H.B. 304

1

AUTO FORFEITURE OF THOSE SOLICITING PROSTITUTES
2 1997 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Steve Barth
5 AN ACT RELATING TO THE CRIMINAL CODE; PROVIDING FOR THE FORFEITURE OF
6 VEHICLES USED IN SOLICITING OR PATRONIZING PROSTITUTES.
7 This act affects sections of Utah Code Annotated 1953 as follows:
8 ENACTS:
9 76-10-1315, Utah Code Annotated 1953
10 Be it enacted by the Legislature of the state of Utah:
11 Section 1. Section 76-10-1315 is enacted to read:
12 76-10-1315. Forfeiture of motor vehicle -- Grounds -- Procedure -- Disposition of
13 vehicle.
14 (1) Any motor vehicle, as defined in Section 41-3-102, used in the commission of a
15 violation of Section 76-10-1302, 76-10-1303, 76-10-1305, 76-10-1306, or 76-10-1313 is subject
16 to civil forfeiture and no property right exists in it.
17 (2) A motor vehicle subject to forfeiture under Subsection (1) may be seized by any peace
18 officer of this state upon process issued by any court having jurisdiction over the property.
19 However, seizure without process may be made when:
20 (a) the seizure is incident to an arrest or search under a search warrant, an inspection under
21 an administrative inspection warrant, under a writ of attachment, or under a writ of garnishment;
22 (b) the motor vehicle subject to seizure has been the subject of a prior judgment in favor
23 of the state in a criminal injunction or forfeiture proceeding under this section; or
24 (c) the peace officer has probable cause to believe that the motor vehicle has been used in
25 violation of Section 76-10-1302, 76-10-1303, 76-10-1305, 76-10-1306, or 76-10-1313.
26 (3) In the event of seizure under Subsection (2), proceedings under Subsection (4) shall
27 be instituted promptly.

1 (4) A motor vehicle taken or detained under this section is not repleviable but is in custody
2 of the law enforcement agency making the seizure, subject only to the orders and decrees of the
3 court or the official having jurisdiction. When a motor vehicle is seized under this section, the
4 appropriate person or agency may:
5 (a) place the motor vehicle under seal;
6 (b) remove the motor vehicle to a place designated by the person or agency or the warrant
7 under which it was seized; or
8 (c) take custody of the motor vehicle and remove it to an appropriate location for
9 disposition in accordance with law.
10 (5) When a motor vehicle is subject to civil forfeiture, a determination for forfeiture to the
11 state shall be made as follows:
12 (a) A complaint verified on oath or affirmation shall be prepared by the prosecuting
13 agency where the motor vehicle was seized or is to be seized. A complaint shall be filed in the
14 district court. The complaint shall describe with reasonable particularity:
15 (i) the motor vehicle which is the subject matter of the proceedings, including, if known,
16 the make, model, year, and license plate number;
17 (ii) the date and place of seizure, if known; and
18 (iii) the allegations which constitute a basis for forfeiture.
19 (b) Upon filing the complaint, the clerk of the court shall immediately issue a warrant for
20 seizure of the motor vehicle which is the subject matter of the action and deliver it to a peace
21 officer for service, unless the motor vehicle has previously been seized without a warrant under
22 Subsection (2). If the motor vehicle was seized under Subsection (2), the warrant of seizure shall
23 be delivered to the officer having custody of the motor vehicle who shall proceed as directed in
24 the warrant.
25 (c) Notice of the seizure and intended forfeiture shall be filed with the county clerk, and
26 served together with a copy of the complaint, upon all persons known to the prosecuting agency
27 to have a claim in the motor vehicle by one of the following methods:
28 (i) upon each claimant whose name and address is known, at the last-known address of the
29 claimant, or upon each owner whose right, title, or interest is of record in the Division of Motor
30 Vehicles, by mailing a copy of the notice and complaint by certified mail to the address given upon
31 the records of the division, which service is considered complete even though the mail is refused

- 2 -

1 or cannot be forwarded; and
2 (ii) upon all other claimants whose addresses are unknown, but who are believed to have
3 an interest in the motor vehicle, by one publication in a newspaper of general circulation in the
4 county where the seizure was made.
5 (d) Except under Subsection (5)(e), any claimant or interested party shall file with the
6 court a verified answer to the complaint within 20 days after service has been obtained.
7 (e) When a motor vehicle is seized under this section, any interested person or claimant
8 of the motor vehicle, prior to being served with a complaint under this section, may file a petition
9 in the court having jurisdiction for release of their interest in the motor vehicle. The petition shall
10 specify the claimant's interest in the motor vehicle and their right to have it released. A copy shall
11 be served upon the county attorney in the county of the seizure, who shall answer the petition
12 within 20 days. A petitioner need not answer a complaint of forfeiture.
13 (f) After 20 days following service of a complaint or petition for release, the court shall
14 examine the record and if no answer is on file, the court shall allow the complainant or petitioner
15 an opportunity to present evidence in support of their claim and order forfeiture or release of the
16 motor vehicle as the court determines. If a prosecuting agency has not filed an answer to a petition
17 for release and the court determines from the evidence that the petitioner is not entitled to recovery
18 of the motor vehicle, it shall enter an order directing the prosecuting agency to answer the petition
19 within ten days. If no answer is filed within that period, the court shall order the release of the
20 motor vehicle to the petitioner.
21 (g) When an answer to a complaint or petition appears of record at the end of 20 days, the
22 court shall set the matter for hearing within 20 days. At this hearing all interested parties may
23 present evidence of their rights of release of the motor vehicle following the state's evidence for
24 forfeiture. The court shall determine by a preponderance of the evidence the issues in the case and
25 order forfeiture or release of the motor vehicle as it determines.
26 (h) When the court determines that claimants have no right in the motor vehicle in whole
27 or in part, it shall declare the motor vehicle to be forfeited and direct it to be delivered as provided
28 in Subsection (6).
29 (i) When the court determines that a motor vehicle, in whole or in part, is not subject to
30 forfeiture, it shall order release of the motor vehicle to the proper claimant. If the court determines
31 that the motor vehicle is subject to forfeiture in part and release in part, it shall order it sold and

- 3 -

1 the proceeds distributed:
2 (i) first, to defray the costs of the action, including seizure, storage of the motor vehicle,
3 legal costs of filing and pursuing the forfeiture, and costs of sale;
4 (ii) second, proportionally among the legitimate claimants; and
5 (iii) third, as provided under Subsection (6).
6 (6) (a) Disposition of all motor vehicles forfeited under Subsections (1) through (5) by a
7 finding of the court that no person is entitled to recover the motor vehicle shall be to the seizing
8 agency upon a petition by the seizing agency of the motor vehicle in the complaint filed under
9 Subsection (5)(a) and a finding by the court that the seizing agency is able to use the forfeited
10 motor vehicle in the enforcement of offenses under Title 58 and Title 76, Chapter 10.
11 (b) If the seizing agency makes no application or the court does not make a finding under
12 Subsection (6)(a) that the seizing agency should be awarded the motor vehicle, the motor vehicle
13 shall be deposited in the custody of the Division of Finance, to be disposed of by public bidding
14 or, as considered appropriate, by destruction. Proceeds from the sale of the motor vehicle under
15 this Subsection (6)(b) shall be deposited in the General Fund.
16 (c) The court may restrain or stay the sale or disposition of the motor vehicle pending the
17 conclusion of any appeal of the criminal case giving rise to the forfeiture, if the applicant
18 demonstrates that proceeding with the sale or disposition of the motor vehicle would result in
19 irreparable injury, harm, or loss to him.
20 (d) Notwithstanding the provisions of Subsection (6)(b), the proceeds of any sale of a
21 motor vehicle forfeited under this section shall be used first to pay the expenses of the forfeiture
22 and the sale including expenses of seizure, maintenance, and custody of the motor vehicle pending
23 its disposition, advertising, and court costs.
24 (e) Notwithstanding any other provisions of this section, the state shall search the lien
25 records applicable to the motor vehicle to determine whether any valid lien against the motor
26 vehicle has been perfected. As long as the lien holder did not violate the provisions of this section,
27 title to the motor vehicle shall be subject to the lien, and the state will either give possession of the
28 motor vehicle to the lien holder or pay to the lien holder the amount secured by the lien.
29 (7) In a proceeding under this section where forfeiture is declared and the vehicle is
30 destroyed, the court may assess all costs of the forfeiture proceeding including the costs incurred
31 by the prosecuting agency prosecuting the forfeiture and seizure and storage of the motor vehicle

- 4 -

1 against the individual or individuals whose conduct was the basis for the forfeiture.
2 (8) Proceedings under this section are independent of any other proceedings whether civil
3 or criminal under this section or the laws of this state.




Legislative Review Note
as of 2-6-97 9:18 AM

A limited legal review of this bill raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel

- 5 -