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Utah Property Protection Act 2000
AN ACT RELATING TO FORFEITURE OF ASSETS AND PROPERTY; ESTABLISHING UNIFORM PROCEDURES FOR THE FORFEITURE OF PROPERTY; FORBIDDING FORFEITURE AGAINST INNOCENT OWNERS; PERMITTING LAW ENFORCEMENT OFFICIALS TO SEIZE CONTRABAND AND THE PROCEEDS AND INSTRUMENTALITIES OF CRIME; AND PROVIDING THAT ALL PROPERTY, ASSETS, MONEY OR OTHER THINGS OF VALUE WHICH ARE LAWFULLY SEIZED AND FORFEITED BE SOLD OR AUCTIONED AND THAT ALL MONIES WHICH RESULT FROM THE SALE OF FORFEITED ASSETS BE DEPOSITED IN THE UNIFORM SCHOOL FUND.
This Act affects sections of Utah Code Annotated 1953 as follows:
ENACTS:
24-1-1et seq., Utah Code Annotated 1953.
AMENDS:
23-20-1 as last amended by Chapters 140 and 282, Laws of Utah 1998
32A-13-103 as last amended by Chapter 5, Laws of Utah 1991
41-6-13.7 as last amended by Chapter 198, Laws of Utah 1996
53-10-303 as last amended by Chapter 36, Laws of Utah 1996 and renumbered by Chapter 263, Laws of Utah 1998
53A-16-101 as last amended by Chapter 38, Laws of Utah 1997
58-37-13 as last amended by Chapters 198 and 294, Laws of Utah 1996
58-37-20 as last amended by Chapter 36, Laws of Utah 1996.
58-37a-6 as enacted by Chapter 76, Laws of Utah 1981, declared unconstitutional by 10th Circuit (742 F.2d 564, 1984), repealed by Utah Code Ann. § 63-55-258 (effective date July 1, 2007)
58-37c-15 as enacted by Chapter 155, Laws of Utah 1992
58-37d-7 as enacted by Chapter 156, Laws of Utah 1992
59-14-207 as enacted by Chapter 58, Laws of Utah 1986 and renumbered by Chapter 2, Laws of Utah 1987
63-30-7 as enacted by Chapter 139, Laws of Utah 1965
76-3-501 as last amended by Chapter 97, Laws of Utah 1999
76-10-1107 as enacted by Chapter 196, Laws of Utah 1973
76-10-1108 as enacted by Chapter 196, Laws of Utah 1973
76-10-1603.5 as last amended by Chapter 38, Laws of Utah 1993
76-10-1908 as last amended by Chapter 198, Laws of Utah 1996
Be it enacted by the people of the State of Utah:
Section 1. Section 24-1-1 is enacted to read:
24-1-1. Title. This chapter shall be cited as the "Utah Uniform Forfeiture Procedures Act."
Section 2. Section 24-1-2 is enacted to read:
24-1-2. Purpose. It is the intent of this chapter to:
(1) provide for a uniform set of procedures and substantive standards for the criminal and civil forfeiture of property within the State of Utah;
(2) permit law enforcement personnel to deter crime by lawfully seizing and forfeiting contraband and the instrumentalities and proceeds of criminal conduct;
(3) protect innocent owners from the wrongful taking of their property;
(4) ensure that seizures and forfeitures of property from private citizens are not disproportionate to the violation or crime committed;
(5) ensure direct control and accountability over the use and sale of forfeited property and the proceeds generated therefrom; and
(6) direct that any and all revenues resulting from the sale of forfeited property
be contributed to the Uniform School Fund.
Section 3. Section 24-1-3 is enacted to read:
24-1-3. Definitions. As used in this section:
(1) "Agency" shall mean any agency of municipal, county, or state government, including law enforcement agencies, law enforcement personnel, and multi-jurisdictional task forces.
(2) "Contraband" shall mean any property which is unlawful to produce or to possess under state or federal law.
(3) "Multi-jurisdictional task force" shall mean a law enforcement task force or other agency comprised of persons who are employed by or acting under the authority of different governmental authorities, including federal, state, county or municipal governments, or any combination thereof.
(4) "Owner" shall mean any person or entity that possesses a legal or equitable interest in real or personal property, including a security interest.
(5) "Property" shall mean all property, whether real or personal, tangible or intangible.
(6) "Prosecuting Attorney" shall mean the public attorney authorized by a specific provision of state law to initiate forfeiture proceedings under this chapter.
(7) "State law" means all Utah law, including municipal, county and state law.
Section 4. Section 24-1-4 is enacted to read:
24-1-4. Civil Procedures.
(1) An agency which seizes property under any provision of state law subjecting an owner's property to civil forfeiture shall, as soon as practicable, but in no case more than 30 days after seizure:
(a) prepare a detailed inventory of all property seized and transfer the seized property to a designated official within the agency, who shall be responsible for holding and maintaining seized property pending a court order of release or final determination of forfeiture and disposition of property under this chapter;
(b) notify the prosecuting attorney responsible for initiating civil forfeiture proceedings under this chapter of the items of property seized, the place of the seizure and any persons arrested at the time of seizure; and
(c) give written notice to all owners known, or reasonably discoverable after due diligence, of the following items:
(i) the date of the seizure and the property seized;
(ii) the owner's rights and obligations under this chapter, including the availability of counsel and hardship relief in appropriate circumstances; and
(iii) an outline of the steps in the proceedings by which property is forfeited under this chapter.
(2) If the seizing agency fails to provide notice as required in subparagraph (1)(c), an owner entitled to notice who does not receive notice may void the forfeiture with respect to the owner's interest in the property by bringing a motion before the appropriate district court and serving it upon the seizing agency. Such motion may be brought at any time prior to the final disposition of the property under this chapter. If an owner brings a motion to void the forfeiture for lack of notice under subparagraph (1)(c), the court shall void the forfeiture unless the seizing agency demonstrates:
(a) good cause for the failure to give notice to that owner; or
(b) that the owner otherwise had actual notice of the seizure.
(3) (a) Within 90 days of any seizure, the prosecuting attorney shall file a complaint for forfeiture in the appropriate district court and serve a copy of the complaint upon all owners known to the prosecuting attorney to have an interest in the property by one of the following methods:
(i) personal service upon each owner whose name and address is known, or by mailing a copy to the last known address; or
(ii) upon all other owners whose addresses are not known, by publication in a newspaper of general circulation in the county where the seizure was made for a period of two consecutive weeks.
(b) The complaint shall describe with reasonable particularity:
(i) the property which is the subject matter of the forfeiture proceeding;
(ii) the date and place of seizure; and
(iii) the allegations which constitute a basis for forfeiture.
(4) If the prosecuting attorney does not timely file a complaint for forfeiture of the property in accordance with subparagraph (3), the agency shall promptly return the property to its owner and the prosecuting attorney shall take no further action to effect the forfeiture of such property. If the agency knows of more than one owner, it shall return the property to the owner who was in possession at the time of the seizure.
(5) In any case where the prosecuting attorney files a complaint for forfeiture of property, an owner may file a claim and an answer to the complaint. The claim and answer shall be filed within 30 days after the complaint is served in person or by mail, or where applicable, within 30 days after publication under subparagraph (3)(a)(ii).
(6) (a) Except as otherwise provided in this chapter, civil forfeiture proceedings are governed by the Utah Rules of Civil Procedure.
(b) The court shall take all reasonable steps to expedite forfeiture proceedings and shall give such proceedings the same priority as is given to criminal cases.
(c) In all suits or actions brought for the civil forfeiture of any property under this chapter, the burden of proof is on the prosecuting attorney to establish, by clear and convincing evidence, to what extent, if any, property is subject to forfeiture.
(d) The right to trial by jury applies to civil forfeiture proceedings.
Section 5. Section 24-1-5 is enacted to read:
24-1-5. No bond required in civil cases. Any person may assert an interest in seized property or file an answer to a complaint for civil forfeiture without posting bond with respect to the property which is the subject of the seizure or forfeiture action.
Section 6. Section 24-1-6 is enacted to read:
24-1-6. Innocent owners.
(1) An innocent owner's interest in property shall not be forfeited civilly under any provision of state law.
(2) The prosecuting attorney shall have the burden of establishing by clear and convincing evidence that an individual is not an innocent owner.
(3) With respect to an ownership interest in existence at the time the conduct subjecting the property to seizure took place, the term "innocent owner" means an owner who:
(a) did not have actual knowledge of the conduct subjecting the property to seizure; or
(b) upon learning of the conduct subjecting the property to seizure, took reasonable steps to prohibit such use of the property.
(4) For purposes of subparagraph (3)(b), no owner shall be required to take steps that he reasonably believes would be likely to subject any person (other than the person whose conduct gave rise to the forfeiture) to physical harm or danger. An owner may demonstrate that he took reasonable action to prohibit such use of the property by, for example:
(a) timely notifying a law enforcement agency of information that led the owner to know that conduct subjecting the property to seizure would occur, was occurring, or has occurred; or
(b) timely revoking or attempting to revoke permission for those engaging in such conduct to use the property; or
(c) taking reasonable actions to discourage or prevent the illegal use of the property.
(5) With respect to an ownership interest acquired after the conduct subjecting the property to seizure has occurred, the term "innocent owner" means a person who, at the time he acquired the interest in the property, had no knowledge that the illegal conduct subjecting the property to seizure had occurred or that the property had been seized for forfeiture, and:
(a) acquired the property in a bona fide transaction for value;
(b) was a person, including a minor child, who acquired an interest in property through probate or inheritance; or
(c) was a spouse who acquired an interest in property through dissolution of marriage or by operation of law.
(6) No owner may assert, under this paragraph, an ownership interest in contraband.
Section 7. Section 24-1-7 shall be enacted to read:
Section 24-1-7. Hardship Release of Seized Property.
(1) An owner is entitled to the immediate release of seized property from the seizing agency pending the final determination of civil forfeiture if:
(a) the owner has a possessory interest in the property;
(b) continued possession by the agency or the state pending the final disposition of the forfeiture proceedings will cause substantial hardship to the owner, such as:
(i) preventing the functioning of a legitimate business;
(ii) preventing any individual from working;
(iii) preventing any minor child or student from attending school;
(iv) preventing or hindering any person from receiving necessary medical care;
(v) hindering the care of an elderly or disabled dependent child or adult;
(vi) preventing an owner from retaining counsel to provide a defense in the forfeiture proceeding; or
(vii) leaving any individual homeless, or any other condition that the court determines causes a substantial hardship; and
(c) the hardship from the continued possession by the agency of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the owner during the pendency of the proceeding.
(2) The right to appointed counsel under Section 24-1-9 applies throughout civil forfeiture proceedings, including an owner's motion for hardship release. An owner may file a motion for hardship release:
(i) in the court in which forfeiture proceedings have commenced; or
(ii) in any district court having jurisdiction over the property, if forfeiture proceedings have not yet commenced.
(3) The court shall render a decision on a motion or complaint filed under subparagraph (2) not later than 10 days after the date of filing, unless the ten-day period is extended by the consent of the parties or by the court for good cause shown.
(4) If the owner demonstrates substantial hardship pursuant to subparagraph (1), the court shall order the property immediately released to the owner pending completion of proceedings by the government to obtain forfeiture of the property. The court may place such conditions on release of the property as it finds are necessary and appropriate to preserve the availability of the property or its equivalent for forfeiture.
(5) Subparagraph (1) shall not apply if the seized property is:
(a) contraband;
(b) currency or other monetary instrument or electronic funds, unless such property is used to pay for the costs of defending against the forfeiture proceeding or constitutes the assets of a legitimate business; or
(c) likely to be used to commit additional illegal acts if returned to the owner.
Section 8. Section 24-1-8 is enacted to read:
24-1-8. Criminal Procedures.
(1) In cases where an owner is criminally prosecuted for conduct giving rise toforfeiture, the prosecuting attorney may elect to forfeit the owner's interest in the property civilly or criminally, provided that no civil forfeiture judgment may be entered with respect to the property of a defendant who is acquitted of the offense on which the forfeiture claim is based.
(2) If the prosecuting attorney elects to criminally forfeit the owner's interest in the property, the information or indictment must state that the owner's interest in the specifically described property is subject to criminal forfeiture and the basis for the forfeiture.
(3) (a) Upon application of the prosecuting attorney, the court may enter restraining orders or injunctions, or take other reasonable action to preserve for forfeiture under this section any forfeitable property if, after notice to persons known, or discoverable after due diligence, to have an interest in the property and after affording them an opportunity for a hearing, the court determines that:
(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 property being sold, transferred, destroyed or removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property or prevent its sale, transfer, destruction or removal through the entry of the requested order outweighs the hardship against any party against whom the order is to be entered.
(b) A temporary restraining order may be entered ex parte upon application of the prosecuting attorney before or after an information or indictment has been filed with respect to the property, if the prosecuting attorney demonstrates that:
(i) there is probable cause to believe that the property with respect to which the order is sought would, in the event of a conviction, be subject to forfeiture under this section; and
(ii) provision of notice would jeopardize the availability of the property for forfeiture or would jeopardize an ongoing criminal investigation.
(c) The temporary order expires not more than 10 days after entry unless extended for good cause shown or unless the party against whom it is entered consents to an extension. An adversarial hearing concerning an order entered under this paragraph shall be held as soon as practicable and prior to the expiration of the temporary order.
(d) The court is not bound by the Utah Rules of Evidence regarding evidence it may receive and consider at any hearing under this paragraph.
(4) (a) Upon conviction by a jury of an owner for conduct giving rise to criminal forfeiture, the jury shall be instructed and asked to return a special verdict as to the extent of the property identified in the information or indictment, if any, that is forfeitable.
(b) Whether property is forfeitable shall be proven beyond a reasonable doubt.
(5)
Upon conviction of a person for violating any provision of state law subjecting
an owner's property to forfeiture and upon the jury's special verdict
that the property is forfeitable, the court shall enter a judgment and
order the property forfeited to the state treasurer upon the terms stated
by the court in its order. Following the entry of an order declaring property
forfeited, the court may, upon application of the prosecuting attorney,
enter 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 property ordered forfeited.
(6) (a) After property is ordered forfeited under this section, the
state treasurer shall direct the disposition of the property under Section
24-1-16. Any property right or interest not exercisable by or transferable
for value to the state expires and does not revert to the defendant. The
defendant or any person acting in concert with or on behalf of the defendant
is not eligible to purchase forfeited property at any sale held by the
state treasurer unless approved by the judge.
(b) The court may stay the sale or disposition of the property pending
the conclusion of any appeal of the criminal case giving rise to the forfeiture
if the defendant demonstrates that proceeding with the sale or disposition
of the property may result in irreparable injury, harm or loss to him.
(7)
Except under Subparagraphs (3) or (10), a party claiming an interest in
property subject to criminal forfeiture under this section:
(a) may not intervene in a trial or appeal of a criminal case involving
the forfeiture of property under this section; and
(b) may not commence an action at law or equity against the state or the
county concerning the validity of his alleged interests in the property
subsequent to the filing of an indictment or an information alleging that
the property is subject to forfeiture under this section.
(8) The district court of the state which has jurisdiction of a case under
this part may enter orders under this section without regard to the location
of any property which may be subject to forfeiture under this section,
or which has been ordered forfeited under this section.
(9) To facilitate the identification or location of property declared
forfeited and to facilitate the disposition of petitions for remission
or mitigation of forfeiture, after the entry of an order declaring property
forfeited to the state treasurer, the court, may upon application of the
prosecuting attorney, order that the testimony of any witness relating
to the property forfeited be taken by deposition, and that any book, paper,
document, record, recording, or other material not privileged shall be
produced as provided for depositions and discovery under the Utah Rules
of Civil Procedure.
(10) (a) Following the entry of an order of forfeiture under this section,
the prosecuting attorney shall publish notice of the order's intent to
dispose of the property as the court may direct. The prosecuting attorney
shall also provide direct written notice to any person known to have an
alleged interest in the property subject to the order of forfeiture.
(b) Any person, other than the defendant, asserting a legal interest in
property which has been ordered forfeited to the state treasurer under
this section may, within 30 days of the final publication of notice or
his receipt of written notice under subparagraph (a), whichever is earlier,
petition the court for a hearing to adjudicate the validity of his alleged
interest in the property. Any genuine issue of material fact, including
issues of standing, is triable to a jury upon demand of any party.
(c) The petition shall be in writing and signed by the petitioner under
penalty of perjury. It shall set forth the nature and extent of the petitioner's
right, title, or interest in the property, the time and circumstances
of the petitioner's acquisition of the right, title, or interest in the
property, and any additional facts supporting the petitioner's claim and
the relief sought.
(d) The trial or hearing on the petition shall be expedited to the extent
practicable. The court may consolidate a trial or hearing on the petition
and any petition filed by any other person under this section other than
the defendant. The court shall permit the parties to conduct pretrial
discovery pursuant to the Utah Rules of Civil Procedure.
(e) At the trial or hearing, the petitioner may testify and present evidence
and witnesses on his own behalf and cross-examine witnesses who appear
at the hearing. The prosecuting attorney may present evidence and witnesses
in rebuttal and in defense of the claim to the property and cross-examine
witnesses who appear. In addition to testimony and evidence presented
at the trial or hearing, the court may consider the relevant portion of
the record of the criminal case which resulted in the order of forfeiture.
Any trial or hearing shall be conducted pursuant to the Utah Rules of
Evidence.
(f) The court shall amend the order of forfeiture in accordance with its
determination, if after the trial or hearing, the court or jury determines
that the petitioner has established by a preponderance of the evidence
that:
(i) the petitioner has a legal right, title, or interest in the property,
and the right, title, or interest renders the order of forfeiture invalid
in whole or in part because 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 or conduct which gave rise to the forfeiture of the property under
this section; or
(ii) the petitioner acquired the right, title or interest in the property
in a bona fide transaction for value and, at the time of such acquisition,
the petitioner did not know that the property was subject to forfeiture.
(g) Following the court's disposition of all petitions filed under this
paragraph, or if no petitions are filed following the expiration of the
period provided in subparagraph (b) for the filing of petitions, the state
treasurer has clear title to property subject to the order of forfeiture
and may warrant good title to any subsequent purchaser or transferee.
Section 9. Section 24-1-9 is enacted to read:
24-1-9. Appointment of counsel for indigent claimants in civil and criminal forfeiture proceedings.
(1) The court may appoint counsel to represent indigent persons in civil and criminal forfeiture proceedings, including owners in criminal forfeiture proceedings who are not charged as criminal defendants. In determining whether to appoint counsel, the court shall take into account such factors as:
(a) the person's asserted interest in the property;
(b) the person's standing to contest the forfeiture; and
(c) whether the person's allegations appear to be in good faith or to be frivolous.
(2) The court shall set compensation for counsel in forfeiture proceedings at a level equivalent to compensation provided for counsel appointed in criminal cases.
Section 10. Section 24-1-10 is enacted to read:
Section 24-1-10. Pre-judgment and post-judgment interest. In any civil or criminal proceeding to forfeit currency or other negotiable instruments under this chapter, the court shall award a prevailing owner pre-judgment and post-judgment interest on the currency or negotiable instruments at the legal rate of interest established by Section 15-1-1 of the Utah Code.
Section 11. Section 24-1-11 is enacted to read:
Section 24-1-11. Attorneys' fees and costs. In any civil or criminal proceeding to forfeit seized property under this chapter, the court shall award a prevailing owner reasonable attorneys' fees and other costs of suit reasonably incurred by the owner. An owner who prevails only in part shall be entitled to recover reasonable attorneys' fees and reasonable costs of suit related to those issues on which he prevailed.
Section 12. Section 24-1-12 is enacted to read:
Section 24-1-12. Compensation for Damaged Property.
(1) In any civil or criminal proceeding, an owner shall have a private right of action against a seizing agency for any claim based upon the negligent destruction, loss, damage or other injury to seized property while in the possession or custody of a state agency, if the property was seized for the purpose of initiating forfeiture proceedings under this chapter.
(2) For the purposes of this section, "damage or other injury" does not include normal depreciation, deterioration or ordinary wear and tear.
Section 13. Section 24-1-13 is enacted to read:
Section 24-1-13. Limitation on Fees for Holding Seized Property. In any civil or criminal proceeding under this chapter in which a judgment is entered in favor of an owner, or where a forfeiture proceeding against an owner is voluntarily dismissed by the prosecuting attorney, the seizing agency shall be prohibited from charging that owner any fee for holding seized property.
Section 14. Section 24-1-14 shall be enacted to read:
Section 24-1-14. Proportionality. An owner's interest in property, excluding contraband, shall not be civilly or criminally forfeited under a provision of state law unless such forfeiture is substantially proportional to both the use of the property in committing or facilitating a violation of state law and the value of the property. Forfeiture of property used solely in a manner that is merely incidental and not instrumental to the commission or facilitation of a violation of law is not proportional, as a matter of law. The prosecuting attorney has the burden to demonstrate that any forfeiture is proportional to an alleged violation of state law. It is the province of the court, not the jury, to decide questions of proportionality.
Section 15. Section 24-1-15 is enacted to read:
Section 24-1-15. Transfer and Sharing Procedures.
(1) For purposes of Section 24-1-15, property is deemed to be "seized" whenever any agency takes possession of the property or exercises any degree of control over the property.
(2) (a) Transfer of Seized Property. Seizing agencies or prosecuting attorneys authorized to bring civil or criminal forfeiture proceedings under this chapter shall not directly or indirectly transfer seized property to any federal agency or any governmental entity not created under and subject to state law unless the court enters an order, upon petition of the prosecuting attorney, authorizing the property to be transferred. The court may not enter an order authorizing a transfer unless:
(i) the activity giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify such transfer;
(ii) the seized property may only be forfeited under federal law; or
(iii) pursuing forfeiture under state law would unduly burden prosecuting attorneys or state law enforcement agencies.
(b) Notwithstanding Subparagraph 2(a), the court may refuse to enter an order authorizing a transfer to the federal government if such transfer would circumvent the protections of the Utah Constitution or this chapter that would otherwise be available to the property owner.
(c) Prior to granting any order to transfer pursuant to subparagraph (2)(a), the court must give any owner the right to be heard with regard to the transfer.
(3) (a) Sharing of Seized Property. All property, money or other things of value received by an agency pursuant to federal law which authorizes the sharing or transfer of all or a portion of forfeited property or the proceeds of the sale of forfeited property to an agency shall be promptly transferred to the state treasurer and sold and deposited in the Uniform School Fund as provided under Section 24-1-16.
(b) Subject to subparagraph (3)(a), state agencies are encouraged to seek an equitable share of property forfeited by the federal government and to cooperate with federal law enforcement agencies in all cases in which such cooperation is in the interest of this state.
(4) Any agency that violates subparagraph (2) or (3) is civilly liable to the state for three times the amount of the forfeiture diverted and for costs of suit and reasonable attorneys' fees. Any damages awarded to the state shall be paid to the Uniform School Fund. Any agent, including state law enforcement officers who are detached to, deputized or commissioned by, or working in conjunction with a federal agency, who knowingly transfers or otherwise trades seized property in violation of subparagraph (2)(a) or who receives property, money or other things of value under subparagraph 3(a) and knowingly fails to transfer such property to the state treasurer is guilty of a Class B misdemeanor.
Section 16. Section 24-1-16 is enacted to read:
Section 24-1-16. Disposition of proceeds from criminal or civil forfeiture.
(1) When any property is civilly or criminally forfeited under this chapter by a finding of the court that no person is entitled to recover the property, the property shall be sold by the state treasurer, or destroyed if unfit for sale, and all revenue or proceeds therefrom shall be deposited in the Uniform School Fund after deducting the costs and expenses of:
(a) maintaining and storing the forfeited property;
(b) administering the forfeiture proceeding;
(c) appointed counsel under Section 24-1-9; and
(c) payment of money to compensate victims of conduct giving rise to or related to the forfeiture, or of conduct which is part of the same scheme that led to the forfeiture under this chapter.
(2) No property either seized or forfeited, whether civilly or criminally, nor any revenues or proceeds therefrom shall be paid to, appropriated for, or used for the benefit, directly or indirectly, of law enforcement officers, law enforcement agencies or agencies performing law enforcement functions.
(3) No property either seized or forfeited, whether civilly or criminally, nor any revenue or proceeds therefrom shall be, directly or indirectly, paid to, appropriated for, or used for the benefit of persons acting as:
(a) informants in any law enforcement function;
(b) witnesses in any administrative or judicial forum; or
(c) prosecutors in any state or federal actions.
(4) The state treasurer shall maintain an accounting of all properties which are either civilly or criminally forfeited and subsequently sold and all proceeds therefrom, and the state auditor shall perform an annual audit of such proceeds and communicate the results of the audit to the state treasurer and to the legislature. All accounting and audit records generated under this subparagraph shall be available and open to the public.
Section 17. Section 23-20-1 is amended to read:
23-20-1.
Enforcement authority of conservation officers -- Seizure and disposition
of property.
(1) Conservation officers of the division shall enforce the provisions
of this title with the same authority and following the same procedures
as other law enforcement officers.
(2) (a) Conservation officers shall seize any protected wildlife illegally
taken or held.
(b) (i) Upon determination of a defendant's guilt by the court, the protected
wildlife shall be confiscated by the court and sold or otherwise disposed
of by the division.
(ii) Proceeds of the sales shall be deposited in the Wildlife Resources
Account.
(iii) Migratory wildfowl may not be sold, but must be given to a charitable
institution or used for other charitable purposes.
(3) [(a)] Materials and devices used for the unlawful
taking or possessing of protected wildlife shall be seized, and upon a
finding by the court that they were used in the unlawful taking or possessing
of protected wildlife, the materials and devices shall be[:
(i) confiscated by the court;
(ii) conveyed to the division; and
(iii) upon the expiration of time for appeal, sold at a public auction
or otherwise disposed of by the division.
[(b) Any proceeds from the sale of the material or device shall
be deposited into the Wildlife Resources Account.]
[(4) (a) (i) As used in Subsection (4), "owner" means a person,
other than a person with a security interest, having a property interest
in or title to a vehicle and entitled to the use and possession of a vehicle.
(ii) "Owner" includes a renter or lessee of a vehicle.
(b) (i)]
(4) (a) Conservation officers may seize and impound a vehicle used
for the unlawful taking or possessing of protected wildlife for any of
the following purposes:
[(A)] (i) to provide for the safekeeping of the
vehicle, if the owner or operator is arrested;
[(B)] (ii) to search the vehicle as provided in
Subsection (2)(a) or as provided by a search warrant; or
[(C)] (iii) to inspect the vehicle for evidence
that protected wildlife was unlawfully taken or possessed.
[(ii)] (b) The division shall store any seized
vehicle in a public or private garage, state impound lot, or other secured
storage facility.
[(iii)] (5) A seized vehicle shall be released
to the owner no later than 30 days after the date the vehicle is seized,
unless the vehicle was used for the unlawful taking or possessing of wildlife
by a person who is charged with committing a felony under this title.
[(c) (i)] (6) (a) Upon a finding by a court that
the person who used the vehicle for the unlawful taking or possessing
of wildlife is guilty of a felony under this title, the vehicle may be[:
(A) confiscated by the court;
(B) conveyed to the division; and
(C) upon expiration of time for appeal, sold at a public auction or otherwise
disposed of by the division.
(ii) Any proceeds from the sale shall be deposited into the Wildlife Resources
Account.
(iii) If the vehicle is not confiscated by the court, it shall be released
to the owner.
[(d) (i)the person who]
used the vehicle for the unlawful taking or possessing of wildlife and
is found by a court to be guilty of a violation of this title.
[(ii)] (c) The owner of a seized vehicle is not
liable for the payment of any impound fee or, if the fees have been paid,
is entitled to reimbursement of the fees paid, if:
[(A)] (i) no charges are filed or all charges
are dropped which involve the use of the vehicle for the unlawful taking
or possessing of wildlife; [or]
[(B)] (ii) the person charged with using the vehicle
for the unlawful taking or possessing of wildlife is found by a court
to be not guilty[.]; or
(iii) the owner did not consent to a use of the vehicle which violates this chapter.
Section
18. Section 32A-13-103 is amended to read:
32A-13-103.
Searches, seizures, and forfeitures. [ Section
19. Section 41-6-13.7 is amended to read:
41-6-13.7.
Vehicle subject to forfeiture -- Seizure -- Procedure. Section
20. Section 53-10-303 is amended to read:
[
Section 21. Section 53A-16-101 is amended
to read:
53A-16-101.
Uniform School Fund - Sources enumerated. The Uniform School Fund
established by Utah Constitution, Article X, Section 5, consists of money
received in the state treasury from the following sources:
(1)
interest on the State School Fund;
(2)
escheats and forfeitures and proceeds from the sale or other disposition
of property that may accrue to the state by escheat or forfeiture [ (3)
unclaimed shares and proceeds from the sale or other disposition of those
shares and unclaimed dividends of any corporation incorporated under Utah
law;
(4)
all revenues derived from renewable resources on school and state lands,
other than those granted for specific purposes;
(5)
the proceeds derived from the leasing or renting of school lands and other
state lands, including all forfeitures, penalties, and grazing and other
fees received in connection with the leases and rentals;
(6)
money received from leases or rentals of land acquired by the state through
foreclosure of mortgages securing common school fund or through deeds
from mortgagors or owners of those lands; and
(7)
all other constitutional or legislative allocations to the fund, including
revenues received under Utah Constitution, Article XIII, Section 12(3),
from taxes on income or intangible property, except for those income tax
revenues appropriated to the state's higher education system.
Section 22. Section 58-37-13 is amended
to read:
58-37-13.
Property subject to forfeiture -- Seizure -- Procedure.
(1)
As used in this section:
(a)
"Claimant" means:
(i)
any owner as defined in this section; or
(ii)
any interest holder as defined in this section and any other person or
entity who asserts a claim to any property seized for forfeiture under
this section;
(b)
"Drug distributing paraphernalia" means any property used or designed
to be used in the illegal transportation, storage, shipping, or circulation
of a controlled substance. Property is considered "designed to be used"
for one or more of the above-listed purposes if the property has been
altered or modified to include a feature or device which would actually
promote or conceal a violation of this chapter.
(c)
"Drug manufacturing equipment or supplies" includes any illegally possessed
controlled substance precursor, or any chemical, laboratory equipment,
or laboratory supplies possessed with intent to engage in clandestine
laboratory operations as defined in Section 58-37d-3.
(d)
"Interest holder" means a secured party as defined in Section 70A-9-105(1)(m),
a mortgagee, lien creditor, or the beneficiary of a security interest
or encumbrance pertaining to an interest in property, whose interest would
be perfected against a good faith purchaser for value. A person who holds
property for the benefit of or as an agent or nominee for another, or
who is not in substantial compliance with any statute requiring an interest
in property to be recorded or reflected in public records in order to
perfect the interest against a good faith purchaser for value, is not
an interest holder.
(e)
"Owner" means an individual or entity who possesses a legal or equitable
ownership in real or personal property.
[ (g)
"Real Property" means:
(i)
land; and
(ii)
any building, fixture, improvement, appurtenance, structure, or other
development that is affixed permanently to land.
[ [ (2)
The following are subject to criminal or civil forfeiture pursuant
to the Utah Uniform Forfeiture Procedures Act, Title 24, Chapter 1, of
the Utah Code [ (a)
all controlled substances which have been manufactured, distributed, dispensed,
or acquired in violation of this chapter;
(b)
all raw materials, products, and equipment of any kind used, or intended
for use, in manufacturing, compounding, processing, delivering, importing,
or exporting any controlled substance in violation of this chapter;
(c)
all property used or intended for use as a container for property described
in Subsections (2)(a) and (2)(b);
(d)
all hypodermic needles, syringes, and other paraphernalia, not including
capsules used with health food supplements and herbs, used or intended
for use to administer controlled substances in violation of this chapter;
(e)
all conveyances including aircraft, vehicles, or vessels used or intended
[ (f)
all books, records, and research, including formulas, microfilm, tapes,
and data used or intended for use in violation of this chapter;
(g)
everything of value furnished or intended to be furnished in exchange
for a controlled substance in violation of this chapter, and all moneys,
negotiable instruments, and securities used or intended to be used to
facilitate any violation of this chapter. An interest in property may
not be civilly forfeited under this subsection unless it is proven by
[ (h)
all imitation controlled substances as defined in Section 58-37b-2, Imitation
Controlled Substances Act;
(i)
(i) all warehousing, housing, and storage facilities, or interest in real
property of any kind used, or intended for use, in producing, cultivating,
warehousing, storing, distributing [ (A)
the cumulative sales of controlled substances on the property within
a two-month period total or exceed $1,000; or
(B)
the street value of any controlled substances found on the premises at
any given time totals or exceeds $1,000, but only after the judge makes
a specific finding of proportionality under Section 24-1-14, and subject
to the condition that even if proportionality is found, the judge shall
have discretion not to forfeit real property which is a primary residence.
(ii)
A narcotics officer experienced in controlled substances law enforcement
may testify to establish the street value of the controlled substances
for purposes of this subsection;
(j)
any firearm, weapon, or ammunition carried or used [ (k)
all proceeds traceable to any violation of this chapter. [ (3)[ [ [ [( (a)
place the property under seal;
(b)
remove the property to a place designated by it or the warrant under which
it was seized; or
(c)
take custody of the property and remove it to an appropriate location
for disposition in accordance with law.
[( [( [ (7)
Forfeiture proceedings shall [ [
Section 23. Section 58-37-20 is amended
to read:
[ [ [ [ [ [ [
Section 24. Section 58-37a-6 is amended
to read:
58-37a-6.
Seizure -- Forfeiture -- Property rights. Drug paraphernalia is
subject to seizure and forfeiture in accordance with the procedures
and substantive protections of the Utah Uniform Forfeiture Procedures
Act, Title 24, of the Utah Code.
Section 25. Section 58-37c-15 is amended
to read:
58-37c-15.
Civil Forfeiture. The following shall be subject to forfeiture [ (1)
all listed controlled substance precursor chemicals regulated under the
provisions of this chapter which have been distributed, possessed, or
are intended to be distributed or otherwise transferred in violation of
any felony provision of this chapter; and
(2)
all property used by any person to facilitate, aid, or otherwise cause
the unlawful distribution, transfer, possession, or intent to distribute,
transfer, or possess a listed controlled substance precursor chemical
in violation of any felony provision of this chapter.
58-37d-7.
Seizure and forfeiture. Chemicals, equipment, supplies, vehicles,
aircraft, vessels, and personal and real property used in furtherance
of a clandestine laboratory operation are subject to seizure and forfeiture
under the procedures [
Section 27. Section 59-14-207 is amended
to read:
59-14-207.
Unstamped cigarettes -- Contraband goods -- Seizure -- Public auction
-- Proceeds of sale.
(1)
Any cigarettes found in this state which have been within the state for
72 hours or longer in the possession of any wholesaler, distributor, or
retailer or have been sold by that wholesaler, distributor, or retailer
not having affixed to the package or container the stamps required by
this chapter, are contraband goods and may be seized without a warrant
by the commission, its employees, or by any peace officer of the state
or its political subdivisions.
Section 28. Section 63-30-7 is amended to
read:
63-30-7.
Waiver of immunity for negligent damage, destruction or loss of seized
property.
Immunity
from suit of all governmental entities is waived as to any claim based
on thenegligent destruction, damage or loss of goods, merchandise or other
property while in the possession of any officer or agency of state or
local government, including law enforcement officers, if the property
was seized for the purpose of forfeiture under any provision of state
law.
Section 29. Section 76-3-501 is amended
to read:
76-3-501.
Vehicle subject to forfeiture -- Seizure -- Procedure.
Section 30. Section 76-10-1107 is amended
to read:
76-10-1107.
Seizure and sale of devices or equipment used for gambling.
(1)
Whenever any magistrate shall determine that any devices or equipment
is used or kept for the purpose of being used for gambling, the magistrate
may authorize the county commissioner of the county wherein the seizure
occurred, in conjunction with the sheriff, or if the seizure occurred
within the limits of an incorporated city or town, may authorize its governing
body, in conjunction with its chief law enforcement officer, to seize
the devices [
Section 31. Section 76-10-1108 is amended
to read:
76-10-1108.
Seizure and disposition of gambling debts or proceeds.
(1)
SSection 32. Section 76-10-1603.5 is
amended to read:
76-10-1603.5.
Violation a felony -- Costs -- Forfeiture -- Fines -- Divestiture --
Restrictions -- Dissolution or reorganization -- Restraining orders and
injunctions -- Hearings -- Special verdict -- Findings -- Judgment and
order of forfeiture -- Seizure of property -- Sale -- Proceeds -- Petitions
for remission or mitigation of forfeiture -- Hearing -- Disposition.
(1)
A person who violates any provision of Section 76-10-1603 is guilty of
a second degree felony. In addition to penalties prescribed by law, the
court may order the person found guilty of the felony to pay to the state,
if the attorney general brought the action, or to the county, if the county
attorney or district attorney brought the action, the costs of investigating
and prosecuting the offense and the costs of securing the forfeitures
provided for in this section. The person shall forfeit to the [ (a)
any interest acquired or maintained in violation of any provision of Section
76-10-1603; (8)
For purposes of this section, the "net proceeds" of an offense means property
acquired as a result of the violation minus the direct costs of acquiring
the property.
[
SSection 33. Section 76-10-1908 is amended
to read:
76-10-1908.Forfeiture
-- Grounds -- Procedure -- Disposition of property forfeited. (b)
For purposes of this section, the "net proceeds" of an offense means property
acquired as a result of the violation minus the direct costs of acquiring
the property. [ Section
34. Severability.
If
any provision of this Act, or the application of any provision to any
person or circumstance, is held invalid, the remainder of this Act shall
not be affected thereby but shall be given effect without the invalid
provision.
Section
35. Effective Date.
If
approved by the voters in this state, this initiative shall take effect
on March 20, 2001.
(1) The following are subject to forfeiture [and no property right
exists in them] pursuant to the procedures and substantive
protections established in the Utah Uniform Forfeiture Procedures Act,
Title 24, Chapter 1, of the Utah Code:
(a) all alcoholic products possessed, used, offered for sale, sold, given,
furnished, supplied, received, purchased, stored, warehoused, manufactured,
adulterated, shipped, carried, transported, or distributed in violation
of this title or commission rules;
(b) all packages or property used or intended for use as a container for
an alcoholic product in violation of this title or commission rules;
(c) all raw materials, products, and equipment used, or intended for use,
in manufacturing, processing, adulterating, delivering, importing, or
exporting any alcoholic product in violation of this title or commission
rules;
(d) all implements, furniture, fixtures, or other personal property used
or kept for any violation of this title or commission rules;
(e) all conveyances including aircraft, vehicles, or vessels used or intended
for use, to transport or in any manner facilitate the transportation,
sale, receipt, possession, or concealment of property described in Subsection
(a), (b), (c), or (d)[, except that:
(i) a conveyance used by any person as a common carrier in the
transaction of business as a common carrier may not be forfeited under
this section unless it appears that the owner or other person in charge
of the conveyance was a consenting party or privy to had knowledge of
a violation of this title or commission rules;
(ii) a conveyance may not be forfeited under this section by reason
of any act or omission established by the owner to have been committed
or omitted without the owner's knowledge or consent; and
(iii) any forfeiture of a conveyance subject to a bona fide security
interest shall be subject to the interest of the secured party upon the
party's showing that the party could not have known did not know in the
exercise of reasonable diligence that a violation would take place in
the use of the conveyance]; and
(f) all books, records, receipts, ledgers, or other documents used or
intended for use in violation of this title or commission rules.
(2) Any of the property subject to forfeiture under this title may be
seized by any peace officer of this state or any other person authorized
by law upon process issued by any court having jurisdiction over the property
in accordance with the procedures provided in Title 77, Chapter 23, Part
2, Search Warrants. However, seizure without process may be made when:
(a) the seizure is incident to an arrest or search under a search warrant
or an inspection under an administrative inspection warrant;
(b) the property subject to seizure has been the subject of a prior judgment
in favor of the state in a criminal injunction or forfeiture proceeding
under this title;
(c) the peace officer or other person authorized by law has probable cause
to believe that the property is directly or indirectly dangerous to health
or safety; or
(d) the peace officer or other person authorized by law has probable cause
to believe that the property is being or has been used, intended to be
used, held, or kept in violation of this title or commission rules.
(3) If the property is seized pursuant to a search or administrative warrant,
the peace officer or other person authorized by law shall make a proper
receipt, return, and inventory and ensure the safekeeping of the property
as required by Sections 77-23-206 through 77-23-208, Utah Code of Criminal
Procedure. If the magistrate who issued the warrant is a justice court
judge, upon the filing of the return the jurisdiction of the justice court
shall cease and the magistrate shall certify the record and all files
without delay to the district court of the county in which the property
was located. From the time of this filing, the district court has jurisdiction
of the case.
(4) In the event of seizure of property without process, the peace officer
or other person authorized by law shall make a return of his acts without
delay directly to the district court of the county in which the property
was located, and the district court shall have jurisdiction of the case.
The return shall describe all property seized, the place where it was
seized, and any persons in apparent possession of the property. The officer
or other person shall also promptly deliver a written inventory of anything
seized to any person in apparent authority at the premises where the seizure
was made, or post it in a conspicuous place at the premises. The inventory
shall state the place where the property is being held.
[(5) Any peace officer or other person authorized by law who seizes
any property subject to seizure under this title shall notify the agency
responsible for prosecuting the action without delay and shall file a
report with the department detailing information on the property seized,
the location of the seizure, and any persons arrested.]
[(6)] (5) Property taken or detained under this
section is not repleviable but is considered in custody of the law enforcement
agency making the seizure subject only to the orders of the court or the
official having jurisdiction. When property is seized under this title,
the appropriate person or agency may:
(a) place the property under seal;
(b) remove the property to a place designated by it or the warrant under
which it was seized; or
(c) take custody of the property and remove it to an appropriate location
for disposition in accordance with law.
[(7)] (6) When any property is subject to forfeiture
under this section, [a determination for forfeiture to
the state shall be made in the following manner:] proceedings
shall be instituted in accordance with the procedures and substantive
protections of the Utah Uniform Forfeiture Procedures Act, Title 24, Chapter
1, of the Utah Code.
[(a) A complaint verified on oath or affirmation shall be prepared
by the county attorney or, if within a prosecution district, the district
attorney where the property was seized or is to be seized and shall be
filed in the district court. The complaint shall describe with reasonable
particularity:
(i) the property that is the subject of the proceeding;
(ii) the date and place of seizure, if known; and
(iii) the allegations that constitute a basis for forfeiture.
(b) Upon filing the complaint, the clerk of the district court shall issue
a warrant for seizure of the property that is the subject matter of the
action without delay and deliver it to the sheriff for service, unless
the property has previously been seized.
(c) Notice of the seizure and intended forfeiture shall be filed with
the county clerk and served together with a copy of the complaint, at
the place where the property was or is about to be seized by conspicuous
posting at the premises, and served upon all persons known to the county
attorney or, if within a prosecution district, the district attorney to
have a claim in the property by one of the following methods:
(i) upon each claimant whose name and address is known at the last-known
address of the claimant; or
(ii) upon each owner whose right, title, or interest is of record in the
Division of Motor Vehicles, by mailing a copy of the notice and complaint
by registered mail to the address given upon the records of the Division
of Motor Vehicles; and
(iii) upon all other claimants whose addresses are unknown, but who are
believed to have an interest in the property, by one publication in a
newspaper of general circulation in the county where the seizure was made.
(d) Except as provided in Subsection (e), any claimant or interested party
shall file with the court a verified answer to the complaint within 20
days after service has been obtained.
(e) When property is seized under this title, any interested person or
claimant of the property, before being served with a complaint under this
section, may file a petition in the district court for release of the
person's interest in the property. The petition shall specify the claimant's
interest in the property and the claimant's right to have it released.
A copy shall be served upon the county attorney or, if within a prosecution
district, a district attorney in the county of the seizure, who shall
answer the petition within 20 days. Any person petitioning is not required
to answer a complaint of forfeiture. If no complaint or petition is filed
within 60 days after seizure of the property or after the final disposition
of any criminal proceedings involving the property, whichever occurs last,
the property shall automatically escheat to the state and shall be delivered
to the custody of the appropriate agency for disposition as provided in
Subsection (8).
(f) After 20 days following service of a complaint or petition for release,
the court shall examine the record, and if no answer is on file, the court
shall allow the complainant or petitioner an opportunity to present evidence
in support of the claim and order forfeiture or release of the property
as the court may determine. If the county attorney or district attorney
has not filed an answer to a petition for release and the court determines
from the evidence that the petitioner is not entitled to recovery of the
property, it shall enter an order directing the county attorney or district
attorney to answer the petition within ten days. If no answer is filed
within that period, the court shall order the release of the property
to the petitioner entitled to receive it.
(g) When an answer to a complaint or petition appears of record at the
end of 20 days, the court shall set the matter for hearing within 20 days.
At the hearing all interested parties may present evidence of their right
of release of the property following the state's evidence for forfeiture.
The court shall determine by a preponderance of the evidence the issues
in the case and order forfeiture or release of the property as it determines
proper.
(h) Proceedings under this section are independent of any other proceedings,
whether civil or criminal, under this title or the laws of this state.
(i) When the court determines that claimants have no right in the property,
in whole or in part, it shall declare the property forfeited and direct
it delivered to the custody of the department if the property is an alcoholic
product or a package used as a container for an alcoholic product, or
to the Department of Administrative Services in all other cases. The appropriate
department shall dispose of the property as provided in Subsection (8).
(j) When the court determines that property, in whole or in part, is subject
to forfeiture, it shall order release of the property to the proper claimant.
If the court determines that the property is subject to forfeiture and
release in part, it shall order partial release and partial forfeiture.
When the property cannot be properly divided for partial forfeiture and
release, the court shall order it sold and the proceeds distributed as
follows:
(i) first, proportionally among the legitimate claimants;
(ii) second, to defray the costs of the action, including seizure, storage
of the property, and costs of sale; and
(iii) third, to the state treasurer for the General Fund.
(k) In any proceeding under this section where forfeiture is declared,
in whole or in part, the court shall assess all costs of the forfeiture
proceeding, including seizure and storage of the property, against the
individual or individuals whose conduct was the basis of the forfeiture,
and may assess costs against any other claimant or claimants to the property
as the court considers equitable.
(l) Any party to a forfeiture proceeding, including the state, has the
right of appeal from any judgment of forfeiture or release as to the whole
or any part of the property in issue in the forfeiture proceedings.
[(8)] (7) When any property is ordered
forfeited under [this title] the Utah Uniform Forfeiture
Procedures Act, Title 24, Chapter 1, of the Utah Code by a finding
of the court that no person is entitled to recover the property:
(a) the property, if an alcoholic product or a package used as a container
for an alcoholic product, shall be [deposited in the custody of
the department and disposition of the property] disposed of
as follows:
(i) If the alcoholic product is unadulterated, pure, and free from crude,
unrectified, or impure form of ethylic alcohol, or any other deleterious
substance or liquid, and is otherwise in saleable condition, [the
department may sell the alcoholic product and any package or container
used to contain the alcoholic product, as appropriate, and forward the
proceeds to the state treasurer for deposit in the General Fund. The department
shall first cover its own costs and then reimburse the appropriate agency
or agencies for costs expended in seizing, storing, and obtaining forfeiture
of the property] sold in accordance with Section 24-1-16 of
the Utah Uniform Forfeiture Procedures Act.
(ii) If the alcoholic product is impure, adulterated, or otherwise unfit
for sale, it and its package or container shall be destroyed by the department
under competent supervision.
(b)
The property, if other than an alcoholic product, package, or container
used to contain the alcoholic product shall be deposited in the custody
of the Department of Administrative Services and disposition of the property
shall be as follows:
(i) Any state agency, bureau, county, or municipality that demonstrates
a need for specific property or classes of property subject to forfeiture
may make application for the property to the executive director of the
Department of Administrative Services, and shall clearly state in the
application its need for the property and the use for which the property
is intended.
(ii) The executive director of the Department of Administrative Services
shall review all applications for property submitted, make a determination
based on necessity and advisability as to final disposition, and notify
the designated applicant who may obtain the property upon payment of all
costs to that department. That department shall reimburse the appropriate
agency or agencies for costs expended in seizing, storing, and obtaining
forfeiture of the property.
(iii) If no disposition is made upon an application, the executive director
of the Department of Administrative Services shall dispose of the property
by public bidding, or if considered appropriate by the executive director,
by destruction. Proof of destruction shall be upon oath of two officers
or employees of the Department of Administrative Services verified by
the executive director of that department or the executive director's
designee.
(1) Any conveyance, including vehicles, aircraft, water craft, or other
vessel used in violation of Section 41-6-13.5 shall be subject to forfeiture
[and no property right exists in it,] pursuant to
the procedures and substantive protections established in the Utah Uniform
Forfeiture Procedures Act, Title 24, Chapter 1, Utah Code. [,except
that:
(a) a conveyance used by any person as a common carrier in the transaction
of business as a common carrier may not be forfeited under this section
unless it appears that the owner or other person in charge of the conveyance
was a consenting party or privy to violation of this chapter;
(b) a conveyance may not be forfeited under this section by reason of
any act or omission committed or omitted without the owner's knowledge
or consent; and
(c) any forfeiture of a conveyance subject to a bona fide security interest
is subject to the interest of a secured party who could not have known
in the exercise of reasonable diligence that a violation would or did
take place in the use of the conveyance.
(2) Property subject to forfeiture under this section may be seized by
any peace officer of this state upon notice and service of process issued
by any court having jurisdiction over the property. However, seizure without
notice and service of process may be made when:
(a) the seizure is incident to an arrest under a search warrant or an
inspection under an administrative inspection warrant;
(b) the property subject to seizure has been the subject of a prior judgment
in favor of the state in a criminal injunction or forfeiture proceeding
under this section; or
(c) the peace officer has probable cause to believe that the property
has been used in violation of the provisions of Section 41-6-13.5.
[(3) In the event of seizure under Subsection (2), proceedings
under Subsection (6) shall be instituted without unreasonable delay.]
[(4)]
(3) Property taken or detained under this section is not repleviable
but is in custody of the law enforcement agency making the seizure, subject
only to the orders and decrees of the court or the official having jurisdiction.
When property is seized under this section, the appropriate person or
agency may:
(a) place the property under seal;
(b) remove the property to a place designated by the warrant under which
it was seized; or
(c) take custody of the property and remove it to an appropriate location
for disposition in accordance with law.
[(5) When any property is forfeited under this section after a
finding of the court that no person is entitled to recover the property,
it shall be deposited in the custody of the Division of Surplus Property.
The director of the Division of Surplus Property shall dispose of the
property by public bidding. The net proceeds of such sale shall be paid
to the Department of Public Safety Support Fund for use in training peace
officers in pursuit driving and providing a public awareness program regarding
police pursuits. Property forfeited under this section may not be applied
by the court to costs or fines assessed against any defendant in the case.]
[(6) When any property is subject to forfeiture under this part, a determination
for forfeiture to the state shall be made as follows:
(a) A complaint verified on oath or affirmation shall be prepared by the
county attorney where the property was seized or is to be seized. The
complaint shall be filed in the district court. The complaint shall describe
with reasonable particularity:
(i) the property which is the subject matter of the proceeding;
(ii) the date and place of seizure, if known; and
(iii) the allegations which constitute a basis for forfeiture.
(b) Upon filing the complaint, the clerk of the court shall forthwith
issue a warrant for seizure of the property which is the subject matter
of the action and deliver it to the sheriff for service, unless the property
has previously been seized without a warrant under Subsection 41-6-13.7(2).
(c) Notice of the seizure and intended forfeiture shall be filed with
the court clerk and served together with a copy of the complaint, upon
all persons known to the county attorney to have a claim in the property
by one of the following methods:
(i) upon each claimant whose name and address is known, at the last known
address of the claimant, or upon each owner whose right, title, or interest
is of record in the Division of Motor Vehicles, by mailing a copy of the
notice and complaint by certified mail to the address given upon the records
of the division, which service is considered complete even though the
mail is refused or cannot be forwarded; and
(ii) upon all other claimants whose addresses are unknown, but who are
believed to have an interest in the property, by one publication in a
newspaper of general circulation in the county where the seizure was made.
(d) Any claimant or interested party shall file with the court a verified
answer to the complaint within 20 days after service has been obtained.
(e) When property is seized under this chapter, any interested person
or claimant of the property, prior to being served with a complaint under
this section, may file a petition in the court having jurisdiction for
release of his interest in the property. The petition shall specify the
claimant's interest in the property and his right to have it released.
A copy shall be served upon the county attorney in the county of the seizure,
who shall answer the petition within 20 days. A petitioner need not answer
a complaint of forfeiture.
(f) After 20 days following service of a complaint or petition for release,
the court shall examine the record and if no answer is on file, the court
shall allow the complainant or petitioner an opportunity to present evidence
in support of his claim and order forfeiture or release of the property
as the court determines. If the county attorney has not filed an answer
to a petition for release and the court determines from the evidence that
the petitioner is not entitled to recovery of the property, it shall enter
an order directing the county attorney to answer the petition within ten
days. If no answer is filed within that period, the court shall order
the release of the property to the petitioner entitled to receive it.
(g) When an answer to a complaint or petition appears of record at the
end of 20 days, the court shall set the matter for hearing within 20 days.
At this hearing, all interested parties may present evidence of their
rights of release of the property following the state's evidence for forfeiture.
The court shall determine by a preponderance of the evidence the issues
in the case and order forfeiture or release of the property as it determines.
(h) Proceedings of this section are independent of any other proceedings,
whether civil or criminal, under this chapter or the laws of this state.
(i) When the court determines that claimants have no right in the property
in whole or in part, it shall declare the property to be forfeited and
direct it to be delivered to the custody of the Division of Finance. The
division shall dispose of the property under Subsection
(5).
(j) When the court determines that property, in whole or in part,
is not subject to forfeiture, it shall order release of the property to
the proper claimant. If the court determines that the property is subject
to forfeiture and release in part, it shall order partial release and
partial forfeiture. When the property cannot be divided for partial forfeiture
and release, the court shall order it sold and the proceeds distributed:
(i) first, proportionally among the legitimate claimants;
(ii) second, to defray the costs of the action, including seizure, storage
of the property, legal costs of filing and pursuing the forfeiture, and
costs of sale; and
(iii) third, to the Division of Finance for the General Fund.
(k) In a proceeding under this section where forfeiture is declared, in
whole or in part, the court shall assess all costs of the forfeiture proceeding,
including seizure and storage of the property, against the individual
or individuals whose conduct was the basis of the forfeiture, and may
assess costs against any other claimant or claimants to the property as
appropriate.
[(7) For purposes of this section, it shall be a rebuttable presumption
that the owner of a vehicle was the operator of the vehicle at the time
of the offense.53-10-303.Financial
Fraud and Money Laundering Forfeiture Account created --Revenue sources
-- Use of account designated.]
[(1) (a) There is created in the General Fund a restricted account called
the "Financial Fraud and Money Laundering Forfeiture Account."
(b) All monies forfeited or seized to the state through the state or federal
court process as aresult of investigations regarding
suspicious cash transactions, fraud, and money laundering shall
be deposited into this account.]
[(2) The Department of Public Safety may expend amounts as appropriated
by theLegislature from this account to aid in enforcement efforts to combat
financial criminal activity.
[(3) That portion of funds forfeited or seized that are required to be
disbursed to othergovernmental entities under existing contractual agreements
are exempt from this section.
[(4) The Department of Public Safety as part of the annual budget hearings
shall providethe Executive Offices, Criminal Justice, and Legislature
Appropriations Subcommittee with acomplete accounting of expenditures
and revenues from the funds under this section.
[(5) The Legislature may annually provide, in the Appropriations Act,
legislativedirection for anticipated expenditures of the monies received
under this section.except
under Section 58-37-13, regarding controlled substances, and Section 41-6-13.7,
regarding vehicles involved in police pursuits];
[(a)
"Complaint" means a verified civil in rem complaint seeking forfeiture
or any criminal information or indictment which contains
or is amended to include a demand for forfeiture of a defendant's
in personam interest in any property which is subject to forfeiture.]
(e)]
(f) "Proceeds" means property acquired directly or indirectly from,
produced through, realized through, or caused by an act or omission and
includes any property of any kind without reduction for expenses incurred
in the acquisition, maintenance, or production of that property, or any
other purpose.
(f)]
(h) "Resolution of criminal charges" occurs at the time a claimant
who is also charged with violations under Title 58, Chapters 37, 37a,
37b, 37c, or 37d enters a plea, upon return of a jury verdict or court
ruling in a criminal trial, or upon dismissal of the criminal charge.
(h)]
(i) "Violation of this chapter" means any conduct prohibited by
Title 58, Chapters 37, 37a, 37b, 37c, or 37d or any conduct occurring
outside the state which would be a violation of the laws of the place
where the conduct occurred and which would be a violation of Title 58,
Chapters 37, 37a, 37b, 37c, or 37d if the conduct had occurred in this
state.
and no property right exists in them]:
for use] to be used to [transport, or
in any manner] facilitate the [transportation, sale,
receipt, simple possession, or concealment of ] distribution
or possession with intent to distribute the property described in
Subsections (2)(a) and (2)(b)[, except that:
(i)
a conveyance used by any person as a common carrier in the transaction
of business as a common carrier may not be forfeited under this section
unless the owner or other person in charge of the conveyance was a consenting
party or knew or had reason to know of the violation of this chapter;
(ii)
a conveyance may not be forfeited under this section by reason of any
act or omission committed or omitted without the owner's knowledge or
consent; and
(iii)
any forfeiture of a conveyance is subject to the claim of an interest
holder who did not know or have reason to know after the exercise of reasonable
that a violation would or did take place in the use of the conveyance];
a preponderance of the] clear and convincing
evidence that the owner or any interest holder knew of [,
had reason to know of, or consented to] the conduct which made
the property subject to forfeiture. The burden of presenting this evidence
is [shall be] on [upon]
the state;
protecting,]
or manufacturing any controlled substances in violation of this chapter
but only if: [, except that:
(i)
any forfeiture of a housing, warehousing or storage facility or interest
in real property is subject to the claim of an interest holder who did
not know or have reason to know after the exercise of reasonable diligence,
that a violation would take place on the property; and
(ii)
an interest in property may not be forfeited under this subsection if
the owner or any interest holder did not know or have reason to know of
the conduct which made the property subject to forfeiture, or did not
willingly consent to the conduct;
(iii)
unless the premises are used in producing, cultivating, or manufacturing
controlled substances, a housing, warehousing, or storage facility or
interest in real property may not be forfeited under this subsection unless]
during or
in relation to] in connection with a violation of this
chapter or any firearm, weapon, or ammunition kept or located within the
proximity of controlled substances [or other property subject
to forfeiture under this section];
There
is a rebuttable presumption that all money, coins, and currency found
in proximity to forfeitable controlled substances, drug manufacturing
equipment or supplies, drug distributing paraphernalia, or forfeitable
records of importation, manufacture, or distribution of controlled substances
are proceeds traceable to a violation of this chapter. The burden of proof
is upon the claimant of the property to rebut this presumption.]
(a)]
Property subject to forfeiture under this chapter may be seized by any
peace officer of this state upon process issued by any court having jurisdiction
over the property. However, seizure without process may be made when:
[(i)]
(a) the seizure is incident to an arrest or search under a search
warrant or an inspection under an administrative inspection warrant;
(ii)
(b) the property subject to seizure has been the subject of a prior
judgment in favor of the state in a criminal injunction or forfeiture
proceeding under this chapter;
(iii)
(c) the peace officer has probable cause to believe that the property
is directly or indirectly dangerous to health or safety; or
(iv)]
(d) the peace officer has probable cause to believe that the property
has been used or intended to be used in violation of this chapter and
has probable cause to believe the property will be damaged, intentionally
diminished in value, destroyed, concealed, or removed from the state.
[(b)
Upon the filing of a complaint, the court shall immediately issue to the
seizing agency a warrant for seizure of any property subject to forfeiture
which had been seized without a warrant in a manner described in this
subsection.]
(4)
In the event of seizure under Subsection (3), forfeiture proceedings under
Subsection (9) shall be instituted within 90 days of the seizure. The
time period may by extended by the court having jurisdiction over the
property upon notice to all claimants and interest holders and for good
cause shown.]
5)]
(4) Property taken or detained under this section is not repleviable
but is in custody of the law enforcement agency making the seizure, subject
only to the orders and decrees of the court or the official having jurisdiction.
When property is seized under this chapter, the appropriate person or
agency may:
6)]
(5) All substances listed in Schedule I that are possessed, transferred,
distributed, or offered for distribution in violation of this chapter
are contraband and no property right shall exist in them. All substances
listed in Schedule I which are seized or come into the possession of the
state may be retained for any evidentiary or investigative purpose, including
sampling or other preservation prior to disposal or destruction by the
state.
7)]
(6) All marijuana or any species of plants from which controlled
substances in Schedules I and II are derived which have been planted or
cultivated in violation of this chapter, or of which the owners or cultivators
are unknown, or are wild growths, may be seized and retained for any evidentiary
or investigative purpose, including sampling or other preservation prior
to disposal or destruction by the state. Failure, upon demand by the department
or its authorized agent, of any person in occupancy or in control of land
or premises upon which species of plants are growing or being stored,
to produce an appropriate license or proof that he is the holder of a
license, is authority for the seizure and forfeiture of the plants.
(8)
When any property is forfeited under this chapter by a finding of the
court that no person is entitled to recover the property, it shall be
deposited in the custody of the Division of Finance. Disposition of all
property is as follows:
(a)
The state may include in its complaint seeking forfeiture, a request that
the seizing agency be awarded the property. Upon a finding that the seizing
agency is able to use the forfeited property in the enforcement of controlled
substances laws, the court having jurisdiction over the case shall award
the property to the seizing agency. Each agency shall use the forfeited
property for controlled substance law enforcement purposes only. Forfeited
property or proceeds from the sale of forfeited property may not be used
to pay any cash incentive, award, or bonus to any peace officer or individual
acting as an agent for the agency, nor may it be used to supplant any
ordinary operating expense of the agency. The seizing agency shall pay
to the prosecuting agency the legal costs incurred in filing and pursuing
the forfeiture action. Property forfeited under this section may not be
applied by the court to costs or fines assessed against any defendant
in the case.
(b)
The seizing agency, or if it makes no application, any state agency, bureau,
county, or municipality, which demonstrates a need for specific property
or classes of property subject to forfeiture shall be given the property
for use in enforcement of controlled substances laws upon the payment
of costs to the county attorney or, if within a prosecution district,
the district attorney for legal costs for filing and pursuing the forfeiture
and upon application for the property to the director of the Division
of Finance. The application shall clearly set forth the need for the property
and the use to which the property will be put.
(c)
The director of the Division of Finance shall review all applications
for property submitted under Subsection (8)(b) and, if the seizing agency
makes no application, make a determination based on necessity and advisability
as to final disposition and shall notify the designated applicant or seizing
agency, where no application is made, who may obtain the property upon
payment of all costs to the appropriate department. The Division of Finance
shall in turn reimburse the prosecuting agency or agencies for costs of
filing and pursuing the forfeiture action, not to exceed the amount of
the net proceeds received for the sale of the property. Any proceeds remaining
after payment shall be returned to the seizing agency or agencies.
(d)
If no disposition is made upon an application under Subsection (8)(a)
or (b), the director of the Division of Finance shall
dispose of the property by publicbidding or as considered appropriate,
by destruction. Proof of destruction shall be upon oath
of two officers or employees of the department having charge of the
property, and verified by the director of the department or his
designated agent.]
be commenced as follows:]
conform with the procedures and substantive protections of the Utah
Uniform Forfeiture Procedures Act, Title 24, Chapter 1, of the Utah Code.
(a)
For actions brought under Subsections (2)(a) through (2)(j), a complaint
shall be prepared by the county attorney, or if within a prosecution district,
the district attorney, or the attorney general, and filed in a court of
record where the property was seized or is to be seized. In cases in which
the claimant of the property is also charged as a criminal defendant,
the complaint shall be filed in the county where the criminal charges
arose, regardless of the location of the property. The complaint shall
include:
(i)
a description of the property which is subject to forfeiture;
(ii)
the date and place of seizure, if known; and
(iii)
the allegations of conduct which gives rise to forfeiture.
(b)
In cases where a claimant is also charged as a criminal defendant, the
forfeiture shall proceed as part of the criminal prosecution as an in
personam action against the defendant's interest in the property subject
to forfeiture. A defendant need not file a written answer to the complaint,
but may acknowledge or deny interest in the property at the time of first
appearance on the criminal charges. If a criminal information or indictment
is amended to include a demand for forfeiture, the defendant may respond
to the demand at the time of the amendment.
(i)
Unless motion for disposition is made by the defendant, the determination
of forfeiture shall be stayed until resolution of the criminal charges.
Hearing on the forfeiture shall be before the court without a jury. The
court may consider any evidence presented in the criminal case, and receive
any other evidence offered by the state or the defendant. The court shall
determine by a preponderance of the evidence the issues in the case and
order forfeiture or release of the property as it determines.
(ii)
A defendant may move the court to transfer the forfeiture action, to stay
all action, including discovery, in the forfeiture, or for hearing on
the forfeiture any time prior to trial of the criminal charges. Either
party may move the court to enter a finding of forfeiture as to defendant's
interest in part or all of the property, either by default or by stipulation.
Upon entry of a finding, the court shall stay the entry of judgment until
resolution of the criminal charges. Any finding of forfeiture entered
by the court prior to resolution of the criminal charges may not constitute
a separate judgment, and any motion for disposition, stay, severance,
or transfer of the forfeiture action may not create a separate proceeding.
Upon the granting of a motion by the defendant for disposition, stay,
severance, or transfer of the forfeiture action, the defendant shall be
considered to have waived any claim that the defendant has been twice
put in jeopardy for the same offense.
(iii)
Any other person claiming an interest in property subject to forfeiture
under this subsection may not intervene in a trial or appeal of a complaint
filed under this subsection. Following the entry of an in personam forfeiture
order, or upon the filing of a petition for release under Subsection (e),
the county attorney, district attorney, or attorney general may proceed
with a separate in rem action to resolve any other claims upon the property
subject to forfeiture.
(c)
A complaint seeking forfeiture under Subsection (2)(k) shall be prepared
by the county attorney, or if within a prosecution district, the district
attorney, or by the attorney general, either in personam as part of a
criminal prosecution, or in a separate civil in rem action against the
property alleged to be proceeds, and filed in the county where the property
is seized or encumbered, if the proceeds are located outside the state.
A finding that property is the proceeds of a violation of this chapter
does not require proof that the property is the proceeds of any particular
exchange or transaction. Proof that property is proceeds may be shown
by evidence which establishes all of the following by a preponderance
of the evidence:
(i)
that the person has engaged in conduct in violation of this chapter;
(ii)
that the property was acquired by the person during that period when
the conduct in violation of this chapter occurred or within a
reasonable time after that period; and
(iii)
that there was no likely source for the property other than conduct in
violation of the chapter.
(d)
Notice of the seizure and intended forfeiture shall be filed with the
clerk of the court, and served upon all persons known to the county attorney
or district attorney to have a claim in the property by:
(i)
personal service upon a claimant who is charged in a criminal information
or indictment; and
(ii)
certified mail to each claimant whose name and address is known or to
each owner whose right, title, or interest is of record
in the Division of Motor Vehiclesto the address given upon the records
of the division, which service is consideredcomplete even though the mail
is refused or cannot be forwarded. The countyattorney, district attorney,
or attorney general shall make one publication in anewspaper of general
circulation in the county where the seizure was made for all
other claimants whose addresses are unknown, but who are believed
to have aninterest in the property.
(e)
Except under Subsection (9)(a) in personam actions, any claimant or interest
holder shall file with the court a verified answer to the complaint within
20 days after service. When property is seized under this chapter, any
interest holder or claimant of the property, prior to being served with
a complaint under this section, may file a petition in the court having
jurisdiction for release of his interest in the property. The petition
shall specify the claimant's interest in the property and his right to
have it released. A copy shall be served upon the county attorney or,
if within a prosecution district, the district attorney in the county
of the seizure, who shall answer the petition within 20 days. A petitioner
need not answer a complaint of forfeiture.
(f)
For civil actions in rem, after 20 days following service of a complaint
or petition for release, the court shall examine the record and if no
answer is on file, the court shall allow the complainant or petitioner
an opportunity to present evidence in support of his claim and order forfeiture
or release of the property as the court determines. If the county attorney
or district attorney has not filed an answer to a petition for release
and the court determines from the evidence that the petitioner is not
entitled to recovery of the property, it shall enter an order directing
the county attorney or district attorney to answer the petition within
ten days. If no answer is filed within that period, the court shall order
the release of the property to the petitioner entitled to receive it.
(g)
When an answer to a complaint or petition appears of record at the end
of 20 days, the court shall set the matter for hearing. At this hearing
all interested parties may present evidence of their rights of release
of the property following the state's evidence for forfeiture. The court
shall determine by a preponderance of the evidence the issues in the case
and order forfeiture or release of the property as it determines.
(h)
When the court determines that claimants have no right in the property
in whole or in part, it shall declare the property to be forfeited.
(i)
When the court determines that property, in whole or in part, is not subject
to forfeiture, it shall order release of the property to the proper claimant.
If the court determines that the property is subject to forfeiture and
release in part, it shall order partial release and partial forfeiture.
When the property cannot be divided for partial forfeiture and release,
the court shall order it sold and the proceeds distributed:
(i)
first, proportionally among the legitimate claimants;
(ii)
second, to defray the costs of the action, including seizure, storage
of the property, legal costs of filing and pursuing the
forfeiture, and costs of sale; and
(iii)
third, to the Division of Finance for the General Fund.
(j)
In a proceeding under this section where forfeiture is declared, in whole
or in part, the court shall assess all costs of the forfeiture proceeding,
including seizure and storage of the property, against the individual
or individuals whose conduct was the basis of the forfeiture, and may
assess costs against any other claimant or claimants to the property as
appropriate.]
58-37-20.
Drug Forfeiture Account created - Revenue sources - Use of account designated.]
(1)
(a) There is created in the General Fund a restricted account called the
"Drug Forfeiture Account."
(b)
All monies forfeited or seized to the state through the state or federal
court process as a result of activity involving a controlled substance
violation as provided under Title 58, Chapter 37, 37a, 37b, 37c, or 37d,
or prohibited under federal law shall be deposited into the Drug Forfeiture
Account.]
(2)
The Department of Public Safety may expend amounts as appropriated by
the Legislature from the Drug Forfeiture Account to aid in enforcement
efforts to combat drug trafficking.]
(3)
That portion of funds forfeited or seized that are required to be disbursed
to other governmental entities under existing contractual agreements are
exempt from this section.]
(4)
Funds forfeited or seized as a result of the Salt Lake Airport Drug Program,
not to exceed the Department of Public Safety's expenditure to that program,
are exempt from this section.]
(5)
The Department of Public Safety as part of the annual budget hearings
shall provide the Executive Offices, Criminal Justice, and Legislature
Appropriations Subcommittee with a complete accounting of expenditures
and revenues from the funds under this section.]
(6)
The Legislature may annually provide, in the Appropriations Act, legislative
direction for anticipated expenditures of the monies received under this
section.]
to
the state under the procedures of Section 58-37-13 and no property right
shall exist in them] in accordance with the procedures and
substantive protections of the Utah Uniform Forfeiture Procedures Act,
Title 24, Chapter 1, of the Utah Code:
Section 26. Section 58-37d-7 is amended to read:
of Section 58-37-13.] and substantive
protections of the Utah Uniform Forfeiture Procedures Act, Title 24, Chapter
1 of the Utah Code.
(2) The seized goods shall be delivered to the commission [for
sale at public auction to the highest bidder after due
advertisement. Before delivering the goods,] and the commission
shall [require the person receiving the goods to] affix
the proper amount of stamps to the individual packages or containers,
prior to instituting forfeiture proceedings under the Utah Uniform Forfeiture
Procedures Act, Title 24, Chapter 1 of the Utah Code.
[(3) The proceeds of any goods sold as provided under Subsection
(2), after paying the costs of confiscation and sale, shall be turned
over to the state treasurer to the credit of the state General Fund.]
(1) Any vehicle used in the commission of, attempt to commit, or flight
after commission of any felony in which a firearm or other dangerous weapon
as defined in Section 76-10-501, or explosive, chemical, or incendiary
device or parts as defined in Section 76-10-306 is used, or any vehicle
used in the commission of the illegal possession or sale of a firearm
in or from the vehicle, is subject to forfeiture. [and
no property right exists in it if the owner of the vehicle was a knowing
participant in the offense or voluntarily allowed the vehicle to be used,
knowing that it would probably be used to commit the offense.
(2) Any forfeiture of a vehicle subject to a bona fide security interest
is subject to the interest of a secured party who could not have known
in the exercise of reasonable diligence that a violation would or did
take place in the use of the vehicle
[(3)] (2) Vehicles subject to forfeiture under
this section may be seized by any peace officer of this state upon process
issued by any court having jurisdiction over the vehicle. However, seizure
without process may be made when:
(a) the seizure is incident to a lawful arrest, with or without an arrest
warrant;
(b) the vehicle is seized incident to a lawful search with or without
a search warrant or an inspection under an administrative inspection warrant;
(c) the vehicle subject to seizure has been the subject of a prior judgment
in favor of the state in a criminal injunction or forfeiture proceeding;
or
(d) the peace officer seizing the vehicle has probable cause to believe
that the vehicle has been used or is intended to be used in violation
of this section and the peace officer reasonably believes that the vehicle
will be lost, damaged, or used in further violation of law if the officer
delays seizure to obtain a warrant.
[(4)] (3) In the event of seizure under
Subsection (3),] Forfeiture proceedings under this
section [Subsection (5)] shall be instituted promptly
in accordance with the procedures and substantive protections of the
Utah Uniform Forfeiture Procedures Act, Title 24, Chapter 1, of the Utah
Code.
[(5)] (4) Any vehicle taken or detained under
this section is not repleviable but is in custody of the law enforcement
agency making the seizure, subject only to the orders and decrees of the
court or the official having jurisdiction. When a vehicle is seized under
this chapter the appropriate person or agency may:
(a) remove the vehicle to a place designated by the court, official, or
the warrant under which the vehicle was seized; or
(b) take custody of the vehicle and remove it to an appropriate location
for disposition in accordance with law.
[(6) When any vehicle is subject to forfeiture, determination
for forfeiture to the state shall be made as follows:
(a) A complaint verified on oath or affirmation shall be prepared by the
countyattorney, or if within a prosecution district
the district attorney, where the vehiclewas seized or is to be seized.
The complaint shall be filed in the district court where
the vehicle was seized. The complaint shall describe with reasonable
particularity the:
(i) vehicle which is the subject matter of the proceeding;
(ii) date and place of seizure, if known; and
(iii) allegations which constitute the basis for forfeiture.
(b) Upon filing the complaint, the clerk of the court shall forthwith
issue a warrantfor the seizure of the vehicle which
is the subject matter of the action and deliver it to
the sheriff for service upon the seizing person or agency.
(c) Notice of the seizure and intended forfeiture shall be filed with
the county clerk, and served together with a copy of the complaint, upon
all persons knownto the county attorney or district
attorney to have a claim in the vehicle by one of the
following methods:
(i) upon each claimant whose name and address is known, at the lastknown address of the claimant, or upon each owner whose right,
title, or interest is of record in the Division of Motor Vehicles, by
mailing a copy of the notice and complaint by certified
mail to the address given upon therecords of the division, which service
is considered complete even thoughthe mail is refused or cannot be forwarded;
and
(ii) upon all other claimants whose addresses are unknown, but who arebelieved to have an interest in the vehicle, by publication in
a newspaper of general circulation in the county where the seizure was
made.
(d) Any claimant or interested party shall file with the court a verified
answer to the complaint within 20 days after service has been obtained.(e)
When a vehicle is seized under this section, any interested person or
claimant of thevehicle, prior to being served with a complaint under this
section, may file a petition in the court having jurisdiction for release
of his interest in the vehicle. The petition shall specify the claimant's
interest in the vehicle and his right to have it released. A copy shallbe
served upon the county attorney or, if within a prosecution district the
district attorney,in the county of the seizure, who shall answer the petition
within 20 days. A petitionerunder this subsection need not answer a complaint
of forfeiture.
(f) After 20 days following service of a complaint or petition for release,
the court shallexamine the record and if no answer is on file, the court
shall allow the complainant orpetitioner an opportunity to present evidence
in support of his claim and order forfeitureor release of the vehicle
as the court determines. If the county attorney or district attorneyhas not filed an answer to a petition for release and the court
determines from the evidence that the petitioner is not entitled to recovery
of the vehicle, it shall enter an order directing the county attorney
or district attorney to answer the petition within ten days. If no answer
is filed within that period, the court shall order the release of the
vehicle to the petitioner entitled to receive it.
(g) When an answer to a complaint or petition appears of record at the
end of 20 days, the court shall promptly set the matter for hearing. At
this hearing all interested parties may present evidence of their rights
of release of the vehicle following the state's evidence for forfeiture.
The court shall determine by a preponderance of the evidence the issues
in the case and order forfeiture or release of the vehicle as it determines.
(h) Proceedings of this section are independent of any other proceedings,
whether civil or criminal, under the laws of this state.
(i) When the court determines that claimants have no right in the vehicle
in whole or in part, it shall declare the vehicle to be forfeited and
direct it to be delivered for disposition in accordance with Subsection
(7).
(j) When the court determines that the vehicle, in whole or in part, is
not subject to forfeiture, it shall order release of the vehicle to the
proper claimant. If the court determines that the vehicle is subject to
forfeiture in part and release in part, it shall order partial release
and partial forfeiture. When the vehicle cannot be divided for partial
forfeiture and release, the court shall order it sold and the proceeds
distributed:
(i) first, proportionally among the legitimate claimants;
(ii) second, to defray the costs of the action, including seizure, storage
of the vehicle, legal costs of filing and pursuing the forfeiture, and
costs of sale; and
(iii) third, in accordance with Subsection (7).
(k) In a proceeding under this section where forfeiture is declared, in
whole or in part, thecourt shall assess all costs of the forfeiture proceeding,
including seizure and storage of the vehicle, against the individual or
individuals whose conduct was the basis of the forfeiture, and may assess
costs against any other claimant or claimants to the vehicle as appropriate.
[(7) When any vehicle is forfeited under this section by a finding
of the court that no person is entitled to recover it or that the vehicle
is subject to forfeiture in part and release in part to a claimant, a
court shall order that the vehicle be delivered to the seizing agency
for sale as the court directs. The court shall also order that the proceeds
from the sale of the vehicle be distributed in accordance with the provisions
of Subsection (6)(j).]
[(8) When the court orders that a vehicle be forfeited, in whole
or in part, under this section, it shall direct that the proceeds from
the sale of the forfeited vehicle, or part thereof, be divided or distributed
as follows:
(a) 3/4 to the agency making the seizure; and
(b) 1/4 to the state treasurer for deposit into the General Fund.
(9) If the vehicle is found by the court not to be subject to forfeiture,
it shall be released to the owner.and sell them for the best price obtainable]
or equipment and institute forfeiture proceedings in accordance with
the procedures and substantive protections of the Utah Uniform Forfeiture
Procedures Act, Title 24, Chapter 1, of the Utah Code. [The
sale must be made to a person of good character and repute who is a bona
fide resident of a state where it is lawful to use the equipment. The
officials conducting the sale shall place the equipment on a public carrier,
properly consigned to the purchaser at the place of his residence.]
(2) The proceeds of any sale shall be paid [ into the treasury,
for welfare purposes only, of the county or political unit conducting
the sale] to the Uniform School Fund, Title 53A, Chapter 16,
Section 101 of the Utah Code.
[(3) If no sale is consummated within ninety days of the authorization ]
therefor, the devices or equipment shall be destroyed under the direction
of the magistrate.[At the commencement of any prosecution for a violation of this
part, any] Any gambling bets or gambling proceeds which
are reasonably identifiable as having been used or obtained in violation
of this part may be seized [ and they shall be held pending the
disposition of the proceedings. At the conclusion of the proceedings,
any person who is found guilty of a violation of this part shall forfeit
any sums held by the court which were acquired or being used in violation
of this part] for forfeiture pursuant to the procedures and
substantive protections of the Utah Uniform Forfeiture Procedures Act,
Title 24, Chapter 1 of the Utah Code. [Any sums not identifiable,
or in the event the individual is found not guilty, the sums shall be
returned to him.]
[(2) A commencement of prosecution shall occur upon arrest, issuance
of a complaint, or indictment, which ever occurs first.]
[(3)](2) All sums forfeited under this section
shall be paid [into the treasury of the county or political unit
conducting the prosecution.] to the Uniform School Fund, Title
53A, Chapter 16, Section 101 of the Utah Code.
state
or the county] Uniform School Fund, Title 53A, Chapter 16,
Section 101, of the Utah Code:
(b) any interest in, security of, claim against, or property or contractual
right of any kind affording a source of influence over any enterprise
which the person has established, operated, controlled, conducted, or
participated in the conduct of in violation of Section 76-10-1603; and
(c) any property constituting or derived from [any] the
net proceeds which the person obtained, directly or indirectly, from
the conduct constituting the pattern of unlawful activity or from any
act or conduct constituting the pattern of unlawful activity proven as
part of the violation of any provision of Section 76-10-1603.
(2) If a violation of Section 76-10-1603 is based on a pattern of unlawful
activity consisting of acts or conduct in violation of Section 76-10-1204,
76-10-1205, 76-10-1206, or 76-10-1222, the property subject to forfeiture
under this section is limited to property, the seizure or forfeiture of
which would not constitute a prior restraint on the exercise of an affected
party's rights under the First Amendment to the Constitution of the United
States or Article I, Sec. 15 of the Utah Constitution, or would not otherwise
unlawfully interfere with the exercise of those rights.
(3) In lieu of a fine otherwise authorized by law for a violation of Section
76-10-1603, a defendant who derives net [profits or other]
proceeds from a conduct prohibited by Section 76-10-1603, may be fined
not more than twice the amount of the [gross] net
[profits or other] proceeds.
(4) [Except under Subsection (2),] Property subject
to criminal forfeiture in accord with the procedures and substantive
protections of the Utah Uniform Forfeiture Procedures Act Title 24, Chapter
1, of the Utah Code includes:
(a) real property, including things growing on, affixed to, and found
in land; and
(b) tangible and intangible personal property including money, rights,
privileges, interests, claims, and securities of any kind;
(c) but does not include property [legitimately] exchanged
or to be exchanged for services rendered in connection with [a
defendant's exercise of his rights under the Sixth Amendment to the Constitution
of the United States and the right to appear and be defended by counsel
in criminal prosecutions guaranteed by Article I, Sec. 12 of the Utah
Constitution] the defense of the charges or any related criminal
case.
(5) Upon conviction for violating any provision of Section 76-10-1603,
and in addition to any penalty prescribed by law and in addition to any
forfeitures provided for in this section, the court may do any or all
of the following:
(a) order the person to divest himself of any interest in or any control,
direct or indirect, of any enterprise;
(b) impose reasonable restrictions on the future activities or investments
of any person, including prohibiting the person from engaging in the same
type of endeavor as the enterprise engaged
in, to the extent the Utah Constitution and the Constitution of the United
States permit; or
(c) order the dissolution or reorganization of any enterprise.
(6) If a violation of Section 76-10-1603 is based on a pattern of unlawful
activity consisting of acts or conduct in violation of Section 76-10-1204,
76-10-1205, 76-10-1206, or 76-10-1222, the court may not enter any order
that would amount to a prior restraint on the exercise of an affected
party's rights under the First Amendment to the Constitution of the United
States or Article I, Sec. 15 of the Utah Constitution.
(7) [(a)] All rights, title, and interest in forfeitable
property described in Subsections (1) and (2) vest in the [state
if the action was brought by the attorney general or in the county if
the action was brought by a county attorney or district attorney,]
state treasurer, on behalf of the Uniform School Fund, upon the
commission of the act or conduct giving rise to the forfeiture under this
section.
[(b) Any forfeitable property that is subsequently transferred
to a person other than the defendant may be the subject of a special proceeding
and an order that the property be forfeited to the state or the county
unless the transferee establishes in a hearing held under Subsection (16)
that he is a bona fide purchaser for value of the property who at the
time of purchase reasonably believed that the property was not subject
to forfeiture under this section.]
[(8)(a) Upon application of the attorney general, the county attorney,
or district attorney, the court may enter restraining orders or injunctions,
require the execution of satisfactory performance bonds, or take any other
action to preserve for forfeiture under this section any forfeitable property
described in Subsections (1) and (2)
(i) upon filing of an indictment or an information charging a violation
of Section 76-10-1603 and alleging that the property with respect to which
the order is sought would, in the event of conviction, be subject to forfeiture
under this section; or
(ii) prior to the filing of the indictment or information, if, after notice
to persons appearing to have an interest in the property and after affording
them an opportunity for a hearing, the court determines that:
(A) 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 sold, distributed, exhibited, destroyed, or removed
from the jurisdiction of the court, or otherwise made unavailable for
forfeiture; and
(B) the need to preserve the availability of the property or prevent its
sale, distribution, exhibition, destruction, or removal through the entry
of the requested order outweighs the hardship on any party against whom
the order is to be entered;
(iii) an order entered under Subsection (ii) is effective for no more
than 90 days, unless extended by the court for good cause shown or unless
an indictment or information as described in Subsection (i) has been filed
(b) A temporary restraining order may be entered upon application of the
attorney general, county attorney, or a district attorney without notice
or opportunity for a hearing, when an information or indictment has not
yet been filed with respect to the property, if the attorney general,
county attorney, or a district attorney 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
this section and that provision of notice would jeopardize the availability
of the property for forfeiture or would jeopardize an ongoing criminal
investigation. The temporary order expires not more than ten days after
it is entered unless extended for good cause shown or unless the party
against whom it is entered consents to an extension. A hearing concerning
an order entered under this subsection shall be held as soon as possible,
and prior to the expiration of the temporary order.
(c) The court is not bound by the Utah Rules of Evidence regarding evidence
it may receive and consider at any hearing held under this subsection.
[(9) Upon conviction of a person for violating any provision of
Section 76-10-1603, the jury, if the case was tried to a jury, shall be
instructed and asked to return a special verdict as to whether any of
the extent of the property identified in the information or indictment,
if any, that is forfeitable under Subsections 76-10-1603.5 (1) and (2).
(b) If the case is tried without a jury, the judge shall make
specific written findings if he determines that the property identified
in the information or indictment is forfeitable under Subsections 76-10-1603.5
(1) and (2). Whether property is forfeitable shall be proven beyond areasonable
doubt.]
[(10)(a) Upon conviction of a person for violating any provision
of Section 76-10-1603 and upon the jury's special verdict or the
judge's finding that the property is forfeitable, the court shall enter
a judgment and order of forfeiture of the property to the state or the
county and shall authorize the attorney general, the county attorney,
or, if within a prosecution district, the district attorney to seize all
property ordered forfeited upon the terms stated by the court in its order.
Following the entry of an order declaring property forfeited, the court
may, upon application of the attorney general, the county attorney, or
the district attorney, enter 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 or county in property ordered
forfeited.
(b) Any income accruing to, or derived from, an enterprise or an interest
in an enterprise or property which has been ordered forfeited under this
section may be used to offset ordinary and necessary expenses to the enterprise
which are required by law, or which are necessary to protect the interests
of the state or county or third parties.(11)(a) After seizure of property ordered forfeited under this
section, the attorney general, the county attorney, or the district attorney
shall direct the disposition of the property by sale or any other commercially
feasible means, making provision for the rights of any innocent persons.
Any property right or interest not exercisable by or transferable for
value to the state or the county, expires and does not revert to the defendant.
The defendant or any person acting in concert with or on behalf of the
defendant is not eligible to purchase forfeited property at any sale held
by the attorney general or the county attorney.
(b) The court may restrain or stay the sale or disposition of the property
pending the conclusion of any appeal of the criminal case giving rise
to the forfeiture, if the applicant demonstrates that proceeding with
the sale or disposition of the property would may result in irreparable
injury, harm, or loss to him.
(c) The proceeds of any sale or other disposition of property forfeited
under this section and any moneys forfeited may be used first to pay expenses
of the forfeiture and the sale, including expenses of seizure, maintenance,
and custody of the property pending its disposition, advertising, and
court costs.
[(12) Regarding property ordered forfeited under this section,
the attorney general, the county attorney, or, if within a prosecution
district, the district attorney may:
(a) grant petitions for mitigation or remission of forfeiture, restore
forfeited property to victims of a violation of this chapter, or take
any other action to protect the rights of innocent persons in the interest
of justice and as is consistent with the provisions of this section;
(b) compromise claims arising under this section;
(c) award compensation to persons providing information resulting in a
forfeiture under this section;
(d) direct the disposition by the state or the county of all property
ordered forfeited under this section by public sale or any other commercially
feasible means, making provision for the rights of innocent persons;
(e) destroy or otherwise dispose of property determined to be obscene
or pornographic; and
(f) take appropriate measures necessary to safeguard and maintain property
ordered forfeited under this section pending its disposition.
[(13) Except under Subsection (16), a party claiming an interest
in property subject to forfeiture under this section:
(a) may not intervene in a trial or appeal of a criminal case involving
the forfeiture of property under this section; and
(b) may not commence an action at law or equity against the state or the
county concerning the validity of his alleged interests in the property
subsequent to the filing of an indictment or an information alleging that
the property is subject to forfeiture under this section.
[(14) The district court of the state which has jurisdiction of
a case under this part may enter orders under this section without regard
to location of any property which may be subject to forfeiture under this
section, or which has been ordered forfeited under this section.]
[(15) To facilitate the identification or location of property
declared forfeited and to facilitate the disposition of petitions for
remission or mitigation of forfeiture, after the entry of an order declaring
property forfeited to the state or county, the court may, upon application
of the attorney general, the county attorney, or the district attorney
order that the testimony of any witness relating to the property forfeited
be taken by deposition, and that any book, paper, document, record, recording,
or other material not privileged shall be produced as provided for depositions
and discovery under the Utah Rules of Civil Procedure.]
[(16) Following the entry of an order of forfeiture under this
section, the attorney general, the county attorney, or the district attorney
shall publish notice of the order and of its intent to dispose of the
property as the court may direct. The attorney general, the county attorney,
or the district attorney may also provide direct written notice to any
person known to have an alleged interest in the property subject to the
order of forfeiture, as a substitute for published notice as to those
persons so notified.
(b) Any person, other than the defendant, asserting a legal interest in
property which has been ordered forfeited to the state or to the county
under this section may, within 30 days of the final publication of notice
or his receipt of notice under Subsection (a), whichever is earlier, petition
the court for a hearing to adjudicate the validity of his alleged interest
in the property. The hearing is held before the court without a jury.
(c) The petition shall be in writing and signed by the petitioner under
penalty of perjury. It shall set forth the nature and extent of the petitioner's
right, title, or interest in the property, the time and circumstances
of the petitioner's acquisition of the right, title, or interest in the
property, and any additional facts supporting the petitioner's claim,
and the relief sought.
(d) The hearing on the petition shall, to the extent practicable, be held
within 30 days of the filing of the petition. The court may consolidate
the hearing on the petition and any petition filed by any other person
under this section, other than the defendant.
(e) At the hearing, the petitioner may testify and present evidence and
witnesses on his own behalf and cross-examine witnesses who appear at
the hearing. The attorney general, county attorney, or district attorney
may present evidence and witnesses in rebuttal and in defense of the 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 portion of the record of the criminal case
which resulted in the order of forfeiture. The court is not bound by the
Utah Rules of Evidence at a hearing held under this subsection.
(f) The court shall amend the order of forfeiture in accordance with its
determination, if after the hearing the court determines that the petitioner
has established by a preponderance of the evidence that:
(i) the petitioner has a legal right, title, or interest in the property,
and the right, title, or interest renders the order of forfeiture invalid
in whole or in part because 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 or conduct which gave rise to the forfeiture of the property under
this section; or
(ii) the petitioner is a bona fide purchaser for value of the right, title,
or interest in the property and at the time of purchase reasonably believed
that the property was not subject to forfeiture under this section.
(g) Following the court's disposition of all petitions filed under this
subsection, or if no petitions are filed following the expiration of the
period provided in Subsection (b) for the filing of petitions, the state
or the county has clear title to property subject to the order of forfeiture
and may warrant good title to any subsequent purchaser or transferee.
(1) (a) Any of the following property shall be subject to civil
or criminal forfeiture [and no property right exists in
it]:
[(a)] (i) any conveyance including vehicles, aircraft,
watercraft, or other vessel used in violation of Section 76-10-1904; and
[(c)] (ii) any [monetary instruments or
funds which are the subject] property which is the net proceeds
of a violation of Section 76-10-1903, 76-10-1904, or 76-10-1906.
(2) Property subject to forfeiture under Subsection (1) may be seized
by any peace officer of this state upon process issued by any court having
jurisdiction over the property. However, seizure without process may be
made when:
(a) the seizure is incident to an arrest or search under a search warrant,
an inspection under an administrative inspection warrant, under a writ
of attachment, or under a writ of garnishment;
(b) the property subject to seizure has been the subject of a prior judgment
in favor of the state in a criminal injunction or forfeiture proceeding
under this section; or
(c) the peace officer has probable cause to believe that the property
has been used in violation of Section 76-10-1903, 76-10-1904, or 76-10-1906.
(3) [In the event of seizure under Subsection (2),] Forfeiture
proceedings under this section shall be commenced in accordance with
the procedures and substantive protections of the Utah Uniform Forfeiture
Procedures Act, Title 24, Chapter 1, of the Utah Code. [under
Subsection (4) shall be instituted promptly]
(4) Property taken or detained under this section is not repleviable but
is in custody of the law enforcement agency making the seizure, subject
only to the orders and decrees of the court or the official having jurisdiction.
When property is seized under this chapter, the appropriate person or
agency may:
(a) place the property under seal;
(b) remove the property to a place designated by it or the warrant under
which it was seized; or
(c) take custody of the property and remove it to an appropriate location
for disposition in accordance with law.
[(5) When any property is subject to civil forfeiture, a determination
for forfeiture to the state shall be made as follows:
(a) A complaint verified on oath or affirmation shall be prepared by the
prosecuting agency where the property was seized or is to be seized. A
complaint shall be filed in the district court. The complaint shall describe
with reasonable particularity:
(i) the property which is the subject matter of the proceedings;
(ii) the date and place of seizure, if known; and
(iii) the allegations which constitute a basis for forfeiture.
(b) Upon filing the complaint, the clerk of the court shall forthwith
issue a warrant for seizure of the property which is the subject matter
of the action and deliver it to a peace officer for service, unless the
property has previously been seized without a warrant under Subsection
(2). If the property was seized under Subsection
(2), the warrant of seizure shall be delivered to the officer having custody
of the property who shall proceed as directed in the warrant.
(c) Notice of the seizure and intended forfeiture shall be filed with
the county clerk, and served together with a copy of the complaint, upon
all persons known to the prosecuting agency to have a claim in the property
by one of the following methods:
(i) upon each claimant whose name and address is known, at the last known
address of the claimant, or upon each owner whose right, title, or interest
is of record in the Division of Motor Vehicles, by mailing a copy of the
notice and complaint by certified mail to the address given upon the records
of the division, which service is considered complete even though the
mail is refused or cannot be forwarded; and
(ii) upon all other claimants whose addresses are unknown, but who are
believed to have an interest in the property, by one publication in a
newspaper of general circulation in the county where the seizure was made.
(d) Except under Subsection (5)(e), any claimant or interested party shall
file with the court a verified answer to the complaint within 20 days
after service has been obtained.
(e) When property is seized under this section, any interested person
or claimant of the property, prior to being served with a complaint under
this section, may file a petition in the court having jurisdiction for
release of his interest in the property. The petition shall specify the
claimant's interest in the property and his right to have it released.
A copy shall be served upon the county attorney in the county of the seizure,
who shall answer the petition within 20 days. A petitioner need not answer
a complaint of forfeiture.
(f) After 20 days following service of a complaint or petition for release,
the court shall examine the record and if no answer is on file, the court
shall allow the complainant or petitioner anopportunity
to present evidence in support of his claim and order forfeiture or release
of the property as the court determines. If a prosecuting agency has not
filed an answer to a petition for release and the court determines from
the evidence that the petitioner is not entitled to recovery of the property,
it shall enter an order directing the prosecuting agency to answer the
petition within ten days. If no answer is filed within that period, the
court shall order the release of the property to the petitioner entitled
to receive it.
(g) When an answer to a complaint or petition appears of record at the
end of 20 days, the court shall set the matter for hearing within 20 days.
At this hearing all interested parties may present evidence of their rights
of release of the property following the state's evidence for forfeiture.
The court shall determine by a preponderance of the evidence the issues
in the case and order forfeiture or release of the property as it determines.
(h) When the court determines that claimants have no right in the property
in whole or in part, it shall declare the property to be forfeited and
direct it to be delivered as provided in Subsection (6).
(i) When the court determines that property, in whole or in part, is not
subject to forfeiture, it shall order release of the property to the proper
claimant. If the court determines that the property is subject to forfeiture
and release in part, it shall order partial release and partial forfeiture.
When the property cannot be divided for partial forfeiture and release,
the court shall order it sold and the proceeds distributed:
(i) first, to defray the costs of the action, including seizure, storage
of the property, legal costs of filing and pursuing the forfeiture, and
costs of sale;
(ii) second, proportionally among the legitimate claimants; and
(iii) third, as provided under Subsection (6).
[(6) Disposition of all property forfeited under Subsections (1)
through (5) by a finding of the court that no person is entitled to recover
the property shall be as follows:
(a) Property forfeited under Subsection (1)(a), (b), or (c), if the property
is involved in a financial transaction in violation of Section 76-10-1903
or is transported in violation of Section 76-10-1904, may be awarded to
the seizing agency upon a petition by the seizing agency of the property
in the complaint filed under Subsection (5)(a) and a finding by the court
that the seizing agency isable to use the forfeited property in the enforcement
of offenses under Title 58 and Title 76, Chapter 10.
(b) If the seizing agency makes no application or the court does not make
a finding under Subsection (6)(a) that the seizing agency should be awarded
the property, the forfeited property shall be deposited in the custody
of the Division of Finance. Any state agency, bureau, county, municipality,
or drug strike force which demonstrates a need for specific property or
classes of property which has been forfeited shall be given the property
for use in enforcement of laws prohibiting specified unlawful activity
or in enforcement of this part after payment to the prosecuting agency
of legal costs for filing and pursuing the forfeiture and upon the application
for the property to the director of the Division of Finance. The application
shall clearly set forth the need for the property and the use to which
the property will be put.
(c) The director of the Division of Finance shall review all applications
for property deposited under Subsection (6)(b) and make a determination
based on necessity and advisability as to final disposition and shall
notify the designated applicant, who may obtain the property after payment
of all costs to the appropriate department. The Division of Finance shall
reimburse the prosecuting agency for costs of filing and pursuing the
forfeiture action, not to exceed the amount of the net proceeds received
from the sale of the property.
(d) If no disposition is made upon an application under Subsection (6)(a),
(b), or (c), the Division of Finance shall dispose of the property by
public bidding, or, as considered appropriate, by destruction. Proceeds
from the sale of the property under this subsection shall be distributed
as provided in Subsection (e).
(e) Property forfeited under Subsection (1)(c) for violation of Section
76-10-1906 and proceeds from the sale of the property under Subsection
(6)(d) shall be awarded and ordered distributed to the General Fund.
[(7) Any person who violates any provision of Section 76-10-1903,
76-10-1904, or 76-10-1906 shall forfeit to the state all property, funds,
or monetary instruments involved in the violation or, if unavailable for
forfeiture in species, its value whether or not located in this state.]
[(8) Upon conviction for violating any provision of Section 76-10-1903,
76-10-1904, or 76-10-1906, the court may make an order with respect
to any property of the defendant, or in which the defendant has an interest,
whether or not in this state, to accomplish or further the forfeiture
provided under Subsection (7) or the collection of costs under this section.]
[(9) All rights, title, and interest in forfeitable property described
in this section vest in the state upon the commission of the act or conduct
giving rise to the forfeiture under this section.]
[(10) (a) After forfeiture of property under this section, the
court shall direct the disposition of the property by sale or other commercially
feasible means, making provision for the rights of any innocent persons.
Any property right or interest not exercisable by or transferable for
value to the state expires and does not revert to the defendant. The defendant
or any person acting in concert with or on behalf of the defendant is
not eligible to purchase forfeited property at any sale ordered by the
court.
(b) The court may restrain or stay the sale or disposition of the property
pending the conclusion of any appeal of the criminal case giving rise
to the forfeiture, if the applicant demonstrates that proceeding with
the sale or disposition of the property would result in irreparable injury,
harm, or loss to him.
(c) The proceeds of any sale or other disposition of property forfeited
under this section or any monies forfeited may be used first to pay the
expenses of the forfeiture and the sale including expenses of seizure,
maintenance, and custody of the property pending its disposition, advertising,
and court costs.
(d) Disposition of property forfeited under Subsections (7) through (13)
shall be as provided in Subsection (6).
(e) Notwithstanding any provisions of this section to the contrary, the
state is obligated to search the lien records applicable to the forfeitable
property to determine whether any valid lien against the property has
been perfected. As long as the lien holder did not violate the provisions
of this section, title to forfeitable property shall be subject to such
lien, and the state will either give possession of the property to the
lien holder or pay to the lien holder the amount secured by the lien.(11)
In any forfeiture proceeding under Subsections (7) through (13), the prosecutor
prosecuting the defendant may:
(a) petition the court for mitigation or remission of forfeiture, for
restoration of forfeited property to victims of a violation of this section
or to take any other action to protect the rights of innocent persons
in the interest of justice and the court may, in its discretion, grant
the petition;
(b) compromise claims arising under this section;
(c) award compensation to persons providing information resulting in a
forfeiture under this section; or
(d) take appropriate measures necessary to safeguard and maintain property
ordered forfeited under this section pending its disposition.
[(12) In a proceeding under this section where forfeiture is declared,
in whole or in part, the court shall:
(a) determine the costs incurred by the prosecuting agency prosecuting
the forfeiture which shall be paid by the recipient of forfeited assets
from the proceeds from the assets; and
(b) assess all costs of the forfeiture proceeding including seizure and
storage of the property against the individual or individuals whose conduct
was the basis for the forfeiture, and may assess costs against any other
claimant or claimants to the property as appropriate.
[(13) Proceedings under this section are independent of any other
proceedings whether civil or criminal under this section or the laws of
this state.]
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