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H0170...................................by JUDICIARY, RULES AND ADMINISTRATION
FORFEITURES - Amends existing law to provide for certain proceeds of seized
personal and real property to be remitted to the District Court Fund for use
in drug courts.
02/06 House intro - 1st rdg - to printing
02/07 Rpt prt - to Jud
|||| LEGISLATURE OF THE STATE OF IDAHO ||||
Fifty-seventh Legislature First Regular Session - 2003
IN THE HOUSE OF REPRESENTATIVES
HOUSE BILL NO. 170
BY JUDICIARY, RULES AND ADMINISTRATION COMMITTEE
1 AN ACT
2 RELATING TO ILLEGAL DRUG FORFEITURES; AMENDING SECTION 37-2807, IDAHO CODE, TO
3 PROVIDE FOR CERTAIN PROCEEDS OF SEIZED PERSONAL PROPERTY TO BE REMITTED TO
4 THE DISTRICT COURT FUND FOR USE IN DRUG COURTS; AMENDING SECTION 37-2808,
5 IDAHO CODE, TO PROVIDE FOR CERTAIN PROCEEDS OF SEIZED REAL PROPERTY TO BE
6 REMITTED TO THE DISTRICT COURT FUND FOR USE IN DRUG COURTS; AND AMENDING
7 SECTION 31-3201E, IDAHO CODE, TO PROVIDE THAT A DRUG COURT FUND MAY
8 RECEIVE AND EXPEND MONEYS FROM ASSET FORFEITURES IN ILLEGAL DRUG CASES.
9 Be It Enacted by the Legislature of the State of Idaho:
10 SECTION 1. That Section 37-2807, Idaho Code, be, and the same is hereby
11 amended to read as follows:
12 37-2807. PERSONAL PROPERTY -- RIGHTS OF THIRD PARTIES. (1) Within five
13 (5) days of any of the events specified in section 37-2806, Idaho Code,
14 notice, including a copy of the request for forfeiture, shall be given to each
15 co-owner or party in interest who has or claims any right, title or interest
16 in any of such personal property according to one (1) of the following meth-
17 ods:
18 (a) Upon each co-owner of or party in interest in a titled motor vehicle,
19 aircraft or other conveyance, by mailing notice by certified mail to the
20 address of each co-owner and party in interest as given upon the records
21 of the appropriate department of state or federal government where records
22 relating to such conveyances are maintained.
23 (b) Upon each secured party and assignee designated as such in any UCC-1
24 financing statement on file in an appropriate filing office covering any
25 personal property sought to be forfeited, by mailing notice by certified
26 mail to the secured party and the assignee, if any, at their respective
27 addresses as shown on such financing statement.
28 (c) Upon each co-owner or party in interest whose name and address is
29 known, by mailing notice by registered mail to the last-known address of
30 such person.
31 (2) Within twenty (20) days after the mailing of the notice, the co-owner
32 or party in interest may file a verified answer and claim to the property
33 described in the notice.
34 (3) If a verified answer is filed within twenty (20) days after mailing
35 of the notice, the forfeiture proceeding against all co-owners and parties in
36 interest who have filed verified answers shall be set for hearing before the
37 court without a jury on a day not less than sixty (60) days after the mailing
38 of the notice; and the proceeding shall have priority over other civil cases.
39 (a) At the hearing, any co-owner or party in interest who has a verified
40 answer on file may show by competent evidence that his interest in the
41 titled motor vehicle, aircraft or other conveyance is not subject to for-
42 feiture because he could not have known in the exercise of reasonable
43 diligence that the titled motor vehicle, aircraft or other conveyance was
2
1 being used, had been used or was intended to be used for the purposes
2 described in section 37-2801, Idaho Code.
3 (b) A co-owner, or claimant of any right, title, or interest in the prop-
4 erty may prove that his right, title or interest, whether under a lien,
5 mortgage, security agreement, conditional sales contract or otherwise, was
6 created without any knowledge or reason to believe that the property was
7 being used, had been used or was intended to be used for the purpose
8 alleged;
9 (i) In the event of such proof, the court shall order that portion
10 of the property or interest released to the bona fide or innocent co-
11 owner, purchaser, lienholder, mortgagee, secured party or conditional
12 sales vendor.
13 (ii) If the amount due to such person is less than the value of the
14 property, the property may be sold at public auction or in another
15 commercially reasonable method by the attorney general or appropriate
16 prosecuting attorney. If sold at public auction, the attorney gen-
17 eral, or appropriate prosecuting attorney, shall publish a notice of
18 the sale by at least one (1) publication in a newspaper published and
19 circulated in the city, community or locality where the sale is to
20 take place at least one (1) week prior to sale of the property. The
21 proceeds from such sale shall be distributed as follows in the order
22 indicated:
23 1. To the bona fide or innocent co-owner, purchaser, condi-
24 tional sales vendor, lienholder, mortgagee or secured party of
25 the property, if any, up to the value of his interest in the
26 property.
27 2. The balance, if any, in the following order:
28 (A) To the attorney general or appropriate prosecuting
29 attorney, for all expenditures made or incurred by them in
30 connection with the sale, including expenditure for any
31 necessary repairs, storage or transportation of the prop-
32 erty, and for all expenditures made or incurred by him in
33 connection with the forfeiture proceedings including, but
34 not limited to, expenditures for witnesses' fees,
35 reporters' fees, transcripts, printing, traveling and
36 investigation.
37 (B) To the law enforcement agency of this state which
38 seized the property for all expenditures for traveling,
39 investigation, storage and other expenses made or incurred
40 after the seizure and in connection with the forfeiture of
41 any property seized under this chapter.
42 (C) The remainder, if any, as follows:
43 a. Fifty percent (50%) of the proceeds to the dis-
44 trict court fund for use in establishing or adminis-
45 tering drug courts in the judicial district where the
46 property was seized.
47 b. Fifty percent (50%) of the proceeds to the direc-
48 tor of the Idaho state police for credit to the drug
49 enforcement donation fund created in section 57-816,
50 Idaho Code, or to the appropriate prosecuting attorney
51 for credit to the local drug enforcement donation
52 fund, or its equivalent.
53 3. Notwithstanding any other provision of this section, upon
54 being satisfied that the interest of a co-owner or claimant
55 should not be subject to forfeiture because they neither knew
3
1 nor should have known that the personal property was being used
2 or had been used for the purposes alleged, or that due to preex-
3 isting security interests in such property there is no equity
4 which may be forfeited, the attorney general or appropriate
5 prosecuting attorney may release the property to the co-owner,
6 holder of the security interest, or other claimant.
7 4. In any case, the attorney general, or appropriate prosecut-
8 ing attorney, may, within thirty (30) days after order of for-
9 feiture, pay the balance due to the bona fide lienholder, mort-
10 gagee, secured party or conditional sales vendor and thereby
11 purchase the property for use to enforce this chapter.
12 SECTION 2. That Section 37-2808, Idaho Code, be, and the same is hereby
13 amended to read as follows:
14 37-2808. REAL PROPERTY -- RIGHTS OF THIRD PARTIES. (1) Real property sub-
15 ject to forfeiture under the provisions of this chapter may be seized by the
16 attorney general or appropriate prosecuting attorney upon determining that a
17 parcel of property is subject to forfeiture, by filing a notice of seizure
18 with the recorder of the county in which the property or any part thereof is
19 situated. The notice must contain a legal description of the property sought
20 to be forfeited; provided however, that in the event the property sought to be
21 forfeited is part of a greater parcel, the attorney general or appropriate
22 prosecuting attorney may, for the purposes of this notice, use the legal
23 description of the greater parcel. The attorney general or appropriate prose-
24 cuting attorney shall also send by certified mail a copy of the notice of sei-
25 zure to any persons holding a recorded interest or of whose interest the
26 attorney general or appropriate prosecuting attorney has actual knowledge. The
27 attorney general or appropriate prosecuting attorney shall post a similar copy
28 of the notice conspicuously upon the property and publish a copy thereof once
29 a week for three (3) consecutive weeks immediately following the seizure in a
30 newspaper published in the county. The co-owner or party in lawful possession
31 of the property sought to be forfeited may retain possession and use thereof
32 and may collect and keep income from the property while the forfeiture pro-
33 ceedings are pending.
34 (2) In the event of a seizure pursuant to subsection (1) of this section,
35 a request for forfeiture shall be filed with the trial court within the time
36 limit imposed by section 37-2804, Idaho Code. The request shall be served in
37 the same manner as complaints subject to the Idaho rules of civil procedure on
38 all persons having an interest in the real property sought to be forfeited.
39 (3) Notwithstanding any other provision of this section, upon being sat-
40 isfied that the interest of a co-owner or claimant should not be subject to
41 forfeiture because they neither knew nor should have known that the real prop-
42 erty was being used or had been used for the purposes alleged, or that due to
43 preexisting security interests in such property there is no equity which may
44 be forfeited, the attorney general or appropriate prosecuting attorney may
45 release the property to the co-owner, holder of the security interest, or
46 other claimant.
47 (4) Within twenty (20) days of the mailing of the notice, the co-owner or
48 party in interest may file a verified answer and claim to the property
49 described in the notice.
50 (5) If a verified answer is filed within twenty (20) days after mailing
51 of the notice, the forfeiture proceeding against all co-owners and parties in
52 interest who have filed verified answers shall be set for hearing before the
53 court without a jury on a day not less than sixty (60) days after the mailing
4
1 of the notice; and the proceeding shall have priority over other civil cases.
2 (a) A co-owner, or claimant of any right, title or interest in the real
3 property sought to be forfeited may prove that his right, title or inter-
4 est, whether under a lien, mortgage, deed of trust or otherwise, was cre-
5 ated without any knowledge or reason to believe that the real property was
6 being used or had been used for the purposes alleged;
7 (b) Any co-owner who has a verified answer on file may show by competent
8 evidence that his interest in the property sought to be forfeited is not
9 subject to forfeiture because he could not have known in the exercise of
10 reasonable diligence that the real property was being used, or had been
11 used in any manner in violation of the provisions of section 37-2801,
12 Idaho Code.
13 (6) In the event of such proof, the court shall order the release of the
14 interest of the co-owner, purchaser, lienholder, mortgagee or beneficiary.
15 (a) If the amount due to such person is less than the value of the real
16 property, the real property may be sold in a commercially reasonable man-
17 ner by the attorney general or appropriate prosecuting attorney. The pro-
18 ceeds from such sale shall be distributed as follows in the order indi-
19 cated:
20 (i) To the innocent co-owner, purchaser, mortgagee or beneficiary of
21 the real property, if any, up to the value of his interest in the
22 real property.
23 (ii) The balance, if any, in the following order:
24 1. To the attorney general or appropriate prosecuting attorney
25 for all expenditures made or incurred in connection with the
26 sale, including expenditure for any necessary repairs or mainte-
27 nance of the real property, and for all expenditures made or
28 incurred in connection with the forfeiture proceedings includ-
29 ing, but not limited to, expenditures for witnesses' fees,
30 reporters' fees, transcripts, printing, travel, investigation,
31 title company fees and insurance premiums.
32 2. The remainder, if any, as follows:
33 (A) Fifty percent (50%) of the proceeds to the district
34 court fund for use in establishing or administering drug
35 courts in the judicial district where the property was
36 seized.
37 (B) Fifty percent (50%) of the proceeds to the director of
38 the Idaho state police for credit to the drug enforcement
39 donation fund created in section 57-816, Idaho Code.
40 (b) In any case, the attorney general or appropriate prosecuting attorney
41 may, within thirty (30) days after the order of forfeiture, pay the bal-
42 ance due to the innocent co-owner, purchaser, lienholder, mortgagee or
43 beneficiary and thereby purchase the real property for use in the enforce-
44 ment of this chapter.
45 SECTION 3. That Section 31-3201E, Idaho Code, be, and the same is hereby
46 amended to read as follows:
47 31-3201E. PARTICIPANT FEES -- DRUG COURT FUND. Each person admitted into
48 a drug court shall pay a drug court fee in an amount not to exceed three hun-
49 dred dollars ($300) per month or lesser amount as set by the administrative
50 district judge for participants in the drug court. For good cause, the judge
51 presiding over a drug court may exempt a participant from paying all or a por-
52 tion of the drug court fee. The fee imposed under this section shall be paid
53 to the clerk of the district court for deposit into the county drug court fund
5
1 which is hereby created in each county which has a drug court. Additionally, a
2 drug court fund may receive and expend moneys remitted to it by the district
3 court funds from proceeds pursuant to section 37-2807 or 37-2808, Idaho Code.
4 Moneys in this fund may be accumulated from year to year and shall be expended
5 exclusively for expenses incurred in connection with the drug court including,
6 but not limited to, substance abuse treatment, drug testing and supervision.
STATEMENT OF PURPOSE
RS 12764
The purpose of this legislation is to provide funding for drug
court purposes from asset forfeitures in drug cases. The
legislation, if enacted, would provide fifty percent of the
proceeds from the sale of personal or real property used in
illegal drug activities to the district court fund in the
judicial district where the real or personal property was seized.
FISCAL IMPACT
it is intended that there be some positive fiscal impact for drug
courts in the state, although it is unknown how much money would
be raised. This amount will be determined by the value and
location of property seized during drug arrests. Currently, when
there is a forfeiture of property, the money earmarked for drug
courts is remitted to the Drug Enforcement Donation Fund or a
local drug enforcement donation fund. Therefore, those funds
would be impacted positively, although the impact is expected to
be slight.
Contact
Name: Rep. John Campbell
Phone: 332-1072
STATEMENT OF PURPOSE/FISCAL NOTE H 170