This document includes Senate 2nd and 3rd Reading Floor Amendments incorporated into the bill on Mon, Mar 10, 2014 at 12:05 PM by lpoole. -->
Senate 2nd & 3rd Reading Amendments 3-10-2014 lp/sca
7 LONG TITLE
8 General Description:
9 This bill modifies the Forfeiture and Disposition of Property Act regarding forfeiture
11 Highlighted Provisions:
12 This bill:
13 . modifies the definition of a claimant of property seized for forfeiture;
14 . reduces, and makes mandatory, the number of days within which a prosecutor must
15 file a complaint for civil forfeiture;
16 . provides that the prosecutor is not required to serve notice on a claimant who has
17 disclaimed ownership of the seized property;
18 . requires that service by publication must include a newspaper of general circulation;
19 . provides that if the prosecuting attorney does not S. [
19a specified action regarding forfeiture of the property .S within
20 S. [
21 prosecutorial action may be taken;
22 . requires that a prevailing property owner shall be awarded reasonable legal and
23 attorney costs;
24 . establishes limitations and procedural requirements regarding the transfer of seized
25 property to the federal government; and
26 . limits the amount of forfeited property that may be applied to prosecutorial attorney
27 fees to 20% of the value of the property S. [
29 Money Appropriated in this Bill:
31 Other Special Clauses:
33 Utah Code Sections Affected:
35 24-1-102, as enacted by Laws of Utah 2013, Chapter 394
36 24-4-104, as enacted by Laws of Utah 2013, Chapter 394
37 24-4-105, as enacted by Laws of Utah 2013, Chapter 394
38 24-4-110, as enacted by Laws of Utah 2013, Chapter 394
39 24-4-114, as enacted by Laws of Utah 2013, Chapter 394
40 24-4-115, as enacted by Laws of Utah 2013, Chapter 394
42 Be it enacted by the Legislature of the state of Utah:
43 Section 1. Section 24-1-102 is amended to read:
44 24-1-102. Definitions.
45 As used in this title:
46 (1) "Account" means the Criminal Forfeiture Restricted Account created in Section
47 24-4-116 .
48 (2) (a) "Acquittal" means a finding by a jury or a judge at trial that a claimant is not
50 (b) An acquittal does not include:
51 (i) a verdict of guilty on a lesser or reduced charge;
52 (ii) a plea of guilty to a lesser or reduced charge; or
53 (iii) dismissal of a charge as a result of a negotiated plea agreement.
54 (3) "Agency" means any agency of municipal, county, or state government, including
55 law enforcement agencies, law enforcement personnel, and multijurisdictional task forces.
56 (4) [
62 (c) person or entity who asserts a claim to any property seized for forfeiture under this
64 (5) "Commission" means the Utah Commission on Criminal and Juvenile Justice.
65 (6) "Complaint" means a civil in rem complaint seeking the forfeiture of any real or
66 personal property under this title.
67 (7) "Constructive seizure" means a seizure of property where the property is left in the
68 control of the owner and the seizing agency posts the property with a notice of intent to seek
70 (8) (a) "Contraband" means any property, item, or substance that is unlawful to
71 produce or to possess under state or federal law.
72 (b) All controlled substances that are possessed, transferred, distributed, or offered for
73 distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act, are
75 (9) "Innocent owner" means a claimant who:
76 (a) held an ownership interest in property at the time the conduct subjecting the
77 property to forfeiture occurred, and:
78 (i) did not have actual knowledge of the conduct subjecting the property to forfeiture;
80 (ii) upon learning of the conduct subjecting the property to forfeiture, took reasonable
81 steps to prohibit the illegal use of the property; or
82 (b) acquired an ownership interest in the property and who had no knowledge that the
83 illegal conduct subjecting the property to forfeiture had occurred or that the property had been
84 seized for forfeiture, and:
85 (i) acquired the property in a bona fide transaction for value;
86 (ii) was a person, including a minor child, who acquired an interest in the property
87 through probate or inheritance; or
88 (iii) was a spouse who acquired an interest in property through dissolution of marriage
89 or by operation of law.
91 mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to
92 an interest in property, whose interest would be perfected against a good faith purchaser for
94 (b) "Interest holder" does not mean a person who holds property for the benefit of or as
95 an agent or nominee for another person, or who is not in substantial compliance with any
96 statute requiring an interest in property to be recorded or reflected in public records in order to
97 perfect the interest against a good faith purchaser for value.
98 (11) "Known address" means any address provided by a claimant to the agency at the
99 time the property was seized, or the claimant's most recent address on record with a
100 governmental entity if no address was provided at the time of the seizure.
101 (12) "Legal costs" means the costs and expenses incurred by a party in a forfeiture
103 (13) "Legislative body" means:
104 (a) (i) the Legislature, county commission, county council, city commission, city
105 council, or town council that has fiscal oversight and budgetary approval authority over an
106 agency; or
107 (ii) the agency's governing political subdivision; or
108 (b) the lead governmental entity of a multijurisdictional task force, as designated in a
109 memorandum of understanding executed by the agencies participating in the task force.
110 (14) "Multijurisdictional task force" means a law enforcement task force or other
111 agency comprised of persons who are employed by or acting under the authority of different
112 governmental entities, including federal, state, county or municipal governments, or any
113 combination of these agencies.
114 (15) "Owner" means any person or entity, other than an interest holder, that possesses a
115 bona fide legal or equitable interest in real or personal property.
116 (16) (a) "Proceeds" means:
117 (i) property of any kind that is obtained directly or indirectly as a result of the
118 commission of an offense that gives rise to forfeiture; or
119 (ii) any property acquired directly or indirectly from, produced through, realized
120 through, or caused by an act or omission regarding property under Subsection (16)(a)(i).
Senate 2nd & 3rd Reading Amendments 3-10-2014 lp/sca(b) "Proceeds" includes any property of any kind without reduction for expenses
122 incurred in the acquisition, maintenance, or production of that property, or any other purpose
123 regarding property under Subsection (16)(a)(i).
124 (c) "Proceeds" is not limited to the net gain or profit realized from the offense that
125 gives rise to forfeiture.
126 (17) "Program" means the State Asset Forfeiture Grant Program established in Section
127 24-4-117 .
128 (18) "Property" means all property, whether real or personal, tangible or intangible, but
129 does not include contraband.
130 (19) "Prosecuting attorney" means:
131 (a) the attorney general and any assistant attorney general;
132 (b) any district attorney or deputy district attorney;
133 (c) any county attorney or assistant county attorney; and
134 (d) any other attorney authorized to commence an action on behalf of the state under
135 this title.
136 (20) "Public interest use" means a:
137 (a) use by a government agency as determined by the legislative body of the agency's
138 jurisdiction; or
139 (b) donation of the property to a nonprofit charity registered with the state.
140 (21) "Real property" means land and includes any building, fixture, improvement,
141 appurtenance, structure, or other development that is affixed permanently to land.
142 Section 2. Section 24-4-104 is amended to read:
143 24-4-104. Civil forfeiture procedure.
144 (1) (a) S. [
145 attorney [may elect to] shall file a complaint for civil forfeiture in the appropriate district court.
145a The law enforcement agency shall promptly return seized property, and the prosecuting
145b attorney may take no further action to effect the forfeiture of the property, unless within 75
145c days after the property is seized the prosecuting attorney:
145d (i) files a criminal forfeiture indictment or information under Subsection 24-4-105(2);
145e (ii) obtains a restraining order under Subsection 24-4-105(3);
145f (iii) files a petition under Subsection 24-4-114(1); or
145g (iv) files a civil forfeiture complaint. .S
146 (b) S. [
146a particularity the:
Senate 2nd & 3rd Reading Amendments 3-10-2014 lp/sca(i) property that is the subject of the forfeiture proceeding;
148 (ii) date and place of seizure; and
149 (iii) factual allegations that constitute a basis for forfeiture.
150 (2) (a) After S. [
150a of the
151 complaint and summons upon each claimant known to the prosecuting attorney within 30 days.
153 summons upon any claimant who has disclaimed, in writing, an ownership interest in the
154 seized property.
156 (i) personal service;
157 (ii) certified mail, return receipt requested, to the claimant's known address; or
158 (iii) service by publication, if the prosecuting attorney demonstrates to the court that
159 service cannot reasonably be made by personal service or certified mail[
161 (d) Service by publication shall be by publication of two notices, in two successive
162 weeks, of the forfeiture proceeding:
163 (i) in a newspaper of general circulation in the county in which the seizure occurred;
165 (ii) on Utah's Public Legal Notice Website established in Subsection 45-1-101 (2)(b).
167 (i) personal service;
168 (ii) mailing of a written notice; or
169 (iii) [
171 court may extend the period to complete service under this section for an additional 60 days.
172 (3) (a) In any case where the prosecuting attorney files a complaint for forfeiture, a
173 claimant may file an answer to the complaint.
174 (b) The answer shall be filed within 30 days after the complaint is served upon the
175 claimant as provided in Subsection (2)(b).
176 (4) Except as otherwise provided in this chapter, forfeiture proceedings are governed
177 by the Utah Rules of Civil Procedure.
178 (5) The court shall take all reasonable steps to expedite civil forfeiture proceedings and
179 shall give these proceedings the same priority as is given to criminal cases.
180 (6) In all suits or actions brought under this section for the civil forfeiture of any
181 property, the burden of proof is on the prosecuting attorney to establish by clear and convincing
182 evidence the extent to which, if any, the property is subject to forfeiture.
Senate 2nd & 3rd Reading Amendments 3-10-2014 lp/sca(7) A claimant may file an answer to a complaint for civil forfeiture without posting
184 bond with respect to the property subject to forfeiture.
185 S. [
186 days of the seizure of the property, as required by Subsection 24-4-104 (1):
187 (a) the seizing agency shall promptly return the property to the claimant; and
188 (b) the prosecuting attorney may take no further action to effect the forfeiture of the
190 Section 3. Section 24-4-105 is amended to read:
191 24-4-105. Criminal forfeiture procedure.
192 (1) If a claimant is criminally prosecuted for conduct giving rise to the forfeiture, the
193 prosecuting attorney may elect to seek forfeiture of the claimant's interest in the property
194 through the criminal case.
195 (2) If the prosecuting attorney elects to seek forfeiture of the claimant's interest in the
196 property through the criminal case, the information or indictment shall state that the claimant's
197 interest in the property is subject to forfeiture and the basis for the forfeiture.
198 (3) (a) Upon application of the prosecuting attorney, the court may enter restraining
199 orders or injunctions, or take other reasonable actions to preserve for forfeiture under this
200 section, any property subject to forfeiture if, after notice to known claimants and claimants who
201 can be identified after due diligence and who are known to have an interest in the property, and
202 after affording those persons an opportunity for a hearing, the court determines that:
203 (i) there is a substantial probability that the state will prevail on the issue of forfeiture
204 and that failure to enter the order will result in the property being sold, transferred, destroyed,
205 or removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
206 (ii) the need to preserve the availability of the property or prevent its sale, transfer,
207 destruction, or removal through the entry of the requested order outweighs the hardship against
208 any party against whom the order is to be entered.
209 (b) A temporary restraining order may be entered ex parte upon application of the
210 prosecuting attorney before or after an information or indictment has been filed with respect to
211 the property, if the prosecuting attorney demonstrates that:
212 (i) there is probable cause to believe that the property with respect to which the order is
213 sought would, in the event of a conviction, be subject to forfeiture under this section; and
215 or would jeopardize an ongoing criminal investigation.
216 (c) The temporary order expires not more than 10 days after entry unless extended for
217 good cause shown or unless the party against whom it is entered consents to an extension.
218 (d) After service of the temporary order upon any claimants known to the prosecuting
219 attorney, a hearing concerning the order entered under this section shall be held as soon as
220 practicable and prior to the expiration of the temporary order.
221 (e) The court is not bound by the Utah Rules of Evidence regarding evidence it may
222 receive and consider at any hearing under this section.
223 (4) (a) Upon conviction of a claimant for conduct giving rise to criminal forfeiture, the
224 prosecutor shall ask the finder of fact to make a specific finding as to whether the property or
225 any part of it is subject to forfeiture.
226 (b) A determination of whether property is subject to forfeiture under this section shall
227 be proven beyond a reasonable doubt.
228 (5) (a) Upon conviction of a claimant for violating any provision of state law
229 subjecting a claimant's property to forfeiture and a finding by the trier of fact that the property
230 is subject to forfeiture, the court shall enter a judgment and order the property forfeited to the
231 state upon the terms stated by the court in its order.
232 (b) Following the entry of an order declaring property forfeited, the court may, upon
233 application of the prosecuting attorney, enter appropriate restraining orders or injunctions,
234 require the execution of satisfactory performance bonds, appoint receivers, conservators,
235 appraisers, accountants, or trustees, or take any other action to protect the interest of the state in
236 property ordered forfeited.
237 (6) (a) (i) After property is ordered forfeited under this section, the seizing agency shall
238 direct the disposition of the property under Section 24-4-115 .
239 (ii) Any property right or interest under this Subsection (6)(a) not exercisable by or
240 transferable for value to the state expires and does not revert to the defendant.
241 (iii) The defendant or any person acting in concert with or on behalf of the defendant is
242 not eligible to purchase forfeited property at any sale held by the seizing agency unless
243 approved by the judge.
244 (b) The court may stay the sale or disposition of the property pending the conclusion of
246 proceeding with the sale or disposition of the property may result in irreparable injury, harm, or
248 (7) Except as provided under Subsection (3) or (10), a party claiming an interest in
249 property subject to forfeiture under this section:
250 (a) may not intervene in a trial or appeal of a criminal case involving the forfeiture of
251 property under this section; and
252 (b) may not commence an action at law or equity concerning the validity of the party's
253 alleged interests in the property subsequent to the filing of an indictment or an information
254 alleging that the property is subject to forfeiture under this section.
255 (8) The district court that has jurisdiction of a case under this part may enter orders
256 under this section without regard to the location of any property that may be subject to
257 forfeiture under this section or that has been ordered forfeited under this section.
258 (9) To facilitate the identification or location of property declared forfeited and to
259 facilitate the disposition of petitions for remission or mitigation of forfeiture after the entry of
260 an order declaring property forfeited to the state, the court may, upon application of the
261 prosecuting attorney, order that the testimony of any witness relating to the forfeited property
262 be taken by deposition, and that any book, paper, document, record, recording, or other
263 material shall be produced as provided for depositions and discovery under the Utah Rules of
264 Civil Procedure.
265 (10) (a) (i) Following the entry of an order of forfeiture under this section, the
266 prosecuting attorney shall publish notice of the order's intent to dispose of the property by
268 successive weeks, of the forfeiture proceeding:
269 (A) in a newspaper of general circulation in the county in which the seizure occurred;
271 (B) on Utah's Public Legal Notice Website established in Subsection 45-1-101 (2)(b).
272 (ii) The prosecuting attorney shall also send written notice to any claimants, other than
273 the defendant, known to the prosecuting attorney to have an interest in the property, at the
274 claimant's known address.
275 (b) (i) Any claimant, other than the defendant, asserting a legal interest in property that
277 has been published or the claimant receives the written notice under Subsection (10)(a),
278 whichever is earlier, petition the court for a hearing to adjudicate the validity of the claimant's
279 alleged interest in the property.
280 (ii) Any genuine issue of material fact, including issues of standing, may be tried to a
281 jury upon demand of any party.
282 (c) The petition shall:
283 (i) be in writing and signed by the claimant under penalty of perjury;
284 (ii) set forth the nature and extent of the claimant's right, title, or interest in the
285 property, the time and circumstances of the claimant's acquisition of the right, title, or interest
286 in the property; and
287 (iii) set forth any additional facts supporting the claimant's claim and the relief sought.
288 (d) The trial or hearing on the petition shall be expedited to the extent practicable. The
289 court may consolidate a trial or hearing on the petition and any petition filed by any claimant
290 other than the defendant under this section. The court shall permit the parties to conduct
291 pretrial discovery pursuant to the Utah Rules of Civil Procedure.
292 (e) (i) At the trial or hearing, the claimant may testify and present evidence and
293 witnesses on the claimant's own behalf and cross-examine witnesses who appear at the hearing.
294 The prosecuting attorney may present evidence and witnesses in rebuttal and in defense of the
295 claim to the property and cross-examine witnesses who appear.
296 (ii) In addition to testimony and evidence presented at the trial or hearing, the court
297 may consider the relevant portion of the record of the criminal case that resulted in the order of
299 (iii) Any trial or hearing shall be conducted pursuant to the Utah Rules of Evidence.
300 (f) The court shall amend the order of forfeiture in accordance with its determination, if
301 after the trial or hearing, the court or jury determines that the petitioner has established by a
302 preponderance of the evidence that:
303 (i) the claimant has a legal right, title, or interest in the property, and the right, title, or
304 interest renders the order of forfeiture invalid in whole or in part because the right, title, or
305 interest was vested in the claimant rather than the defendant or was superior to any right, title,
306 or interest of the defendant at the time of the commission of the acts or conduct that gave rise
308 (ii) the claimant acquired the right, title, or interest in the property in a bona fide
309 transaction for value, and, at the time of acquisition, the claimant did not know that the
310 property was subject to forfeiture.
311 (g) Following the court's disposition of all petitions filed under this Subsection (10), or
312 if no petitions are filed following the expiration of the period provided in Subsection (10)(b)
313 for the filing of petitions, the state has clear title to property subject to the order of forfeiture
314 and may warrant good title to any subsequent purchaser or transferee.
315 Section 4. Section 24-4-110 is amended to read:
316 24-4-110. Attorney fees and costs.
317 (1) In any forfeiture proceeding under this chapter, the court [
318 prevailing [
319 (a) legal costs; and
320 (b) attorney fees.
321 (2) The legal costs and attorney fees awarded by the court to the prevailing party may
322 not exceed 20% of the value of the property.
323 (3) A [
324 legal costs and attorney fees only on those issues on which the party prevailed.
325 Section 5. Section 24-4-114 is amended to read:
326 24-4-114. Transfer and sharing procedures.
327 (1) (a) Seizing agencies or prosecuting attorneys authorized to bring forfeiture
328 proceedings under this chapter may not directly or indirectly transfer property held for
329 forfeiture and not already named in a criminal indictment to any federal agency or any
330 governmental entity not created under and subject to state law unless[
331 order, upon petition of the prosecuting attorney, authorizing the property to be transferred.
332 (b) The court may not enter an order authorizing a transfer under Subsection (1)(a)
334 (i) the conduct giving rise to the investigation or seizure is interstate in nature and
335 sufficiently complex to justify the transfer;
336 (ii) the property may only be forfeited under federal law; or
337 (iii) pursuing forfeiture under state law would unreasonably burden prosecuting
341 (c) A petition to transfer property to a federal agency under this section shall include:
342 (i) a detailed description of the property seized;
343 (ii) the location where the property was seized;
344 (iii) the date the property was seized;
345 (iv) the case number assigned by the seizing law enforcement agency; and
346 (v) a declaration that:
347 (A) states the basis for relinquishing jurisdiction to a federal agency;
348 (B) contains the names and addresses of any claimants then known; and
349 (C) is signed by the prosecutor.
350 (d) The court may not authorize the transfer of property to the federal government if
351 the transfer would circumvent the protections of the Utah Constitution or of this chapter that
352 would otherwise be available to the property owner.
353 (e) (i) Prior to granting any order to transfer pursuant to this section, the court shall
354 give any claimant the right to be heard with regard to the transfer by the mailing of a notice to
355 each address contained in the declaration.
356 (ii) If no claimant objects to the petition to transfer property within 10 days of the
357 mailing of the notice, the court shall issue its order under this section.
358 (iii) If the declaration does not include an address for a claimant, the court shall delay
359 its order under this section for 20 days to allow time for the claimant to appear and make an
361 (f) (i) If a claimant contests a petition to transfer property to a federal agency, the court
362 shall promptly set the matter for hearing.
363 (ii) (A) The court shall determine whether the state may relinquish jurisdiction by a
364 standard of preponderance of the evidence.
365 (B) In making the determination, the court shall consider evidence regarding hardship,
366 complexity, judicial and law enforcement resources, and any other matter the court determines
367 to be relevant.
368 (2) All property, money, or other things of value received by an agency pursuant to
370 the proceeds of the sale of forfeited property to an agency:
371 (a) shall be used in compliance with federal laws and regulations relating to equitable
373 (b) may be used for those law enforcement purposes specified in Subsection
374 24-4-117 (9); and
375 (c) may not be used for those law enforcement purposes prohibited in Subsection
376 24-4-117 (10).
377 (3) A state or local law enforcement agency awarded any equitable share of property
378 forfeited by the federal government may only use the award money after approval of the use by
379 the agency's legislative body.
380 (4) Each year, every agency awarded any equitable share of property forfeited by the
381 federal government shall file with the commission:
382 (a) a copy of that agency's federal equitable sharing certification; and
383 (b) information, on a form provided by the commission, that details all awards received
384 from the federal government during the preceding reporting period, including:
385 (i) the agency's case number or other identification;
386 (ii) the amount of the award;
387 (iii) the date of the award;
388 (iv) the identity of any federal agency involved in the forfeiture;
389 (v) how the awarded property has been used; and
390 (vi) a statement signed by both the agency's executive officer or designee and by the
391 agency's legal counsel confirming that the agency has only used the awarded property for crime
392 reduction or law enforcement purposes authorized under Section 24-4-117 , and only upon
393 approval by the agency's legislative body.
394 Section 6. Section 24-4-115 is amended to read:
395 24-4-115. Disposition and allocation of forfeiture property.
396 (1) Upon finding that property is subject to forfeiture under this chapter, the court shall
397 order the property forfeited to the state.
398 (2) (a) If the property is not currency, the seizing agency shall authorize a public or
399 otherwise commercially reasonable sale of that property that is not required by law to be
Senate 2nd & 3rd Reading Amendments 3-10-2014 lp/scadestroyed and that is not harmful to the public.
401 (b) If the property forfeited is an alcoholic product as defined in Section 32B-1-102 , it
402 shall be disposed of as follows:
403 (i) an alcoholic product shall be sold if the alcoholic product is:
404 (A) unadulterated, pure, and free from any crude, unrectified, or impure form of ethylic
405 alcohol, or any other deleterious substance or liquid; and
406 (B) otherwise in saleable condition; or
407 (ii) an alcoholic product and its package shall be destroyed if the alcoholic product is
408 impure, adulterated, or otherwise unfit for sale.
409 (c) If the property forfeited is a cigarette or other tobacco product as defined in Section
410 59-14-102 , it shall be destroyed, except that prior to the destruction of any cigarette or other
411 tobacco product seized pursuant to this part, the lawful holder of the trademark rights in the
412 cigarette or tobacco product brand shall be permitted to inspect the cigarette.
413 (d) The proceeds of the sale of forfeited property shall remain segregated from other
414 property, equipment, or assets of the seizing agency until transferred to the state in accordance
415 with this chapter.
416 (3) From the forfeited property, both currency and the proceeds or revenue from the
417 sale of the property, the seizing agency shall:
418 (a) deduct the seizing agency's direct costs and expenses of obtaining and maintaining
419 the property pending forfeiture; and
420 (b) pay the office of the prosecuting attorney the legal costs [
421 associated with the litigation of the forfeiture proceeding, and up to 20% of the value of the
422 S. [
423 (4) If the forfeiture arises from any violation relating to wildlife resources, the
424 remaining currency and the proceeds or revenue from the sale of the property shall be deposited
425 in the Wildlife Resources Account created in Section 23-14-13 .
426 (5) The remaining currency and the proceeds or revenue from the sale of the property
427 shall then be transferred to the commission and deposited into the account.
Legislative Review Note
as of 2-26-14 9:22 AM