1     
CIVIL ASSET FORFEITURE REVISIONS

2     
2017 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Daniel W. Thatcher

5     
House Sponsor: Brian M. Greene

6     

7     LONG TITLE
8     General Description:
9          This bill modifies the Forfeiture and Disposition of Property Act regarding forfeiture
10     and the claiming of property.
11     Highlighted Provisions:
12          This bill:
13          ▸      amends specified definitions;
14          ▸     amends provisions regarding the determination that property is subject to forfeiture;
15          ▸     amends civil forfeiture procedures to provide for seized currency to be returned to
16     the claimant in specified circumstances;
17          ▸     provides that when property valued at less than $10,000 is seized, the property shall
18     be returned to the claimant;
19          ▸     provides that when property is determined to be subject to forfeiture, and the
20     claimant is then acquitted of the offense giving rise to the forfeiture, the property
21     shall be returned; and
22          ▸     facilitates the return of seized property to an innocent owner.
23     Money Appropriated in this Bill:
24          None
25     Other Special Clauses:
26          None
27     Utah Code Sections Affected:
28     AMENDS:
29          24-1-102, as last amended by Laws of Utah 2014, Chapter 112

30          24-2-103, as enacted by Laws of Utah 2013, Chapter 394
31          24-4-102, as enacted by Laws of Utah 2013, Chapter 394
32          24-4-104, as last amended by Laws of Utah 2014, Chapter 112
33          24-4-107, as enacted by Laws of Utah 2013, Chapter 394
34          24-4-110, as last amended by Laws of Utah 2014, Chapter 112
35     

36     Be it enacted by the Legislature of the state of Utah:
37          Section 1. Section 24-1-102 is amended to read:
38          24-1-102. Definitions.
39          As used in this title:
40          (1) "Account" means the Criminal Forfeiture Restricted Account created in Section
41     24-4-116.
42          (2) (a) ["Acquittal"] "Acquitted" means a finding by a jury or a judge at trial that a
43     claimant is not guilty.
44          (b) [An acquittal] "Acquitted" does not include:
45          (i) a verdict of guilty on a lesser or reduced charge;
46          (ii) a plea of guilty to a lesser or reduced charge; or
47          (iii) dismissal of a charge as a result of a negotiated plea agreement.
48          (3) "Agency" means any agency of municipal, county, or state government, including
49     law enforcement agencies, law enforcement personnel, and multijurisdictional task forces.
50          (4) "Claimant" means any:
51          (a) owner of property as defined in this section;
52          (b) interest holder as defined in this section; or
53          (c) person or entity who asserts a claim to any property seized for forfeiture under this
54     title.
55          (5) "Commission" means the Utah Commission on Criminal and Juvenile Justice.
56          (6) "Complaint" means a civil in rem complaint seeking the forfeiture of any real or
57     personal property under this title.

58          (7) "Constructive seizure" means a seizure of property where the property is left in the
59     control of the owner and the seizing agency posts the property with a notice of intent to seek
60     forfeiture.
61          (8) (a) "Contraband" means any property, item, or substance that is unlawful to
62     produce or to possess under state or federal law.
63          (b) All controlled substances that are possessed, transferred, distributed, or offered for
64     distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act, are
65     contraband.
66          (9) "Innocent owner" means a claimant who:
67          (a) held an ownership interest in property at the time the conduct subjecting the
68     property to forfeiture occurred, and:
69          (i) did not have actual knowledge of the conduct subjecting the property to forfeiture;
70     or
71          (ii) upon learning of the conduct subjecting the property to forfeiture, took reasonable
72     steps to prohibit the illegal use of the property; or
73          (b) acquired an ownership interest in the property and [who] had no knowledge that the
74     illegal conduct subjecting the property to forfeiture had occurred or that the property had been
75     seized for forfeiture, and:
76          (i) acquired the property in a bona fide transaction for value;
77          (ii) was a person, including a minor child, who acquired an interest in the property
78     through probate or inheritance; or
79          (iii) was a spouse who acquired an interest in property through dissolution of marriage
80     or by operation of law.
81          (10) (a) "Interest holder" means a secured party as defined in Section 70A-9a-102, a
82     party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a security interest
83     or encumbrance pertaining to an interest in property, whose interest would be perfected against
84     a good faith purchaser for value.
85          (b) "Interest holder" does not mean a person who holds property for the benefit of or as

86     an agent or nominee for another person, or who is not in substantial compliance with any
87     statute requiring an interest in property to be recorded or reflected in public records in order to
88     perfect the interest against a good faith purchaser for value.
89          (11) "Known address" means any address provided by a claimant to the agency at the
90     time the property was seized, or the claimant's most recent address on record with a
91     governmental entity if no address was provided at the time of the seizure.
92          (12) "Legal costs" means the costs and expenses incurred by a party in a forfeiture
93     action.
94          (13) "Legislative body" means:
95          (a) (i) the Legislature, county commission, county council, city commission, city
96     council, or town council that has fiscal oversight and budgetary approval authority over an
97     agency; or
98          (ii) the agency's governing political subdivision; or
99          (b) the lead governmental entity of a multijurisdictional task force, as designated in a
100     memorandum of understanding executed by the agencies participating in the task force.
101          (14) "Multijurisdictional task force" means a law enforcement task force or other
102     agency comprised of persons who are employed by or acting under the authority of different
103     governmental entities, including federal, state, county or municipal governments, or any
104     combination of these agencies.
105          (15) "Owner" means any person or entity, other than an interest holder, that possesses a
106     bona fide legal or equitable interest in real or personal property.
107          (16) (a) "Proceeds" means:
108          (i) property of any kind that is obtained directly or indirectly as a result of the
109     commission of an offense that gives rise to forfeiture; or
110          (ii) any property acquired directly or indirectly from, produced through, realized
111     through, or caused by an act or omission regarding property under Subsection (16)(a)(i).
112          (b) "Proceeds" includes any property of any kind without reduction for expenses
113     incurred in the acquisition, maintenance, or production of that property, or any other purpose

114     regarding property under Subsection (16)(a)(i).
115          (c) "Proceeds" is not limited to the net gain or profit realized from the offense that
116     gives rise to forfeiture.
117          (17) "Program" means the State Asset Forfeiture Grant Program established in Section
118     24-4-117.
119          (18) "Property" means all property, whether real or personal, tangible or intangible, but
120     does not include contraband.
121          (19) "Prosecuting attorney" means:
122          (a) the attorney general and any assistant attorney general;
123          (b) any district attorney or deputy district attorney;
124          (c) any county attorney or assistant county attorney; and
125          (d) any other attorney authorized to commence an action on behalf of the state under
126     this title.
127          (20) "Public interest use" means a:
128          (a) use by a government agency as determined by the legislative body of the agency's
129     jurisdiction; or
130          (b) donation of the property to a nonprofit charity registered with the state.
131          (21) "Real property" means land and includes any building, fixture, improvement,
132     appurtenance, structure, or other development that is affixed permanently to land.
133          Section 2. Section 24-2-103 is amended to read:
134          24-2-103. Property seized by a peace officer -- Custody and control of property.
135          (1) (a) When property is seized by a peace officer, the peace officer or the officer's
136     employing agency shall provide a receipt to the person from whom the property was seized.
137          (b) The receipt shall describe the:
138          (i) property seized;
139          (ii) date of seizure; and
140          (iii) name and contact information of the officer's employing agency.
141          (c) In addition to the receipt, the person from whom the property was seized shall be

142     provided with information regarding the forfeiture process, including:
143          (i) important time periods in the forfeiture process;
144          (ii) what happens to the property upon conviction or acquittal; and
145          (iii) how to make a claim for the return of the property.
146          [(c)] (d) A copy of the receipt shall be maintained by the agency.
147          [(d)] (e) If custody of the property is transferred to another agency, a copy of the receipt
148     under Subsection (1)(a) shall be provided with the property.
149          (2) The agency responsible for maintaining the property shall:
150          (a) hold all seized property in safe custody until it can be disposed of as provided in
151     this title; and
152          (b) maintain a record of the property that includes:
153          (i) a detailed inventory of all property seized;
154          (ii) the name of the person from whom it was seized; and
155          (iii) the agency's case number.
156          (3) Property seized under this title is not recoverable by replevin, but is considered in
157     the agency's custody subject only to the orders of the court or the official having jurisdiction.
158          (4) All controlled substances or other contraband that is seized by a peace officer may
159     be processed for evidentiary or investigative purposes, including sampling or other preservation
160     procedure prior to disposal or destruction.
161          (5) (a) An agency shall deposit property in the form of cash or other readily negotiable
162     instruments into a separate, restricted, interest-bearing account maintained by the agency solely
163     for the purpose of managing and protecting the property from commingling, loss, or
164     devaluation.
165          (b) Each agency shall have written policies for the identification, tracking,
166     management, and safekeeping of seized property, which shall include a prohibition against the
167     transfer, sale, or auction of seized property to any employee of the agency.
168          (6) If a peace officer or the officer's employing agency records an interview of a minor
169     child during an investigation of a violation of Section 76-5-402.1, 76-5-402.3, 76-5-403.1, or

170     76-5-404.1, the agency shall retain a copy of the recording for 18 years following the date of
171     the last recording unless the prosecuting attorney requests in writing that the recording be
172     retained for an additional period of time.
173          (7) Title 13, Chapter 32a, Pawnshop and Secondhand Merchandise Transaction
174     Information Act, governs the disposition of property held by a pawn or secondhand business in
175     the course of its business.
176          Section 3. Section 24-4-102 is amended to read:
177          24-4-102. Property subject to forfeiture.
178          (1) Except as provided in Subsection (3), [all] property that has been used to facilitate
179     the commission of a federal or state criminal offense and any proceeds of criminal activity may
180     be forfeited under this chapter, including:
181          (a) real property, including things growing on, affixed to, and found in land; and
182          (b) tangible and intangible personal property, including money, rights, privileges,
183     interests, claims, and securities of any kind.
184          (2) If the property is used to facilitate a violation of Section 76-10-1204, 76-10-1205,
185     76-10-1206, or 76-10-1222, the property subject to forfeiture under this section is limited to
186     property, the seizure or forfeiture of which would not constitute a prior restraint on the exercise
187     of an affected party's rights under the First Amendment to the Constitution of the United States
188     or Utah Constitution, Article I, Section 15, or would not otherwise unlawfully interfere with the
189     exercise of those rights.
190          (3) A motor vehicle used in a violation of Section 41-6a-502, 41-6a-517, a local
191     ordinance that complies with the requirements of Subsection 41-6a-510(1), Subsection
192     58-37-8(2)(g), or Section 76-5-207 may not be forfeited unless:
193          (a) the operator of the vehicle has previously been convicted of a violation, committed
194     after May 12, 2009, of:
195          (i) a felony driving under the influence violation under Section 41-6a-502;
196          (ii) a felony violation under Subsection 58-37-8(2)(g); or
197          (iii) automobile homicide under Section 76-5-207; or

198          (b) the operator of the vehicle was driving on a denied, suspended, revoked, or
199     disqualified license; and
200          (i) the denial, suspension, revocation, or disqualification under Subsection (3)(b)(ii)
201     was imposed because of a violation under:
202          (A) Section 41-6a-502;
203          (B) Section 41-6a-517;
204          (C) a local ordinance that complies with the requirements of Subsection 41-6a-510(1);
205          (D) Section 41-6a-520;
206          (E) Subsection 58-37-8(2)(g);
207          (F) Section 76-5-207; or
208          (G) a criminal prohibition that the person was charged with violating as a result of a
209     plea bargain after having been originally charged with violating one or more of the sections or
210     ordinances described in Subsections (3)(b)(i)(A) through (F); or
211          (ii) the denial, suspension, revocation, or disqualification described in Subsections
212     (3)(b)(i)(A) through (G):
213          (A) is an extension imposed under Subsection 53-3-220(2) of a denial, suspension,
214     revocation, or disqualification; and
215          (B) the original denial, suspension, revocation, or disqualification was imposed
216     because of a violation described in Subsections (3)(b)(i)(A) through (G).
217          Section 4. Section 24-4-104 is amended to read:
218          24-4-104. Civil forfeiture procedure.
219          (1) (a) The law enforcement agency shall promptly return seized property, and the
220     prosecuting attorney may take no further action to effect the forfeiture of the property, unless
221     within 75 days after the property is seized the prosecuting attorney:
222          (i) files a criminal [forfeiture] indictment or information under Subsection 24-4-105(2);
223          (ii) obtains a restraining order under Subsection 24-4-105(3);
224          (iii) files a petition under Subsection 24-4-114(1); or
225          (iv) files a civil forfeiture complaint.

226          (b) A complaint for civil forfeiture shall describe with reasonable particularity the:
227          (i) property that is the subject of the forfeiture proceeding;
228          (ii) date and place of seizure; and
229          (iii) factual allegations that constitute a basis for forfeiture.
230          (2) (a) After a complaint is filed, the prosecuting attorney shall serve a copy of the
231     complaint and summons upon each claimant known to the prosecuting attorney within 30 days.
232          (b) The prosecuting attorney is not required to serve a copy of the complaint or the
233     summons upon any claimant who has disclaimed, in writing, an ownership interest in the
234     seized property.
235          (c) Service of the complaint and summons shall be by:
236          (i) personal service;
237          (ii) certified mail, return receipt requested, to the claimant's known address; or
238          (iii) service by publication, if the prosecuting attorney demonstrates to the court that
239     service cannot reasonably be made by personal service or certified mail.
240          (d) Service by publication shall be by publication of two notices, in two successive
241     weeks, of the forfeiture proceeding:
242          (i) in a newspaper of general circulation in the county in which the seizure occurred;
243     and
244          (ii) on Utah's Public Legal Notice Website established in Subsection 45-1-101(2)(b).
245          (e) Service is effective upon the earlier of:
246          (i) personal service;
247          (ii) mailing of a written notice; or
248          (iii) publication.
249          (f) Upon motion of the prosecuting attorney and a showing of good cause, the court
250     may extend the period to complete service under this section for an additional 60 days.
251          (3) (a) In any case where the prosecuting attorney files a complaint for forfeiture, a
252     claimant may file an answer to the complaint.
253          (b) The answer shall be filed within 30 days after the complaint is served upon the

254     claimant as provided in Subsection (2)(b).
255          (c) When the property subject to forfeiture is valued at less than $10,000, the agency
256     that has custody of the property shall return the property to the claimant if:
257          (i) (A) the prosecuting attorney has filed a forfeiture complaint, and the claimant has
258     filed an answer through an attorney or pro se, in accordance with Subsections (3)(a) and (b);
259     and
260          (B) the prosecuting attorney has not filed an information or indictment for criminal
261     conduct giving rise to the forfeiture within 60 days after the date that service of the forfeiture
262     complaint on the claimant was completed, or has not timely moved a court of competent
263     jurisdiction and demonstrated reasonable cause for an extension of time to file such an
264     information or indictment; or
265          (ii) the information or indictment for criminal conduct giving rise to the forfeiture was
266     dismissed and the prosecuting attorney has not refiled the information or indictment within
267     seven days of the dismissal.
268          (d) The return of property to the claimant under Subsection (3)(c) does not include any
269     expenses, costs, or attorney fees.
270          (e) The time limitations in Subsection (3)(c)(i) may be extended for up to 15 days if a
271     claimant timely seeks to recover possession of seized property pursuant to Subsection
272     24-4-107(8), but shall resume immediately upon the seizing agency's or prosecuting attorney's
273     timely denial of the claim on the merits.
274          (4) Except as otherwise provided in this chapter, forfeiture proceedings are governed
275     by the Utah Rules of Civil Procedure.
276          (5) The court shall take all reasonable steps to expedite civil forfeiture proceedings and
277     shall give these proceedings the same priority as is given to criminal cases.
278          (6) In all suits or actions brought under this section for the civil forfeiture of any
279     property, the burden of proof is on the prosecuting attorney to establish by clear and convincing
280     evidence [the extent to which, if any, the property is subject to forfeiture] that the claimant
281     engaged in conduct giving rise to the forfeiture.

282          (7) A claimant may file an answer to a complaint for civil forfeiture without posting
283     bond with respect to the property subject to forfeiture.
284          (8) Property is subject to forfeiture under this chapter if the prosecuting attorney
285     establishes that:
286          (a) the claimant has engaged in conduct giving rise to forfeiture;
287          (b) the property was acquired by the claimant during that portion of the conduct that
288     gives rise to forfeiture, or within a reasonable time after that conduct is committed; and
289          (c) there is no likely source for the purchase or acquisition of the property other than
290     the conduct that gives rise to forfeiture.
291          (9) A finding by the court that property is the proceeds of conduct giving rise to
292     forfeiture does not require proof that the property was the proceeds of any particular exchange
293     or transaction.
294          (10) If the prosecutor establishes that the property is subject to forfeiture, but the
295     claimant is subsequently criminally charged with the conduct giving rise to the forfeiture and is
296     acquitted of that charge on the merits:
297          (a) the property subject to the forfeiture or the open market value of the property, if the
298     property has been disposed of under Subsection 24-4-108(13), shall be returned to the
299     claimant; and
300          (b) any payments required under this chapter regarding the costs of holding the
301     property shall be paid to the claimant.
302          Section 5. Section 24-4-107 is amended to read:
303          24-4-107. Innocent owners.
304          (1) An innocent owner's interest in property may not be forfeited.
305          (2) In a forfeiture proceeding under this chapter, the prosecuting attorney has the
306     burden of establishing evidence that a claimant:
307          (a) is responsible for the conduct giving rise to the forfeiture, subject to Subsection (4);
308          (b) knew of the conduct giving rise to the forfeiture, and allowed the property to be
309     used in furtherance of the conduct;

310          (c) acquired the property with notice of its actual or constructive seizure for forfeiture
311     under this chapter;
312          (d) acquired the property knowing the property was subject to forfeiture under this
313     chapter; or
314          (e) acquired the property in an effort to conceal, prevent, hinder, or delay its lawful
315     seizure or forfeiture under any provision of state law.
316          (3) (a) A claimant under this chapter is not required to take steps to prevent illegal use
317     or criminal activity regarding the property that the claimant reasonably believes would be likely
318     to result in physical harm or danger to any person.
319          (b) A claimant may demonstrate that the claimant took reasonable action to prohibit
320     the illegal use of the property by:
321          (i) making a timely notification to a law enforcement agency of information that led the
322     claimant to know that conduct subjecting the property to seizure would occur, was occurring,
323     or has occurred;
324          (ii) timely revoking or attempting to revoke permission to use the property regarding
325     those engaging in the illegal conduct; or
326          (iii) taking reasonable actions to discourage or prevent the illegal use of the property.
327          (4) If the state relies on Subsection (2)(a) to establish that a claimant is not an innocent
328     owner, and if the claimant is criminally charged with the conduct giving rise to the forfeiture
329     and is acquitted of that charge on the merits:
330          (a) the property subject to the forfeiture or the open market value of the property, if the
331     property has been disposed of under Subsection 24-4-108(13), shall be returned to the
332     claimant; and
333          (b) any payments required under this chapter regarding holding the property shall be
334     paid to the claimant.
335          (5) A person may not assert under this chapter an ownership interest in contraband.
336          (6) Property is presumed to be subject to forfeiture under this chapter if the prosecuting
337     attorney establishes that:

338          (a) the claimant has engaged in conduct giving cause for forfeiture;
339          (b) the property was acquired by the claimant during that period of the conduct giving
340     cause for forfeiture or within a reasonable time after that period; and
341          (c) there was no likely source for the purchase or acquisition of the property other than
342     the conduct giving cause for forfeiture.
343          (7) A finding that property is the proceeds of conduct giving cause for forfeiture does
344     not require proof that the property was the proceeds of any particular exchange or transaction.
345          (8) (a) A claimant may recover possession of seized property that is subject to
346     forfeiture by contacting the seizing agency or prosecuting attorney prior to the commencement
347     of a civil asset forfeiture proceeding, or within 30 days of the seizure, whichever is longer, and
348     providing to the seizing agency or prosecuting attorney:
349          (i) evidence that establishes proof of ownership; and
350          (ii) a brief description of the date, time, and place that the claimant mislaid or
351     relinquished possession of the seized property.
352          (b) A seizing agency or prosecuting attorney who receives a claim from a claimant
353     utilizing the procedure in Subsection (8)(a) shall issue a written response to that claim within
354     30 days of receipt, indicating whether the claim has been granted, denied on the merits, or
355     denied for failure to provide the information required by statute subject to the following:
356          (i) if the claim is denied for failure to provide the information required by statute, the
357     claimant has 15 days from the date of denial to submit additional information before the
358     prosecuting attorney may commence a civil action seeking to forfeit the property; and
359          (ii) if the seizing agency or prosecuting attorney fails to issue a written response within
360     30 days the property shall be returned.
361          (c) Any property returned under Subsection (8)(b), either because the claim was
362     granted or because the seizing agency or prosecuting attorney failed to respond within 30 days
363     may not include any expenses, costs, or attorney fees.
364          (d) A claimant who utilizes the procedures in Subsection (8)(a) and whose claim is
365     denied on the merits by the seizing agency or prosecuting attorney, but who is later determined

366     by a court of competent jurisdiction in a civil forfeiture action to be an innocent owner within
367     the meaning of Section 24-4-107, may collect reasonable attorney fees and court costs from the
368     date on which the seizing agency or prosecuting attorney denied the claim. Legal costs and
369     attorney fees collected pursuant to this Subsection are not subject to the 50% cap set forth in
370     Subsection 24-4-110(2).
371          (e) All communications between or evidence provided to the parties in connection with
372     a claim submitted pursuant to Subsection (8) are subject to the Utah Rules of Evidence, Rules
373     408 and 410.
374          Section 6. Section 24-4-110 is amended to read:
375          24-4-110. Attorney fees and costs.
376          (1) In any forfeiture proceeding under this chapter, the court shall award a prevailing
377     [property owner] claimant reasonable:
378          (a) legal costs; and
379          (b) attorney fees.
380          (2) The legal costs and attorney fees awarded by the court to the prevailing party may
381     not exceed [20%] 50% of the value of the seized property.
382          (3) A [property owner that] claimant who prevails only in part is entitled to recover
383     reasonable legal costs and attorney fees only on those issues on which the party prevailed , as
384     determined by the court .