Download Zipped Introduced WP 8.0 HB0127.ZIP 34,073 Bytes
[Status][Bill Documents][Fiscal Note][Bills Directory]

H.B. 127

             1     

ASSET FORFEITURE AMENDMENTS

             2     
1999 GENERAL SESSION

             3     
STATE OF UTAH

             4     
Sponsor: Bill Wright

             5      AN ACT RELATING TO CRIMINAL LAW; AMENDING THE CONTROLLED SUBSTANCE
             6      ACT FORFEITURE PROVISIONS, INCLUDING PROCEDURES, BURDEN OF PROOF, AND
             7      USE OF FORFEITED PROPERTY OR PROCEEDS.
             8      This act affects sections of Utah Code Annotated 1953 as follows:
             9      AMENDS:
             10          58-37-2, as last amended by Chapter 64, Laws of Utah 1997
             11          58-37-12, as last amended by Chapter 64, Laws of Utah 1997
             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 use of controlled substances by restricting availability, licensing,
             22      labeling, and packaging of controlled substances and the equipment used solely for manufacturing
             23      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 58-37-2 is amended to read:
             30           58-37-2. Definitions.
             31          (1) As used in this chapter:
             32          (a) "Administer" means the direct application of a controlled substance, whether by
             33      injection, inhalation, ingestion, or any other means, to the body of a patient or research subject by:
             34          (i) a practitioner or, in his presence, by his authorized agent; or
             35          (ii) the patient or research subject at the direction and in the presence of the practitioner.
             36          (b) "Agent" means an authorized person who acts on behalf of or at the direction of a
             37      manufacturer, distributor, or practitioner but does not include a motor carrier, public
             38      warehouseman, or employee of any of them.
             39          (c) "Continuing criminal enterprise" means any individual, sole proprietorship, partnership,
             40      corporation, business trust, association, or other legal entity, and any union or groups of
             41      individuals associated in fact although not a legal entity, and includes illicit as well as licit entities
             42      created or maintained for the purpose of engaging in conduct which constitutes the commission
             43      of episodes of activity made unlawful by Title 58, Chapters 37, 37a, 37b, 37c, or 37d, which
             44      episodes are not isolated, but have the same or similar purposes, results, participants, victims,
             45      methods of commission, or otherwise are interrelated by distinguishing characteristics. Taken
             46      together, the episodes shall demonstrate continuing unlawful conduct and be related either to each
             47      other or to the enterprise.
             48          (d) "Control" means to add, remove, or change the placement of a drug, substance, or
             49      immediate precursor under Section 58-37-3 .
             50          (e) (i) "Controlled substance" means a drug or substance included in Schedules I, II, III,
             51      IV, or V of Section 58-37-4 , and also includes a drug or substance included in Schedules I, II, III,
             52      IV, or V of the federal Controlled Substances Act, Title II, P.L. 91-513, or any controlled substance
             53      analog.
             54          (ii) "Controlled substance" does not include:
             55          (A) distilled spirits, wine, or malt beverages, as those terms are defined or used in Title
             56      32A, regarding tobacco or food;
             57          (B) any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
             58      prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,


             59      norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
             60      or furnished as an over-the-counter medication without prescription; or
             61          (C) dietary supplements, vitamins, minerals, herbs, or other similar substances including
             62      concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
             63      occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
             64      Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
             65          (f) (i) "Controlled substance analog" means a substance the chemical structure of which
             66      is substantially similar to the chemical structure of a controlled substance listed in Schedules I and
             67      II of Section 58-37-4 , or in Schedules I and II of the federal Controlled Substances Act, Title II,
             68      P.L. 91-513:
             69          (A) which has a stimulant, depressant, or hallucinogenic effect on the central nervous
             70      system substantially similar to the stimulant, depressant, or hallucinogenic effect on the central
             71      nervous system of controlled substances in the schedules set forth in this [subsection] chapter; or
             72          (B) which, with respect to a particular individual, is represented or intended to have a
             73      stimulant, depressant, or hallucinogenic effect on the central nervous system substantially similar
             74      to the stimulant, depressant, or hallucinogenic effect on the central nervous system of controlled
             75      substances in the schedules set forth in this Subsection (1)(f)(i)(B).
             76          (ii) Controlled substance analog does not include:
             77          (A) a controlled substance currently scheduled in Schedules I through V of Section
             78      58-37-4 ;
             79          (B) a substance for which there is an approved new drug application;
             80          (C) a substance with respect to which an exemption is in effect for investigational use by
             81      a particular person under Section 505 of the Food, Drug, and Cosmetic Act, 21 U.S.C. 366, to the
             82      extent the conduct with respect to the substance is permitted by the exemption; or
             83          (D) any substance to the extent not intended for human consumption before an exemption
             84      takes effect with respect to the substance.
             85          (E) Any drug intended for lawful use in the diagnosis, cure, mitigation, treatment, or
             86      prevention of disease in man or other animals, which contains ephedrine, pseudoephedrine,
             87      norpseudoephedrine, or phenylpropanolamine if the drug is lawfully purchased, sold, transferred,
             88      or furnished as an over-the-counter medication without prescription.
             89          (F) Dietary supplements, vitamins, minerals, herbs, or other similar substances including


             90      concentrates or extracts, which are not otherwise regulated by law, which may contain naturally
             91      occurring amounts of chemical or substances listed in this chapter, or in rules adopted pursuant to
             92      Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
             93          (g) "Conviction" means a determination of guilt by verdict, whether jury or bench, or plea,
             94      whether guilty or no contest, for any offense proscribed by Title 58, Chapters 37, 37a, 37b, 37c,
             95      or 37d, or for any offense under the laws of the United States and any other state which, if
             96      committed in this state, would be an offense under Title 58, Chapters 37, 37a, 37b, 37c, or 37d.
             97          (h) "Counterfeit substance" means:
             98          (i) any substance or container or labeling of any substance that without authorization bears
             99      the trademark, trade name, or other identifying mark, imprint, number, device, or any likeness of
             100      them, of a manufacturer, distributor, or dispenser other than the person or persons who in fact
             101      manufactured, distributed, or dispensed the substance which falsely purports to be a controlled
             102      substance distributed by, any other manufacturer, distributor, or dispenser; or
             103          (ii) any substance that is represented to be a controlled substance.
             104          (i) "Deliver" or "delivery" means the actual, constructive, or attempted transfer of a
             105      controlled substance or a listed chemical, whether or not an agency relationship exists.
             106          (j) "Department" means the Department of Commerce.
             107          (k) "Depressant or stimulant substance" means:
             108          (i) a drug which contains any quantity of:
             109          (A) barbituric acid or any of the salts of barbituric acid; or
             110          (B) any derivative of barbituric acid which has been designated by the Secretary of
             111      Agriculture as habit-forming under Section 502 (d) of the federal Food, Drug, and Cosmetic Act,
             112      21 U.S.C. 352 (d);
             113          (ii) a drug which contains any quantity of:
             114          (A) amphetamine or any of its optical isomers;
             115          (B) any salt of amphetamine or any salt of an optical isomer of amphetamine; or
             116          (C) any substance which the Secretary of Health and Human Services or the Attorney
             117      General of the United States after investigation has found and by regulation designated
             118      habit-forming because of its stimulant effect on the central nervous system; or
             119          (iii) lysergic acid diethylamide; or
             120          (iv) any drug which contains any quantity of a substance which the Secretary of Health and


             121      Human Services or the Attorney General of the United States after investigation has found to have,
             122      and by regulation designated as having, a potential for abuse because of its depressant or stimulant
             123      effect on the central nervous system or its hallucinogenic effect.
             124          (l) "Dispense" means the delivery of a controlled substance by a pharmacist to an ultimate
             125      user pursuant to the lawful order or prescription of a practitioner, and includes distributing to,
             126      leaving with, giving away, or disposing of that substance as well as the packaging, labeling, or
             127      compounding necessary to prepare the substance for delivery.
             128          (m) "Dispenser" means a pharmacist who dispenses a controlled substance.
             129          (n) "Distribute" means to deliver other than by administering or dispensing a controlled
             130      substance or a listed chemical.
             131          (o) "Distributor" means a person who distributes controlled substances.
             132          (p) "Drug" means:
             133          (i) articles recognized in the official United States Pharmacopoeia, Official Homeopathic
             134      Pharmacopoeia of the United States, or Official National Formulary, or any supplement to any of
             135      them;
             136          (ii) articles intended for use in the diagnosis, cure, mitigation, treatment, or prevention of
             137      disease in man or other animals;
             138          (iii) articles, other than food, intended to affect the structure or function of man or other
             139      animals; and
             140          (iv) articles intended for use as a component of any articles specified in Subsection
             141      (1)(p)(i), (ii), or (iii); but does not include devices or their components, parts, or accessories.
             142          (q) "Drug dependent person" means any individual who unlawfully and habitually uses any
             143      controlled substance to endanger the public morals, health, safety, or welfare, or who is so
             144      dependent upon the use of controlled substances as to have lost the power of self-control with
             145      reference to his dependency.
             146          (r) "Food" means:
             147          (i) any nutrient or substance of plant, mineral, or animal origin other than a drug as
             148      specified in this chapter, and normally ingested by human beings; and
             149          (ii) foods for special dietary uses as exist by reason of a physical, physiological,
             150      pathological, or other condition including but not limited to the conditions of disease,
             151      convalescence, pregnancy, lactation, allergy, hypersensitivity to food, underweight, and


             152      overweight; uses for supplying a particular dietary need which exist by reason of age including but
             153      not limited to the ages of infancy and childbirth, and also uses for supplementing and for fortifying
             154      the ordinary or unusual diet with any vitamin, mineral, or other dietary property for use of a food.
             155      Any particular use of a food is a special dietary use regardless of the nutritional purposes.
             156          (s) "Government attorney" means the state attorney general, any county or district attorney,
             157      any municipal attorney, any deputy or assistant attorney in the office of any of these attorneys, and
             158      any attorney authorized to prosecute violations of Title 58, Chapter 37, Controlled Substances.
             159          (t) "Governmental entity" means:
             160          (i) the state or any agency, authority, instrumentality, quasi-governmental entity, or
             161      institution of the state;
             162          (ii) any county or municipal or quasi-municipal corporation, political subdivision, law
             163      enforcement entity, multijurisdictional task force, agency, school district, special district, or other
             164      governmental entity, including military forces, or any combination of these; or
             165          (iii) the federal government, including any agency, authority, instrumentality,
             166      quasi-governmental entity, or institution of the federal government.
             167          [(s)] (u) "Immediate precursor" means a substance which the Attorney General of the
             168      United States has found to be, and by regulation designated as being, the principal compound used
             169      or produced primarily for use in the manufacture of a controlled substance, or which is an
             170      immediate chemical intermediary used or likely to be used in the manufacture of a controlled
             171      substance, the control of which is necessary to prevent, curtail, or limit the manufacture of the
             172      controlled substance.
             173          (v) "Law enforcement entity" means any of the following entities that are authorized to
             174      enforce this chapter:
             175          (i) any municipal, county, or state agency or unit; and
             176          (ii) any entity comprised of law enforcement officers from more than one law enforcement
             177      entity or jurisdiction.
             178          [(t)] (w) "Manufacture" means the production, preparation, propagation, compounding,
             179      or processing of a controlled substance, either directly or indirectly by extraction from substances
             180      of natural origin, or independently by means of chemical synthesis or by a combination of
             181      extraction and chemical synthesis.
             182          [(u)] (x) "Manufacturer" includes any person who packages, repackages, or labels any


             183      container of any controlled substance, except pharmacists who dispense or compound prescription
             184      orders for delivery to the ultimate consumer.
             185          [(v)] (y) "Marijuana" means all species of the genus cannabis and all parts of the genus,
             186      whether growing or not; the seeds of it; the resin extracted from any part of the plant; and every
             187      compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds, or resin.
             188      The term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake
             189      made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or
             190      preparation of the mature stalks, except the resin extracted from them, fiber, oil or cake, or the
             191      sterilized seed of the plant which is incapable of germination. Any synthetic equivalents of the
             192      substances contained in the plant cannabis sativa or any other species of the genus cannabis which
             193      are chemically indistinguishable and pharmacologically active are also included.
             194          [(w)] (z) "Money" means officially issued coin and currency of the United States or any
             195      foreign country.
             196          (aa) "Multijurisdictional task force" means any law enforcement entity:
             197          (i) authorized to enforce this chapter; and
             198          (ii) that has a jurisdiction that crosses municipal, county, or state boundaries.
             199          [(x)] (bb) "Narcotic drug" means any of the following, whether produced directly or
             200      indirectly by extraction from substances of vegetable origin, or independently by means of
             201      chemical synthesis, or by a combination of extraction and chemical synthesis:
             202          (i) opium, coca leaves, and opiates;
             203          (ii) a compound, manufacture, salt, derivative, or preparation of opium, coca leaves, or
             204      opiates;
             205          (iii) opium poppy and poppy straw; or
             206          (iv) a substance, and any compound, manufacture, salt, derivative, or preparation of the
             207      substance, which is chemically identical with any of the substances referred to in Subsection
             208      (1)(bb)(i), (ii), or (iii), except narcotic drug does not include decocainized coca leaves or extracts
             209      of coca leaves which do not contain cocaine or ecgonine.
             210          [(y)] (cc) "Negotiable instrument" means documents, containing an unconditional promise
             211      to pay a sum of money, which are legally transferable to another party by endorsement or delivery.
             212          [(z)] (dd) "Opiate" means any drug or other substance having an addiction-forming or
             213      addiction-sustaining liability similar to morphine or being capable of conversion into a drug having


             214      addiction-forming or addiction-sustaining liability.
             215          [(aa)] (ee) "Opium poppy" means the plant of the species papaver somniferum L., except
             216      the seeds of the plant.
             217          [(bb)] (ff) "Person" means any corporation, association, partnership, trust, other institution
             218      or entity or one or more individuals.
             219          [(cc)] (gg) "Poppy straw" means all parts, except the seeds, of the opium poppy, after
             220      mowing.
             221          [(dd)] (hh) "Possession" or "use" means the joint or individual ownership, control,
             222      occupancy, holding, retaining, belonging, maintaining, or the application, inhalation, swallowing,
             223      injection, or consumption, as distinguished from distribution, of controlled substances and includes
             224      individual, joint, or group possession or use of controlled substances. For a person to be a
             225      possessor or user of a controlled substance, it is not required that he be shown to have individually
             226      possessed, used, or controlled the substance, but it is sufficient if it is shown that the person jointly
             227      participated with one or more persons in the use, possession, or control of any substances with
             228      knowledge that the activity was occurring, or the controlled substance is found in a place or under
             229      circumstances indicating that the person had the ability and the intent to exercise dominion and
             230      control over it.
             231          [(ee)] (ii) "Practitioner" means a physician, dentist, veterinarian, pharmacist, scientific
             232      investigator, pharmacy, hospital, or other person licensed, registered, or otherwise permitted to
             233      distribute, dispense, conduct research with respect to, administer, or use in teaching or chemical
             234      analysis a controlled substance in the course of professional practice or research in this state.
             235          [(ff)] (jj) "Prescribe" means to issue a prescription orally or in writing.
             236          [(gg)] (kk) "Prescription" means an order issued by a licensed practitioner, in the course
             237      of that practitioner's professional practice, for a controlled substance, other drug, or device which
             238      it dispenses or administers for use by a patient or an animal. The order may be issued by word of
             239      mouth, written document, telephone, facsimile transmission, computer, or other electronic means
             240      of communication as defined by rule.
             241          [(hh)] (ll) "Production" means the manufacture, planting, cultivation, growing, or
             242      harvesting of a controlled substance.
             243          [(ii)] (mm) "Securities" means any stocks, bonds, notes, or other evidences of debt or of
             244      property.


             245          [(jj)] (nn) "State" means the state of Utah.
             246          (oo) "Transfer jurisdiction" means:
             247          (i) the referral, facilitation, or submittal of any request, petition, application, or filing by
             248      any law enforcement entity or government attorney that enables seizure or forfeiture of any assets,
             249      proceeds, property, or proceeds from property by any governmental entity that is not created by and
             250      subject to the laws of the state; and
             251          (ii) the participation by the state, a law enforcement entity, or a government attorney in
             252      federal asset-sharing programs such as those that can be initiated by filing U.S. Justice Department
             253      Form DAG-71 or any similar form that authorizes the transfer of jurisdiction regarding a controlled
             254      substance investigation or prosecution to the federal government.
             255          [(kk)] (pp) "Ultimate user" means any person who lawfully possesses a controlled
             256      substance for his own use, for the use of a member of his household, or for administration to an
             257      animal owned by him or a member of his household.
             258          (2) If a term used in this chapter is not defined, the definition and terms of Title 76, Utah
             259      Criminal Code, shall apply.
             260          Section 3. Section 58-37-12 is amended to read:
             261           58-37-12. Enforcement -- Coordination and cooperation of federal and state agencies
             262      -- Powers.
             263          (1) The department and all law enforcement agencies charged with enforcing this [act]
             264      chapter shall cooperate with federal and other state agencies in discharging their responsibilities
             265      concerning traffic in controlled substances and in suppressing the abuse of controlled substances.
             266      To this end, they are authorized to:
             267          [(1) Arrange] (a) arrange for the exchange of information between governmental officials
             268      concerning the use and abuse of dangerous substances[.];
             269          [(2) Coordinate] (b) coordinate and cooperate in training programs in controlled substance
             270      law enforcement at the local and state levels[.];
             271          [(3) Cooperate] (c) cooperate with the United States Department of Justice and the Utah
             272      Department of Pubic Safety by establishing a centralized unit which will receive, catalog, file, and
             273      collect statistics, including records of drug-dependent persons and other controlled substance law
             274      offenders within the state, and make the information available for federal, state, and local law
             275      enforcement purposes[.]; and


             276          [(4) Conduct] (d) conduct programs of eradication aimed at destroying the wild or illicit
             277      growth of plant species from which controlled substances may be extracted.
             278          (2) (a) Officers or agents of law enforcement entities authorized to enforce this chapter or
             279      any government attorney may not transfer jurisdiction of any seizure or forfeiture initiated under
             280      this chapter.
             281          (b) Any person who violates this Subsection (2) is civilly liable for three times the amount
             282      of actual damages sustained by the plaintiff, and for costs of suit and reasonable attorneys' fees.
             283          (3) (a) Law enforcement entities authorized to enforce this chapter or any government
             284      attorney may not directly or indirectly receive, accept, share, exchange, trade, or otherwise transfer
             285      forfeited assets, proceeds, property, or proceeds from property forfeited or seized under this
             286      chapter from or with the federal government, or any other governmental entity not created under
             287      and subject to the authority of the state.
             288          (b) These seized or forfeited assets, proceeds, property, or proceeds from property may
             289      only be deposited directly into the General Fund of the state or of a municipality or county, as
             290      required under this chapter.
             291          (c) Any person who violates this Subsection (3) is civilly liable for three times the amount
             292      of actual damages sustained by the plaintiff, and for costs of suit and reasonable attorneys' fees.
             293          Section 4. Section 58-37-13 is amended to read:
             294           58-37-13. Property subject to forfeiture -- Seizure -- Procedure.
             295          (1) As used in this section:
             296          (a) "Complaint" means a verified civil in rem complaint seeking forfeiture or any criminal
             297      information or indictment which contains or is amended to include a demand for forfeiture of a
             298      defendant's in personam interest in any property which is subject to forfeiture.
             299          (b) "Drug distributing paraphernalia" means any property used or designed to be used in
             300      the illegal transportation, storage, shipping, or circulation of a controlled substance. Property is
             301      considered "designed to be used" for one or more of the above-listed purposes if the property has
             302      been altered or modified to include a feature or device which would actually promote or conceal
             303      a violation of this chapter.
             304          (c) "Drug manufacturing equipment or supplies" includes any illegally possessed
             305      controlled substance precursor, or any chemical, laboratory equipment, or laboratory supplies
             306      possessed with intent to engage in clandestine laboratory operation as defined in Section 58-37d-3 .


             307          (d) "Interest holder" means a secured party as defined in Section 70A-9-105 (1)(m), a
             308      mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to an
             309      interest in property, whose interest would be perfected against a good faith purchaser for value.
             310      A person who holds property for the benefit of or as an agent or nominee for another, or who is
             311      not in substantial compliance with any statute requiring an interest in property to be recorded or
             312      reflected in public records in order to perfect the interest against a good faith purchaser for value,
             313      is not an interest holder.
             314          (e) "Owner" means an individual who possesses a legal or equitable ownership in real or
             315      personal property, or if title to the property is held in the name of a partnership, trust, corporation,
             316      or other legal entity, an individual who possesses a legal or equitable ownership interest in the
             317      partnership, trust, corporation, or other legal entity.
             318          [(e)] (f) "Proceeds" means property, other than contraband, acquired directly or indirectly
             319      from, produced through, realized through, or caused by an act or omission and includes any
             320      property of any kind without reduction for expenses incurred in the acquisition, maintenance, or
             321      production of that property, or any other purpose.
             322          (g) "Real property" means:
             323          (i) land; and
             324          (ii) any building, fixture, improvement, appurtenance, structure, or other development that
             325      is affixed to land.
             326          [(f)] (h) "Resolution of criminal charges" occurs at the time a claimant who is also charged
             327      with violations under Title 58, Chapters 37, 37a, 37b, 37c, or 37d enters a plea, upon return of a
             328      jury verdict or court ruling in a criminal trial, or upon dismissal of the criminal charge.
             329          [(g)] (i) "Violation of this chapter" means any conduct prohibited by Title 58, Chapters 37,
             330      37a, 37b, 37c, or 37d [or any conduct occurring outside the state which would be a violation of the
             331      laws of the place where the conduct occurred and which would be a violation of Title 58, Chapters
             332      37, 37a, 37b, 37c, or 37d if the conduct had occurred in this state].
             333          (2) (a) [The following are] Property described in Subsections (3)(a) through (k) is subject
             334      to forfeiture [and no] under this section, except that property described in Subsections (3)(b), (c),
             335      (d), (e), (f), and (g), Subsection (3)(i), and Subsection (3)(j) is subject to forfeiture only as part of
             336      an in personam action against a defendant, and the forfeiture shall be proportional, as provided in
             337      Subsection (2)(b), to the use of the property in violation of this chapter.


             338          (b) Forfeiture of property [right exists in them:] under this section shall be proportional
             339      to the use of the property in violation of this chapter only if the property is not contraband or
             340      paraphernalia.
             341          (3) The following property is subject to forfeiture under this section in accordance with
             342      the limitation established under Subsection (2):
             343          (a) all controlled substances which have been manufactured, distributed, dispensed, or
             344      acquired in violation of this chapter;
             345          (b) all raw materials, products, and equipment of any kind used[, or] and intended by the
             346      owner for use, or used with the knowing consent of the owner, in manufacturing, compounding,
             347      processing, delivering, importing, or exporting any controlled substance in violation of this
             348      chapter;
             349          (c) all property used [or] and intended by the owner for use, or used with the knowing
             350      consent of the owner, as a container for property described in Subsections [(2)] (3)(a) and [(2)]
             351      (3)(b);
             352          (d) all hypodermic needles, syringes, and other paraphernalia, not including capsules used
             353      with health food supplements and herbs, used [or] and intended by the owner for use, or used with
             354      the knowing consent of the owner, to administer controlled substances in violation of this chapter;
             355          (e) all conveyances, including aircraft, vehicles, or vessels used [or] and intended by an
             356      interest holder for use, or used with the knowing consent of the owner, to transport, or in any
             357      manner facilitate the transportation, sale, receipt, simple possession, or concealment of property
             358      described in Subsections [(2)] (3)(a) and [(2)] (3)(b), except that:
             359          (i) a conveyance used by any person as a common carrier in the transaction of business as
             360      a common carrier may not be forfeited under this section unless the owner or other person in
             361      charge of the conveyance was a consenting party or knew or had reason to know of the violation
             362      of this chapter;
             363          (ii) a conveyance may not be forfeited under this section by reason of any act or omission
             364      committed or omitted without the owner's knowledge or consent; and
             365          (iii) any forfeiture of a conveyance is subject to the claim of an interest holder who did not
             366      know or have reason to know after the exercise of reasonable diligence that a violation would or
             367      did take place in the use of the conveyance;
             368          (f) all books, records, and research, including formulas, microfilm, tapes, and data used


             369      [or] and intended by the owner for use, or used with the knowing consent of the owner, in violation
             370      of this chapter;
             371          (g) everything of value furnished [or], and intended by the owner to be furnished, in
             372      exchange for a controlled substance in violation of this chapter, and all moneys, negotiable
             373      instruments, and securities used [or] and intended [to be used] by the owner for use, or used with
             374      the knowing consent of the owner, to facilitate any violation of this chapter[. An]; however,
             375      interest in property may not be forfeited under this Subsection (3)(g) unless it is proven by [a
             376      preponderance of the] clear and convincing evidence that the owner or interest holder knew, had
             377      reason to know of, or consented to the conduct which made the property subject to forfeiture[.
             378      The], and the burden of presenting this evidence [shall be] is upon the state;
             379          (h) all imitation controlled substances as defined in Section 58-37b-2 [, Imitation
             380      Controlled Substances Act];
             381          (i) all warehousing, housing, and storage facilities, or interest in real property of any kind
             382      used, [or] and intended by an interest holder for use, or used with the knowing consent of the
             383      owner, in producing, cultivating, warehousing, storing, protecting, or manufacturing any controlled
             384      substances in violation of this chapter, except that:
             385          (i) any forfeiture of a housing, warehousing, or storage facility or interest in real property
             386      is subject to the claim of an owner or interest holder who did not know or have reason to know
             387      [after the exercise of reasonable diligence] that a violation would take place on the property; and
             388          (ii) an interest in property may not be forfeited under this Subsection (3)(i) if the owner
             389      or interest holder did not know or have reason to know of the conduct which made the property
             390      subject to forfeiture, or did not willingly consent to the conduct; [and]
             391          [(iii) unless the premises are used in producing, cultivating, or manufacturing controlled
             392      substances, a housing, warehousing, or storage facility or interest in real property may not be
             393      forfeited under this subsection unless cumulative sales of controlled substances on the property
             394      within a two-month period total or exceed $1,000, or the street value of any controlled substances
             395      found on the premises at any given time totals or exceeds $1,000. A narcotics officer experienced
             396      in controlled substances law enforcement may testify to establish the street value of the controlled
             397      substances for purposes of this subsection;]
             398          (j) any firearm, weapon, or ammunition carried or used, and intended by the owner to be
             399      carried or used, or carried or used with the knowing consent of the owner, during or in relation to


             400      a violation of this chapter [or any firearm, weapon, or ammunition kept or located within the
             401      proximity of controlled substances or other property subject to forfeiture under this section]; and
             402          (k) [all] proceeds [traceable to] proximately resulting from any violation of this chapter[.
             403      There is a rebuttable presumption that all money, coins, and currency found in proximity to
             404      forfeitable controlled substances, drug manufacturing equipment or supplies, drug distributing
             405      paraphernalia, or forfeitable records of importation, manufacture, or distribution of controlled
             406      substances are], and the burden for proving proceeds [traceable to a] proximately result from any
             407      violation of this chapter[. The burden of proof] is upon the [claimant of the property to rebut this
             408      presumption] state.
             409          [(3)] (4) (a) Property subject to forfeiture under this chapter may be seized by any peace
             410      officer of this state upon process issued by any court having jurisdiction over the property.
             411      However, seizure without process may be made when:
             412          (i) the seizure is incident to an arrest or search under a search warrant or an inspection
             413      under an administrative inspection warrant;
             414          (ii) the property subject to seizure has been the subject of a prior judgment in favor of the
             415      state in a criminal injunction or forfeiture proceeding under this chapter;
             416          (iii) the peace officer has probable cause to believe that the property is directly or indirectly
             417      dangerous to health or safety; or
             418          (iv) the peace officer has probable cause to believe that the property, other than real
             419      property, has been used or intended to be used in violation of this chapter and has probable cause
             420      to believe the property will be damaged, intentionally diminished in value, destroyed, concealed,
             421      or removed from the state.
             422          (b) Subsection (4)(a) does not limit a law enforcement entity's authority under Amendment
             423      IV, Constitution of the United States, or under Article 1, Sec. 14, Constitution of Utah.
             424          [(b)] (c) Upon the filing of a complaint, the court [shall immediately] may, upon probable
             425      cause, issue to the seizing agency a warrant for seizure of any property subject to forfeiture which
             426      had been seized without a warrant in a manner described in this Subsection (4).
             427          [(4)] (5) (a) In the event of seizure under Subsection [(3)] (4), forfeiture proceedings under
             428      Subsection [(9)] (10) shall be instituted within [90] 30 days of the seizure.
             429          (b) The time period may by extended by the court having jurisdiction over the property
             430      [upon notice to] for good cause shown and upon approval by all claimants and interest holders [and


             431      for good cause shown].
             432          [(5)] (6) Property taken or detained under this section is not repleviable but is in custody
             433      of the law enforcement agency making the seizure, subject only to the orders and decrees of the
             434      court or the official having jurisdiction. When property is seized under this chapter, the
             435      appropriate person or agency [may] shall:
             436          (a) place the property under seal;
             437          (b) remove the property to a place designated by it or the warrant under which it was
             438      seized; or
             439          (c) take custody of the property and remove it to an appropriate location for disposition
             440      in accordance with law.
             441          [(6)] (7) (a) All substances listed in Schedule I that are possessed, transferred, distributed,
             442      or offered for distribution in violation of this chapter are contraband and no property right [shall
             443      exist] exists in them.
             444          (b) All substances listed in Schedule I which are seized or come into the possession of the
             445      state may be retained for any evidentiary or investigative purpose, including sampling or other
             446      preservation prior to disposal or destruction by the state.
             447          [(7)] (8) (a) All marijuana or any species of plants from which controlled substances in
             448      Schedules I and II are derived which have been planted or cultivated in violation of this chapter,
             449      or of which the owners or cultivators are unknown, or are wild growths, may be seized and
             450      retained for any evidentiary or investigative purpose, including sampling or other preservation
             451      prior to disposal or destruction by the state.
             452          (b) Failure, upon demand by the department or its authorized agent, of any person in
             453      occupancy or in control of land or premises upon which species of plants are growing or being
             454      stored, to produce an appropriate license or proof that he is the holder of a license, is authority for
             455      the seizure and forfeiture of the plants.
             456          [(8)] (9) (a) When any property is forfeited under this chapter by a finding of the court that
             457      no person is entitled to recover the property, [it shall be deposited in the custody of the Division
             458      of Finance. Disposition of all property is as follows:] the treasurer of the county or the
             459      municipality where the property subject to seizure or forfeiture was initially located has authority
             460      to dispose of the property forfeited as provided in this section. However, if a multijurisdictional
             461      task force or employees of more than one law enforcement entity are actively involved in an


             462      investigation which has resulted in property that is subject to seizure and forfeiture, the various law
             463      enforcement entities involved shall jointly determine the proportionate distribution of the property
             464      or proceeds from the property.
             465          [(a) The state may include in its complaint seeking forfeiture, a request that the seizing
             466      agency be awarded the property. Upon a finding that the seizing agency is able to use the forfeited
             467      property in the enforcement of controlled substances laws, the court having jurisdiction over the
             468      case shall award the property to the seizing agency. Each agency shall use the forfeited property
             469      for controlled substance law enforcement purposes only. Forfeited property or proceeds from the
             470      sale of forfeited property may not be used to pay any cash incentive, award, or bonus to any peace
             471      officer or individual acting as an agent for the agency, nor may it be used to supplant any ordinary
             472      operating expense of the agency. The seizing agency shall pay to the prosecuting agency the legal
             473      costs incurred in filing and pursuing the forfeiture action. Property forfeited under this section may
             474      not be applied by the court to costs or fines assessed against any defendant in the case.]
             475          [(b) The seizing agency, or if it makes no application, any state agency, bureau, county,
             476      or municipality, which demonstrates a need for specific property or classes of property subject to
             477      forfeiture shall be given the property for use in enforcement of controlled substances laws upon
             478      the payment of costs to the county attorney or, if within a prosecution district, the district attorney
             479      for legal costs for filing and pursuing the forfeiture and upon application for the property to the
             480      director of the Division of Finance. The application shall clearly set forth the need for the property
             481      and the use to which the property will be put.]
             482          [(c) The director of the Division of Finance shall review all applications for property
             483      submitted under Subsection (8)(b) and, if the seizing agency makes no application, make a
             484      determination based on necessity and advisability as to final disposition and shall notify the
             485      designated applicant or seizing agency, where no application is made, who may obtain the property
             486      upon payment of all costs to the appropriate department. The Division of Finance shall in turn
             487      reimburse the prosecuting agency or agencies for costs of filing and pursuing the forfeiture action,
             488      not to exceed the amount of the net proceeds received for the sale of the property. Any proceeds
             489      remaining after payment shall be returned to the seizing agency or agencies.]
             490          [(d) If no disposition is made upon an application]
             491          (b) (i) The treasurer under Subsection [(8)] (9)(a) [or (b), the director of the Division of
             492      Finance] shall dispose of the property by public bidding [or as considered appropriate, by


             493      destruction. Proof of destruction shall be upon oath of two officers or employees of the
             494      department having charge of the property, and verified by the director of the department or his
             495      designated agent.] and deposit the proceeds in the general fund of the municipality or the county,
             496      as applicable, except:
             497          (A) if the property is cash, it shall be deposited in the general fund of the county or the
             498      municipality, as applicable, or in the Drug Forfeiture Account, if a state law enforcement entity
             499      receives the cash; and
             500          (B) if the property is contraband or paraphernalia, or of no value, it may be destroyed as
             501      provided in Subsection (9)(b)(ii) below.
             502          (ii) If the forfeited property is determined to have no value, is paraphernalia, or otherwise
             503      does not have a lawful purpose, as stated upon the signed statement of two persons who have no
             504      legal or personal interest in the property and who are employees of the treasurer authorized to
             505      dispose of the property, or if the treasurer does not have two employees, two employees of the
             506      political subdivision employing the treasurer, other than employees of the law enforcement entity,
             507      the treasurer may direct the destruction of the property.
             508          (c) The proceeds under this section may be appropriated only by the respective state,
             509      county, or municipal legislative body.
             510          (d) (i) An officer with a law enforcement entity, a government attorney, an employee of
             511      either of these, or any informant or witness who is part of the criminal case regarding which the
             512      property is forfeited may not receive, accept, share, exchange, trade, or otherwise exercise control
             513      over any forfeited assets, proceeds, property, or proceeds from property, except as necessary to
             514      transfer the property for evidentiary purposes or to transfer the property to the treasurer under
             515      Subsection (9)(b)(i).
             516          (ii) Any person who violates this Subsection (9) is civilly liable for three times the amount
             517      of actual damages sustained by the plaintiff, and for costs of suit and reasonable attorneys' fees.
             518          [(9) ] (10) Forfeiture proceedings shall be commenced as follows:
             519          (a) For actions brought [under Subsections (2)(a) through (2)(j)] regarding property under
             520      Subsection (3), a complaint shall be prepared by the county attorney, or if within a prosecution
             521      district, the district attorney, or the attorney general, and filed in a court of record where the
             522      property was seized or is to be seized. In cases in which the claimant of the property is also
             523      charged as a criminal defendant, the complaint shall be filed in the county where the criminal


             524      charges arose, regardless of the location of the property. The complaint shall include:
             525          (i) a description of the property which is subject to forfeiture;
             526          (ii) the date and place of seizure, if known; and
             527          (iii) the allegations of conduct by the owner which gives rise to forfeiture.
             528          (b) (i) In cases where a claimant is also charged as a criminal defendant, the forfeiture shall
             529      proceed as part of the criminal prosecution as an in personam action against the defendant's
             530      interest in the property subject to forfeiture. A defendant need not file a written answer to the
             531      complaint, but may acknowledge or deny interest in the property at the time of first appearance on
             532      the criminal charges. If a criminal information or indictment is amended to include a demand for
             533      forfeiture, the defendant may respond to the demand at the time of the amendment.
             534          [(i)] (ii) Unless a motion for disposition is made by the defendant, the determination of
             535      forfeiture shall be stayed until resolution of the criminal charges. Hearing on the forfeiture shall
             536      be before the court [without a jury], or before a jury if a demand is submitted. However, a jury
             537      trial is considered waived unless demanded. The court may consider any evidence presented in
             538      the criminal case, and receive any other evidence offered by the state or the defendant. The court
             539      shall [determine by a preponderance of the evidence the issues in the case and order forfeiture or
             540      release of the property as it determines] release the property to the claimants unless the court finds
             541      the state has proven the property is subject to forfeiture under this section by clear and convincing
             542      evidence.
             543          [(ii)] (iii) A defendant may move the court to transfer the forfeiture action, to stay all
             544      action, including discovery, in the forfeiture, or for hearing on the forfeiture any time prior to trial
             545      of the criminal charges. Either party may move the court to enter a finding of forfeiture as to
             546      defendant's interest in part or all of the property, either by default or by stipulation. Upon entry
             547      of a finding, the court shall stay the entry of judgment until resolution of the criminal charges.
             548      [Any finding of forfeiture entered by the court prior to resolution of the criminal charges may not
             549      constitute a separate judgment, and any motion for disposition, stay, severance, or transfer of the
             550      forfeiture action may not create a separate proceeding. Upon the granting of a motion by the
             551      defendant for disposition, stay, severance, or transfer of the forfeiture action, the defendant shall
             552      be considered to have waived any claim that the defendant has been twice put in jeopardy for the
             553      same offense.]
             554          [(iii)] (iv) Any other person claiming an interest in property subject to forfeiture under this


             555      Subsection (10) may not intervene in a trial or appeal of a complaint filed under this subsection.
             556      Following the entry of an in personam forfeiture order, or upon the filing of a petition for release
             557      under Subsection (10)(e), the county attorney, district attorney, or attorney general may proceed
             558      with a separate in rem action to resolve any other claims upon the property that is not contraband,
             559      paraphernalia, or proceeds, and that is subject to forfeiture.
             560          (c) (i) A complaint seeking forfeiture under Subsection [(2)] (3)(k), regarding proceeds,
             561      shall be prepared by the county attorney, or if within a prosecution district, the district attorney,
             562      or by the attorney general, either in personam as part of a criminal prosecution, or in a separate
             563      civil in rem action against the property alleged to be proceeds, and filed in the county where the
             564      property is seized or encumbered, if the proceeds are located outside the state.
             565          (ii) A finding that property is the proximate result of proceeds of a violation of this chapter
             566      [does not require] requires proof that the property is the proceeds of [any] a particular exchange
             567      or transaction. Proof that property is the proximate result of the proceeds [may] shall be shown
             568      by [evidence which establishes all of the following by a preponderance of the] the state by clear
             569      and convincing evidence[:].
             570          [(i) that the person has engaged in conduct in violation of this chapter;]
             571          [(ii) that the property was acquired by the person during that period when the conduct in
             572      violation of this chapter occurred or within a reasonable time after that period; and]
             573          [(iii) that there was no likely source for the property other than conduct in violation of the
             574      chapter.]
             575          (d) Notice of the seizure and intended forfeiture shall be filed with the clerk of the court,
             576      and served upon all persons known to the county attorney or district attorney to have a claim in the
             577      property by:
             578          (i) personal service upon [a claimant who is charged in a criminal information or
             579      indictment] all claimants whose addresses are known; and
             580          (ii) [certified mail to each claimant whose name and address is known or to each owner
             581      whose right, title, or interest is of record in the Division of Motor Vehicles to the address given
             582      upon the records of the division, which service is considered complete even though the mail is
             583      refused or cannot be forwarded. The] if the addresses of claimants under Subsection (10)(d) are
             584      unknown, the county attorney, district attorney, or attorney general shall make [one publication]
             585      three publications in a newspaper of general circulation in the county where the seizure was made


             586      [for all other claimants whose addresses are unknown, but who are believed to have an interest in
             587      the property].
             588          (e) (i) Except under Subsection [(9)] (10)(a) in personam actions, when property is seized
             589      under this section, any claimant or interest holder shall file with the court a verified answer to the
             590      complaint within 20 days after receipt of service. [When property is seized under this chapter, any]
             591          (ii) A claimant or interest holder [or claimant of the property], prior to being served with
             592      a complaint under this [section] chapter, may file a petition in the court having jurisdiction for
             593      release of his interest in the property. The petition shall specify the claimant's interest in the
             594      property and his right to have it released. A copy shall be served upon the county attorney or, if
             595      within a prosecution district, the district attorney in the county of the seizure[, who]. The
             596      government attorney shall answer the petition within 20 days. A petitioner need not subsequently
             597      answer a complaint of forfeiture.
             598          (f) (i) For civil actions in rem, after 20 days following service of a complaint or petition
             599      for release, the court shall examine the record and if no answer is on file, the court shall allow the
             600      complainant or petitioner an opportunity to present evidence in support of his claim and order
             601      forfeiture or release of the property as the court determines.
             602          (ii) If the county attorney or district attorney has not filed an answer to a petition for
             603      release and the court determines from the evidence that the petitioner is not entitled to recovery
             604      of the property, it shall enter an order directing the county attorney or district attorney to answer
             605      the petition within ten days. If no answer is filed within that period, the court shall order the
             606      release of the property to the petitioner entitled to receive it.
             607          (g) When an answer to a complaint or petition appears of record at the end of 20 days, the
             608      court shall set the matter for hearing. At this hearing all interested parties may present evidence
             609      of their rights of release of the property following the state's evidence for forfeiture. The court
             610      shall [determine by a preponderance of the evidence the issues in the case and order] release the
             611      property to the petitioner unless the state proves its case for forfeiture [or release] of the property
             612      [as it determines] by clear and convincing evidence. If the state fails to meet its burden, the
             613      property shall be released and the court shall award reasonable attorney fees and costs.
             614          (h) When the court determines that claimants have no right in the property in whole or in
             615      part, it shall declare the property to be forfeited.
             616          (i) When the court determines that property, in whole or in part, is not subject to forfeiture,


             617      it shall order release of the property to the proper claimant. If the court determines that the
             618      property is subject to forfeiture and release in part, it shall order partial release and partial
             619      forfeiture. When the property cannot be divided for partial forfeiture and release, the court shall
             620      order it sold and the proceeds distributed:
             621          (i) first, proportionally among the legitimate claimants; and
             622          (ii) second, [to defray the costs of the action, including seizure, storage of the property,
             623      legal costs of filing and pursuing the forfeiture, and costs of sale; and] by the procedures described
             624      in Subsection (9).
             625          [(iii) third, to the Division of Finance for the General Fund.]
             626          [(j) In a proceeding under this section where forfeiture is declared, in whole or in part, the
             627      court shall assess all costs of the forfeiture proceeding, including seizure and storage of the
             628      property, against the individual or individuals whose conduct was the basis of the forfeiture, and
             629      may assess costs against any other claimant or claimants to the property as appropriate.]
             630          Section 5. Section 58-37-15 is amended to read:
             631           58-37-15. Burden of proof in proceedings on violations -- Enforcement officers
             632      exempt from liability.
             633          (1) [It is not necessary for] The burden of proof is upon the state to negate any exemption
             634      or exception set forth in this [act] chapter in any complaint, information, indictment or other
             635      pleading or trial, hearing, or other proceeding under this [act, and the burden of proof of any
             636      exemption or exception is upon the person claiming its benefit] chapter.
             637          (2) In absence of proof that a person is the [duly] authorized holder of an appropriate
             638      license, registration, order form, or prescription issued under this [act] chapter, he shall be
             639      presumed not to be the holder of a license, registration, order form, or prescription, and the burden
             640      of proof is upon [him] the state to rebut the presumption.
             641          (3) No liability [shall be] is imposed upon any [duly] authorized state or federal officer in
             642      good faith engaged in the enforcement of this [act] chapter who is engaged in the enforcement of
             643      any law, municipal ordinance, or regulation relating to controlled substances.
             644          Section 6. Section 58-37-20 is amended to read:
             645           58-37-20. Drug Forfeiture Account created -- Revenue sources -- Use of account
             646      designated.
             647          (1) (a) There is created in the General Fund a restricted account called the "Drug Forfeiture


             648      Account."
             649          (b) All monies forfeited or seized to the state through the state or federal court process as
             650      a result of activity involving a controlled substance violation as prohibited under Title 58, Chapter
             651      37, 37a, 37b, 37c, or 37d, or prohibited under federal law, shall be deposited into the Drug
             652      Forfeiture Account.
             653          (2) The Department of Public Safety may expend amounts as appropriated by the
             654      Legislature from the Drug Forfeiture Account to aid in enforcement efforts to combat drug
             655      trafficking.
             656          (3) (a) That portion of funds forfeited or [siezed] seized that are required to be disbursed
             657      to other governmental entities under existing contractual agreements, including agreements
             658      established under Section 58-37-13 , regarding involvement of more than one law enforcement
             659      entity, are exempt from this section.
             660          (b) Property and proceeds subject to Subsection 58-37-13 (9) are exempt from this section.
             661          (4) Funds forfeited or seized as a result of the Salt Lake Airport Drug Program, not to
             662      exceed the Department of Public Safety's expenditure to that program, are exempt from this
             663      section.
             664          (5) The Department of Public Safety as part of the annual budget hearings shall:
             665          (a) provide the Executive Offices, Criminal Justice, and Legislature Appropriations
             666      Subcommittee with a complete accounting of expenditures and revenues from the funds under this
             667      section; and
             668          (b) submit a request for appropriations for the coming fiscal year from the Drug Forfeiture
             669      Account, which shall enumerate the specific purposes for which the appropriation is requested.
             670          (6) The Legislature may annually provide, in the Appropriations Act, legislative direction
             671      for anticipated expenditures of the monies received under this section.




Legislative Review Note
    as of 2-15-99 9:43 AM


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

Office of Legislative Research and General Counsel


[Bill Documents][Bills Directory]