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H.B. 304

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AUTO FORFEITURE OF THOSE SOLICITING PROSTITUTES

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1997 GENERAL SESSION

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STATE OF UTAH

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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

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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

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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

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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


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