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Third Substitute H.B. 124

Representative Bill Wright proposes to substitute the following bill:


             1     
ASSET FORFEITURE REVISIONS

             2     
2000 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Bill Wright

             5      John E. Swallow




             6      AN ACT RELATING TO CRIMINAL LAW AND PROCEDURE; AMENDING FORFEITURE
             7      PROCESS UNDER THE CONTROLLED SUBSTANCES LAW, INCLUDING CHANGING
             8      CERTAIN BURDENS OF PROOF AND AMENDING PROCEDURES FOR CONTROL OF
             9      FORFEITED PROPERTY.
             10      This act affects sections of Utah Code Annotated 1953 as follows:
             11      AMENDS:
             12          58-37-13, as last amended by Chapters 198 and 294, Laws of Utah 1996
             13          58-37-15, as enacted by Chapter 145, Laws of Utah 1971
             14          58-37-20, as last amended by Chapter 36, Laws of Utah 1996
             15      ENACTS:
             16          58-37-1.5, Utah Code Annotated 1953
             17      Be it enacted by the Legislature of the state of Utah:
             18          Section 1. Section 58-37-1.5 is enacted to read:
             19          58-37-1.5. Purpose.
             20          It is the intent of this chapter to:
             21          (1) discourage the illegal use of controlled substances by restricting availability, licensing,
             22      labeling, and packaging of controlled substances and the equipment used solely for the illegal
             23      manufacturing controlled substances;
             24          (2) recognize the need to prohibit and curtail illegal use of controlled substances while
             25      acknowledging that property rights of innocent property owners must be protected; and


             26          (3) limit law enforcement entities' seizures and forfeitures to the extent necessary to protect
             27      private citizens from unjustified intrusions, and ensure direct legislative control and accountability
             28      over the use of forfeited property and revenue acquired from the disposal of forfeited property.
             29          Section 2. Section 58-37-13 is amended to read:
             30           58-37-13. Property subject to forfeiture -- Seizure -- Procedure.
             31          (1) As used in this section:
             32          (a) "CCJJ" means the Commission on Criminal and Juvenile Justice created under Section
             33      63-25a-101 .
             34          (b) "Claimant" means:
             35          (i) any owner as defined in this section;
             36          (ii) any interest holder as defined in this section, and any other person or entity who asserts
             37      a claim to any property seized for forfeiture under this section;
             38          (iii) any person who files an answer to a forfeiture complaint in a proceeding instituted
             39      under this section; or
             40          (iv) any person who files a petition for release of seized property under this section.
             41          [(a)] (c) "Complaint" means a verified civil in rem complaint seeking forfeiture or any
             42      criminal information or indictment which contains or is amended to include a demand for
             43      forfeiture of a defendant's in personam interest in any property which is subject to forfeiture.
             44          (d ) "Controlled substance law enforcement purposes" means:
             45          (i) any law enforcement agency action directed toward reduction in the illegal production,
             46      distribution, or use of controlled substances; or
             47          (ii) any controlled substance abuse education, prevention, or treatment program sponsored
             48      in whole or in part by the seizing agency or the legislative body.
             49          [(b)] (e) "Drug distributing paraphernalia" means any property used or designed to be used
             50      in the illegal transportation, storage, shipping, or circulation of a controlled substance. Property
             51      is considered "designed to be used" for one or more of the above-listed purposes if the property
             52      has been altered or modified to include a feature or device which would actually promote or
             53      conceal a violation of this chapter.
             54          [(c)] (f) "Drug manufacturing equipment or supplies" includes any illegally possessed
             55      controlled substance precursor, or any chemical, laboratory equipment, or laboratory supplies
             56      possessed with intent to engage in clandestine laboratory operation as defined in Section 58-37d-3 .


             57          [(d)] (g) "Interest holder" means a secured party as defined in Section 70A-9-105 (1)(m),
             58      a mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to
             59      an interest in property, whose interest would be perfected against a good faith purchaser for value.
             60      A person who holds property for the benefit of or as an agent or nominee for another, or who is
             61      not in substantial compliance with any statute requiring an interest in property to be recorded or
             62      reflected in public records in order to perfect the interest against a good faith purchaser for value,
             63      is not an interest holder.
             64          (h) "Legal costs" means the costs incurred by the prosecuting agency and reasonable
             65      attorney fees not to exceed 20% of the value of the forfeited property.
             66          (i) "Legislative body" means:
             67          (i) a county commission or county council, a city commission, city council, or town
             68      council that has fiscal oversight of the seizing agency; and
             69          (ii) the lead governmental entity of a multijurisdictional task force, as designated in the
             70      memorandum of understanding among the agencies participating in the task force.
             71          (j) "Multijurisdictional task force" means any law enforcement entity:
             72          (i) authorized to enforce this chapter; and
             73          (ii) that has a jurisdiction that crosses municipal, county, or state boundaries.
             74          (k) (i) "Owner" means an individual or entity who holds a legitimate legal or equitable
             75      ownership in real or personal property.
             76          (ii) "Owner" does not include an individual or entity who holds property as the nominee
             77      or nominal owner for another if that nominee or nominal owner has no legitimate interest in the
             78      property.
             79          [(e)] (l) "Proceeds" means property acquired directly or indirectly from, produced through,
             80      realized through, or caused by an act or omission and includes any property of any kind without
             81      reduction for expenses incurred in the acquisition, maintenance, or production of that property, or
             82      any other purpose.
             83          (m) "Prosecuting agency" means:
             84          (i) a county attorney;
             85          (ii) the district attorney if the prosecution is taking place within a prosecution district; or
             86          (iii) the state attorney general.
             87          (n) "Real property" means:


             88          (i) land; and
             89          (ii) any building, fixture, improvement, appurtenance, structure, or other development that
             90      is affixed permanently to land.
             91          [(f)] (o) "Resolution of criminal charges" occurs at the time a claimant who is also charged
             92      with violations under Title 58, Chapters 37, 37a, 37b, 37c, or 37d enters a plea, upon return of a
             93      jury verdict or court ruling in a criminal trial, or upon dismissal of the criminal charge.
             94          (p) "Seizing agency" means any of the following entities that are authorized to enforce this
             95      chapter:
             96          (i) any municipal, county, or state law enforcement agency or unit; and
             97          (ii) any entity comprised of law enforcement officers from more than one state or federal
             98      law enforcement entity, including multijurisdictional task forces.
             99          [(g)] (q) "Violation of this chapter" means any conduct prohibited by Title 58, Chapters
             100      37, 37a, 37b, 37c, or 37d or any conduct occurring outside the state which would be a violation
             101      of the laws of the place where the conduct occurred and which would be a violation of Title 58,
             102      Chapters 37, 37a, 37b, 37c, or 37d if the conduct had occurred in this state.
             103          (2) The following are [subject to forfeiture] contraband, are summarily forfeited upon
             104      seizure, and no property right exists in them:
             105          (a) all controlled substances which have been manufactured, distributed, dispensed, or
             106      acquired in violation of this chapter;
             107          (b) all raw materials, products, and equipment of any kind used, or intended for use, in
             108      manufacturing, compounding, processing, delivering, importing, or exporting any controlled
             109      substance in violation of this chapter;
             110          (c) all property used or intended for use as a container for property described in
             111      Subsections (2)(a) and (2)(b); and
             112          (d) all hypodermic needles, syringes, and other paraphernalia, not including capsules used
             113      with health food supplements and herbs, used or intended for use to administer controlled
             114      substances in violation of this chapter[;].
             115          (3) The following are subject to forfeiture, but property rights exist in them as provided
             116      in this section regarding innocent owners and interest holders:
             117          [(e)] (a) all conveyances, including aircraft, vehicles, or vessels used or intended for use[,]
             118      to transport, or in any manner facilitate the transportation, sale, receipt, simple possession, or


             119      concealment of property described in Subsections (2)(a) and (2)(b), except that:
             120          (i) a conveyance used by any person as a common carrier in the transaction of business as
             121      a common carrier may not be forfeited under this section unless the owner or other person in
             122      charge of the conveyance was a consenting party or knew [or had reason to know] of or
             123      participated in the violation of this chapter;
             124          (ii) a conveyance may not be forfeited under this section by reason of any act or omission
             125      committed or omitted without the owner's knowledge or consent; and
             126          (iii) any forfeiture of a conveyance is subject to the claim of an interest holder who did not
             127      know [or have reason to know] after the exercise of reasonable diligence that a violation would
             128      or did take place in the use of the conveyance, or consent to or participate in the violation;
             129          [(f)] (b) all books, records, and research, including formulas, microfilm, tapes, and data
             130      used or intended for use in violation of this chapter;
             131          [(g)] (c) (i) everything of value furnished or intended to be furnished, by the owner of the
             132      thing of value, or with the owner's knowledge or consent, in exchange for a controlled substance
             133      in violation of this chapter, and all moneys, negotiable instruments, and securities used [or
             134      intended to be used] by the owner of these items, or with the owner's knowledge or consent, to
             135      facilitate any violation of this chapter[. An], but an interest in property may not be forfeited under
             136      this Subsection (3)(c)(i) unless it is proven by a preponderance of the evidence that the property
             137      owner or interest holder knew[, had reason to know] of, participated in, or consented to the
             138      conduct which made the property subject to forfeiture[. The]; and
             139          (ii) the burden of presenting this [evidence shall be] proof is upon the state;
             140          [(h)] (d) all imitation controlled substances as defined in Section 58-37b-2 , Imitation
             141      Controlled Substances Act;
             142          [(i)] (e) all warehousing, housing, and storage facilities, or interest in real property of any
             143      kind used, or intended for use, in producing, cultivating, warehousing, storing, protecting, or
             144      manufacturing any controlled substances in violation of this chapter, except that:
             145          (i) a court may not grant or order any forfeiture of a housing, warehousing, or storage
             146      facility or interest in real property [is subject to the claim of an interest holder who did not know
             147      or have reason to know after the exercise of reasonable diligence that] unless the state proves that
             148      the owner or any interest holder knew, or consented to, or participated in a violation [would] of
             149      this chapter that would or did take place on the property; and


             150          (ii) an interest in real property may not be forfeited under this Subsection (3)(e)(ii) if the
             151      owner or interest holder did not know [or have reason to know] of or participate in the conduct
             152      which made the property subject to forfeiture, or did not willingly consent to the conduct; [and]
             153          [(iii) unless the premises are used in producing, cultivating, or manufacturing controlled
             154      substances, a housing, warehousing, or storage facility or interest in real property may not be
             155      forfeited under this subsection unless cumulative sales of controlled substances on the property
             156      within a two-month period total or exceed $1,000, or the street value of any controlled substances
             157      found on the premises at any given time totals or exceeds $1,000. A narcotics officer experienced
             158      in controlled substances law enforcement may testify to establish the street value of the controlled
             159      substances for purposes of this subsection;]
             160          [(j)] (f) any firearm, weapon, or ammunition carried or used during or in relation to a
             161      violation of this chapter or any firearm, weapon, or ammunition kept or located within the
             162      proximity of controlled substances or other property subject to forfeiture under this section but
             163      only if the owner of the firearm, weapon, or ammunition, or another person acting with the consent
             164      and knowledge of the owner, used the weapon, firearm, or ammunition, or intended that the
             165      weapon, firearm, or ammunition be used in a manner that would subject it to forfeiture under this
             166      Subsection (3)(f); and
             167          [(k)] (g) all proceeds traceable to any violation of this chapter[. There is a rebuttable
             168      presumption that all], but the burden of proof is upon the prosecuting agency to establish that the
             169      proceeds are traceable to a violation of this chapter; the discovery of money, coins, and currency
             170      found in proximity to forfeitable controlled substances, drug manufacturing equipment or supplies,
             171      drug distributing paraphernalia, or forfeitable records of importation, manufacture, or distribution
             172      of controlled substances is evidence that the money, coins, and currency are proceeds traceable to
             173      a violation of this chapter. [The burden of proof is upon the claimant of the property to rebut this
             174      presumption.]
             175          [(3)] (4) (a) Property subject to forfeiture under this chapter may be seized by any peace
             176      officer of this state upon process issued by any court having jurisdiction over the property.
             177      However, seizure without process may be made when:
             178          (i) the seizure is incident to an arrest or search under a search warrant or an inspection
             179      under an administrative inspection warrant;
             180          (ii) the property subject to seizure has been the subject of a prior judgment in favor of the


             181      state in a criminal injunction or forfeiture proceeding under this chapter;
             182          (iii) the peace officer has probable cause to believe that the property is directly or indirectly
             183      dangerous to health or safety; [or]
             184          (iv) the peace officer has probable cause to believe that the property has been used or
             185      intended to be used in violation of this chapter and has probable cause to believe the property will
             186      be damaged, intentionally diminished in value, destroyed, concealed, or removed from the state[.];
             187      or
             188          (v) if the property subject to forfeiture is a conveyance under Subsection (4)(a), the law
             189      enforcement officer may seize the property based solely upon probable cause to believe:
             190          (A) the conveyance has been used in violation of this chapter; and
             191          (B) the property is readily mobile and located in an area open to the public at the time of
             192      the seizure.
             193          (b) (i) [Upon the filing of a complaint, the] The agency responsible for the seizure of the
             194      property without process shall apply for a search warrant to the court having jurisdiction.
             195          (ii) The application shall be made within 30 days of the seizure and shall contain a
             196      statement of the cause justifying the seizure.
             197          (iii) The court, upon a showing of probable cause to believe the seized property is subject
             198      to forfeiture under this section, shall immediately issue to the seizing agency a warrant for seizure
             199      of any property subject to forfeiture which had been seized without a warrant in a manner
             200      described in this Subsection (4).
             201          (iv) This Subsection (4) does not apply to property seized regarding which a search warrant
             202      or seizure warrant was issued prior to the seizure of the property.
             203          (v) Property listed in Subsection (3)(e) may not be seized without:
             204          (A) notice to all owners and interest holders; and
             205          (B) a hearing being held prior to a seizure warrant being issued.
             206          [(4)] (5) In the event of seizure under Subsection [(3)] (4), forfeiture proceedings under
             207      Subsection [(9)] (10) shall be instituted within 90 days of the seizure. The time period may by
             208      extended by the court having jurisdiction over the property upon notice to all claimants, owners,
             209      and interest holders and for good cause shown.
             210          [(5)] (6) (a) Property taken or detained under this section is not repleviable but is in
             211      custody of the law enforcement agency making the seizure, subject only to the orders and decrees


             212      of the court or the official having jurisdiction. When property is seized under this chapter, the
             213      appropriate person or agency [may] shall:
             214          [(a)] (i) place the property under seal;
             215          [(b)] (ii) remove the property to a place designated by it or the warrant under which it was
             216      seized; or
             217          [(c)] (iii) take custody of the property and remove it to an appropriate location for
             218      disposition in accordance with law.
             219          (b) (i) The seizing agency is responsible for the management and safekeeping of any
             220      property seized under this chapter, from the time of seizure until an order of forfeiture is entered
             221      or the property is ordered to be returned to a claimant or interest holder.
             222          (ii) The seizing agency shall deposit property in the form of cash or other readily
             223      negotiable instruments into a restricted account maintained by the agency solely for the purpose
             224      of managing and protecting the property from commingling, loss, or devaluation during the
             225      pendency of the forfeiture action.
             226          (iii) (A) The seizing agency shall have in place written rules and protocol for the
             227      identification, tracking, management, and safekeeping of seized property. These rules shall include
             228      a prohibition against the sale or personal use of forfeited property by any employee of the seizing
             229      agency.
             230          (B) If the seizing agency has not established rules in compliance with this Subsection
             231      (6)(b)(iii), the agency may not be awarded forfeited property under Subsection (10).
             232          [(6)] (7) (a) All substances listed in [Schedule] Schedules I through V, and all items listed
             233      in Subsections (2) and (3)(a), (b), and (d) that are possessed, transferred, distributed, or offered for
             234      distribution in violation of this chapter are contraband, are summarily forfeited, and no property
             235      right [shall exist] exists in them.
             236          (b) All substances listed in Schedule I which are seized or come into the possession of the
             237      state may be retained for any evidentiary or investigative purpose, including sampling or other
             238      preservation prior to disposal or destruction by the state.
             239          [(7)] (8) (a) All marijuana or any species of plants from which controlled substances in
             240      Schedules I and II are derived which have been planted or cultivated in violation of this chapter,
             241      or of which the owners or cultivators are unknown, or are wild growths, may be seized and
             242      retained for any evidentiary or investigative purpose, including sampling or other preservation


             243      prior to disposal or destruction by the state.
             244          (b) Failure, upon demand by the department or its authorized agent, of any person in
             245      occupancy or in control of land or premises upon which species of plants are growing or being
             246      stored, to produce an appropriate license or proof that he is the holder of a license, is authority for
             247      the seizure and forfeiture of the plants.
             248          [(8)] (9) When any property is forfeited under this chapter [by a finding of the court that
             249      no person is entitled to recover the property, it shall be deposited in the custody of the Division of
             250      Finance. Disposition of all], the property [is] shall be disposed of, managed, and used as follows:
             251          (a) (i) The [state may include] prosecuting agency may in its complaint seeking forfeiture[,
             252      a] request that the seizing agency be awarded the property. The request shall include a statement
             253      demonstrating to the court that the agency has established rules and protocol for managing seized
             254      property, in accordance with Subsection (6)(b)(iii).
             255          (ii) Upon a finding that the seizing agency [is able to use the forfeited property in the
             256      enforcement of controlled substances laws] meets the requirements of Subsection (9)(a)(i), the
             257      court having jurisdiction over the case shall award the property to the seizing agency. [Each
             258      agency shall use the forfeited property for controlled substance law enforcement purposes only.]
             259          (iii) Property forfeited under this section may not be applied by the court to costs or fines
             260      assessed against any defendant in the case.
             261          (iv) The court shall direct that all forfeited property which is not awarded under Subsection
             262      (9)(a)(ii) or is not returned to a claimant, owner, or interest holder be disposed of, and the proceeds
             263      deposited in the State Drug Forfeiture Account established in Section 58-37-20 .
             264          (b) (i) The legislative body shall ensure that the prosecuting agency is reimbursed for the
             265      legal costs of filing and pursuing the forfeiture from forfeited property and proceeds of the sale of
             266      forfeited property, but only to the extent that the monies and property cover these costs.
             267          (ii) The balance of forfeited property and proceeds remaining after reimbursement under
             268      Subsection (9)(b)(i), may be used for purposes listed under Subsection (9)(b)(iii), and shall be used
             269      only in amounts approved by the legislative body.
             270          (iii) (A) Forfeited property or proceeds h [ should ] shall h be used for controlled substance
             270a      law
             271      enforcement purposes.
             272          (B) In allocating forfeited property or proceeds, the legislative body h [ should ] shall h
             272a      allocate the
             273      forfeited property or proceeds for controlled substance law enforcement purposes, upon a finding


             274      by the legislative body that the allocation results in the most effective use of the property, taking
             275      into consideration the seizing agency's controlled substances law enforcement budget and the
             276      economic impact of controlled substance violations in the community.
             277          (C) If the legislative body of a multijurisdictional task force chooses to apply the funds to
             278      substance abuse programs, the funds must equally benefit all participating agencies.
             279          (iv) Forfeited property or proceeds from the sale of forfeited property may not be used to
             280      pay any cash incentive, award, or bonus to any peace officer or individual acting as an agent for
             281      the agency, nor may it be used to supplant any ordinary operating expense of [the] a law
             282      enforcement agency. [The seizing agency shall pay to the prosecuting agency the legal costs
             283      incurred in filing and pursuing the forfeiture action. Property forfeited under this section may not
             284      be applied by the court to costs or fines assessed against any defendant in the case.]
             285          [(b) The seizing agency, or if it makes no application, any state agency, bureau, county,
             286      or municipality, which demonstrates a need for specific property or classes of property subject to
             287      forfeiture shall be given the property for use in enforcement of controlled substances laws upon
             288      the payment of costs to the county attorney or, if within a prosecution district, the district attorney
             289      for legal costs for filing and pursuing the forfeiture and upon application for the property to the
             290      director of the Division of Finance. The application shall clearly set forth the need for the property
             291      and the use to which the property will be put.]
             292          [(c) The director of the Division of Finance shall review all applications for property
             293      submitted under Subsection (8)(b) and, if the seizing agency makes no application, make a
             294      determination based on necessity and advisability as to final disposition and shall notify the
             295      designated applicant or seizing agency, where no application is made, who may obtain the property
             296      upon payment of all costs to the appropriate department. The Division of Finance shall in turn
             297      reimburse the prosecuting agency or agencies for costs of filing and pursuing the forfeiture action,
             298      not to exceed the amount of the net proceeds received for the sale of the property. Any proceeds
             299      remaining after payment shall be returned to the seizing agency or agencies.]
             300          [(d) If no disposition is made upon an application under Subsection (8)(a) or (b), the
             301      director of the Division of Finance shall dispose of the property by public bidding or as considered
             302      appropriate, by destruction. Proof of destruction shall be upon oath of two officers or employees
             303      of the department having charge of the property, and verified by the director of the department or
             304      his designated agent.]


             305          (c) (i) The agency to which forfeited property and proceeds are awarded by the court, by
             306      the federal government, or by any other entity shall:
             307          (A) maintain the property and proceeds in accordance with this Subsection (9)(c); and
             308          (B) file an annual report with CCJJ that provides a complete accounting of the deposits
             309      and expenditures from the restricted account and the disposition of all forfeited property that is
             310      allocated without being sold.
             311          (ii) The seizing agency shall place all forfeited monies in a restricted account. Monies in
             312      the account h [ may ] shall h be used in accordance with Subsection (9)(b). Forfeited property may
             312a      be sold,
             313      and the proceeds deposited in the restricted account, or the forfeited property may be allocated
             314      directly to the seizing agency, upon a finding by the legislative body that the allocation results in
             315      the most effective use of the property in accordance with Subsection (9)(b).
             316          (iii) All allocations of forfeited property or proceeds by the legislative body are subject to
             317      Subsection (9)(b), and may be used for matching grants to be used in controlled substance law
             318      enforcement.
             319          (d) The legislative body shall allocate the money for the purposes under Subsection
             320      (9)(b)(ii) within three years of receipt of the money, or at the end of the three years shall deposit
             321      the remaining money in the State Drug Forfeiture Account established in Section 58-37-20 .
             322          [(9) ] (10) Forfeiture proceedings shall be commenced as follows:
             323          (a) For actions brought under [Subsections (2)(a) through (2)(j)] Subsection (3)(a), (c), (e),
             324      or (f), a complaint shall be prepared by the [county attorney, or if within a prosecution district, the
             325      district attorney, or the attorney general] prosecuting agency, and filed in a court of record where
             326      the property was seized or is to be seized. In cases in which the claimant of the property is also
             327      charged as a criminal defendant, the complaint shall be filed in the county where the criminal
             328      charges arose, regardless of the location of the property. The complaint shall include:
             329          (i) a description of the property which is subject to forfeiture;
             330          (ii) the date and place of seizure[, if known]; and
             331          (iii) the allegations of conduct which gives rise to forfeiture.
             332          (b) (i) In cases brought under Subsection (3)(a), (c), (e), or (f) where the owner or a
             333      claimant is also charged as a criminal defendant, the forfeiture shall proceed as part of the criminal
             334      prosecution as an in personam action against the defendant's interest in the property subject to
             335      forfeiture. A defendant need not file a written answer to the complaint, but may acknowledge or


             336      deny interest in the property at the time of first appearance on the criminal charges. If a criminal
             337      information or indictment is amended to include a demand for forfeiture, the defendant may
             338      respond to the demand at the time of the amendment.
             339          [(i)] (ii) Unless motion for disposition is made by the defendant, the determination of
             340      forfeiture shall be stayed until resolution of the criminal charges. Hearing on the forfeiture shall
             341      be before the court without a jury. The court may consider any evidence presented in the criminal
             342      case, and receive any other evidence offered by the state or the defendant. The court shall
             343      determine by a preponderance of the evidence the issues in the case and order forfeiture or release
             344      of the property as it determines.
             345          [(ii)] (iii) A defendant may move the court to transfer the forfeiture action, to stay all
             346      action, including discovery, in the forfeiture, or for hearing on the forfeiture any time prior to trial
             347      of the criminal charges. Either party may move the court to enter a finding of forfeiture as to
             348      defendant's interest in part or all of the property, either by default or by stipulation. [Upon entry
             349      of a finding, the court shall stay the entry of judgment until resolution of the criminal charges. Any
             350      finding of forfeiture entered by the court prior to resolution of the criminal charges may not
             351      constitute a separate judgment, and any motion for disposition, stay, severance, or transfer of the
             352      forfeiture action may not create a separate proceeding. Upon the granting of a motion by the
             353      defendant for disposition, stay, severance, or transfer of the forfeiture action, the defendant shall
             354      be considered to have waived any claim that the defendant has been twice put in jeopardy for the
             355      same offense.]
             356          [(iii)] (iv) Any other person claiming an interest in property subject to forfeiture under this
             357      subsection may not intervene in a trial or appeal of a complaint filed under this subsection.
             358      Following the entry of an in personam forfeiture order, or upon the filing of a petition for release
             359      under Subsection (10)(e), the county attorney, district attorney, or attorney general may proceed
             360      with a separate in rem action to resolve any other claims upon the property subject to forfeiture.
             361          (c) [A complaint] In actions seeking forfeiture under Subsection [(2)(k)] (3)(g), a
             362      complaint shall be prepared by the [county attorney, or if within a prosecution district, the district
             363      attorney, or by the attorney general] prosecuting agency, either in personam as part of a criminal
             364      prosecution, or in a separate civil in rem action against the property alleged to be proceeds[, and]
             365      obtained in violation of this chapter. The complaint shall be filed in the county where the property
             366      is seized or encumbered, if the proceeds are located outside the state. A finding that property is


             367      the proceeds of a violation of this chapter does not require proof that the property is the proceeds
             368      of any particular exchange or transaction. Proof that property is proceeds may be shown by
             369      evidence which establishes all of the following by a preponderance of the evidence:
             370          (i) that the owner, if any claim of ownership is made, and the person [has] from whom the
             371      property was seized have engaged in conduct in violation of this chapter;
             372          (ii) that the property was acquired by the owner, if any claim of ownership is made, and
             373      the person from whom the property was seized during that period when the conduct in violation
             374      of this chapter occurred or within a reasonable time after that period; and
             375          (iii) that there was no likely source for the property other than conduct in violation of the
             376      chapter.
             377          (d) Notice of the seizure and intended forfeiture shall be filed with the clerk of the court,
             378      and served upon all persons known to the county attorney or district attorney to have a claim in the
             379      property by:
             380          (i) personal service upon [a] any owner or claimant [who is charged in a criminal
             381      information or indictment] in all in personam forfeiture actions, and upon all owners of real
             382      property subject to forfeiture in all cases, whether in personam or in rem; [and]
             383          (ii) certified mail to each owner, interest holder, or claimant, in an in rem forfeiture
             384      proceeding not affecting real property, whose name and address is known or to each owner whose
             385      right, title, or interest is of record in the Division of Motor Vehicles to the address given upon the
             386      records of the division, which service is considered complete upon mailing even though the mail
             387      is refused or cannot be forwarded[.]; and
             388          (iii) [The county attorney, district attorney, or attorney general shall make] one
             389      publication, made by the prosecuting agency, in a newspaper of general circulation in the county
             390      where the seizure was made for all other claimants whose addresses are unknown, but who are
             391      believed to have an interest in the property.
             392          (e) Except under Subsection [(9)] (10)(a) in personam actions, any claimant or interest
             393      holder shall file with the court a verified answer to the complaint within 20 days after service.
             394      When property is seized under this chapter, any interest holder or claimant of the property, prior
             395      to being served with a complaint under this section, may file a petition in the court having
             396      jurisdiction for release of his interest in the property. The petition shall specify the claimant's
             397      interest in the property and his right to have it released. A copy shall be served upon the [county


             398      attorney or, if within a prosecution district, the district attorney] prosecuting agency in the county
             399      of the seizure, who shall answer the petition within 20 days. A petitioner need not answer a
             400      complaint of forfeiture.
             401          (f) (i) For civil actions in rem, after 20 days following service of a complaint or petition
             402      for release, the court shall examine the record and if no answer is on file, the court shall allow the
             403      complainant or petitioner an opportunity to present evidence in support of his claim and order
             404      forfeiture or release of the property as the court determines.
             405          (ii) If the [county attorney or district attorney] prosecuting agency has not filed an answer
             406      to a petition for release and the court determines from the evidence presented to the court by the
             407      petitioner that the petitioner is not entitled to recovery of the property, it shall enter an order
             408      directing the county attorney or district attorney to answer the petition within ten days. If no
             409      answer is filed within that period, the court shall order the release of the property to the petitioner
             410      entitled to receive it.
             411          (g) When an answer to a complaint or petition appears of record at the end of 20 days, the
             412      court shall set the matter for hearing. At this hearing all [interested parties] claimants, owners, and
             413      interest holders may present evidence of their rights of release of the property following the state's
             414      evidence for forfeiture. The court shall determine by a preponderance of the evidence the issues
             415      in the case and order forfeiture or release of the property as it determines.
             416          (h) When the court determines that the claimants under Subsection (10)(g) have no right
             417      in the property in whole or in part, it shall declare the property to be forfeited.
             418          (i) When the court determines that property, in whole or in part, is not subject to forfeiture,
             419      it shall order release of the property to the proper claimant. If the court determines that the
             420      property is subject to forfeiture and release in part, it shall order partial release and partial
             421      forfeiture. When the property cannot be divided for partial forfeiture and release, the court shall
             422      order it sold and the proceeds distributed:
             423          (i) first, proportionally among the legitimate claimants; and
             424          (ii) second, [to defray the costs of the action, including seizure, storage of the property,
             425      legal costs of filing and pursuing the forfeiture, and costs of sale; and] by the procedures under
             426      Subsection (8).
             427          [(iii) third, to the Division of Finance for the General Fund.]
             428          (j) In a proceeding under this section where forfeiture is declared, in whole or in part, the


             429      court shall assess all costs of the forfeiture proceeding, including seizure and storage of the
             430      property, against the individual or individuals whose conduct was the basis of the forfeiture, and
             431      may assess costs against any other claimant or claimants to the property as appropriate.
             432          Section 3. Section 58-37-15 is amended to read:
             433           58-37-15. Burden of proof in proceedings on violations -- Exemptions -- Enforcement
             434      officers exempt from liability.
             435          (1) It is not necessary for the state to negate any exemption or exception set forth in this
             436      act in any complaint, information, indictment or other pleading or trial, hearing, or other
             437      proceeding under this act, and the burden of proof of any exemption or exception is upon the
             438      person claiming its benefit.
             439          (2) In absence of proof that a person is the duly authorized holder of an appropriate license,
             440      registration, order form, or prescription issued under this act, he shall be presumed not to be the
             441      holder of a license, registration, order form, or prescription, and the burden of proof is upon him
             442      to rebut the presumption.
             443          (3) The provisions of Subsections (1) and (2) do not apply to forfeiture proceedings under
             444      this chapter.
             445          [(3)] (4) No liability shall be imposed upon any duly authorized state or federal officer
             446      engaged in the enforcement of this act who is engaged in the enforcement of any law, municipal
             447      ordinance, or regulation relating to controlled substances.
             448          Section 4. Section 58-37-20 is amended to read:
             449           58-37-20. Drug Forfeiture Account created -- Revenue sources -- Use of account
             450      designated.
             451          (1) (a) There is created in the General Fund a restricted account called the "Drug Forfeiture
             452      Account."
             453          (b) All monies and property forfeited [or seized to the state] to the Department of Public
             454      Safety or the Department of Corrections, or any division or agency within either department,
             455      through the state or federal court process as a result of activity involving a controlled substance
             456      violation as prohibited under Title 58, Chapter 37, 37a, 37b, 37c, or 37d, or prohibited under
             457      federal law, shall be deposited into the Drug Forfeiture Account.
             458          (2) The Department of Public Safety and the Commission on Criminal and Juvenile Justice
             459      may expend amounts as appropriated by the Legislature from the Drug Forfeiture Account to aid


             460      in enforcement efforts to combat drug trafficking.
             461          (3) That portion of funds forfeited or [siezed] seized that are required to be disbursed to
             462      other governmental entities under existing contractual agreements are exempt from this section.
             463          (4) Funds forfeited or seized as a result of the Salt Lake Airport Drug Program, not to
             464      exceed the Department of Public Safety's expenditure to that program, are exempt from this
             465      section.
             466          (5) The Department of Public Safety as part of the annual budget hearings shall provide
             467      the Executive Offices, Criminal Justice, and Legislature Appropriations Subcommittee with a
             468      complete accounting of expenditures and revenues from the funds under this section.
             469          (6) The Legislature may annually provide, in the Appropriations Act, legislative direction
             470      for anticipated expenditures of the monies received under this section.


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