Representative Brian M. Greene proposes the following substitute bill:


1     
CIVIL ASSET FORFEITURE REFORM AMENDMENTS

2     
2017 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 nexus of the property to specific conduct giving rise to forfeiture in order
16     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          ▸     modifies the allocation of the proceeds from asset forfeiture to provide for:
33               •     victim restitution; and
34               •     reimbursement of direct costs by the prosecuting agency and the law
35     enforcement agencies involved in the case; and
36          ▸     provides that if the defendant is acquitted of the criminal charge subsequent to the
37     civil forfeiture proceeding, the forfeited assets shall be returned and the defendant
38     shall be reimbursed for interest and costs as listed.
39     Money Appropriated in this Bill:
40          None
41     Other Special Clauses:
42          This bill provides a coordination clause.
43     Utah Code Sections Affected:
44     AMENDS:
45          24-1-102, as last amended by Laws of Utah 2014, Chapter 112
46          24-4-102, as enacted by Laws of Utah 2013, Chapter 394
47          24-4-103, as enacted by Laws of Utah 2013, Chapter 394
48          24-4-104, as last amended by Laws of Utah 2014, Chapter 112
49          24-4-105, as last amended by Laws of Utah 2014, Chapter 112
50          24-4-107, as enacted by Laws of Utah 2013, Chapter 394
51          24-4-108, as enacted by Laws of Utah 2013, Chapter 394
52          24-4-109, as enacted by Laws of Utah 2013, Chapter 394
53          24-4-110, as last amended by Laws of Utah 2014, Chapter 112
54          24-4-116, as enacted by Laws of Utah 2013, Chapter 394
55          24-4-117, as last amended by Laws of Utah 2015, Chapter 134
56     Utah Code Sections Affected by Coordination Clause:
57          24-1-102, as last amended by Laws of Utah 2014, Chapter 112
58          24-4-102, as enacted by Laws of Utah 2013, Chapter 394
59          24-4-104, as last amended by Laws of Utah 2014, Chapter 112
60          24-4-107, as enacted by Laws of Utah 2013, Chapter 394
61     

62     Be it enacted by the Legislature of the state of Utah:
63          Section 1. Section 24-1-102 is amended to read:
64          24-1-102. Definitions.
65          As used in this title:
66          (1) "Account" means the Criminal Forfeiture Restricted Account created in Section
67     24-4-116.
68          (2) (a) ["Acquittal"] "Acquitted" means a finding by a jury or a judge at trial that a
69     claimant is not guilty.
70          (b) [An acquittal] "Acquitted" does not include:
71          (i) a verdict of guilty on a lesser or reduced charge;
72          (ii) a plea of guilty to a lesser or reduced charge; or
73          (iii) dismissal of a charge as a result of a negotiated plea agreement.
74          (3) "Agency" means any agency of municipal, county, or state government, including
75     law enforcement agencies, law enforcement personnel, and multijurisdictional task forces.
76          (4) "Claimant" means any:
77          (a) owner of property as defined in this section;
78          (b) interest holder as defined in this section; or
79          (c) person or entity who asserts a claim to any property seized for forfeiture under this
80     title.
81          (5) "Commission" means the Utah Commission on Criminal and Juvenile Justice.
82          (6) "Complaint" means a civil in rem complaint seeking the forfeiture of any real or
83     personal property under this title.
84          (7) "Constructive seizure" means a seizure of property where the property is left in the
85     control of the owner and the seizing agency posts the property with a notice of intent to seek
86     forfeiture.
87          (8) (a) "Contraband" means any property, item, or substance that is unlawful to
88     produce or to possess under state or federal law.
89          (b) All controlled substances that are possessed, transferred, distributed, or offered for
90     distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act, are
91     contraband.
92          (9) "Innocent owner" means a claimant who:
93          (a) (i) held an ownership interest in property at the time the conduct subjecting the
94     property to forfeiture occurred[, and:];
95          [(i) did not have actual knowledge of the conduct subjecting the property to forfeiture;
96     or]
97          [(ii) upon learning of the conduct subjecting the property to forfeiture, took reasonable
98     steps to prohibit the illegal use of the property; or]
99          (ii) did not give permission for the conduct or participate in the conduct; and
100          (iii) did not knowingly solicit, request, command, encourage, or intentionally aid
101     another person to engage in the conduct; or
102          (b) (i) acquired an ownership interest in the property and [who] had no knowledge that
103     the illegal conduct subjecting the property to forfeiture had occurred or that the property had
104     been seized for forfeiture[,]; and[:]
105          [(i)] (ii) (A) acquired the property in a bona fide transaction for value;
106          [(ii)] (B) was a person, including a minor child, who acquired an interest in the
107     property through probate or inheritance; or
108          [(iii)] (C) was a spouse who acquired an interest in property through dissolution of
109     marriage or by operation of law.
110          (10) (a) "Interest holder" means a secured party as defined in Section 70A-9a-102, a
111     mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to
112     an interest in property, whose interest would be perfected against a good faith purchaser for
113     value.
114          (b) "Interest holder" does not mean a person who holds property for the benefit of or as
115     an agent or nominee for another person, or who is not in substantial compliance with any
116     statute requiring an interest in property to be recorded or reflected in public records in order to
117     perfect the interest against a good faith purchaser for value.
118          (11) "Known address" means any address provided by a claimant to the agency at the
119     time the property was seized, or the claimant's most recent address on record with a
120     governmental entity if no address was provided at the time of the seizure.
121          (12) "Legal costs" means the costs and expenses incurred by a party in a forfeiture
122     action.
123          (13) "Legislative body" means:
124          (a) (i) the Legislature, county commission, county council, city commission, city
125     council, or town council that has fiscal oversight and budgetary approval authority over an
126     agency; or
127          (ii) the agency's governing political subdivision; or
128          (b) the lead governmental entity of a multijurisdictional task force, as designated in a
129     memorandum of understanding executed by the agencies participating in the task force.
130          (14) "Multijurisdictional task force" means a law enforcement task force or other
131     agency comprised of persons who are employed by or acting under the authority of different
132     governmental entities, including federal, state, county or municipal governments, or any
133     combination of these agencies.
134          (15) "Owner" means any person or entity, other than an interest holder, that possesses a
135     bona fide legal or equitable interest in real or personal property.
136          (16) [(a)] "Proceeds" means:
137          [(i) property of any kind that is obtained directly or indirectly as a result of the
138     commission of an offense that gives rise to forfeiture; or]
139          [(ii) any property acquired directly or indirectly from, produced through, realized
140     through, or caused by an act or omission regarding property under Subsection (16)(a)(i).]
141          [(b) "Proceeds" includes any property of any kind without reduction for expenses
142     incurred in the acquisition, maintenance, or production of that property, or any other purpose
143     regarding property under Subsection (16)(a)(i).]
144          [(c) "Proceeds" is not limited to the net gain or profit realized from the offense that
145     gives rise to forfeiture.]
146          (a) property of any kind that is:
147          (i) obtained through the commission of an offense that gives rise to forfeiture; and
148          (ii) limited to that portion of property that is obtained through the commission of the
149     offense giving rise to the forfeiture; or
150          (b) cash received from the sale of, and property received from the transfer of, property
151     described in Subsection (16)(a).
152          (17) "Program" means the State Asset Forfeiture Grant Program established in Section
153     24-4-117.
154          (18) "Property" means all property, whether real or personal, tangible or intangible, but
155     does not include contraband.
156          (19) "Prosecuting attorney" means:
157          (a) the attorney general and any assistant attorney general;
158          (b) any district attorney or deputy district attorney;
159          (c) any county attorney or assistant county attorney; and
160          (d) any other attorney authorized to commence an action on behalf of the state under
161     this title.
162          (20) "Public interest use" means a:
163          (a) use by a government agency as determined by the legislative body of the agency's
164     jurisdiction; or
165          (b) donation of the property to a nonprofit charity registered with the state.
166          (21) "Real property" means land and includes any building, fixture, improvement,
167     appurtenance, structure, or other development that is affixed permanently to land.
168          Section 2. Section 24-4-102 is amended to read:
169          24-4-102. Property subject to forfeiture.
170          (1) Except as provided in Subsection [(3)] (4), all property that has been used to
171     facilitate the commission of a federal or state criminal offense and any proceeds of criminal
172     activity may be forfeited under this chapter, including:
173          (a) real property, including things growing on, affixed to, and found in land; and
174          (b) tangible and intangible personal property, including money, rights, privileges,
175     interests, claims, and securities of any kind.
176          (2) Property that is subject to forfeiture under this chapter may be forfeited if the
177     prosecuting attorney establishes that:
178          (a) the claimant has engaged in conduct giving rise to forfeiture;
179          (b) the property was acquired by the claimant during that portion of the conduct that
180     gives rise to forfeiture, or within a reasonable time after that conduct is committed; and
181          (c) there is no likely source for the purchase or acquisition of the property other than
182     the conduct that gives rise to forfeiture.
183          [(2)] (3) If the property is used to facilitate a violation of Section 76-10-1204,
184     76-10-1205, 76-10-1206, or 76-10-1222, the property subject to forfeiture under this section is
185     limited to property, the seizure or forfeiture of which would not constitute a prior restraint on
186     the exercise of an affected party's rights under the First Amendment to the Constitution of the
187     United States or Utah Constitution, Article I, Section 15, or would not otherwise unlawfully
188     interfere with the exercise of those rights.
189          [(3)] (4) A motor vehicle used in a violation of Section 41-6a-502, 41-6a-517, a local
190     ordinance that complies with the requirements of Subsection 41-6a-510(1), Subsection
191     58-37-8(2)(g), or Section 76-5-207 may not be forfeited unless:
192          (a) the operator of the vehicle has previously been convicted of a violation, committed
193     after May 12, 2009, of:
194          (i) a felony driving under the influence violation under Section 41-6a-502;
195          (ii) a felony violation under Subsection 58-37-8(2)(g); or
196          (iii) automobile homicide under Section 76-5-207; or
197          (b) the operator of the vehicle was driving on a denied, suspended, revoked, or
198     disqualified license; and
199          (i) the denial, suspension, revocation, or disqualification under Subsection (3)(b)(ii)
200     was imposed because of a violation under:
201          (A) Section 41-6a-502;
202          (B) Section 41-6a-517;
203          (C) a local ordinance that complies with the requirements of Subsection 41-6a-510(1);
204          (D) Section 41-6a-520;
205          (E) Subsection 58-37-8(2)(g);
206          (F) Section 76-5-207; or
207          (G) a criminal prohibition that the person was charged with violating as a result of a
208     plea bargain after having been originally charged with violating one or more of the sections or
209     ordinances described in Subsections (3)(b)(i)(A) through (F); or
210          (ii) the denial, suspension, revocation, or disqualification described in Subsections
211     (3)(b)(i)(A) through (G):
212          (A) is an extension imposed under Subsection 53-3-220(2) of a denial, suspension,
213     revocation, or disqualification; and
214          (B) the original denial, suspension, revocation, or disqualification was imposed
215     because of a violation described in Subsections (3)(b)(i)(A) through (G).
216          Section 3. Section 24-4-103 is amended to read:
217          24-4-103. Initiating forfeiture proceedings -- Notice of intent to seek forfeiture.
218          (1) (a) Within 30 days from the date that property is seized, an agency seeking to forfeit
219     property shall serve a notice of intent to seek forfeiture upon any claimants known to the
220     agency.
221          (b) The notice of intent to seek forfeiture shall describe with particularity the:
222          (i) date of the seizure;
223          (ii) property seized;
224          (iii) alleged relationship of the seized property to the conduct giving rise to forfeiture;
225          [(iii)] (iv) claimant's rights and obligations under this chapter, including the availability
226     of hardship relief in appropriate circumstances; and
227          [(iv)] (v) statutory basis for the forfeiture, including the judicial proceedings by which
228     property may be forfeited under this chapter.
229          (c) The notice of intent to seek forfeiture shall be served by:
230          (i) certified mail, return receipt requested, to the claimant's known address; or
231          (ii) personal service.
232          (d) The court may void any forfeiture made without notice under Subsection (1)(a),
233     unless the agency demonstrates:
234          (i) good cause for the failure to give notice to the claimant; or
235          (ii) that the claimant had actual notice of the seizure.
236          (2) (a) [Once] After the agency has served each claimant with a notice of intent to seek
237     forfeiture, but no later than 60 days from the date that property is seized, the agency shall
238     present a written request for forfeiture to the prosecuting attorney.
239          (b) The written request shall:
240          (i) describe the property to be forfeited; and
241          (ii) include a copy of all reports, supporting documents, and other evidence necessary
242     for the prosecuting attorney to determine the legal sufficiency for filing a forfeiture action.
243          (3) If a law enforcement agency does not notify claimants and present a request for
244     forfeiture in compliance with Subsections (1) and (2), the law enforcement agency shall
245     promptly return the seized property to the claimant or claimants.
246          (4) A prosecuting attorney may take no further action to effect the forfeiture of the
247     seized property, unless within 75 days after the property is seized the prosecuting attorney:
248          (a) files a criminal information or indictment under Subsection 24-4-105(2);
249          (b) files a petition under Subsection 24-4-114(1) regarding transfer or sharing of
250     forfeiture proceeds; or
251          (c) files a civil forfeiture complaint under Section 24-4-104.
252          Section 4. Section 24-4-104 is amended to read:
253          24-4-104. Civil forfeiture procedure.
254          [(1) (a) The law enforcement agency shall promptly return seized property, and the
255     prosecuting attorney may take no further action to effect the forfeiture of the property, unless
256     within 75 days after the property is seized the prosecuting attorney:]
257          [(i) files a criminal forfeiture indictment or information under Subsection 24-4-105(2);]
258          [(ii) obtains a restraining order under Subsection 24-4-105(3);]
259          [(iii) files a petition under Subsection 24-4-114(1); or]
260          [(iv) files a civil forfeiture complaint.]
261          (1) (a) When a prosecuting attorney files a civil forfeiture complaint under this section,
262     the prosecutor may not pursue any forfeiture proceeding regarding a claimant's interest in the
263     seized property unless a criminal information or indictment is filed within 75 days of the
264     seizure of the property that is subject to the forfeiture complaint and the property has a nexus to
265     the offense charged in the information or indictment. The court may, upon motion of the
266     prosecuting attorney and for good cause, extend the filing requirement for a criminal
267     information or indictment for no longer than 60 days.
268          (b) Notwithstanding Subsections (1)(a) and (c), a prosecuting attorney may pursue a
269     complaint for civil forfeiture in compliance with this section if:
270          (i) the seized property has been in the custody of the law enforcement agency for 180
271     days;
272          (ii) the law enforcement agency has made a concerted and reasonable effort to locate
273     and identify the owner of the property;
274          (iii) the seized property is believed to have a nexus to criminal activity; and
275          (iv) no owner or potential claimant has been found or, if an owner or potential claimant
276     has been found, the claimant or claimants have, after an opportunity to consult with legal
277     counsel, disclaimed, in writing, any ownership interest in the seized property.
278          (c) The law enforcement agency shall promptly return the seized property to the
279     claimant and the prosecuting attorney shall move the court to dismiss the complaint for civil
280     forfeiture if:
281          (i) a conviction is not obtained regarding the nexus offense charged under Subsection
282     (1)(a);
283          (ii) all opportunities to prosecute have been exhausted or abandoned; or
284          (iii) the information or indictment for criminal conduct giving rise to the forfeiture was
285     dismissed and the prosecuting attorney has not refiled the information or indictment within 10
286     business days of the dismissal.
287          (d) If civil forfeiture proceedings have been concluded, the property ordered forfeited,
288     the property disposed of in accordance with the forfeiture order, and the claimant is
289     subsequently acquitted of the nexus charge, the claimant shall be paid the fair market value of
290     the property, including any interest on the fair market value from the date of seizure.
291          [(b)] (2) A complaint for civil forfeiture shall describe with reasonable particularity
292     [the]:
293          [(i)] (a) the property that is the subject of the forfeiture proceeding;
294          [(ii)] (b) the date and place of seizure; [and]
295          (c) a nexus between the seized property and the conduct giving rise to the forfeiture
296     under Subsection 24-4-102(2); and
297          [(iii)] (d) specific factual allegations that constitute a basis for forfeiture.
298          [(2)] (3) (a) After a complaint that meets the requirements of Subsections (1) and (2) is
299     filed, the prosecuting attorney shall serve a copy of the complaint and summons upon each
300     claimant known to the prosecuting attorney within 30 days.
301          (b) The prosecuting attorney is not required to serve a copy of the complaint or the
302     summons upon any claimant who has disclaimed, in writing, an ownership interest in the
303     seized property.
304          [(c) Service of the complaint and summons shall be by:]
305          [(i) personal service;]
306          [(ii) certified mail, return receipt requested, to the claimant's known address; or]
307          [(iii) service by publication, if the prosecuting attorney demonstrates to the court that
308     service cannot reasonably be made by personal service or certified mail.]
309          [(d) Service by publication shall be by publication of two notices, in two successive
310     weeks, of the forfeiture proceeding:]
311          [(i) in a newspaper of general circulation in the county in which the seizure occurred;
312     and]
313          [(ii) on Utah's Public Legal Notice Website established in Subsection 45-1-101(2)(b).]
314          [(e) Service is effective upon the earlier of:]
315          [(i) personal service;]
316          [(ii) mailing of a written notice; or]
317          [(iii) publication.]
318          [(f) Upon motion of the prosecuting attorney and a showing of good cause, the court
319     may extend the period to complete service under this section for an additional 60 days.]
320          (4) The prosecutor shall take all reasonable steps to ensure a forfeiture proceeding
321     initiated under this section is concluded in a timely manner.
322          [(3) (a)] (5) In any case where the prosecuting attorney files a complaint for civil
323     forfeiture, [a claimant may file an answer to the complaint] any person may assert an interest in
324     seized property or file an answer to a complaint for civil forfeiture without posting bond with
325     respect to the property that is the subject of the seizure or forfeiture action.
326          (b) [The] An answer shall be filed within 30 days after the complaint is served upon
327     the claimant as provided in Subsection [(2)] (3)(b).
328          [(4)] (6) Except as otherwise provided in this chapter, forfeiture proceedings are
329     governed by the Utah Rules of Civil Procedure.
330          [(5)] (7) The court shall take all reasonable steps to expedite civil forfeiture
331     proceedings and shall give these proceedings the same priority as is given to criminal cases.
332          [(6)] (8) In all suits or actions brought under this section for the civil forfeiture of any
333     property, the burden of proof is on the prosecuting attorney to establish by clear and convincing
334     evidence the extent to which, if any, the property is subject to forfeiture.
335          [(7) A claimant may file an answer to a complaint for civil forfeiture without posting
336     bond with respect to the property subject to forfeiture.]
337          Section 5. Section 24-4-105 is amended to read:
338          24-4-105. Criminal forfeiture procedure.
339          (1) (a) If a claimant is criminally prosecuted for conduct giving rise to the forfeiture,
340     the prosecuting attorney may elect to seek forfeiture of the claimant's interest in the property
341     through the criminal case.
342          (b) If, prior to trial, the prosecuting attorney is made aware of a claimant other than a
343     defendant, the prosecuting attorney may not seek forfeiture of the property through the criminal
344     case.
345          (2) If the prosecuting attorney elects to seek forfeiture of the claimant's interest in the
346     property through the criminal case, the information or indictment shall state that the claimant's
347     interest in the property is subject to forfeiture and the basis for the forfeiture.
348          (3) (a) Upon application of the prosecuting attorney, the court may enter restraining
349     orders or injunctions, or take other reasonable actions to preserve for forfeiture under this
350     section, any property subject to forfeiture if, after notice to known claimants and claimants who
351     can be identified after due diligence and who are known to have an interest in the property, and
352     after affording those persons an opportunity for a hearing, the court determines that:
353          (i) there is a substantial probability that the state will prevail on the issue of forfeiture
354     and that failure to enter the order will result in the property being sold, transferred, destroyed,
355     or removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
356          (ii) the need to preserve the availability of the property or prevent its sale, transfer,
357     destruction, or removal through the entry of the requested order outweighs the hardship against
358     any party against whom the order is to be entered.
359          (b) A temporary restraining order may be entered ex parte upon application of the
360     prosecuting attorney before or after an information or indictment has been filed with respect to
361     the property, if the prosecuting attorney demonstrates that:
362          (i) there is probable cause to believe that the property with respect to which the order is
363     sought would, in the event of a conviction, be subject to forfeiture under this section; and
364          (ii) provision of notice would jeopardize the availability of the property for forfeiture
365     or would jeopardize an ongoing criminal investigation.
366          (c) The temporary order expires not more than 10 days after entry unless extended for
367     good cause shown or unless the party against whom it is entered consents to an extension.
368          (d) After service of the temporary order upon any claimants known to the prosecuting
369     attorney, a hearing concerning the order entered under this section shall be held as soon as
370     practicable and prior to the expiration of the temporary order.
371          (e) The court is not bound by the Utah Rules of Evidence regarding evidence it may
372     receive and consider at any hearing under this section.
373          (4) (a) Upon conviction of a claimant for conduct giving rise to criminal forfeiture, the
374     prosecutor shall ask the finder of fact to make a specific finding as to whether the property or
375     any part of it is subject to forfeiture.
376          (b) A determination of whether property is subject to forfeiture under this section shall
377     be proven beyond a reasonable doubt.
378          (5) (a) Upon conviction of a claimant for violating any provision of state law
379     subjecting a claimant's property to forfeiture and a finding by the trier of fact that the property
380     is subject to forfeiture, the court shall enter a judgment and order the property forfeited to the
381     state upon the terms stated by the court in its order.
382          (b) Following the entry of an order declaring property forfeited, the court may, upon
383     application of the prosecuting attorney, enter appropriate restraining orders or injunctions,
384     require the execution of satisfactory performance bonds, appoint receivers, conservators,
385     appraisers, accountants, or trustees, or take any other action to protect the interest of the state in
386     property ordered forfeited.
387          (6) (a) (i) After property is ordered forfeited under this section, the seizing agency shall
388     direct the disposition of the property under Section 24-4-115.
389          (ii) Any property right or interest under this Subsection (6)(a) not exercisable by or
390     transferable for value to the state expires and does not revert to the defendant.
391          (iii) The defendant or any person acting in concert with or on behalf of the defendant is
392     not eligible to purchase forfeited property at any sale held by the seizing agency unless
393     approved by the judge.
394          (b) The court may stay the sale or disposition of the property pending the conclusion of
395     any appeal of the criminal case giving rise to the forfeiture if the defendant demonstrates that
396     proceeding with the sale or disposition of the property may result in irreparable injury, harm, or
397     loss.
398          (7) Except as provided under Subsection (3) or (10), a party claiming an interest in
399     property subject to forfeiture under this section:
400          (a) may not intervene in a trial or appeal of a criminal case involving the forfeiture of
401     property under this section; and
402          (b) may not commence an action at law or equity concerning the validity of the party's
403     alleged interests in the property subsequent to the filing of an indictment or an information
404     alleging that the property is subject to forfeiture under this section.
405          (8) The district court that has jurisdiction of a case under this part may enter orders
406     under this section without regard to the location of any property that may be subject to
407     forfeiture under this section or that has been ordered forfeited under this section.
408          (9) To facilitate the identification or location of property declared forfeited and to
409     facilitate the disposition of petitions for remission or mitigation of forfeiture after the entry of
410     an order declaring property forfeited to the state, the court may, upon application of the
411     prosecuting attorney, order that the testimony of any witness relating to the forfeited property
412     be taken by deposition, and that any book, paper, document, record, recording, or other
413     material shall be produced as provided for depositions and discovery under the Utah Rules of
414     Civil Procedure.
415          (10) (a) (i) Following the entry of an order of forfeiture under this section, the
416     prosecuting attorney shall publish notice of the order's intent to dispose of the property by
417     publication. Service by publication shall be by publication of two notices, in two successive
418     weeks, of the forfeiture proceeding:
419          (A) in a newspaper of general circulation in the county in which the seizure occurred;
420     and
421          (B) on Utah's Public Legal Notice Website established in Subsection 45-1-101(2)(b).
422          (ii) The prosecuting attorney shall also send written notice to any claimants, other than
423     the defendant, known to the prosecuting attorney to have an interest in the property, at the
424     claimant's known address.
425          (b) (i) Any claimant, other than the defendant, asserting a legal interest in property that
426     has been ordered forfeited to the state under this section may, within 30 days after the notice
427     has been published or the claimant receives the written notice under Subsection (10)(a),
428     whichever is earlier, petition the court for a hearing to adjudicate the validity of the claimant's
429     alleged interest in the property.
430          (ii) Any genuine issue of material fact, including issues of standing, may be tried to a
431     jury upon demand of any party.
432          (c) The petition shall:
433          (i) be in writing and signed by the claimant under penalty of perjury;
434          (ii) set forth the nature and extent of the claimant's right, title, or interest in the
435     property, the time and circumstances of the claimant's acquisition of the right, title, or interest
436     in the property; and
437          (iii) set forth any additional facts supporting the claimant's claim and the relief sought.
438          (d) The trial or hearing on the petition shall be expedited to the extent practicable. The
439     court may consolidate a trial or hearing on the petition and any petition filed by any claimant
440     other than the defendant under this section. The court shall permit the parties to conduct
441     pretrial discovery pursuant to the Utah Rules of Civil Procedure.
442          (e) (i) At the trial or hearing, the claimant may testify and present evidence and
443     witnesses on the claimant's own behalf and cross-examine witnesses who appear at the hearing.
444     The prosecuting attorney may present evidence and witnesses in rebuttal and in defense of the
445     claim to the property and cross-examine witnesses who appear.
446          (ii) In addition to testimony and evidence presented at the trial or hearing, the court
447     may consider the relevant portion of the record of the criminal case that resulted in the order of
448     forfeiture.
449          (iii) Any trial or hearing shall be conducted pursuant to the Utah Rules of Evidence.
450          (f) The court shall amend the order of forfeiture in accordance with its determination, if
451     after the trial or hearing, the court or jury determines that the petitioner has established by a
452     preponderance of the evidence that:
453          (i) the claimant has a legal right, title, or interest in the property, and the right, title, or
454     interest renders the order of forfeiture invalid in whole or in part because the right, title, or
455     interest was vested in the claimant rather than the defendant or was superior to any right, title,
456     or interest of the defendant at the time of the commission of the acts or conduct that gave rise
457     to the forfeiture of the property under this section; or
458          (ii) the claimant acquired the right, title, or interest in the property in a bona fide
459     transaction for value, and, at the time of acquisition, the claimant did not know that the
460     property was subject to forfeiture.
461          (g) Following the court's disposition of all petitions filed under this Subsection (10), or
462     if no petitions are filed following the expiration of the period provided in Subsection (10)(b)
463     for the filing of petitions, the state has clear title to property subject to the order of forfeiture
464     and may warrant good title to any subsequent purchaser or transferee.
465          Section 6. Section 24-4-107 is amended to read:
466          24-4-107. Innocent owners.
467          (1) An innocent owner's interest in property may not be forfeited under any provision
468     of law.
469          (2) In a forfeiture proceeding under this chapter, the prosecuting attorney has the
470     burden of [establishing evidence] proving by the applicable standard of proof that [a] the
471     claimant[:] is not an innocent owner.
472          [(a) is responsible for the conduct giving rise to the forfeiture, subject to Subsection
473     (4);]
474          [(b) knew of the conduct giving rise to the forfeiture, and allowed the property to be
475     used in furtherance of the conduct;]
476          [(c) acquired the property with notice of its actual or constructive seizure for forfeiture
477     under this chapter;]
478          [(d) acquired the property knowing the property was subject to forfeiture under this
479     chapter; or]
480          [(e) acquired the property in an effort to conceal, prevent, hinder, or delay its lawful
481     seizure or forfeiture under any provision of state law.]
482          [(3) (a) A claimant under this chapter is not required to take steps to prevent illegal use
483     or criminal activity regarding the property that the claimant reasonably believes would be likely
484     to result in physical harm or danger to any person.]
485          [(b) A claimant may demonstrate that the claimant took reasonable action to prohibit
486     the illegal use of the property by:]
487          [(i) making a timely notification to a law enforcement agency of information that led
488     the claimant to know that conduct subjecting the property to seizure would occur, was
489     occurring, or has occurred;]
490          [(ii) timely revoking or attempting to revoke permission to use the property regarding
491     those engaging in the illegal conduct; or]
492          [(iii) taking reasonable actions to discourage or prevent the illegal use of the property.]
493          [(4) If the state relies on Subsection (2)(a) to establish that a claimant is not an
494     innocent owner, and if the]
495          (3) If the claimant is criminally charged with the conduct giving rise to the forfeiture
496     and is acquitted of that charge on the merits:
497          (a) the court shall rescind the civil forfeiture order if one has been obtained under
498     Section 24-4-104;
499          [(a)] (b) the property subject to the forfeiture or the open market value of the property,
500     if the property has been disposed of under Subsection 24-4-108(13), shall be returned to the
501     claimant; [and]
502          [(b)] (c) any payments required under this chapter regarding holding the property shall
503     be paid to the claimant[.];
504          (d) interest on the fair market value of all forfeited property or proceeds shall be paid to
505     the claimant; and
506          (e) court costs and reasonable attorney fees incurred in defending against the civil
507     forfeiture action shall be paid to the claimant.
508          [(5)] (4) A person may not assert under this chapter an ownership interest in
509     contraband.
510          [(6) Property is presumed to be subject to forfeiture under this chapter if the
511     prosecuting attorney establishes that:]
512          [(a) the claimant has engaged in conduct giving cause for forfeiture;]
513          [(b) the property was acquired by the claimant during that period of the conduct giving
514     cause for forfeiture or within a reasonable time after that period; and]
515          [(c) there was no likely source for the purchase or acquisition of the property other than
516     the conduct giving cause for forfeiture.]
517          [(7) A finding that property is the proceeds of conduct giving cause for forfeiture does
518     not require proof that the property was the proceeds of any particular exchange or transaction.]
519          Section 7. Section 24-4-108 is amended to read:
520          24-4-108. Release of property held for forfeiture on certain grounds.
521          (1) After the seizing agency gives notice that the property is to be held for forfeiture, a
522     person or entity may not alienate, convey, sequester, or attach that property until the court
523     issues a final order of dismissal or an order of forfeiture regarding the property.
524          (2) The seizing agency or the prosecuting attorney may authorize the release of
525     property held for forfeiture to a claimant if retention of actual custody is unnecessary.
526          (3) With the consent of a court of competent jurisdiction, the prosecuting attorney may
527     discontinue forfeiture proceedings and transfer the action to another state or federal agency that
528     has initiated forfeiture proceedings involving the same property.
529          (4) Property held for forfeiture is considered to be in the custody of the district court
530     and subject only to:
531          (a) the orders and decrees of the court having jurisdiction over the property or the
532     forfeiture proceedings; and
533          (b) the acts of the agency that possesses the property or the prosecuting attorney
534     pursuant to this chapter.
535          (5) (a) A claimant may obtain release of property held for forfeiture by posting with the
536     district court a surety bond or cash in an amount equal to the current fair market value of the
537     property as determined by the court or by the parties' stipulation.
538          (b) The district court may refuse to order the release of the property if:
539          (i) the bond tendered is inadequate;
540          (ii) the property is contraband or is retained as evidence; or
541          (iii) the property is particularly altered or designed for use in conduct giving cause for
542     forfeiture.
543          (c) If a surety bond or cash is posted and the court later determines that the property is
544     subject to forfeiture, the court shall order the forfeiture of the surety bond or cash in lieu of the
545     property.
546          (6) A claimant is entitled to the immediate release of property held for forfeiture
547     pending the final determination of forfeiture if:
548          (a) the claimant had a possessory interest in the property at the time of seizure;
549          (b) continued possession by the agency or the state pending the final disposition of the
550     forfeiture proceedings will cause substantial hardship to the claimant, such as:
551          (i) preventing the functioning of a legitimate business;
552          (ii) preventing any individual from working;
553          (iii) preventing any child from attending elementary or secondary school;
554          (iv) preventing or hindering any person from receiving necessary medical care;
555          (v) hindering the care of an elderly or disabled dependent child or adult;
556          (vi) leaving any individual homeless; [or]
557          (vii) preventing a claimant from retaining counsel to provide a defense in the forfeiture
558     proceeding or related criminal proceeding; or
559          [(vii)] (viii) any other condition that the court determines causes a substantial hardship;
560          (c) the hardship from the continued possession of the property by the agency outweighs
561     the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is
562     returned to the claimant during the pendency of the proceeding; and
563          (d) determination of substantial hardship under this Subsection (6) is based upon the
564     property's use prior to the seizure.
565          (7) After the seizing agency gives notice that the property is to be held for forfeiture, a
566     claimant may file a motion for hardship release:
567          (a) in the court in which forfeiture proceedings have commenced; or
568          (b) in any district court having jurisdiction over the property, if forfeiture proceedings
569     have not yet commenced.
570          (8) The motion for hardship release shall also be served upon the prosecuting attorney
571     or the seizing agency within 10 days after filing the motion.
572          (9) The court shall render a decision on a motion for hardship filed under this section
573     not later than 20 days after the date of filing, or 10 days after service upon the prosecuting
574     attorney or seizing agency, whichever is earlier, unless this period is extended by the agreement
575     of both parties or by the court for good cause shown.
576          (10) (a) If the claimant demonstrates substantial hardship pursuant to this section, the
577     court shall order the property immediately released to the claimant pending completion of
578     proceedings by the government to obtain forfeiture of the property.
579          (b) The court may place conditions on release of the property as it finds necessary and
580     appropriate to preserve the availability of the property or its equivalent for forfeiture.
581          (11) The hardship release under this section does not apply to:
582          (a) contraband;
583          (b) currency or other monetary instrument or electronic funds[; or], unless any of these:
584          (i) are used to pay for the reasonable costs of defending against the forfeiture
585     proceedings or related criminal proceedings; or
586          (ii) constitute the assets of a legitimate business; or
587          (c) property that is likely to be used to commit additional illegal acts if returned to the
588     claimant.
589          (12) (a) The court may order property that is held for forfeiture to be sold, as allowed
590     by Subsection (13), leased, rented, or operated to satisfy a specified interest of any claimant, or
591     to preserve the interests of any party on motion of that party.
592          (b) The court may enter orders under Subsection (12)(a) after written notice to persons
593     known to have an interest in the property, and after an opportunity for a hearing.
594          (13) (a) A sale may be ordered under Subsection (12) when the property is liable to
595     perish, waste, or be significantly reduced in value, or when the expenses of maintaining the
596     property are disproportionate to its value.
597          (b) A third party designated by the court shall dispose of the property by commercially
598     reasonable public sale and distribute the proceeds in the following order of priority:
599          (i) first, for the payment of reasonable expenses incurred in connection with the sale;
600          (ii) second, for the satisfaction of any interests, including those of interest holders, in
601     the order of their priority as determined by Title 70A, Uniform Commercial Code; and
602          (iii) third, any balance of the proceeds shall be preserved in the actual or constructive
603     custody of the court, in an interest-bearing account, subject to further proceedings under this
604     chapter.
605          Section 8. Section 24-4-109 is amended to read:
606          24-4-109. Prejudgment and postjudgment interest.
607          In any proceeding to forfeit currency or other negotiable instruments under this chapter,
608     the court shall award a prevailing [party] claimant prejudgment and postjudgment interest on
609     the currency or negotiable instruments at the interest rate established under Section 15-1-4.
610          Section 9. Section 24-4-110 is amended to read:
611          24-4-110. Attorney fees and costs.
612          (1) In any forfeiture proceeding under this chapter, the court shall award a prevailing
613     [property owner] claimant reasonable:
614          (a) legal costs; and
615          (b) attorney fees.
616          [(2) The legal costs and attorney fees awarded by the court to the prevailing party may
617     not exceed 20% of the value of the property.]
618          [(3)] (2) A [property owner] claimant that prevails only in part is entitled to recover
619     reasonable legal costs and attorney fees only on those issues on which the party prevailed, as
620     determined by the court.
621          Section 10. Section 24-4-116 is amended to read:
622          24-4-116. Criminal Forfeiture Restricted Account.
623          (1) There is created within the General Fund a restricted account known as the
624     "Criminal Forfeiture Restricted Account."
625          (2) Proceeds from [forfeited] property and [forfeited] money forfeited through state
626     forfeitures shall be deposited into the account.
627          (3) Money in the account shall be appropriated to the commission for implementing the
628     program under Section 24-4-117.
629          Section 11. Section 24-4-117 is amended to read:
630          24-4-117. State Asset Forfeiture Grant Program.
631          (1) There is created the State Asset Forfeiture Grant Program.
632          (2) The program shall fund crime prevention, crime victim reparations, and law
633     enforcement activities that have the purpose of:
634          (a) deterring crime [by depriving criminals of the profits and proceeds of their illegal
635     activities];
636          (b) weakening criminal enterprises [by removing the instrumentalities of crime];
637          (c) reducing crimes involving substance abuse by supporting the creation,
638     administration, or operation of drug court programs throughout the state;
639          (d) encouraging cooperation between local, state, and multijurisdictional law
640     enforcement agencies;
641          (e) allowing the legitimate costs and expenses of law enforcement to be defrayed by the
642     forfeited proceeds of crime;
643          (f) increasing the equitability and accountability of the use of forfeited property used to
644     assist law enforcement in reducing and preventing crime; and
645          (g) providing aid to victims of criminally injurious conduct, as defined in Section
646     63M-7-502, who may be eligible for assistance under Title 63M, Chapter 7, Part 5, Utah Office
647     for Victims of Crime.
648          (3) [(a)] When property is forfeited under this chapter and transferred to the account,
649     upon appropriation the commission shall allocate and administer grants to state agencies, local
650     law enforcement agencies, multijurisdictional law enforcement agencies, or political
651     subdivisions of the state in compliance with this section and to further the program purposes
652     under Subsection (2).
653          [(b)] (4) The commission may retain up to 3% of the annual appropriation from the
654     account to pay for administrative costs incurred by the commission, including salary and
655     benefits, equipment, supplies, or travel costs that are directly related to the administration of
656     the program.
657          [(4)] (5) Agencies or political subdivisions shall apply for an award from the program
658     by completing and submitting forms specified by the commission.
659          [(5)] (6) In granting the awards, the commission shall ensure that the amount of each
660     award takes into consideration the:
661          (a) demonstrated needs of the agency;
662          (b) demonstrated ability of the agency to appropriately use the award;
663          (c) degree to which the agency's need is offset through the agency's participation in
664     federal equitable sharing or through other federal and state grant programs; and
665          (d) agency's cooperation with other state and local agencies and task forces.
666          (7) The program shall pay restitution and costs awarded to a claimant or innocent
667     owner under this chapter.
668          [(6)] (8) Applying agencies or political subdivisions shall demonstrate compliance with
669     all reporting and policy requirements applicable under this chapter and under Title 63M,
670     Chapter 7, Criminal Justice and Substance Abuse, in order to qualify as a potential award
671     recipient.
672          [(7)] (9) (a) Recipient law enforcement agencies may only use award money after
673     approval by the agency's legislative body.
674          (b) The award money is nonlapsing.
675          [(8)] (10) A recipient state agency, local law enforcement agency, multijurisdictional
676     law enforcement agency, or political subdivision shall use awards only for law enforcement
677     purposes as described in this section or for victim reparations as described in Subsection (2)(g),
678     and only as these purposes are specified by the agency or political subdivision in its application
679     for the award.
680          [(9)] (11) Permissible law enforcement purposes for which award money may be used
681     include:
682          (a) controlled substance interdiction and enforcement activities;
683          (b) drug court programs;
684          (c) activities calculated to enhance future law enforcement investigations;
685          (d) law enforcement training that includes:
686          (i) implementation of the Fourth Amendment to the United States Constitution and
687     Utah Constitution, Article I, Section 7, and that addresses the protection of the individual's
688     right of due process;
689          (ii) protection of the rights of innocent property holders; and
690          (iii) the Tenth Amendment to the United States Constitution regarding states'
691     sovereignty and the states' reserved rights;
692          (e) law enforcement or detention facilities;
693          (f) law enforcement operations or equipment that are not routine costs or operational
694     expenses;
695          (g) drug, gang, or crime prevention education programs that are sponsored in whole or
696     in part by the law enforcement agency or its legislative body;
697          (h) matching funds for other state or federal law enforcement grants; and
698          (i) the payment of legal costs, attorney fees, and postjudgment interest in forfeiture
699     actions.
700          [(10)] (12) Law enforcement purposes for which award money may not be granted or
701     used include:
702          (a) payment of salaries, retirement benefits, or bonuses to any person;
703          (b) payment of expenses not related to law enforcement;
704          (c) uses not specified in the agency's award application;
705          (d) uses not approved by the agency's legislative body;
706          (e) payments, transfers, or pass-through funding to entities other than law enforcement
707     agencies; or
708          (f) uses, payments, or expenses that are not within the scope of the agency's functions.
709          Section 12. Coordinating H.B. 19 with S.B. 87 -- Superseding amendments.
710          If this H.B. 19 and S.B. 87, Civil Asset Forfeiture Revisions, both pass and become
711     law, it is the intent of the Legislature that the sections in this H.B. 19 supersede the sections in
712     S.B. 87.