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S.F. No. 873 - Forfeiture Changes, First Engrossment
 
Author: Senator Dan Hall
 
Prepared By: Kenneth P. Backhus, Senate Counsel (651/296-4396)
 
Date: March 24, 2014



 

Sections 1, 3, 4, 10, 11, 12, 13, and 14 strike language in various forfeiture laws addressing the forfeiture of property subject to a security interest, long term lease, or an innocent owner defense, or used as a common carrier. The affected laws include the off-highway vehicle, driving while impaired (DWI), designated offense, controlled substance, prostitution, drive by shooting, and fleeing a peace officer forfeiture laws. The issues addressed by the stricken language will now be covered by the new language being added in sections 6 and 7.

Section 2 amends the DWI forfeiture law to require that a seized vehicle be returned to its owner before the forfeiture action is resolved if an ignition interlock device is installed in the vehicle. Makes tampering with or circumventing the device a misdemeanor.

Section 5 defines “willfully ignorant.” (This term is used in sections 6 and 7.)

Section 6 addresses the interests of secured parties, long term lessors, and owners in the off-highway vehicle, DWI, designated offense, controlled substance, prostitution, drive by shooting, and fleeing a peace officer forfeiture laws.

Paragraph (a) provides that property is not subject to forfeiture, unless the prosecutor meets the burden in paragraph (c), if the claimant presents prima facie evidence that the claimant: (1) had an ownership interest in the property when the conduct giving rise to the forfeiture occurred; and (2) is not the person accused or convicted of the underlying conduct.

Paragraph (b) provides that forfeited off-highway or motor vehicles subject to a security interest or a long-term lease are subject to the interests of those parties. Requires law enforcement, if the proceeds from a sale are less than the amount owed to the secured party or lessor, to remit the proceeds to the secured party or lessor, after deducting the law enforcement agency’s costs (towing, storage, sale, etc.). Protects law enforcement from having to pay more than this if the sale was conducted in a commercially reasonable manner.

Paragraph (c) requires that the prosecuting authority must prove by a preponderance of the evidence that the claimant in the action: (1) had actual knowledge of the underlying crime giving rise to the forfeiture or was willfully ignorant to its commission; or (2) consented to or was privy to the act or omission upon which the forfeiture is based.

Paragraph (d) provides that even if law enforcement has met the requirements of paragraph (c), property is not subject to forfeiture if the claimant proves by a preponderance of the evidence that the claimant took reasonable steps (as described) to prohibit, abate or terminate the illegal use of the property.

Section 7 addresses the interests of parties acquiring an ownership or security interest in property after the commission of the underlying conduct giving rise to forfeiture. This language is very similar to that in section 6, paragraphs (a) and (c).

Section 8 requires that property found by a court not to be subject to forfeiture under sections 6 and 7 must be returned to the claimant within a reasonable amount of time. For DWI forfeitures, the vehicle must be equipped with an ignition interlock device if the offender will have access to it. Makes tampering with or circumventing the device a misdemeanor. Provides that if the court orders the retun of property under this section, it must order that the claimant's filing fees be reimbursed and may award sanctions.

Section 9 provides that for controlled substances and designated offense forfeitures, real property falling within the homestead exemption of law is not subject to forfeiture.

Section 15 directs courts construing the term "willfully ignorant" as used in the bill to consider it synonymous with the term "willfully blind" as used in federal forfeiture law.

KPB/tg

 
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