Representative Brian M. Greene proposes the following substitute bill:


1     
CIVIL ASSET FORFEITURE - PROCEDURAL REFORMS

2     
2016 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Brian M. Greene

5     
Senate Sponsor: Howard A. Stephenson

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Forfeiture and Disposition of Property Act regarding civil
10     forfeiture procedures.
11     Highlighted Provisions:
12          This bill:
13          ▸     modifies the elements of qualifying as an innocent owner regarding property subject
14     to forfeiture;
15          ▸     requires a direct nexus of the property to a specific alleged criminal exchange or
16     transaction, in order for the property to be forfeited;
17          ▸     modifies the definition of proceeds that are from an offense giving rise to a
18     forfeiture;
19          ▸     requires the prosecutor to bring an action for civil forfeiture in a timely manner;
20          ▸     modifies the process for a claimant to bring an action to claim forfeited property;
21          ▸     provides that any person may assert an interest in seized property or file an answer
22     to a forfeiture complaint without posting bond;
23          ▸     provides that the hardship provisions include use of funds to allow an individual to
24     obtain a legal defense in the forfeiture proceeding or the related criminal proceeding
25     and assets of a legitimate business;
26          ▸     provides that prejudgment interest shall be awarded, in addition to the current
27     postjudgment interest;
28          ▸     removes the cap of 20% of the value of the property subject to forfeiture when
29     awarding legal costs and attorney fees;
30          ▸     modifies the obligations of a claimant regarding illegal use of the property subject to
31     forfeiture;
32          ▸     provides that the proceeds from civil forfeiture actions shall be placed in the
33     Uniform School Fund, and that proceeds from criminal forfeiture actions shall
34     continue to be placed in the Criminal Forfeiture Restricted Account for use by the
35     State Asset Forfeiture Program;
36          ▸     modifies the allocation of the proceeds from asset forfeiture to provide for:
37               •     victim restitution;
38               •     reimbursement of direct costs by the prosecuting agency and the law
39     enforcement agencies involved in the case; and
40               •     allocation of remaining proceeds to the Uniform School Fund; and
41          ▸     provides that if the defendant is acquitted of the criminal charge subsequent to the
42     civil forfeiture proceeding, the forfeited assets shall be returned and the defendant
43     shall be reimbursed for costs as listed.
44     Money Appropriated in this Bill:
45          None
46     Other Special Clauses:
47          None
48     Utah Code Sections Affected:
49     AMENDS:
50          24-1-102, as last amended by Laws of Utah 2014, Chapter 112
51          24-4-102, as enacted by Laws of Utah 2013, Chapter 394
52          24-4-103, as enacted by Laws of Utah 2013, Chapter 394
53          24-4-104, as last amended by Laws of Utah 2014, Chapter 112
54          24-4-105, as last amended by Laws of Utah 2014, Chapter 112
55          24-4-107, as enacted by Laws of Utah 2013, Chapter 394
56          24-4-108, as enacted by Laws of Utah 2013, Chapter 394
57          24-4-109, as enacted by Laws of Utah 2013, Chapter 394
58          24-4-110, as last amended by Laws of Utah 2014, Chapter 112
59          24-4-115, as last amended by Laws of Utah 2014, Chapter 112
60          24-4-116, as enacted by Laws of Utah 2013, Chapter 394
61          24-4-117, as last amended by Laws of Utah 2015, Chapter 134
62     

63     Be it enacted by the Legislature of the state of Utah:
64          Section 1. Section 24-1-102 is amended to read:
65          24-1-102. Definitions.
66          As used in this title:
67          (1) "Account" means the Criminal Forfeiture Restricted Account created in Section
68     24-4-116.
69          (2) (a) "Acquittal" means a finding by a jury or a judge at trial that a claimant is not
70     guilty.
71          (b) An acquittal does not include:
72          (i) a verdict of guilty on a lesser or reduced charge;
73          (ii) a plea of guilty to a lesser or reduced charge; or
74          (iii) dismissal of a charge as a result of a negotiated plea agreement.
75          (3) "Agency" means any agency of municipal, county, or state government, including
76     law enforcement agencies, law enforcement personnel, and multijurisdictional task forces.
77          (4) "Claimant" means any:
78          (a) owner of property as defined in this section;
79          (b) interest holder as defined in this section; or
80          (c) person or entity who asserts a claim to any property seized for forfeiture under this
81     title.
82          (5) "Commission" means the Utah Commission on Criminal and Juvenile Justice.
83          (6) "Complaint" means a civil in rem complaint seeking the forfeiture of any real or
84     personal property under this title.
85          (7) "Constructive seizure" means a seizure of property where the property is left in the
86     control of the owner and the seizing agency posts the property with a notice of intent to seek
87     forfeiture.
88          (8) (a) "Contraband" means any property, item, or substance that is unlawful to
89     produce or to possess under state or federal law.
90          (b) All controlled substances that are possessed, transferred, distributed, or offered for
91     distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act, are
92     contraband.
93          (9) "Innocent owner" means a claimant who:
94          (a) (i) held an ownership interest in property at the time the conduct subjecting the
95     property to forfeiture occurred[, and:];
96          [(i) did not have actual knowledge of the conduct subjecting the property to forfeiture;
97     or]
98          [(ii) upon learning of the conduct subjecting the property to forfeiture, took reasonable
99     steps to prohibit the illegal use of the property; or]
100          (ii) did not give permission for the conduct or participate in the conduct;
101          (iii) did not directly commit the offense; and
102          (iv) did not solicit, request, command, encourage, or intentionally aid another person to
103     engage in the conduct; or
104          (b) (i) acquired an ownership interest in the property and who had no knowledge that
105     the illegal conduct subjecting the property to forfeiture had occurred or that the property had
106     been seized for forfeiture[,]; and[:]
107          [(i)] (ii) (A) acquired the property in a bona fide transaction for value;
108          [(ii)] (B) was a person, including a minor child, who acquired an interest in the
109     property through probate or inheritance; or
110          [(iii)] (C) was a spouse who acquired an interest in property through dissolution of
111     marriage or by operation of law.
112          (10) (a) "Interest holder" means a secured party as defined in Section 70A-9a-102, a
113     mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to
114     an interest in property, whose interest would be perfected against a good faith purchaser for
115     value.
116          (b) "Interest holder" does not mean a person who holds property for the benefit of or as
117     an agent or nominee for another person, or who is not in substantial compliance with any
118     statute requiring an interest in property to be recorded or reflected in public records in order to
119     perfect the interest against a good faith purchaser for value.
120          (11) "Known address" means any address provided by a claimant to the agency at the
121     time the property was seized, or the claimant's most recent address on record with a
122     governmental entity if no address was provided at the time of the seizure.
123          (12) "Legal costs" means the costs and expenses incurred by a party in a forfeiture
124     action.
125          (13) "Legislative body" means:
126          (a) (i) the Legislature, county commission, county council, city commission, city
127     council, or town council that has fiscal oversight and budgetary approval authority over an
128     agency; or
129          (ii) the agency's governing political subdivision; or
130          (b) the lead governmental entity of a multijurisdictional task force, as designated in a
131     memorandum of understanding executed by the agencies participating in the task force.
132          (14) "Multijurisdictional task force" means a law enforcement task force or other
133     agency comprised of persons who are employed by or acting under the authority of different
134     governmental entities, including federal, state, county or municipal governments, or any
135     combination of these agencies.
136          (15) "Owner" means any person or entity, other than an interest holder, that possesses a
137     bona fide legal or equitable interest in real or personal property.
138          (16) [(a)] "Proceeds" means:
139          [(i) property of any kind that is obtained directly or indirectly as a result of the
140     commission of an offense that gives rise to forfeiture; or]
141          [(ii) any property acquired directly or indirectly from, produced through, realized
142     through, or caused by an act or omission regarding property under Subsection (16)(a)(i).]
143          [(b) "Proceeds" includes any property of any kind without reduction for expenses
144     incurred in the acquisition, maintenance, or production of that property, or any other purpose
145     regarding property under Subsection (16)(a)(i).]
146          [(c) "Proceeds" is not limited to the net gain or profit realized from the offense that
147     gives rise to forfeiture.]
148          (a) property of any kind that is:
149          (i) obtained directly as a result of the commission of an offense that gives rise to
150     forfeiture; and
151          (ii) limited to only that portion of property that is obtained directly as a result of the
152     commission of the offense giving rise to the forfeiture; and
153          (b) cash received from the direct sale of, and property received from the direct transfer
154     of, property described in Subsection (16)(a).
155          (17) "Program" means the State Asset Forfeiture Grant Program established in Section
156     24-4-117.
157          (18) "Property" means all property, whether real or personal, tangible or intangible, but
158     does not include contraband.
159          (19) "Prosecuting attorney" means:
160          (a) the attorney general and any assistant attorney general;
161          (b) any district attorney or deputy district attorney;
162          (c) any county attorney or assistant county attorney; and
163          (d) any other attorney authorized to commence an action on behalf of the state under
164     this title.
165          (20) "Public interest use" means a:
166          (a) use by a government agency as determined by the legislative body of the agency's
167     jurisdiction; or
168          (b) donation of the property to a nonprofit charity registered with the state.
169          (21) "Real property" means land and includes any building, fixture, improvement,
170     appurtenance, structure, or other development that is affixed permanently to land.
171          Section 2. Section 24-4-102 is amended to read:
172          24-4-102. Property subject to forfeiture.
173          (1) Except as provided in Subsection (3), all property that has been used to directly
174     facilitate the commission of a federal or state criminal offense and any direct proceeds of
175     criminal activity may be forfeited under this chapter, including:
176          (a) real property, including things growing on, affixed to, and found in land; and
177          (b) tangible and intangible personal property, including money, rights, privileges,
178     interests, claims, and securities of any kind.
179          (2) If the property is used to facilitate a violation of Section 76-10-1204, 76-10-1205,
180     76-10-1206, or 76-10-1222, the property subject to forfeiture under this section is limited to
181     property, the seizure or forfeiture of which would not constitute a prior restraint on the exercise
182     of an affected party's rights under the First Amendment to the Constitution of the United States
183     or Utah Constitution, Article I, Section 15, or would not otherwise unlawfully interfere with the
184     exercise of those rights.
185          (3) A motor vehicle used in a violation of Section 41-6a-502, 41-6a-517, a local
186     ordinance that complies with the requirements of Subsection 41-6a-510(1), Subsection
187     58-37-8(2)(g), or Section 76-5-207 may not be forfeited unless:
188          (a) the operator of the vehicle has previously been convicted of a violation, committed
189     after May 12, 2009, of:
190          (i) a felony driving under the influence violation under Section 41-6a-502;
191          (ii) a felony violation under Subsection 58-37-8(2)(g); or
192          (iii) automobile homicide under Section 76-5-207; or
193          (b) the operator of the vehicle was driving on a denied, suspended, revoked, or
194     disqualified license; and
195          (i) the denial, suspension, revocation, or disqualification under Subsection (3)(b)(ii)
196     was imposed because of a violation under:
197          (A) Section 41-6a-502;
198          (B) Section 41-6a-517;
199          (C) a local ordinance that complies with the requirements of Subsection 41-6a-510(1);
200          (D) Section 41-6a-520;
201          (E) Subsection 58-37-8(2)(g);
202          (F) Section 76-5-207; or
203          (G) a criminal prohibition that the person was charged with violating as a result of a
204     plea bargain after having been originally charged with violating one or more of the sections or
205     ordinances described in Subsections (3)(b)(i)(A) through (F); or
206          (ii) the denial, suspension, revocation, or disqualification described in Subsections
207     (3)(b)(i)(A) through (G):
208          (A) is an extension imposed under Subsection 53-3-220(2) of a denial, suspension,
209     revocation, or disqualification; and
210          (B) the original denial, suspension, revocation, or disqualification was imposed
211     because of a violation described in Subsections (3)(b)(i)(A) through (G).
212          Section 3. Section 24-4-103 is amended to read:
213          24-4-103. Initiating forfeiture proceedings -- Notice of intent to seek forfeiture.
214          (1) (a) Within 30 days from the date that property is seized, an agency seeking to forfeit
215     property shall serve a notice of intent to seek forfeiture upon any claimants known to the
216     agency.
217          (b) The notice of intent to seek forfeiture shall describe with particularity the:
218          (i) date of the seizure;
219          (ii) property seized;
220          (iii) alleged relationship of the seized property to the conduct giving rise to forfeiture;
221          [(iii)] (iv) claimant's rights and obligations under this chapter, including the availability
222     of hardship relief in appropriate circumstances; and
223          [(iv)] (v) statutory basis for the forfeiture, including the judicial proceedings by which
224     property may be forfeited under this chapter.
225          (c) The notice of intent to seek forfeiture shall be served by:
226          (i) certified mail, return receipt requested, to the claimant's known address; or
227          (ii) personal service.
228          (d) The court may void any forfeiture made without notice under Subsection (1)(a),
229     unless the agency demonstrates:
230          (i) good cause for the failure to give notice to the claimant; or
231          (ii) that the claimant had actual notice of the seizure.
232          (2) (a) Once the agency has served each claimant with a notice of intent to seek
233     forfeiture, but no later than 60 days from the date that property is seized, the agency shall
234     present a written request for forfeiture to the prosecuting attorney.
235          (b) The written request shall:
236          (i) describe the property to be forfeited; and
237          (ii) include a copy of all reports, supporting documents, and other evidence necessary
238     for the prosecuting attorney to determine the legal sufficiency for filing a forfeiture action.
239          Section 4. Section 24-4-104 is amended to read:
240          24-4-104. Civil forfeiture procedure.
241          (1) (a) [The] A law enforcement agency shall promptly return seized property, and the
242     prosecuting attorney may take no further action to effect the forfeiture of the property, unless
243     within [75] 60 days after the property is seized the prosecuting attorney:
244          (i) files a criminal forfeiture indictment or information under Subsection 24-4-105(2);
245          (ii) obtains a restraining order under Subsection 24-4-105(3);
246          (iii) files a petition under Subsection 24-4-114(1); or
247          (iv) files a civil forfeiture complaint.
248          [(b) A complaint for civil forfeiture shall describe with reasonable particularity the:]
249          [(i) property that is the subject of the forfeiture proceeding;]
250          [(ii) date and place of seizure; and]
251          [(iii) factual allegations that constitute a basis for forfeiture.]
252          [(2) (a) After a complaint is filed, the prosecuting attorney shall serve a copy of the
253     complaint and summons upon each claimant known to the prosecuting attorney within 30
254     days.]
255          [(b) The prosecuting attorney is not required to serve a copy of the complaint or the
256     summons upon any claimant who has disclaimed, in writing, an ownership interest in the
257     seized property.]
258          [(c) Service of the complaint and summons shall be by:]
259          [(i) personal service;]
260          [(ii) certified mail, return receipt requested, to the claimant's known address; or]
261          [(iii) service by publication, if the prosecuting attorney demonstrates to the court that
262     service cannot reasonably be made by personal service or certified mail.]
263          [(d) Service by publication shall be by publication of two notices, in two successive
264     weeks, of the forfeiture proceeding:]
265          [(i) in a newspaper of general circulation in the county in which the seizure occurred;
266     and]
267          [(ii) on Utah's Public Legal Notice Website established in Subsection 45-1-101(2)(b).]
268          [(e) Service is effective upon the earlier of:]
269          [(i) personal service;]
270          [(ii) mailing of a written notice; or]
271          [(iii) publication.]
272          [(f) Upon motion of the prosecuting attorney and a showing of good cause, the court
273     may extend the period to complete service under this section for an additional 60 days.]
274          (b) The prosecutor shall take all reasonable steps to ensure a forfeiture proceeding
275     initiated under this section is concluded in a timely manner.
276          [(3) (a)] (2) In any case where the prosecuting attorney files a complaint for civil
277     forfeiture, [a claimant may file an answer to the complaint] any person may assert an interest in
278     seized property or file an answer to a complaint for civil forfeiture without posting bond with
279     respect to the property that is the subject of the seizure or forfeiture action.
280          [(b) The answer shall be filed within 30 days after the complaint is served upon the
281     claimant as provided in Subsection (2)(b).]
282          [(4)] (3) Except as otherwise provided in this chapter, forfeiture proceedings are
283     governed by the Utah Rules of Civil Procedure.
284          [(5)] (4) The court shall take all reasonable steps to expedite civil forfeiture
285     proceedings and shall give these proceedings the same priority as is given to criminal cases.
286          [(6)] (5) In all suits or actions brought under this section for the civil forfeiture of any
287     property, the burden of proof is on the prosecuting attorney to establish by clear and convincing
288     evidence the extent to which, if any, the property is subject to forfeiture.
289          [(7)] (6) A claimant may file an answer to a complaint for civil forfeiture without
290     posting bond with respect to the property subject to forfeiture.
291          Section 5. Section 24-4-105 is amended to read:
292          24-4-105. Criminal forfeiture procedure.
293          (1) If a claimant is criminally prosecuted for conduct giving rise to the forfeiture, the
294     prosecuting attorney may elect to seek forfeiture of the claimant's interest in the property
295     through the criminal case.
296          (2) If the prosecuting attorney elects to seek forfeiture of the claimant's interest in the
297     property through the criminal case, the information or indictment shall state that the claimant's
298     interest in the property is subject to forfeiture and the basis for the forfeiture.
299          (3) (a) Upon application of the prosecuting attorney, the court may enter restraining
300     orders or injunctions, or take other reasonable actions to preserve for forfeiture under this
301     section, any property subject to forfeiture if, after notice to known claimants and claimants who
302     can be identified after due diligence and who are known to have an interest in the property, and
303     after affording those persons an opportunity for a hearing, the court determines that:
304          (i) there is a substantial probability that the state will prevail on the issue of forfeiture
305     and that failure to enter the order will result in the property being sold, transferred, destroyed,
306     or removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
307          (ii) the need to preserve the availability of the property or prevent its sale, transfer,
308     destruction, or removal through the entry of the requested order outweighs the hardship against
309     any party against whom the order is to be entered.
310          (b) A temporary restraining order may be entered ex parte upon application of the
311     prosecuting attorney before or after an information or indictment has been filed with respect to
312     the property, if the prosecuting attorney demonstrates that:
313          (i) there is probable cause to believe that the property with respect to which the order is
314     sought would, in the event of a conviction, be subject to forfeiture under this section; and
315          (ii) provision of notice would jeopardize the availability of the property for forfeiture
316     or would jeopardize an ongoing criminal investigation.
317          (c) The temporary order expires not more than 10 days after entry unless extended for
318     good cause shown or unless the party against whom it is entered consents to an extension.
319          (d) After service of the temporary order upon any claimants known to the prosecuting
320     attorney, a hearing concerning the order entered under this section shall be held as soon as
321     practicable and prior to the expiration of the temporary order.
322          (e) The court is not bound by the Utah Rules of Evidence regarding evidence it may
323     receive and consider at any hearing under this section.
324          (4) (a) Upon conviction of a claimant for conduct giving rise to criminal forfeiture, the
325     prosecutor shall ask the finder of fact to make a specific finding as to whether the property or
326     any part of it is subject to forfeiture.
327          (b) A determination of whether property is subject to forfeiture under this section shall
328     be proven beyond a reasonable doubt.
329          (5) (a) Upon conviction of a claimant for violating any provision of state law
330     subjecting a claimant's property to forfeiture and a finding by the trier of fact that the property
331     is subject to forfeiture, the court shall enter a judgment and order the property forfeited to the
332     state upon the terms stated by the court in its order.
333          (b) Following the entry of an order declaring property forfeited, the court may, upon
334     application of the prosecuting attorney, enter appropriate restraining orders or injunctions,
335     require the execution of satisfactory performance bonds, appoint receivers, conservators,
336     appraisers, accountants, or trustees, or take any other action to protect the interest of the state in
337     property ordered forfeited.
338          (6) (a) (i) After property is ordered forfeited under this section, the seizing agency shall
339     direct the disposition of the property under Section 24-4-115.
340          (ii) Any property right or interest under this Subsection (6)(a) not exercisable by or
341     transferable for value to the state expires and does not revert to the defendant.
342          (iii) The defendant or any person acting in concert with or on behalf of the defendant is
343     not eligible to purchase forfeited property at any sale held by the seizing agency unless
344     approved by the judge.
345          (b) The court may stay the sale or disposition of the property pending the conclusion of
346     any appeal of the criminal case giving rise to the forfeiture if the defendant demonstrates that
347     proceeding with the sale or disposition of the property may result in irreparable injury, harm, or
348     loss.
349          (7) [Except as provided under Subsection (3) or (10), a party claiming] A claimant
350     asserting an interest in property subject to forfeiture under this section:
351          (a) may [not] intervene in a trial or appeal of a criminal case involving the forfeiture of
352     property under this section; and
353          (b) may [not] commence an action at law or equity concerning the validity of the
354     party's alleged interests in the property subsequent to the filing of an indictment or an
355     information alleging that the property is subject to forfeiture under this section.
356          (8) The district court that has jurisdiction of a case under this part may enter orders
357     under this section without regard to the location of any property that may be subject to
358     forfeiture under this section or that has been ordered forfeited under this section.
359          (9) To facilitate the identification or location of property declared forfeited and to
360     facilitate the disposition of petitions for remission or mitigation of forfeiture after the entry of
361     an order declaring property forfeited to the state, the court may, upon application of the
362     prosecuting attorney, order that the testimony of any witness relating to the forfeited property
363     be taken by deposition, and that any book, paper, document, record, recording, or other
364     material shall be produced as provided for depositions and discovery under the Utah Rules of
365     Civil Procedure.
366          (10) (a) (i) Following the entry of an order of forfeiture under this section, the
367     prosecuting attorney shall publish notice of the order's intent to dispose of the property by
368     publication. Service by publication shall be by publication of two notices, in two successive
369     weeks, of the forfeiture proceeding:
370          (A) in a newspaper of general circulation in the county in which the seizure occurred;
371     and
372          (B) on Utah's Public Legal Notice Website established in Subsection 45-1-101(2)(b).
373          (ii) The prosecuting attorney shall also send written notice to any claimants, other than
374     the defendant, known to the prosecuting attorney to have an interest in the property, at the
375     claimant's known address.
376          (b) (i) Any claimant, other than the defendant, asserting a legal interest in property that
377     has been ordered forfeited to the state under this section may, within 30 days after the notice
378     has been published or the claimant receives the written notice under Subsection (10)(a),
379     whichever is earlier, petition the court for a hearing to adjudicate the validity of the claimant's
380     alleged interest in the property.
381          (ii) Any genuine issue of material fact, including issues of standing, may be tried to a
382     jury upon demand of any party.
383          (c) The petition shall:
384          (i) be in writing and signed by the claimant under penalty of perjury;
385          (ii) set forth the nature and extent of the claimant's right, title, or interest in the
386     property, the time and circumstances of the claimant's acquisition of the right, title, or interest
387     in the property; and
388          (iii) set forth any additional facts supporting the claimant's claim and the relief sought.
389          (d) The trial or hearing on the petition shall be expedited to the extent practicable. The
390     court may consolidate a trial or hearing on the petition and any petition filed by any claimant
391     other than the defendant under this section. The court shall permit the parties to conduct
392     pretrial discovery pursuant to the Utah Rules of Civil Procedure.
393          (e) (i) At the trial or hearing, the claimant may testify and present evidence and
394     witnesses on the claimant's own behalf and cross-examine witnesses who appear at the hearing.
395     The prosecuting attorney may present evidence and witnesses in rebuttal and in defense of the
396     claim to the property and cross-examine witnesses who appear.
397          (ii) In addition to testimony and evidence presented at the trial or hearing, the court
398     may consider the relevant portion of the record of the criminal case that resulted in the order of
399     forfeiture.
400          (iii) Any trial or hearing shall be conducted pursuant to the Utah Rules of Evidence.
401          (f) The court shall amend the order of forfeiture in accordance with its determination, if
402     after the trial or hearing, the court or jury determines that the petitioner has established by a
403     preponderance of the evidence that:
404          (i) the claimant has a legal right, title, or interest in the property, and the right, title, or
405     interest renders the order of forfeiture invalid in whole or in part because the right, title, or
406     interest was vested in the claimant rather than the defendant or was superior to any right, title,
407     or interest of the defendant at the time of the commission of the acts or conduct that gave rise
408     to the forfeiture of the property under this section; or
409          (ii) the claimant acquired the right, title, or interest in the property in a bona fide
410     transaction for value, and, at the time of acquisition, the claimant did not know that the
411     property was subject to forfeiture.
412          (g) Following the court's disposition of all petitions filed under this Subsection (10), or
413     if no petitions are filed following the expiration of the period provided in Subsection (10)(b)
414     for the filing of petitions, the state has clear title to property subject to the order of forfeiture
415     and may warrant good title to any subsequent purchaser or transferee.
416          Section 6. Section 24-4-107 is amended to read:
417          24-4-107. Innocent owners.
418          (1) An innocent owner's interest in property may not be forfeited under any provision
419     of state law.
420          (2) In a forfeiture proceeding under this chapter, the prosecuting attorney has the
421     burden of [establishing evidence] proving by the applicable standard of proof that [a] the
422     claimant:
423          (a) is responsible for the conduct giving rise to the forfeiture, subject to Subsection (4);
424          (b) knew of the conduct giving rise to the forfeiture, and allowed the property to be
425     used in furtherance of the conduct, subject to Subsection (4);
426          (c) acquired the property with notice of its actual or constructive seizure for forfeiture
427     under this chapter;
428          (d) acquired the property knowing the property was subject to forfeiture under this
429     chapter; or
430          (e) acquired the property in an effort to conceal, prevent, hinder, or delay its lawful
431     seizure or forfeiture under any provision of state law.
432          (3) [(a)] A claimant [under this chapter is not required to] does not have an obligation
433     under this section to take steps to prevent illegal use or criminal activity regarding the seized
434     property [that the claimant reasonably believes would be likely to result in physical harm or
435     danger to any person].
436          [(b)] (4) A claimant may demonstrate that the claimant was not responsible for the
437     conduct giving rise to forfeiture or did not allow the property to be used in the furtherance of
438     the conduct by providing evidence that the claimant took reasonable action to prohibit the
439     illegal use of the property by:
440          [(i)] (a) making a timely notification to a law enforcement agency of information that
441     led the claimant to know that conduct subjecting the property to seizure would occur, was
442     occurring, or has occurred;
443          [(ii)] (b) timely revoking or attempting to revoke permission to use the property
444     regarding those engaging in the illegal conduct; or
445          [(iii)] (c) taking reasonable actions to discourage or prevent the illegal use of the
446     property.
447          [(4)] (5) If the state relies on Subsection (2)[(a)] to establish that a claimant is not an
448     innocent owner, and if the claimant is criminally charged with the conduct giving rise to the
449     forfeiture and is acquitted of that charge on the merits:
450          (a) the property subject to the forfeiture or the open market value of the property, if the
451     property has been disposed of under Subsection 24-4-108(13), shall be returned to the
452     claimant; [and]
453          (b) any payments required under this chapter regarding holding the property shall be
454     paid to the claimant[.]; and
455          (c) interest on the fair market value of all forfeited property or proceeds; and
456          (d) court costs and reasonable attorney fees incurred in defending against the civil
457     forfeiture action.
458          [(5)] (6) A person may not assert under this chapter an ownership interest in
459     contraband.
460          [(6) Property is presumed to be subject to forfeiture under this chapter if the
461     prosecuting attorney establishes that:]
462          [(a) the claimant has engaged in conduct giving cause for forfeiture;]
463          [(b) the property was acquired by the claimant during that period of the conduct giving
464     cause for forfeiture or within a reasonable time after that period; and]
465          [(c) there was no likely source for the purchase or acquisition of the property other than
466     the conduct giving cause for forfeiture.]
467          [(7) A finding that property is the proceeds of conduct giving cause for forfeiture does
468     not require proof that the property was the proceeds of any particular exchange or transaction.]
469          Section 7. Section 24-4-108 is amended to read:
470          24-4-108. Release of property held for forfeiture on certain grounds.
471          (1) After the seizing agency gives notice that the property is to be held for forfeiture, a
472     person or entity may not alienate, convey, sequester, or attach that property until the court
473     issues a final order of dismissal or an order of forfeiture regarding the property.
474          (2) The seizing agency or the prosecuting attorney may authorize the release of
475     property held for forfeiture to a claimant if retention of actual custody is unnecessary.
476          (3) With the consent of a court of competent jurisdiction, the prosecuting attorney may
477     discontinue forfeiture proceedings and transfer the action to another state or federal agency that
478     has initiated forfeiture proceedings involving the same property.
479          (4) Property held for forfeiture is considered to be in the custody of the district court
480     and subject only to:
481          (a) the orders and decrees of the court having jurisdiction over the property or the
482     forfeiture proceedings; and
483          (b) the acts of the agency that possesses the property or the prosecuting attorney
484     pursuant to this chapter.
485          (5) (a) A claimant may obtain release of property held for forfeiture by posting with the
486     district court a surety bond or cash in an amount equal to the current fair market value of the
487     property as determined by the court or by the parties' stipulation.
488          (b) The district court may refuse to order the release of the property if:
489          (i) the bond tendered is inadequate;
490          (ii) the property is contraband or is retained as evidence; or
491          (iii) the property is particularly altered or designed for use in conduct giving cause for
492     forfeiture.
493          (c) If a surety bond or cash is posted and the court later determines that the property is
494     subject to forfeiture, the court shall order the forfeiture of the surety bond or cash in lieu of the
495     property.
496          (6) A claimant is entitled to the immediate release of property held for forfeiture
497     pending the final determination of forfeiture if:
498          (a) the claimant had a possessory interest in the property at the time of seizure;
499          (b) continued possession by the agency or the state pending the final disposition of the
500     forfeiture proceedings will cause substantial hardship to the claimant, such as:
501          (i) preventing the functioning of a legitimate business;
502          (ii) preventing any individual from working;
503          (iii) preventing any child from attending elementary or secondary school;
504          (iv) preventing or hindering any person from receiving necessary medical care;
505          (v) hindering the care of an elderly or disabled dependent child or adult;
506          (vi) leaving any individual homeless; [or]
507          (vii) preventing a claimant from retaining counsel to provide a defense in the forfeiture
508     proceeding or related criminal proceeding; or
509          [(vii)] (viii) any other condition that the court determines causes a substantial hardship;
510          (c) the hardship from the continued possession of the property by the agency outweighs
511     the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is
512     returned to the claimant during the pendency of the proceeding; and
513          (d) determination of substantial hardship under this Subsection (6) is based upon the
514     property's use prior to the seizure.
515          (7) After the seizing agency gives notice that the property is to be held for forfeiture, a
516     claimant may file a motion for hardship release:
517          (a) in the court in which forfeiture proceedings have commenced; or
518          (b) in any district court having jurisdiction over the property, if forfeiture proceedings
519     have not yet commenced.
520          (8) The motion for hardship release shall also be served upon the prosecuting attorney
521     or the seizing agency within 10 days after filing the motion.
522          (9) The court shall render a decision on a motion for hardship filed under this section
523     not later than 20 days after the date of filing, or 10 days after service upon the prosecuting
524     attorney or seizing agency, whichever is earlier, unless this period is extended by the agreement
525     of both parties or by the court for good cause shown.
526          (10) (a) If the claimant demonstrates substantial hardship pursuant to this section, the
527     court shall order the property immediately released to the claimant pending completion of
528     proceedings by the government to obtain forfeiture of the property.
529          (b) The court may place conditions on release of the property as it finds necessary and
530     appropriate to preserve the availability of the property or its equivalent for forfeiture.
531          (11) The hardship release under this section does not apply to:
532          (a) contraband;
533          (b) currency or other monetary instrument or electronic funds[; or], unless any of these:
534          (i) are used to pay for the reasonable costs of defending against the forfeiture
535     proceedings or related criminal proceedings; or
536          (ii) constitute the assets of a legitimate business; or
537          (c) property that is likely to be used to commit additional illegal acts if returned to the
538     claimant.
539          (12) (a) The court may order property that is held for forfeiture to be sold, as allowed
540     by Subsection (13), leased, rented, or operated to satisfy a specified interest of any claimant, or
541     to preserve the interests of any party on motion of that party.
542          (b) The court may enter orders under Subsection (12)(a) after written notice to persons
543     known to have an interest in the property, and after an opportunity for a hearing.
544          (13) (a) A sale may be ordered under Subsection (12) when the property is liable to
545     perish, waste, or be significantly reduced in value, or when the expenses of maintaining the
546     property are disproportionate to its value.
547          (b) A third party designated by the court shall dispose of the property by commercially
548     reasonable public sale and distribute the proceeds in the following order of priority:
549          (i) first, for the payment of reasonable expenses incurred in connection with the sale;
550          (ii) second, for the satisfaction of any interests, including those of interest holders, in
551     the order of their priority as determined by Title 70A, Uniform Commercial Code; and
552          (iii) third, any balance of the proceeds shall be preserved in the actual or constructive
553     custody of the court, in an interest-bearing account, subject to further proceedings under this
554     chapter.
555          Section 8. Section 24-4-109 is amended to read:
556          24-4-109. Prejudgment and postjudgment interest.
557          In any proceeding to forfeit currency or other negotiable instruments under this chapter,
558     the court shall award a prevailing [party] claimant prejudgment and postjudgment interest on
559     the currency or negotiable instruments at the interest rate established under Section 15-1-4.
560          Section 9. Section 24-4-110 is amended to read:
561          24-4-110. Attorney fees and costs.
562          (1) In any forfeiture proceeding under this chapter, the court shall award a prevailing
563     [property owner] claimant reasonable:
564          (a) legal costs; and
565          (b) attorney fees.
566          [(2) The legal costs and attorney fees awarded by the court to the prevailing party may
567     not exceed 20% of the value of the property.]
568          [(3)] (2) A [property owner] claimant that prevails only in part is entitled to recover
569     reasonable legal costs and attorney fees only on those issues on which the party prevailed, as
570     determined by the court.
571          Section 10. Section 24-4-115 is amended to read:
572          24-4-115. Disposition and allocation of forfeiture property from civil and
573     criminal forfeiture actions.
574          (1) Upon finding that property is subject to forfeiture under this chapter, the court shall
575     order the property forfeited to the state.
576          (2) (a) If the property is not currency, the seizing agency shall authorize a public or
577     otherwise commercially reasonable sale of that property that is not required by law to be
578     destroyed and that is not harmful to the public.
579          (b) If the property forfeited is an alcoholic product as defined in Section 32B-1-102, it
580     shall be disposed of as follows:
581          (i) an alcoholic product shall be sold if the alcoholic product is:
582          (A) unadulterated, pure, and free from any crude, unrectified, or impure form of ethylic
583     alcohol, or any other deleterious substance or liquid; and
584          (B) otherwise in saleable condition; or
585          (ii) an alcoholic product and its package shall be destroyed if the alcoholic product is
586     impure, adulterated, or otherwise unfit for sale.
587          (c) If the property forfeited is a cigarette or other tobacco product as defined in Section
588     59-14-102, it shall be destroyed, except that prior to the destruction of any cigarette or other
589     tobacco product seized pursuant to this part, the lawful holder of the trademark rights in the
590     cigarette or tobacco product brand shall be permitted to inspect the cigarette.
591          (d) The proceeds of the sale of forfeited property shall remain segregated from other
592     property, equipment, or assets of the seizing agency until transferred to the state in accordance
593     with this chapter.
594          (3) From the forfeited property, both currency and the proceeds or revenue from the
595     sale of the property, the seizing agency shall:
596          (a) deduct the seizing agency's direct costs and expenses of obtaining and maintaining
597     the property pending forfeiture; and
598          (b) pay the office of the prosecuting attorney the legal costs associated with the
599     litigation of the forfeiture proceeding, and up to 20% of the value of the forfeited property in
600     attorney fees.
601          (4) If the forfeiture arises from any violation relating to wildlife resources, the
602     remaining currency and the proceeds or revenue from the sale of the property shall be deposited
603     in the Wildlife Resources Account created in Section 23-14-13.
604          (5) The remaining currency and the proceeds or revenue from the sale of the property
605     shall then be transferred:
606          (a) to the Uniform School Fund if the proceeds are from a civil forfeiture proceeding
607     under this chapter; and
608          (b) to the commission and deposited into the [account] Criminal Forfeiture Restricted
609     Account, if the proceeds are from a criminal forfeiture proceeding under this chapter.
610          Section 11. Section 24-4-116 is amended to read:
611          24-4-116. Criminal Forfeiture Restricted Account.
612          (1) There is created within the General Fund a restricted account known as the
613     "Criminal Forfeiture Restricted Account."
614          (2) Proceeds from [forfeited] property and [forfeited] money forfeited through state
615     [forfeitures] criminal forfeiture actions under Section 24-4-105 shall be deposited into the
616     account.
617          (3) Money in the account shall be appropriated to the commission for implementing the
618     program under Section 24-4-117.
619          Section 12. Section 24-4-117 is amended to read:
620          24-4-117. State Asset Forfeiture Grant Program.
621          (1) There is created the State Asset Forfeiture Grant Program.
622          (2) The program shall fund crime prevention, crime victim reparations, and law
623     enforcement activities that have the purpose of:
624          (a) deterring crime by depriving criminals of the profits and proceeds of their illegal
625     activities;
626          (b) weakening criminal enterprises by removing the instrumentalities of crime;
627          (c) reducing crimes involving substance abuse by supporting the creation,
628     administration, or operation of drug court programs throughout the state;
629          (d) encouraging cooperation between local, state, and multijurisdictional law
630     enforcement agencies;
631          (e) allowing the costs and expenses of law enforcement to be defrayed by the forfeited
632     proceeds of crime;
633          (f) increasing the equitability and accountability of the use of forfeited property used to
634     assist law enforcement in reducing and preventing crime; and
635          (g) providing aid to victims of criminally injurious conduct, as defined in Section
636     63M-7-502, who may be eligible for assistance under Title 63M, Chapter 7, Part 5, Utah Office
637     for Victims of Crime.
638          (3) [(a)] When property is forfeited under this chapter and transferred to the account,
639     upon appropriation the commission shall allocate and administer grants to state agencies, local
640     law enforcement agencies, multijurisdictional law enforcement agencies, or political
641     subdivisions of the state in compliance with this section and to further the program purposes
642     under Subsection (2).
643          [(b)] (4) The commission may retain up to 3% of the annual appropriation from the
644     account to pay for administrative costs incurred by the commission, including salary and
645     benefits, equipment, supplies, or travel costs that are directly related to the administration of
646     the program.
647          [(4)] (5) Agencies or political subdivisions shall apply for an award from the program
648     by completing and submitting forms specified by the commission.
649          [(5)] (6) In granting the awards, the commission shall ensure that the amount of each
650     award takes into consideration the:
651          (a) demonstrated needs of the agency;
652          (b) demonstrated ability of the agency to appropriately use the award;
653          (c) degree to which the agency's need is offset through the agency's participation in
654     federal equitable sharing or through other federal and state grant programs; and
655          (d) agency's cooperation with other state and local agencies and task forces.
656          (7) The program shall pay restitution and costs under Section 24-4-107 regarding
657     defendants who are acquitted of the nexus criminal charge.
658          [(6)] (8) Applying agencies or political subdivisions shall demonstrate compliance with
659     all reporting and policy requirements applicable under this chapter and under Title 63M,
660     Chapter 7, Criminal Justice and Substance Abuse, in order to qualify as a potential award
661     recipient.
662          [(7)] (9) (a) Recipient law enforcement agencies may only use award money after
663     approval by the agency's legislative body.
664          (b) The award money is nonlapsing.
665          [(8)] (10) A recipient state agency, local law enforcement agency, multijurisdictional
666     law enforcement agency, or political subdivision shall use awards only for law enforcement
667     purposes as described in this section or for victim reparations as described in Subsection (2)(g),
668     and only as these purposes are specified by the agency or political subdivision in its application
669     for the award.
670          [(9)] (11) Permissible law enforcement purposes for which award money may be used
671     include:
672          (a) controlled substance interdiction and enforcement activities;
673          (b) drug court programs;
674          (c) activities calculated to enhance future law enforcement investigations;
675          (d) law enforcement training that includes:
676          (i) implementation of the Fourth Amendment to the United States Constitution and
677     Utah Constitution, Article I, Section 7, and that addresses the protection of the individual's
678     right of due process;
679          (ii) protection of the rights of innocent property holders; and
680          (iii) the Tenth Amendment to the United States Constitution regarding states'
681     sovereignty and the states' reserved rights;
682          (e) law enforcement or detention facilities;
683          (f) law enforcement operations or equipment that are not routine costs or operational
684     expenses;
685          (g) drug, gang, or crime prevention education programs that are sponsored in whole or
686     in part by the law enforcement agency or its legislative body;
687          (h) matching funds for other state or federal law enforcement grants; and
688          (i) the payment of legal costs, attorney fees, and postjudgment interest in forfeiture
689     actions.
690          [(10)] (12) Law enforcement purposes for which award money may not be granted or
691     used include:
692          (a) payment of salaries, retirement benefits, or bonuses to any person;
693          (b) payment of expenses not related to law enforcement;
694          (c) uses not specified in the agency's award application;
695          (d) uses not approved by the agency's legislative body;
696          (e) payments, transfers, or pass-through funding to entities other than law enforcement
697     agencies; or
698          (f) uses, payments, or expenses that are not within the scope of the agency's functions.