Food And Drugs
Uniform Controlled Substances Act
Powers of Enforcement Personnel
§ 21-28-5.04.2 Civil forfeiture procedure.
(a) In addition to or in lieu of the criminal forfeiture procedures of this
chapter, any property described in § 21-28-5.04 except as designated in
subsection (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 and
shall be governed by the civil rules for in rem proceedings.
(b) All property described in § 21-28-5.04 is subject to
civil forfeiture except that:
(1) No conveyances used by any person as a common carrier in
the transaction of business as a common carrier shall be forfeited under the
provisions of this section unless it appears that the owner or other person in
charge of the conveyance was a consenting party or privy to the covered offense
(2) No conveyance shall be forfeited under the provisions of
this section by reason of any act or omission established by the owner of it to
have been committed or omitted by any person other than the owner while the
conveyance was unlawfully in the possession of a person other than the owner in
violation of the criminal laws of this state or of the United States; and
(3) No property shall be forfeited under this section, to the
extent of the interest of an owner, by reason of any act or omission
established by that owner to have been committed or omitted without knowledge
or consent of that owner.
(c) Property subject to forfeiture under this section may be
seized by a law enforcement officer:
(1) Upon process issued pursuant to the Rules of Civil
Procedure applicable to in rem proceedings;
(2) Upon process issued pursuant to a legally authorized
search 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 of
a prior judgment in favor of the state in a controlled substance act;
(iii) The law enforcement officer has probable cause to
believe that the property is directly or indirectly dangerous to health or
(iv) The law enforcement officer has probable cause to
believe that the property is forfeitable under § 21-28-5.04.
(d) In the event of a seizure under § 21-28-5.04 the
property shall not be subject to sequestration or attachment but is deemed to
be in the custody of the law enforcement agency making the seizure, subject
only to the order of the court. When property is seized under this section,
pending forfeiture and final disposition, the law enforcement agency making the
(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 custody
of the property and remove it to an appropriate location within the
jurisdiction of the court.
(e) As soon as practicable after seizure, the seizing agency
shall conduct an inventory upon and cause the appraisal of the property seized.
(f) In the event of a seizure under this section, the seizing
agency shall within thirty (30) days send to the attorney general a written
request for forfeiture, which shall include a statement of all facts and
circumstances including the names of all witnesses then known, the appraised
value of the property and the statutory provision relied upon for forfeiture.
(g) The attorney general shall immediately examine the facts
and applicable law of the cases referred to him or her pursuant to this
section, and if it is probable that the property is subject to forfeiture shall
immediately cause the initiation of administrative or judicial proceedings
against the property. If, upon inquiry and examination, the attorney general
determines that those proceedings probably cannot be sustained or that justice
does not require the institution of the proceedings, he or she shall make a
written report of those findings, transmit a copy to the seizing agency, and
immediately authorize the release of the property.
(h) If the value of any personal property seized does not
exceed twenty thousand dollars ($20,000), the attorney general may forfeit the
property administratively in the following manner:
(1) The attorney general shall provide notice of intention to
forfeit property administratively by publication in a local newspaper of
general circulation, one day per week for three (3) consecutive weeks.
(2) In addition, to the extent practicable, the attorney
general shall provide notice by registered mail of intent to forfeit the
property administratively to all known interested parties and all parties whose
identity is reasonably subject to discovery who may have an interest in the
(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 subject
(v) The instructions for filing claim and cost bond or a
petition for remission or mitigation; and
(vi) A notice that the property will be forfeited to the
state if a petition for remission or mitigation or a claim and cost bond has
not been timely filed.
(4) Persons claiming an interest in the property may file
petitions for remission or mitigation of forfeiture or a claim and cost bond
with the attorney general within thirty (30) days of the final notice by
publication or receipt of written notice, whichever is earlier.
(5) The attorney general shall inquire into the facts and
circumstances surrounding petitions for remission or mitigation of forfeiture.
(6) The attorney general shall provide the seizing agency and
the petitioner a written decision on each petition for remission or mitigation
within sixty (60) days of receipt of the petition unless the circumstances of
the case require additional time, in which case the attorney general shall
notify the petitioner in writing and with specificity within the sixty (60) day
period that the circumstances of the case require additional time and further
notify the petitioner of the expected decision date.
(7) Any person claiming seized property under this subsection
may institute de novo judicial review of the seizure and proposed forfeiture by
timely filing with the attorney general a claim and bond to the state in the
amount of ten percent (10%) of the appraised value of the property or in the
penal sum of two hundred fifty dollars ($250), whichever is greater, with
sureties to be approved by the attorney general, upon condition that in the
case of forfeiture the claimant shall pay all costs and expenses of the
proceedings 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 a
complaint 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 an
escrow 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 the
subject property to the state and dispose of the property in accordance with
(9) If the petition is denied, the attorney general shall
prepare a written declaration of forfeiture to the state and dispose of the
property in accordance with this chapter and the attorney general's
regulations, if any, pursuant to this chapter.
(10) A written declaration of forfeiture signed by the
attorney general pursuant to this chapter shall be deemed to provide good and
sufficient title to the forfeited property.
(i) If the value of any personal property seized exceeds
twenty thousand dollars ($20,000), the attorney general shall file a complaint
in rem against the property within twenty (20) days of the receipt of the
report referred to in subsection (f) of this section and after this provide
notice of intention to forfeit by publication in a local newspaper of general
circulation for a period of at least once per week for three (3) consecutive
weeks. 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)(1) The case may be tried by a jury, if in the superior
court, upon the request of either party, otherwise by the court, and the cause
of forfeiture alleged being proved, the court which shall try the case shall
enter upon judgment for the forfeiture and disposition of the property
according to law.
(2) An appeal may be claimed by either party from any
judgment of forfeiture rendered by the district court, to be taken in like
manner as by defendants in criminal cases within the jurisdiction of the
district court to try and determine, to the superior court for the same county
in which the division of the district court rendering judgment is situated and
like proceedings may be had therein as in cases of informations for forfeitures
originally filed in that court.
(3) The judgment of the superior court shall be final in all
cases of the forfeitures, whether originally commenced in that court or brought
there by appeal, unless a new trial is ordered, for cause shown by the supreme
(k) The in rem action shall be brought in the district court
if the value of the property seized is less than two hundred fifty thousand
dollars ($250,000), otherwise the in rem action shall be brought in the
superior court. The attorney general shall also, to the extent practicable,
provide written notice of the action in rem to all known interested parties and
all persons whose identity is reasonably subject to discovery who may have an
interest in the property.
(l) Persons claiming an interest in the property may file
claims against the property within thirty (30) days of the final notice by
publication or receipt of written notice, whichever is earlier. The claims
shall be filed and adjudicated in the manner set forth for petitions in
criminal 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 court
against the property. In addition to providing notice as required by this
chapter, the attorney general shall file a lis pendens with respect to the
property with the recorder of deeds in the city or town in which the property
(n) Upon order of the court forfeiting the subject property
to the state, the state shall have clear title to the forfeited property, and
the attorney general may transfer good and sufficient title to any subsequent
purchaser or transferee. Title to the forfeited property shall be deemed to
have vested in the state upon the commission of the act giving rise to the
forfeiture under this chapter.
(o) Upon entry of judgment for the claimant in any proceeding
to forfeit property under this chapter, the property shall immediately be
returned to the claimant. If it appears that there was reasonable cause for the
seizure or the filing of the complaint, the court shall cause a proper
certificate of that to be entered, and the claimant shall not, in that case, be
entitled to costs or damages, nor shall the person or agency who made the
seizure, nor the attorney general nor the prosecutor, be liable to suit or
judgment on account of the seizure, suit, or prosecution.
(p) In any action brought under this section, the state shall
have the initial burden of showing the existence of probable cause for seizure
or arrest of the property. Upon that showing by the state, the claimant shall
have the burden of showing by a preponderance of evidence that the property was
not subject to forfeiture under this section.
History of Section.
(P.L. 1987, ch. 371, § 2; P.L. 1988, ch. 666, § 1; P.L. 2002, ch.
292, § 56.)