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

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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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

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12 LC 28 5940

Senate Bill 350

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

A BILL TO BE ENTITLED
AN ACT

To amend Chapter 16 of Title 16 of the Official Code of Georgia Annotated, relating to forfeiture of property used in burglary or armed robbery, so as to provide for the disposition of firearms used in burglaries or armed robberies; to amend Article 3 of Chapter 5 of Title 17 of the Official Code of Georgia Annotated, relating to disposition of seized property, so as to provide for the disposition of firearms seized in criminal investigations and surplus firearms of law enforcement agencies; 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 (b) 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) A firearm that is the property of a person other than the perpetrator of the crime or delinquent act shall be returned to such person when such firearm is no longer needed for evidentiary purposes, provided that the person who owned such firearm did not know or in the exercise of ordinary care would not have known that such firearm would be used by the perpetrator for an unlawful purpose and the person is authorized by state and federal law to receive and possess such firearm."

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. Within With the exception of firearms which shall be disposed of in accordance with Code Section 17-5-52.1, 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) Notwithstanding any other provision of law to the contrary and subject to the duty to return firearms to innocent owners pursuant to subsection (b) of Code Section 17-5-51 and this Code section, all firearms, as defined in paragraph (3) of Code Section 16-11-171, 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.

(b) Prior to the disposal of any firearm that has been forfeited or abandoned to the state or a political subdivision of the state, the agency with custody of the firearm shall use 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, if ascertainable, unless that person is ineligible to receive or possess a firearm under state or federal law.

(c)(1) Except as provided in subsection (b) of this Code section, the custodial agency shall dispose of the firearms that it receives under subsection (a) of this Code section by sale at public auction to persons 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.

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

(3) The 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 jurisdiction in which the agency is located, provided that an agency may be reimbursed for any firearms formerly in use by the agency that are sold under this Code section.

(4) Employees of the agency shall not be eligible to bid on the firearms at an auction conducted under this Code section and, except for the costs of administration authorized under paragraph (3) of this subsection, neither the agency nor its employees shall retain any proceeds from any sale required by this Code section nor shall the agency or its employees retain any firearm required to be sold under this Code section.

(d) The requirements of subsection (c) 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 that the sheriff, chief of police, agency director, or designee of such official certifies is unsafe for use because of wear, damage, age, or modification. 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 for training or experimental purposes or to a museum or historical society that displays such items to the public and is lawfully eligible to receive the item or be destroyed.

(e) All agencies subject to the provisions of this Code section shall keep records of the firearms acquired and disposed of as herein provided as well as the proceeds of the sales thereof and the disbursement of such proceeds and shall maintain such records for not less than ten years from the date on which a firearm is disposed of or on which a disbursement of funds is made, as the case may be.

(f) 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 recklessness."

SECTION 5.

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

SECTION 6.

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