TITLE 31

Motor and Other vehicles

CHAPTER 31-27

Motor Vehicle Offenses

SECTION 31-27-4.4



   § 31-27-4.4  Motor vehicle forfeiture

procedure. –

(a) Any criminal complaint, information, or indictment charging a violation of

§ 31-27-4.1 shall set forth with reasonable particularity the motor

vehicle that the attorney general seeks to forfeit pursuant to this section.



   (b)(1) The court may, upon application of the attorney

general, enter a restraining order or injunction, require any person claiming

any interest in the subject vehicle to execute a satisfactory performance bond

to the state, or take any other action to preserve the availability of the

vehicle subject to forfeiture described in § 31-27-4.3, whether prior or

subsequent to the filing of a complaint, indictment, or information.



   (2) Written notice and an opportunity for a hearing shall be

afforded to persons appearing to have an interest in the vehicle, the hearing,

however, to be limited to the issues of whether:



   (i) There is a substantial probability that the state will

prevail on the issue of forfeiture and that failure to enter the order will

result in the vehicle being destroyed, conveyed, encumbered or further

encumbered, removed from the jurisdiction of the court, depreciated in value or

otherwise made unavailable for forfeiture; and



   (ii) The need to preserve the availability of the vehicle

through the entry of the requested order outweighs the hardship on any party

against whom the order is to be entered.



   (c)(1) A temporary restraining order under this section may

be entered upon application of the attorney general without notice or

opportunity for a hearing when a complaint, information, or indictment has not

yet been filed with respect to the vehicle if the attorney general demonstrates

that there is probable cause to believe that the vehicle with respect to which

the order is sought would, in the event of conviction, be subject to forfeiture

under § 31-27-4.3 and that provision of notice will jeopardize the

availability of the vehicle for forfeiture. The temporary restraining order

shall expire within ten (10) days of the date on which it is entered unless

extended for good cause shown or unless the party against whom it is entered

consents to an extension for a longer period.



   (2) A hearing requested by any party in interest concerning

an order entered under this subsection shall be held at the earliest possible

time and prior to the expiration of the temporary order.



   (3) The court may receive and consider, at the hearing held

pursuant to this subsection, evidence and information that would be

inadmissible in court.



   (d) Upon conviction of a person for the covered offense, the

court may enter a judgment of forfeiture of the vehicle described in §

31-27-4.1 to the state and may also authorize the attorney general to seize the

motor vehicle ordered forfeited upon any terms and conditions that the court

shall deem proper. Following the entry of an order declaring the vehicle

forfeited, the court may, upon application of the attorney general:



   (1) Enter appropriate restraining orders or injunctions;



   (2) Require the execution of satisfactory performance bonds,

appoint receivers, conservators, appraisers, accountants, or trustees; or



   (3) Take any other action to protect the interest of the

state in the property ordered forfeited.



   (e) All right, title, and interest in the vehicle described

in § 31-27-4.1 vests in the state upon the commission of the act giving

rise to forfeiture under this chapter. Any such vehicle that is subsequently

transferred to any person may be the subject of a special verdict of forfeiture

and shall be ordered forfeited to the state, unless the transferee establishes

in a hearing pursuant to subsection (f) of this section that he or she is a

bona fide purchaser for value of the vehicle who at the time of purchase was

reasonably without cause to believe that the vehicle was subject to forfeiture.



   (f) Procedures subsequent to the special verdict of

forfeiture shall be as follows:



   (1) Following the entry of an order of forfeiture under this

section, the state shall publish notice of the order and of its intent to

dispose of the vehicle once per week for at least three (3) weeks in any manner

that the attorney general may provide by regulation. The attorney general shall

also, to the extent practicable, provide written notice to all parties known to

have an interest in the vehicle and all parties whose identity is reasonably

subject to discovery and who may have an interest in the forfeited vehicle.



   (2) Any person, other than the defendant, asserting any

interest in the vehicle that has been ordered forfeited to the state pursuant

to this section may, within one hundred eighty (180) days of the final

publication of notice or his or her receipt of notice under subdivision (1) of

this subsection, whichever is earlier, petition the court for a hearing to

adjudicate the validity of his or her alleged interest in the vehicle.



   (3) The petition shall be signed by the petitioner under

penalty of perjury and shall set forth the nature and extent of the

petitioner's right, title, or interest in the vehicle; any additional facts

supporting the petitioner's claim; and the relief sought.



   (4) The hearing on the petition shall, to the extent

practicable and consistent with the interest of justice, be held within thirty

(30) days of the filing of the petition. The court may consolidate the hearing

on the petition with a hearing on any other petition filed by a person other

than the defendant and concerning the same vehicle.



   (5) At a hearing, the petitioner may testify and present

evidence and witnesses on his or her own behalf, and cross-examine witnesses

who appear at the hearing. The state may present evidence and witnesses in

rebuttal and in defense of its claim to the vehicle and cross-examine witnesses

who appear at the hearing. In addition to testimony and evidence presented at

the hearing, the court shall consider the relevant portions of the record of

the criminal case that resulted in the order of forfeiture.



   (6) In accordance with its findings at the hearing, the court

shall amend the order of forfeiture if it determines that the petitioner has

established by a preponderance of the evidence that:



   (i) The petitioner has a right, title, or interest in the

vehicle, and the right, title or interest was vested in the petitioner rather

than the defendant or was superior to any right, title, or interest of the

defendant at the time of the commission of the acts which gave rise to the

forfeiture of the vehicle under this section; or



   (ii) The petitioner is a bona fide purchaser for value of any

right, title or interest in the vehicle and was at the time of purchase

reasonably without cause to believe that the property was subject to forfeiture

under this section.



   (7) Following the court's disposition of all petitions filed

under this section, or if no suchpetitions are filed, following the expiration

of the period provided in this section for the filing of the petitions, the

state shall have clear title to the vehicle that is the subject of the order of

forfeiture and shall transfer good and sufficient title to any subsequent

purchaser, transferee, or fund as provided in this chapter.



   (8) Except as provided in this section, no party claiming an

interest in the vehicle subject to forfeiture under this section may:



   (i) Intervene in a trial or appeal of a criminal case

involving the forfeiture of the property; or



   (ii) Commence any action against the state concerning the

validity of the alleged interest.



   (g) In order to facilitate the identification or location of

the vehicle declared forfeited and to facilitate the disposition of petitions

filed pursuant to this section after the entry of an order declaring a vehicle

forfeited to the state, the court may, upon application of the attorney

general, order that the testimony of any witness relating to the forfeited

vehicle be taken by deposition and that any designated book, paper, document,

record, recording (electronic or otherwise), or other material not privileged,

be produced at the same time and place, in the same manner as provided for the

taking of depositions under the Rules of Civil Procedure.



   (h) If the vehicle described in § 31-27-4.1: (1) cannot

be located; (2) has been transferred to, sold to or deposited with a third

party; (3) has been placed beyond the jurisdiction of the court; (4) has been

substantially diminished in value by any act or omission of the defendant; the

court shall order the forfeiture of any other property of the defendant up to

the value of the subject property.



   (i) The court shall have jurisdiction to enter orders as

provided in this section without regard to the location of any property that

may be subject to forfeiture under this section or that has been ordered

forfeited under this section.



History of Section.

(P.L. 1997, ch. 193, § 3.)