CSHB 188(JUD): "An Act relating to forfeiture of certain property; and providing for an effective date."
00CS FOR HOUSE BILL NO. 188(JUD) 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 09 manufactured, distributed, dispensed, acquired, or possessed in violation of this chapter 10 or AS 11.71; 11 (2) raw materials, products, and equipment that [WHICH] are used or 12 intended for use in manufacturing, distributing, compounding, processing, delivering, 13 importing, or exporting a controlled substance in violation of [WHICH IS A FELONY 14 UNDER] this chapter or AS 11.71;
01 (3) property that [WHICH] is used or intended for use as a container 02 for property described in (1) or (2) of this section; 03 (4) a right, title, or interest in real property, including buildings 04 and any other improvements, or a conveyance, including but not limited to aircraft, 05 vehicles, or vessels, that [WHICH] has been used or is intended for use in 06 manufacturing, transporting, or in any manner in facilitating the manufacture, 07 transportation, sale, receipt, possession, or concealment of property described in (1) or 08 (2) of this section in violation of a felony offense under this chapter or AS 11.71 [; 09 HOWEVER, 10 (A) A CONVEYANCE MAY NOT BE FORFEITED UNDER 11 THIS PARAGRAPH IF THE OWNER OF THE CONVEYANCE 12 ESTABLISHES, BY A PREPONDERANCE OF THE EVIDENCE, AT A 13 HEARING BEFORE THE COURT AS THE TRIER OF FACT, THAT USE 14 OF THE CONVEYANCE IN VIOLATION OF THIS CHAPTER OR AS 11.71 15 WAS COMMITTED BY ANOTHER PERSON AND THAT THE OWNER 16 WAS NEITHER A CONSENTING PARTY NOR PRIVY TO THE 17 VIOLATION; 18 (B) A FORFEITURE OF A CONVEYANCE ENCUMBERED 19 BY A VALID SECURITY INTEREST AT THE TIME OF SEIZURE IS 20 SUBJECT TO THE INTEREST OF THE SECURED PARTY IF THE 21 SECURED PARTY ESTABLISHES, BY A PREPONDERANCE OF THE 22 EVIDENCE, AT A HEARING BEFORE THE COURT AS THE TRIER OF 23 FACT, THAT USE OF THE CONVEYANCE IN VIOLATION OF THIS 24 CHAPTER OR AS 11.71 WAS COMMITTED BY ANOTHER PERSON AND 25 THAT THE SECURED PARTY WAS NEITHER A CONSENTING PARTY 26 NOR PRIVY TO THE VIOLATION]; 27 (5) books, records, and research products and materials, including 28 formulas, microfilm, tapes, data processing equipment, and data, that [WHICH] are 29 used in violation of this chapter or AS 11.71; 30 (6) money, securities, negotiable instruments, or other things of value 31 used in financial transactions derived from or used to facilitate a violation of
01 [ACTIVITY PROHIBITED BY] this chapter or AS 11.71; [AND] 02 (7) a dangerous instrument that [FIREARM WHICH] is visible, 03 carried during, or used in furtherance of a violation of this chapter or AS 11.71; and 04 (8) property of any type traceable to a violation of this chapter or 05 AS 11.71, except that for property that is real property, the violation must be a 06 felony under this chapter or AS 11.71. 07 * Sec. 2. AS 17.30.112 is repealed and reenacted to read: 08 Sec. 17.30.112. PROCEEDINGS RESULTING IN FORFEITURE; ORDERS 09 OF FORFEITURE. (a) Property listed in AS 17.30.110(2) - (8) may be forfeited to 10 the state in a criminal proceeding or in a separate civil proceeding in rem under 11 procedures set out in AS 17.30.116, if the state proves that the property is subject to 12 forfeiture by (1) a preponderance of the evidence for property other than real property, 13 or (2) clear and convincing evidence for real property. It is prima facie evidence, 14 sufficient to support an order of forfeiture, that a defendant has been convicted of 15 conduct making the property subject to forfeiture, or that a grand jury has returned an 16 indictment finding that the evidence, if unexplained or uncontradicted, would warrant 17 a court to conclude that property identified in the indictment is subject to forfeiture. 18 (b) In commencing a forfeiture proceeding, the state shall provide notice of the 19 property to be forfeited and of the connection the state will attempt to prove between 20 the property and the conduct making it subject to forfeiture. 21 (c) At the request of either party, a forfeiture proceeding, including discovery, 22 shall be held in abeyance until the conclusion of a pending criminal action relating to 23 the conduct making the property subject to forfeiture. 24 (d) It is not a defense to a forfeiture proceeding that a criminal offense has not 25 been prosecuted, or has resulted in a conviction of a different offense or an acquittal. 26 (e) A forfeiture order or an order granting relief under AS 17.30.124 removes 27 all liens, encumbrances, or other clouds on the title that are a direct result of the 28 forfeiture proceedings. 29 (f) A person whose conduct causes property to be subject to forfeiture shall, 30 in addition to any other fine, be assessed the reasonable charge of maintenance, 31 storage, disposal, or other expenses of the forfeiture proceeding, including attorney fees
01 of the state. These charges may be ordered paid as part of a sentence, a condition of 02 probation or suspended imposition of sentence, or as an assessment of costs or attorney 03 fees as appropriate in a civil or criminal proceeding. 04 (g) An order of forfeiture shall forfeit to the state any other assets of the 05 person who caused the property to be subject to forfeiture, up to the value of property 06 subject to forfeiture, if the property subject to forfeiture has been 07 (1) commingled with other property and cannot be separated without 08 difficulty or unreasonable expense to the state; 09 (2) transferred to, sold to, or deposited with a third party, placed 10 beyond the jurisdiction of the court, or removed so it cannot be located; 11 (3) substantially diminished in value by an act or omission of the 12 person who caused the property to be subject to forfeiture; or 13 (4) remitted to a claimant under AS 17.30.124. 14 (h) An order of forfeiture issued under this section may be made regardless of 15 the location of the property, if the state has obtained personal jurisdiction over the 16 person whose interest would be affected by the forfeiture. 17 (i) A perfected priority lien on property that has been ordered forfeited is 18 created in favor of the state up to an amount that is the sum of the expenses of 19 investigation, prosecution, and forfeiture proceeding arising out of the conduct making 20 the property subject to forfeiture. In calculating the amount of the lien, expenses of 21 all state, federal, or local agencies are to be included. The lien has priority over all 22 unsecured debts associated with the property. 23 * Sec. 3. AS 17.30.114(a) is amended to read: 24 (a) Property listed in AS 17.30.110 may be seized by a peace officer upon an 25 order issued by a court having jurisdiction over the property upon a showing of 26 probable cause that the property may be forfeited under AS 17.30.110. Seizure 27 without a court order may be made if 28 (1) the seizure is incident to a valid arrest or a search under a valid 29 search warrant or is otherwise constitutionally permissible; 30 (2) the property subject to seizure has been the subject of an earlier 31 judgment in favor of the state in a criminal proceeding or civil proceeding in rem
01 under this chapter or AS 11.71; or 02 (3) there is probable cause that the property is subject to forfeiture 03 under AS 17.30.110 - 17.30.126 [WAS USED, IS BEING USED, OR IS INTENDED 04 FOR USE, IN VIOLATION OF THIS CHAPTER OR AS 11.71] and the property is 05 easily movable; property seized under this paragraph may not be held for more than 06 48 hours without a court order obtained to continue its detention. 07 * Sec. 4. AS 17.30.116(b) is amended to read: 08 (b) Upon service or publication of notice of commencement of a forfeiture 09 action under this section, a person, including a criminal defendant, claiming interest 10 in the property shall file within 30 days after the service or publication, a notice of 11 claim. The notice of claim shall be made under oath and must set [ SETTING] out 12 the nature of the interest, the date it was acquired, the consideration paid, and an 13 answer to the state's allegations. If a claim and answer is not filed within the time 14 specified, the property described in the state's allegation must be ordered forfeited to 15 the state without further proceedings or showings. 16 * Sec. 5. AS 17.30.116(c) is amended to read: 17 (c) Questions of fact or law raised by a notice of forfeiture action and answer 18 of a claimant in an action commenced under this section must be determined by the 19 court sitting without a jury. [THIS PROCEEDING MAY BE HELD IN ABEYANCE 20 UNTIL CONCLUSION OF ANY PENDING CRIMINAL CHARGES AGAINST THE 21 CLAIMANT UNDER THIS CHAPTER OR AS 11.71.] 22 * Sec. 6. AS 17.30.116 is amended by adding a new subsection to read: 23 (d) A criminal defendant or a person claiming an interest in the property under 24 this section and AS 17.30.124 may testify, present evidence and witnesses, and cross-examine witnesses presented 25 by other parties. In addition to other testimony and 26 evidence presented, the court may consider the relevant portions of the record of a 27 related criminal action. The court shall make findings of fact regarding contested 28 issues and shall set out its conclusions of law. 29 * Sec. 7. AS 17.30.122 is amended to read: 30 Sec. 17.30.122. STATE DISPOSAL OF FORFEITED PROPERTY. Property 31 forfeited under AS 17.30.110 - 17.30.126 other than controlled substances shall be
01 disposed of by the commissioner of administration in accordance with applicable law. 02 The commissioner of administration may 03 (1) destroy property harmful to the public; 04 (2) sell the property and use the proceeds for payment of all proper 05 expenses of the proceedings for forfeiture and sale, including expenses of seizure, 06 custody, and court costs; 07 (3) take custody of the property and authorize its use in the 08 enforcement of this chapter or AS 11.71, or transfer it to another agency of the state 09 or a political subdivision of the state for a use in furtherance of the administration of 10 justice; 11 (4) at the direction of the commissioner of public safety, transfer up to 90 12 percent of the net value of the forfeited property to one or more agencies or 13 political subdivisions of the state for use in furtherance of the administration of 14 justice; in directing this transfer, the commissioner of public safety may take into 15 account an equitable allocation based on the amount of the contribution made by 16 each agency to the investigation or prosecution of the conduct making the 17 property subject to forfeiture, or based on any agreements as to the sharing of 18 assets; 19 (5) take custody of the property and remove it for disposition in 20 accordance with law; 21 (6) [(5)] forward it to the Drug Enforcement Administration of the 22 United States Department of Justice for disposition; or 23 (7) [(6)] transfer ownership of an aircraft to the Alaska Wing, Civil Air 24 Patrol. 25 * Sec. 8. AS 17.30.124 is amending by adding a new subsection to read: 26 (c) A person who has filed a timely claim under AS 17.30.116(b) may have 27 the property remitted by the court under (a) of this section upon proof by a 28 preponderance of the evidence that the person 29 (1) has a valid right, title, or interest in the property, acquired in good 30 faith, that takes priority over a lien in favor of the state arising under AS 17.30.112(h); 31 (2) did not knowingly participate in or facilitate the conduct that
01 resulted in the property being subject to forfeiture; and 02 (3) did not know that a person might engage in the conduct that 03 resulted in the property being subject to forfeiture. 04 * Sec. 9. AS 17.30.900 is amended by adding a new subsection to read: 05 (c) In AS 17.30.110 - 17.30.126, "dangerous instrument" has the meaning 06 given in AS 11.81.900(b). 07 * Sec. 10. AS 17.30.124(b) is repealed. 08 * Sec. 11. This Act takes effect July 1, 1993.