00 SENATE BILL NO. 139 01 "An Act relating to forfeiture of certain property; and providing for an effective 02 date." 03 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 04 * Section 1. AS 17.30.110 is amended to read: 05 Sec. 17.30.110. ITEMS SUBJECT TO FORFEITURE. The following 06 property is subject to forfeiture under AS 17.30.110 - 17.30.126 [MAY BE 07 FORFEITED TO THE STATE]: 08 (1) a controlled substance that [WHICH] has been manufactured, 09 distributed, dispensed, acquired, or possessed in violation of this chapter or AS 11.71; 10 (2) raw materials, products, and equipment that [WHICH] are used or 11 intended for use in manufacturing, distributing, compounding, processing, delivering, 12 importing, or exporting a controlled substance in violation of [WHICH IS A FELONY 13 UNDER] this chapter or AS 11.71; 14 (3) property that [WHICH] is used or intended for use as a container 01 for property described in (1) or (2) of this section; 02 (4) a right, title, or interest in real property, including buildings 03 and any other improvements, or a conveyance, including but not limited to aircraft, 04 vehicles, or vessels, that [WHICH] has been used or is intended for use in 05 manufacturing, transporting or in any manner in facilitating the manufacture, 06 transportation, sale, receipt, possession, or concealment of property described in (1) or 07 (2) of this section in violation of a felony offense under this chapter or AS 11.71[; 08 HOWEVER, 09 (A) A CONVEYANCE MAY NOT BE FORFEITED UNDER 10 THIS PARAGRAPH IF THE OWNER OF THE CONVEYANCE 11 ESTABLISHES, BY A PREPONDERANCE OF THE EVIDENCE, AT A 12 HEARING BEFORE THE COURT AS THE TRIER OF FACT, THAT USE 13 OF THE CONVEYANCE IN VIOLATION OF THIS CHAPTER OR AS 11.71 14 WAS COMMITTED BY ANOTHER PERSON AND THAT THE OWNER 15 WAS NEITHER A CONSENTING PARTY NOR PRIVY TO THE 16 VIOLATION; 17 (B) A FORFEITURE OF A CONVEYANCE ENCUMBERED 18 BY A VALID SECURITY INTEREST AT THE TIME OF SEIZURE IS 19 SUBJECT TO THE INTEREST OF THE SECURED PARTY IF THE 20 SECURED PARTY ESTABLISHES, BY A PREPONDERANCE OF THE 21 EVIDENCE, AT A HEARING BEFORE THE COURT AS THE TRIER OF 22 FACT, THAT USE OF THE CONVEYANCE IN VIOLATION OF THIS 23 CHAPTER OR AS 11.71 WAS COMMITTED BY ANOTHER PERSON AND 24 THAT THE SECURED PARTY WAS NEITHER A CONSENTING PARTY 25 NOR PRIVY TO THE VIOLATION]; 26 (5) books, records, and research products and materials, including 27 formulas, microfilm, tapes, data processing equipment, and data, that [WHICH] are 28 used in violation of this chapter or AS 11.71; 29 (6) money, securities, negotiable instruments, or other things of value 30 used in financial transactions derived from or used to facilitate a violation of 31 [ACTIVITY PROHIBITED BY] this chapter or AS 11.71; [AND] 01 (7) a dangerous instrument that [FIREARM WHICH] is visible, 02 carried during, or used in furtherance of a violation of this chapter or AS 11.71 ; and 03 (8) property of any type traceable to a violation of this chapter or 04 AS 11.71, except that for property that is real property, the violation must be a 05 felony under this chapter or AS 11.71. 06 * Sec. 2. AS 17.30.112 is repealed and reenacted to read: 07 Sec. 17.30.112. PROCEEDINGS RESULTING IN FORFEITURE; ORDERS 08 OF FORFEITURE. (a) Property listed in AS 17.30.110(2) - (8) may be forfeited to 09 the state in a criminal proceeding or in a separate civil proceeding in rem under 10 procedures set out in AS 17.30.116, if the state proves by a preponderance of the 11 evidence that the property is subject to forfeiture. It is prima facie evidence, sufficient 12 to support an order of forfeiture, that a defendant has been convicted of conduct 13 making the property subject to forfeiture, or that a grand jury has returned an 14 indictment finding that the evidence, if unexplained or uncontradicted, would warrant 15 a court to conclude that property identified in the indictment is subject to forfeiture. 16 (b) In commencing a forfeiture proceeding, the state shall provide notice of the 17 property to be forfeited and of the connection the state will attempt to prove between 18 the property and the conduct making it subject to forfeiture. Notice must be sent to 19 any person whose interest would be affected by the forfeiture. 20 (c) It is not a defense to a forfeiture proceeding that a criminal offense has not 21 been prosecuted, or has resulted in a conviction of a different offense or an acquittal. 22 (d) A forfeiture order or an order granting relief under AS 17.30.124 removes 23 all liens, encumbrances, or other clouds on the title that are a direct result of the 24 forfeiture proceedings. 25 (e) A person whose conduct causes property to be subject to forfeiture shall, 26 in addition to any other fine, be assessed the reasonable charge of maintenance, 27 storage, disposal, or other expenses of the forfeiture proceeding, including attorney fees 28 of the state. These charges may be ordered paid as part of a sentence, a condition of 29 probation or suspended imposition of sentence, or as an assessment of costs or attorney 30 fees as appropriate in a civil or criminal proceeding. 31 (f) An order of forfeiture shall forfeit to the state any other assets of the person 01 who caused the property to be subject to forfeiture, up to the value of any property 02 subject to forfeiture, if the property subject to forfeiture has been 03 (1) commingled with other property and cannot be separated without 04 difficulty or unreasonable expense to the state; 05 (2) transferred to, sold to, or deposited with a third party, placed 06 beyond the jurisdiction of the court, or removed so it cannot be located; 07 (3) substantially diminished in value by an act or omission of the 08 person who caused the property to be subject to forfeiture; or 09 (4) remitted to a claimant under AS 17.30.124. 10 (g) An order of forfeiture issued under this section may be made regardless of 11 the location of the property, if the state has obtained personal jurisdiction over the 12 person whose interest would be affected by the forfeiture. 13 (h) A perfected priority lien on property that has been ordered forfeited is 14 created in favor of the state up to an amount that is the sum of the expenses of 15 investigation, prosecution, and forfeiture proceeding arising out of the conduct making 16 the property subject to forfeiture. In calculating the amount of the lien, expenses of 17 all state, federal, or local agencies are to be included. The lien has priority over all 18 unsecured debts associated with the property. 19 * Sec. 3. AS 17.30.114(a) is amended to read: 20 (a) Property listed in AS 17.30.110 may be seized by a peace officer upon an 21 order issued by a court having jurisdiction over the property upon a showing of 22 probable cause that the property may be forfeited under AS 17.30.110. Seizure 23 without a court order may be made if 24 (1) the seizure is incident to a valid arrest or a search under a valid 25 search warrant or is otherwise constitutionally permissible; 26 (2) the property subject to seizure has been the subject of an earlier 27 judgment in favor of the state in a criminal proceeding or civil proceeding in rem 28 under this chapter or AS 11.71; or 29 (3) there is probable cause that the property is subject to forfeiture 30 under AS 17.30.110 - 17.30.126 [WAS USED, IS BEING USED, OR IS INTENDED 31 FOR USE, IN VIOLATION OF THIS CHAPTER OR AS 11.71] and the property is 01 easily movable; property seized under this paragraph may not be held for more than 02 48 hours without a court order obtained to continue its detention. 03 * Sec. 4. AS 17.30.116(b) is amended to read: 04 (b) Upon service or publication of notice of commencement of a forfeiture 05 action under this section, a person, including a criminal defendant, claiming interest 06 in the property shall file within 30 days after the service or publication, a notice of 07 claim. The notice of claim shall be made under oath and must set [SETTING] out 08 the nature of the interest, the date it was acquired, the consideration paid, and an 09 answer to the state's allegations. If a claim and answer is not filed within the time 10 specified, the property described in the state's allegation must be ordered forfeited to 11 the state without further proceedings or showings. 12 * Sec. 5. AS 17.30.116 is amended by adding a new subsection to read: 13 (d) A criminal defendant or a person claiming an interest in the property under 14 this section and AS 17.30.124 may testify, present evidence and witnesses, and cross-examine witnesses presented 15 by other parties. In addition to other testimony and 16 evidence presented, the court may consider the relevant portions of the record of a 17 related criminal action. The court shall make findings of fact regarding contested 18 issues and shall set out its conclusions of law. 19 * Sec. 6. AS 17.30.122 is amended to read: 20 Sec. 17.30.122. STATE DISPOSAL OF FORFEITED PROPERTY. Property 21 forfeited under AS 17.30.110 - 17.30.126 other than controlled substances shall be 22 disposed of by the commissioner of administration in accordance with applicable law. 23 The commissioner of administration may 24 (1) destroy property harmful to the public; 25 (2) sell the property and use the proceeds for payment of all proper 26 expenses of the proceedings for forfeiture and sale, including expenses of seizure, 27 custody, and court costs; 28 (3) take custody of the property and authorize its use in the 29 enforcement of this chapter or AS 11.71, or transfer it to another agency of the state 30 or a political subdivision of the state for a use in furtherance of the administration of 31 justice; 01 (4) at the direction of the commissioner of public safety, transfer 02 up to 90 percent of the net value of the forfeited property to one or more agencies 03 or political subdivisions of the state for use in furtherance of the administration 04 of justice; in directing this transfer, the commissioner of public safety may take 05 into account an equitable allocation based on the amount of the contribution 06 made by each agency to the investigation or prosecution of the conduct making 07 the property subject to forfeiture, or based on any agreements as to the sharing 08 of assets; 09 (5) take custody of the property and remove it for disposition in 10 accordance with law; 11 (6) [(5)] forward it to the Drug Enforcement Administration of the 12 United States Department of Justice for disposition; or 13 (7) [(6)] transfer ownership of an aircraft to the Alaska Wing, Civil Air 14 Patrol. 15 * Sec. 7. AS 17.30.124 is amending by adding a new subsection to read: 16 (c) A person who has filed a timely claim under AS 17.30.116(b) may have 17 the property remitted by the court under (a) of this section upon proof by a 18 preponderance of the evidence that the person 19 (1) has a valid right, title, or interest in the property, acquired in good 20 faith, that takes priority over a lien in favor of the state arising under AS 17.30.112(h); 21 (2) did not knowingly participate in or facilitate the conduct that 22 resulted in the property being subject to forfeiture; and 23 (3) did not know or have reasonable cause to believe that a person 24 might engage in the conduct that resulted in the property being subject to forfeiture. 25 * Sec. 8. AS 17.30.900 is amended by adding a new subsection to read: 26 (c) In AS 17.30.110 - 17.30.126, "dangerous instrument" has the meaning 27 given in AS 11.81.900(b). 28 * Sec. 9. AS 17.30.124(b) is repealed. 29 * Sec. 10. This Act takes effect July 1, 1993.