2022 -- S 2389 | |
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LC004284 | |
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STATE OF RHODE ISLAND | |
IN GENERAL ASSEMBLY | |
JANUARY SESSION, A.D. 2022 | |
____________ | |
A N A C T | |
RELATING TO FOOD AND DRUGS - UNIFORM CONTROLLED SUBSTANCES ACT | |
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Introduced By: Senators Mendes, Calkin, Anderson, and Mack | |
Date Introduced: February 15, 2022 | |
Referred To: Senate Judiciary | |
It is enacted by the General Assembly as follows: | |
1 | SECTION 1. Sections 21-28-5.04, 21-28-5.04.1 and 21-28-5.04.2 of the General Laws in |
2 | Chapter 21-28 entitled "Uniform Controlled Substances Act" are hereby repealed. |
3 | 21-28-5.04. Forfeiture of property and money. |
4 | (a) Any property, real or personal, including, but not limited to, vessels, vehicles, or |
5 | aircraft, and money or negotiable instruments, securities, or other things of value or any property |
6 | constituting, or derived from any proceeds, furnished, or intended to be furnished, by any person |
7 | for the transportation of, or in exchange for, a controlled substance and that has been, or is being |
8 | used, in violation of § 21-28-4.01(a) or 21-28-4.01(b) or in, upon, or by means of which any |
9 | violation of §§ 21-28-4.01(a) or 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08 |
10 | has taken, or is taking place, and all real property including any right, title, and interest in the whole |
11 | of any lot or tract of land and any appurtenances or improvements that is used in the commission |
12 | of a violation of §§ 21-28-4.01(a) or 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28- |
13 | 4.08, or that was purchased with funds obtained as a result of the commission of a violation of §§ |
14 | 21-28-4.01(a) or §§ 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08, shall be seized |
15 | and forfeited; provided that no property or money, as enumerated in this subsection, used by any |
16 | person shall be forfeited under the provisions of this chapter unless it shall appear that the owner |
17 | of the property or money had knowledge, actual or constructive, and was a consenting party to the |
18 | alleged illegal act. All moneys, coin and currency, found in close proximity to forfeitable controlled |
19 | substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records |
| |
1 | of the importation, manufacture, or distribution of controlled substances, are presumed to be |
2 | unlawfully furnished in exchange for a controlled substance or used in violation of this chapter. |
3 | The burden of proof is upon claimants of the property to rebut this presumption. |
4 | (b) Property taken or detained under this section shall not be repleviable, but shall be |
5 | deemed to be in the custody of the law enforcement agency making the seizure and whenever |
6 | property or money is forfeited under this chapter it shall be utilized as follows: |
7 | (1) Where the seized property is a vessel, vehicle, aircraft, or other personal property it |
8 | may be retained and used by the law enforcement agency that seized the property where the use of |
9 | the property is reasonably related to the law enforcement duties of the seizing agency. If the seized |
10 | property is a motor vehicle that is inappropriate for use by the law enforcement agency due to style, |
11 | size, or color, the seizing agency shall be allowed to apply the proceeds of sale or the trade-in value |
12 | of the vehicle towards the purchase of an appropriate vehicle for use in activities reasonably related |
13 | to law enforcement duties. |
14 | (2) The law enforcement agency may sell any forfeited property not required by this chapter |
15 | to be destroyed and not harmful to the public. The proceeds from the sale are to be distributed in |
16 | accordance with subdivision (3) of this subsection. |
17 | (3) As to the proceeds from the sale of seized property as referred to in subdivision (2) of |
18 | this subsection, and as to moneys, coin and currency, negotiable instruments, securities, or other |
19 | things of value as referred to in subsection (a) of this section, the distribution shall be as follows: |
20 | (i)(A) All proceeds of the forfeiture of real or personal property shall be distributed as |
21 | follows: All costs of advertising administrative forfeitures shall first be deducted from the amount |
22 | forfeited. Of the remainder, twenty percent (20%) of the proceeds shall be provided to the attorney |
23 | general's department to be used for further drug-related law enforcement activities including, but |
24 | not limited to, investigations, prosecutions, and the administration of this chapter; seventy percent |
25 | (70%) of the proceeds shall be divided among the state and local law enforcement agencies |
26 | proportionately based upon their contribution to the investigation of the criminal activity related to |
27 | the asset being forfeited; and ten percent (10%) of the proceeds shall be provided to the department |
28 | of health for distribution to substance abuse treatment programs. |
29 | (B) The law enforcement agencies involved in the investigation, with the assistance of the |
30 | attorney general, shall by agreement determine the respective proportionate share to be received by |
31 | each agency. If the agencies are unable to reach agreement, application shall be made by one or |
32 | more of the agencies involved to the presiding justice of the superior court who shall determine the |
33 | respective proportionate share attributable to each law enforcement agency. The proceeds from all |
34 | forfeitures shall be held by the general treasurer in a separate account until such time as an |
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1 | allocation is determined by agreement of the agencies or by the presiding justice. It shall be the |
2 | duty and responsibility of the general treasurer to disburse the allocated funds from the separate |
3 | account to the respective law enforcement agencies. |
4 | (ii) Each state or local law enforcement agency shall be entitled to keep the forfeited money |
5 | or the proceeds from sales of forfeited property. The funds shall be used for law enforcement |
6 | purposes and investigations of violations of this chapter. The funds received by a state law |
7 | enforcement agency shall be maintained in a separate account by the general treasurer. The funds |
8 | received by a local law enforcement agency shall be maintained in a separate account by the local |
9 | agency's city or town treasurer. |
10 | (c)(1) There is established in the state's treasury a special fund to be known as the asset |
11 | forfeiture fund in which shall be deposited the excess proceeds of forfeitures arising out of criminal |
12 | acts occurring before July 1, 1987. The asset forfeiture fund shall be used to fund drug-related law |
13 | enforcement activity and the treatment and rehabilitation of victims of drug abuse. The fund shall |
14 | be administered through the office of the general treasurer. The presiding justice of the superior |
15 | court shall have the authority to determine the feasibility and amount of disbursement to those state |
16 | or local law enforcement agencies that have made application. |
17 | (2) Upon the application of any law enforcement agency of the state of Rhode Island, when |
18 | a special need exists concerning the enforcement of the provisions of this chapter, the attorney |
19 | general, or his or her designee, may apply to the presiding justice of the superior court for the |
20 | release from the general treasury of sums of money. When the presiding justice upon consideration |
21 | of the reasons set forth by that agency deems them to be reasonable and necessary to the |
22 | accomplishment of a goal within the powers and duties of that law enforcement agency, he or she |
23 | may issue an order ex parte providing for the release of the funds. |
24 | (d) Each law enforcement agency making any seizure(s) that result(s) in a forfeiture |
25 | pursuant to this section shall certify and file with the state treasurer between January 1 and January |
26 | 30 an annual report detailing the property or money forfeited during the previous calendar year and |
27 | the use or disposition of the property or money. The report shall be made in the form and manner |
28 | as may be provided or specified by the treasurer and these annual law enforcement agency reports |
29 | shall be provided to the local governmental body governing the agency and to the house and senate |
30 | judiciary committees. |
31 | (e) Any law enforcement agency whose duty it is to enforce the laws of this state relating |
32 | to controlled substances is empowered to authorize designated officers or agents to carry out the |
33 | seizure provisions of this chapter. It shall be the duty of any officer or agent authorized or |
34 | designated, or authorized by law, whenever he or she shall discover any property or monies that |
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1 | have been, or are being, used in violation of any of the provisions of this chapter, or in, upon, or by |
2 | means of which any violation of this chapter has taken or is taking place, to seize the property or |
3 | monies and to place it in the custody of the person as may be authorized or designated for that |
4 | purpose by the respective law enforcement agency pursuant to those provisions. |
5 | (f) For purposes of this section and § 30-14-2 only, the Rhode Island national guard shall |
6 | be deemed a law enforcement agency eligible to participate in the forfeiture of money and assets |
7 | seized through counterdrug operations in which members of the guard support federal, state or |
8 | municipal efforts. |
9 | 21-28-5.04.1. Criminal forfeiture procedures. |
10 | (a) Any criminal complaint, information, or indictment charging one or more covered |
11 | offenses shall set forth with reasonable particularity property that the attorney general seeks to |
12 | forfeit pursuant to this section. |
13 | (b) The court may, upon application of the attorney general, enter a restraining order or |
14 | injunction, require any person claiming any interest in the subject property to execute a satisfactory |
15 | performance bond to the state, or take any other action to preserve the availability of property |
16 | subject to forfeiture described in § 21-28-5.04, whether prior or subsequent to the filing of a |
17 | complaint, indictment, or information. Written notice and an opportunity for a hearing shall be |
18 | afforded to persons appearing to have an interest in the property, the hearing to be limited to the |
19 | issues of whether: |
20 | (1) There is a substantial probability that the state will prevail on the issue of forfeiture and |
21 | that failure to enter the order will result in the property being destroyed, conveyed, encumbered or |
22 | further encumbered, removed from the jurisdiction of the court, or made unavailable for forfeitures; |
23 | and |
24 | (2) The need to preserve the availability of property through the entry of the requested |
25 | order outweighs the hardship on any party against whom the order is to be entered. |
26 | (c)(1) A temporary restraining order under this section may be entered upon application of |
27 | the attorney general without notice or opportunity for a hearing when a complaint, information, or |
28 | indictment has not yet been filed with respect to the property if the attorney general demonstrates |
29 | that there is probable cause to believe that the property with respect to which the order is sought |
30 | would, in the event of conviction, be subject to forfeiture under § 21-28-5.04 and that provision of |
31 | notice will jeopardize the availability of the property for forfeiture. The temporary restraining order |
32 | shall expire within ten (10) days of the date on which it is entered unless extended for good cause |
33 | shown or unless the party against whom it is entered consents to an extension for a longer period. |
34 | (2) A hearing requested by any party in interest concerning an order entered under this |
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1 | subsection shall be held at the earliest possible time and prior to the expiration of the temporary |
2 | order. |
3 | (3) The court may receive and consider, at the hearing held pursuant to this subsection, |
4 | evidence and information that would be inadmissible in court. |
5 | (d) Upon conviction of a person for a covered offense the court shall enter a judgment of |
6 | forfeiture of the property described in § 21-28-5.04 to the state and shall also authorize the attorney |
7 | general to seize all property ordered forfeited upon any terms and conditions that the court shall |
8 | deem proper. Following the entry of an order declaring the property forfeited, the court may, upon |
9 | application of the attorney general, enter any appropriate restraining orders or injunctions, require |
10 | the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, |
11 | accountants, or trustees, or take any other action to protect the interest of the state in the property |
12 | ordered forfeited. Any income accruing to or derived from an enterprise or an interest in an |
13 | enterprise that has been ordered forfeited under this section may be used to offset ordinary and |
14 | necessary expenses of the enterprise as required by law or that are necessary to protect the interest |
15 | of the state or innocent third parties. |
16 | (e) All right, title, and interest in property described in § 21-28-5.04 vests in the state upon |
17 | the commission of the act giving rise to forfeiture under this chapter. Any property that is |
18 | subsequently transferred to any person may be the subject of a special verdict of forfeiture and after |
19 | this shall be ordered forfeited to the state, unless the transferee establishes in a hearing pursuant to |
20 | subsection (f) of this section that he or she is a bona fide purchaser for value of the property who |
21 | at the time of purchase was reasonably without cause to believe that the property was subject for |
22 | forfeiture. |
23 | (f) Procedures subsequent to the special verdict of forfeiture shall be as follows: |
24 | (1) Following the entry of an order of forfeiture under this section, the state shall publish |
25 | notice of the order and of its intent to dispose of the property once per week for at least three (3) |
26 | weeks in the manner that the attorney general may provide by regulation. The attorney general shall |
27 | also, to the extent practicable, provide written notice to all parties known to have an interest in the |
28 | property and all parties whose identity is reasonably subject to discovery and who may have an |
29 | interest in the forfeited property. |
30 | (2) Any person, other than the defendant, asserting any interest in property that has been |
31 | ordered forfeited to the state pursuant to this section may, within one hundred eighty (180) days of |
32 | the final publication of notice or his or her receipt of notice under subdivision (1) of this subsection, |
33 | whichever is earlier, petition the court for a hearing to adjudicate the validity of his or her alleged |
34 | interest in the property. |
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1 | (3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth |
2 | the nature and extent of the petitioner's right, title, or interest in the property; and additional facts |
3 | supporting the petitioner's claim; and the relief sought. |
4 | (4) The hearing on the petition shall, to the extent practicable and consistent with the |
5 | interest of justice, be held within thirty (30) days of the filing of the petition. The court may |
6 | consolidate the hearing on the petition with a hearing on any other petition filed by a person other |
7 | than the defendant and concerning the same property. |
8 | (5) At a hearing, the petitioner may testify and present evidence and witnesses on his own |
9 | behalf, and cross-examine witnesses who appear at the hearing. The state may present evidence |
10 | and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses |
11 | who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court |
12 | shall consider the relevant portions of the record of the criminal case that resulted in the order of |
13 | forfeiture. |
14 | (6) In accordance with its findings at the hearing, the court shall amend the order of |
15 | forfeiture if it determines that the petitioner has established by a preponderance of the evidence |
16 | that: |
17 | (i) The petitioner has a right, title, or interest in the property, and the right, title or interest |
18 | was vested in the petitioner rather than the defendant or was superior to any right, title, or interest |
19 | of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the |
20 | property under this section; or |
21 | (ii) The petitioner is a bona fide purchaser for value of any right, title, or interest in the |
22 | property and was at the time of purchase reasonably without cause to believe that the property was |
23 | subject to forfeiture under this section. |
24 | (7) Following the court's disposition of all petitions filed under this section, or if no such |
25 | petitions are filed, following the expiration of the period provided in § 21-28-5.04 for the filing of |
26 | the petitions, the state shall have clear title to property that is the subject of the order of forfeiture |
27 | and shall transfer good and sufficient title to any subsequent purchaser, transferee, or fund as |
28 | provided in this chapter. |
29 | (8) Except as provided in this section, no party claiming an interest in property subject to |
30 | forfeiture under this section may: |
31 | (i) Intervene in a trial or appeal of a criminal case involving the forfeiture of the property; |
32 | or |
33 | (ii) Commence any action against the state concerning the validity of the alleged interest. |
34 | (g) In order to facilitate the identification or location of property declared forfeited and to |
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1 | facilitate the disposition of petitions filed pursuant to § 21-28-5.04 after the entry of an order |
2 | declaring forfeited property to the state, the court may, upon application of the attorney general, |
3 | order that the testimony of any witness relating to the property forfeited be taken by deposition and |
4 | that any designated book, paper, document, record, recording (electronic or otherwise), or other |
5 | material not privileged, be produced at the same time and place, in the same manner as provided |
6 | for the taking of depositions under the Rules of Civil Procedure. |
7 | (h) If any of the property described in § 21-28-5.04: (1) cannot be located; (2) has been |
8 | transferred to, sold to or deposited with a third party; (3) has been placed beyond the jurisdiction |
9 | of the court; (4) has been substantially diminished in value by any act or omission of the defendant; |
10 | or (5) has been commingled with other property which cannot be divided without difficulty; the |
11 | court shall order the forfeiture of any other property of the defendant up to the value of the subject |
12 | property. |
13 | (i) The court shall have jurisdiction to enter orders as provided in this section without |
14 | regard to the location of any property that may be subject to forfeiture under this section or that has |
15 | been ordered forfeited under this section. |
16 | 21-28-5.04.2. Civil forfeiture procedure. |
17 | (a) In addition to or in lieu of the criminal forfeiture procedures of this chapter, any property |
18 | described in § 21-28-5.04 except as designated in subsection (b) of this section, is subject to civil |
19 | forfeiture to the state. Civil forfeiture proceedings shall be in the nature of an action in rem and |
20 | shall be governed by the civil rules for in rem proceedings. |
21 | (b) All property described in § 21-28-5.04 is subject to civil forfeiture except that: |
22 | (1) No conveyances used by any person as a common carrier in the transaction of business |
23 | as a common carrier shall be forfeited under the provisions of this section unless it appears that the |
24 | owner or other person in charge of the conveyance was a consenting party or privy to the covered |
25 | offense charged; |
26 | (2) No conveyance shall be forfeited under the provisions of this section by reason of any |
27 | act or omission established by the owner of it to have been committed or omitted by any person |
28 | other than the owner while the conveyance was unlawfully in the possession of a person other than |
29 | the owner in violation of the criminal laws of this state or of the United States; and |
30 | (3) No property shall be forfeited under this section, to the extent of the interest of an |
31 | owner, by reason of any act or omission established by that owner to have been committed or |
32 | omitted without knowledge or consent of that owner. |
33 | (c) Property subject to forfeiture under this section may be seized by a law enforcement |
34 | officer: |
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1 | (1) Upon process issued pursuant to the Rules of Civil Procedure applicable to in rem |
2 | proceedings; |
3 | (2) Upon process issued pursuant to a legally authorized search warrant; or |
4 | (3) Without court process when: |
5 | (i) The seizure is incident to a lawful arrest or search; |
6 | (ii) The property subject to seizure has been the subject of a prior judgment in favor of the |
7 | state in a controlled substance act; |
8 | (iii) The law enforcement officer has probable cause to believe that the property is directly |
9 | or indirectly dangerous to health or safety; or |
10 | (iv) The law enforcement officer has probable cause to believe that the property is |
11 | forfeitable under § 21-28-5.04. |
12 | (d) In the event of a seizure under § 21-28-5.04 the property shall not be subject to |
13 | sequestration or attachment but is deemed to be in the custody of the law enforcement agency |
14 | making the seizure, subject only to the order of the court. When property is seized under this |
15 | section, pending forfeiture and final disposition, the law enforcement agency making the seizure |
16 | may: |
17 | (1) Place the property under seal; |
18 | (2) Remove the property to a storage area for safekeeping; |
19 | (3) Remove the property to a place designated by the court; or |
20 | (4) Request another agency authorized by law to take custody of the property and remove |
21 | it to an appropriate location within the jurisdiction of the court. |
22 | (e) As soon as practicable after seizure, the seizing agency shall conduct an inventory upon |
23 | and cause the appraisal of the property seized. |
24 | (f) In the event of a seizure under this section, the seizing agency shall within thirty (30) |
25 | days send to the attorney general a written request for forfeiture, which shall include a statement of |
26 | all facts and circumstances including the names of all witnesses then known, the appraised value |
27 | of the property and the statutory provision relied upon for forfeiture. |
28 | (g) The attorney general shall immediately examine the facts and applicable law of the |
29 | cases referred to him or her pursuant to this section, and if it is probable that the property is subject |
30 | to forfeiture shall immediately cause the initiation of administrative or judicial proceedings against |
31 | the property. If, upon inquiry and examination, the attorney general determines that those |
32 | proceedings probably cannot be sustained or that justice does not require the institution of the |
33 | proceedings, he or she shall make a written report of those findings, transmit a copy to the seizing |
34 | agency, and immediately authorize the release of the property. |
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1 | (h) If the value of any personal property seized does not exceed twenty thousand dollars |
2 | ($20,000), the attorney general may forfeit the property administratively in the following manner: |
3 | (1) The attorney general shall provide notice of intention to forfeit property |
4 | administratively by publication in a local newspaper of general circulation, one day per week for |
5 | three (3) consecutive weeks. |
6 | (2) In addition, to the extent practicable, the attorney general shall provide notice by |
7 | registered mail of intent to forfeit the property administratively to all known interested parties and |
8 | all parties whose identity is reasonably subject to discovery who may have an interest in the |
9 | property seized. |
10 | (3) Notice by publication and by mail shall include: |
11 | (i) A description of the property; |
12 | (ii) The appraised value of the property; |
13 | (iii) The date and place of seizure; |
14 | (iv) The violation of law alleged against the subject property; |
15 | (v) The instructions for filing claim and cost bond or a petition for remission or mitigation; |
16 | and |
17 | (vi) A notice that the property will be forfeited to the state if a petition for remission or |
18 | mitigation or a claim and cost bond has not been timely filed. |
19 | (4) Persons claiming an interest in the property may file petitions for remission or |
20 | mitigation of forfeiture or a claim and cost bond with the attorney general within thirty (30) days |
21 | of the final notice by publication or receipt of written notice, whichever is earlier. |
22 | (5) The attorney general shall inquire into the facts and circumstances surrounding petitions |
23 | for remission or mitigation of forfeiture. |
24 | (6) The attorney general shall provide the seizing agency and the petitioner a written |
25 | decision on each petition for remission or mitigation within sixty (60) days of receipt of the petition |
26 | unless the circumstances of the case require additional time, in which case the attorney general |
27 | shall notify the petitioner in writing and with specificity within the sixty (60) day period that the |
28 | circumstances of the case require additional time and further notify the petitioner of the expected |
29 | decision date. |
30 | (7) Any person claiming seized property under this subsection may institute de novo |
31 | judicial review of the seizure and proposed forfeiture by timely filing with the attorney general a |
32 | claim and bond to the state in the amount of ten percent (10%) of the appraised value of the property |
33 | or in the penal sum of two hundred fifty dollars ($250), whichever is greater, with sureties to be |
34 | approved by the attorney general, upon condition that in the case of forfeiture the claimant shall |
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1 | pay all costs and expenses of the proceedings at the discretion of the court. Upon receipt of the |
2 | claim and bond, or if he or she elects, the attorney general shall file with the court a complaint in |
3 | rem in accordance with the procedures set forth in this section. Any funds received by the attorney |
4 | general as cost bonds shall be placed in an escrow account pending final disposition of the case. |
5 | (8) If no petitions or claims with bonds are timely filed, the attorney general shall prepare |
6 | a written declaration of forfeiture of the subject property to the state and dispose of the property in |
7 | accordance with this chapter. |
8 | (9) If the petition is denied, the attorney general shall prepare a written declaration of |
9 | forfeiture to the state and dispose of the property in accordance with this chapter and the attorney |
10 | general's regulations, if any, pursuant to this chapter. |
11 | (10) A written declaration of forfeiture signed by the attorney general pursuant to this |
12 | chapter shall be deemed to provide good and sufficient title to the forfeited property. |
13 | (i) If the value of any personal property seized exceeds twenty thousand dollars ($20,000), |
14 | the attorney general shall file a complaint in rem against the property within twenty (20) days of |
15 | the receipt of the report referred to in subsection (f) of this section and after this provide notice of |
16 | intention to forfeit by publication in a local newspaper of general circulation for a period of at least |
17 | once per week for three (3) consecutive weeks. The notice shall include: |
18 | (1) A description of the property; |
19 | (2) The appraised value of the property; |
20 | (3) The date and place of seizure; |
21 | (4) The violation of law alleged against the subject property. |
22 | (j)(1) The case may be tried by a jury, if in the superior court, upon the request of either |
23 | party, otherwise by the court, and the cause of forfeiture alleged being proved, the court which shall |
24 | try the case shall enter upon judgment for the forfeiture and disposition of the property according |
25 | to law. |
26 | (2) An appeal may be claimed by either party from any judgment of forfeiture rendered by |
27 | the district court, to be taken in like manner as by defendants in criminal cases within the |
28 | jurisdiction of the district court to try and determine, to the superior court for the same county in |
29 | which the division of the district court rendering judgment is situated and like proceedings may be |
30 | had therein as in cases of informations for forfeitures originally filed in that court. |
31 | (3) The judgment of the superior court shall be final in all cases of the forfeitures, whether |
32 | originally commenced in that court or brought there by appeal, unless a new trial is ordered, for |
33 | cause shown by the supreme court. |
34 | (k) The in rem action shall be brought in the district court if the value of the property seized |
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1 | is less than two hundred fifty thousand dollars ($250,000), otherwise the in rem action shall be |
2 | brought in the superior court. The attorney general shall also, to the extent practicable, provide |
3 | written notice of the action in rem to all known interested parties and all persons whose identity is |
4 | reasonably subject to discovery who may have an interest in the property. |
5 | (l) Persons claiming an interest in the property may file claims against the property within |
6 | thirty (30) days of the final notice by publication or receipt of written notice, whichever is earlier. |
7 | The claims shall be filed and adjudicated in the manner set forth for petitions in criminal |
8 | proceedings in § 21-28-5.04.1(f). |
9 | (m) If the property sought to be forfeited is real property, the attorney general shall file a |
10 | complaint in rem in the superior court against the property. In addition to providing notice as |
11 | required by this chapter, the attorney general shall file a lis pendens with respect to the property |
12 | with the recorder of deeds in the city or town in which the property is located. |
13 | (n) Upon order of the court forfeiting the subject property to the state, the state shall have |
14 | clear title to the forfeited property, and the attorney general may transfer good and sufficient title |
15 | to any subsequent purchaser or transferee. Title to the forfeited property shall be deemed to have |
16 | vested in the state upon the commission of the act giving rise to the forfeiture under this chapter. |
17 | (o) Upon entry of judgment for the claimant in any proceeding to forfeit property under |
18 | this chapter, the property shall immediately be returned to the claimant. If it appears that there was |
19 | reasonable cause for the seizure or the filing of the complaint, the court shall cause a proper |
20 | certificate of that to be entered, and the claimant shall not, in that case, be entitled to costs or |
21 | damages, nor shall the person or agency who made the seizure, nor the attorney general nor the |
22 | prosecutor, be liable to suit or judgment on account of the seizure, suit, or prosecution. |
23 | (p) In any action brought under this section, the state shall have the initial burden of |
24 | showing the existence of probable cause for seizure or arrest of the property. Upon that showing |
25 | by the state, the claimant shall have the burden of showing by a preponderance of evidence that the |
26 | property was not subject to forfeiture under this section. |
27 | SECTION 2. This act shall take effect upon passage. |
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LC004284 | |
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EXPLANATION | |
BY THE LEGISLATIVE COUNCIL | |
OF | |
A N A C T | |
RELATING TO FOOD AND DRUGS - UNIFORM CONTROLLED SUBSTANCES ACT | |
*** | |
1 | This act would repeal §§ 28-5.04, 28-5.04.1 and 28-5.04.2 of title 21 regarding forfeiture |
2 | of property, and money, criminal and civil forfeiture proceedings. |
3 | This act would take effect upon passage. |
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LC004284 | |
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| LC004284 - Page 12 of 12 |