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H0264................................by JUDICIARY, RULES AND ADMINISTRATION
FORFEITURE - Amends existing law to clarify the authority of the
appropriate prosecuting attorney to institute proceedings to forfeit seized
property.
02/16 House intro - 1st rdg - to printing
02/17 Rpt prt - to Jud
03/02 Rpt out - rec d/p - to 2nd rdg
03/03 2nd rdg - to 3rd rdg
03/04 3rd rdg - PASSED - 61-0-9
AYES -- Alltus, Barraclough, Barrett, Bell, Bieter, Boe, Bruneel,
Callister, Campbell, Chase, Clark, Crow, Cuddy, Deal, Denney,
Ellsworth, Field(13), Field(20), Gagner, Geddes, Hadley, Hammond,
Hansen(23), Hansen(29), Henbest, Hornbeck, Jaquet, Jones, Judd,
Kellogg, Kempton, Kendell, Kunz, Lake, Limbaugh, Linford, Loertscher,
Mader, Marley, McKague, Meyer, Montgomery, Mortensen, Pischner,
Pomeroy, Reynolds, Ringo, Robison, Schaefer, Sellman, Smith, Smylie,
Stevenson, Stoicheff, Stone, Taylor, Tilman, Trail, Watson, Wheeler,
Williams
NAYS -- None
Absent and excused -- Black, Gould, Moyle, Ridinger, Sali, Tippets,
Wood, Zimmermann, Mr Speaker
Floor Sponsor - Ellsworth
Title apvd - to Senate
03/05 Senate intro - 1st rdg - to Jud
03/11 Rpt out - rec d/p - to 2nd rdg
03/12 2nd rdg - to 3rd rdg
03/16 3rd rdg - PASSED - 34-0-1
AYES--Andreason, Boatright, Branch, Bunderson, Burtenshaw, Cameron,
Crow, Danielson, Darrington, Davis, Deide, Dunklin, Frasure, Geddes,
Hawkins, Ingram, Ipsen, Keough, King, Lee, McLaughlin, Noh,
Richardson, Riggs, Risch, Sandy, Schroeder, Sorensen, Stegner,
Stennett, Thorne, Twiggs, Wheeler, Whitworth
NAYS--None
Absent and excused--Parry
Floor Sponsor - Risch
Title apvd - to House
03/17 To enrol
03/18 Rpt enrol - Sp signed - Pres signed
03/19 To Governor
03/23 Governor signed
Session Law Chapter 218
Effective: 03/23/99
H0264|||| LEGISLATURE OF THE STATE OF IDAHO |||| Fifty-fifth Legislature First Regular Session - 1999IN THE HOUSE OF REPRESENTATIVES HOUSE BILL NO. 264 BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE 1 AN ACT 2 RELATING TO THE UNIFORM CONTROLLED SUBSTANCES ACT; AMENDING SECTION 37-2744, 3 IDAHO CODE, TO CLARIFY THE AUTHORITY OF THE APPROPRIATE PROSECUTING ATTOR- 4 NEY TO INSTITUTE PROCEEDINGS TO FORFEIT SEIZED PROPERTY AND TO MAKE TECH- 5 NICAL CORRECTIONS; AND DECLARING AN EMERGENCY. 6 Be It Enacted by the Legislature of the State of Idaho: 7 SECTION 1. That Section 37-2744, Idaho Code, be, and the same is hereby 8 amended to read as follows: 9 37-2744. FORFEITURES. (a) The following are subject to forfeiture: 10 (1) All controlled substances which have been manufactured, distributed, 11 dispensed, acquired, possessed or held in violation of this act or with 12 respect to which there has been any act by any person in violation of this 13 act; 14 (2) All raw materials, products and equipment of any kind which are used, 15 or intended for use, in manufacturing, compounding, processing, deliver- 16 ing, importing, or exporting any controlled substances or counterfeit sub- 17 stances in violation of this act; 18 (3) All property which is used, or intended for use, as a container for 19 property described in paragraph (1) or (2) hereof; 20 (4) All conveyances, including aircraft, vehicles, or vessels, which are 21 used, or intended for use, to transport, or in any manner to facilitate 22 the transportation, delivery, receipt, possession or concealment, for the 23 purpose of distribution or receipt of property described in paragraph (1) 24 or (2) hereof, but: 25 (A) No conveyance used by any person as a common carrier in the 26 transaction of business as a common carrier is subject to forfeiture 27 under this section unless it appears that the owner or other person 28 in charge of the conveyance is a consenting party or privy to a 29 violation of this act; 30 (B) No conveyance is subject to forfeiture under this section if the 31 owner establishes that he could not have known in the exercise of 32 reasonable diligence that the conveyance was being used, had been 33 used, was intended to be used or had been intended to be used in any 34 manner described in subsection (a)(4) of this section; 35 (C) A forfeiture of a conveyance encumbered by a bona fide security 36 interest is subject to the interest of the secured party if the secu- 37 rity interest was created without any knowledge or reason to believe 38 that the conveyance was being used, had been used, was intended to be 39 used, or had been intended to be used for the purpose alleged. 40 (5) All books, records, and research products and materials, including 41 formulas, microfilm, tapes, and data which are used, or intended for use, 42 in violation of this act. 43 (6) (A) All moneys, currency, negotiable instruments, securities or other 2 1 items easily liquidated for cash, such as, but not limited to, jew- 2 elry, stocks and bonds, or other property described in paragraphs (2) 3 and (3) hereof, found in close proximity to property described in 4 paragraphs(1), (2), (3), (5), (7) or (8) of subsection 5 (a) of this section or which has been used or intended for use in 6 connection with the illegal manufacture, distribution, dispensing or 7 possession of property described in paragraphs(1), (2), 8 (3), (5), (7) or (8) of subsection (a) of this section; 9 (B) Items described in paragraph (6)(A) above or other things of 10 value furnished or intended to be furnished by any person in exchange 11 for a contraband controlled substance in violation of this chapter, 12 all proceeds, including items of property traceable to such an 13 exchange, and all moneys or other things of value used or intended to 14 be used to facilitate any violation of this chapter, except that no 15 property shall be forfeited under this paragraph to the extent of the 16 interest of an owner, by reason of any act or omission established by 17 that owner to have been committed or omitted without the knowledge or 18 consent of that owner. 19 (7) All drug paraphernalia as defined by section 37-2701, Idaho Code. 20 (8) All simulated controlled substances, which are used or intended for 21 use in violation of this chapter. 22 (9) All weapons, or firearms, which are used in any manner to facilitate 23 a violation of the provisions of this chapter. 24 (b) Property subject to forfeiture under this chapter may be seized by 25 the director, or any peace officer of this state, upon process issued by any 26 district court, or magistrate's division thereof, having jurisdiction over the 27 property. Seizure without process may be made if: 28 (1) The seizure is incident to an arrest or a search under a search war- 29 rant or an inspection under an administrative inspection warrant; 30 (2) The property subject to seizure has been the subject of a prior judg- 31 ment in favor of the state in a criminal racketeering or civil forfeiture 32 proceeding based upon a violation of this chapter; 33 (3) Probable cause exists to believe that the property is directly or 34 indirectly dangerous to health or safety; or 35 (4) Probable cause exists to believe that the property was used or is 36 intended to be used in violation of this chapter. 37 (c) In the event of seizure pursuant to subsection (b) of this section, 38 proceedings under subsection (d) of this section shall be instituted promptly. 39 (1) When property is seized under this section, the director or the peace 40 officer who seized the property may: 41 (A) Place the property under seal; 42 (B) Remove the property to a place designated by it; or 43 (C) Take custody of the property and remove it to an appropriate 44 location for disposition in accordance with law. 45 (2) The peace officer who seized the property shall within five (5) days 46 notify the director of such seizure. 47 (3) In the event of seizure pursuant to subsection (b) of this section, 48 proceedings under subsection (d) of this section shall be instituted 49 within thirty (30) days by the director or appropriate prosecuting 50 attorney . 51 (d) Property taken or detained under this section shall not be subject to 52 replevin, but is deemed to be in the custody of the director, or appropriate 53 prosecuting attorney, subject only to the orders and decrees of the district 54 court, or magistrate's division thereof, having jurisdiction over the forfei- 55 ture proceedings. Forfeiture proceedings shall be civil actions against the 3 1 property subject to forfeiture and the standard of proof shall be preponder- 2 ance of the evidence. 3 (1) All property described in paragraphs (1), (7) and (8) of subsection 4 (a) hereof shall be deemed contraband and shall be summarily forfeited to 5 the state. Controlled substances which are seized or come into possession 6 of the state, the owners of which are unknown, shall be deemed contraband 7 and shall be summarily forfeited to the state. 8 (2) When property described in paragraphs (2), (3), (4), (5) and (6) of 9 subsection (a) hereof is seized pursuant to this section, forfeiture pro- 10 ceedings shall be filed in the office of the clerk of the district court 11 for the county wherein such property is seized. The procedure governing 12 such proceedings shall be the same as that prescribed for civil proceed- 13 ings by the Idaho Rules of Civil Procedure. The court shall order the 14 property forfeited to the director, or appropriate prosecuting attorney, 15 if he determines that such property was used, or intended for use, in 16 violation of this chapter, or, in the case of items described in paragraph 17 (6)(A) of subsection (a), was found in close proximity to property 18 described in paragraphs(1), (2), (3), (5), (7) or (8) of 19 subsection (a) of this section. 20 (3) When conveyances, including aircraft, vehicles, or vessels are seized 21 pursuant to this section a complaint instituting forfeiture proceedings 22 shall be filed in the office of the clerk of the district court for the 23 county wherein such conveyance is seized. 24 (A) Notice of forfeiture proceedings shall be given each owner or 25 party in interest who has a right, title, or interest which in the 26 case of a conveyance shall be determined by the record in the Idaho 27 transportation department or a similar department of another state if 28 the records are maintained in that state, by serving a copy of the 29 complaint and summons according to one (1) of the following methods: 30 (I) Upon each owner or party in interest by mailing a copy of 31 the complaint and summons by certified mail to the address as 32 given upon the records of the appropriate department. 33 (II) Upon each owner or party in interest whose name and 34 address is known, by mailing a copy of the notice by registered 35 mail to the last-known address. 36 (B) Within twenty (20) days after the mailing or publication of the 37 notice, the owner of the conveyance or claimant may file a verified 38 answer and claim to the property described in the complaint institut- 39 ing forfeiture proceedings. 40 (C) If at the end of twenty (20) days after the notice has been 41 mailed there is no verified answer on file, the court shall hear evi- 42 dence upon the fact of the unlawful use, or intent to use, and shall 43 order the property forfeited to the director, or appropriate prose- 44 cuting attorney, if such fact is proved. 45 (D) If a verified answer is filed, the forfeiture proceeding shall 46 be set for hearing before the court without a jury on a day not less 47 than thirty (30) days therefrom; and the proceeding shall have prior- 48 ity over other civil cases. 49 (I) At the hearing any owner who has a verified answer on file 50 may show by competent evidence that the conveyance was not used 51 or intended to be used in any manner described in subsection 52 (a)(4) of this section. 53 (II) At the hearing any owner who has a verified answer on file 54 may show by competent evidence that his interest in the convey- 55 ance is not subject to forfeiture because he could not have 4 1 known in the exercise of reasonable diligence that the convey- 2 ance was being used, had been used, was intended to be used or 3 had been intended to be used in any manner described in subsec- 4 tion (a)(4) of this section. 5 (III) If the court finds that the property was not used or was 6 not intended to be used in violation of this act, or is not sub- 7 ject to forfeiture under this act, the court shall order the 8 property released to the owner as his right, title, or interest 9 appears on records in the appropriate department as of the sei- 10 zure. 11 (IV) An owner, co-owner or claimant of any right, title, or 12 interest in the conveyance may prove that his right, title, or 13 interest, whether under a lien, mortgage, conditional sales con- 14 tract or otherwise, was created without any knowledge or reason 15 to believe that the conveyance was being used, had been used, 16 was intended to be used, or had been intended to be used for the 17 purpose alleged; 18 (i) In the event of such proof, the court shall order the 19 conveyance released to the bona fide or innocent owner, 20 purchaser, lienholder, mortgagee, or conditional sales 21 vendor. The court may order payment of all costs incurred 22 by the state or law enforcement agency as a result of such 23 seizure. 24 (ii) If the amount due to such person is less than the 25 value of the conveyance, the conveyance may be sold at pub- 26 lic auction by the director or appropriate prosecuting 27 attorney. The director, or appropriate prosecuting attor- 28 ney, shall publish a notice of the sale by at least one (1) 29 publication in a newspaper published and circulated in the 30 city, community or locality where the sale is to take place 31 at least one (1) week prior to sale of the conveyance. The 32 proceeds from such sale shall be distributed as follows in 33 the order indicated; 34 1. To the bona fide or innocent owner, purchaser, 35 conditional sales vendor, lienholder or mortgagee of 36 the conveyance, if any, up to the value of his inter- 37 est in the conveyance. 38 2. The balance, if any, in the following order: 39 A. To the director, or appropriate prosecuting 40 attorney, for all expenditures made or incurred 41 by it in connection with the sale, including 42 expenditure for any necessary repairs, storage, 43 or transportation of the conveyance, and for all 44 expenditures made or incurred by him in connec- 45 tion with the forfeiture proceedings including, 46 but not limited to, expenditures for witnesses' 47 fees, reporters' fees, transcripts, printing, 48 traveling and investigation. 49 B. To the law enforcement agency of this state 50 which seized the conveyance for all expenditures 51 for traveling, investigation, storage and other 52 expenses made or incurred after the seizure and 53 in connection with the forfeiture of any convey- 54 ance seized under this act. 55 C. The remainder, if any, to the director for 5 1 credit to the drug enforcement donation account 2 or to the appropriate prosecuting attorney for 3 credit to the local drug enforcement donation 4 account, or its equivalent. 5 (iii) In any case, the director, or appropriate prosecut- 6 ing attorney, may, within thirty (30) days after judgment, 7 pay the balance due to the bona fide lienholder, mortgagee 8 or conditional sales vendor and thereby purchase the con- 9 veyance for use to enforce this act. 10 (e) When property is forfeited under this section, or is received from a 11 federal enforcement agency, the director, or appropriate prosecuting attorney, 12 may: 13 (1) Retain it for official use; 14 (2) Sell that which is not required to be destroyed by law and which is 15 not harmful to the public. 16 The director, or appropriate prosecuting attorney, shall publish a notice of 17 the sale by at least one (1) publication in a newspaper published and circu- 18 lated in the city, community or locality where the sale is to take place at 19 least one (1) week prior to sale of the property. The proceeds from such sale 20 shall be distributed as follows in the order indicated: 21 (A) To the director, or prosecuting attorney on behalf of the county 22 or city law enforcement agency, for all expenditures made or incur- 23 red in connection with the sale, including expenditure for any neces- 24 sary repairs, maintenance, storage or transportation, and for all 25 expenditures made or incurred in connection with the forfeiture pro- 26 ceedings including, but not limited,to , 27 expenditures for witnesses' fees, reporters' fees, transcripts, 28 printing, traveling and investigation. 29 (B) To the law enforcement agency of this state which seized the 30 property for all expenditures for traveling, investigation, storage 31 and other expenses made or incurred after the seizure and in connec- 32 tion with the forfeiture of any property seized under this act. 33 (C) The remainder, if any, to the director for credit to the drug 34 enforcement donation account or to the appropriate prosecuting attor- 35 ney for credit to the local agency's drug enforcement donation 36 account. 37 (3) Take custody of the property and remove it for disposition in accor- 38 dance with law; or 39 (f) (1) The director or any peace officer of this state seizing any of 40 the property described in paragraphs (1) and (2) of subsection (a) of this 41 section shall cause a written inventory to be made and maintain custody of 42 the same until all legal actions have been exhausted unless such property 43 has been placed in lawful custody of a court or state or federal law 44 enforcement agency. After all legal actions have been exhausted with 45 respect to such property, the property shall be surrendered by the court, 46 law enforcement agency, or person having custody of the same to the direc- 47 tor to be destroyed pursuant to paragraph (2) hereof. The property shall 48 be accompanied with a written inventory on forms furnished by the direc- 49 tor. 50 (2) All property described in paragraphs (1) and (2) of subsection (a) 51 which is seized or surrendered under the provisions of this act may be 52 destroyed after all legal actions have been exhausted. The destruction 53 shall be done under the supervision of the supervisory drug analyst of the 54 department of law enforcement, a representative of the office of the 55 director and a representative of the state board of pharmacy. An official 6 1 record listing the property destroyed and the location of destruction 2 shall be kept on file at the office of the director. Except, however, that 3 the director of the department of law enforcement or his designee may 4 authorize the destruction of drug or nondrug evidence, or store those 5 items at government expense when, in the opinion of the director or his 6 designee, it is not reasonable to remove or transport such items from the 7 location of the seizure for destruction. In such case, a representative 8 sample will be removed and preserved for evidentiary purposes and, when 9 practicable, destroyed as otherwise is in accordance with this chapter. 10 On-site destruction of such items shall be witnessed by at least two (2) 11 persons, one (1) of whom shall be the director or his designee who shall 12 make a record of the destruction. 13 (g) Species of plants from which controlled substances in schedules I and 14 II may be derived which have been planted or cultivated in violation of this 15 act, or of which the owners or cultivators are unknown, or which are wild 16 growths, may be seized and summarily forfeited to the state. 17 (h) The failure, upon demand by the director, or his duly authorized 18 agent, of the person in occupancy or in control of land or premises upon which 19 the species of plants are growing or being stored, to produce an appropriate 20 registration, or proof that he is the holder thereof, constitutes authority 21 for the seizure and forfeiture of the plants. 22 (i) The director shall have the authority to enter upon any land or into 23 any dwelling pursuant to a search warrant, to cut, harvest, carry off or 24 destroy such plants described in subsection (g) hereof. 25 SECTION 2. An emergency existing therefor, which emergency is hereby 26 declared to exist, this act shall be in full force and effect on and after its 27 passage and approval.
STATEMENT OF PURPOSE
RS 08769
The purpose of this legislation is to clarify the authority of the
appropriate prosecuting attorney to institute proceedings to forfeit
seized property.
FISCAL NOTE
None.
CONTACT: Rep. Julie Ellsworth
322-1000
Jim Ball or Connie Vietz
Idaho Prosecuting Attorneys' Assoc.
364-2140
STATEMENT OF PURPOSE/ FISCAL NOTE Bill No. H 264