2022 -- S 2389

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LC004284

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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 FOOD AND DRUGS - UNIFORM CONTROLLED SUBSTANCES ACT

     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:

     SECTION 1. Sections 21-28-5.04, 21-28-5.04.1 and 21-28-5.04.2 of the General Laws in

Chapter 21-28 entitled "Uniform Controlled Substances Act" are hereby repealed.

     21-28-5.04. Forfeiture of property and money.

     (a) Any property, real or personal, including, but not limited to, vessels, vehicles, or

aircraft, and money or negotiable instruments, securities, or other things of value or any property

constituting, or derived from any proceeds, furnished, or intended to be furnished, by any person

for the transportation of, or in exchange for, a controlled substance and that has been, or is being

used, in violation of § 21-28-4.01(a) or 21-28-4.01(b) or in, upon, or by means of which any

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

has taken, or is taking place, and all real property including any right, title, and interest in the whole

of any lot or tract of land and any appurtenances or improvements that is used in the commission

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-

4.08, or that was purchased with funds obtained as a result of the commission 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 21-28-4.08, shall be seized

and forfeited; provided that no property or money, as enumerated in this subsection, used by any

person shall be forfeited under the provisions of this chapter unless it shall appear that the owner

of the property or money had knowledge, actual or constructive, and was a consenting party to the

alleged illegal act. All moneys, coin and currency, found in close proximity to forfeitable controlled

substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records

of the importation, manufacture, or distribution of controlled substances, are presumed to be

unlawfully furnished in exchange for a controlled substance or used in violation of this chapter.

The burden of proof is upon claimants of the property to rebut this presumption.

     (b) Property taken or detained under this section shall not be repleviable, but shall be

deemed to be in the custody of the law enforcement agency making the seizure and whenever

property or money is forfeited under this chapter it shall be utilized as follows:

     (1) Where the seized property is a vessel, vehicle, aircraft, or other personal property it

may be retained and used by the law enforcement agency that seized the property where the use of

the property is reasonably related to the law enforcement duties of the seizing agency. If the seized

property is a motor vehicle that is inappropriate for use by the law enforcement agency due to style,

size, or color, the seizing agency shall be allowed to apply the proceeds of sale or the trade-in value

of the vehicle towards the purchase of an appropriate vehicle for use in activities reasonably related

to law enforcement duties.

     (2) The law enforcement agency may sell any forfeited property not required by this chapter

to be destroyed and not harmful to the public. The proceeds from the sale are to be distributed in

accordance with subdivision (3) of this subsection.

     (3) As to the proceeds from the sale of seized property as referred to in subdivision (2) of

this subsection, and as to moneys, coin and currency, negotiable instruments, securities, or other

things of value as referred to in subsection (a) of this section, the distribution shall be as follows:

     (i)(A) All proceeds of the forfeiture of real or personal property shall be distributed as

follows: All costs of advertising administrative forfeitures shall first be deducted from the amount

forfeited. Of the remainder, twenty percent (20%) of the proceeds shall be provided to the attorney

general's department to be used for further drug-related law enforcement activities including, but

not limited to, investigations, prosecutions, and the administration of this chapter; seventy percent

(70%) of the proceeds shall be divided among the state and local law enforcement agencies

proportionately based upon their contribution to the investigation of the criminal activity related to

the asset being forfeited; and ten percent (10%) of the proceeds shall be provided to the department

of health for distribution to substance abuse treatment programs.

     (B) The law enforcement agencies involved in the investigation, with the assistance of the

attorney general, shall by agreement determine the respective proportionate share to be received by

each agency. If the agencies are unable to reach agreement, application shall be made by one or

more of the agencies involved to the presiding justice of the superior court who shall determine the

respective proportionate share attributable to each law enforcement agency. The proceeds from all

forfeitures shall be held by the general treasurer in a separate account until such time as an

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allocation is determined by agreement of the agencies or by the presiding justice. It shall be the

duty and responsibility of the general treasurer to disburse the allocated funds from the separate

account to the respective law enforcement agencies.

     (ii) Each state or local law enforcement agency shall be entitled to keep the forfeited money

or the proceeds from sales of forfeited property. The funds shall be used for law enforcement

purposes and investigations of violations of this chapter. The funds received by a state law

enforcement agency shall be maintained in a separate account by the general treasurer. The funds

received by a local law enforcement agency shall be maintained in a separate account by the local

agency's city or town treasurer.

     (c)(1) There is established in the state's treasury a special fund to be known as the asset

forfeiture fund in which shall be deposited the excess proceeds of forfeitures arising out of criminal

acts occurring before July 1, 1987. The asset forfeiture fund shall be used to fund drug-related law

enforcement activity and the treatment and rehabilitation of victims of drug abuse. The fund shall

be administered through the office of the general treasurer. The presiding justice of the superior

court shall have the authority to determine the feasibility and amount of disbursement to those state

or local law enforcement agencies that have made application.

     (2) Upon the application of any law enforcement agency of the state of Rhode Island, when

a special need exists concerning the enforcement of the provisions of this chapter, the attorney

general, or his or her designee, may apply to the presiding justice of the superior court for the

release from the general treasury of sums of money. When the presiding justice upon consideration

of the reasons set forth by that agency deems them to be reasonable and necessary to the

accomplishment of a goal within the powers and duties of that law enforcement agency, he or she

may issue an order ex parte providing for the release of the funds.

     (d) Each law enforcement agency making any seizure(s) that result(s) in a forfeiture

pursuant to this section shall certify and file with the state treasurer between January 1 and January

30 an annual report detailing the property or money forfeited during the previous calendar year and

the use or disposition of the property or money. The report shall be made in the form and manner

as may be provided or specified by the treasurer and these annual law enforcement agency reports

shall be provided to the local governmental body governing the agency and to the house and senate

judiciary committees.

     (e) Any law enforcement agency whose duty it is to enforce the laws of this state relating

to controlled substances is empowered to authorize designated officers or agents to carry out the

seizure provisions of this chapter. It shall be the duty of any officer or agent authorized or

designated, or authorized by law, whenever he or she shall discover any property or monies that

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have been, or are being, used in violation of any of the provisions of this chapter, or in, upon, or by

means of which any violation of this chapter has taken or is taking place, to seize the property or

monies and to place it in the custody of the person as may be authorized or designated for that

purpose by the respective law enforcement agency pursuant to those provisions.

     (f) For purposes of this section and § 30-14-2 only, the Rhode Island national guard shall

be deemed a law enforcement agency eligible to participate in the forfeiture of money and assets

seized through counterdrug operations in which members of the guard support federal, state or

municipal efforts.

     21-28-5.04.1. Criminal forfeiture procedures.

     (a) Any criminal complaint, information, or indictment charging one or more covered

offenses shall set forth with reasonable particularity property that the attorney general seeks to

forfeit pursuant to this section.

     (b) The court may, upon application of the attorney general, enter a restraining order or

injunction, require any person claiming any interest in the subject property to execute a satisfactory

performance bond to the state, or take any other action to preserve the availability of property

subject to forfeiture described in § 21-28-5.04, whether prior or subsequent to the filing of a

complaint, indictment, or information. Written notice and an opportunity for a hearing shall be

afforded to persons appearing to have an interest in the property, the hearing to be limited to the

issues of whether:

     (1) There is a substantial probability that the state will prevail on the issue of forfeiture and

that failure to enter the order will result in the property being destroyed, conveyed, encumbered or

further encumbered, removed from the jurisdiction of the court, or made unavailable for forfeitures;

and

     (2) The need to preserve the availability of property through the entry of the requested

order outweighs the hardship on any party against whom the order is to be entered.

     (c)(1) A temporary restraining order under this section may be entered upon application of

the attorney general without notice or opportunity for a hearing when a complaint, information, or

indictment has not yet been filed with respect to the property if the attorney general demonstrates

that there is probable cause to believe that the property with respect to which the order is sought

would, in the event of conviction, be subject to forfeiture under § 21-28-5.04 and that provision of

notice will jeopardize the availability of the property for forfeiture. The temporary restraining order

shall expire within ten (10) days of the date on which it is entered unless extended for good cause

shown or unless the party against whom it is entered consents to an extension for a longer period.

     (2) A hearing requested by any party in interest concerning an order entered under this

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subsection shall be held at the earliest possible time and prior to the expiration of the temporary

order.

     (3) The court may receive and consider, at the hearing held pursuant to this subsection,

evidence and information that would be inadmissible in court.

     (d) Upon conviction of a person for a covered offense the court shall enter a judgment of

forfeiture of the property described in § 21-28-5.04 to the state and shall also authorize the attorney

general to seize all property ordered forfeited upon any terms and conditions that the court shall

deem proper. Following the entry of an order declaring the property forfeited, the court may, upon

application of the attorney general, enter any appropriate restraining orders or injunctions, require

the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers,

accountants, or trustees, or take any other action to protect the interest of the state in the property

ordered forfeited. Any income accruing to or derived from an enterprise or an interest in an

enterprise that has been ordered forfeited under this section may be used to offset ordinary and

necessary expenses of the enterprise as required by law or that are necessary to protect the interest

of the state or innocent third parties.

     (e) All right, title, and interest in property described in § 21-28-5.04 vests in the state upon

the commission of the act giving rise to forfeiture under this chapter. Any property that is

subsequently transferred to any person may be the subject of a special verdict of forfeiture and after

this shall be ordered forfeited to the state, unless the transferee establishes in a hearing pursuant to

subsection (f) of this section that he or she is a bona fide purchaser for value of the property who

at the time of purchase was reasonably without cause to believe that the property was subject for

forfeiture.

     (f) Procedures subsequent to the special verdict of forfeiture shall be as follows:

     (1) Following the entry of an order of forfeiture under this section, the state shall publish

notice of the order and of its intent to dispose of the property once per week for at least three (3)

weeks in the manner that the attorney general may provide by regulation. The attorney general shall

also, to the extent practicable, provide written notice to all parties known to have an interest in the

property and all parties whose identity is reasonably subject to discovery and who may have an

interest in the forfeited property.

     (2) Any person, other than the defendant, asserting any interest in property that has been

ordered forfeited to the state pursuant to this section may, within one hundred eighty (180) days of

the final publication of notice or his or her receipt of notice under subdivision (1) of this subsection,

whichever is earlier, petition the court for a hearing to adjudicate the validity of his or her alleged

interest in the property.

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     (3) The petition shall be signed by the petitioner under penalty of perjury and shall set forth

the nature and extent of the petitioner's right, title, or interest in the property; and additional facts

supporting the petitioner's claim; and the relief sought.

     (4) The hearing on the petition shall, to the extent practicable and consistent with the

interest of justice, be held within thirty (30) days of the filing of the petition. The court may

consolidate the hearing on the petition with a hearing on any other petition filed by a person other

than the defendant and concerning the same property.

     (5) At a hearing, the petitioner may testify and present evidence and witnesses on his own

behalf, and cross-examine witnesses who appear at the hearing. The state may present evidence

and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses

who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court

shall consider the relevant portions of the record of the criminal case that resulted in the order of

forfeiture.

     (6) In accordance with its findings at the hearing, the court shall amend the order of

forfeiture if it determines that the petitioner has established by a preponderance of the evidence

that:

     (i) The petitioner has a right, title, or interest in the property, and the right, title or interest

was vested in the petitioner rather than the defendant or was superior to any right, title, or interest

of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the

property under this section; or

     (ii) The petitioner is a bona fide purchaser for value of any right, title, or interest in the

property and was at the time of purchase reasonably without cause to believe that the property was

subject to forfeiture under this section.

     (7) Following the court's disposition of all petitions filed under this section, or if no such

petitions are filed, following the expiration of the period provided in § 21-28-5.04 for the filing of

the petitions, the state shall have clear title to property that is the subject of the order of forfeiture

and shall transfer good and sufficient title to any subsequent purchaser, transferee, or fund as

provided in this chapter.

     (8) Except as provided in this section, no party claiming an interest in property subject to

forfeiture under this section may:

     (i) Intervene in a trial or appeal of a criminal case involving the forfeiture of the property;

or

     (ii) Commence any action against the state concerning the validity of the alleged interest.

     (g) In order to facilitate the identification or location of property declared forfeited and to

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facilitate the disposition of petitions filed pursuant to § 21-28-5.04 after the entry of an order

declaring forfeited property to the state, the court may, upon application of the attorney general,

order that the testimony of any witness relating to the property forfeited be taken by deposition and

that any designated book, paper, document, record, recording (electronic or otherwise), or other

material not privileged, be produced at the same time and place, in the same manner as provided

for the taking of depositions under the Rules of Civil Procedure.

     (h) If any of the property described in § 21-28-5.04: (1) cannot be located; (2) has been

transferred to, sold to or deposited with a third party; (3) has been placed beyond the jurisdiction

of the court; (4) has been substantially diminished in value by any act or omission of the defendant;

or (5) has been commingled with other property which cannot be divided without difficulty; the

court shall order the forfeiture of any other property of the defendant up to the value of the subject

property.

     (i) The court shall have jurisdiction to enter orders as provided in this section without

regard to the location of any property that may be subject to forfeiture under this section or that has

been ordered forfeited under this section.

     21-28-5.04.2. Civil forfeiture procedure.

     (a) In addition to or in lieu of the criminal forfeiture procedures of this chapter, any property

described in § 21-28-5.04 except as designated in subsection (b) of this section, is subject to civil

forfeiture to the state. Civil forfeiture proceedings shall be in the nature of an action in rem and

shall be governed by the civil rules for in rem proceedings.

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

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

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

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

offense charged;

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

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

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

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

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

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

omitted without knowledge or consent of that owner.

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

officer:

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

proceedings;

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

     (3) Without court process when:

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

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

state in a controlled substance act;

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

or indirectly dangerous to health or safety; or

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

forfeitable under § 21-28-5.04.

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

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

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

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

may:

     (1) Place the property under seal;

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

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

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

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

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

and cause the appraisal of the property seized.

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

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

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

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

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

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

to forfeiture shall immediately cause the initiation of administrative or judicial proceedings against

the property. If, upon inquiry and examination, the attorney general determines that those

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

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

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

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

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

three (3) consecutive weeks.

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

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

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

property seized.

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

     (i) A description of the property;

     (ii) The appraised value of the property;

     (iii) The date and place of seizure;

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

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

and

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

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

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

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

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

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

for remission or mitigation of forfeiture.

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

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

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

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

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

decision date.

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

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

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

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

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

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

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

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

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

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

accordance with this chapter.

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

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

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

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

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

     (i) If the value of any personal property seized exceeds twenty thousand dollars ($20,000),

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

the receipt of the report referred to in subsection (f) of this section and after this provide notice of

intention to forfeit by publication in a local newspaper of general circulation for a period of at least

once per week for three (3) consecutive weeks. The notice shall include:

     (1) A description of the property;

     (2) The appraised value of the property;

     (3) The date and place of seizure;

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

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

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

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

to law.

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

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

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

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

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

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

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

cause shown by the supreme court.

     (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

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

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

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

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

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

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

proceedings in § 21-28-5.04.1(f).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

by the state, the claimant shall have the burden of showing by a preponderance of evidence that the

property was not subject to forfeiture under this section.

     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

***

     This act would repeal §§ 28-5.04, 28-5.04.1 and 28-5.04.2 of title 21 regarding forfeiture

of property, and money, criminal and civil forfeiture proceedings.

     This act would take effect upon passage.

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