HOUSE OF REPRESENTATIVES	H.B. NO.	126
THIRTY-THIRD LEGISLATURE, 2025
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO PROPERTY FORFEITURE.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  The purpose of this Act is to make the State's property forfeiture process more just by:

     (1)  Increasing transparency and accountability surrounding property forfeiture;

     (2)  Clarifying which property is subject to forfeiture;

     (3)  Amending the authorized disposition of forfeited property and the proceeds thereof; and

     (4)  Repealing language that requires the Hawaii Omnibus Criminal Forfeiture Act to be construed liberally.

     SECTION 2.  Chapter 712A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§712A-     Records of forfeited property.  (1)  Each seizing agency shall maintain the following records for all property seized for purposes of forfeiture:

     (a)  The authority under which the property was forfeited;

     (b)  The date on which each item of property was forfeited;

     (c)  The department or agency that has possession of the forfeited property;

     (d)  A description of each item of forfeited property; and

     (e)  The estimated value of each item of forfeited property.

     (2)  The seizing agency shall:

     (a)  Maintain all records of forfeited property;

     (b)  Make the records open to inspection; and

     (c)  Post the records on a publicly accessible website."

     SECTION 3.  Section 712A-5, Hawaii Revised Statutes, is amended to read as follows:

     "§712A-5  Property subject to forfeiture; exemption.  (1)  The following [is] shall be subject to forfeiture:

     (a)  Property described in a statute authorizing forfeiture;

     (b)  Property used or intended for use in the commission of, attempt to commit, or conspiracy to commit a covered offense, or [which] that facilitated or assisted [such] the activity;

     (c)  Any firearm [which] that is subject to forfeiture under any other subsection of this section [or which is]; carried or visible during[, visible,] or used in furtherance of the commission, attempt to commit, or conspiracy to commit a covered offense[,]; or [any firearm] found in proximity to contraband or [to] instrumentalities of an offense;

     (d)  Contraband or untaxed cigarettes in violation of chapter 245, shall be seized and summarily forfeited to the State without regard to the procedures set forth in this chapter;

     (e)  Any proceeds or other property acquired, maintained, or produced by means of or as a result of the commission of the covered offense;

     (f)  Any property derived from any proceeds [which] that were obtained directly or indirectly from the commission of a covered offense;

     (g)  Any interest in, security of, claim against, or property or contractual right of any kind affording a source of influence over any enterprise [which] that has been established, participated in, operated, controlled, or conducted in order to commit a covered offense; and

     (h)  All books, records, bank statements, accounting records, microfilms, tapes, computer data, or other data [which] that are used, intended for use, or [which] that facilitated or assisted in the commission of a covered offense, or [which] that document the use of the proceeds of a covered offense.

     (2)  Except that:

     (a)  Real property, or an interest therein, may be forfeited under the provisions of this chapter only in cases in which the covered offense is chargeable as a felony offense under state law;

     (b)  No property shall be forfeited under this chapter [to the extent of an interest of an owner,] by reason of any act or omission established by [that] the owner thereof to have been committed or omitted without the knowledge [and] or consent of [that] the owner;

     (c)  No conveyance used by any person as a common carrier in the transaction of a business as a common carrier [is] shall be subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;

     (d)  No conveyance [is] shall be subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; and

     (e)  A forfeiture of a conveyance encumbered by a bona fide security interest [is] shall be subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.

     (3)  This chapter shall not apply to the forfeiture of an animal pursuant to section 711-1109.2.

     (4)  This section shall not prohibit or restrict forfeitures authorized by law other than this chapter."

     SECTION 4.  Section 712A-16, Hawaii Revised Statutes, is amended to read as follows:

     "§712A-16  Disposition of property forfeited.  (1)  All property forfeited to the State under this chapter shall be transferred to the attorney general, who[:] may:

     [(a) May transfer property, other than currency, which shall be distributed in accordance with subsection (2) to any local or state government entity, municipality, or law enforcement agency within the State;

     (b)  May sell] (a)  Sell forfeited property to the public by public sale; provided that for leasehold real property:

          (i)  The attorney general shall first offer the holder of the immediate reversionary interest the right to acquire the leasehold interest and any improvements built or paid for by the lessee for the then fair market value of the leasehold interest and improvements.  The holder of the immediate reversionary interest shall have thirty days after receiving written notice within which to accept or reject the offer in writing; provided that the offer shall be deemed to be rejected if the holder of the immediate reversionary interest has not communicated acceptance to the attorney general within the thirty-day period.  The holder of the immediate reversionary interest shall have thirty days after acceptance to tender to the attorney general the purchase price for the leasehold interest and any improvements, upon which tender the leasehold interest and improvements shall be conveyed to the holder of the immediate reversionary interest[.];

         (ii)  If the holder of the immediate reversionary interest fails to exercise the right of first refusal provided in subparagraph (i), the attorney general may proceed to sell the leasehold interest and any improvements by public sale[.]; and

        (iii)  Any dispute between the attorney general and the holder of the immediate reversionary interest as to the fair market value of the leasehold interest and improvements shall be settled by arbitration pursuant to chapter 658A;

     [(c) May sell] (b)  Sell or destroy all raw materials, products, and equipment of any kind used or intended for use in manufacturing, compounding, or processing a controlled substance or any untaxed cigarettes in violation of chapter 245;

     [(d) May compromise] (c) Compromise and pay valid claims against property forfeited pursuant to this chapter; or

     [(e) May make] (d)  Make any other disposition of forfeited property authorized by law.

     (2)  All forfeited property and the sale proceeds thereof[, up to a maximum of three million dollars per year, not previously transferred pursuant to [subsection] (1)(a) of this section,] shall, after payment of expenses of administration and sale, be distributed or retained as follows:

     (a)  One quarter shall be distributed to the unit or units of state or local government law enforcement [[]whose[]] officers or employees conducted the investigation and caused the arrest of the person whose property was forfeited or seizure of the property for forfeiture;

     (b)  One quarter shall be distributed to the prosecuting attorney who instituted the action producing the forfeiture; and

     (c)  One half shall be [deposited into] retained in the criminal forfeiture fund established by this chapter.

     (3)  [Property] All property and money distributed to units of state [and] or local government pursuant to subsection (2)(a) and (b) shall be used for law enforcement purposes, including but not limited to drug recognition expert training and public awareness or outreach efforts, and shall complement but not supplant the funds regularly appropriated for [such] these purposes.

     (4)  There [is] shall be established in the department of the attorney general a special fund to be known as the criminal forfeiture fund[, hereinafter referred to as the "fund" in] into which shall be deposited [one-half of] the proceeds of a forfeiture and any penalties paid pursuant to section 712A-10(6).  All moneys in the criminal forfeiture fund except for those disbursements provided for in subsection (2)(a) and (b) shall be expended by the attorney general and are hereby appropriated for the following purposes:

     (a)  The payment of any expenses necessary to seize, detain, appraise, inventory, safeguard, maintain, advertise, or sell property seized, detained, or forfeited pursuant to this chapter or of any other necessary expenses incident to the seizure, detention, or forfeiture of [such] property and [such] contract services and payments to reimburse any federal, state, or county agency for any expenditures made to perform the foregoing functions;

     [(b) The payment of awards for information or assistance leading to a civil or criminal proceeding;

     (c)  The payment of supplemental sums to state and county agencies for law enforcement purposes;

     (d)] (b)  The payment of expenses arising in connection with programs for training and education of law enforcement officers; and

     [(e)]     (c)  The payment of expenses arising in connection with enforcement pursuant to the drug nuisance abatement unit in the department of the attorney general.

All unencumbered and unexpended moneys in excess of $1,000,000 remaining on balance in the criminal forfeiture fund at the close of June 30 of each year shall be deposited to the credit of the state general fund.

     (5)  The attorney general may, without regard to the requirements of chapter 91, promulgate rules [and regulations] necessary to carry out the purpose of this chapter, including rules concerning the disposition of property, the use of the criminal forfeiture fund, and compromising and paying valid claims against property forfeited [pursuant to this chapter].

     (6)  [Not] No less than twenty days [prior to] before the convening of each regular session, the attorney general shall provide to the legislature a report on the use of the Hawaii omnibus criminal forfeiture act during the fiscal year preceding the legislative session.  The report shall include:

     (a)  The total amount and type of property seized by law enforcement agencies;

     (b)  The total number of administrative and judicial actions filed by prosecuting attorneys and the disposition thereof[;] for each action;

     (c)  The total number of claims or petitions for remission or mitigation filed in administrative actions and the dispositions thereof[;] for each action;

     (d)  The total amount and type of property forfeited and the sale proceeds thereof;

     (e)  The total amount and type of property distributed to units of state and local government;

     (f)  The amount of money deposited into the criminal forfeiture fund; [and]

     (g)  The amount of money deposited into the general fund; and

     [(g)]     (h)  The amount of money expended by the attorney general from the criminal forfeiture fund under subsection (5) and the reason for the expenditures."

     SECTION 5.  Section 712A-19, Hawaii Revised Statutes, is amended to read as follows:

     "[[]§712A-19[]]  Construction.  It is the intent of the legislature that this chapter be [liberally] construed so as to effect the purposes of this chapter."

     SECTION 6.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 7.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Hawaii Omnibus Criminal Forfeiture Act

 

Description:

Increases transparency and accountability surrounding property forfeiture.  Clarifies which property is subject to forfeiture.  Amends the authorized disposition of forfeited property and the proceeds thereof.  Repeals language that requires the Hawaii Omnibus Criminal Forfeiture Act to be construed liberally.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.