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Idaho Statutes
Idaho Statutes are updated to the website July 1 following the legislative session.
FOOD, DRUGS, AND OIL
CHAPTER 27
UNIFORM CONTROLLED SUBSTANCES
ARTICLE V
37-2744. Forfeitures. (a) The following are subject to forfeiture:
(1) All controlled substances that have been manufactured, distributed, dispensed, acquired, possessed or held in violation of this act or with respect to which there has been any act by any person in violation of this act;
(2) All raw materials, products and equipment of any kind that are used, or intended for use, in manufacturing, compounding, processing, delivering, importing, or exporting any controlled substances or counterfeit substances in violation of this act;
(3) All property that is used, or intended for use, as a container for property used in the commission of an act prohibited by section 37-2732B, 37-2732(a) or (b), or 37-2737A, Idaho Code;
(4) All conveyances, including aircraft, vehicles, or vessels, that are used, or intended for use, to transport, or in any manner to facilitate the transportation, delivery, receipt or manufacture of substances as prohibited by section 37-2732B, 37-2732(a) or (b), or 37-2737A, Idaho Code, but:
(A) No conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this act;
(B) No conveyance is subject to forfeiture under this section if the owner establishes that he could not have known in the exercise of reasonable diligence that the conveyance was being used, had been used, was intended to be used or had been intended to be used in any manner described in subsection (a)(4) of this section;
(C) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the security interest was created without any knowledge or reason to believe that the conveyance was being used, had been used, was intended to be used, or had been intended to be used for the purpose alleged.
(5) All books, records, and research products and materials, including formulas, microfilm, tapes, and data that are used, or intended for use, in violation of this act.
(6) (A) All moneys, currency, negotiable instruments, securities or other items easily liquidated for cash, such as, but not limited to, jewelry, stocks and bonds, or other property described in paragraphs (2) and (3) of this subsection that is found in close proximity to property described in paragraph (1), (2), (3), (5), (7) or (8) of this subsection and that has been used or is intended for use in connection with the illegal manufacture, distribution, dispensing or possession of property described in paragraph (1), (2), (3), (5), (7) or (8) of this subsection;
(B) Items described in subparagraph (A) of this paragraph or other things of value furnished or intended to be furnished by any person in exchange for a contraband controlled substance in violation of this chapter, all proceeds, including items of property traceable to such an exchange, and all moneys or other things of value used or intended to be used to facilitate any violation of this chapter, except that no property shall be forfeited under this paragraph 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 the knowledge or consent of that owner.
(7) All drug paraphernalia as defined by section 37-2701, Idaho Code.
(8) All simulated controlled substances, which are used or intended for use in violation of this chapter.
(9) All weapons, or firearms, which are used in any manner to facilitate a violation of the provisions of this chapter.
(b) Property subject to forfeiture under this chapter may be seized by the director, or any peace officer of this state, upon process issued by any district court, or magistrate division thereof, having jurisdiction over the property. Seizure without process may be made if:
(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal racketeering or civil forfeiture proceeding based upon a violation of this chapter;
(3) Probable cause exists to believe that the property is directly or indirectly dangerous to health or safety; or
(4) Probable cause exists to believe that the property was used or is intended to be used in violation of this chapter.
Mere presence or possession of United States currency, without other indicia of criminal activity, is insufficient cause for seizure.
(c) In the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section shall be instituted promptly.
(1) When property is seized under this section, the director or the peace officer who seized the property may:
(A) Place the property under seal;
(B) Remove the property to a place designated by him; or
(C) Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
(2) The peace officer who seized the property shall within five (5) days notify the director of such seizure.
(3) In the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section shall be instituted within thirty (30) days by the director or appropriate prosecuting attorney.
(d) Property taken or detained under this section may be subject to replevin during the pendency of the forfeiture proceedings upon a hearing and finding by the district court, or magistrate division thereof, having jurisdiction over the forfeiture proceedings, that the property is: (i) reasonably necessary for the owner’s employment or personal use, that the property will not be disposed of or used for criminal activity, and that reasonable security has been posted; or (ii) that the seizure violated the provisions of this section. The right of replevin shall terminate upon an order of forfeiture as set forth in this section. Property that is being held that has evidentiary value in the underlying criminal case shall not be subject to replevin. Forfeiture proceedings shall be civil actions against the property subject to forfeiture and the standard of proof shall be preponderance of the evidence.
(1) All property described in paragraphs (1), (7) and (8) of subsection (a) of this section shall be deemed contraband and shall be summarily forfeited to the state. Controlled substances that are seized or come into possession of the state, the owners of which are unknown, shall be deemed contraband and shall be summarily forfeited to the state.
(2) When property described in paragraphs (2), (3), (4), (5), (6) or (9) of subsection (a) of this section is seized pursuant to this section, forfeiture proceedings shall be filed in the office of the clerk of the district court for the county wherein such property is seized. The procedure governing such proceedings shall be the same as that prescribed for civil proceedings by the Idaho rules of civil procedure. The court shall determine whether such property was used, or intended for use, in violation of this chapter. The court shall also determine whether a property forfeiture is proportionate to the crime alleged, charged or proven. Factors to be considered by the court in making such a determination shall include, but are not limited to, the nature and severity of the crime, the fair market value of the property, the intangible or subjective value of the property, the hardship to the defendant, the effect of forfeiture on the defendant’s family or financial circumstances, and any other sanctions or penalties that have been imposed upon the defendant. The court may tailor the forfeiture of property according to its determination of proportionality as justice requires.
(3) When conveyances, including aircraft, vehicles, or vessels, are seized pursuant to this section, a complaint instituting forfeiture proceedings shall be filed in the office of the clerk of the district court for the county wherein such conveyance is seized.
(A) Notice of forfeiture proceedings shall be given to each owner or party in interest who has a right, title, or interest which in the case of a conveyance shall be determined by the record in the Idaho transportation department, or a similar department of another state if the records are maintained in that state, by serving a copy of the complaint and summons according to one (1) of the following methods:
(I) Upon each owner or party in interest by mailing a copy of the complaint and summons by certified mail to the address as given upon the records of the appropriate department.
(II) Upon each owner or party in interest whose name and address is known, by mailing a copy of the notice by registered mail to the last known address.
(B) Within twenty (20) days after the mailing or publication of the notice, the owner of the conveyance or claimant may file a verified answer and claim to the property described in the complaint instituting forfeiture proceedings.
(C) If at the end of twenty (20) days after the notice has been mailed there is no verified answer on file, the court shall hear evidence upon the fact of the unlawful use, or intent to use, and shall order the property forfeited to the director, or appropriate prosecuting attorney, if such fact is proved.
(D) If a verified answer is filed, the forfeiture proceeding shall be set for hearing before the court without a jury on a day not less than thirty (30) days therefrom; and the proceeding shall have priority over other civil cases.
(I) At the hearing any owner who has a verified answer on file may show by competent evidence that the conveyance was not used or intended to be used in any manner described in subsection (a)(4) of this section.
(II) At the hearing any owner who has a verified answer on file may show by competent evidence that his interest in the conveyance is not subject to forfeiture because he did not know that the conveyance was being used, had been used, was intended to be used or had been intended to be used in any manner described in subsection (a)(4) of this section.
(III) If the court finds that the property was not used or was not intended to be used in violation of this act, or is not subject to forfeiture under this act, the court shall order the property released to the owner as his right, title, or interest appears on records in the appropriate department as of the seizure.
(IV) An owner, co-owner or claimant of any right, title, or interest in the conveyance may prove that his right, title, or interest, whether under a lien, mortgage, conditional sales contract or otherwise, was created without any knowledge or reason to believe that the conveyance was being used, had been used, was intended to be used, or had been intended to be used for the purpose alleged;
(i) In the event of such proof, the court shall order the conveyance released to the bona fide or innocent owner, purchaser, lienholder, mortgagee, or conditional sales vendor.
(ii) If the amount due to such person is less than the value of the conveyance, the conveyance may be sold at public auction by the director or appropriate prosecuting attorney. The director, or appropriate prosecuting attorney, shall publish a notice of the sale by at least one (1) publication in a newspaper published and circulated in the city, community or locality where the sale is to take place at least one (1) week prior to sale of the conveyance. The proceeds from such sale shall be distributed as follows in the order indicated:
1. To the bona fide or innocent owner, purchaser, conditional sales vendor, lienholder or mortgagee of the conveyance, if any, up to the value of his interest in the conveyance.
2. The balance, if any, in the following order:
A. To the director, or appropriate prosecuting attorney, for all expenditures made or incurred by him in connection with the sale, including expenditure for any necessary repairs, storage, or transportation of the conveyance, and for all expenditures made or incurred by him in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, traveling and investigation.
B. To the law enforcement agency of this state which seized the conveyance for all expenditures for traveling, investigation, storage and other expenses made or incurred after the seizure and in connection with the forfeiture of any conveyance seized under this act.
C. The remainder, if any, to the director for credit to the drug and driving while under the influence enforcement donation fund or to the appropriate prosecuting attorney for credit to the local drug enforcement donation fund, or its equivalent.
(iii) In any case, the director, or appropriate prosecuting attorney, may, within thirty (30) days after judgment, pay the balance due to the bona fide lienholder, mortgagee or conditional sales vendor and thereby purchase the conveyance for use to enforce this act.
(e) When property is forfeited under this section, or is received from a federal enforcement agency, the director, or appropriate prosecuting attorney, may:
(1) Upon a showing that the property as set forth in this section is suited for and likely to be used for law enforcement activities, the plaintiff or law enforcement agency may, with judicial approval, retain it for official use;
(2) Sell that which is not required to be destroyed by law and which is not harmful to the public.
The director, or appropriate prosecuting attorney, shall publish a notice of the sale by at least one (1) publication in a newspaper published and circulated in the city, community or locality where the sale is to take place at least one (1) week prior to sale of the property. The proceeds from such sale shall be distributed as follows in the order indicated:
(A) To the director, or prosecuting attorney on behalf of the county or city law enforcement agency, for all expenditures made or incurred in connection with the sale, including expenditure for any necessary repairs, maintenance, storage or transportation, and for all expenditures made or incurred in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, traveling and investigation.
(B) To the law enforcement agency of this state which seized the property for all expenditures for traveling, investigation, storage and other expenses made or incurred after the seizure and in connection with the forfeiture of any property seized under this act.
(C) The remainder, if any, to the director for credit to the drug and driving while under the influence enforcement donation fund or to the appropriate prosecuting attorney for credit to the local agency’s drug enforcement donation fund; or
(3) Take custody of the property and remove it for disposition in accordance with law.
(f) (1) The director or any peace officer of this state seizing any of the property described in paragraphs (1) and (2) of subsection (a) of this section shall cause a written inventory to be made and maintain custody of the same until all legal actions have been exhausted unless such property has been placed in lawful custody of a court or state or federal law enforcement agency. After all legal actions have been exhausted with respect to such property, the property shall be surrendered by the court, law enforcement agency, or person having custody of the same to the director to be destroyed pursuant to paragraph (2) of this subsection. The property shall be accompanied with a written inventory on forms furnished by the director.
(2) All property described in paragraphs (1) and (2) of subsection (a) of this section that is seized or surrendered under the provisions of this act may be destroyed after all legal actions have been exhausted. The destruction shall be done under the supervision of the Idaho state police by a representative of the office of the director. An official record listing the property destroyed and the location of destruction shall be kept on file at the office of the director. Except, however, that the director of the Idaho state police or his designee may authorize the destruction of drug or nondrug evidence, or store those items at government expense when, in the opinion of the director or his designee, it is not reasonable to remove or transport such items from the location of the seizure for destruction. In such case, a representative sample will be removed and preserved for evidentiary purposes and, when practicable, destroyed as otherwise is in accordance with this chapter. On-site destruction of such items shall be witnessed by at least two (2) persons, one (1) of whom shall be the director or his designee who shall make a record of the destruction.
(g) Species of plants from which controlled substances in schedules I and II may be derived that have been planted or cultivated in violation of this act, or of which the owners or cultivators are unknown, or that are wild growths, may be seized and summarily forfeited to the state.
(h) The failure, upon demand by the director, or his duly authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
(i) The director shall have the authority to enter upon any land or into any dwelling pursuant to a search warrant, to cut, harvest, carry off or destroy such plants described in subsection (g) of this section.
(j) On or before March 31, 2019, and by March 31 of each year thereafter, each state or local law enforcement agency in this state that has seized or forfeited property pursuant to this section shall retain the following information from the previous calendar year:
(1) Name of the law enforcement agency that seized the property;
(2) Date of seizure;
(3) Type and description of property seized, including make, model, year, and serial number, if applicable;
(4) Crime, if any, for which the suspect has been charged, including whether such crime is a violation of state or federal law;
(5) Criminal case number, if any;
(6) Outcome, if any, of suspect’s case;
(7) If forfeiture was not processed under state law, the reason for the federal transfer, if known;
(8) Forfeiture case number;
(9) Date of forfeiture decision;
(10) Whether there was a forfeiture settlement agreement;
(11) Date and outcome of property disposition as described by one (1) of the following: returned to owner, partially returned to owner, sold, destroyed, or retained by law enforcement; and
(12) Value of the property forfeited based on the value realized, if sold, or a reasonable good faith estimate of the value, if possible.
Local law enforcement agencies shall submit the information required by this subsection to the county prosecutor for its jurisdiction on a form as promulgated in rule by the Idaho state police, and such prosecutor shall retain the form for a period of seven (7) years.
History:
[37-2744, added 1971, ch. 215, sec. 1, p. 939; am. 1972, ch. 133, sec. 11, p. 261; am. 1972, ch. 409, sec. 4, p. 1195; am. 1974, ch. 27, sec. 82, p. 811; am. 1980, ch. 388, sec. 4, p. 983; am. 1982, ch. 265, sec. 1, p. 680; am. 1983, ch. 218, sec. 3, p. 607; am. 1986, ch. 286, sec. 2, p. 712; am. 1988, ch. 47, sec. 3, p. 58; am. 1990, ch. 239, sec. 1, p. 676; am. 1990, ch. 312, sec. 1, p. 852; am. 1992, ch. 174, sec. 1, p. 546; am. 1994, ch. 285, sec. 1, p. 894; am. 1994, ch. 286, sec. 1, p. 900; am. 1999, ch. 218, sec. 1, p. 578; am. 2000, ch. 469, sec. 89, p. 1538; am. 2009, ch. 108, sec. 5, p. 350; am. 2014, ch. 78, sec. 1, p. 205; am. 2018, ch. 221, sec. 1, p. 494; am. 2020, ch. 14, sec. 2, p. 36.]