2022 -- H 7410

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LC003189

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2022

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A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- PROCEDURE GENERALLY --

EVIDENCE

     

     Introduced By: Representatives Craven, Casimiro, and McEntee

     Date Introduced: February 09, 2022

     Referred To: House Judiciary

     It is enacted by the General Assembly as follows:

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     SECTION 1. Section 9-19-25 of the General Laws in Chapter 9-19 entitled "Evidence" is

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hereby amended to read as follows:

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     9-19-25. Illegally seized evidence inadmissible.

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     In the trial of any action in any court of this state, or in any civil or administrative hearing

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brought by the state or any agency thereof or any subdivision thereof, no evidence shall be

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admissible where the evidence shall have been procured by, through, or in consequence of any

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illegal search and seizure as prohibited in § 6 of article 1 of the constitution of the state of Rhode

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Island.

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     SECTION 2. Section 20-1-8, 20-1-8.1 and 20-1-16 of the General Laws in Chapter 20-1

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entitled "General Provisions" are hereby amended to read as follows:

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     20-1-8. Enforcement powers of director and conservation officers.

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     (a) The director and each conservation officer shall have the power:

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     (1) To enforce all laws, rules, and regulations of this state pertaining to:

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     (i) Fish, wildlife, and all vertebrates, invertebrates, and plants;

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     (ii) Freshwater wetlands, dams, and resources;

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     (iii) Areas and activities subject to the jurisdiction of the coastal resources management

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council;

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     (iv) State parks, reservations, management areas, hatcheries, game preserves, any law of

 

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the state within state parks, lands cooperatively managed, facilities that host official department

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events, and properties leased by the department;

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     (v) Solid and hazardous waste transportation, storage, and disposal and any other laws of

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the state regarding solid and/or hazardous wastes;

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     (vi) Boating safety, water safety, and drowning prevention;

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     (vii) Water and air pollution and open burning;

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     (viii) Firearms;

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     (ix) Littering;

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     (x) Trees and forests, forestry, and protection of forests from fire hazards and trespass;

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     (xi) Agriculture, farmland, and pest control; and

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     (xii) All-terrain vehicles, as defined in § 31-3.2-1(8).

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     (2) To issue summonses and to execute all warrants and search warrants for the violation

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of the laws, rules, and regulations enumerated in subsections (a)(1) or (a)(9);

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     (3) To serve subpoenas issued for the trial or hearing of all offenses against the law, rules,

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and regulations enumerated in subsections (a)(1) or (a)(9);

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     (4) To arrest, without a warrant, any person found violating any law, rule, or regulation

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enumerated in subsection (a)(1), take that person before a court of competent jurisdiction, and

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detain that person in custody at the expense of the state until arraignment, except when a summons

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can be issued in accordance with § 12-7-11;

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     (5) To seize and take possession of all fish, shellfish, crustaceans, marine mammals,

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amphibians, reptiles, birds, and mammals in possession, or under control of, any person or that

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have been shipped, or are about to be shipped, at any time, in any manner, or for any purpose

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contrary to the laws of this state, and dispose of them at the discretion of the director;

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     (6) To seize all fishing tackle, firearms, shooting and hunting paraphernalia, hunting,

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fishing, or trapping licenses, traps, decoys, tongs, bullrakes, dredges, or other implements or

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appliances used in violation of any law, rule, or regulation relating to fish, shellfish, crustaceans,

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marine mammals, amphibians, reptiles, birds, and mammals, or any equipment, materials, tools,

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implements, samples of substances, or any other item used in the violation of any other law, rule,

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or regulation enumerated in subsection (a)(9), when making an arrest as found in the execution of

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a search warrant, and hold the seized item or items at the owner's expense until the fine and costs

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imposed for the violation have been paid in full;

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     (7)(i) To go on board any boat or vessel engaged, or believed to be engaged, in fishing and

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examine any fishing, shellfish, scallop, lobster, multipurpose, or other license issued under this

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title;

 

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     (ii) To go on board any boat or vessel engaged, or believed to be engaged, in fishing and

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to inspect that boat or vessel for compliance with the provisions of this title and any rules relative

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to the taking of fish, shellfish, crustaceans, marine mammals, amphibians, and reptiles. In the

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absence of probable cause to believe that a crime relative to the taking of these marine species has

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been, or is being, committed, any evidence obtained as the result of a boarding (other than for the

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purpose of examining a license) or of an inspection may not be used in a criminal or administrative

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prosecution;

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     (8) To carry firearms or other weapons, concealed or otherwise, in the course of, and in

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performance of, the duties of office; and

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     (9) To arrest without a warrant, to execute all warrants and search warrants, and to make

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and execute complaints within any district to the justice or clerk of the district court without

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recognizance or surety against any person for the following criminal offenses:

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     (i) Assault;

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     (ii) Assault with a dangerous weapon;

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     (iii) Larceny;

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     (iv) Vandalism;

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     (v) Obstructing officer in execution of duty.

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     (b) Conservation officers shall be deemed "officer" within the meaning of § 11-32-1.

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     (c) It shall be a misdemeanor punishable by a fine of not more than five hundred dollars

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($500) or imprisonment for not more than thirty (30) days, or both, for any person to refuse to move

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or to stop on an oral command or order of a conservation officer when the officer is acting in the

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performance of the officer's duties.

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     20-1-8.1. Procedures for seizure and forfeiture.

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     (a) Any vessel, boat, fishing tackle, guns, shooting and hunting paraphernalia, traps,

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decoys, or any other implements, appliances, or equipment used in violation of any law, rule, or

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regulation relating to fish and wildlife, including, but not limited to, marine wildlife in a fisher’s

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possession, that, by provision of any section of this title, is subject to forfeiture to the state, shall

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be seized pursuant to § 20-1-8(a)(6) and forfeited under the provisions of this section.

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     (b) The attorney general shall proceed pursuant to §§ 12-21-23 -- 12-21-32, to show cause

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why the vessel, boat, fishing tackle, guns, shooting and hunting paraphernalia, traps, decoys, or any

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other implements, appliances, or equipment used in the knowing and willful violation of any law,

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rule, or regulation relating to fish and wildlife that, by provision of any section of this title, is subject

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to forfeiture to the state, may be forfeited to the use of or the sale of the department on producing

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due proof that the vessel, fishing tackle, guns, shooting and hunting paraphernalia, traps, decoys,

 

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or any other implements, appliances, or equipment was used in this violation.

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     (c) Whenever property is forfeited under this section and the specific provision of this title

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requiring forfeiture for a particular offense, the department may:

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     (1) Retain the property for official use; or

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     (2) Sell any forfeited property that is not required by this title to be destroyed and that is

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not harmful to the public; but the proceeds of this sale, after first deducting the amount sufficient

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for all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure,

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maintenance of custody, and advertising and court costs, shall be paid to the general treasurer for

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the use of the state.

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     20-1-16. Penalty for violations.

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     (a) Unless otherwise specifically provided, the violation of any law or rule or regulation

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relating to wild animals, wild birds, lobsters and fish, marine, freshwater and anadromous fisheries

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and shellfisheries shall be a misdemeanor, punishable by a fine of not more than five hundred

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dollars ($500), or imprisonment for up to ninety (90) days, or both, provided, that, any

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administrative violation shall be punished by a fine of not more than five hundred dollars ($500).

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     (b) Striped bass penalties. Any person, firm, or corporation shall be fined in accordance

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with the following schedule:

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     (1) First offense. Upon conviction, not less than one hundred dollars ($100) for each striped

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bass taken, possessed, sold or possessed, and/or offered for sale and imprisonment for up to ninety

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(90) days, or both.

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     (2) Second offense. Upon conviction, not less than two hundred dollars ($200) for each

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striped bass taken, possessed, sold or possessed, and/or offered for sale and imprisonment for up to

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ninety (90) days, or both; and any boat, fishing tackle or other implements used in violation shall

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be subject to forfeiture to the state.

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     (3) Third and subsequent offenses. Upon conviction, not less than five hundred dollars

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($500) for each striped bass taken, possessed, sold or possessed, and/or offered for sale and

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imprisonment for up to ninety (90) days, or both; and any boat, fishing tackle or other implements

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used in this violation shall be subject to forfeiture to the state.

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     SECTION 3. Chapter 20-1 of the General Laws entitled "General Provisions" is hereby

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amended by adding thereto the following section:

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     20-1-30. Civil forfeiture procedure.

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     (a) In addition to other penalties provided in this chapter, any petition to forfeit pursuant to

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§ 20-1-8.1(a) 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 § 20-1-8.1 is subject to civil forfeiture except that:

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     (1) No property shall be forfeited under the provisions of this section unless it appears that

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the owner or other person in charge of the conveyance was a consenting party or privy to the

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covered offense charged;

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     (2) No property shall be forfeited under the provisions of this section by reason of any act

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

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than the owner.

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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 superior court rules of civil procedure applicable

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to in rem 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 the

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state for a violation of this chapter;

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

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or indirectly related to a violation of this chapter; 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 § 20-1-8.1.

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     (d) In the event of a seizure under § 20-1-8.1, 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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shall:

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     (1) Remove the property to a storage area for safekeeping and preservation;

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

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

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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 upon

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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 ten (10)

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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 value

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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 the attorney general pursuant to this section, and if it is probable that the property

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is 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 determines

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

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of the proceedings, the attorney general shall make a written report of those findings, transmit a

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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 mitigation;

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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 petitions

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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 thirty (30) days of receipt of the petition

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

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shall notify the petitioner in writing and with specificity within sixty (60) days of its decision.

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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 property

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

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approved by the attorney general, upon condition that in the case of forfeiture the claimant shall

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

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

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

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general as cost bonds shall be placed in an escrow account pending final disposition of the case.

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

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

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accordance with this chapter. Claimants of the property may request waiver of the bond

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requirement, which request shall not be unreasonably denied.

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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 ($20,000),

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the attorney general shall file a complaint in rem against the property within twenty (20) days of

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the receipt of the report referred to in subsection (f) of this section and after this filing the attorney

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

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

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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 shall

 

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

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to law.

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

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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 be

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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, whether

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

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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 seized

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

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

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

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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 within

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

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The claims shall be expedited by the court and hearing shall be held within three (3) months of the

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claimant’s petition for remission or mitigation and may be extended for good cause.

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     (m) 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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     (n) 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 was

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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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     (o) 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 by a preponderance of evidence that the

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property was not subject to forfeiture under this section.

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     SECTION 4. Section 42-17.7-6 and 42-17.7-8 of the General Laws in Chapter 42-17.7

 

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entitled "Administrative Adjudication for Environmental Matters" are hereby amended to read as

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follows:

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     42-17.7-6. Hearings -- Orders -- Concurrent jurisdiction.

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     (a) Subject to the provisions of § 42-17.7-2, every hearing for the adjudication of a violation

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or for a license shall be held before a hearing officer. The chief hearing officer shall assign a hearing

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officer to each matter. After due consideration of the legal and constitutionally admissible evidence

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and arguments, the hearing officer shall make written findings of fact and conclusions of law which

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shall be made public. The hearing officers assigned to conduct any hearing shall consider the

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constitutional issues raised by any respondent.

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     (b) The department of environmental management and the coastal resources management

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council shall promulgate such rules and regulations, not inconsistent with law, as to assure

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uniformity of proceedings as applicable.

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     42-17.7-8. Oaths -- Subpoenas -- Powers of hearing officers.

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     (a) The hearing officers are hereby severally authorized and empowered to administer

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oaths; and the hearing officers, in all cases of every nature pending before them, are hereby

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authorized and empowered to summon and examine witnesses and to compel the production and

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examination of papers, books, accounts, documents, records, certificates, and other legal,

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constitutionally admissible evidence that may be necessary or proper for the determination and

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decision of any question before or the discharge of any duty required by law of the hearing officer.

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     (b) All subpoenas and subpoena duces tecum shall be signed by a hearing officer or the

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clerk and shall be served as subpoenas are served in civil cases in the superior court; and witnesses

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so subpoenaed shall be entitled to the same fees for attendance and travel as are provided for

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witnesses in civil cases in the superior court. In cases of contumacy or refusal to obey the command

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of the subpoena so issued, the superior court shall have jurisdiction upon application of the director

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with proof by affidavit of the fact, to issue a rule or order returnable in not less than two (2) nor

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more than five (5) days directing such person to show cause why he or she should not be adjudged

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in contempt.

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     (c) Upon return of such order, the justice before whom the matter is brought for hearing

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shall examine under oath such person, and such person shall be given an opportunity to be heard,

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and if the justice shall determine that this person has refused without reasonable cause or legal

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excuse to be examined or to answer a legal or pertinent question, he or she may impose a fine upon

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this offender or forthwith commit the offender to the adult correctional institutions until he or she

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submits to do the act which he or she was so required to do, or is discharged according to law.

 

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     SECTION 5. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO COURTS AND CIVIL PROCEDURE -- PROCEDURE GENERALLY --

EVIDENCE

***

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     This act would prohibit the use of illegally seized evidence in any civil or administrative

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hearing instituted by the state or any agency or subdivision thereof, would preclude the use of any

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evidence seized by conservation officers, department of environmental officers or any other peace

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officer in any administrative hearing alleging a violation of fish and wildlife laws, absent probable

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cause, would limit administrative penalties imposed in a fish wildlife civil violations to five

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hundred dollars ($500), would establish a forfeiture procedure, to include notice requirements,

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burdens of proof, for any petition to seize and forfeit property, including marine wildlife, and

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mandates that hearing officers assigned to hear and decide violations of fish and wildlife laws,

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exercise their knowledge and decide constitutional issues, including those related probable cause

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and search and seizure.

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     This act would take effect upon passage.

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