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H.B. 127
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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 [
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 [
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 [
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 [
183 container of any controlled substance, except pharmacists who dispense or compound prescription
184 orders for delivery to the ultimate consumer.
185 [
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 [
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 [
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 [
211 to pay a sum of money, which are legally transferable to another party by endorsement or delivery.
212 [
213 addiction-sustaining liability similar to morphine or being capable of conversion into a drug having
214 addiction-forming or addiction-sustaining liability.
215 [
216 the seeds of the plant.
217 [
218 or entity or one or more individuals.
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220 mowing.
221 [
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.
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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 [
236 [
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 [
242 harvesting of a controlled substance.
243 [
244 property.
245 [
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 [
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 [
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 [
268 concerning the use and abuse of dangerous substances[
269 [
270 law enforcement at the local and state levels[
271 [
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[
276 [
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 [
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 [
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 [
330 37a, 37b, 37c, or 37d [
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333 (2) (a) [
334 to forfeiture [
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 [
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[
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 [
350 consent of the owner, as a container for property described in Subsections [
351 (3)(b);
352 (d) all hypodermic needles, syringes, and other paraphernalia, not including capsules used
353 with health food supplements and herbs, used [
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 [
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 [
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 [
370 of this chapter;
371 (g) everything of value furnished [
372 exchange for a controlled substance in violation of this chapter, and all moneys, negotiable
373 instruments, and securities used [
374 the knowing consent of the owner, to facilitate any violation of this chapter[
375 interest in property may not be forfeited under this Subsection (3)(g) unless it is proven by [
376
377 reason to know of, or consented to the conduct which made the property subject to forfeiture[
378
379 (h) all imitation controlled substances as defined in Section 58-37b-2 [
380
381 (i) all warehousing, housing, and storage facilities, or interest in real property of any kind
382 used, [
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 [
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; [
391 [
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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 [
401
402 (k) [
403
404
405
406
407 violation of this chapter[
408
409 [
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 [
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 [
428 Subsection [
429 (b) The time period may by extended by the court having jurisdiction over the property
430 [
431
432 [
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 [
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 [
442 or offered for distribution in violation of this chapter are contraband and no property right [
443
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 [
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 [
457 no person is entitled to recover the property, [
458
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.
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491 (b) (i) The treasurer under Subsection [
492
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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 [
519 (a) For actions brought [
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 [
535 forfeiture shall be stayed until resolution of the criminal charges. Hearing on the forfeiture shall
536 be before the court [
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 [
540
541 the state has proven the property is subject to forfeiture under this section by clear and convincing
542 evidence.
543 [
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 [
549
550
551
552
553
554 [
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 [
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 [
567 or transaction. Proof that property is the proximate result of the proceeds [
568 by [
569 and convincing evidence[
570 [
571 [
572
573 [
574
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 [
579
580 (ii) [
581
582
583
584 unknown, the county attorney, district attorney, or attorney general shall make [
585 three publications in a newspaper of general circulation in the county where the seizure was made
586 [
587
588 (e) (i) Except under Subsection [
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. [
591 (ii) A claimant or interest holder [
592 a complaint under this [
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[
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 [
611 property to the petitioner unless the state proves its case for forfeiture [
612 [
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, [
623
624 in Subsection (9).
625 [
626 [
627
628
629
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) [
634 or exception set forth in this [
635 pleading or trial, hearing, or other proceeding under this [
636
637 (2) In absence of proof that a person is the [
638 license, registration, order form, or prescription issued under this [
639 presumed not to be the holder of a license, registration, order form, or prescription, and the burden
640 of proof is upon [
641 (3) No liability [
642 good faith engaged in the enforcement of this [
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 [
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.