TITLE 31
Motor and Other vehicles

CHAPTER 31-27
Motor Vehicle Offenses

SECTION 31-27-4.4


§ 31-27-4.4 Motor vehicle forfeiture procedure.

(a) Any criminal complaint, information, or indictment charging a violation of § 31-27-4.1 shall set forth with reasonable particularity the motor vehicle that the attorney general seeks to forfeit pursuant to this section.

(b)(1) The court may, upon application of the attorney general, enter a restraining order or injunction, require any person claiming any interest in the subject vehicle to execute a satisfactory performance bond to the state, or take any other action to preserve the availability of the vehicle subject to forfeiture described in § 31-27-4.3, whether prior or subsequent to the filing of a complaint, indictment, or information.

(2) Written notice and an opportunity for a hearing shall be afforded to persons appearing to have an interest in the vehicle, the hearing, however, to be limited to the issues of whether:

(i) 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 vehicle being destroyed, conveyed, encumbered or further encumbered, removed from the jurisdiction of the court, depreciated in value or otherwise made unavailable for forfeiture; and

(ii) The need to preserve the availability of the vehicle 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 vehicle if the attorney general demonstrates that there is probable cause to believe that the vehicle with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under § 31-27-4.3 and that provision of notice will jeopardize the availability of the vehicle 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 the covered offense, the court may enter a judgment of forfeiture of the vehicle described in § 31-27-4.1 to the state and may also authorize the attorney general to seize the motor vehicle ordered forfeited upon any terms and conditions that the court shall deem proper. Following the entry of an order declaring the vehicle forfeited, the court may, upon application of the attorney general:

(1) Enter appropriate restraining orders or injunctions;

(2) Require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees; or

(3) Take any other action to protect the interest of the state in the property ordered forfeited.

(e) All right, title, and interest in the vehicle described in § 31-27-4.1 vests in the state upon the commission of the act giving rise to forfeiture under this chapter. Any such vehicle that is subsequently transferred to any person may be the subject of a special verdict of forfeiture and 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 vehicle who at the time of purchase was reasonably without cause to believe that the vehicle was subject to 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 vehicle once per week for at least three (3) weeks in any 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 vehicle and all parties whose identity is reasonably subject to discovery and who may have an interest in the forfeited vehicle.

(2) Any person, other than the defendant, asserting any interest in the vehicle 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 vehicle.

(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 vehicle; any 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 vehicle.

(5) At a hearing, the petitioner may testify and present evidence and witnesses on his or her 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 vehicle 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 vehicle, 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 vehicle under this section; or

(ii) The petitioner is a bona fide purchaser for value of any right, title or interest in the vehicle 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 suchpetitions are filed, following the expiration of the period provided in this section for the filing of the petitions, the state shall have clear title to the vehicle 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 the vehicle 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 the vehicle declared forfeited and to facilitate the disposition of petitions filed pursuant to this section after the entry of an order declaring a vehicle forfeited to the state, the court may, upon application of the attorney general, order that the testimony of any witness relating to the forfeited vehicle 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 the vehicle described in § 31-27-4.1: (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; 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. 1997, ch. 193, § 3.)