58-37-13 - Property subject to forfeiture -- Seizure -- Procedure.
58-37-13. Property subject to forfeiture -- Seizure -- Procedure.
(1) As used in this section:
(a) "Claimant" means:
(i) any owner as defined in this section; or
(ii) any interest holder as defined in this section and any other person or entity whoasserts a claim to any property seized for forfeiture under this section;
(b) "Drug distributing paraphernalia" means any property used or designed to be used inthe illegal transportation, storage, shipping, or circulation of a controlled substance. Property isconsidered "designed to be used" for one or more of the above-listed purposes if the property hasbeen altered or modified to include a feature or device which would actually promote or conceala violation of this chapter.
(c) "Drug manufacturing equipment or supplies" includes any illegally possessedcontrolled substance precursor, or any chemical, laboratory equipment, or laboratory suppliespossessed with intent to engage in clandestine laboratory operations as defined in Section58-37d-3.
(d) "Interest holder" means a secured party as defined in Section 70A-9a-102, amortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to aninterest in property, whose interest would be perfected against a good faith purchaser for value. A person who holds property for the benefit of or as an agent or nominee for another, or who isnot in substantial compliance with any statute requiring an interest in property to be recorded orreflected in public records in order to perfect the interest against a good faith purchaser for value,is not an interest holder.
(e) "Owner" means an individual or entity who possesses a legal or equitable ownershipin real or personal property.
(f) "Proceeds" means property acquired directly or indirectly from, produced through,realized through, or caused by an act or omission and includes any property of any kind withoutreduction for expenses incurred in the acquisition, maintenance, or production of that property, orany other purpose.
(g) "Real Property" means:
(i) land; and
(ii) any building, fixture, improvement, appurtenance, structure, or other developmentthat is affixed permanently to land.
(h) "Resolution of criminal charges" occurs at the time a claimant who is also chargedwith violations under Chapter 37, 37a, 37b, 37c, or 37d enters a plea, upon return of a juryverdict or court ruling in a criminal trial, or upon dismissal of the criminal charge.
(i) "Violation of this chapter" means any conduct prohibited by Chapter 37, 37a, 37b,37c, or 37d or any conduct occurring outside the state which would be a violation of the laws ofthe place where the conduct occurred and which would be a violation of Chapter 37, 37a, 37b,37c, or 37d if the conduct had occurred in this state.
(2) The following are subject to criminal or civil forfeiture pursuant to Title 24, Chapter1, Utah Uniform Forfeiture Procedures Act:
(a) all controlled substances which have been manufactured, distributed, dispensed, oracquired in violation of this chapter;
(b) all raw materials, products, and equipment of any kind used, or intended for use, inmanufacturing, compounding, processing, delivering, importing, or exporting any controlled
substance in violation of this chapter;
(c) all property used or intended for use as a container for property described inSubsections (2)(a) and (2)(b);
(d) all hypodermic needles, syringes, and other paraphernalia, not including capsulesused with health food supplements and herbs, used or intended for use to administer controlledsubstances in violation of this chapter;
(e) all conveyances including aircraft, vehicles, or vessels used or intended to be used tofacilitate the distribution or possession with intent to distribute the property described inSubsections (2)(a) and (2)(b);
(f) all books, records, and research, including formulas, microfilm, tapes, and data usedor intended for use in violation of this chapter;
(g) everything of value furnished or intended to be furnished in exchange for a controlledsubstance in violation of this chapter, and all money, negotiable instruments, and securities usedor intended to be used to facilitate any violation of this chapter. An interest in property may notbe civilly forfeited under this Subsection (2) unless it is proven by clear and convincing evidencethat the owner or any interest holder knew of the conduct which made the property subject toforfeiture. The burden of presenting this evidence is on the state;
(h) all imitation controlled substances as defined in Section 58-37b-2, ImitationControlled Substances Act;
(i) (i) all warehousing, housing, and storage facilities, or interest in real property of anykind used, or intended for use, in producing, cultivating, warehousing, storing, distributing ormanufacturing any controlled substances in violation of this chapter but only if:
(A) the cumulative sales of controlled substances on the property within a two-monthperiod total or exceed $1,000; or
(B) the street value of any controlled substances found on the premises at any given timetotals or exceeds $1,000, but only after the judge makes a specific finding of proportionalityunder Section 24-1-14, and subject to the condition that even if proportionality is found, thejudge shall have discretion not to forfeit real property which is a primary residence.
(ii) A narcotics officer experienced in controlled substances law enforcement may testifyto establish the street value of the controlled substances for purposes of this Subsection (2);
(j) any firearm, weapon, or ammunition carried or used in connection with a violation ofthis chapter or any firearm, weapon, or ammunition kept or located within the proximity ofcontrolled substances;
(k) all proceeds traceable to any violation of this chapter.
(3) Property subject to forfeiture under this chapter may be seized by any peace officer ofthis state upon process issued by any court having jurisdiction over the property. However,seizure without process may be made when:
(a) the seizure is incident to an arrest or search under a search warrant or an inspectionunder an administrative inspection warrant;
(b) the property subject to seizure has been the subject of a prior judgment in favor of thestate in a criminal injunction or forfeiture proceeding under this chapter;
(c) the peace officer has probable cause to believe that the property is directly orindirectly dangerous to health or safety; or
(d) the peace officer has probable cause to believe that the property has been used orintended to be used in violation of this chapter and has probable cause to believe the property
will be damaged, intentionally diminished in value, destroyed, concealed, or removed from thestate.
(4) Property taken or detained under this section is not repleviable but is in custody of thelaw enforcement agency making the seizure, subject only to the orders and decrees of the court orthe official having jurisdiction. When property is seized under this chapter, the appropriateperson or agency may:
(a) place the property under seal;
(b) remove the property to a place designated by it or the warrant under which it wasseized; or
(c) take custody of the property and remove it to an appropriate location for dispositionin accordance with law.
(5) All substances listed in Schedule I that are possessed, transferred, distributed, oroffered for distribution in violation of this chapter are contraband and no property right shallexist in them. All substances listed in Schedule I which are seized or come into the possession ofthe state may be retained for any evidentiary or investigative purpose, including sampling orother preservation prior to disposal or destruction by the state.
(6) All marijuana or any species of plants from which controlled substances in SchedulesI and II are derived which have been planted or cultivated in violation of this chapter, or of whichthe owners or cultivators are unknown, or are wild growths, may be seized and retained for anyevidentiary or investigative purpose, including sampling or other preservation prior to disposal ordestruction by the state. Failure, upon demand by the department or its authorized agent, of anyperson in occupancy or in control of land or premises upon which species of plants are growingor being stored, to produce an appropriate license or proof that he is the holder of a license, isauthority for the seizure and forfeiture of the plants.
(7) Forfeiture proceedings shall conform with the procedures and substantive protectionsof Title 24, Chapter 1, Utah Uniform Forfeiture Procedures Act.
Amended by Chapter 185, 2002 General Session