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7 LONG TITLE
8 General Description:
9 This bill amends provisions related to asset forfeiture.
10 Highlighted Provisions:
11 This bill:
12 ▸ adds and modifies definitions;
13 ▸ clarifies provisions related to the seizure and forfeiture of property and contraband;
14 ▸ provides, with certain exceptions, that seized property may not be transferred or
15 shared with a federal agency or an agency of another state;
16 ▸ requires that a disclaimer of seized property by an individual be knowing and
17 voluntary;
18 ▸ provides that law enforcement agencies have 30 days to process seized cash or
19 negotiable instruments;
20 ▸ requires the cash or negotiable instrument be deposited into an interest-bearing
21 account;
22 ▸ amends provisions related to the retention of property for court proceedings;
23 ▸ reduces the length of time for an agency to present a written request for forfeiture to
24 a prosecutor;
25 ▸ allows an agency or prosecuting attorney to release property to an innocent owner;
26 ▸ prohibits the forfeiture of property seized upon the sole offense of possession of a
27 controlled substance;
28 ▸ permits grants to any agency involved in forfeiture activities regardless of whether
29 the agency contributed to the State Asset Forfeiture Fund;
30 ▸ requires certification of asset forfeiture specialists by Peace Officers Standards and
31 Training or Utah Prosecution Council; and
32 ▸ makes technical and conforming changes.
33 Money Appropriated in this Bill:
34 None
35 Other Special Clauses:
36 None
37 Utah Code Sections Affected:
38 AMENDS:
39 24-1-102, as last amended by Laws of Utah 2017, Chapters 285 and 362
40 24-1-103, as enacted by Laws of Utah 2013, Chapter 394
41 24-2-102, as enacted by Laws of Utah 2013, Chapter 394
42 24-2-103, as last amended by Laws of Utah 2017, Chapter 362
43 24-3-101, as enacted by Laws of Utah 2013, Chapter 394
44 24-3-103, as last amended by Laws of Utah 2017, Chapters 285 and 334
45 24-3-104, as enacted by Laws of Utah 2013, Chapter 394
46 24-4-101, as enacted by Laws of Utah 2013, Chapter 394
47 24-4-102, as last amended by Laws of Utah 2017, Chapter 362
48 24-4-103, as enacted by Laws of Utah 2013, Chapter 394
49 24-4-104, as last amended by Laws of Utah 2017, Chapter 362
50 24-4-105, as last amended by Laws of Utah 2014, Chapter 112
51 24-4-109, as enacted by Laws of Utah 2013, Chapter 394
52 24-4-110, as last amended by Laws of Utah 2017, Chapter 362
53 24-4-111, as enacted by Laws of Utah 2013, Chapter 394
54 24-4-112, as enacted by Laws of Utah 2013, Chapter 394
55 24-4-113, as enacted by Laws of Utah 2013, Chapter 394
56 24-4-115, as last amended by Laws of Utah 2017, Chapter 303
57 24-4-116, as enacted by Laws of Utah 2013, Chapter 394
58 24-4-117, as last amended by Laws of Utah 2015, Chapter 134
59 24-4-118, as last amended by Laws of Utah 2017, Chapter 303
60 ENACTS:
61 24-2-102.5, Utah Code Annotated 1953
62 24-2-104, Utah Code Annotated 1953
63 24-2-107, Utah Code Annotated 1953
64 24-2-108, Utah Code Annotated 1953
65 24-3-101.5, Utah Code Annotated 1953
66 24-4-103.3, Utah Code Annotated 1953
67 24-4-103.5, Utah Code Annotated 1953
68 24-4-119, Utah Code Annotated 1953
69 53-13-110.5, Utah Code Annotated 1953
70 RENUMBERS AND AMENDS:
71 24-2-105, (Renumbered from 24-4-114, as last amended by Laws of Utah 2015,
72 Chapter 134)
73 24-2-106, (Renumbered from 24-3-102, as enacted by Laws of Utah 2013, Chapter 394)
74 REPEALS:
75 24-4-107, as last amended by Laws of Utah 2017, Chapter 362
76 24-4-108, as enacted by Laws of Utah 2013, Chapter 394
77
78 Be it enacted by the Legislature of the state of Utah:
79 Section 1. Section 24-1-102 is amended to read:
80 24-1-102. Definitions.
81 As used in this title:
82 (1) "Account" means the Criminal Forfeiture Restricted Account created in Section
83 24-4-116.
84 (2) (a) "Acquitted" means a finding-by a jury or a judge at trial that a claimant is not
85 guilty.
86 (b) "Acquitted" does not include:
87 (i) a verdict of guilty on a lesser or reduced charge;
88 (ii) a plea of guilty to a lesser or reduced charge; or
89 (iii) dismissal of a charge as a result of a negotiated plea agreement.
90 (3) "Agency" means [
91
92
93 a multijurisdictional task force.
94 (4) "Claimant" means [
95 (a) an owner of property as defined in this section;
96 (b) an interest holder as defined in this section; or
97 (c) [
98 forfeiture under this title.
99 (5) "Commission" means the [
100 Justice created in Section 63M-7-201.
101 (6) "Complaint" means a civil in rem or criminal complaint seeking the forfeiture of
102 any real or personal property under this title.
103 (7) (a) "Computer" means an electronic, magnetic, optical, electrochemical, or other
104 high-speed data processing device that performs logical, arithmetic, and storage functions[
105
106 (b) "Computer" includes any device that is used for the storage of digital or electronic
107 files, flash memory, software, or other electronic information.
108 [
109 service provider, or the service provider's employee, if used [
110
111 (8) "Constructive seizure" means a seizure of property where the property is left in the
112 control of the owner and [
113 seek forfeiture.
114 (9) (a) "Contraband" means any property, item, or substance that is unlawful to
115 produce or to possess under state or federal law.
116 [
117 (b) "Contraband" includes:
118 (i) a controlled substance that is possessed, transferred, distributed, or offered for
119 distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act[
120
121 [
122 (ii) a computer that:
123 [
124 upload to a storage account, or store any electronic or digital files containing child
125 pornography; or
126 [
127 as defined in Subsection 76-6-1102(1), whether that [
128 and the personal identifying information has been used to create false or fraudulent
129 identification documents or financial transaction cards in violation of Title 76, Chapter 6, Part
130 5, Fraud.
131 (10) "Forfeit" means to divest a claimant of an ownership interest in property seized
132 under this title.
133 [
134 (a) held an ownership interest in property at the time [
135
136 forfeiture under this title, and:
137 (i) did not have actual knowledge of the [
138 forfeiture; or
139 (ii) upon learning of the [
140 the offense, took reasonable steps to prohibit the [
141 of the offense; or
142 (b) acquired an ownership interest in the property and had no knowledge that the
143 [
144 property to forfeiture under this title had occurred or that the property had been seized for
145 forfeiture, and:
146 (i) acquired the property in a bona fide transaction for value;
147 (ii) was [
148 the property through probate or inheritance; or
149 (iii) was a spouse who acquired an interest in property through dissolution of marriage
150 or by operation of law.
151 [
152 70A-9a-102, a party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a
153 security interest or encumbrance pertaining to an interest in property, whose interest would be
154 perfected against a good faith purchaser for value.
155 (b) "Interest holder" does not mean a person:
156 (i) who holds property for the benefit of or as an agent or nominee for another
157 person[
158 (ii) who is not in substantial compliance with any statute requiring an interest in
159 property to be recorded or reflected in public records in order to perfect the interest against a
160 good faith purchaser for value.
161 [
162 officer or agency at the time the property [
163 on record with a governmental entity if no address was provided at the time of the seizure.
164 [
165 forfeiture action.
166 [
167 (a) (i) the Legislature, county commission, county council, city commission, city
168 council, or town council that has fiscal oversight and budgetary approval authority over an
169 agency; or
170 (ii) the agency's governing political subdivision; or
171 (b) the lead governmental entity of a multijurisdictional task force, as designated in a
172 memorandum of understanding executed by the agencies participating in the task force.
173 [
174 agency comprised of [
175 of different governmental entities, including federal, state, county or municipal governments,
176 or any combination of [
177 [
178 holder, that possesses a bona fide legal or equitable interest in real or personal property.
179 (18) "Peace officer" means an employee:
180 (a) of an agency;
181 (b) whose duties consist primarily of the prevention and detection of violations of laws
182 of this state or a political subdivision of this state; and
183 (c) who is authorized by the agency to seize property under this title.
184 [
185 (i) property of any kind that is obtained directly or indirectly as a result of the
186 commission of an offense [
187 (ii) any property acquired directly or indirectly from, produced through, realized
188 through, or caused by an act or omission regarding property under Subsection [
189 (b) "Proceeds" includes any property of any kind without reduction for expenses
190 incurred in the acquisition, maintenance, or production of that property, or any other purpose
191 regarding property under Subsection [
192 (c) "Proceeds" is not limited to the net gain or profit realized from the offense that
193 [
194 [
195 created in Section 24-4-117.
196 [
197 intangible[
198 (b) "Property" does not include contraband.
199 [
200 (22) "Prosecuting attorney" means:
201 (a) the attorney general and [
202 (b) [
203 (c) [
204 (d) [
205 under this title.
206 [
207 (a) use by a government agency as determined by the legislative body of the agency's
208 jurisdiction; or
209 (b) donation of the property to a nonprofit charity registered with the state.
210 [
211 improvement, appurtenance, structure, or other development that is affixed permanently to
212 land.
213 Section 2. Section 24-1-103 is amended to read:
214 24-1-103. Venue.
215 [
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217 [
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219 [
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221 [
222 Place of Trial -- Venue, or any other provisions of law, a proceeding [
223 title may be maintained in the judicial district in which:
224 (a) the property is seized;
225 [
226 [
227 [
228 forfeiture under this title .
229 [
230 Section 3. Section 24-2-102 is amended to read:
231 24-2-102. Grounds for seizing property.
232 [
233
234
235 (1) A peace officer may seize property and contraband upon a search warrant or
236 administrative warrant that is issued in accordance with the Utah Rules of Criminal Procedure.
237 (2) [
238 this chapter when:
239 (a) the seizure is incident to an arrest;
240 (b) the property seized is the subject of a prior judgment in favor of the state in a
241 criminal injunction or forfeiture proceeding under this title; or
242 (c) the peace officer [
243 that the property:
244 (i) is directly or indirectly dangerous to health or safety;
245 (ii) is evidence of [
246 (iii) has been used or was intended to be used to commit [
247 (iv) is proceeds of [
248 Section 4. Section 24-2-102.5 is enacted to read:
249 24-2-102.5. Seizure of contraband.
250 If a peace officer seizes contraband, a person may not assert an ownership interest in the
251 contraband under this title.
252 Section 5. Section 24-2-103 is amended to read:
253 24-2-103. Property seized by a peace officer.
254 (1) To disclaim an ownership interest in property at the time of seizure, an individual's
255 disclaimer of the property shall be knowing, voluntary, and in writing.
256 [
257 peace officer's employing agency shall provide a receipt to the person from [
258 property [
259 [
260 [
261 [
262 [
263 [
264
265 agency shall provide the person with:
266 (a) information on:
267 (i) the time periods for the forfeiture of property; and
268 (ii) what happens to property upon a conviction or acquittal of the offense subjecting
269 the property to seizure; and
270 (b) a web link or referral to the self-help web page of the Utah State Law Library's
271 website for resources that may assist the person in making a claim for the return of seized
272 property.
273 [
274 [
275 [
276 [
277 (5) The agency shall maintain a copy of the receipt provided in accordance with
278 Subsection (2).
279 [
280
281 shall provide the other agency a copy of the receipt under Subsection (2) and the name of the
282 person from which the property was seized.
283 [
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310 Section 6. Section 24-2-104 is enacted to read:
311 24-2-104. Custody of seized property and contraband.
312 (1) If a peace officer seizes property or contraband under Section 24-2-102, the
313 property and contraband:
314 (a) is not recoverable by replevin; and
315 (b) is considered in the custody of the agency that employed the peace officer.
316 (2) An agency with custody of seized property shall:
317 (a) hold the property in safe custody until the property is disposed of in accordance
318 with this title; and
319 (b) maintain a record of the property, including:
320 (i) a detailed inventory of all property seized;
321 (ii) the name of the person from whom the property was seized; and
322 (iii) the agency's case number.
323 (3) An agency may process property or contraband that is seized by a peace officer for
324 evidentiary or investigative purposes, including sampling or other preservation procedure,
325 before disposal or destruction.
326 (4) (a) Except as provided in Subsection (4)(b), no later than 30 days after the day on
327 which a peace officer seizes property in the form of cash or other readily negotiable
328 instruments under Section 24-2-102, an agency shall deposit the property into a separate,
329 restricted, interest-bearing account maintained by the agency solely for the purpose of
330 managing and protecting the property from commingling, loss, or devaluation.
331 (b) A prosecuting attorney may authorize one or more written extensions of the 30-day
332 period under Subsection (4)(a) if the property needs to maintain the form in which the property
333 was seized for evidentiary purposes or other good cause.
334 (c) An agency shall:
335 (i) have written policies for the identification, tracking, management, and safekeeping
336 of seized property; and
337 (ii) shall have a written policy that prohibits the transfer, sale, or auction of seized
338 property to an employee of the agency.
339 Section 7. Section 24-2-105, which is renumbered from Section 24-4-114 is
340 renumbered and amended to read:
341 [
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366 (1) (a) Except as provided in Subsection (1)(b), upon the seizure of property by a peace
367 officer under this title, the property is subject to:
368 (i) the exclusive control of a district court of this state; and
369 (ii) the acts of the agency with custody of the property and the prosecuting attorney.
370 (b) (i) A district court's exclusive control over property is limited by an agency with
371 custody of the property or the prosecuting attorney taking action under Subsections (3)(a) and
372 (3)(b).
373 (ii) An act by the agency with custody of the property and the prosecuting attorney is
374 limited by a district court exercising exclusive control over the property under Subsection
375 (3)(c).
376 (2) Except as provided in Subsection (3), a peace officer, agency, or prosecuting
377 attorney may not directly or indirectly transfer or release property seized under this title to a
378 federal agency or to a governmental entity not created or subject to the laws of this state.
379 (3) An agency or prosecuting attorney may transfer or release property to a federal
380 agency or to a governmental entity not created or subject to the laws of this state if:
381 (a) (i) the property is cash or another readily negotiable instrument; and
382 (ii) the property is evidence in or subject to a federal criminal indictment, a federal
383 criminal information, or a federal criminal complaint before the property is seized;
384 (b) (i) the property is not cash or another readily negotiable instrument; and
385 (ii) the property is evidence in or subject to a federal criminal indictment, federal
386 criminal information, or federal criminal complaint before the day on which the agency with
387 custody of the property is required to return the property if no criminal or civil action is filed by
388 the prosecuting attorney or a federal prosecutor in accordance with Section 24-4-103.5;
389 (c) (i) the property was used in the commission of an offense in another state; and
390 (ii) an agency of that state requests the transfer of the property before the day on which
391 the agency with custody of the property is required to return the property if no criminal or civil
392 action is filed by the prosecuting attorney or a federal prosecutor in accordance with Section
393 24-4-103.5; or
394 (d) a district court authorizes in accordance with Subsection (5) the transfer or release
395 of the property to an agency of another state or a federal agency upon a petition by a
396 prosecuting attorney or a federal prosecutor.
397 (4) (a) A prosecuting attorney, or a federal prosecutor, may file a petition in the district
398 court for the transfer or release of property.
399 (b) If a prosecuting attorney, or a federal prosecutor, files a petition under Subsection
400 (4)(a), the petition shall include:
401 (i) a detailed description of the property seized;
402 (ii) the location where the property was seized;
403 (iii) the date the property was seized;
404 (iv) the case number assigned by the agency; and
405 (v) a declaration that:
406 (A) states the basis for relinquishing jurisdiction to a federal agency or an agency of
407 another state;
408 (B) contains the names and addresses of any known claimant; and
409 (C) is signed by the prosecuting attorney or federal prosecutor.
410 (5) A district court may not authorize the transfer or release of property under
411 Subsection (3)(d), unless the district court finds, by a preponderance of the evidence:
412 (a) the offense giving rise to the investigation or seizure of the property is based on
413 criminal activity, or evidence related to criminal activity, in more than one state and constitutes
414 a violation of federal law;
415 (b) the property may only be forfeited under federal law;
416 (c) forfeiting the property under state law would unreasonably burden the prosecuting
417 attorney or agency; or
418 (d) the property was subject to a federal criminal investigation before the property was
419 seized.
420 [
421
422 (6) (a) Before a district court may order the transfer of property in accordance with this
423 section, the court, the prosecuting attorney, or the federal prosecutor shall mail a notice to:
424 (i) each address contained in the declaration under Subsection (4)(b)(v) to give a
425 claimant the right to be heard with regard to the transfer [
426
427 (ii)(A) if a federal prosecutor files the petition under Subsection (4), the prosecuting
428 attorney that is representing the agency with custody of the property; or
429 (B) if a prosecuting attorney files the petition under Subsection (4), the federal
430 prosecutor who will receive the property upon the transfer or release of the property.
431 [
432
433 (b) If a claimant, or the party under Subsection (6)(a)(i), does not object to the petition
434 to transfer the property within 10 days after the day on which the notice is mailed, the court
435 shall issue [
436 [
437 delay [
438 appear and make an objection.
439 [
440 transfer the property to a federal agency or to another governmental entity not created or
441 subject to the laws of this state, the district court shall promptly set the matter for hearing.
442 [
443
444 [
445 consider evidence regarding hardship, complexity, judicial and law enforcement resources,
446 protections afforded under state and federal law, pending state or federal investigations, and
447 any other relevant matter [
448 [
449
450
451 (7) If an agency receives property, money, or other things of value under a federal law
452 that authorizes the sharing or transfer of all or a portion of forfeited property, or the proceeds
453 from the sale of forfeited property, the agency:
454 (a) shall [
455 federal laws and regulations relating to equitable sharing;
456 (b) may [
457 money, or other things of value for a law enforcement purpose described in Subsection
458 24-4-117[
459 (c) may not [
460 other thing of value for a law enforcement purpose prohibited in Subsection
461 24-4-117[
462 [
463 share of property forfeited by the federal government may [
464 after approval of the use by the agency's legislative body.
465 (9) If a district court exercises exclusive control over seized property, the district
466 court's exclusive control is terminated if the property is released by the agency with custody of
467 the property to:
468 (a) a claimant under Subsection 24-2-107(1)(a), Section 24-3-104, or Section
469 24-4-103.5;
470 (b) a rightful owner under Section 24-3-103; or
471 (c) an innocent owner under Section 24-2-108.
472 Section 8. Section 24-2-106, which is renumbered from Section 24-3-102 is
473 renumbered and amended to read:
474 [
475 (1) [
476 into evidence during a court proceeding, the clerk of the court shall:
477 (a) retain the property; or [
478 (b) return the property to the custody [
479
480 [
481 (2) (a) The agency shall retain seized or forfeited property:
482 (i) at the discretion of the prosecuting attorney; or
483 (ii) until all direct appeals and retrials are final[
484
485 (3) If the prosecuting attorney [
486 [
487 collateral attacks upon the judgment or for use in a potential prosecution, the [
488 prosecuting attorney may decline to authorize the disposal of the property [
489 Section 9. Section 24-2-107 is enacted to read:
490 24-2-107. Release of seized property to a claimant.
491 (1) An agency with custody of seized property or the prosecuting attorney may release
492 the property to a claimant if:
493 (a) the agency or the prosecuting attorney:
494 (i) determines that retention of the property is unnecessary; or
495 (ii) seeks to return the property to an innocent owner;
496 (b) the claimant posts a bond with the court in accordance with Subsection (2);
497 (c) the court orders the release of property for hardship purposes under Subsection (3);
498 (d) a claimant establishes that the claimant is an innocent owner under Section
499 24-2-107; or
500 (e) the court orders property retained as evidence to be released to a rightful owner
501 under Section 24-3-104.
502 (2) (a) A claimant may obtain release of seized property by posting a surety bond or
503 cash with the court that is in an amount equal to the current fair market value of the property as
504 determined by the court or a stipulation by the parties.
505 (b) A court may refuse to order the release under Subsection (2)(a) of:
506 (i) the property if:
507 (A) the bond tendered is inadequate;
508 (B) the property is retained as evidence; or
509 (C) the property is particularly altered or designed for use in the commission of the
510 offense subjecting the property to forfeiture; or
511 (ii) contraband.
512 (c) If a surety bond or cash is posted and the court later determines that the property is
513 forfeited, the court shall order the forfeiture of the surety bond or cash in lieu of the property.
514 (3) A claimant is entitled to the immediate release of seized property for which the
515 agency has filed a notice of intent to forfeit under Section 24-4-103 if:
516 (a) the claimant had a possessory interest in the property at the time of seizure;
517 (b) continued possession by the agency pending a forfeiture proceeding will cause
518 substantial hardship to the claimant, including:
519 (i) preventing the functioning of a legitimate business;
520 (ii) preventing any individual from working;
521 (iii) preventing any child from attending elementary or secondary school;
522 (iv) preventing or hindering an individual from receiving necessary medical care;
523 (v) preventing the care of a dependent child or adult who is elderly or disabled;
524 (vi) leaving an individual homeless; or
525 (vii) any other condition that the court determines causes a substantial hardship;
526 (c) the hardship from the continued possession of the property by the agency outweighs
527 the risk that the property will be destroyed, damaged, lost, concealed, or transferred if the
528 property is returned to the claimant during the pendency of the proceeding; and
529 (d) the determination of substantial hardship under this Subsection (3) is based upon
530 the property's use before the seizure.
531 (4) A claimant may file a motion for hardship release under Subsection (3):
532 (a) by motion in the court in which forfeiture proceedings have commenced; or
533 (b) by motion in a district court where there is venue if a forfeiture proceeding has not
534 yet commenced.
535 (5) The motion or petition for hardship release shall be served upon the agency with
536 custody of the property within five days after the day on which the motion or petition is filed.
537 (6) The court shall:
538 (a) schedule a hearing on the motion or petition within 14 days after the day on which
539 the motion or petition is filed; and
540 (b) render a decision on a motion or petition for hardship filed under this section no
541 later than 20 days after the day of the hearing, unless this period is extended by the agreement
542 of both parties or by the court for good cause shown.
543 (7) (a) If the claimant demonstrates substantial hardship under Subsection (3), the court
544 shall order the property immediately released to the claimant pending completion of any
545 forfeiture proceeding.
546 (b) The court may place conditions on release of the property as the court finds
547 necessary and appropriate to preserve the availability of the property or the property's
548 equivalent for forfeiture.
549 (8) The hardship release under this section does not apply to:
550 (a) contraband; or
551 (b) property that is likely to be used to commit additional offenses if returned to the
552 claimant.
553 Section 10. Section 24-2-108 is enacted to read:
554 24-2-108. Innocent owners.
555 (1) (a) A claimant alleged to be an innocent owner may recover possession of seized
556 property by:
557 (i) contacting the agency with custody of the property and the prosecuting attorney
558 before the later of:
559 (A) the commencement of a civil asset forfeiture proceeding; or
560 (B) 30 days after the day on which the property was seized;
561 (ii) providing the agency with:
562 (A) evidence that establishes proof of ownership; and
563 (B) a brief description of the date, time, and place that the claimant mislaid or
564 relinquished possession of the seized property, or any evidence that the claimant is an innocent
565 owner.
566 (b) If an agency receives a claim under Subsection (1)(a), the agency or the prosecuting
567 attorney shall issue a written response to the claimant within 30 days after the day on which the
568 agency receives the claim.
569 (c) A response under Subsection (1)(b) from the agency or prosecuting attorney shall
570 indicate whether the claim has been granted, denied on the merits, or denied for failure to
571 provide the information required by Subsection (1)(a)(ii).
572 (d) (i) If a claim is denied for failure to provide the information required by Subsection
573 (1)(a)(ii), the claimant has 15 days after the day on which the claim is denied to submit
574 additional information.
575 (ii) If a prosecuting attorney has not filed a civil action seeking to forfeit the property
576 and a claim is denied for failure to provide the information required by Subsection (1)(a)(ii),
577 the prosecuting attorney may not commence a civil action until:
578 (A) the claimant has submitted information under Subsection (1)(d)(i); or
579 (B) the deadline for the claimant to submit information under Subsection (1)(d)(i) has
580 passed.
581 (e) If the agency or prosecuting attorney fails to issue a written response within 30 days
582 after the day on which the agency and prosecuting attorney receives the response, the agency
583 shall return the property.
584 (2) If a claim under Subsection (1)(a) is granted, or the property is returned because the
585 agency or prosecuting attorney fails to respond within 30 days, a claimant may not receive any
586 expenses, costs, or attorney fees for the returned property.
587 (3) A claimant may collect reasonable attorney fees and court costs if:
588 (a) a claimant filed a claim under Subsection (1)(a);
589 (b) an agency or a prosecuting attorney denies the claim on the merits; and
590 (c) a court determines that the claimant is an innocent owner in a civil asset forfeiture
591 proceeding.
592 (4) If a court grants reasonable attorney fees and court costs, the amount of the attorney
593 fees begins to accrue from the day on which the agency or the prosecuting attorney denied the
594 claim.
595 (5) If the court grants reasonable attorney fees and court costs under Subsection (3), the
596 attorney fees and costs are not subject to the 50% cap under Subsection 24-4-110(2).
597 (6) A communication between parties regarding a claim submitted under Subsection
598 (3) and any evidence provided to the parties in connection with a claim is subject to the Utah
599 Rules of Evidence, Rules 408 and 410.
600 (7) An agency with custody of the property and the prosecuting attorney may not forfeit
601 the seized property of an innocent owner.
602 Section 11. Section 24-3-101 is amended to read:
603
604 24-3-101. Title.
605 This chapter is known as [
606 Section 12. Section 24-3-101.5 is enacted to read:
607 24-3-101.5. Application of this chapter.
608 The provisions of this chapter do not apply to property for which an agency has filed a
609 notice of intent to seek forfeiture under Section 23-4-103.
610 Section 13. Section 24-3-103 is amended to read:
611 24-3-103. Disposition of property.
612 (1) [
613 needs to be [
614 (a) petition the court to apply [
615 fines, fees, or monetary judgments owed by the owner of the property;
616 (b) petition the court for an order transferring ownership of any weapons to the
617 [
618
619 (i) is the [
620 was seized; or
621 (ii) may not lawfully possess the weapon; or
622 (c) notify the agency [
623
624 (i) the property may be returned to the rightful owner[
625 lawfully possess [
626 (ii) the contraband may be disposed of or destroyed[
627 (2) The agency shall exercise due diligence in attempting to notify the rightful owner of
628 the property to advise the owner that the property is to be returned.
629 (3) (a) For a computer determined to be contraband, a court may order the reasonable
630 extraction and return of specifically described personal digital data to the rightful owner.
631 (b) The law enforcement agency shall determine a reasonable cost to [
632 the data[
633 (c) At the time of the request to extract the data, the owner of the computer shall pay
634 the agency the cost to extract the data.
635 (4) (a) Before [
636 ownership of the property, the person shall establish in accordance with Subsection (4)(b) that
637 the person:
638 (i) is the rightful owner; and
639 (ii) may lawfully possess the property.
640 (b) The person shall establish ownership under Subsection (4)(a) by providing to the
641 agency:
642 (i) identifying proof or documentation of ownership of the property; or
643 (ii) a notarized statement[
644 (5) (a) When seized property is returned to the owner, the owner shall sign a receipt
645 listing in detail the property that is returned [
646 [
647
648 (b) The agency shall:
649 (i) retain a copy of the receipt; and
650 (ii) provide a copy of the receipt to the owner.
651 (6) (a) Except as provided in Subsection (6)(b), if the agency is unable to locate the
652 rightful owner of the property or [
653 property, the agency may:
654 (i) apply the property to a public interest use;
655 (ii) sell the property at public auction and apply the proceeds of the sale to a public
656 interest use; or
657 (iii) destroy the property if the property is unfit for a public interest use or for sale.
658 (b) If the property described in Subsection (6)(a) is a firearm, the agency shall dispose
659 of the firearm in accordance with Section 24-3-103.5.
660 (7) Before applying the property or the proceeds from the sale of the property to a
661 public interest use, the agency shall obtain from the legislative body of [
662 jurisdiction:
663 (a) permission to apply the property or the proceeds to public interest use; and
664 (b) the designation and approval of the public interest use of the property or the
665 proceeds.
666 (8) If a peace office seizes property that at the time of seizure is held by a pawn or
667 secondhand business in the course of the pawn or secondhand business's business, the
668 provisions of Section 13-32a-116 shall apply to the disposition of the property.
669 Section 14. Section 24-3-104 is amended to read:
670 24-3-104. Petition to return property.
671 (1) (a) A [
672 petition with the court for the return of the property that is being retained as evidence.
673 [
674 (b) The claimant may file the petition in:
675 (i) the court in which criminal proceedings have commenced regarding the [
676 offense for which the property is [
677 (ii) the district court [
678 under Section 24-1-103 if there are no pending criminal proceedings.
679 (c) [
680 on the prosecuting attorney and the agency [
681 property.
682 (2) (a) The court shall provide an opportunity for an expedited hearing.
683 (b) After the opportunity for an expedited hearing, the court may order that the property
684 [
685 [
686 [
687 directly or by proceeds of the sale of the property toward restitution, fines, or fees owed by the
688 rightful owner in an amount set by the court;
689 [
690 [
691 [
692 use; or
693 [
694 (3) Before the court can order property be returned to a [
695
696 that the [
697 (a) is the rightful owner; and
698 (b) may lawfully possess the property.
699 (4) If the court orders the property to be returned to the claimant, the agency [
700
701 expeditiously as possible.
702 Section 15. Section 24-4-101 is amended to read:
703
704 24-4-101. Title.
705 This chapter is known as [
706 Property."
707 Section 16. Section 24-4-102 is amended to read:
708 24-4-102. Property subject to forfeiture.
709 [
710
711
712 [
713 [
714
715 (1) Except as provided in Subsection (2), (3), or (4), an agency may seek to forfeit:
716 (a) seized property that was used to facilitate the commission of an offense that is a
717 violation of federal or state law; and
718 (b) seized proceeds.
719 (2) If [
720 Section 76-10-1204, 76-10-1205, 76-10-1206, or 76-10-1222, [
721
722 an agency may not forfeit the property if the forfeiture would constitute a prior restraint on the
723 exercise of an affected party's rights under the First Amendment to the Constitution of the
724 United States or Utah Constitution, Article I, Section 15, or would [
725 interfere with the exercise of [
726 Constitution of the United States or Utah Constitution, Article I, Section 15.
727 (3) [
728 41-6a-502, 41-6a-517, a local ordinance that complies with the requirements of Subsection
729 41-6a-510(1), Subsection 58-37-8(2)(g), or Section 76-5-207 [
730 agency may not seek forfeiture of the motor vehicle, unless:
731 (a) the operator of the vehicle has previously been convicted of [
732 offense committed after May 12, 2009, [
733 (i) a felony driving under the influence violation under Section 41-6a-502;
734 (ii) a felony violation under Subsection 58-37-8(2)(g); or
735 (iii) automobile homicide under Section 76-5-207; or
736 (b) the operator of the vehicle was driving on a denied, suspended, revoked, or
737 disqualified license[
738 (i) the denial, suspension, revocation, or disqualification under Subsection (3)(b)(ii)
739 was imposed because of a violation under:
740 (A) Section 41-6a-502;
741 (B) Section 41-6a-517;
742 (C) a local ordinance that complies with the requirements of Subsection 41-6a-510(1);
743 (D) Section 41-6a-520;
744 (E) Subsection 58-37-8(2)(g);
745 (F) Section 76-5-207; or
746 (G) a criminal prohibition [
747 plea bargain after having been originally charged with violating one or more of the sections or
748 ordinances described in Subsections (3)(b)(i)(A) through (F); or
749 (ii) the denial, suspension, revocation, or disqualification described in Subsections
750 (3)(b)(i)(A) through (G):
751 (A) is an extension imposed under Subsection 53-3-220(2) of a denial, suspension,
752 revocation, or disqualification; and
753 (B) the original denial, suspension, revocation, or disqualification was imposed
754 because of a violation described in Subsections (3)(b)(i)(A) through (G).
755 (4) If a peace officer seizes property incident to an arrest solely for possession of a
756 controlled substance under Subsection 58-37-8(2)(a)(i) but not Subsection 53-37-8(2)(b)(i), an
757 agency may not seek to forfeit the property that was seized in accordance with the arrest.
758 Section 17. Section 24-4-103 is amended to read:
759 24-4-103. Initiating forfeiture proceedings -- Notice of intent to seek forfeiture.
760 [
761
762
763 (1) (a) If an agency seeks to forfeit property seized under this title, the agency shall
764 serve a notice of intent to seek forfeiture to any known claimant within 30 days after the day on
765 which the property is seized.
766 (b) The notice of intent to seek forfeiture shall describe [
767 (i) the date of the seizure;
768 (ii) the property seized;
769 (iii) the claimant's rights and obligations under this chapter, including the availability
770 of hardship relief in appropriate circumstances; and
771 (iv) the statutory basis for the forfeiture, including the judicial proceedings by which
772 the property may be forfeited under this chapter.
773 [
774 (c) The agency shall serve the notice of intent to seek forfeiture by:
775 (i) certified mail, with a return receipt requested, to the claimant's known address; or
776 (ii) personal service.
777 (d) [
778 (1)(a), unless the agency demonstrates:
779 (i) good cause for the failure to give notice to the claimant; or
780 (ii) that the claimant had actual notice of the seizure.
781 [
782
783
784 (2) If an agency sends a notice of intent to forfeit seized property under Section
785 24-4-103, an individual or entity may not alienate, convey, sequester, or attach the property
786 until a court:
787 (a) issues a final order to dismiss an action under this title; or
788 (b) orders the forfeiture of the property.
789 (3) (a) (i) If an agency has served each claimant with a notice of intent to seek
790 forfeiture, the agency shall present a written request for forfeiture to the prosecuting attorney of
791 the municipality or county where the property is seized.
792 (ii) The agency shall provide the request under Subsection (3)(a)(i) no later than 45
793 days after the day on which the property is seized.
794 (b) The written request described in Subsection (3)(a) shall:
795 (i) describe the property [
796 (ii) include a copy of all reports, supporting documents, and other evidence that is
797 necessary for the prosecuting attorney to determine the legal sufficiency for filing a forfeiture
798 action.
799 (c) The prosecuting attorney shall:
800 (i) review the written request described in Subsection (3)(a)(i); and
801 (ii) within 75 days after the day on which the property is seized, decline or accept, in
802 writing, the agency's written request for the prosecuting attorney to initiate a proceeding to
803 forfeit the property.
804 Section 18. Section 24-4-103.3 is enacted to read:
805 24-4-103.3. Sale of seized property.
806 (1) (a) Subject to Subsection (2), the court may order seized property, for which a
807 forfeiture proceeding is pending, to:
808 (i) be sold, leased, rented, or operated to satisfy a specified interest of any claimant; or
809 (ii) preserve the interests of any party on motion of that party.
810 (b) The court may enter an order under Subsection (1)(a) after:
811 (i) written notice to any person known to have an interest in the property; and
812 (ii) an opportunity for a hearing for any person known to have an interest in the
813 property.
814 (2) (a) A court may order a sale of property under Subsection (1) when:
815 (i) the property is liable to perish, waste, or be significantly reduced in value; or
816 (ii) the expenses of maintaining the property are disproportionate to the property's
817 value.
818 (b) A third party designated by the court shall:
819 (i) dispose of the property by a commercially reasonable public sale; and
820 (ii) distribute the proceeds in the following order of priority:
821 (A) first, for the payment of reasonable expenses incurred in connection with the sale;
822 (B) second, for the satisfaction of an interest, including an interest of an interest holder,
823 in the order of an interest holder's priority as determined by Title 70A, Uniform Commercial
824 Code; and
825 (C) third, any balance of the proceeds shall be preserved in the actual or constructive
826 custody of the court, in an interest-bearing account, subject to further proceedings under this
827 chapter.
828 Section 19. Section 24-4-103.5 is enacted to read:
829 24-4-103.5. Mandatory return of seized property.
830 (1) An agency shall promptly return property seized under this title, and the
831 prosecuting attorney may take no further action to forfeit the property, unless within 75 days
832 after the day on which the property is seized:
833 (a) the prosecuting attorney:
834 (i) files a criminal indictment or information under Subsection 24-4-105(3);
835 (ii) files a petition to transfer the property to another agency under Section 24-2-105;
836 (iii) files a civil forfeiture complaint under Section 24-4-104; or
837 (b) the prosecuting attorney or a federal prosecutor obtains a restraining order under
838 Subsection 24-4-105(4).
839 (2) (a) The prosecuting attorney may file a petition to extend the deadline under
840 Subsection (1) by 21 days.
841 (b) If a prosecuting attorney files a petition under Subsection (2)(a), and the
842 prosecuting attorney provides good cause for extending the deadline, a court shall grant the
843 petition.
844 (c) The prosecuting attorney may not file more than one petition under this Subsection
845 (2).
846 (3) If a prosecuting attorney is unable to file a civil forfeiture complaint under
847 Subsection (1)(a)(iii) because a claimant has filed a claim under Section 24-2-108 and the
848 claimant has an extension to provide additional information on the claim under Subsection
849 24-2-108(1)(d), the deadline under Subsection (1) may be extended by 15 days.
850 Section 20. Section 24-4-104 is amended to read:
851 24-4-104. Civil forfeiture procedure.
852 [
853
854
855 [
856 [
857 [
858 [
859 (1) (a) A prosecuting attorney may commence a civil action to forfeit seized property
860 by filing a complaint.
861 (b) [
862 describe with reasonable particularity:
863 (i) the property that [
864 forfeit;
865 (ii) the date and place of seizure; and
866 (iii) the factual allegations that constitute a basis for forfeiture.
867 (2) (a) After a complaint is filed, the prosecuting attorney shall serve a copy of the
868 complaint and summons upon each claimant known to the prosecuting attorney within 30 days
869 after the day on which the complaint is filed.
870 (b) The prosecuting attorney is not required to serve a copy of the complaint or the
871 summons upon [
872 in the seized property.
873 (c) Service of the complaint and summons shall be by:
874 (i) personal service;
875 (ii) certified mail, with a return receipt requested, to the claimant's known address; or
876 (iii) service by publication, if the prosecuting attorney demonstrates to the court that
877 service cannot reasonably be made by personal service or certified mail.
878 (d) Service by publication shall be by publication of two notices, in two successive
879 weeks, of the forfeiture proceeding:
880 (i) in a newspaper of general circulation in the county in which the seizure occurred;
881 and
882 (ii) on Utah's Public Legal Notice Website established in Subsection 45-1-101(2)(b).
883 (e) Service is effective upon the earlier of:
884 (i) personal service;
885 [
886 (ii) certified mail; or
887 (iii) publication in accordance with Subsection (2)(d).
888 (f) [
889 court may extend the period to complete service under this section for an additional 60 days[
890 if the prosecuting attorney:
891 (i) moves the court to extend the period to complete service; and
892 (ii) has shown good cause for extending service.
893 (3) (a) [
894 as described in Subsection (1), a claimant may file an answer to the complaint.
895 [
896
897 (b) If a claimant files an answer in accordance with Subsection (3)(a), the claimant
898 shall file the answer within 30 days after the day on which the complaint is served upon the
899 claimant.
900 (c) [
901 under Section 24-4-103 and the property is valued at less than $10,000, the agency [
902
903 (i) (A) the prosecuting attorney has filed a forfeiture complaint, and the claimant has
904 filed an answer [
905 and
906 (B) the prosecuting attorney has not filed an information or indictment for [
907
908 after the [
909 which the prosecuting attorney served the claimant with the complaint, or the prosecuting
910 attorney has not timely moved a court [
911 cause for [
912 indictment; or
913 (ii) the information or indictment for [
914 offense for which the property was seized was dismissed and the prosecuting attorney has not
915 refiled the information or indictment within seven days [
916 which the information or indictment was dismissed.
917 (d) [
918 return of property to the claimant under Subsection (3)(c) [
919
920 (e) (i) The time limitations in Subsection (3)(c)(i) may be extended for up to 15 days if
921 a claimant timely seeks to recover possession of seized property [
922
923 (ii) If the time limitations are extended under Subsection (3)(c)(i), the time limitations
924 in Subsection (3)(c)(i) shall resume immediately upon the [
925 attorney's timely denial of [
926 (4) Except as otherwise provided in this chapter, [
927 action for a forfeiture proceeding is governed by the Utah Rules of Civil Procedure.
928 (5) The court shall:
929 (a) take all reasonable steps to expedite [
930 forfeiture proceeding; and
931 (b) give [
932
933 [
934
935
936 [
937 posting bond with respect to the property [
938 [
939 agency's request to forfeit property if the prosecuting attorney establishes, by clear and
940 convincing evidence, that:
941 (a) the claimant [
942 [
943
944 (i) committed the offense subjecting the property to forfeiture under Subsection
945 24-4-102(1);
946 (ii) knew of the offense subjecting the property to forfeiture under Subsection
947 24-4-102(1) and allowed the property to be used in furtherance of the offense; or
948 (iii) acquired the property at the time of the offense subjecting the property to forfeiture
949 under Subsection 24-4-102(1), or within a reasonable time after the offense occurred; or
950 [
951 than [
952 property to forfeiture under Subsection 24-4-102(1).
953 [
954
955
956 [
957
958
959 [
960
961
962 [
963
964 (8) If a court finds that the property is the proceeds of an offense that subjects the
965 proceeds to forfeiture under Subsection 24-4-102(1), the prosecuting attorney does not need to
966 prove that the property was the proceeds of a particular exchange or transaction.
967 (9) If a claimant is acquitted of the offense subjecting the property to forfeiture under
968 this section:
969 (a) (i) the property for which forfeiture is sought shall be returned to the claimant; or
970 (ii) the open market value of the property for the property for which forfeiture is sought
971 shall be awarded to the claimant if the property has been disposed of under Section 24-4-103.3;
972 and
973 (b) any payment requirement under this chapter related to the holding of property shall
974 be paid to the claimant.
975 (10) If the prosecuting attorney seeks to discontinue a forfeiture proceeding under this
976 section and transfer the action to another state or federal agency that has initiated a civil or
977 criminal proceeding involving the same property, the prosecuting attorney shall file a petition
978 to transfer the property in accordance with Section 24-2-105.
979 (11) A civil forfeiture action under this section may be converted to a criminal
980 forfeiture action at any time after a prosecuting attorney files a criminal complaint, information,
981 or indictment for the offense subjecting the property to forfeiture under Subsection
982 24-4-102(1).
983 Section 21. Section 24-4-105 is amended to read:
984 24-4-105. Criminal forfeiture procedure.
985 (1) As used in this section, "defendant" means a claimant who is criminally prosecuted
986 for the offense subjecting the property to forfeiture under Subsection 24-4-102(1).
987 [
988
989 interest in [
990 [
991 defendant's interest in [
992
993
994 the grounds for which the agency seeks to forfeit the property.
995 [
996
997
998
999
1000 (4) (a) (i) A court may enter a restraining order or injunction or take any other
1001 reasonable action to preserve property being forfeited under this section.
1002 (ii) Before a court's decision under Subsection (4)(a)(i), a known claimant, who can be
1003 identified after due diligence, shall be:
1004 (A) provided notice; and
1005 (B) given an opportunity for a hearing.
1006 (iii) A court shall grant an order under Subsection (4)(a)(i) if:
1007 [
1008 forfeiture and that failure to enter the order will result in the property being sold, transferred,
1009 destroyed, or removed from the jurisdiction of the court or otherwise made unavailable for
1010 forfeiture; and
1011 [
1012 property's sale, transfer, destruction, or removal through the entry of the requested order
1013 outweighs the hardship against [
1014 entered.
1015 (b) A [
1016 restraining order ex parte upon application of the prosecuting attorney or a federal prosecutor
1017 before or after an information or indictment has been filed, with respect to the property, if the
1018 prosecuting attorney or federal prosecutor demonstrates that:
1019 (i) there is probable cause to believe that the property with respect to which the order is
1020 sought would, in the event of a conviction, be [
1021 section; and
1022 (ii) [
1023 availability of the property for forfeiture or would jeopardize an ongoing criminal investigation.
1024 (c) The temporary order expires [
1025 which the order is entered unless extended for good cause shown or unless the [
1026 against whom [
1027 (d) After service of the temporary order upon [
1028 prosecuting attorney[
1029 or federal prosecutor, the court shall hold a hearing on the order as soon as practicable and
1030 [
1031 (e) The court is not bound by the Utah Rules of Evidence regarding evidence [
1032 court may receive and consider at [
1033 [
1034
1035
1036 [
1037
1038 (5) Upon conviction of a defendant for the offense subjecting the property to forfeiture,
1039 a court or jury shall find property forfeited to the agency if the prosecuting attorney establishes,
1040 beyond a reasonable doubt, that:
1041 (a) the defendant:
1042 (i) committed the offense subjecting the property to forfeiture under Subsection
1043 24-4-102(1);
1044 (ii) knew of the offense subjecting the property to forfeiture under Subsection
1045 24-4-102(1) and allowed the property to be used in furtherance of the offense; or
1046 (iii) acquired the property at the time of the offense subjecting the property to forfeiture
1047 under Subsection 24-4-102(1), or within a reasonable time after the offense occurred; or
1048 (b) there is no likely source for the purchase or acquisition of the property other than
1049 the commission of the offense subjecting the property to forfeiture under Subsection
1050 24-4-102(1).
1051 [
1052
1053 to forfeiture and a finding by [
1054
1055 [
1056 (b) Following the entry of an order declaring the property forfeited under Subsection
1057 (6)(a), and upon application by the prosecuting attorney, the court may[
1058
1059 (i) enter [
1060 injunction;
1061 (ii) require the execution of satisfactory performance bonds[
1062 (iii) appoint [
1063 conservator, appraiser, accountant, or trustee; or
1064 (iv) take any other action to protect the [
1065 property ordered forfeited.
1066 [
1067 agency shall direct the disposition of the property under Section 24-4-115.
1068 [
1069
1070 (ii) If property under Subsection (7)(a)(i) is not transferrable for value to the agency, or
1071 the agency is not able to exercise an ownership interest in the property, the property may not
1072 revert to the defendant.
1073 (iii) [
1074 on behalf of the defendant, is not eligible to purchase forfeited property at any sale held by the
1075 [
1076 (b) [
1077 conclusion of any appeal of [
1078 subjecting the property to forfeiture if the [
1079 with the sale or disposition of the property may result in irreparable injury, harm, or loss.
1080 (8) If a defendant is acquitted of the offense subjecting the property to forfeiture under
1081 this section on the merits:
1082 (a) (i) the property for which forfeiture is sought shall be returned to the claimant; or
1083 (ii) the open market value of the property for the property for which forfeiture is sought
1084 shall be awarded to the claimant if the property has been disposed of under Section 24-4-103.3;
1085 and
1086 (b) any payment requirement under this chapter related to the holding of property shall
1087 be paid to the claimant.
1088 [
1089 claimant claiming an interest in property [
1090 section:
1091 (a) may not intervene in a trial or appeal of a criminal case involving the forfeiture of
1092 the property [
1093 (b) may not commence an action at law or equity concerning the validity of the
1094 [
1095 an information alleging that the property is [
1096 section.
1097 [
1098 orders under this section without regard to the location of any property that [
1099
1100
1101 [
1102 forfeited under this section, and to facilitate the disposition of [
1103 remission or mitigation of forfeiture after the entry of an order declaring property forfeited to
1104 the [
1105 (a) the testimony of any witness relating to the forfeited property be taken by
1106 deposition[
1107 (b) any book, paper, document, record, recording, or other material [
1108 produced [
1109 of Civil Procedure.
1110 [
1111 court orders property forfeited under this section, the prosecuting attorney shall publish notice
1112 of the [
1113 (b) Service by publication shall be by publication of two notices, in two successive
1114 weeks, of the forfeiture proceeding:
1115 [
1116 property occurred; and
1117 [
1118 45-1-101(2)(b).
1119 [
1120 than the defendant, known to the prosecuting attorney to have an interest in the property, at the
1121 claimant's known address.
1122 [
1123
1124
1125
1126 the claimant's alleged interest in [
1127 [
1128
1129 (b) A claimant shall file a petition within 30 days after the earlier of the day on which a
1130 notice is published or the day on which the claimant receives written notice under Subsection
1131 (12)(a).
1132 [
1133 [
1134 [
1135 property, the time and circumstances of the claimant's acquisition of the right, title, or interest
1136 in the property; and
1137 [
1138 sought.
1139 [
1140 (15) (a) The court shall expedite the trial or hearing under this Subsection (11) to the
1141 extent practicable.
1142 (b) Any party may request a jury to decide any genuine issue of material fact.
1143 (c) The court may consolidate a trial or hearing on the petition under Subsection
1144 (11)(b) and any other petition filed by [
1145 section.
1146 (d) [
1147 pretrial discovery [
1148 (e) (i) At the trial or hearing, the claimant may testify and present evidence and
1149 witnesses on the claimant's own behalf and cross-examine witnesses who appear at the hearing.
1150 (ii) The prosecuting attorney may present evidence and witnesses in rebuttal and in
1151 defense of the claim to the property and cross-examine witnesses who appear.
1152 [
1153 court may consider the relevant portion of the record of the criminal case that resulted in the
1154 order of forfeiture.
1155 [
1156 the Utah Rules of Evidence.
1157 [
1158 court's determination, if after the trial or hearing under Subsection (15), the court or jury
1159 determines that the [
1160 that:
1161 (a) (i) the claimant has a legal right, title, or interest in the property[
1162 (ii) the claimant's right, title, or interest renders the order of forfeiture invalid in whole
1163 or in part because the right, title, or interest was vested in the claimant rather than the
1164 defendant, or was superior to any right, title, or interest of the defendant at the time [
1165
1166
1167 24-4-102(1); or
1168 [
1169 transaction for value, and, at the time of acquisition, the claimant did not know that the
1170 property [
1171 [
1172
1173
1174
1175 (17) An agency has clear title to the property and may transfer title to a purchaser or
1176 transferee if:
1177 (a) the court issued a disposition on all petitions under Subsection (11) denying any
1178 claimant's right, title, or interest to the property; or
1179 (b) a petition was not filed under the timelines provided in Subsection (11)(b).
1180 (18) If the prosecuting attorney seeks to discontinue a forfeiture proceeding under this
1181 section and transfer the action to another state or federal agency that has initiated a civil or
1182 criminal proceeding involving the same property, the prosecuting attorney shall file a petition
1183 to transfer the property in accordance with Section 24-2-105.
1184 Section 22. Section 24-4-109 is amended to read:
1185 24-4-109. Postjudgment interest.
1186 In [
1187 chapter, the court shall award postjudgment interest to a prevailing party [
1188
1189 15-1-4.
1190 Section 23. Section 24-4-110 is amended to read:
1191 24-4-110. Attorney fees and costs.
1192 (1) In [
1193
1194 claimant.
1195 [
1196 [
1197 (2) [
1198 court awards legal costs and attorney fees to a prevailing claimant under Subsection (1), the
1199 award may not exceed 50% of the value of the seized property.
1200 (3) A claimant who prevails only in part is entitled to recover reasonable legal costs
1201 and attorney fees only on [
1202
1203 Section 24. Section 24-4-111 is amended to read:
1204 24-4-111. Compensation for damaged property.
1205 (1) As used in this section, "damage or other injury" does not mean normal
1206 depreciation, deterioration, or ordinary wear and tear of the property.
1207 [
1208 under this chapter, a claimant has a civil right of action against [
1209 claim based upon the negligent destruction, loss, or damage[
1210 while in the possession or custody of the agency.
1211 [
1212
1213 Section 25. Section 24-4-112 is amended to read:
1214 24-4-112. Limitation on fees for holding seized property.
1215 In any civil or criminal proceeding under this chapter in which a judgment is entered in
1216 favor of a claimant, or where a forfeiture proceeding against a claimant is voluntarily dismissed
1217 by the prosecuting attorney, [
1218 cost for holding seized property.
1219 Section 26. Section 24-4-113 is amended to read:
1220 24-4-113. Proportionality.
1221 (1) (a) A claimant's interest in property that is used to facilitate [
1222
1223 state law if the forfeiture is substantially disproportionate to the use of the property in
1224 committing or facilitating [
1225 property.
1226 (b) [
1227 incidental and not instrumental to the commission or facilitation of [
1228 offense, a forfeiture of the property is not proportional.
1229 (2) (a) In determining proportionality, the court shall consider:
1230 (i) the [
1231 forfeiture under Subsection 24-4-102(1);
1232 (ii) what portion of the forfeiture, if any, is remedial in nature;
1233 (iii) the gravity of the conduct for which the claimant is responsible in light of the
1234 offense; and
1235 (iv) the value of the property.
1236 (b) If the court finds that the forfeiture is substantially disproportional to [
1237 an offense for which the claimant is responsible, [
1238 forfeiture[
1239 (3) [
1240 [
1241 the property to forfeiture under Subsection 24-4-102(1).
1242 (4) In all cases, the court shall decide questions of proportionality.
1243 (5) [
1244 offense that is a violation of federal or state law is proportional.
1245 Section 27. Section 24-4-115 is amended to read:
1246 24-4-115. Disposition and allocation of forfeiture property.
1247 (1) [
1248 finds that property is forfeited under this chapter, the court shall order the property forfeited to
1249 the [
1250 (2) (a) If the property is not currency, the [
1251 otherwise commercially reasonable sale of that property [
1252 law to be destroyed and [
1253 (b) If the property forfeited is an alcoholic product as defined in Section 32B-1-102,
1254 [
1255 (i) an alcoholic product shall be sold if the alcoholic product is:
1256 (A) unadulterated, pure, and free from any crude, unrectified, or impure form of ethylic
1257 alcohol, or any other deleterious substance or liquid; and
1258 (B) otherwise in saleable condition; or
1259 (ii) an alcoholic product and [
1260 the alcoholic product is impure, adulterated, or otherwise unfit for sale.
1261 (c) If the property forfeited is a cigarette or other tobacco product as defined in Section
1262 59-14-102, [
1263
1264 trademark rights in the cigarette or tobacco product brand [
1265 cigarette before the destruction of the cigarette or tobacco product.
1266 (d) The proceeds of the sale of forfeited property shall remain segregated from other
1267 property, equipment, or assets of the [
1268 accordance with this chapter.
1269 (3) [
1270 revenue from the sale of the property in accordance with this chapter, the [
1271 shall:
1272 (a) deduct the [
1273 24-4-118, and [
1274 forfeiture proceeding; and
1275 (b) if the prosecuting agency that employed the prosecuting attorney has met the
1276 requirements of Subsection 24-4-119(3), pay the [
1277 costs associated with the litigation of the forfeiture proceeding, and up to 20% of the value of
1278 the forfeited property in attorney fees.
1279 (4) If the forfeiture arises from [
1280 agency shall deposit any remaining currency and the proceeds or revenue from the sale of the
1281 property [
1282 (5) The agency shall transfer any remaining currency, [
1283 from the sale of the property [
1284 the account.
1285 Section 28. Section 24-4-116 is amended to read:
1286 24-4-116. Criminal Forfeiture Restricted Account.
1287 (1) There is created within the General Fund a restricted account known as the
1288 "Criminal Forfeiture Restricted Account."
1289 (2) [
1290 any proceeds from forfeited property and forfeited money through [
1291
1292 (3) Money in the account shall be appropriated to the commission for implementing the
1293 program under Section 24-4-117.
1294 Section 29. Section 24-4-117 is amended to read:
1295 24-4-117. State Asset Forfeiture Grant Program.
1296 (1) There is created the State Asset Forfeiture Grant Program.
1297 (2) The program shall fund crime prevention, crime victim reparations, and law
1298 enforcement activities that have the purpose of:
1299 (a) deterring crime by depriving criminals of the profits and proceeds of their illegal
1300 activities;
1301 (b) weakening criminal enterprises by removing the instrumentalities of crime;
1302 (c) reducing crimes involving substance abuse by supporting the creation,
1303 administration, or operation of drug court programs throughout the state;
1304 (d) encouraging cooperation between [
1305
1306 (e) allowing the costs and expenses of law enforcement to be defrayed by the forfeited
1307 proceeds of crime;
1308 (f) increasing the equitability and accountability of the use of forfeited property used to
1309 assist [
1310 (g) providing aid to victims of criminally injurious conduct, as defined in Section
1311 63M-7-502, who may be eligible for assistance under Title 63M, Chapter 7, Part 5, Utah Office
1312 for Victims of Crime.
1313 (3) (a) [
1314
1315 allocate and administer grants to [
1316
1317 subdivision of the state in compliance with this section and Subsection 24-4-119(2) and to
1318 further the program purposes under Subsection (2).
1319 (b) The commission may retain up to 3% of the annual appropriation from the account
1320 to pay for administrative costs incurred by the commission, including salary and benefits,
1321 equipment, supplies, or travel costs that are directly related to the administration of the
1322 program.
1323 (4) [
1324 for an award from the program by completing and submitting forms specified by the
1325 commission.
1326 (5) In granting the awards, the commission shall ensure that the amount of each award
1327 takes into consideration the:
1328 (a) demonstrated needs of the agency or political subdivision;
1329 (b) demonstrated ability of the agency or political subdivision to appropriately use the
1330 award;
1331 (c) degree to which the agency's or political subdivision's need is offset through the
1332 agency's or political subdivision's participation in federal equitable sharing or through other
1333 federal and state grant programs; and
1334 (d) agency's or political subdivision's cooperation with other state and local agencies
1335 and task forces.
1336 (6) The commission may award a grant to any agency or political subdivision engaged
1337 in activities associated with Subsection (2) even if the agency has not contributed to the fund.
1338 [
1339 subdivision shall demonstrate compliance with all reporting and policy requirements applicable
1340 under this chapter and under Title 63M, Chapter 7, Criminal Justice and Substance Abuse, in
1341 order to qualify as a potential award recipient.
1342 [
1343 award money after approval by the agency's legislative body.
1344 (b) The award money is nonlapsing.
1345 [
1346
1347 (a) only for law enforcement purposes [
1348 reparations as described in Subsection (2)(g)[
1349 (b) for the purposes [
1350 agency's or political subdivision's application for the award.
1351 [
1352 purpose for which award money may be used [
1353 (a) controlled substance interdiction and enforcement activities;
1354 (b) drug court programs;
1355 (c) activities calculated to enhance future law enforcement investigations;
1356 (d) law enforcement training that includes:
1357 (i) implementation of the Fourth Amendment to the United States Constitution and
1358 Utah Constitution, Article I, Section 7, and that addresses the protection of the individual's
1359 right of due process;
1360 (ii) protection of the rights of innocent property holders; and
1361 (iii) the Tenth Amendment to the United States Constitution regarding states'
1362 sovereignty and the states' reserved rights;
1363 (e) law enforcement or detention facilities;
1364 (f) law enforcement operations or equipment that are not routine costs or operational
1365 expenses;
1366 (g) drug, gang, or crime prevention education programs that are sponsored in whole or
1367 in part by the law enforcement agency or its legislative body;
1368 (h) matching funds for other state or federal law enforcement grants; and
1369 (i) the payment of legal costs, attorney fees, and postjudgment interest in forfeiture
1370 actions.
1371 [
1372 money may not be granted or used [
1373 (a) payment of salaries, retirement benefits, or bonuses to any [
1374 (b) payment of expenses not related to law enforcement;
1375 (c) uses not specified in the agency's award application;
1376 (d) uses not approved by the agency's legislative body;
1377 (e) payments, transfers, or pass-through funding to [
1378
1379 (f) uses, payments, or expenses that are not within the scope of the agency's functions.
1380 Section 30. Section 24-4-118 is amended to read:
1381 24-4-118. Forfeiture reporting requirements.
1382 (1) [
1383
1384 (5)[
1385 (a) [
1386 any civil or criminal forfeiture matter to the [
1387 commission as required under Subsection 24-4-115(5); or
1388 (b) [
1389 forfeited by the federal government.
1390 (2) The [
1391 standardized report format that each agency shall use in reporting the data required under this
1392 section.
1393 (3) The [
1394 or before April 30, prepare a summary report of the case data submitted by each agency under
1395 Subsection (1) during the prior calendar year.
1396 (4) (a) If an agency does not comply with the reporting requirements under this section,
1397 the [
1398 request that the agency comply with the required reporting provisions.
1399 (b) If an agency fails to comply with the reporting requirements under this section
1400 within 30 days after receiving the request to comply, the [
1401
1402 speaker of the House of Representatives, and the president of the Senate.
1403 (5) The data for any civil or criminal forfeiture matter for which final disposition has
1404 been made under Subsection (1) shall include:
1405 (a) the agency that conducted the seizure;
1406 (b) the case number or other identification;
1407 (c) the date or dates on which the seizure was conducted;
1408 (d) the number of individuals having a known property interest in each seizure of
1409 property;
1410 (e) the type of property seized;
1411 (f) the alleged offense that was the cause for seizure of the property;
1412 (g) whether any criminal charges were filed regarding the alleged offense, and if so, the
1413 final disposition of each charge, including the conviction, acquittal, or dismissal, or whether
1414 action on a charge is pending;
1415 (h) the type of enforcement action that resulted in the seizure, including an
1416 enforcement stop, a search warrant, or an arrest warrant;
1417 (i) whether the forfeiture procedure was civil or criminal;
1418 (j) the value of the property seized, including currency and the estimated market value
1419 of any tangible property;
1420 (k) the final disposition of the matter, including whether final disposition was entered
1421 by stipulation of the parties, including the amount of property returned to any claimant, by
1422 default, by summary judgment, by jury award, or by guilty plea or verdict in a criminal
1423 forfeiture;
1424 (l) if the property was forfeited by the federal government, the amount of forfeited
1425 money awarded to the agency;
1426 (m) the agency's direct costs, expense of reporting under this section, and expenses for
1427 obtaining and maintaining the seized property, as described in Subsection 24-4-115(3)(a);
1428 (n) the legal costs and attorney fees paid to the prosecuting attorney, as described in
1429 Subsection 24-4-115(3)(b); and
1430 (o) if the property was transferred to a federal agency or any governmental entity not
1431 created under and subject to state law:
1432 (i) the date of the transfer;
1433 (ii) the name of the federal agency or entity to which the property was transferred;
1434 (iii) a reference to which reason under Subsection [
1435 justified the transfer;
1436 (iv) the court or agency where the forfeiture case was heard;
1437 (v) the date of the order of transfer of the property; and
1438 (vi) the value of the property transferred to the federal agency, including currency and
1439 the estimated market value of any tangible property.
1440 (6) [
1441
1442 calendar year to the [
1443 states:
1444 (a) whether the agency received an award from the State Asset Forfeiture Grant
1445 Program under Section 24-4-117 and, if so, the following information for each award:
1446 (i) the amount of the award;
1447 (ii) the date of the award;
1448 (iii) how the award was used or is planned to be used; and
1449 (iv) a statement signed by both the agency's executive officer or designee and by the
1450 agency's legal counsel, that:
1451 (A) the agency has complied with all inventory, policy, and reporting requirements
1452 under Section 24-4-117; and
1453 (B) all awards were used for crime reduction or law enforcement purposes as specified
1454 in the application and that the awards were used only upon approval by the agency's legislative
1455 body; and
1456 (b) whether the agency received any property, money, or other things of value
1457 [
1458 24-2-106(6) and, if so, the following information for each piece of property, money, or other
1459 thing of value:
1460 (i) the case number or other case identification;
1461 (ii) the value of the award and the property, money, or other things of value received by
1462 the agency;
1463 (iii) the date of the award;
1464 (iv) the identity of any federal agency involved in the forfeiture;
1465 (v) how the awarded property has been used or is planned to be used; and
1466 (vi) a statement signed by both the agency's executive officer or designee and by the
1467 agency's legal counsel, that the agency has only used the award for crime reduction or law
1468 enforcement purposes authorized under Section 24-4-117, and that the award was used only
1469 upon approval by the agency's legislative body.
1470 (7) (a) On or before July 1 of each year, the [
1471
1472 (6), in electronic format, to:
1473 (i) the [
1474 (ii) the speaker of the House of Representatives, for referral to any House standing or
1475 interim committees with oversight over law enforcement and criminal justice;
1476 (iii) the president of the Senate, for referral to any Senate standing or interim
1477 committees with oversight over law enforcement and criminal justice; and
1478 (iv) each law enforcement agency.
1479 (b) The reports described in Subsection (3) and Subsection (6), as well as the
1480 individual case data described in Subsection (1) for the previous calendar year, shall be
1481 published on the Utah Open Government website at open.utah.gov on or before July 15 of each
1482 year.
1483 Section 31. Section 24-4-119 is enacted to read:
1484 24-4-119. Training requirements.
1485 (1) As used in this section:
1486 (a) "Council" means the Utah Prosecution Council created in Section 67-5a-1.
1487 (b) "Division" means the Peace Officers Standards and Training Division created in
1488 Section 53-6-103.
1489 (2) To participate in the program, an agency shall have at least one employee who is
1490 certified by the division as an asset forfeiture specialist through the completion of an online
1491 asset forfeiture course by the division.
1492 (3) The division shall:
1493 (a) develop an online asset forfeiture specialist course that is available to an agency for
1494 certification purposes;
1495 (b) certify an employee of an agency who meets the course requirements to be an asset
1496 forfeiture specialist;
1497 (c) recertify, every 36 months, an employee who is designated as an asset forfeiture
1498 specialist by an agency;
1499 (d) submit annually a report to the commission no later than April 30 that contains a
1500 list of the names of the employees and agencies participating in the certification courses;
1501 (e) review and update the asset forfeiture specialist course each year to comply with
1502 state and federal law; and
1503 (f) provide asset forfeiture training to all peace officers in basic training programs.
1504 (4) To be reimbursed for costs under Subsection 24-4-115(3)(b), a prosecuting agency
1505 shall have at least one employee who is certified by the council as an asset forfeiture specialist
1506 through the completion of an online asset forfeiture course.
1507 (5) The council shall:
1508 (a) develop an online asset forfeiture specialist course that is available to a prosecuting
1509 agency for certification purposes;
1510 (b) certify an employee of a prosecuting agency who meets the course requirements to
1511 be an asset forfeiture specialist;
1512 (c) submit annually a report to the commission no later than April 30 that contains a
1513 list of the names of the employees and prosecuting agencies participating in certification
1514 courses by the council; and
1515 (d) review and update the asset forfeiture specialist course each year to comply with
1516 state and federal law.
1517 Section 32. Section 53-13-110.5 is enacted to read:
1518 53-13-110.5. Retention of records of interviews of minors.
1519 If a peace officer, or the officer's employing agency, records an interview of a minor
1520 during an investigation of a violation of Section 76-5-402.1, 76-5-402.3, 76-5-403.1, or
1521 76-5-404.1, the agency shall retain a copy of the recording for 18 years after the day on which
1522 the last recording of the interview is made, unless the prosecuting attorney requests in writing
1523 that the recording be retained for an additional period of time.
1524 Section 33. Repealer.
1525 This bill repeals:
1526 Section 24-4-107, Innocent owners.
1527 Section 24-4-108, Release of property held for forfeiture on certain grounds.