§21-28-5.04.2  Civil forfeiture procedure. –


Published: 2015

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TITLE 21

Food And Drugs

CHAPTER 21-28

Uniform Controlled Substances Act

ARTICLE 21-28-5.01

Powers of Enforcement Personnel

SECTION 21-28-5.04.2



   § 21-28-5.04.2  Civil forfeiture procedure.

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(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

charged;



   (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

safety; 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

seizure 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 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

property 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 subject

property;



   (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

this chapter.



   (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

court.



   (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

is located.



   (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.)

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