners' claims. |
12 | (a) The property of an innocent owner may not be forfeited under any forfeiture statute. |
13 | The process for determining whether a person is an innocent owner is set out in this section. |
14 | (b) Any person, other than the defendant, asserting a legal interest in property which has |
15 | been seized or restrained may, at any time up until sixty (60) days after the criminal conviction, |
16 | petition the court for a hearing to adjudicate the validity of the person's alleged interest in the |
17 | property. The bearing shall be held before the court alone, without a jury. |
18 | (c) The petition shall be signed by the petitioner under penalty of perjury and shall set forth |
19 | the nature and extent of the petitioner's right, title, or interest in the property, the time and |
20 | circumstances of the petitioner's acquisition of the right, title, or interest in the property, any |
21 | additional facts supporting the petitioner's claim, and the relief sought. |
22 | (d) The hearing on the petition shall, to the extent practicable and consistent with the |
23 | interests of justice, be held within thirty (30) days of the filing of the petition. The court may |
24 | consolidate the hearing on the petition with a hearing on any other petition filed by a person other |
25 | than the defendant under this subsection. |
26 | (e) At the hearing, the petitioner may testify and present evidence and witnesses on the |
27 | petitioner's own behalf, and cross-examine witnesses who appear at the hearing. The state may |
28 | present evidence and witnesses in rebuttal and in defense of its claim to the property and cross- |
29 | examine witnesses who appear at the hearing. |
30 | (f) The petitioner who has an ownership interest in property subject to forfeiture existing |
31 | at the time the illegal conduct giving rise to forfeiture occurred and who claims to be an innocent |
32 | owner bears the burden of proving by clear and convincing evidence that the person has a legal |
33 | right, title, or interest in the property seized under this chapter. |
34 | (g) If subsection (f) of this section is satisfied and the state seeks to proceed with the |
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1 | forfeiture against the property, the state shall prove by clear and convincing evidence that the |
2 | petitioner had actual knowledge of the underlying crime giving rise to the forfeiture. |
3 | (h) A petitioner who acquired an ownership interest in property subject to forfeiture after |
4 | the commission of a crime giving rise to the forfeiture and who claims to be an innocent owner |
5 | bears the burden of proving by clear and convincing evidence that the person has legal right, title, |
6 | or interest in the property seized under this chapter. |
7 | (i) If subsection (h) of this section is satisfied and the state seeks to proceed with the |
8 | forfeiture against the property, the state shall prove by clear and convincing evidence that at the |
9 | time the petitioner acquired the property the person: |
10 | (1) Had actual knowledge that the property was subject to forfeiture; or |
11 | (2) Was not a bona fide purchaser without notice of any defect in title and for valuable |
12 | consideration. |
13 | (j) If the state fails to meet its burden in subsection (g) or (i) of this section, the court shall |
14 | find that the petitioner is an innocent owner and shall order the state to relinquish all claims of title |
15 | to the property. |
16 | (k) The defendant or convicted offender may invoke the right against self-incrimination or |
17 | the marital privilege during the forfeiture-related state of the prosecution. The trier of fact at the |
18 | hearing may draw an adverse inference from the invocation of the right or privilege. |
19 | 12-33-23. Appeal. |
20 | A party to forfeiture litigation may appeal the district court's decision regarding the seizure, |
21 | on an interlocutory basis, or forfeiture of property under this chapter to the superior court with in |
22 | sixty (60) days of a decision or entry of judgment. |
23 | 12-33-24. Return of property, damages, and costs. |
24 | (a) The law enforcement agency or court shall return property to the owner within a |
25 | reasonable period of time not to exceed three (3) business days after a court finds that: |
26 | (1) The owner had a bona fide security interest; |
27 | (2) The owner was an innocent owner; |
28 | (3) Charges against the owner were dismissed; or |
29 | (4) The owner was found not guilty of the criminal charge that is the basis for the forfeiture |
30 | action. |
31 | (b) If property returned under subsection (a) of this section has been damaged, the owner |
32 | may make a claim in district court for the damages to the seized property against the agency that |
33 | seized the property. |
34 | (c) The state is responsible for any storage fees and related costs applicable to property |
| LC005216 - Page 12 of 28 |
1 | returned under subsection (a) of this section. |
2 | 12-33-25. Disposition of property and proceeds. |
3 | (a) At any time when contraband held for evidentiary purposes is no longer needed for that |
4 | purpose, the court may order it be destroyed within thirty (30) days of the order. At any time when |
5 | forfeited assets held for evidentiary purposes are no longer needed for that purpose, and if the law |
6 | enforcement agency or court is unable locate the original property owner, the property shall be |
7 | presumed abandoned in accordance with: |
8 | (1) Section 33-21.1-13 if the property is held by a court; and |
9 | (2) Section 33-21.1-14.1 if the property is held by a law enforcement agency. |
10 | The property shall be remitted to the general treasurer in accordance with § 33-21.1-17. |
11 | (b) All remaining property aside from U.S. currency or stolen property which is to be |
12 | returned to its rightful owner shall be sold, subsequent to reasonable public notice, by public |
13 | auction, or, if auction is not possible, in a commercially reasonable manner approved by the court. |
14 | (c) Proceeds seized and proceeds from the sale of forfeited assets may be distributed only |
15 | following a court order. The court shall order the funds be used to pay, in order of priority, for the |
16 | following purposes: |
17 | (1) Storage and sale expenses; |
18 | (2) Satisfaction of valid liens against the property; |
19 | (3) Restitution ordered to the victim of the criminal offense and the return of stolen |
20 | property; |
21 | (4) Upon motion of the seizing agency, reimbursement of investigation costs excluding |
22 | salaries that the law enforcement agency incurred in the seizure of the assets subject to the forfeiture |
23 | action; |
24 | (5) Court-ordered child support obligations; |
25 | (6) Claims for compensation by the defendant's employees; and |
26 | (7) Claims for compensation by defendant's unsecured creditors. |
27 | (d) All remaining funds must be deposited into the state's treasury and credited to the |
28 | general fund. |
29 | 12-33-26. Prohibition on retaining property; Sale restrictions. |
30 | No law enforcement agency may retain forfeited or abandoned property for its own use or |
31 | sell it directly or indirectly to any employee of the agency, to a person related to an employee by |
32 | blood or marriage, or to another law enforcement agency. |
33 | 12-33-27. Adoption, joint taskforces and receipt of payment of forfeiture proceeds |
34 | from the Federal Government. |
| LC005216 - Page 13 of 28 |
1 | (a) No state or municipal law enforcement agency or prosecuting authority may enter into |
2 | an agreement to transfer or refer seized property to a federal agency directly indirectly, by adoption, |
3 | through an intergovernmental joint taskforce or by other means for the purposes of forfeiture |
4 | litigation unless the seized property includes U.S. currency in excess of one hundred thousand |
5 | dollars ($100,000). |
6 | (b) All state or municipal law enforcement agencies shall refer seized property to the |
7 | appropriate state or municipal prosecuting authority for forfeiture litigation under this chapter |
8 | unless the seized property includes U.S. currency in excess of one hundred thousand dollars |
9 | ($100,000). If seized property includes U.S. currency in excess of one hundred thousand dollars |
10 | ($100,000), the state or municipal law enforcement agency has the option but is not required to |
11 | refer or transfer the seized property to a federal agency for forfeiture litigation under federal law. |
12 | (c) Nothing in subsection (a) or (b) of this section shall be construed to restrict state or |
13 | municipal law enforcement agencies from collaborating with a federal agency to seize contraband |
14 | or property that the law enforcement agency has probable cause to believe is the proceeds or |
15 | instruments of a crime through intergovernmental joint taskforce. |
16 | (d) All funds paid by the federal government must be deposited into the state's treasury. |
17 | The state shall credit: |
18 | (1) The state government unit involved with the federal government sufficiently to |
19 | reimburse it for investigation costs, excluding salaries, that the state government unit incurred |
20 | related to the seizure of the assets subject to the forfeiture action; and |
21 | (2) The remainder to the general fund. |
22 | (e) No unit of state government may accept from the federal government any |
23 | instrumentality or payment of proceeds not permitted by subsection (c) of this section. |
24 | (f) The state government unit shall report all transfers to the federal government of an |
25 | investigation or criminal proceeding that involves forfeiture per the reporting requirements of this |
26 | chapter. |
27 | (g) Any taxpayer has standing to challenge in court the receipt of any proceeds or |
28 | instrumentality by a state government unit from the federal government contrary to subsections (d) |
29 | and (e) of this section. If a complainant shall prevail he or she may make claim to the court for |
30 | reasonable attorneys' fees and other litigation costs incurred. |
31 | 12-33-28. Attorneys' fees. |
32 | (a) In any forfeiture proceeding under this chapter in which the claimant prevails, the state |
33 | is liable for: |
34 | (l) Reasonable attorneys' fees and other litigation costs reasonably incurred by the claimant; |
| LC005216 - Page 14 of 28 |
1 | (2) Post judgment interest; and |
2 | (3) In cases involving currency, other negotiable instruments, or the proceeds of an |
3 | interlocutory sale: |
4 | (i) Interest actually paid to the state from the date of seizure of the property that resulted |
5 | from the investment of the property in an interest-bearing account or instrument and |
6 | (ii) An imputed amount of interest that the currency, instruments, or proceeds would have |
7 | earned at the rate applicable to the thirty (30) day U.S. Treasury Bill, for any period during which |
8 | no interest was paid (not including any period when the property reasonably was in use as evidence |
9 | in an official proceeding or in conducting scientific tests for the purpose of collecting evidence), |
10 | commencing fifteen (15) days after the property was seized by a law enforcement agency. |
11 | 12-33-29. Disposing of property of a person deported. |
12 | (a) This section covers procedures for disposing of property when the owner is deported |
13 | from the United States to a foreign country. |
14 | (b) If the owner of property is deported after: |
15 | (1) Being convicted of a violation of a state law that is subject to forfeiture; and |
16 | (2) The property is found to be an instrumentality or proceeds of the violation of that state |
17 | law, the court shall enter an order disposing of the property in accordance with this chapter. |
18 | (c) If the owner of property is deported but: |
19 | (l) The owner is not convicted of violating a state law that is subject to forfeiture; or |
20 | (2) The property is not found to be an instrumentality or proceeds from the violation of a |
21 | state law subject to forfeiture for which the owner of the property is convicted, the property shall |
22 | be returned to the next of kin of the person deported. |
23 | (d) If the next of kin is not known or refuses the property, the state shall exercise reasonable |
24 | diligence to identify persons with a potential interest in the property and make reasonable efforts |
25 | to give notice to potential claimants. The state shall provide written notice to persons known or |
26 | alleged to have an interest in the property including other family members and any person |
27 | potentially making claims for court-ordered child support, employment-related compensation, or |
28 | payment of debts. The notice must also be made by publication in a reasonable geographic area. |
29 | (e) If no claim is made within sixty (60) days of the notice's publication date, the property |
30 | shall be deemed abandoned and the court shall enter an order disposing of the property in |
31 | accordance with this chapter. |
32 | (f) A person wanting to assert a legal claim to the property shall, within sixty (60) days of |
33 | the date of the applicable notice in subsection (d) of this section, petition the court for a hearing to |
34 | adjudicate the validity of the alleged interest in the property. The petition for the hearing must be |
| LC005216 - Page 15 of 28 |
1 | signed by the claimant under penalty of perjury. It must state the nature and extent of the claimant's |
2 | right, title, or interest in the property: the time and circumstances of the claimant's acquisition of |
3 | the right, title, or interest; and any additional facts supporting the claim and the relief sought. |
4 | (g) The court shall schedule a hearing as soon as practicable to determine if the claimant |
5 | has a legal right, title or interest in the property or is a bona fide purchaser for value of the legal |
6 | right, title or interest in the property. |
7 | 12-33-30. Penalty for violations. |
8 | (a) Any person acting under color of law, official title, or position who takes any action |
9 | intending to conceal, transfer, withhold, retain, divert, or otherwise prevent any proceeds, |
10 | conveyances, real property, or any things of value forfeited under the law of the state or the United |
11 | States from being applied, deposited, used, or returned to the owner in accordance with this chapter |
12 | is subject to a civil penalty in an amount of three (3) times the value of the forfeited property |
13 | concealed, transferred, withheld, retained, or diverted. |
14 | (b) Any taxpayer to the state has standing to challenge in superior court any action contrary |
15 | to the provisions of this chapter. If a complainant shall prevail they may make claim to the court |
16 | for reasonable attorney's fees and other litigation costs incurred. |
17 | 12-33-31. Preemption. |
18 | This chapter preempts laws by municipal or other governments in the state which regulate |
19 | or impose civil and criminal forfeiture. Except for federal forfeitures consistent with applicable |
20 | law, forfeiture may occur only pursuant to an explicit grant of authority in state law. An ordinance |
21 | enacted by a municipality or other unit of government authorizing forfeiture is not valid. |
22 | 12-33-32. Severability. |
23 | If any provision of this chapter or the application of it to any person or circumstances is |
24 | held invalid, that invalidity shall not affect other provisions or applications of the chapter which |
25 | can be given effect without the invalid provisions or application, and to this end the provisions of |
26 | this chapter are declared to be severable. |
27 | SECTION 2. Section 21-28-5.04 of the General Laws in Chapter 21-28 entitled "Uniform |
28 | Controlled Substances Act" is hereby amended to read as follows: |
29 | 21-28-5.04. Forfeiture of property and money. |
30 | (a) Any property, real or personal, including, but not limited to, vessels, vehicles, or |
31 | aircraft, and money or negotiable instruments, securities, or other things of value or any property |
32 | constituting, or derived from any proceeds, furnished, or intended to be furnished, by any person |
33 | for the transportation of, or in exchange for, a controlled substance and that has been, or is being |
34 | used, in violation of § 21-28-4.01(a) or 21-28-4.01(b) or in, upon, or by means of which any |
| LC005216 - Page 16 of 28 |
1 | violation of §§ 21-28-4.01(a) or 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08 |
2 | has taken, or is taking place, and all real property including any right, title, and interest in the whole |
3 | of any lot or tract of land and any appurtenances or improvements that is used in the commission |
4 | of a violation of §§ 21-28-4.01(a) or 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28- |
5 | 4.08, or that was purchased with funds obtained as a result of the commission of a violation of §§ |
6 | 21-28-4.01(a) or §§ 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08, shall be |
7 | subject to seizure and forfeiture pursuant to chapter 33 of title 12. seized and forfeited; provided |
8 | that no property or money, as enumerated in this subsection, used by any person shall be forfeited |
9 | under the provisions of this chapter unless it shall appear that the owner of the property or money |
10 | had knowledge, actual or constructive, and was a consenting party to the alleged illegal act. All |
11 | moneys, coin and currency, found in close proximity to forfeitable controlled substances, to |
12 | forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the |
13 | importation, manufacture, or distribution of controlled substances, are presumed to be unlawfully |
14 | furnished in exchange for a controlled substance or used in violation of this chapter. The burden of |
15 | proof is upon claimants of the property to rebut this presumption. |
16 | (b) Property taken or detained under this section shall not be repleviable, but shall be |
17 | deemed to be in the custody of the law enforcement agency making the seizure and whenever |
18 | property or money is forfeited under this chapter it shall be utilized as follows: |
19 | (1) Where the seized property is a vessel, vehicle, aircraft, or other personal property it |
20 | may be retained and used by the law enforcement agency that seized the property where the use of |
21 | the property is reasonably related to the law enforcement duties of the seizing agency. If the seized |
22 | property is a motor vehicle that is inappropriate for use by the law enforcement agency due to style, |
23 | size, or color, the seizing agency shall be allowed to apply the proceeds of sale or the trade-in value |
24 | of the vehicle towards the purchase of an appropriate vehicle for use in activities reasonably related |
25 | to law enforcement duties. |
26 | (2) The law enforcement agency may sell any forfeited property not required by this chapter |
27 | to be destroyed and not harmful to the public. The proceeds from the sale are to be distributed in |
28 | accordance with subdivision (3) of this subsection. |
29 | (3) As to the proceeds from the sale of seized property as referred to in subdivision (2) of |
30 | this subsection, and as to moneys, coin and currency, negotiable instruments, securities, or other |
31 | things of value as referred to in subsection (a) of this section, the distribution shall be as follows: |
32 | (i)(A) All proceeds of the forfeiture of real or personal property shall be distributed as |
33 | follows: All costs of advertising administrative forfeitures shall first be deducted from the amount |
34 | forfeited. Of the remainder, twenty percent (20%) of the proceeds shall be provided to the attorney |
| LC005216 - Page 17 of 28 |
1 | general's department to be used for further drug-related law enforcement activities including, but |
2 | not limited to, investigations, prosecutions, and the administration of this chapter; seventy percent |
3 | (70%) of the proceeds shall be divided among the state and local law enforcement agencies |
4 | proportionately based upon their contribution to the investigation of the criminal activity related to |
5 | the asset being forfeited; and ten percent (10%) of the proceeds shall be provided to the department |
6 | of health for distribution to substance abuse treatment programs. |
7 | (B) The law enforcement agencies involved in the investigation, with the assistance of the |
8 | attorney general, shall by agreement determine the respective proportionate share to be received by |
9 | each agency. If the agencies are unable to reach agreement, application shall be made by one or |
10 | more of the agencies involved to the presiding justice of the superior court who shall determine the |
11 | respective proportionate share attributable to each law enforcement agency. The proceeds from all |
12 | forfeitures shall be held by the general treasurer in a separate account until such time as an |
13 | allocation is determined by agreement of the agencies or by the presiding justice. It shall be the |
14 | duty and responsibility of the general treasurer to disburse the allocated funds from the separate |
15 | account to the respective law enforcement agencies. |
16 | (ii) Each state or local law enforcement agency shall be entitled to keep the forfeited money |
17 | or the proceeds from sales of forfeited property. The funds shall be used for law enforcement |
18 | purposes and investigations of violations of this chapter. The funds received by a state law |
19 | enforcement agency shall be maintained in a separate account by the general treasurer. The funds |
20 | received by a local law enforcement agency shall be maintained in a separate account by the local |
21 | agency's city or town treasurer. |
22 | (c)(1) There is established in the state's treasury a special fund to be known as the asset |
23 | forfeiture fund in which shall be deposited the excess proceeds of forfeitures arising out of criminal |
24 | acts occurring before July 1, 1987. The asset forfeiture fund shall be used to fund drug-related law |
25 | enforcement activity and the treatment and rehabilitation of victims of drug abuse. The fund shall |
26 | be administered through the office of the general treasurer. The presiding justice of the superior |
27 | court shall have the authority to determine the feasibility and amount of disbursement to those state |
28 | or local law enforcement agencies that have made application. |
29 | (2) Upon the application of any law enforcement agency of the state of Rhode Island, when |
30 | a special need exists concerning the enforcement of the provisions of this chapter, the attorney |
31 | general, or his or her designee, may apply to the presiding justice of the superior court for the |
32 | release from the general treasury of sums of money. When the presiding justice upon consideration |
33 | of the reasons set forth by that agency deems them to be reasonable and necessary to the |
34 | accomplishment of a goal within the powers and duties of that law enforcement agency, he or she |
| LC005216 - Page 18 of 28 |
1 | may issue an order ex parte providing for the release of the funds. |
2 | (d) Each law enforcement agency making any seizure(s) that result(s) in a forfeiture |
3 | pursuant to this section shall certify and file with the state treasurer between January 1 and January |
4 | 30 an annual report detailing the property or money forfeited during the previous calendar year and |
5 | the use or disposition of the property or money. The report shall be made in the form and manner |
6 | as may be provided or specified by the treasurer and these annual law enforcement agency reports |
7 | shall be provided to the local governmental body governing the agency and to the house and senate |
8 | judiciary committees. |
9 | (e) Any law enforcement agency whose duty it is to enforce the laws of this state relating |
10 | to controlled substances is empowered to authorize designated officers or agents to carry out the |
11 | seizure provisions of this chapter. It shall be the duty of any officer or agent authorized or |
12 | designated, or authorized by law, whenever he or she shall discover any property or monies that |
13 | have been, or are being, used in violation of any of the provisions of this chapter, or in, upon, or by |
14 | means of which any violation of this chapter has taken or is taking place, to seize the property or |
15 | monies and to place it in the custody of the person as may be authorized or designated for that |
16 | purpose by the respective law enforcement agency pursuant to those provisions. |
17 | (f) For purposes of this section and § 30-14-2 only, the Rhode Island national guard shall |
18 | be deemed a law enforcement agency eligible to participate in the forfeiture of money and assets |
19 | seized through counterdrug operations in which members of the guard support federal, state or |
20 | municipal efforts. |
21 | SECTION 3. Sections 21-28-5.04.1 and 21-28-5.04.2 of the General Laws in Chapter 21- |
22 | 28 entitled "Uniform Controlled Substances Act" are hereby repealed. |
23 | 21-28-5.04.1. Criminal forfeiture procedures. |
24 | (a) Any criminal complaint, information, or indictment charging one or more covered |
25 | offenses shall set forth with reasonable particularity property that the attorney general seeks to |
26 | forfeit pursuant to this section. |
27 | (b) The court may, upon application of the attorney general, enter a restraining order or |
28 | injunction, require any person claiming any interest in the subject property to execute a satisfactory |
29 | performance bond to the state, or take any other action to preserve the availability of property |
30 | subject to forfeiture described in § 21-28-5.04, whether prior or subsequent to the filing of a |
31 | complaint, indictment, or information. Written notice and an opportunity for a hearing shall be |
32 | afforded to persons appearing to have an interest in the property, the hearing to be limited to the |
33 | issues of whether: |
34 | (1) There is a substantial probability that the state will prevail on the issue of forfeiture and |
| LC005216 - Page 19 of 28 |
1 | that failure to enter the order will result in the property being destroyed, conveyed, encumbered or |
2 | further encumbered, removed from the jurisdiction of the court, or made unavailable for forfeitures; |
3 | and |
4 | (2) The need to preserve the availability of property through the entry of the requested |
5 | order outweighs the hardship on any party against whom the order is to be entered. |
6 | (c)(1) A temporary restraining order under this section may be entered upon application of |
7 | the attorney general without notice or opportunity for a hearing when a complaint, information, or |
8 | indictment has not yet been filed with respect to the property if the attorney general demonstrates |
9 | that there is probable cause to believe that the property with respect to which the order is sought |
10 | would, in the event of conviction, be subject to forfeiture under § 21-28-5.04 and that provision of |
11 | notice will jeopardize the availability of the property for forfeiture. The temporary restraining order |
12 | shall expire within ten (10) days of the date on which it is entered unless extended for good cause |
13 | shown or unless the party against whom it is entered consents to an extension for a longer period. |
14 | (2) A hearing requested by any party in interest concerning an order entered under this |
15 | subsection shall be held at the earliest possible time and prior to the expiration of the temporary |
16 | order. |
17 | (3) The court may receive and consider, at the hearing held pursuant to this subsection, |
18 | evidence and information that would be inadmissible in court. |
19 | (d) Upon conviction of a person for a covered offense the court shall enter a judgment of |
20 | forfeiture of the property described in § 21-28-5.04 to the state and shall also authorize the attorney |
21 | general to seize all property ordered forfeited upon any terms and conditions that the court shall |
22 | deem proper. Following the entry of an order declaring the property forfeited, the court may, upon |
23 | application of the attorney general, enter any appropriate restraining orders or injunctions, require |
24 | the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, |
25 | accountants, or trustees, or take any other action to protect the interest of the state in the property |
26 | ordered forfeited. Any income accruing to or derived from an enterprise or an interest in an |
27 | enterprise that has been ordered forfeited under this section may be used to offset ordinary and |
28 | necessary expenses of the enterprise as required by law or that are necessary to protect the interest |
29 | of the state or innocent third parties. |
30 | (e) All right, title, and interest in property described in § 21-28-5.04 vests in the state upon |
31 | the commission of the act giving rise to forfeiture under this chapter. Any property that is |
32 | subsequently transferred to any person may be the subject of a special verdict of forfeiture and after |
33 | this shall be ordered forfeited to the state, unless the transferee establishes in a hearing pursuant to |
34 | subsection (f) of this section that he or she is a bona fide purchaser for value of the property who |
| LC005216 - Page 20 of 28 |
1 | at the time of purchase was reasonably without cause to believe that the property was subject for |
2 | forfeiture. |
3 | (f) Procedures subsequent to the special verdict of forfeiture shall be as follows: |
4 | (1) Following the entry of an order of forfeiture under this section, the state shall publish |
5 | notice of the order and of its intent to dispose of the property once per week for at least three (3) |
6 | weeks in the manner that the attorney general may provide by regulation. The attorney general shall |
7 | also, to the extent practicable, provide written notice to all parties known to have an interest in the |
8 | property and all parties whose identity is reasonably subject to discovery and who may have an |
9 | interest in the forfeited property. |
10 | (2) Any person, other than the defendant, asserting any interest in property that has been |
11 | ordered forfeited to the state pursuant to this section may, within one hundred eighty (180) days of |
12 | the final publication of notice or his or her receipt of notice under subdivision (1) of this subsection, |
13 | whichever is earlier, petition the court for a hearing to adjudicate the validity of his or her alleged |
14 | interest in the property. |
15 | (3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth |
16 | the nature and extent of the petitioner's right, title, or interest in the property; and additional facts |
17 | supporting the petitioner's claim; and the relief sought. |
18 | (4) The hearing on the petition shall, to the extent practicable and consistent with the |
19 | interest of justice, be held within thirty (30) days of the filing of the petition. The court may |
20 | consolidate the hearing on the petition with a hearing on any other petition filed by a person other |
21 | than the defendant and concerning the same property. |
22 | (5) At a hearing, the petitioner may testify and present evidence and witnesses on his own |
23 | behalf, and cross-examine witnesses who appear at the hearing. The state may present evidence |
24 | and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses |
25 | who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court |
26 | shall consider the relevant portions of the record of the criminal case that resulted in the order of |
27 | forfeiture. |
28 | (6) In accordance with its findings at the hearing, the court shall amend the order of |
29 | forfeiture if it determines that the petitioner has established by a preponderance of the evidence |
30 | that: |
31 | (i) The petitioner has a right, title, or interest in the property, and the right, title or interest |
32 | was vested in the petitioner rather than the defendant or was superior to any right, title, or interest |
33 | of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the |
34 | property under this section; or |
| LC005216 - Page 21 of 28 |
1 | (ii) The petitioner is a bona fide purchaser for value of any right, title, or interest in the |
2 | property and was at the time of purchase reasonably without cause to believe that the property was |
3 | subject to forfeiture under this section. |
4 | (7) Following the court's disposition of all petitions filed under this section, or if no such |
5 | petitions are filed, following the expiration of the period provided in § 21-28-5.04 for the filing of |
6 | the petitions, the state shall have clear title to property that is the subject of the order of forfeiture |
7 | and shall transfer good and sufficient title to any subsequent purchaser, transferee, or fund as |
8 | provided in this chapter. |
9 | (8) Except as provided in this section, no party claiming an interest in property subject to |
10 | forfeiture under this section may: |
11 | (i) Intervene in a trial or appeal of a criminal case involving the forfeiture of the property; |
12 | or |
13 | (ii) Commence any action against the state concerning the validity of the alleged interest. |
14 | (g) In order to facilitate the identification or location of property declared forfeited and to |
15 | facilitate the disposition of petitions filed pursuant to § 21-28-5.04 after the entry of an order |
16 | declaring forfeited property to the state, the court may, upon application of the attorney general, |
17 | order that the testimony of any witness relating to the property forfeited be taken by deposition and |
18 | that any designated book, paper, document, record, recording (electronic or otherwise), or other |
19 | material not privileged, be produced at the same time and place, in the same manner as provided |
20 | for the taking of depositions under the Rules of Civil Procedure. |
21 | (h) If any of the property described in § 21-28-5.04: (1) cannot be located; (2) has been |
22 | transferred to, sold to or deposited with a third party; (3) has been placed beyond the jurisdiction |
23 | of the court; (4) has been substantially diminished in value by any act or omission of the defendant; |
24 | or (5) has been commingled with other property which cannot be divided without difficulty; the |
25 | court shall order the forfeiture of any other property of the defendant up to the value of the subject |
26 | property. |
27 | (i) The court shall have jurisdiction to enter orders as provided in this section without |
28 | regard to the location of any property that may be subject to forfeiture under this section or that has |
29 | been ordered forfeited under this section. |
30 | 21-28-5.04.2. Civil forfeiture procedure. |
31 | (a) In addition to or in lieu of the criminal forfeiture procedures of this chapter, any property |
32 | described in § 21-28-5.04 except as designated in subsection (b) of this section, is subject to civil |
33 | forfeiture to the state. Civil forfeiture proceedings shall be in the nature of an action in rem and |
34 | shall be governed by the civil rules for in rem proceedings. |
| LC005216 - Page 22 of 28 |
1 | (b) All property described in § 21-28-5.04 is subject to civil forfeiture except that: |
2 | (1) No conveyances used by any person as a common carrier in the transaction of business |
3 | as a common carrier shall be forfeited under the provisions of this section unless it appears that the |
4 | owner or other person in charge of the conveyance was a consenting party or privy to the covered |
5 | offense charged; |
6 | (2) No conveyance shall be forfeited under the provisions of this section by reason of any |
7 | act or omission established by the owner of it to have been committed or omitted by any person |
8 | other than the owner while the conveyance was unlawfully in the possession of a person other than |
9 | the owner in violation of the criminal laws of this state or of the United States; and |
10 | (3) No property shall be forfeited under this section, to the extent of the interest of an |
11 | owner, by reason of any act or omission established by that owner to have been committed or |
12 | omitted without knowledge or consent of that owner. |
13 | (c) Property subject to forfeiture under this section may be seized by a law enforcement |
14 | officer: |
15 | (1) Upon process issued pursuant to the Rules of Civil Procedure applicable to in rem |
16 | proceedings; |
17 | (2) Upon process issued pursuant to a legally authorized search warrant; or |
18 | (3) Without court process when: |
19 | (i) The seizure is incident to a lawful arrest or search; |
20 | (ii) The property subject to seizure has been the subject of a prior judgment in favor of the |
21 | state in a controlled substance act; |
22 | (iii) The law enforcement officer has probable cause to believe that the property is directly |
23 | or indirectly dangerous to health or safety; or |
24 | (iv) The law enforcement officer has probable cause to believe that the property is |
25 | forfeitable under § 21-28-5.04. |
26 | (d) In the event of a seizure under § 21-28-5.04 the property shall not be subject to |
27 | sequestration or attachment but is deemed to be in the custody of the law enforcement agency |
28 | making the seizure, subject only to the order of the court. When property is seized under this |
29 | section, pending forfeiture and final disposition, the law enforcement agency making the seizure |
30 | may: |
31 | (1) Place the property under seal; |
32 | (2) Remove the property to a storage area for safekeeping; |
33 | (3) Remove the property to a place designated by the court; or |
34 | (4) Request another agency authorized by law to take custody of the property and remove |
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1 | it to an appropriate location within the jurisdiction of the court. |
2 | (e) As soon as practicable after seizure, the seizing agency shall conduct an inventory upon |
3 | and cause the appraisal of the property seized. |
4 | (f) In the event of a seizure under this section, the seizing agency shall within thirty (30) |
5 | days send to the attorney general a written request for forfeiture, which shall include a statement of |
6 | all facts and circumstances including the names of all witnesses then known, the appraised value |
7 | of the property and the statutory provision relied upon for forfeiture. |
8 | (g) The attorney general shall immediately examine the facts and applicable law of the |
9 | cases referred to him or her pursuant to this section, and if it is probable that the property is subject |
10 | to forfeiture shall immediately cause the initiation of administrative or judicial proceedings against |
11 | the property. If, upon inquiry and examination, the attorney general determines that those |
12 | proceedings probably cannot be sustained or that justice does not require the institution of the |
13 | proceedings, he or she shall make a written report of those findings, transmit a copy to the seizing |
14 | agency, and immediately authorize the release of the property. |
15 | (h) If the value of any personal property seized does not exceed twenty thousand dollars |
16 | ($20,000), the attorney general may forfeit the property administratively in the following manner: |
17 | (1) The attorney general shall provide notice of intention to forfeit property |
18 | administratively by publication in a local newspaper of general circulation, one day per week for |
19 | three (3) consecutive weeks. |
20 | (2) In addition, to the extent practicable, the attorney general shall provide notice by |
21 | registered mail of intent to forfeit the property administratively to all known interested parties and |
22 | all parties whose identity is reasonably subject to discovery who may have an interest in the |
23 | property seized. |
24 | (3) Notice by publication and by mail shall include: |
25 | (i) A description of the property; |
26 | (ii) The appraised value of the property; |
27 | (iii) The date and place of seizure; |
28 | (iv) The violation of law alleged against the subject property; |
29 | (v) The instructions for filing claim and cost bond or a petition for remission or mitigation; |
30 | and |
31 | (vi) A notice that the property will be forfeited to the state if a petition for remission or |
32 | mitigation or a claim and cost bond has not been timely filed. |
33 | (4) Persons claiming an interest in the property may file petitions for remission or |
34 | mitigation of forfeiture or a claim and cost bond with the attorney general within thirty (30) days |
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1 | of the final notice by publication or receipt of written notice, whichever is earlier. |
2 | (5) The attorney general shall inquire into the facts and circumstances surrounding petitions |
3 | for remission or mitigation of forfeiture. |
4 | (6) The attorney general shall provide the seizing agency and the petitioner a written |
5 | decision on each petition for remission or mitigation within sixty (60) days of receipt of the petition |
6 | unless the circumstances of the case require additional time, in which case the attorney general |
7 | shall notify the petitioner in writing and with specificity within the sixty (60) day period that the |
8 | circumstances of the case require additional time and further notify the petitioner of the expected |
9 | decision date. |
10 | (7) Any person claiming seized property under this subsection may institute de novo |
11 | judicial review of the seizure and proposed forfeiture by timely filing with the attorney general a |
12 | claim and bond to the state in the amount of ten percent (10%) of the appraised value of the property |
13 | or in the penal sum of two hundred fifty dollars ($250), whichever is greater, with sureties to be |
14 | approved by the attorney general, upon condition that in the case of forfeiture the claimant shall |
15 | pay all costs and expenses of the proceedings at the discretion of the court. Upon receipt of the |
16 | claim and bond, or if he or she elects, the attorney general shall file with the court a complaint in |
17 | rem in accordance with the procedures set forth in this section. Any funds received by the attorney |
18 | general as cost bonds shall be placed in an escrow account pending final disposition of the case. |
19 | (8) If no petitions or claims with bonds are timely filed, the attorney general shall prepare |
20 | a written declaration of forfeiture of the subject property to the state and dispose of the property in |
21 | accordance with this chapter. |
22 | (9) If the petition is denied, the attorney general shall prepare a written declaration of |
23 | forfeiture to the state and dispose of the property in accordance with this chapter and the attorney |
24 | general's regulations, if any, pursuant to this chapter. |
25 | (10) A written declaration of forfeiture signed by the attorney general pursuant to this |
26 | chapter shall be deemed to provide good and sufficient title to the forfeited property. |
27 | (i) If the value of any personal property seized exceeds twenty thousand dollars ($20,000), |
28 | the attorney general shall file a complaint in rem against the property within twenty (20) days of |
29 | the receipt of the report referred to in subsection (f) of this section and after this provide notice of |
30 | intention to forfeit by publication in a local newspaper of general circulation for a period of at least |
31 | once per week for three (3) consecutive weeks. The notice shall include: |
32 | (1) A description of the property; |
33 | (2) The appraised value of the property; |
34 | (3) The date and place of seizure; |
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1 | (4) The violation of law alleged against the subject property. |
2 | (j)(1) The case may be tried by a jury, if in the superior court, upon the request of either |
3 | party, otherwise by the court, and the cause of forfeiture alleged being proved, the court which shall |
4 | try the case shall enter upon judgment for the forfeiture and disposition of the property according |
5 | to law. |
6 | (2) An appeal may be claimed by either party from any judgment of forfeiture rendered by |
7 | the district court, to be taken in like manner as by defendants in criminal cases within the |
8 | jurisdiction of the district court to try and determine, to the superior court for the same county in |
9 | which the division of the district court rendering judgment is situated and like proceedings may be |
10 | had therein as in cases of informations for forfeitures originally filed in that court. |
11 | (3) The judgment of the superior court shall be final in all cases of the forfeitures, whether |
12 | originally commenced in that court or brought there by appeal, unless a new trial is ordered, for |
13 | cause shown by the supreme court. |
14 | (k) The in rem action shall be brought in the district court if the value of the property seized |
15 | is less than two hundred fifty thousand dollars ($250,000), otherwise the in rem action shall be |
16 | brought in the superior court. The attorney general shall also, to the extent practicable, provide |
17 | written notice of the action in rem to all known interested parties and all persons whose identity is |
18 | reasonably subject to discovery who may have an interest in the property. |
19 | (l) Persons claiming an interest in the property may file claims against the property within |
20 | thirty (30) days of the final notice by publication or receipt of written notice, whichever is earlier. |
21 | The claims shall be filed and adjudicated in the manner set forth for petitions in criminal |
22 | proceedings in § 21-28-5.04.1(f). |
23 | (m) If the property sought to be forfeited is real property, the attorney general shall file a |
24 | complaint in rem in the superior court against the property. In addition to providing notice as |
25 | required by this chapter, the attorney general shall file a lis pendens with respect to the property |
26 | with the recorder of deeds in the city or town in which the property is located. |
27 | (n) Upon order of the court forfeiting the subject property to the state, the state shall have |
28 | clear title to the forfeited property, and the attorney general may transfer good and sufficient title |
29 | to any subsequent purchaser or transferee. Title to the forfeited property shall be deemed to have |
30 | vested in the state upon the commission of the act giving rise to the forfeiture under this chapter. |
31 | (o) Upon entry of judgment for the claimant in any proceeding to forfeit property under |
32 | this chapter, the property shall immediately be returned to the claimant. If it appears that there was |
33 | reasonable cause for the seizure or the filing of the complaint, the court shall cause a proper |
34 | certificate of that to be entered, and the claimant shall not, in that case, be entitled to costs or |
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1 | damages, nor shall the person or agency who made the seizure, nor the attorney general nor the |
2 | prosecutor, be liable to suit or judgment on account of the seizure, suit, or prosecution. |
3 | (p) In any action brought under this section, the state shall have the initial burden of |
4 | showing the existence of probable cause for seizure or arrest of the property. Upon that showing |
5 | by the state, the claimant shall have the burden of showing by a preponderance of evidence that the |
6 | property was not subject to forfeiture under this section. |
7 | SECTION 4. This act shall take effect upon passage. |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO CRIMINAL PROCEDURE -- ASSET FORFEITURE | |
*** | |
1 | This act would create a new chapter in the general laws to standardize procedures for asset |
2 | forfeitures for all crimes, policing priorities, while protecting the powers of law enforcement to |
3 | seize property suspected of being associated with crime and preserving prosecutors' ability to |
4 | charge and prosecute suspected criminals. The act would also provide legislators with the |
5 | information necessary for basic oversight of law enforcement agencies who seize and forfeit private |
6 | property under state and federal forfeiture laws. |
7 | This act would take effect upon passage. |
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