2015 -- H 5631

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LC001467

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2015

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A N   A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

     

     Introduced By: Representatives Newberry, Filippi, Regunberg, Slater, and Blazejewski

     Date Introduced: February 25, 2015

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 21-28-5.04.2 of the General Laws in Chapter 21-28 entitled

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"Uniform Controlled Substances Act" is hereby amended to read as follows:

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     21-28-5.04.2. Civil forfeiture procedure. -- (a) In addition to or in lieu of the criminal

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forfeiture procedures of this chapter, any property described in § 21-28-5.04 except as designated

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in subsection (b) of this section, is subject to civil forfeiture to the state. Civil forfeiture

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proceedings shall be in the nature of an action in rem and shall be governed by the civil rules for

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in rem proceedings.

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      (b) All property described in § 21-28-5.04 is subject to civil forfeiture except that:

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      (1) No conveyances used by any person as a common carrier in the transaction of

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business as a common carrier shall be forfeited under the provisions of this section unless it

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appears that the owner or other person in charge of the conveyance was a consenting party or

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privy to the covered offense charged;

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      (2) No conveyance shall be forfeited under the provisions of this section by reason of

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any act or omission established by the owner of it to have been committed or omitted by any

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person other than the owner while the conveyance was unlawfully in the possession of a person

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other than the owner in violation of the criminal laws of this state or of the United States; and

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      (3) No property shall be forfeited under this section, to the extent of the interest of an

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owner, by reason of any act or omission established by that owner to have been committed or

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omitted without knowledge or consent of that owner.

 

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      (c) Property subject to forfeiture under this section may be seized by a law enforcement

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officer:

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      (1) Upon process issued pursuant to the Rules of Civil Procedure applicable to in rem

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proceedings;

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      (2) Upon process issued pursuant to a legally authorized search warrant; or

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      (3) Without court process when:

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      (i) The seizure is incident to a lawful arrest or search;

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      (ii) The property subject to seizure has been the subject of a prior judgment in favor of

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the state in a controlled substance act;

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      (iii) The law enforcement officer has probable cause to believe that the property is

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directly or indirectly dangerous to health or safety; or

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      (iv) The law enforcement officer has probable cause to believe that the property is

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forfeitable under § 21-28-5.04. Another exception to the warrant requirements of the United

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States Constitution or the Rhode Island Constitution would apply.

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      (d) In the event of a seizure under § 21-28-5.04 the property shall not be subject to

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sequestration or attachment but is deemed to be in the custody of the law enforcement agency

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making the seizure, subject only to the order of the court. When property is seized under this

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section, pending forfeiture and final disposition, the law enforcement agency making the seizure

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may:

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      (1) Place the property under seal;

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      (2) Remove the property to a storage area for safekeeping;

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      (3) Remove the property to a place designated by the court; or

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      (4) Request another agency authorized by law to take custody of the property and

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remove it to an appropriate location within the jurisdiction of the court.

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      (e) As soon as practicable after seizure, the seizing agency shall conduct an inventory

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upon and cause the appraisal of the property seized.

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      (f) In the event of a seizure under this section, the seizing agency shall within thirty (30)

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days send to the attorney general a written request for forfeiture, which shall include a statement

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of all facts and circumstances including the names of all witnesses then known, the appraised

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value of the property and the statutory provision relied upon for forfeiture.

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      (g) The attorney general shall immediately examine the facts and applicable law of the

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cases referred to him or her pursuant to this section, and if it is probable that the property is

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subject to forfeiture shall immediately cause the initiation of administrative or judicial

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proceedings against the property. If, upon inquiry and examination, the attorney general

 

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determines that those proceedings probably cannot be sustained or that justice does not require

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the institution of the proceedings, he or she shall make a written report of those findings, transmit

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a copy to the seizing agency, and immediately authorize the release of the property.

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      (h) If the value of any personal property seized does not exceed twenty thousand dollars

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($20,000), the attorney general may forfeit the property administratively in the following manner:

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      (1) The attorney general shall provide notice of intention to forfeit property

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administratively by publication in a local newspaper of general circulation, one day per week for

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three (3) consecutive weeks.

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      (2) In addition, to the extent practicable, the attorney general shall provide notice by

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registered mail of intent to forfeit the property administratively to all known interested parties and

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all parties whose identity is reasonably subject to discovery who may have an interest in the

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property seized.

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      (3) Notice by publication and by mail shall include:

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      (i) A description of the property;

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      (ii) The appraised value of the property;

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      (iii) The date and place of seizure;

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      (iv) The violation of law alleged against the subject property;

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      (v) The instructions for filing claim and cost bond or a petition for remission or

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mitigation; and

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      (vi) A notice that the property will be forfeited to the state if a petition for remission or

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mitigation or a claim and cost bond has not been timely filed.

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      (4) Persons claiming an interest in the property may file petitions for remission or

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mitigation of forfeiture or a claim and cost bond with the attorney general within thirty (30) days

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of the final notice by publication or receipt of written notice, whichever is earlier.

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      (5) The attorney general shall inquire into the facts and circumstances surrounding

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petitions for remission or mitigation of forfeiture.

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      (6) The attorney general shall provide the seizing agency and the petitioner a written

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decision on each petition for remission or mitigation within sixty (60) days of receipt of the

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petition unless the circumstances of the case require additional time, in which case the attorney

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general shall notify the petitioner in writing and with specificity within the sixty (60) day period

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that the circumstances of the case require additional time and further notify the petitioner of the

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expected decision date.

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      (7) Any person claiming seized property under this subsection may institute de novo

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judicial review of the seizure and proposed forfeiture by timely filing with the attorney general a

 

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claim and bond to the state in the amount of ten percent (10%) of the appraised value of the

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property or in the penal sum of two hundred fifty dollars ($250), whichever is greater, with

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sureties to be approved by the attorney general, upon condition that in the case of forfeiture the

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claimant shall pay all costs and expenses of the proceedings at the discretion of the court. Upon

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receipt of the claim and bond, or if he or she elects, the attorney general shall file with the court a

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complaint in rem in accordance with the procedures set forth in this section. Any funds received

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by the attorney general as cost bonds shall be placed in an escrow account pending final

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disposition of the case.

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      (8) If no petitions or claims with bonds are timely filed, the attorney general shall

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prepare a written declaration of forfeiture of the subject property to the state and dispose of the

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property in accordance with this chapter.

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      (9) If the petition is denied, the attorney general shall prepare a written declaration of

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forfeiture to the state and dispose of the property in accordance with this chapter and the attorney

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general's regulations, if any, pursuant to this chapter.

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      (10) A written declaration of forfeiture signed by the attorney general pursuant to this

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chapter shall be deemed to provide good and sufficient title to the forfeited property.

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      (i) If the value of any personal property seized exceeds twenty thousand dollars

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($20,000), the attorney general shall file a complaint in rem against the property within twenty

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(20) days of the receipt of the report referred to in subsection (f) of this section and after this

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provide notice of intention to forfeit by publication in a local newspaper of general circulation for

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a period of at least once per week for three (3) consecutive weeks. The notice shall include:

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      (1) A description of the property;

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      (2) The appraised value of the property;

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      (3) The date and place of seizure;

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      (4) The violation of law alleged against the subject property.

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      (j) (1) The case may be tried by a jury, if in the superior court, upon the request of either

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party, otherwise by the court, and the cause of forfeiture alleged being proved, the court which

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shall try the case shall enter upon judgment for the forfeiture and disposition of the property

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according to law.

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      (2) An appeal may be claimed by either party from any judgment of forfeiture rendered

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by the district court, to be taken in like manner as by defendants in criminal cases within the

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jurisdiction of the district court to try and determine, to the superior court for the same county in

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which the division of the district court rendering judgment is situated and like proceedings may

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be had therein as in cases of informations for forfeitures originally filed in that court.

 

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      (3) The judgment of the superior court shall be final in all cases of the forfeitures,

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whether originally commenced in that court or brought there by appeal, unless a new trial is

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ordered, for cause shown by the supreme court.

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      (k) The in rem action shall be brought in the district court if the value of the property

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seized is less than two hundred fifty thousand dollars ($250,000), otherwise the in rem action

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shall be brought in the superior court. The attorney general shall also, to the extent practicable,

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provide written notice of the action in rem to all known interested parties and all persons whose

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identity is reasonably subject to discovery who may have an interest in the property.

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      (l) Persons claiming an interest in the property may file claims against the property

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within thirty (30) days of the final notice by publication or receipt of written notice, whichever is

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earlier. The claims shall be filed and adjudicated in the manner set forth for petitions in criminal

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proceedings in § 21-28-5.04.1(f).

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      (m) If the property sought to be forfeited is real property, the attorney general shall file a

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complaint in rem in the superior court against the property. In addition to providing notice as

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required by this chapter, the attorney general shall file a lis pendens with respect to the property

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with the recorder of deeds in the city or town in which the property is located.

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      (n) Upon order of the court forfeiting the subject property to the state, the state shall have

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clear title to the forfeited property, and the attorney general may transfer good and sufficient title

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to any subsequent purchaser or transferee. Title to the forfeited property shall be deemed to have

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vested in the state upon the commission of the act giving rise to the forfeiture under this chapter.

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      (o) Upon entry of judgment for the claimant in any proceeding to forfeit property under

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this chapter, the property shall immediately be returned to the claimant. If it appears that there

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was reasonable cause for the seizure or the filing of the complaint, the court shall cause a proper

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certificate of that to be entered, and the claimant shall not, in that case, be entitled to costs or

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damages, nor shall the person or agency who made the seizure, nor the attorney general nor the

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prosecutor, be liable to suit or judgment on account of the seizure, suit, or prosecution.

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      (p) In any action brought under this section, the state shall have the initial burden of

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showing the existence of probable cause for seizure or arrest of the property. Upon that showing

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by the state, the claimant shall have the burden of showing , and the burden of establishing by a

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preponderance of evidence that the property was not subject to forfeiture under this section.

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     (q) A petitioner may seek a court determination as to whether the forfeiture is

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disproportionately excessive to the gravity of the offense giving rise to the forfeiture. If the court

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finds that the forfeiture is grossly disproportional to the offense, it shall reduce or eliminate the

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forfeiture as it deems appropriate in the interests of justice.

 

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     (r) Any proceedings under this chapter shall be deemed "adjudicative proceedings" for

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the purposes of chapter 92 of title 42, equal access to justice for small businesses and individuals.

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     SECTION 2. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT

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     This act would eliminate the bond requirements in civil forfeiture cases, and would allow

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a petitioner to request that the court determine if a forfeiture is disproportionately excessive, and

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may be reduced or eliminated as it deems appropriate.

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     This act would take effect upon passage.

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