Print Friendly HOUSE BILL NO. 264 – Property/forfeit/prosecuting atty
HOUSE BILL NO. 264
View Daily Data Tracking History
View Bill Text
View Statement of Purpose / Fiscal Impact
Text to be added within a bill has been marked with Bold and
Underline. Text to be removed has been marked with
Strikethrough and Italic. How these codes are actually displayed will
vary based on the browser software you are using.
This sentence is marked with bold and underline to show added text.
This sentence is marked with strikethrough and italic, indicating
text to be removed.
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
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,
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
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
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-fifth Legislature First Regular Session - 1999
IN 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
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
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 paragraph s (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 paragraph s (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
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 paragraph s (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
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-
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
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
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,
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
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-
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
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
The purpose of this legislation is to clarify the authority of the
appropriate prosecuting attorney to institute proceedings to forfeit
CONTACT: Rep. Julie Ellsworth
Jim Ball or Connie Vietz
Idaho Prosecuting Attorneys' Assoc.
STATEMENT OF PURPOSE/ FISCAL NOTE Bill No. H 264