2003 Legislation
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HOUSE BILL NO. 170 – Forfeitures, proceeds, use

HOUSE BILL NO. 170

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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

Bill Text


                                                                        
                                                                        
  ||||              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 / Fiscal Impact


                      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