Bill Text: GA SB350 | 2011-2012 | Regular Session | Introduced

Georgia Senate Bill 350 (Prior Session Legislation)

Bill Title: Crimes and Offenses; disposition of firearms used in burglaries or armed robberies

Spectrum: Bipartisan Bill

Status: (Passed) 2012-05-03 - Effective Date [SB350 Detail]

Download: Georgia-2011-SB350-Introduced.html

12 SB 350/AP

Senate Bill 350

By: Senators Balfour of the 9th, Sims of the 12th, Hamrick of the 30th and Hooks of the 14th

AS PASSED

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 16 of Title 16 and Article 3 of Chapter 5 of Title 17 of the Official Code of Georgia Annotated, relating to forfeiture of property used in burglary or armed robbery and disposition of seized property, respectively, so as to provide for the disposition of firearms that were otherwise subject to forfeiture; to provide for the disposition of firearms used in burglaries or armed robberies; to provide for the disposition of firearms seized in criminal investigations and surplus firearms of law enforcement agencies; to provide for definitions; to change provisions relating to the disposition of personal property in custody of a law enforcement agency; to provide for related matters; to provide for an effective date; to repeal conflicting laws; and for other purposes.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:

SECTION 1.

Chapter 16 of Title 16 of the Official Code of Georgia Annotated, relating to forfeiture of property used in burglary or armed robbery, is amended by revising subsection (a) of Code Section 16-16-2, relating to motor vehicles, tools, and weapons subject to forfeiture, grounds for seizure, custody of property, duties of officers, proceedings for forfeiture, and disposition of property, as follows:

"(a) All motor vehicles, tools, and weapons which are used or intended for use in any manner in the commission of or to facilitate the commission of a burglary or armed robbery are shall be subject to forfeiture under this chapter, but:

(1) No motor vehicle used by any person as a common carrier in the transaction of business as a common carrier is shall be subject to forfeiture under this Code section unless it appears that the owner or other person in charge of the motor vehicle is a consenting party or privy to the commission of a burglary or armed robbery;

(2) No motor vehicle is shall be subject to forfeiture under this Code section by reason of any act or omission established by the owner thereof to have been committed or omitted without his or her knowledge or consent, and any co-owner of a motor vehicle without knowledge of or consent to the act or omission is shall be protected to the extent of the interest of such co-owner; and

(3) A forfeiture of a motor vehicle encumbered by a bona fide security interest is shall be subject to the interest of the secured party if he or she neither had knowledge of or nor consented to the act or omission.

Notwithstanding any provisions of this Code section to the contrary, any firearm forfeited under this chapter shall be disposed of in accordance with the provisions of Code Section 17-5-52."

SECTION 2.

Article 3 of Chapter 5 of Title 17 of the Official Code of Georgia Annotated, relating to disposition of seized property, is amended by revising Code Section 17-5-51, relating to forfeiture of weapons used in commission of crime, possession of which constitutes crime or delinquent act, or illegal concealment generally, as follows:

"17-5-51.

(a) Except as provided in subsection (c) of this Code section, any Any device which is used as a weapon in the commission of any crime against any person or any attempt to commit any crime against any person, any weapon the possession or carrying of which constitutes a crime or delinquent act, and any weapon for which a person has been convicted of violating Code Section 16-11-126 are declared to be contraband and are forfeited. For the purposes of this article, a motor vehicle shall not be deemed to be a weapon or device and shall not be contraband or forfeited under this article; provided, however, that this exception shall not be construed to prohibit the seizure, condemnation, and sale of motor vehicles used in the illegal transportation of alcoholic beverages.

(b) As used in this Code section, the term:

(1) 'Firearm' shall have the same meaning as set forth in Code Section 16-11-171.

(2) 'Innocent owner' means a person who:

(A) Did not beforehand know or in the exercise of ordinary care would not have known of the conduct which caused his or her firearm to be forfeited, seized, or abandoned to any law enforcement agency of this state or a political subdivision of this state, including the Department of Natural Resources;

(B) Did not participate in the commission of a crime or delinquent act involving his or her firearm;

(D) Is authorized by state and federal law to receive and possess his or her firearm.

(c) A firearm that is the property of an innocent owner shall be returned to such person when such firearm is no longer needed for evidentiary purposes.

(d) The costs of returning the firearm to the innocent owner shall be borne by the innocent owner. Such costs shall be limited to the actual costs of shipping and associated costs from any transfer and background check fees charged when delivering the firearm to the innocent owner.

(e) If six months elapse after notification to the innocent owner of the possession of the firearm by a political subdivision or state custodial agency and the innocent owner fails to bear the costs of return of his or her firearm or fails to respond to the political subdivision or state custodial agency, then the political subdivision or state custodial agency may follow the procedures under subsection (d) of Code Section 17-5-52.1."

SECTION 3.

Said article is further amended by revising subsection (a) of Code Section 17-5-52, relating to sale or destruction of weapons used in commission of crime or delinquent act involving possession, sale of weapons not the property of the defendant, disposition of proceeds of sale, and record keeping, as follows:

"(a) When a final judgment is entered finding a defendant guilty of the commission or attempted commission of a crime against any person or guilty of the commission of a crime or delinquent act involving the illegal possession or carrying of a weapon, any device which was used as a weapon in the commission of the crime or delinquent act shall be turned over by the person having custody of the weapon or device to the sheriff, chief of police, or other executive officer of the law enforcement agency that originally confiscated the weapon or device when the weapon or device is no longer needed for evidentiary purposes. With the exception of firearms, as such term is defined in Code Section 17-5-51, which shall be disposed of in accordance with Code Section 17-5-52.1, within Within 90 days after receiving the weapon or device, the sheriff, chief of police, or other executive officer of the law enforcement agency shall retain the weapon or device for use in law enforcement, destroy the same, or sell the weapon or device pursuant to judicial sale as provided in Article 7 of Chapter 13 of Title 9 or by any commercially feasible means, provided that, if the weapon or device used as a weapon in the crime is not the property of the defendant, there shall be no forfeiture of such weapon or device."

SECTION 4.

Said article is further amended by adding a new Code section to read as follows:

"17-5-52.1.

(a) As used in this Code section, the terms 'firearm' and 'innocent owner' shall have the same meaning as set forth in Code Section 17-5-51.

(b) Notwithstanding any other provision of law to the contrary and subject to the duty to return firearms to innocent owners pursuant to subsection (c) of Code Section 17-5-51 and this Code section, all firearms that are forfeited or abandoned to any law enforcement agency of this state or a political subdivision of this state, including the Department of Natural Resources, or that are otherwise acquired by the state or a political subdivision and are no longer needed, shall be disposed of as provided in this Code section.

(c) Prior to the disposal of any firearm that has been forfeited or abandoned to the state or a political subdivision of the state, the political subdivision or state custodial agency with possession of the firearm shall use its best efforts to determine if the firearm has been lost by, stolen from, or otherwise illegally obtained from an innocent owner and, if so, shall return the firearm to its innocent owner in accordance with Code Section 17-5-51.

(d) If an innocent owner of a firearm cannot be located or after proper notification he or she fails to pay for the return of his or her firearm, if the political subdivision is:

(1) A municipal corporation, it shall dispose of its firearms as provided for in Code Section 36-37-6; provided, however, that municipal corporations shall not have the right to reject any and all bids or to cancel any proposed sale of such firearms, and all sales shall be to persons who are licensed as firearms collectors, dealers, importers, or manufacturers under the provisions of 18 U.S.C. Section 921, et seq., and Chapter 16 of Title 43 and who are authorized to receive such firearms under the terms of such license. Any political subdivision which disposes of firearms shall use proceeds from the sale of a firearm as are necessary to cover the costs of administering this Code section, with any surplus to be transferred to the general fund of the political subdivision; or

(2) Not a municipal corporation, the state custodial agency or the political subdivision shall dispose of its firearms by sale at public auction to persons who are licensed as firearms collectors, dealers, importers, or manufacturers under the provisions of 18 U.S.C. Section 921, et seq., and Chapter 16 of Title 43 and who are authorized to receive such firearms under the terms of such license. A state custodial agency shall retain only such proceeds as are necessary to cover the costs of administering this Code section, with any surplus to be transferred to the general fund of the state, provided that a state custodial agency may be reimbursed for any firearms formerly in use by the state custodial agency that are sold under this Code section.

(e) Auctions required by paragraph (2) of subsection (d) of this Code section may occur online on a rolling basis or at live events, but in no event shall such auctions occur less frequently than once every six months during any time in which the political subdivision or state custodial agency has an inventory of saleable firearms.

(f) The requirements of subsection (d) of this Code section shall not apply to a firearm if no bids from eligible recipients are received within six months from when bidding opened on such firearm or the sheriff, chief of police, agency director, or designee of such official certifies the firearm is unsafe for use because of wear, damage, age, or modification or because any federal or state law prohibits the sale or distribution of such firearm. Any such firearm shall, at the discretion of the sheriff, chief of police, agency director, or designee of such official, be transferred to the Division of Forensic Sciences of the Georgia Bureau of Investigation, a municipal or county law enforcement forensic laboratory for training or experimental purposes, or be destroyed.

(g) All agencies subject to the provisions of this Code section shall keep records of the firearms acquired and disposed of as provided by this Code section as well as records of the proceeds of the sales thereof and the disbursement of such proceeds in accordance with records retention schedules adopted in accordance with Article 5 of Chapter 18 of Title 50, the 'Georgia Records Act.'

(h) Neither the state nor any political subdivision of the state nor any of its officers, agents, or employees shall be liable to any person, including the purchaser of a firearm, for personal injuries or damage to property arising from the sale of a firearm under this Code section unless the state or political subdivision acted with gross negligence or willful or wanton misconduct."

SECTION 5.

Said article is further amended by revising subsection (a) of Code Section 17-5-54, relating to the disposition of personal property in the custody of law enforcement agencies, as follows:

"(a)(1) Except as provided in Code Sections 17-5-55 and 17-5-56 and subsections (d), (e), and (f) of this Code section, when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned or is otherwise seized, a disposition of such property shall be made in accordance with the provisions of this Code section. When a final verdict and judgment is entered finding a defendant guilty of the commission of a crime, any personal property used as evidence in the trial shall be returned to the rightful owner of the property within 30 days following the final judgment; provided, however, that if the judgment is appealed or if the defendant files a motion for a new trial and if photographs, videotapes, or other identification or analysis of the personal property will not be sufficient evidence for the appeal of the case or new trial of the case, such personal property shall be returned to the rightful owner within 30 days of the conclusion of the appeal or new trial, whichever occurs last. All personal property in the custody of a law enforcement agency, including personal property used as evidence in a criminal trial, which is unclaimed after a period of 90 days following its seizure, or following the final verdict and judgment in the case of property used as evidence, and which is no longer needed in a criminal investigation or for evidentiary purposes in accordance with Code Section 17-5-55 or 17-5-56 shall be subject to disposition by the law enforcement agency. The sheriff, chief of police, or other executive officer of a law enforcement agency shall make application to the superior court for an order to retain, sell, or discard such property. In the application the officer shall state each item of personal property to be retained, sold, or discarded. Upon the superior court's granting an order for the law enforcement agency to retain such property, the law enforcement agency shall retain such property for official use. Upon the superior court's granting an order which authorizes that the property be discarded, the law enforcement agency shall dispose of the property as other salvage or nonserviceable equipment. Upon the superior court's granting an order for the sale of personal property, the officer shall provide for a notice to be placed once a week for four weeks in the legal organ of the county specifically describing each item and advising possible owners of items of the method of contacting the law enforcement agency; provided, however, that miscellaneous items having an estimated fair market value of $75.00 or less may be advertised or sold, or both, in lots. Such notice shall also stipulate a date, time, and place said items will be placed for public sale if not claimed. Such notice shall also stipulate whether said items or groups of items are to be sold in blocks, by lot numbers, by entire list of items, or separately."

SECTION 6.

This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval.

SECTION 7.

All laws and parts of laws in conflict with this Act are repealed.