Senate File 467 - Introduced
SENATE FILE
BY BOLKCOM
A BILL FOR
1 An Act relating to criminal asset forfeiture and providing
2 penalties and including applicability provisions.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
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1 1 Section 1. NEW SECTION. 809B.1 Title.
1 2 This chapter shall be known and may be cited as the "Criminal
1 3 Asset Forfeiture Act".
1 4 Sec. 2. NEW SECTION. 809B.2 Criminal asset forfeiture.
1 5 1. All forfeitures of property shall be conducted in
1 6 accordance with the procedures of this chapter as supplemented
1 7 by the rules of criminal procedure.
1 8 2. Forfeitures are not favored under state law and any
1 9 ambiguity in this chapter shall be strictly construed against
1 10 the state.
1 11 3. Forfeitures under this chapter are criminal in form.
1 12 Sec. 3. NEW SECTION. 809B.3 Property forfeitures generally.
1 13 1. After a person is convicted of a public offense for which
1 14 forfeiture is expressly authorized as a penalty, the following
1 15 shall be subject to forfeiture to the state and a property
1 16 right shall not exist in them:
1 17 a. All of the convicted person's property constituting,
1 18 or derived from, any proceeds obtained directly from the
1 19 commission of the offense.
1 20 b. All of the convicted person's property that was used,
1 21 or intended to be used, to commit or facilitate the commission
1 22 of the offense and which bears a significant relation to the
1 23 offense.
1 24 2. Additional penalties, such as personal money judgments,
1 25 are not authorized under this chapter except as provided
1 26 by section 809B.26. Any restitution made to victims using
1 27 property forfeited under this chapter shall serve to satisfy in
1 28 part or in whole any restitution order against the convicted
1 29 person.
1 30 Sec. 4. NEW SECTION. 809B.4 Contraband.
1 31 A property right does not exist in contraband, the
1 32 possession of which is inherently unlawful. This chapter does
1 33 not govern the forfeiture of such contraband.
1 34 Sec. 5. NEW SECTION. 809B.5 Process and seizure.
1 35 1. Except as provided for in subsection 2, property
2 1 subject to forfeiture under this chapter may be seized by law
2 2 enforcement authority only upon process issued by the district
2 3 court under section 809B.17, 809B.18, 809B.19, or 809B.31.
2 4 2. Seizure without process may be made for any of the
2 5 following reasons:
2 6 a. The seizure is incident to an arrest or a search under a
2 7 search warrant or inspection under an administrative inspection
2 8 warrant.
2 9 b. The property subject to seizure has been the subject of
2 10 a prior judgment in favor of the state in a criminal injunction
2 11 or forfeiture proceeding under this chapter.
2 12 c. Probable cause exists to believe that the property is
2 13 dangerous to health or safety.
2 14 d. Probable cause exists to believe that the property is
2 15 subject to forfeiture and prior notice or delay is likely to
2 16 result in the destruction or removal of the property or in the
2 17 property otherwise being made unavailable for forfeiture.
2 18 3. If property is seized without process, proceedings for
2 19 the authority of the seizure shall be instituted in district
2 20 court as soon as is practicable.
2 21 Sec. 6. NEW SECTION. 809B.6 Pretrial motion for return of
2 22 seized property.
2 23 When property has been seized under this chapter, the
2 24 defendant or another putative interest holder in the property
2 25 may request the court to determine the validity of the seizure
2 26 by filing a motion seeking an order to show cause. The
2 27 motion shall be filed no later than thirty days before the
2 28 commencement of the criminal trial. When a motion is filed
2 29 under this section, the court shall issue an order to show
2 30 cause to the seizing law enforcement authority for a hearing
2 31 on the sole issue of whether probable cause for forfeiture of
2 32 the property exists, which shall be the state's burden. Upon
2 33 a finding that probable cause does not exist, the court shall
2 34 promptly order the release of the property.
2 35 Sec. 7. NEW SECTION. 809B.7 Claims for damage, loss, or
3 1 impermissible sale of property.
3 2 After a finding under this chapter that seized property is
3 3 not subject to forfeiture, the property owner may bring a claim
3 4 against the law enforcement authority that had custody of the
3 5 property and lost, damaged, or impermissibly sold the property.
3 6 Sec. 8. NEW SECTION. 809B.8 Use of property held in
3 7 custody.
3 8 1. Whenever property is forfeited under this chapter and
3 9 after all ancillary proceedings under section 809B.30 are
3 10 concluded, the property shall be transferred to the custody of
3 11 the county attorney, if the law enforcement authority seizing
3 12 the property has county or local jurisdiction, or the attorney
3 13 general, if the law enforcement authority seizing the property
3 14 has statewide jurisdiction.
3 15 2. The county attorney or the attorney general shall sell
3 16 any forfeited property which is not required to be destroyed by
3 17 law and which is not harmful to the public. Sale of forfeited
3 18 property to any employee of the county attorney or attorney
3 19 general, to a person related by consanguinity or affinity,
3 20 within the third degree, to an employee of the county attorney
3 21 or attorney general, or to another law enforcement authority
3 22 is prohibited.
3 23 3. The proceeds from sale shall be used to pay all
3 24 reasonable expenses related to the maintenance of custody and
3 25 sale of such property. The balance of the proceeds shall be
3 26 distributed in accordance with section 809B.9.
3 27 Sec. 9. NEW SECTION. 809B.9 Use of cash or proceeds of
3 28 property.
3 29 Cash or proceeds of forfeited property transferred pursuant
3 30 to section 809B.8 shall be distributed in the following order:
3 31 1. To satisfy any restitution orders for victims of the
3 32 underlying offense.
3 33 2. To pay any liabilities owed by the state to defendants or
3 34 claimants who substantially prevail under section 809B.15.
3 35 3. If in the custody of the attorney general, to the general
4 1 fund of the state, or if in the custody of the county attorney,
4 2 to the general fund of the county.
4 3 Sec. 10. NEW SECTION. 809B.10 Distribution of property
4 4 among law enforcement authorities.
4 5 If county or local and state law enforcement authorities
4 6 were substantially involved in effecting the lawful seizure,
4 7 the court having jurisdiction over the forfeiture proceedings
4 8 shall equitably distribute the property between the county
4 9 attorney and the attorney general.
4 10 Sec. 11. NEW SECTION. 809B.11 Annual audit of forfeited
4 11 property.
4 12 It shall be the responsibility of every county in this state
4 13 to provide, through the board of supervisors, county auditor,
4 14 or other appropriate auditor and the county attorney, an annual
4 15 audit of all forfeited property and proceeds obtained under
4 16 this chapter and the disposition of such property and proceeds,
4 17 and of all fees awarded pursuant to section 809B.15. The audit
4 18 shall be submitted to the attorney general by September 30 of
4 19 each year.
4 20 Sec. 12. NEW SECTION. 809B.12 Annual report.
4 21 The attorney general shall annually submit a report to the
4 22 general assembly describing the forfeited property or proceeds
4 23 of the forfeited property obtained under this chapter, and of
4 24 the fees awarded pursuant to section 809B.15. The report shall
4 25 give an accounting of all proceeds derived from the sale of
4 26 forfeited property.
4 27 Sec. 13. NEW SECTION. 809B.13 Public access.
4 28 All accounting and audit records generated under sections
4 29 809B.10 and 809B.11 shall be publicly available.
4 30 Sec. 14. NEW SECTION. 809B.14 Taxpayer standing.
4 31 Any taxpayer to the state has standing to challenge in
4 32 court any actions contrary to section 809B.8, 809B.9, 809B.10,
4 33 809B.11, 809B.12, or 809B.13.
4 34 Sec. 15. NEW SECTION. 809B.15 Fee shifting.
4 35 In a forfeiture proceeding under this chapter in which the
5 1 defendant or claimant substantially prevails, the state shall
5 2 be liable for all of the following:
5 3 1. Reasonable attorney fees and other litigation costs
5 4 reasonably incurred by the defendant or claimant.
5 5 2. Postjudgment interest.
5 6 3. In cases involving currency or other negotiable
5 7 instruments, all of the following:
5 8 a. Interest actually paid to the state from the date of
5 9 seizure of the property that resulted from the investment of
5 10 the property in an interest=bearing account or instrument.
5 11 b. An imputed amount of interest that such currency,
5 12 instruments, or proceeds would have earned at the rate
5 13 applicable to the thirty=day treasury bill, for any period
5 14 during which no interest was paid commencing fifteen days after
5 15 the property was seized by a law enforcement authority, or was
5 16 turned over to a law enforcement authority by a federal law
5 17 enforcement authority. Such period during which no interest
5 18 was paid shall not include any period when the property
5 19 reasonably was in use as evidence in an official proceeding or
5 20 in conducting scientific tests for the purpose of collecting
5 21 evidence.
5 22 Sec. 16. NEW SECTION. 809B.16 General procedure for
5 23 forfeiture.
5 24 The proceedings for forfeiture of property shall be tried
5 25 in the same proceeding as the criminal case concerning the
5 26 determination of the defendant's guilt or innocence for the
5 27 underlying offense unless the defendant moves to bifurcate
5 28 the trial of the forfeiture from the trial of the underlying
5 29 criminal case. An information or an indictment charging the
5 30 defendant with an offense shall include notice to the defendant
5 31 that the state will seek forfeiture as part of any sentence.
5 32 Such notice shall include all of the following:
5 33 1. An itemized list of the specific property subject to
5 34 forfeiture, including but not limited to the address of any
5 35 real property, the exact dollar amount of any money, negotiable
6 1 instrument, or securities, and the make, model, year, and
6 2 license plate number of any vehicles.
6 3 2. A statement of the time and place of the offense.
6 4 3. A description of the particular use of the property in
6 5 the commission of the offense or a description of the property
6 6 constituting, or derived from, any proceeds obtained directly
6 7 from the commission of the offense.
6 8 Sec. 17. NEW SECTION. 809B.17 Preservation of property
6 9 subject to forfeiture before filing information or indictment and
6 10 without process.
6 11 1. Upon application of the state by a county attorney or
6 12 the attorney general, the district court may enter a temporary
6 13 restraining order or injunction, require the execution of a
6 14 satisfactory performance bond, or take any other action to
6 15 preserve the availability of property described in section
6 16 809B.3 for forfeiture prior to the filing of an indictment or
6 17 information and without notice to persons appearing to have an
6 18 interest in the property and an opportunity for a hearing if
6 19 the state demonstrates that probable cause exists to believe
6 20 each of the following:
6 21 a. The property with respect to which an order is sought
6 22 would be subject to forfeiture under this chapter.
6 23 b. The failure to enter an order or take other action
6 24 will result in the property being destroyed, removed from the
6 25 jurisdiction of the court, or otherwise made unavailable for
6 26 forfeiture.
6 27 2. An order entered or other action taken pursuant to this
6 28 section shall expire not more than ten days after the date on
6 29 which it is entered or taken, unless extended by the court for
6 30 good cause or unless an indictment or information described in
6 31 section 809B.16 has been filed. Upon the request of a putative
6 32 interest holder in property subject to an order entered or
6 33 other action taken under this subsection, a hearing shall be
6 34 held at the earliest possible time and prior to the expiration
6 35 of the temporary order or other action taken.
7 1 Sec. 18. NEW SECTION. 809B.18 Preservation of property
7 2 subject to forfeiture before filing information or indictment but
7 3 with process.
7 4 1. Upon application of the state by a county attorney or the
7 5 attorney general, the court may enter a restraining order or
7 6 injunction, require the execution of a satisfactory performance
7 7 bond, or take any other action to preserve the availability of
7 8 property described in section 809B.3 for forfeiture under this
7 9 chapter prior to the filing of an indictment or information
7 10 if after notice to persons appearing to have an interest in
7 11 the property and an opportunity for a hearing, the state
7 12 demonstrates that a substantial probability exists of each of
7 13 the following:
7 14 a. The state will prevail on the issue of forfeiture.
7 15 b. The failure to enter an order or take other action
7 16 will result in the property being destroyed, removed from the
7 17 jurisdiction of the court, or otherwise made unavailable for
7 18 forfeiture.
7 19 c. The need to preserve the availability of the property
7 20 through the entry of the requested order or other action taken
7 21 outweighs the hardship on any party against whom the order is
7 22 to be entered or other action is to be taken.
7 23 2. An order entered or other action taken pursuant to this
7 24 section shall expire not more than thirty days after the date
7 25 on which it is entered or taken, unless extended by the court
7 26 for good cause or unless an indictment or information described
7 27 in subsection 1 has been filed.
7 28 Sec. 19. NEW SECTION. 809B.19 Preservation of property
7 29 subject to forfeiture upon filing information or indictment.
7 30 Upon application of the state by a county attorney or the
7 31 attorney general, the court may enter a restraining order or
7 32 injunction, require the execution of a satisfactory performance
7 33 bond, or take any other action to preserve the availability
7 34 of property described in section 809B.3 for forfeiture under
7 35 this chapter upon the filing of an information or an indictment
8 1 charging an offense and alleging that the property is subject
8 2 to forfeiture.
8 3 Sec. 20. NEW SECTION. 809B.20 Hardship release of property
8 4 subject to forfeiture.
8 5 Upon application by a putative interest holder in the
8 6 property, including the defendant, the court may order the
8 7 release of seized property from the seizing law enforcement
8 8 authority pending the final determination of forfeiture if the
8 9 putative interest holder establishes by a preponderance of the
8 10 evidence each of the following:
8 11 1. The putative interest holder, including the defendant,
8 12 has a possessory interest in the property.
8 13 2. Continued possession of the property by the law
8 14 enforcement authority pending the final disposition of the
8 15 forfeiture proceedings will cause substantial hardship to the
8 16 putative interest holder, including any of the following:
8 17 a. Preventing the functioning of a legitimate business.
8 18 b. Preventing any individual from working.
8 19 c. Preventing any minor child or student from attending
8 20 school.
8 21 d. Preventing or hindering any person from receiving
8 22 necessary medical care.
8 23 e. Hindering the care of an elderly person or disabled
8 24 dependent child or adult.
8 25 f. Leaving any individual homeless.
8 26 g. Any other condition that the court determines causes a
8 27 substantial hardship.
8 28 3. The hardship from the continued possession of the
8 29 property by the law enforcement authority outweighs the
8 30 risk that the property will be destroyed, removed from the
8 31 jurisdiction of the court, or otherwise made unavailable for
8 32 forfeiture if the property is returned to the owner during the
8 33 pendency of the proceeding.
8 34 Sec. 21. NEW SECTION. 809B.21 Hearing regarding property ==
8 35 rules of evidence.
9 1 The court may receive and consider, at a hearing held
9 2 pursuant to section 809B.17, 809B.18, 809B.19, or 809B.20,
9 3 evidence and information that would be inadmissible under the
9 4 rules of evidence.
9 5 Sec. 22. NEW SECTION. 809B.22 Forfeiture phase of criminal
9 6 proceeding.
9 7 After a person is convicted on any count in an indictment
9 8 or information for which forfeiture is sought, the state shall
9 9 establish at a forfeiture hearing by clear and convincing
9 10 evidence that the property is forfeitable under section 809B.3
9 11 before the court enters a preliminary order of forfeiture.
9 12 Sec. 23. NEW SECTION. 809B.23 Extent of forfeitable
9 13 interest.
9 14 If the court decides it is in the interests of judicial
9 15 economy, the court or jury may determine the extent of the
9 16 convicted person's forfeitable interest in the property
9 17 before a preliminary order of forfeiture is entered. Such
9 18 determination shall be subject to amendment pursuant to section
9 19 809B.30.
9 20 Sec. 24. NEW SECTION. 809B.24 Right to trial by jury.
9 21 At the forfeiture hearing, the defendant shall have the
9 22 right to trial by jury of the forfeiture. The defendant may
9 23 waive this right while preserving the right to trial by jury of
9 24 the offense charged or other sentencing issues. Alternatively,
9 25 the defendant may preserve this right while waiving the right
9 26 to trial by jury of the offense charged or other sentencing
9 27 issues.
9 28 Sec. 25. NEW SECTION. 809B.25 Excessive fines.
9 29 1. In entering a preliminary order of forfeiture, the court
9 30 shall make a determination that the forfeiture is not grossly
9 31 disproportional to the gravity of the underlying offense. The
9 32 state shall have the burden of establishing proportionality by
9 33 clear and convincing evidence.
9 34 2. In determining the value of property forfeited, the court
9 35 shall consider, among other factors, all of the following:
10 1 a. The market value of the property.
10 2 b. The subjective value of the property to the defendant and
10 3 the defendant's family members.
10 4 3. In determining the proportionality of forfeiture,
10 5 the court shall consider, among other factors, all of the
10 6 following:
10 7 a. The value of the property subject to forfeiture as
10 8 compared to the maximum fine available for the offense upon
10 9 which the forfeiture is based.
10 10 b. The value of the property subject to forfeiture as
10 11 compared to the range of fines available for the offense upon
10 12 which the forfeiture is based.
10 13 c. Whether the offense was isolated or part of a pattern of
10 14 criminal conduct.
10 15 d. The harm resulting from the offense upon which forfeiture
10 16 is based.
10 17 Sec. 26. NEW SECTION. 809B.26 Forfeiture of substitute
10 18 property.
10 19 1. After entering a preliminary order of forfeiture,
10 20 the court may order the forfeiture of substitute property
10 21 up to the value of the property subject to the order if the
10 22 state establishes by clear and convincing evidence all of the
10 23 following:
10 24 a. The convicted person intentionally transferred, sold, or
10 25 deposited the property to avoid the court's jurisdiction.
10 26 b. The substitute property is owned in full by the convicted
10 27 person.
10 28 2. A codefendant shall not be subject to joint and several
10 29 liability for forfeiture judgments owed by other defendants
10 30 under this section.
10 31 Sec. 27. NEW SECTION. 809B.27 Notice to third parties.
10 32 1. After the court enters a preliminary order of forfeiture,
10 33 the state shall send notice to any person who reasonably
10 34 appears to be a potential claimant with standing to contest the
10 35 forfeiture in an ancillary proceeding under section 809B.30.
11 1 Such potential claimants include but are not limited to:
11 2 a. Partial or joint owners of the property subject to the
11 3 preliminary order of forfeiture.
11 4 b. Holders of a bona fide security interest in the property
11 5 subject to the preliminary order of forfeiture.
11 6 c. Bona fide purchasers for value of the property subject to
11 7 the preliminary order of forfeiture.
11 8 d. Obligees of court=ordered child support from the
11 9 convicted person.
11 10 e. Claimants of employment=related compensation from the
11 11 convicted person.
11 12 2. Notice sent under subsection 1 shall include all of the
11 13 following:
11 14 a. A description of the specific property subject to the
11 15 preliminary order of forfeiture, including but not limited to
11 16 the address of any real property, the exact dollar amount of
11 17 any money, negotiable instrument, or securities, and the make,
11 18 model, year, and license plate number of any vehicles.
11 19 b. A statement that a petition contesting forfeiture must
11 20 be filed within sixty days of the date of receipt of certified
11 21 mail or personal service.
11 22 c. A statement describing the required contents of a
11 23 petition contesting forfeiture as set forth in section 809B.29.
11 24 d. The name and contact information for the attorney to be
11 25 served with the petition.
11 26 e. The signature of the attorney general, county attorney,
11 27 or the respective authorized designees of the attorney general
11 28 or county attorney.
11 29 3. Notice shall be served personally or by certified mail on
11 30 the potential claimant.
11 31 4. If a potential claimant cannot be personally served
11 32 or located within the jurisdiction of the court, notice of
11 33 the petition shall be given by the state through all of the
11 34 following:
11 35 a. In a newspaper of general circulation published in the
12 1 county where the property shall have been seized, once a week
12 2 for two successive weeks.
12 3 b. On the internet site of the prosecuting attorney for a
12 4 period of two weeks.
12 5 5. For purposes of subsection 4, a potential claimant cannot
12 6 be located in the jurisdiction of the court if all of the
12 7 following apply:
12 8 a. A copy of the petition is mailed to the potential
12 9 claimant's last known address by certified mail and is returned
12 10 without delivery.
12 11 b. Personal service is attempted once, but cannot be made at
12 12 the last known address.
12 13 c. A copy of the petition is left at the last known address.
12 14 6. The state shall file proof of notice with the district
12 15 court. A forfeiture order shall not be final until the court
12 16 finds that such proof satisfies the notice requirements under
12 17 subsections 1 through 5.
12 18 Sec. 28. NEW SECTION. 809B.28 Third=party petition for a
12 19 hearing.
12 20 Any person, other than the defendant, asserting a legal
12 21 interest in property subject to a preliminary order of
12 22 forfeiture may, within sixty days of the date of receipt of
12 23 certified mail or personal service or, in the case such service
12 24 fails, the date of final publication of substitute notice,
12 25 petition the court for a hearing to adjudicate the validity of
12 26 the person's alleged interest in the property.
12 27 Sec. 29. NEW SECTION. 809B.29 Contents of third=party
12 28 claimant petition.
12 29 A third=party claimant petition must:
12 30 1. Be signed by the petitioner under penalty of perjury.
12 31 2. Describe the nature and extent of the petitioner's right,
12 32 title, or interest in the property, the time and circumstances
12 33 of the petitioner's acquisition of the right, title, or
12 34 interest in the property, and any additional facts supporting
12 35 the petitioner's claim.
13 1 3. Describe the relief sought, which may include but is not
13 2 limited to:
13 3 a. Return of the petitioner's property.
13 4 b. Reimbursement for the petitioner's legal interest in the
13 5 forfeited property.
13 6 c. Severance of the petitioner's property from the forfeited
13 7 property.
13 8 d. Retention of the property by the petitioner subject to
13 9 a lien in favor of the state to the extent of the forfeitable
13 10 interest.
13 11 e. Any relief the court deems appropriate and just.
13 12 Sec. 30. NEW SECTION. 809B.30 Ancillary proceedings.
13 13 1. If a third=party claimant timely files a petition
13 14 asserting a legal interest in the property to be forfeited
13 15 under section 809B.27 or 809B.28, the court shall conduct an
13 16 ancillary proceeding, no later than four months after entry
13 17 of the preliminary order of forfeiture. The hearing shall be
13 18 civil in form and the petitioner shall have a right to a jury
13 19 trial.
13 20 2. The hearing on the petition shall, to the extent
13 21 practicable and consistent with the interests of justice, be
13 22 held within thirty days of the filing of the petition. The
13 23 court may consolidate the hearing on the petition with a
13 24 hearing on any other petition filed under this section related
13 25 to the same underlying offense.
13 26 3. At the hearing, the petitioner may testify and present
13 27 evidence and witnesses, and may cross=examine witnesses who
13 28 appear at the hearing. The state may present evidence and
13 29 witnesses in rebuttal and in defense of the state's claim to
13 30 forfeit the property, and may cross=examine witnesses who
13 31 appear at the hearing. In addition to testimony and evidence
13 32 presented at the hearing, the court shall consider any relevant
13 33 portions of the record of the criminal case that resulted in
13 34 the order of forfeiture.
13 35 4. The court shall amend the order of forfeiture if, after
14 1 the hearing, the court determines that the petitioner has
14 2 established either of following by a preponderance of the
14 3 evidence:
14 4 a. The petitioner has a legal right, title, or interest
14 5 in the property, and such right, title, or interest renders
14 6 the preliminary order of forfeiture invalid in whole or in
14 7 part because the right, title, or interest was vested in the
14 8 petitioner rather than the defendant or was superior to any
14 9 right, title, or interest of the defendant at the time of the
14 10 commission of the acts which gave rise to the forfeiture of the
14 11 property under this chapter.
14 12 b. The petitioner is a bona fide purchaser for value of the
14 13 right, title, or interest in the property and the petitioner at
14 14 the time of purchase reasonably had no cause to believe that
14 15 the property was subject to forfeiture under this chapter.
14 16 Sec. 31. NEW SECTION. 809B.31 Entering a final order.
14 17 When the ancillary proceeding ends, the court shall enter
14 18 a final order of forfeiture by amending the preliminary
14 19 order as necessary to account for any third=party rights or
14 20 interests. If a third party does not file a timely petition,
14 21 the preliminary order becomes the final order of forfeiture.
14 22 Sec. 32. NEW SECTION. 809B.32 Transfer of seized property
14 23 to federal government.
14 24 1. Seizing law enforcement authorities or prosecuting
14 25 attorneys authorized to bring forfeiture proceedings under
14 26 this chapter shall not directly or indirectly transfer seized
14 27 property to any federal law enforcement authority or other
14 28 federal agency unless the court enters an order, upon petition
14 29 of the prosecuting attorney, authorizing the property to be
14 30 transferred. The court shall not enter an order authorizing a
14 31 transfer unless the activity giving rise to the investigation
14 32 or seizure is interstate in nature and sufficiently complex
14 33 to justify such transfer or the seized property may only be
14 34 forfeited under federal law.
14 35 2. The court may refuse to enter an order authorizing a
15 1 transfer to the federal government if such transfer would
15 2 circumvent the protections of this chapter that would otherwise
15 3 be available to the putative interest holder in the property.
15 4 3. A motion to transfer property to a federal law
15 5 enforcement authority under this section must include all of
15 6 the following:
15 7 a. A detailed description of the property seized.
15 8 b. The date and location where the property was seized.
15 9 c. A declaration that states the basis for relinquishing
15 10 jurisdiction to a federal law enforcement authority, contains
15 11 the names and addresses of any putative interest holders then
15 12 known, and is signed by the prosecuting attorney.
15 13 4. Prior to granting any order to transfer pursuant to
15 14 subsection 1, the district court shall give any putative
15 15 interest holder in the property the right to be heard with
15 16 regard to the transfer.
15 17 5. All property, money, or other things of value received
15 18 by a law enforcement authority pursuant to federal law which
15 19 authorizes the sharing or transfer of all or a portion of
15 20 forfeited property or the proceeds of the sale of forfeited
15 21 property to a law enforcement authority shall be promptly
15 22 distributed under section 809B.8 or 809B.9.
15 23 6. Any law enforcement authority that transfers property in
15 24 violation of subsection 1 or 2 is civilly liable to the state
15 25 for three times the amount of the forfeiture transferred and
15 26 for costs of suit and reasonable attorney fees. Any damages
15 27 awarded to the state shall be deposited in the general fund
15 28 of this state. Any agent, including state law enforcement
15 29 officers who are detached to, deputized or commissioned by,
15 30 or working in conjunction with a federal law enforcement
15 31 authority, who knowingly transfers or otherwise trades seized
15 32 property in violation of subsection 1 or 2 or who receives
15 33 property, money, or other things of value under subsection 5
15 34 and knowingly fails to transfer such property to the treasurer
15 35 of state is guilty of a serious misdemeanor.
16 1 Sec. 33. NEW SECTION. 809B.33 Jurisdiction and venue.
16 2 1. The district court has jurisdiction under this chapter
16 3 over all of the following:
16 4 a. All interests in property within this state at the time
16 5 of the seizure or when a forfeiture action is filed.
16 6 b. The interest of the putative interest holder in the
16 7 property, including the defendant, who is subject to personal
16 8 jurisdiction in this state.
16 9 2. In addition to the venue provided for under chapter
16 10 803 or any other provision of law, a proceeding under this
16 11 chapter may be maintained in the district court in the county
16 12 in which any part of the property is found or in the county in
16 13 which a civil or criminal action could be maintained against
16 14 the putative interest holder in the property, including
16 15 the defendant, for the conduct alleged to give rise to the
16 16 forfeiture.
16 17 Sec. 34. Section 80.39, subsection 1, Code 2015, is amended
16 18 to read as follows:
16 19 1. Personal property, except for motor vehicles subject
16 20 to sale pursuant to section 321.89, and seizable property
16 21 subject to disposition pursuant to chapter 809 or 809A 809B,
16 22 which personal property is found or seized by, turned in
16 23 to, or otherwise lawfully comes into the possession of the
16 24 department or a local law enforcement agency and which the
16 25 department or agency does not own, shall be disposed of
16 26 pursuant to this section. If by examining the property the
16 27 owner or lawful custodian of the property is known or can be
16 28 readily ascertained, the department or agency shall notify the
16 29 owner or custodian by certified mail directed to the owner's
16 30 or custodian's last known address, as to the location of the
16 31 property. If the identity or address of the owner cannot
16 32 be determined, notice by one publication in a newspaper of
16 33 general circulation in the area where the property was found
16 34 is sufficient notice. A published notice may contain multiple
16 35 items.
17 1 Sec. 35. Section 123.20, subsection 7, Code 2015, is amended
17 2 to read as follows:
17 3 7. To accept intoxicating liquors ordered delivered to the
17 4 alcoholic beverages division pursuant to chapter 809A 809B,
17 5 and offer for sale and deliver the intoxicating liquors to
17 6 class "E" liquor control licensees, unless the administrator
17 7 determines that the intoxicating liquors may be adulterated
17 8 or contaminated. If the administrator determines that the
17 9 intoxicating liquors may be adulterated or contaminated, the
17 10 administrator shall order their destruction.
17 11 Sec. 36. Section 321.232, subsection 3, Code 2015, is
17 12 amended to read as follows:
17 13 3. A speed detection jamming device sold, operated, or
17 14 possessed in violation of subsection 1 may be seized by a peace
17 15 officer and is subject to forfeiture as provided by chapter 809
17 16 or 809A 809B.
17 17 Sec. 37. Section 321J.4B, subsections 6, 9, and 10, Code
17 18 2015, are amended to read as follows:
17 19 6. Upon conviction of the defendant for a second
17 20 or subsequent violation of subsection 2, paragraph "a",
17 21 subparagraph (2), the court shall order, if the convicted
17 22 person is the owner of the motor vehicle used in the commission
17 23 of the offense, that that motor vehicle be seized and forfeited
17 24 to the state pursuant to chapters 809 and 809A 809B.
17 25 9. Operating a motor vehicle on a street or highway in this
17 26 state in violation of an order of impoundment or immobilization
17 27 is a serious misdemeanor. A motor vehicle which is subject to
17 28 an order of impoundment or immobilization that is operated on a
17 29 street or highway in this state in violation of the order shall
17 30 be seized and forfeited to the state under chapters 809 and
17 31 809A 809B.
17 32 10. Once the period of impoundment or immobilization has
17 33 expired, the owner of the motor vehicle shall have thirty
17 34 days to claim the motor vehicle and pay all fees and charges
17 35 imposed under this section. If the owner or the owner's
18 1 designee has not claimed the vehicle and paid all fees and
18 2 charges imposed under this section within seven days from the
18 3 date of expiration of the period, the clerk shall send written
18 4 notification to the motor vehicle owner, at the owner's last
18 5 known address, notifying the owner of the date of expiration of
18 6 the period of impoundment or immobilization and of the period
18 7 in which the motor vehicle must be claimed. If the motor
18 8 vehicle owner fails to claim the motor vehicle and pay all fees
18 9 and charges imposed within the thirty=day period, the motor
18 10 vehicle shall be forfeited to the state under chapters 809 and
18 11 809A 809B.
18 12 Sec. 38. Section 321J.4B, subsection 12, paragraph a,
18 13 subparagraph (2), Code 2015, is amended to read as follows:
18 14 (2) The holder of a security interest in a vehicle which
18 15 is impounded or immobilized pursuant to this section or
18 16 forfeited in the manner provided in chapters 809 and 809A
18 17 809B shall be notified of the impoundment, immobilization,
18 18 or forfeiture within seventy=two hours of the seizure of the
18 19 vehicle and shall have the right to claim the motor vehicle
18 20 without payment of any fees or surcharges unless the value of
18 21 the vehicle exceeds the value of the security interest held by
18 22 the creditor.
18 23 Sec. 39. Section 321J.10, subsection 7, Code 2015, is
18 24 amended to read as follows:
18 25 7. Specimens obtained pursuant to warrants issued under
18 26 this section are not subject to disposition under section 808.9
18 27 or chapter 809 or 809A 809B.
18 28 Sec. 40. Section 455B.103, subsection 4, paragraph d,
18 29 subparagraph (2), Code 2015, is amended to read as follows:
18 30 (2) In a reasonable manner, and any property seized shall be
18 31 treated in accordance with the provisions of chapters 808, 809,
18 32 and 809A 809B.
18 33 Sec. 41. Section 462A.14D, subsection 7, Code 2015, is
18 34 amended to read as follows:
18 35 7. Specimens obtained pursuant to warrants issued under
19 1 this section are not subject to disposition under section 808.9
19 2 or chapter 809 or 809A 809B.
19 3 Sec. 42. Section 706A.3, subsection 3, paragraphs d and e,
19 4 Code 2015, are amended to read as follows:
19 5 d. Ordering the payment of all reasonable costs and expenses
19 6 of the investigation and prosecution of any violation, civil
19 7 or criminal, including reasonable attorney fees in the trial
19 8 and appellate courts. Such payments received by the state,
19 9 by judgment, settlement, or otherwise, shall be considered
19 10 forfeited property and disposed of pursuant to section 809A.17
19 11 chapter 809B.
19 12 e. Ordering the forfeiture of any property subject to
19 13 forfeiture under chapter 809A 809B, pursuant to the provisions
19 14 and procedures of that chapter.
19 15 Sec. 43. Section 706A.3, subsection 4, Code 2015, is amended
19 16 to read as follows:
19 17 4. Relief under subsection 3, paragraphs "e", "f", and
19 18 "g", shall not be granted in civil proceedings instituted
19 19 by an aggrieved person unless the prosecuting attorney has
19 20 instituted the proceedings or intervened. In any action under
19 21 this section brought by the state or in which the state has
19 22 intervened, the state may employ any of the powers of seizure
19 23 and restraint of property as are provided for forfeiture
19 24 actions under chapter 809A 809B, or as are provided for the
19 25 collection of taxes payable and past due, and whose collection
19 26 has been determined to be in jeopardy.
19 27 Sec. 44. Section 706B.2, subsection 4, Code 2015, is amended
19 28 to read as follows:
19 29 4. A person who is found guilty of a violation under this
19 30 section also may be charged with violations of chapter 706A,
19 31 and property involved in a violation under this chapter is
19 32 subject to forfeiture under chapter 809A 809B.
19 33 Sec. 45. Section 715A.8, subsection 6, Code 2015, is amended
19 34 to read as follows:
19 35 6. Any real or personal property obtained by a person as
20 1 a result of a violation of this section, including but not
20 2 limited to any money, interest, security, claim, contractual
20 3 right, or financial instrument that is in the possession of the
20 4 person, shall be subject to seizure and forfeiture pursuant to
20 5 chapter 809A 809B. A victim injured by a violation of this
20 6 section, or a financial institution that has indemnified a
20 7 victim injured by a violation of this section, may file a claim
20 8 as an interest holder pursuant to section 809A.11 809B.28 for
20 9 payment of damages suffered by the victim including costs of
20 10 recovery and reasonable attorney fees.
20 11 Sec. 46. Section 716A.7, Code 2015, is amended to read as
20 12 follows:
20 13 716A.7 Forfeitures for violations of chapter.
20 14 All property, including all income or proceeds earned but
20 15 not yet received from a third party as a result of a violation
20 16 of this chapter, used in connection with a violation of this
20 17 chapter, known by the owner thereof to have been used in
20 18 violation of this chapter, shall be subject to seizure and
20 19 forfeiture pursuant to chapter 809A 809B.
20 20 Sec. 47. Section 724.26, subsection 4, Code 2015, is amended
20 21 to read as follows:
20 22 4. Except as provided in section 809A.17, subsection 5,
20 23 paragraph "b" Notwithstanding chapter 809B, a court that issues
20 24 an order or that enters a judgment of conviction described
20 25 in subsection 2 and that finds the subject of the order or
20 26 conviction to be in possession of any firearm, offensive
20 27 weapon, or ammunition shall order that such firearm, offensive
20 28 weapon, or ammunition be sold or transferred by a date
20 29 certain to the custody of a qualified person in this state,
20 30 as determined by the court. The qualified person must be
20 31 able to lawfully possess such firearm, offensive weapon, or
20 32 ammunition in this state. If the court is unable to identify a
20 33 qualified person to receive such firearm, offensive weapon, or
20 34 ammunition, the court shall order that the firearm, offensive
20 35 weapon, or ammunition be transferred by a date certain to the
21 1 county sheriff or a local law enforcement agency designated
21 2 by the court for safekeeping until a qualified person is
21 3 identified to receive the firearm, offensive weapon, or
21 4 ammunition, until such order is no longer in effect, until such
21 5 conviction is vacated, or until the person's rights have been
21 6 restored in accordance with section 724.27. If the firearm,
21 7 offensive weapon, or ammunition is to be transferred to the
21 8 sheriff's office or a local law enforcement agency, the court
21 9 shall assess the person the reasonable cost of storing the
21 10 firearm, offensive weapon, or ammunition, payable to the county
21 11 sheriff or the local law enforcement agency.
21 12 Sec. 48. Section 809.5, subsection 1, paragraph f,
21 13 subparagraph (1), Code 2015, is amended to read as follows:
21 14 (1) If the aggregate fair market value of the property is
21 15 greater than five hundred dollars, forfeiture proceedings shall
21 16 be initiated pursuant to the provisions of chapter 809A. If the
21 17 court does not order the property forfeited to the state in the
21 18 forfeiture proceedings pursuant to chapter 809A, the seizing
21 19 agency shall become the owner of the property and may dispose
21 20 of it in any reasonable manner the property shall be disposed
21 21 of as if the property was forfeited under chapter 809B and in
21 22 the manner prescribed in sections 809B.8 and 809B.9.
21 23 Sec. 49. REPEAL. Chapter 809A, Code 2015, is repealed.
21 24 Sec. 50. APPLICABILITY. The section of this Act enacting
21 25 section 809B.11 is first applicable on October 1, 2015.
21 26 Sec. 51. APPLICABILITY. The section of this Act enacting
21 27 section 809B.12 is first applicable on July 1, 2016.
21 28 EXPLANATION
21 29 The inclusion of this explanation does not constitute agreement with
21 30 the explanation's substance by the members of the general assembly.
21 31 This bill relates to criminal asset forfeiture.
21 32 Asset forfeiture is a process by which contraband and
21 33 proceeds or instrumentalities related to criminal activity may
21 34 be seized by the state and sold. Under current law, asset
21 35 forfeiture is governed by Code chapter 809A. The bill repeals
22 1 Code chapter 809A and replaces it with new Code chapter 809B.
22 2 Under current Code chapter 809A, a conviction for a
22 3 criminal offense is not required for an asset to be subject to
22 4 forfeiture. The bill provides that property is not subject to
22 5 forfeiture until a person has been convicted of an offense for
22 6 which forfeiture is expressly authorized as a penalty.
22 7 Under current Code chapter 809A, forfeiture proceedings are
22 8 generally governed by the rules of civil procedure. The bill
22 9 provides that forfeiture proceedings are governed by the rules
22 10 of criminal procedure.
22 11 Under current Code chapter 809A, forfeited property which
22 12 may be sold or forfeited cash is distributed among the seizing
22 13 agency, county attorneys, and the department of justice. The
22 14 bill provides that sold property or forfeited cash shall be
22 15 first used to satisfy any restitution orders for victims of the
22 16 underlying offense, second to pay any liabilities the state
22 17 owes to defendants or claimants who substantially prevail in
22 18 forfeiture proceedings, and third, if in the custody of the
22 19 attorney general, to the general fund of the state, or if in
22 20 the custody of the county attorney, to the general fund of the
22 21 county.
22 22 The bill requires every county to provide an annual audit
22 23 of forfeited property to the attorney general by September 30
22 24 of each year. The bill provides that this requirement applies
22 25 October 1, 2015.
22 26 The bill requires the attorney general to submit an annual
22 27 report to the general assembly giving a report of the forfeited
22 28 property and proceeds of the forfeited property. The bill
22 29 provides that this section applies July 1, 2016.
22 30 The bill describes requirements for the use of property held
22 31 in custody, use of cash or proceeds, and the distribution of
22 32 property among law enforcement. The bill provides taxpayer
22 33 standing for any alleged violations of the use of property
22 34 held in custody, use of cash or proceeds, the distribution of
22 35 property among law enforcement, and the reporting requirements
23 1 for counties and the attorney general. By providing taxpayer
23 2 standing, a taxpayer in the state has standing to challenge an
23 3 action as contrary to those requirements, even if such taxpayer
23 4 has no injury other than as a taxpayer.
23 5 The bill provides that in a forfeiture proceeding
23 6 under new Code chapter 809B in which the defendant or
23 7 claimant substantially prevails, the state shall be liable
23 8 for reasonable attorney fees and other litigation costs
23 9 reasonably incurred by the defendant or claimant, postjudgment
23 10 interest, and in cases involving currency or other negotiable
23 11 instruments, interest actually paid to the state and an imputed
23 12 amount of interest that such currency or instrument would have
23 13 earned at the rate applicable to the 30=day treasury bill, for
23 14 any period during which no interest was paid.
23 15 The bill provides that forfeiture proceedings shall be
23 16 tried in the same proceeding as the criminal case unless the
23 17 defendant moves to bifurcate the trial of the forfeiture from
23 18 the trial of the underlying criminal offense.
23 19 Under current law, an in rem civil forfeiture proceeding
23 20 is held without a jury. The bill provides that the defendant
23 21 has the right to trial by jury regarding the forfeiture. The
23 22 defendant may waive this right while maintaining the right to
23 23 trial by jury for the criminal offense, or waive the right to
23 24 trial by jury for the criminal offense and maintain such right
23 25 for the forfeiture proceeding.
23 26 The bill provides that a court shall make a determination
23 27 that the forfeiture is not grossly disproportional to the
23 28 gravity of the underlying offense. The state shall have the
23 29 burden of establishing proportionality by clear and convincing
23 30 evidence.
23 31 The bill provides that a law enforcement agent who transfers
23 32 seized property to the federal government other than upon a
23 33 court order, or who receives property, money, or other things
23 34 of value from the federal government pursuant to federal law
23 35 which authorizes the sharing or transfer of all or a portion
24 1 of forfeited property or the proceeds of the sale of forfeited
24 2 property and fails to transfer such property to the treasurer
24 3 of state is guilty of a serious misdemeanor. A serious
24 4 misdemeanor is punishable by confinement for no more than one
24 5 year and a fine of at least $315 but not more than $1,875.
24 6 The bill makes conforming changes relating to the repeal of
24 7 Code chapter 809A and the enactment of new Code chapter 809B.
LSB 2055XS (15) 86
jh/rj