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HB 358: "An Act relating to impoundment or forfeiture of a motor vehicle, aircraft, or watercraft; and providing for an effective date."

00HOUSE BILL NO. 358 01 "An Act relating to impoundment or forfeiture of a motor vehicle, aircraft, or 02 watercraft; and providing for an effective date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. FINDINGS AND PURPOSE. (a) The legislature finds that 05 (1) drunk driving is a serious threat to public safety and causes major property 06 damage and many deaths in the state; 07 (2) motor vehicle, aircraft, or watercraft used in the commission of a drunk 08 driving offense are dangerous instruments and should be impounded and in certain cases 09 forfeited to the state; 10 (3) the enactment of impoundment or forfeiture laws is a reasonable method 11 to achieve the goal of reducing the number of people who commit drunk driving offenses. 12 (b) It is the purpose of this Act to 13 (1) promote public safety by reducing the number of people who drink and 14 drive;

01 (2) deter drunk driving by impounding and in certain cases forfeiting motor 02 vehicle, aircraft, or watercraft used in the commission of drunk driving offenses. 03 * Sec. 2. AS 04.21.065(a) is amended to read: 04 (a) A holder of one of the following types of licenses or permits shall post on 05 the licensed or designated premises two separate warning signs as described in (b) of 06 this section and the two separate warning signs described under (m) of this 07 section : 08 (1) beverage dispensary license; 09 (2) restaurant or eating place license; 10 (3) club license; 11 (4) brewery license; this paragraph applies only to a brewery that 12 permits a person to sample portions of the brewery's product; 13 (5) package store license; 14 (6) common carrier dispensary license; 15 (7) recreational site license; 16 (8) pub license; 17 (9) winery license; this paragraph applies only to a winery that permits 18 a person to sample portions of the winery's product; 19 (10) caterer's permit; 20 (11) special events permit; 21 (12) conditional contractor's permit; 22 (13) another license or permit issued by the board authorizing 23 consumption of alcoholic beverages. 24 * Sec. 3. AS 04.21.065 is amended by adding a new subsection to read: 25 (m) A licensee shall display at conspicuous places on licensed premises two 26 signs warning that a motor vehicle may be seized in cases of driving while intoxicated 27 or refusal to submit to chemical tests. One of these warning signs shall be at least 18 28 inches by 24 inches in size and must read in lettering at least two inches high and in 29 contrasting colors "DRIVE DRUNK - LOSE YOUR CAR." The sign described in the 30 preceding sentence must carry a logo or illustration approved by the board that shows 31 an automobile being towed. The second warning sign shall be at least 14 inches by

01 18 inches and must read in letters at least one-quarter inch high and in contrasting 02 colors "WARNING: IF YOU DRIVE WHILE INTOXICATED OR LET ANYONE 03 DRIVE YOUR VEHICLE WHILE INTOXICATED, YOU WILL LOSE YOUR 04 VEHICLE. The police SEIZE cars and trucks driven by intoxicated drivers. A motor 05 vehicle will be IMPOUNDED for 30 days for the driver's first DWI offense. A motor 06 vehicle will be FORFEITED if the driver has been previously convicted of DWI in the 07 past (10) years." 08 * Sec. 4. AS 12.30.020 is amended by adding new subsections to read: 09 (i) In addition to the conditions of release imposed under (b) of this section, 10 the conditions of release established for a person charged with a violation of 11 AS 28.35.030 or 28.35.032 must include at a minimum an order that the person's 12 interest, if any, in the motor vehicle, aircraft, or watercraft alleged in an oral statement 13 by a police officer, criminal complaint, information, or indictment to have been used 14 in the commission of the offense be forfeited if the person does not appear as ordered. 15 This subsection applies to any release before judgment of conviction on a charge of 16 violating AS 28.35.030 or 28.35.032, including any release on the person's own 17 recognizance. 18 (j) The judicial officer who sets the conditions of release for a person arrested 19 for a violation of AS 28.35.030 or 28.35.032 shall, in addition to the conditions of 20 release required under (b) of this section, set a motor vehicle, aircraft, or watercraft 21 return bond for the motor vehicle, aircraft, or watercraft alleged in an oral statement 22 of a police officer or criminal complaint, information, or indictment to have been used 23 in the commission of the offense if the records of the Department of Public Safety, or 24 the records of an agency with similar responsibilities in another state, show that the 25 person arrested for the offense has any interest in the motor vehicle, aircraft, or 26 watercraft. The purpose of setting a motor vehicle, aircraft, or watercraft return bond 27 is to secure the presence of the motor vehicle, aircraft, or watercraft pending trial and 28 to provide security to be forfeited along with the proceeds of a sale, transfer, or 29 encumbrance if the person's interest in the motor vehicle, aircraft, or watercraft is sold, 30 transferred, or encumbered after the motor vehicle, aircraft, or watercraft has been 31 released pending trial. A person who secures the release of a motor vehicle, aircraft,

01 or watercraft under a motor vehicle, aircraft, or watercraft return bond must return the 02 motor vehicle, aircraft, or watercraft to the custody of the state upon order of the court. 03 If the motor vehicle's, aircraft's, or watercraft's release has been obtained through the 04 posting of a motor vehicle, aircraft, or watercraft return bond and the motor vehicle, 05 aircraft, or watercraft is not returned as required by the court's order after a judgment 06 of conviction, the state may, in addition to obtaining the forfeited bond funds, seize 07 the motor vehicle, aircraft, or watercraft to implement the impoundment or forfeiture 08 ordered by the court. If the person has not been previously convicted, the judicial 09 officer setting the motor vehicle, aircraft, or watercraft return bond shall order that the 10 requirement of the motor vehicle, aircraft, or watercraft return bond shall automatically 11 expire 30 days after the motor vehicle, aircraft, or watercraft has been seized if the 12 motor vehicle, aircraft, or watercraft has not been released under a motor vehicle, 13 aircraft, or watercraft return bond. The motor vehicle, aircraft, or watercraft return 14 bond set under this subsection may only be posted by a person alleged to have used 15 the motor vehicle, aircraft, or watercraft while violating AS 28.35.030 or 28.35.032 or 16 by a person who agrees to return the motor vehicle, aircraft, or watercraft upon order 17 of the court upon penalty of forfeiture of the bond. A motor vehicle, aircraft, or 18 watercraft return bond may only be posted in cash and must be set at a minimum of 19 (1) $250 if the person has not been previously convicted; (2) $500 if the person has 20 been previously convicted and the motor vehicle, aircraft, or watercraft is 20 years old 21 or older; (3) $1,000 if the person has been previously convicted and the motor vehicle, 22 aircraft, or watercraft is 15 years old or older but less than 20 years old; (4) $1,500 23 if the person has been previously convicted and the motor vehicle, aircraft, or 24 watercraft is 10 years old or older but less than 15 years old; (5) $2,000 if the person 25 has been previously convicted and the motor vehicle, aircraft, or watercraft is five 26 years old or older but less than 10 years old; and (6) $2,500 if the person has been 27 previously convicted and the motor vehicle, aircraft, or watercraft is less than five 28 years old. In this subsection, "previously convicted" has the meaning given in 29 AS 28.35.030. 30 (k) A motor vehicle, aircraft, or watercraft return bond may be set above the 31 minimum provided under (j) of this section if the motor vehicle, aircraft, or watercraft

01 appears to have an unusually high value for its age. A motor vehicle, aircraft, or 02 watercraft for which a bond is required under (j) of this section may not be released 03 pending trial until (1) the person seeking release of the motor vehicle, aircraft, or 04 watercraft has provided proof of ownership of the motor vehicle, aircraft, or watercraft 05 and paid or provided proof of payment of the motor vehicle, aircraft, or watercraft 06 return bond and towing and storage fees, including the $160 administrative fee to 07 offset the department's processing costs; or (2) the court makes a specific finding that 08 the seizure of the motor vehicle, aircraft, or watercraft was legally unjustified and the 09 specific finding follows a contested hearing or is established by a stipulation between 10 the parties. If a motor vehicle, aircraft, or watercraft has not been impounded for a 11 longer period than the motor vehicle, aircraft, or watercraft would be impounded if the 12 person were convicted, the court may not delete the requirement of the motor vehicle, 13 aircraft, or watercraft return bond or exonerate a posted motor vehicle, aircraft, or 14 watercraft return bond until the motor vehicle, aircraft, or watercraft for which bond 15 has been posted is returned to the department under a court order. In this subsection, 16 "legally unjustified" means there was no reasonable suspicion for the stop or probable 17 cause for the arrest. 18 (l) A motor vehicle, aircraft, or watercraft that is subject to a court order 19 setting a motor vehicle, aircraft, or watercraft return bond under (j) of this section and 20 has not been released under that order is subject to the disposal provisions of 21 AS 28.10.502(c) if a criminal complaint, information, or indictment is not filed by the 22 date and time of the scheduled arraignment alleging a violation of AS 28.35.030 or 23 28.35.032, or if the count of the criminal complaint, information, or indictment 24 alleging a violation of AS 28.35.030 or 28.35.032 is amended upon motion of the 25 prosecution, is dismissed by the prosecution, or is resolved by the acquittal of the 26 person alleged to have violated AS 28.35.030 or 28.35.032. A motor vehicle, aircraft, 27 or watercraft return bond expires on the date and time of the scheduled arraignment 28 if a criminal complaint, information, or indictment alleging a violation of AS 28.35.030 29 or 28.35.032 is filed by the date and time of the scheduled arraignment. 30 * Sec. 5. AS 28.35.030(b) is amended to read: 31 (b) Except as provided under (n) of this section, driving while intoxicated is

01 a class A misdemeanor. Upon conviction 02 (1) the court shall impose a minimum sentence of imprisonment of 03 (A) not less than 72 consecutive hours and a fine of not less 04 than $250 if the person has not been previously convicted; 05 (B) not less than 20 days and a fine of not less than $500 if the 06 person has been previously convicted once; 07 (C) not less than 60 days and a fine of not less than $1,000 if 08 the person has been previously convicted twice and is not subject to 09 punishment under (n) of this section; 10 (D) not less than 120 days and a fine of not less than $2,000 11 if the person has been previously convicted three times and is not subject to 12 punishment under (n) of this section; 13 (E) not less than 240 days and a fine of not less than $3,000 if 14 the person has been previously convicted four times and is not subject to 15 punishment under (n) of this section; 16 (F) not less than 360 days and a fine of not less than $4,000 if 17 the person has been previously convicted more than four times and is not 18 subject to punishment under (n) of this section; 19 (2) the court may not 20 (A) suspend execution of sentence or grant probation except on 21 condition that the person serve the minimum imprisonment under (1) of this 22 subsection; 23 (B) suspend imposition of sentence; 24 (3) the court shall revoke the person's driver's license, privilege to 25 drive, or privilege to obtain a license under AS 28.15.181, shall order the motor 26 vehicle, aircraft, or watercraft used in the commission of the offense impounded 27 as required under AS 28.35.036, and may order the motor vehicle , [OR] aircraft , or 28 watercraft that was used in commission of the offense to be forfeited under 29 AS 28.35.037; 30 (4) the court shall order that any motor vehicle, aircraft, or 31 watercraft return bond that has been posted under AS 12.30.020(j) to secure the

01 release of the motor vehicle, aircraft, or watercraft be forfeited to the state if the 02 motor vehicle, aircraft, or watercraft subject to the motor vehicle, aircraft, or 03 watercraft return bond is not returned to the custody of the state within five days 04 after the sentencing; the court shall order that any motor vehicle, aircraft, or 05 watercraft return bond posted to secure the release of the motor vehicle, aircraft, 06 or watercraft be exonerated when the motor vehicle, aircraft, or watercraft has 07 been returned to the custody of the state as required by this paragraph; the court 08 may also order that any proceeds of any sale, transfer, or encumbrance of the 09 motor vehicle, aircraft, or watercraft be forfeited to the state if the motor vehicle, 10 aircraft, or watercraft has been sold, transferred, or encumbered while the motor 11 vehicle, aircraft, or watercraft has been subject to a motor vehicle, aircraft, or 12 watercraft return bond; a motor vehicle, aircraft, or watercraft ordered 13 impounded under AS 28.35.036 may not be released until after the person seeking 14 release of the motor vehicle, aircraft, or watercraft has satisfied the release 15 provisions of AS 12.30.020(k); any order of impoundment under AS 28.35.036 or 16 forfeiture under AS 28.35.037 is subject to the rights of lienholders and coowners 17 who are not the person convicted under this section as those rights are 18 adjudicated in proceedings under AS 28.35.037; if the state has brought a civil 19 action under AS 28.35.037 seeking forfeiture as against all those with an interest 20 in the motor vehicle, aircraft, or watercraft except the person charged with a 21 violation of this section, that civil action shall provide the sole forum in which 22 lienholders and coowners who claim an interest in the motor vehicle, aircraft, or 23 watercraft but are not the person charged with a violation of this section can seek 24 relief; in this paragraph, "interest in the motor vehicle, aircraft, or watercraft" 25 means a right, claim, or title to the motor vehicle, aircraft, or watercraft or a 26 legal share in the motor vehicle, aircraft, or watercraft that the oral statement of 27 a police officer, complaint, indictment, or information alleges was used in the 28 commission of a violation of this section [AS 28.35.036]. 29 * Sec. 6. AS 28.35.030(n) is amended to read: 30 (n) A person is guilty of a class C felony if the person is convicted of driving 31 while intoxicated and has been previously convicted two or more times. For purposes

01 of determining if a person has been previously convicted, the provisions of (o)(4) of 02 this section apply, except that only convictions occurring within five years preceding 03 the date of the present offense may be included. Upon conviction the court 04 (1) shall impose a fine of not less than $5,000 and a minimum sentence 05 of imprisonment of not less than 06 (A) 120 days if the person has been previously convicted twice; 07 (B) 240 days if the person has been previously convicted three 08 times; 09 (C) 360 days if the person has been previously convicted four 10 or more times; 11 (2) may not 12 (A) suspend execution of sentence or grant probation except on 13 condition that the person serve the minimum imprisonment under (1) of this 14 subsection; or 15 (B) suspend imposition of sentence; 16 (3) shall revoke the person's driver's license, privilege to drive, or 17 privilege to obtain a license under AS 28.15.181(c); 18 (4) may order as a condition of probation or parole that the person take 19 a drug or combination of drugs, intended to prevent the consumption of an alcoholic 20 beverage; a condition of probation imposed under this paragraph is in addition to any 21 other condition authorized under another provision of law; and 22 (5) may also order impoundment [FORFEITURE] under AS 28.35.036 23 of the motor vehicle , [OR] aircraft , or watercraft used in the commission of the 24 offense, or forfeiture of the motor vehicle, aircraft, or watercraft [SUBJECT TO 25 REMISSION] under AS 28.35.037. 26 * Sec. 7. AS 28.35.032(g) is amended to read: 27 (g) Upon conviction under this section 28 (1) the court shall impose a minimum sentence of imprisonment of 29 (A) not less than 72 consecutive hours and a fine of not less 30 than $250 if the person has not been previously convicted; 31 (B) not less than 20 days and a fine of not less than $500 if the

01 person has been previously convicted once; 02 (C) not less than 60 days and a fine of not less than $1,000 if 03 the person has been previously convicted twice and is not subject to 04 punishment under (q) of this section; 05 (D) not less than 120 days and a fine of not less than $2,000 06 if the person has been previously convicted three times and is not subject to 07 punishment under (q) of this section; 08 (E) not less than 240 days and a fine of not less than $3,000 if 09 the person has been previously convicted four times and is not subject to 10 punishment under (q) of this section; 11 (F) not less than 360 days and a fine of not less than $4,000 if 12 the person has been previously convicted more than four times and is not 13 subject to punishment under (q) of this section; 14 (2) the court may not 15 (A) suspend execution of the sentence required by (1) of this 16 subsection or grant probation, except on condition that the person serve the 17 minimum imprisonment under (1) of this subsection; or 18 (B) suspend imposition of sentence; 19 (3) the court shall revoke the person's driver's license, privilege to 20 drive, or privilege to obtain a license under AS 28.15.181, shall order the motor 21 vehicle, aircraft, or watercraft used in the commission of the offense impounded 22 as required under AS 28.35.036, and may order the motor vehicle , [OR] aircraft , or 23 watercraft that was used in commission of the offense be forfeited under 24 AS 28.35.037 [AS 28.35.036]; [AND] 25 (4) the sentence imposed by the court under this subsection shall run 26 consecutively with any other sentence of imprisonment imposed on the person ; 27 (5) the court shall order that any motor vehicle, aircraft, or 28 watercraft return bond that has been posted to secure the release of the motor 29 vehicle, aircraft, or watercraft be forfeited to the state if the motor vehicle, 30 aircraft, or watercraft subject to the motor vehicle, aircraft, or watercraft return 31 bond is not returned to the custody of the state within five days after the

01 sentencing; the court shall order that any motor vehicle, aircraft, or watercraft 02 return bond posted to secure the release of the motor vehicle, aircraft, or 03 watercraft be exonerated when the motor vehicle, aircraft, or watercraft has been 04 returned to the custody of the state as required by this paragraph; the court may 05 also order that any proceeds of any sale, transfer, or encumbrance of the motor 06 vehicle, aircraft, or watercraft be forfeited to the state if the motor vehicle, 07 aircraft, or watercraft has been sold, transferred, or encumbered while the motor 08 vehicle, aircraft, or watercraft has been subject to a motor vehicle, aircraft, or 09 watercraft return bond; a motor vehicle, aircraft, or watercraft ordered 10 impounded under AS 28.35.036 may not be released until after the person seeking 11 release of the motor vehicle, aircraft, or watercraft has satisfied the release 12 provisions of AS 12.30.020(k); an order of impoundment under AS 28.35.036 or 13 forfeiture under AS 28.35.037 is subject to the rights of lienholders and coowners 14 who are not the person convicted of a violation of this section as those rights are 15 adjudicated in proceedings under AS 28.35.037; if the state has brought a civil 16 action under AS 28.35.037 seeking impoundment or forfeiture as against all those 17 with an interest in the motor vehicle, aircraft, or watercraft except the person 18 charged with a violation of this section, that civil action shall provide the sole 19 forum in which lienholders and coowners who claim an interest in the motor 20 vehicle, aircraft, or watercraft but are not the person charged with a violation of 21 this section can seek relief; in this paragraph, "interest in the motor vehicle, 22 aircraft, or watercraft" has the meaning given in AS 28.35.030(b)(4) . 23 * Sec. 8. AS 28.35.032(p) is amended to read: 24 (p) A person is guilty of a class C felony if the person is convicted under this 25 section and has been previously convicted two or more times within the five years 26 preceding the date of the present offense. For purposes of determining minimum 27 sentences based on previous convictions, the provisions of AS 28.35.030(o)(4) apply. 28 Upon conviction, 29 (1) the court shall impose a fine of not less than $5,000 and a 30 minimum sentence of imprisonment of not less than 31 (A) 120 days if the person has been previously convicted twice;

01 (B) 240 days if the person has been previously convicted three 02 times; 03 (C) 360 days if the person has been previously convicted four 04 or more times; 05 (2) the court may not 06 (A) suspend execution of the sentence required by (1) of this 07 subsection or grant probation, except on condition that the person serve the 08 minimum imprisonment under (1) of this subsection; or 09 (B) suspend imposition of sentence; 10 (3) the court shall revoke the person's driver's license, privilege to 11 drive, or privilege to obtain a license under AS 28.15.181(c); 12 (4) the court may order as a condition of probation or parole that the 13 person take a drug, or combination of drugs, intended to prevent consumption of an 14 alcoholic beverage; a condition of probation imposed under this paragraph is in 15 addition to any other condition authorized under another provision of law; 16 (5) the sentence imposed by the court under this subsection shall run 17 consecutively with any other sentence of imprisonment imposed on the person; and 18 (6) the court may also order impoundment [FORFEITURE] under 19 AS 28.35.036, of the motor vehicle , [OR] aircraft , or watercraft used in the 20 commission of the offense, or forfeiture of the motor vehicle, aircraft, or 21 watercraft [SUBJECT TO REMISSION] under AS 28.35.037. 22 * Sec. 9. AS 28.35.036 is repealed and reenacted to read: 23 Sec. 28.35.036. Impoundment of a motor vehicle, aircraft, or watercraft. 24 (a) A motor vehicle, aircraft, or watercraft may be impounded if the impoundment is 25 incident to a valid arrest by a peace officer and there is probable cause to believe the 26 motor vehicle, aircraft, or watercraft was operated or driven by a person while 27 committing a violation of AS 28.35.030 or 28.35.032. A motor vehicle, aircraft, or 28 watercraft impounded under this subsection may not be held for more than two days, 29 unless a court orders continuation of the impoundment. 30 (b) If a person is convicted under AS 28.35.030 or 28.35.032, the court shall 31 order impoundment of the motor vehicle, aircraft, or watercraft involved in the

01 commission of the offense for a period of at least 30 days. 02 (c) Notwithstanding any other provisions of law, costs of impoundment 03 incurred by the state shall be waived by the state or, if already collected, refunded by 04 the state, if the person operating the motor vehicle, aircraft, or watercraft during the 05 incident that resulted in impoundment is not convicted of a violation of AS 28.35.030 06 or 28.35.032. 07 (d) A motor vehicle, aircraft, or watercraft ordered impounded under this 08 section that is not claimed at the end of the court-ordered period of impoundment may 09 be disposed of under the provisions of this section. If the contents of the motor 10 vehicle, aircraft, or watercraft have not been recovered before disposal, the contents 11 may be disposed of with the motor vehicle, aircraft, or watercraft. Personal property 12 in a motor vehicle, aircraft, or watercraft that is subject to a motor vehicle, aircraft, or 13 watercraft return bond and that has not been released under the motor vehicle, aircraft, 14 or watercraft return bond can be recovered only by the owner of the motor vehicle, 15 aircraft, or watercraft and only upon payment of a fee charged for monitoring the 16 recovery of the personal property. The fee shall be set by contract between the towing 17 and storage contractor and the state if it is not established by the Department of Public 18 Safety. The fee shall be recoverable by the owner of the motor vehicle, aircraft, or 19 watercraft if a court makes a specific finding that the seizure of the motor vehicle, 20 aircraft, or watercraft was legally unjustified following a contested hearing or under 21 a stipulation between the parties. 22 (e) A motor vehicle, aircraft, or watercraft that is impounded and that has not 23 been released under (g) of this section shall be held in the custody of the Department 24 of Public Safety or a private corporation authorized by the Department of Public Safety 25 to retain custody of the motor vehicle, aircraft, or watercraft, subject only to an order 26 of a court of competent jurisdiction. If a motor vehicle, aircraft, or watercraft is seized 27 under this section, the Department of Public Safety or an authorized designee may 28 (1) remove the motor vehicle, aircraft, or watercraft and any contents 29 of the motor vehicle, aircraft, or watercraft to a place designated by the court; or 30 (2) take custody of the motor vehicle, aircraft, or watercraft and any 31 contents of the motor vehicle, aircraft, or watercraft and remove it to an appropriate

01 location for disposition in accordance with law. 02 (f) A private corporation may not make or perform a contract to tow, store, or 03 retain custody of a motor vehicle, aircraft, or watercraft not seized or impounded under 04 this section, if any of the owners of that private corporation have been convicted of 05 a felony or a crime involving larceny, theft, or receiving and concealing stolen 06 property within 10 years before the date of execution of the contract or during the term 07 of the contract. A private corporation may not make or perform a contract to tow, 08 store, or retain custody of a motor vehicle, aircraft, or watercraft seized or impounded 09 under this section if an employee of the private corporation has been convicted of a 10 felony or a crime involving larceny, theft, or receiving and concealing stolen property 11 within five years before the date of execution of the contract or during the term of the 12 contract. 13 (g) Unless a motor vehicle, aircraft, or watercraft is released under an 14 agreement under AS 28.35.037(j), the person seeking possession of a motor vehicle, 15 aircraft, or watercraft impounded by the state must obtain an order authorizing release 16 of the motor vehicle, aircraft, or watercraft. A release may not be granted unless the 17 applicant can satisfy the release provisions established under AS 12.30.020(k). 18 * Sec. 10. AS 28.35.037 is repealed and reenacted to read: 19 Sec. 28.35.037. Forfeiture of a motor vehicle, aircraft, or watercraft. (a) 20 After a person is convicted of an offense under AS 28.35.030 or 28.35.032, the state 21 shall move the court to order that the person's interest in the motor vehicle, aircraft, 22 or watercraft involved in the commission of the offense be forfeited to the state if the 23 person has any interest in the motor vehicle, aircraft, or watercraft and the convicted 24 person has within the 10 years preceding the date of the present offense been 25 previously convicted in this or another jurisdiction of one of the following offenses: 26 (1) driving while intoxicated under AS 28.35.030 or another law or 27 ordinance with substantially similar elements; or 28 (2) refusal to submit to a chemical test under AS 28.35.032 or another 29 law or ordinance with substantially similar elements. 30 (b) Upon receipt of a motion for forfeiture allowed under (a) of this section, 31 the court shall schedule a hearing on the matter and shall notify the state and the

01 convicted person of the time and place set for the hearing. 02 (c) In addition to forfeiture in conjunction with a criminal proceeding under 03 (b) of this section, the Department of Public Safety may seek forfeiture of a motor 04 vehicle, aircraft, or watercraft in a civil action or in an administrative action if the 05 person who operates or drives the motor vehicle, aircraft, or watercraft involved in a 06 violation of AS 28.35.030 or 28.35.032 has been previously convicted as provided 07 under (a) of this section and is not the registered or actual owner of the motor vehicle, 08 aircraft, or watercraft. After commencement of an administrative forfeiture action, the 09 Department of Public Safety shall provide notice as described under (e) and (f) of this 10 section and shall schedule a hearing on the matter. The prevailing party in an 11 administrative forfeiture action shall be awarded the same costs and attorney fees that 12 would be awarded under the Alaska Rules of Civil Procedure. Upon request of the 13 Department of Public Safety or a claimant, a civil proceeding seeking forfeiture of a 14 motor vehicle, aircraft, or watercraft shall be delayed until conclusion of any pending 15 criminal charges arising out of the incident giving rise to the forfeiture proceedings. 16 (d) An administrative hearing required under (c) of this section shall be held 17 before a hearing officer designated by the commissioner of public safety. Upon the 18 consent of the administrative director of the state court system, the commissioner of 19 public safety may designate a district court judge or a magistrate to serve as the 20 hearing officer. The hearing officer shall have authority to 21 (1) administer oaths and affirmations; 22 (2) examine witnesses and take testimony; 23 (3) receive relevant evidence; 24 (4) issue subpoenas, take depositions, or cause depositions or 25 interrogatories to be taken; 26 (5) regulate the course and conduct of the hearing; 27 (6) make a final ruling on the issue. 28 (e) Upon receiving notice from the court of the time and place set for a 29 forfeiture hearing under (b) of this section, or upon initiating a civil action or an 30 administrative forfeiture action under (c) of this section, the state shall provide to every 31 person who has, according to the records of the department, an ownership or security

01 interest in the motor vehicle, aircraft, or watercraft written notice that includes 02 (1) a description of the motor vehicle, aircraft, or watercraft; 03 (2) the time and place of the forfeiture hearing; 04 (3) the legal authority under which the motor vehicle, aircraft, or 05 watercraft may be forfeited; 06 (4) notice of the right to appear to protect the interest in the motor 07 vehicle, aircraft, or watercraft. 08 (f) If the registered owner of the motor vehicle, aircraft, or watercraft subject 09 to a forfeiture action cannot be determined from the records of the department, the 10 state shall publish a notice of the forfeiture action for two consecutive weeks in a 11 newspaper of general circulation in the judicial district in which the forfeiture action 12 is filed. The notice must include a description of the motor vehicle, aircraft, or 13 watercraft, the time and place of impoundment, and directions as to whom to contact 14 for more information. 15 (g) A person who fails to enter an appearance in a forfeiture action within 20 16 days after receiving written notice required under (e) of this section or 20 days after 17 completion of the notice required under (f) of this section, whichever is later, waives 18 the right to object to the forfeiture action. A party who requests a hearing in a civil 19 forfeiture action shall be deemed to have received notice of the civil action as required 20 by (f) of this section. A party who secures the release of a motor vehicle, aircraft, or 21 watercraft pending a hearing shall accept service of notice of the civil action as a 22 condition of release of the motor vehicle, aircraft, or watercraft. For a regulated 23 lienholder, the requirement of notice of claim and answer is met by filing the 24 information required under (s) of this section and including a statement of the original 25 amount of the loan giving rise to the lien and the current balance of that loan. 26 (h) At a forfeiture hearing required under (b) or (c) of this section, a person 27 other than the defendant who claims an ownership or security interest in the motor 28 vehicle, aircraft, or watercraft must establish by a preponderance of the evidence that 29 (1) the person has an interest in the motor vehicle, aircraft, or 30 watercraft acquired in good faith; 31 (2) a person other than the claimant was convicted of the offense that

01 resulted in the forfeiture; 02 (3) before parting with possession of the motor vehicle, aircraft, or 03 watercraft the person did not know or have reasonable cause to believe that it would 04 be used in the commission of an offense; and 05 (4) the costs of impoundment have been paid as required under 06 AS 28.35.036. 07 (i) If the state is seeking forfeiture of a motor vehicle, aircraft, or watercraft 08 in a hearing required under (b) or (c) of this section and the person who was in 09 possession of the motor vehicle, aircraft, or watercraft during the commission of the 10 offense was driving with a suspended license in violation of AS 28.15.291 or was the 11 spouse, child, or sibling of a person with an ownership or security interest in the motor 12 vehicle, aircraft, or watercraft, it is rebuttably presumed that the person holding the 13 ownership or security interest did know or have reasonable cause to believe that the 14 motor vehicle, aircraft, or watercraft would be used in the commission of an offense. 15 (j) The state may enter into an agreement with the registered owner or 16 lienholder of a motor vehicle, aircraft, or watercraft to resolve a civil impound or 17 forfeiture action and permit release of the motor vehicle, aircraft, or watercraft. Any 18 agreement allowed under this subsection must include 19 (1) proof of ownership or, if a lienholder, the right to repossess the 20 vehicle, aircraft, or watercraft, and acceptance by the owner or lienholder of 21 responsibility for meeting the requirements of (h)(4) of this section; 22 (2) agreement that the owner or lienholder will prevent the individual 23 arrested for or charged with a violation of AS 28.35.030 or 28.35.032 from operating 24 the motor vehicle, aircraft, or watercraft until the individual is properly licensed; and 25 (3) acknowledgment by the owner or lienholder that failure to fulfill 26 an obligation under the agreement may result in forfeiture of the motor vehicle, 27 aircraft, or watercraft at the option of the state; this paragraph does not apply to a 28 regulated lienholder. 29 (k) An acquittal or a conviction of a lesser offense in a criminal proceeding 30 for a violation of AS 28.35.030 or 28.35.032 provides a defense in a civil proceeding 31 seeking impoundment or forfeiture of the motor vehicle, aircraft, or watercraft if that

01 civil proceeding is based on the same conduct that forms the basis for the criminal 02 charge. 03 (l) A claimant who is not charged with a violation of AS 28.35.030 or 04 28.35.032 may petition for setting or revision of bail release of a motor vehicle, 05 aircraft, or watercraft before a civil action is filed. A petition allowed under this 06 subsection shall be made to a court of competent jurisdiction. 07 (m) If the state is seeking forfeiture of a motor vehicle, aircraft, or watercraft 08 under this section and a person satisfies the requirements of (h) of this section, the 09 court or the Department of Public Safety shall release the motor vehicle, aircraft, or 10 watercraft to the person together with title to the motor vehicle, aircraft, or watercraft 11 if 12 (1) the person is an owner or co-owner of the motor vehicle, aircraft, 13 or watercraft; 14 (2) the value of the person's interest exceeds the value of the motor 15 vehicle, aircraft, or watercraft; or 16 (3) the value of the interest is less than the value of the motor vehicle, 17 aircraft, or watercraft and the person agrees to sell the motor vehicle, aircraft, or 18 watercraft and pay the state the value of the offender's interest in the motor vehicle, 19 aircraft, or watercraft. 20 (n) Upon forfeiture of a motor vehicle, aircraft, or watercraft the court or the 21 Department of Public Safety shall require the surrender of the registration and 22 certificate of title of that motor vehicle, aircraft, or watercraft. The registration and 23 certificate of title shall be delivered to the department. 24 (o) A motor vehicle, aircraft, or watercraft forfeited under this section may be 25 disposed of by the Department of Public Safety as provided under this subsection. 26 Before disposing of a motor vehicle, aircraft, or watercraft forfeited under this section, 27 the Department of Public Safety shall make an inventory of the contents of any motor 28 vehicle, aircraft, or watercraft seized. Property forfeited under this section includes 29 both the motor vehicle, aircraft, or watercraft that is the subject of the forfeiture action 30 and the contents of the motor vehicle, aircraft, or watercraft if those contents have not 31 been recovered before the date of the disposal. The Department of Public Safety may

01 (1) sell the property at an auction conducted by an auctioneer not 02 employed by the impound contractor and use the proceeds for payment of all proper 03 expenses of seizure, custody, the costs of the auction, court costs, and attorney fees; 04 if the sale is arranged for by the impound contractor, the Department of Public Safety 05 shall receive at least 30 percent of the proceeds of any sale of forfeited motor vehicles, 06 aircraft, or watercraft following deduction for the costs charged by the auctioneer for 07 the auction of the motor vehicles, aircraft, or watercraft regardless of whether the costs 08 of impound and storage exceed the value of the motor vehicles, aircraft, or watercraft 09 sold; 10 (2) take custody of the property and use it in the enforcement of the 11 municipal and state criminal codes; or 12 (3) destroy the property. 13 (p) Within 30 days of the issuance of the final determination of the 14 Department of Public Safety, a person aggrieved by the determination may file an 15 appeal in superior court for judicial review of the hearing officer's determination. The 16 judicial review shall be on the record, without taking additional testimony. The court 17 may reverse the Department of Public Safety's determination if the court finds that the 18 Department of Public Safety misinterpreted the law, acted in an arbitrary and 19 capricious manner, or made a determination unsupported by the evidence in the record. 20 (q) Forfeiture of a motor vehicle, aircraft, or watercraft under this section 21 extinguishes the rights of all claimants or creditors who do not appear at the forfeiture 22 hearing under (b) or (c) of this section. 23 (r) For purposes of this section, convictions both for driving while intoxicated 24 under AS 28.35.030 and for refusal to submit to a chemical test authorized under 25 AS 28.35.031(a) or (g), if arising out of a single transaction and a single arrest, are 26 considered one conviction. 27 (s) A claimant who is a regulated lienholder meets the burden of proof 28 required under (h) of this section by filing with the court a copy of the motor 29 vehicle's, aircraft's, or watercraft's certificate of title or other security instrument 30 reflecting the lien, together with an affidavit stating the amount of the lien and stating 31 that the claimant is a regulated lienholder and was not in possession of the motor

01 vehicle, aircraft, or watercraft at the time of the act that resulted in the seizure of the 02 motor vehicle, aircraft, or watercraft. The presumption provided in (i) of this section 03 does not apply to a regulated lienholder. 04 (t) Nothing in this section shall be construed to place upon a regulated 05 lienholder a duty to inquire into the driving record of any loan applicant or any 06 member of the loan applicant's family or household, and failure to do so may not be 07 used as evidence against the regulated lienholder in any forfeiture proceeding or other 08 civil action. Knowledge from other sources of the loan applicant's driving record is 09 usable only to the extent that it is relevant under (h) of this section. 10 (u) Property subject to the interest of a regulated lienholder whose interest has 11 not been forfeited may not be disposed of as provided in this section except with the 12 consent of the regulated lienholder. A regulated lienholder's interest in a motor 13 vehicle, aircraft, or watercraft may not be subject to forfeiture in any case where 14 (1) the individual who allegedly used the motor vehicle, aircraft, or 15 watercraft in violation of AS 28.35.030 or 28.35.032 is not the person whose dealings 16 with the lienholder gave rise to the lien; or 17 (2) the motor vehicle, aircraft, or watercraft that the individual was 18 driving, operating, or in actual physical control of at the time of the alleged violation 19 was not the motor vehicle, aircraft, or watercraft involved in the offense giving rise 20 to a conviction under AS 28.35.030 or 28.35.032. 21 (v) A claimant may petition the court for sale of a motor vehicle, aircraft, or 22 watercraft before final disposition of court proceedings. The court shall grant a 23 petition for sale upon a finding that the sale is in the best interest of the state. 24 Proceeds from the sale plus interest to the date of final disposition of the court 25 proceedings become the subject of the forfeiture action. 26 (w) Property forfeited and sold at auction under this section shall be sold by 27 an auctioneer approved before the auction by the Department of Public Safety. Before 28 the auction, the Department of Public Safety must approve in advance the auctioneer's 29 costs or the method for determining the auctioneer's costs. The impound contractor 30 shall provide to the Department of Public Safety a notarized copy of the auctioneer's 31 report of the auction signed by the auctioneer. The Department of Public Safety shall

01 certify the proper disposal of property forfeited under this section. 02 (x) In a contested forfeiture proceeding concerning a motor vehicle, aircraft, 03 or watercraft titled in the names of more than one owner on the certificate of title, if 04 one of the owners has an interest that is forfeited, the court (1) may, subject to (m) of 05 this section, order the forfeiture of the entire interest of all the owners in a motor 06 vehicle, aircraft, or watercraft that is titled in the names of more than one owner in the 07 disjunctive; (2) shall, subject to (m) of this section, order the forfeiture of the interest 08 of any owner in a motor vehicle, aircraft, or watercraft that is titled in the names of 09 more than one owner in the conjunctive; owners of a motor vehicle, aircraft, or 10 watercraft titled in the names of more than one owner in the conjunctive are presumed 11 to own the motor vehicle, aircraft, or watercraft in equal shares. In circumstances 12 described in this subsection, the court shall order that the motor vehicle, aircraft, or 13 watercraft be sold at public auction and further order that the proceeds from the sale 14 of the motor vehicle, aircraft, or watercraft be held by the Department of Public 15 Safety; after deduction of the reasonable costs of the auction, an amount of the 16 proceeds of the auction for the sale of that motor vehicle, aircraft, or watercraft that 17 is equal to the percentage interest of the owner whose interest has not been forfeited 18 shall be returned if the owner whose interest has not been forfeited applies to the 19 department within 60 days of the auction; if the owner whose interest has not been 20 forfeited does not apply within that period, those funds become the property of the 21 state subject to the rights of any other claimant to those funds. 22 (y) A person who has secured the release of a motor vehicle, aircraft, or 23 watercraft under a motor vehicle, aircraft, or watercraft return bond under this section 24 and who wilfully fails to return that motor vehicle, aircraft, or watercraft when ordered 25 by a court or an administrative hearing officer, is guilty of a violation. Each day that 26 a motor vehicle, aircraft, or watercraft is not returned constitutes a separate offense 27 under this subsection. 28 (z) In this section, 29 (1) "legally unjustified" means there was no 30 (A) reasonable suspicion for the stop; or 31 (B) probable cause for the arrest;

01 (2) "regulated lienholder" means an entity whose lien on the motor 02 vehicle, aircraft, or watercraft is a result of lending activities that are subject to 03 regulation by the National Credit Union Administration, the Comptroller of the 04 Currency, federal banking regulators, the Federal Trade Commission, or the 05 Department of Commerce and Economic Development. 06 * Sec. 11. This Act takes effect July 1, 1998.