TITLE 21
Food And Drugs

CHAPTER 21-28
Uniform Controlled Substances Act

ARTICLE 21-28-5.01
Powers of Enforcement Personnel

SECTION 21-28-5.04.1


§ 21-28-5.04.1 Criminal forfeiture procedures.

(a) Any criminal complaint, information, or indictment charging one or more covered offenses shall set forth with reasonable particularity property that the attorney general seeks to forfeit pursuant to this section.

(b) The court may, upon application of the attorney general, enter a restraining order or injunction, require any person claiming any interest in the subject property to execute a satisfactory performance bond to the state, or take any other action to preserve the availability of property subject to forfeiture described in § 21-28-5.04, whether prior or subsequent to the filing of a complaint, indictment, or information. Written notice and an opportunity for a hearing shall be afforded to persons appearing to have an interest in the property, the hearing to be limited to the issues of whether:

(1) There is a substantial probability that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, conveyed, encumbered or further encumbered, removed from the jurisdiction of the court, or made unavailable for forfeitures; and

(2) The need to preserve the availability of property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.

(c)(1) A temporary restraining order under this section may be entered upon application of the attorney general without notice or opportunity for a hearing when a complaint, information, or indictment has not yet been filed with respect to the property if the attorney general demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under § 21-28-5.04 and that provision of notice will jeopardize the availability of the property for forfeiture. The temporary restraining order shall expire within ten (10) days of the date on which it is entered unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period.

(2) A hearing requested by any party in interest concerning an order entered under this subsection shall be held at the earliest possible time and prior to the expiration of the temporary order.

(3) The court may receive and consider, at the hearing held pursuant to this subsection, evidence and information that would be inadmissible in court.

(d) Upon conviction of a person for a covered offense the court shall enter a judgment of forfeiture of the property described in § 21-28-5.04 to the state and shall also authorize the attorney general to seize all property ordered forfeited upon any terms and conditions that the court shall deem proper. Following the entry of an order declaring the property forfeited, the court may, upon application of the attorney general, enter any appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the interest of the state in the property ordered forfeited. Any income accruing to or derived from an enterprise or an interest in an enterprise that has been ordered forfeited under this section may be used to offset ordinary and necessary expenses of the enterprise as required by law or that are necessary to protect the interest of the state or innocent third parties.

(e) All right, title, and interest in property described in § 21-28-5.04 vests in the state upon the commission of the act giving rise to forfeiture under this chapter. Any property that is subsequently transferred to any person may be the subject of a special verdict of forfeiture and after this shall be ordered forfeited to the state, unless the transferee establishes in a hearing pursuant to subsection (f) of this section that he or she is a bona fide purchaser for value of the property who at the time of purchase was reasonably without cause to believe that the property was subject for forfeiture.

(f) Procedures subsequent to the special verdict of forfeiture shall be as follows:

(1) Following the entry of an order of forfeiture under this section, the state shall publish notice of the order and of its intent to dispose of the property once per week for at least three (3) weeks in the manner that the attorney general may provide by regulation. The attorney general shall also, to the extent practicable, provide written notice to all parties known to have an interest in the property and all parties whose identity is reasonably subject to discovery and who may have an interest in the forfeited property.

(2) Any person, other than the defendant, asserting any interest in property that has been ordered forfeited to the state pursuant to this section may, within one hundred eighty (180) days of the final publication of notice or his or her receipt of notice under subdivision (1) of this subsection, whichever is earlier, petition the court for a hearing to adjudicate the validity of his or her alleged interest in the property.

(3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title, or interest in the property; and additional facts supporting the petitioner's claim; and the relief sought.

(4) The hearing on the petition shall, to the extent practicable and consistent with the interest of justice, be held within thirty (30) days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition filed by a person other than the defendant and concerning the same property.

(5) At a hearing, the petitioner may testify and present evidence and witnesses on his own behalf, and cross-examine witnesses who appear at the hearing. The state may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the criminal case that resulted in the order of forfeiture.

(6) In accordance with its findings at the hearing, the court shall amend the order of forfeiture if it determines that the petitioner has established by a preponderance of the evidence that:

(i) The petitioner has a right, title, or interest in the property, and the right, title or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or

(ii) The petitioner is a bona fide purchaser for value of any right, title, or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section.

(7) Following the court's disposition of all petitions filed under this section, or if no such petitions are filed, following the expiration of the period provided in § 21-28-5.04 for the filing of the petitions, the state shall have clear title to property that is the subject of the order of forfeiture and shall transfer good and sufficient title to any subsequent purchaser, transferee, or fund as provided in this chapter.

(8) Except as provided in this section, no party claiming an interest in property subject to forfeiture under this section may:

(i) Intervene in a trial or appeal of a criminal case involving the forfeiture of the property; or

(ii) Commence any action against the state concerning the validity of the alleged interest.

(g) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of petitions filed pursuant to § 21-28-5.04 after the entry of an order declaring forfeited property to the state, the court may, upon application of the attorney general, order that the testimony of any witness relating to the property forfeited be taken by deposition and that any designated book, paper, document, record, recording (electronic or otherwise), or other material not privileged, be produced at the same time and place, in the same manner as provided for the taking of depositions under the Rules of Civil Procedure.

(h) If any of the property described in § 21-28-5.04: (1) cannot be located; (2) has been transferred to, sold to or deposited with a third party; (3) has been placed beyond the jurisdiction of the court; (4) has been substantially diminished in value by any act or omission of the defendant; or (5) has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value of the subject property.

(i) The court shall have jurisdiction to enter orders as provided in this section without regard to the location of any property that may be subject to forfeiture under this section or that has been ordered forfeited under this section.

History of Section.
(P.L. 1987, ch. 371, § 2.)