§ 21-28-5.04.2 - Civil forfeiture procedure.
SECTION 21-28-5.04.2
§ 21-28-5.04.2 Civil forfeiture procedure.– (a) In addition to or in lieu of the criminal forfeiture procedures of thischapter, any property described in § 21-28-5.04 except as designated insubsection (b) of this section, is subject to civil forfeiture to the state.Civil forfeiture proceedings shall be in the nature of an action in rem andshall be governed by the civil rules for in rem proceedings.
(b) All property described in § 21-28-5.04 is subject tocivil forfeiture except that:
(1) No conveyances used by any person as a common carrier inthe transaction of business as a common carrier shall be forfeited under theprovisions of this section unless it appears that the owner or other person incharge of the conveyance was a consenting party or privy to the covered offensecharged;
(2) No conveyance shall be forfeited under the provisions ofthis section by reason of any act or omission established by the owner of it tohave been committed or omitted by any person other than the owner while theconveyance was unlawfully in the possession of a person other than the owner inviolation of the criminal laws of this state or of the United States; and
(3) No property shall be forfeited under this section, to theextent of the interest of an owner, by reason of any act or omissionestablished by that owner to have been committed or omitted without knowledgeor consent of that owner.
(c) Property subject to forfeiture under this section may beseized by a law enforcement officer:
(1) Upon process issued pursuant to the Rules of CivilProcedure applicable to in rem proceedings;
(2) Upon process issued pursuant to a legally authorizedsearch warrant; or
(3) Without court process when:
(i) The seizure is incident to a lawful arrest or search;
(ii) The property subject to seizure has been the subject ofa prior judgment in favor of the state in a controlled substance act;
(iii) The law enforcement officer has probable cause tobelieve that the property is directly or indirectly dangerous to health orsafety; or
(iv) The law enforcement officer has probable cause tobelieve that the property is forfeitable under § 21-28-5.04.
(d) In the event of a seizure under § 21-28-5.04 theproperty shall not be subject to sequestration or attachment but is deemed tobe in the custody of the law enforcement agency making the seizure, subjectonly to the order of the court. When property is seized under this section,pending forfeiture and final disposition, the law enforcement agency making theseizure may:
(1) Place the property under seal;
(2) Remove the property to a storage area for safekeeping;
(3) Remove the property to a place designated by the court; or
(4) Request another agency authorized by law to take custodyof the property and remove it to an appropriate location within thejurisdiction of the court.
(e) As soon as practicable after seizure, the seizing agencyshall conduct an inventory upon and cause the appraisal of the property seized.
(f) In the event of a seizure under this section, the seizingagency shall within thirty (30) days send to the attorney general a writtenrequest for forfeiture, which shall include a statement of all facts andcircumstances including the names of all witnesses then known, the appraisedvalue of the property and the statutory provision relied upon for forfeiture.
(g) The attorney general shall immediately examine the factsand applicable law of the cases referred to him or her pursuant to thissection, and if it is probable that the property is subject to forfeiture shallimmediately cause the initiation of administrative or judicial proceedingsagainst the property. If, upon inquiry and examination, the attorney generaldetermines that those proceedings probably cannot be sustained or that justicedoes not require the institution of the proceedings, he or she shall make awritten report of those findings, transmit a copy to the seizing agency, andimmediately authorize the release of the property.
(h) If the value of any personal property seized does notexceed twenty thousand dollars ($20,000), the attorney general may forfeit theproperty administratively in the following manner:
(1) The attorney general shall provide notice of intention toforfeit property administratively by publication in a local newspaper ofgeneral circulation, one day per week for three (3) consecutive weeks.
(2) In addition, to the extent practicable, the attorneygeneral shall provide notice by registered mail of intent to forfeit theproperty administratively to all known interested parties and all parties whoseidentity is reasonably subject to discovery who may have an interest in theproperty seized.
(3) Notice by publication and by mail shall include:
(i) A description of the property;
(ii) The appraised value of the property;
(iii) The date and place of seizure;
(iv) The violation of law alleged against the subjectproperty;
(v) The instructions for filing claim and cost bond or apetition for remission or mitigation; and
(vi) A notice that the property will be forfeited to thestate if a petition for remission or mitigation or a claim and cost bond hasnot been timely filed.
(4) Persons claiming an interest in the property may filepetitions for remission or mitigation of forfeiture or a claim and cost bondwith the attorney general within thirty (30) days of the final notice bypublication or receipt of written notice, whichever is earlier.
(5) The attorney general shall inquire into the facts andcircumstances surrounding petitions for remission or mitigation of forfeiture.
(6) The attorney general shall provide the seizing agency andthe petitioner a written decision on each petition for remission or mitigationwithin sixty (60) days of receipt of the petition unless the circumstances ofthe case require additional time, in which case the attorney general shallnotify the petitioner in writing and with specificity within the sixty (60) dayperiod that the circumstances of the case require additional time and furthernotify the petitioner of the expected decision date.
(7) Any person claiming seized property under this subsectionmay institute de novo judicial review of the seizure and proposed forfeiture bytimely filing with the attorney general a claim and bond to the state in theamount of ten percent (10%) of the appraised value of the property or in thepenal sum of two hundred fifty dollars ($250), whichever is greater, withsureties to be approved by the attorney general, upon condition that in thecase of forfeiture the claimant shall pay all costs and expenses of theproceedings at the discretion of the court. Upon receipt of the claim and bond,or if he or she elects, the attorney general shall file with the court acomplaint in rem in accordance with the procedures set forth in this section.Any funds received by the attorney general as cost bonds shall be placed in anescrow account pending final disposition of the case.
(8) If no petitions or claims with bonds are timely filed,the attorney general shall prepare a written declaration of forfeiture of thesubject property to the state and dispose of the property in accordance withthis chapter.
(9) If the petition is denied, the attorney general shallprepare a written declaration of forfeiture to the state and dispose of theproperty in accordance with this chapter and the attorney general'sregulations, if any, pursuant to this chapter.
(10) A written declaration of forfeiture signed by theattorney general pursuant to this chapter shall be deemed to provide good andsufficient title to the forfeited property.
(i) If the value of any personal property seized exceedstwenty thousand dollars ($20,000), the attorney general shall file a complaintin rem against the property within twenty (20) days of the receipt of thereport referred to in subsection (f) of this section and after this providenotice of intention to forfeit by publication in a local newspaper of generalcirculation for a period of at least once per week for three (3) consecutiveweeks. The notice shall include:
(1) A description of the property;
(2) The appraised value of the property;
(3) The date and place of seizure;
(4) The violation of law alleged against the subject property.
(j) The case may be tried by a jury, if in the superiorcourt, upon the request of either party, otherwise by the court, and the causeof forfeiture alleged being proved, the court which shall try the case shallenter upon judgment for the forfeiture and disposition of the propertyaccording to law.
(2) An appeal may be claimed by either party from anyjudgment of forfeiture rendered by the district court, to be taken in likemanner as by defendants in criminal cases within the jurisdiction of thedistrict court to try and determine, to the superior court for the same countyin which the division of the district court rendering judgment is situated andlike proceedings may be had therein as in cases of informations for forfeituresoriginally filed in that court.
(3) The judgment of the superior court shall be final in allcases of the forfeitures, whether originally commenced in that court or broughtthere by appeal, unless a new trial is ordered, for cause shown by the supremecourt.
(k) The in rem action shall be brought in the district courtif the value of the property seized is less than two hundred fifty thousanddollars ($250,000), otherwise the in rem action shall be brought in thesuperior court. The attorney general shall also, to the extent practicable,provide written notice of the action in rem to all known interested parties andall persons whose identity is reasonably subject to discovery who may have aninterest in the property.
(l) Persons claiming an interest in the property may fileclaims against the property within thirty (30) days of the final notice bypublication or receipt of written notice, whichever is earlier. The claimsshall be filed and adjudicated in the manner set forth for petitions incriminal proceedings in § 21-28-5.04.1(f).
(m) If the property sought to be forfeited is real property,the attorney general shall file a complaint in rem in the superior courtagainst the property. In addition to providing notice as required by thischapter, the attorney general shall file a lis pendens with respect to theproperty with the recorder of deeds in the city or town in which the propertyis located.
(n) Upon order of the court forfeiting the subject propertyto the state, the state shall have clear title to the forfeited property, andthe attorney general may transfer good and sufficient title to any subsequentpurchaser or transferee. Title to the forfeited property shall be deemed tohave vested in the state upon the commission of the act giving rise to theforfeiture under this chapter.
(o) Upon entry of judgment for the claimant in any proceedingto forfeit property under this chapter, the property shall immediately bereturned to the claimant. If it appears that there was reasonable cause for theseizure or the filing of the complaint, the court shall cause a propercertificate of that to be entered, and the claimant shall not, in that case, beentitled to costs or damages, nor shall the person or agency who made theseizure, nor the attorney general nor the prosecutor, be liable to suit orjudgment on account of the seizure, suit, or prosecution.
(p) In any action brought under this section, the state shallhave the initial burden of showing the existence of probable cause for seizureor arrest of the property. Upon that showing by the state, the claimant shallhave the burden of showing by a preponderance of evidence that the property wasnot subject to forfeiture under this section.