§ 21-28-5.04 - Forfeiture of property and money.
SECTION 21-28-5.04
§ 21-28-5.04 Forfeiture of property andmoney. – (a) Any property, real or personal, including, but not limited to, vessels,vehicles, or aircraft, and money or negotiable instruments, securities, orother things of value or any property constituting, or derived from anyproceeds, furnished or intended to be furnished by any person for thetransportation of or in exchange for a controlled substance and which has beenor is being used in violation of § 21-28-4.01(a) or (b) or in, upon or bymeans of which any violation of § 21-28-4.01(a) or (b) or §21-28-4.01.1 or 21-28-4.01.2 has taken or is taking place, and all realproperty including any right, title, and interest in the whole of any lot ortract of land and any appurtenances or improvements which is used in thecommission of a violation of § 21-28-4.01(a) or (b) or § 21-28-4.01.1or 21-28-4.01.2, or which was purchased with funds obtained as a result of thecommission of a violation of § 21-28-4.01(a) or (b) or § 21-28-4.01.1or 21-28-4.01.2, shall be seized and forfeited; provided that no property ormoney, as enumerated in this subsection, used by any person shall be forfeitedunder the provisions of this chapter unless it shall appear that the owner ofthe property or money had knowledge, actual or constructive, and was aconsenting party to the alleged illegal act. All moneys, coin and currency,found in close proximity to forfeitable controlled substances, to forfeitabledrug manufacturing or distributing paraphernalia, or to forfeitable records ofthe importation, manufacture, or distribution of controlled substances, arepresumed to be unlawfully furnished in exchange for a controlled substance orused in violation of this chapter. The burden of proof is upon claimants of theproperty to rebut this presumption.
(b) Property taken or detained under this section shall notbe repleviable, but shall be deemed to be in the custody of the law enforcementagency making the seizure and whenever property or money is forfeited underthis chapter it shall be utilized as follows:
(1) Where the seized property is a vessel, vehicle, aircraft,or other personal property it may be retained and used by the law enforcementagency that seized the property where the use of the property is reasonablyrelated to the law enforcement duties of the seizing agency. If the seizedproperty is a motor vehicle that is inappropriate for use by the lawenforcement agency due to style, size, or color, the seizing agency shall beallowed to apply the proceeds of sale or the trade in value of the vehicletowards the purchase of an appropriate vehicle for use for activitiesreasonably related to law enforcement duties.
(2) The law enforcement agency may sell any forfeitedproperty, which is not required by this chapter to be destroyed and which isnot harmful to the public. The proceeds from the sale are to be distributed inaccordance with subdivision (3) of this subsection.
(3) As to the proceeds from the sale of seized property asreferred to in subdivision (2) of this subsection and as to moneys, coin andcurrency, negotiable instruments, securities, or other things of value asreferred to in subsection (a) of this section, the distribution shall be asfollows:
(i) All proceeds of the forfeiture of real or personalproperty shall be distributed as follows: All costs of advertisingadministrative forfeitures shall first be deducted from the amount forfeited.Of the remainder, twenty percent (20%) of the proceeds shall be provided to theattorney general's department to be used for further drug-related lawenforcement activities including, but not limited to, investigations,prosecutions and the administration of this chapter; seventy percent (70%) ofthe proceeds shall be divided among the state and local law enforcementagencies proportionately based upon their contribution to the investigation ofthe criminal activity related to the asset being forfeited; and ten percent(10%) of the proceeds shall be provided to the department of health fordistribution to substance abuse treatment programs.
(B) The law enforcement agencies involved in theinvestigation with the assistance of the attorney general shall by agreementdetermine the respective proportionate share to be received by each agency. Ifthe agencies are unable to reach agreement, application shall be made by one ormore of the agencies involved to the presiding justice of the superior court,who shall determine the respective proportionate share attributable to each lawenforcement agency. The proceeds from all forfeitures shall be held by thegeneral treasurer in a separate account until such time as an allocation isdetermined by agreement of the agencies or by the presiding justice. It shallbe the duty and responsibility of the general treasurer to disburse theallocated funds from the separate account to the respective law enforcementagencies.
(ii) Each state or local law enforcement agency shall beentitled to keep the forfeited money or the proceeds from sales of forfeitedproperty. The funds shall be used for law enforcement purposes andinvestigations of violations of this chapter. The funds received by a state lawenforcement agency shall be maintained in a separate account by the generaltreasurer. The funds received by a local law enforcement agency shall bemaintained in a separate account by the local agency's city or town treasurer.
(c) There is established in the state's treasury a specialfund to be known as the asset forfeiture fund in which shall be deposited theexcess proceeds of forfeitures arising out of criminal acts occurring beforeJuly 1, 1987. The asset forfeiture fund shall be used to fund drug-related lawenforcement activity and the treatment and rehabilitation of victims of drugabuse. The fund shall be administered through the office of the generaltreasurer. The presiding justice of the superior court shall have the authorityto determine the feasibility and amount of disbursement to those state or locallaw enforcement agencies which have made application.
(2) Upon the application of any law enforcement agency of thestate of Rhode Island when a special need exists concerning the enforcement ofthe provisions of this chapter, the attorney general or his or her designee mayapply to the presiding justice of the superior court for the release from thegeneral treasury of sums of money. When the presiding justice uponconsideration of the reasons set forth by that agency deems them to bereasonable and necessary to the accomplishment of a goal within the powers andduties of that law enforcement agency, he or she may issue an order ex parteproviding for the release of the funds.
(d) Each law enforcement agency making any seizure(s) whichresult(s) in a forfeiture pursuant to this section shall certify and file withthe state treasurer between January 1 and January 30 an annual report detailingthe property or money forfeited during the previous calendar year and the useor disposition of the property or money. The report shall be made in the formand manner as may be provided or specified by the treasurer and these annuallaw enforcement agency reports shall be provided to the local governmental bodygoverning the agency and to the house and senate judiciary committees.
(e) Any law enforcement agency whose duty it is to enforcethe laws of this state relating to controlled substances is empowered toauthorize designated officers or agents to carry out the seizure provisions ofthis chapter. It shall be the duty of any officer or agent authorized ordesignated or authorized by law, whenever he or she shall discover any propertyor monies which have been or are being used in violation of any of theprovisions of this chapter, or in, upon or by means of which any violation ofthis chapter has taken or is taking place, to seize the property or monies andto place it in the custody of the person as may be authorized or designated forthat purpose by the respective law enforcement agency pursuant to thoseprovisions.