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S.F. No. 2155 - Criminal Forfeiture (First Engrossment)
 
Author: Senator Scott J. Newman
 
Prepared By: Kenneth P. Backhus, Senate Counsel (651/296-4396)
 
Date: April 1, 2019



 

OVERVIEW

SF 2155 restructures Minnesota’s forfeiture laws. Currently, there are a number of separate forfeiture laws scattered across the statutes including in the DWI law and the criminal code. These provisions are all somewhat similar but differ in significant ways. This bill repeals all those separate forfeiture laws and replaces them with one single forfeiture section.

Among the most significant changes the bill makes is:

  • eliminating administrative forfeitures (where law enforcement agencies can initiate and (unless the owner converts the forfeiture to a judicial forfeiture) accomplish a forfeiture without any court involvement);
  • requiring a criminal conviction as a prerequisite for any forfeiture;
  • requiring that a forfeiture action be brought at the same time as the underlying criminal charge;
  • providing more numerous opportunities for court hearings and greater due process rights for the criminal defendant, other parties with an ownership interest in the property, and creditors/holders of secured interests;
  • prohibiting the forfeiture of certain items of lessor value;
  • dramatically changing how property, once forfeited, is to be treated (including how the proceeds are to be distributed); and
  • restricting the ability of Minnesota law enforcement agencies to participate in the federal forfeiture equitable sharing program or to otherwise avoid using Minnesota forfeiture law in favor of federal law.

Article 1 - Criminal Forfeiture

 Section 1 codifies the new forfeiture section in the criminal code.

Subdivision 1 defines key terms.

Subdivision 2 states the purpose of the forfeiture law. Of note, forfeiture is disfavored and protecting the rights of defendants and innocent owners is specifically listed.

Subdivisions 3 to 5 describe how various types of property may be seized with and without process. Of note, provides that mere presence of money, without other indicia of an offense that would justify forfeiture, is insufficient cause for seizure.  Requires a court order and notice for seizing real property.

Subdivision 6 describes special forfeiture provisions applicable to rental property based on current law.

Subdivision 7 provides that currency of $300 or less, motor vehicles worth $2,500 or less (if not used in a drive by shooting), and homesteaded real property, are not subject to forfeiture.

Subdivision 8 provides that no property rights exist in contraband.

Subdivision 9 prohibits a law enforcement agency seeking forfeiture from asking or requiring a person to sign a waiver of the person’s interest in the property.

Subdivision 10 requires law enforcement to provide a receipt when seizing property.

Subdivision 11 allows a court to order forfeiture of property following a person’s conviction of a designated offense if the property constitutes proceeds from the offense or the property was used to commit or facilitate the commission of the offense.

Subdivision 12 provides for forfeiture if the person was convicted of a designated offense and the state proves by clear and convincing evidence that the property is as described in subdivision 11. Provides exceptions for plea agreements and defendants who have died or fled.

Subdivisions 13 and 14 require that the forfeiture be commenced as part of the underlying charge brought against the defendant either through an indictment/information or a complaint. Specifies timelines and notice requirements (including to those having ownership interests in the property).

Subdivision 15 addresses when title to the property vests.

Subdivision 16 allows the defendant a pretrial hearing to determine the validity of property seizure. Requires the court to order the return of the property in certain circumstances.  

Subdivision 17 provides that discovery is under the Rules of Criminal Procedure.

Subdivision 18 provides that the forfeiture is to be determined by the same court that determines the criminal charge in a proceeding following the criminal one. If the forfeiture involves less than $10,000, the matter must be before only a judge (i.e., not a jury). Authorizes representation by a public defender.

Subdivision 19 authorizes a defendant to receive a determination on whether the forfeiture is unconstitutionally excessive. Describes the process and burdens of proof for the determination.

Subdivisions 20 and 21 describe the process for secured parties and innocent owners to assert their rights and protect against forfeiture. Addresses the burdens of proof and timelines for so doing.

Subdivision 22 requires forfeiture to be ordered if the prosecutor meets all its burdens as to all claimants. If not, the court must dismiss the forfeiture and order the property returned.

Subdivision 23 permits forfeiture of substitute property owned by the defendant in certain cases where the original property is no longer available.

Subdivision 24 prohibits the state from seeking personal money judgments or other remedies not authorized in this section.

Subdivision 25 provides that a defendant is not jointly and severally liable for forfeiture awards owed by other defendants. A court may order multiple defendants to forfeit property on a pro rata basis when ownership is unclear.

Subdivision 26 addresses the appeal rights of the defendant and other parties.

Subdivision 27 makes the seizing law enforcement agency liable for attorney fees and interest in any proceeding where a property owner’s claim prevails.

Subdivision 28 provides that when a court orders the return of property, the law enforcement agency must do so within five days. Makes the agency liable for damages to and storage fees for the property.

Subdivision 29 provides for the disposition of forfeited property. Any contraband must be destroyed. Proceeds from the sale of forfeited property, after payment of outstanding liens, the victim, and reasonable seizure costs is specified. Of note, no portion goes to the law enforcement or prosecutorial agency.

Subdivision 30 prohibits the law enforcement agency from retaining forfeited property or selling it to its employees or family members of employees.

Subdivision 31 prohibits participation in the federal forfeiture adoption program.

Subdivision 32 provides that for property worth $50,000 or less, Minnesota law enforcement agencies working with federal agencies must forfeit the property under Minnesota law. If not, then the Minnesota agency cannot share in the forfeiture proceeds.

Subdivision 33 preempts any other laws in the state that regulate the forfeiture of property for controlled substances or impaired driving.

Subdivision 34 provides that this section does not apply to game and fish related forfeitures.

Subdivision 35 provides for reporting of forfeitures to the state auditor and the Legislature.

 Article 2 - Conforming Changes

Repeals all the forfeiture laws in statute that are being superseded by this bill (everything except for forfeitures for tax law and game and fish violations) and makes conforming changes necessitated by the bill.

 
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