Bill Text: HI HB1559 | 2016 | Regular Session | Amended

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Bill Title: Civil Asset Forfeiture

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Engrossed - Dead) 2016-03-10 - Referred to JDL. [HB1559 Detail]

Download: Hawaii-2016-HB1559-Amended.html

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HOUSE OF REPRESENTATIVES	H.B. NO.	1559
TWENTY-EIGHTH LEGISLATURE, 2016		H.D. 2
STATE OF HAWAII

A BILL FOR AN ACT

 

 

RELATING TO PROPERTY FORFEITURE.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 

     SECTION 1.  Section 712A-4, Hawaii Revised Statutes, is amended to read as follows:

     "§712A-4  Covered offenses.  Offenses for which property is subject to forfeiture under this chapter are[:] as follows provided they shall be chargeable as misdemeanor or felony:

     (a)  All offenses that specifically authorize forfeiture;

     (b)  Murder, kidnapping, labor trafficking, gambling, criminal property damage, robbery, bribery, extortion, theft, unauthorized entry into motor vehicle, burglary, money laundering, trademark counterfeiting, insurance fraud, promoting a dangerous, harmful, or detrimental drug, commercial promotion of marijuana, methamphetamine trafficking, manufacturing of a controlled substance with a child present, promoting child abuse, promoting prostitution, solicitation of a minor for prostitution, habitual solicitation of prostitution, or electronic enticement of a child that is chargeable as a felony offense under state law;

     (c)  The manufacture, sale, or distribution of a controlled substance in violation of chapter 329, promoting detrimental drugs or intoxicating compounds, promoting pornography, promoting pornography for minors, or solicitation of prostitution near schools or public parks, which is chargeable as a felony or misdemeanor offense, but not as a petty misdemeanor, under state law; and

     (d)  The attempt, conspiracy, solicitation, coercion, or intimidation of another to commit any offense for which property is subject to forfeiture."

     SECTION 2.  Section 712A-5, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

     "(2)  Except that:

     (a)  Real property, or an interest therein, may be forfeited under the provisions of this chapter only in cases in which the covered offense is chargeable as a felony offense under state law;

     (b)  No property shall be forfeited under this chapter to the extent of an interest of an owner[, by]:

         (i)  By reason of the commission of any covered offense unless:

              (A)  The covered offense is chargeable as a felony or misdemeanor offense under state law; and

              (B)  The owner has been convicted of the covered offense by a verdict or plea, including a no contest plea or a deferred acceptance of guilty plea or no contest plea; or

         (ii) By reason of any act or omission established by that owner to have been committed or omitted without the knowledge and consent of that owner;

     (c)  No conveyance used by any person as a common carrier in the transaction of a business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;

     (d)  No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; [and]

     (e)  A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission[.]; and

     (f)  This chapter shall not apply to the forfeiture of an animal prior to disposition of criminal charges pursuant to section 711-1109.2."

     SECTION 3.  Section 712A-7, Hawaii Revised Statutes, is amended as follows:

1.   By amending subsection (2) to read:

     "(2)  If property is seized for forfeiture under section 712A-6 pending forfeiture and final disposition, the seizing agency shall ensure, at the agency's expense, for the safe and secure storage of the property until the completion of forfeiture proceedings or other disposition of the property as provided in this chapter.  Consistent with such requirements, the seizing agency may do any of the following:

     (a)  Place the property under constructive seizure by posting notice of seizure for forfeiture on the property or by filing notice of seizure for forfeiture or notice of pending forfeiture in any appropriate public record relating to the property;

     (b)  Remove the property to a storage area for safekeeping or, if the property is a negotiable instrument or money, deposit it in an interest bearing account;

     (c)  Remove the property to a place designated by the court; or

     (d)  Provide for another agency to take custody of the property and remove it to an appropriate location within the jurisdiction of the court."

     2.  By amending subsection (4) to read:

     "(4)  In the event of a seizure for forfeiture under section 712A-6, the seizing agency shall send to a prosecuting attorney a written [request for forfeiture] notice of the seizure within thirty days, which shall include a statement of facts and circumstances of the seizure, the appraised or estimated value of the property, and a summary of the facts relied on for forfeiture."

     SECTION 4.  Section 712A-9, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  The prosecuting attorney shall determine whether it is probable that the property is subject to forfeiture and, if so, shall initiate [administrative or] judicial proceedings against the property within forty-five days [of receipt of a written request for forfeiture from a seizing agency.] after the owner of property has been convicted of a covered crime as set forth in section 712A-5.  If, on inquiry and examination, the prosecuting attorney determines, with sole discretion, that the proceedings probably cannot be sustained or that justice does not require the institution of proceedings, the prosecuting attorney shall notify the seizing agency, and as soon as practicable authorize the release of the seizure for forfeiture on the property or on any specified interest in it.  A determination by the prosecuting attorney to forego initiation of proceedings shall not be a bar to initiation of proceedings against the same property based on the same circumstances at a later time."

     SECTION 5.  Section 712A-11, Hawaii Revised Statutes, is amended to read as follows:

     "§712A-11  Judicial forfeiture proceedings; general.  (1)  [In any judicial or administrative proceeding]  All forfeiture proceedings pursuant to this chapter[, the] shall be conducted in circuit court, and no property shall be forfeited except after a conviction of an offense chargeable as provided under section 712A-5.  The court, on application of the State, may enter any restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, appraisers, accountants or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to forfeiture under this chapter, including a warrant for its seizure, whether before or after the filing of a petition for forfeiture, complaint, or indictment.

     (2)  If property is seized for forfeiture without a seizure warrant, a prior judicial order of forfeiture, or a hearing pursuant to section 712A-13, a court, on an application filed by an owner or interest-holder within fifteen days after notice of its seizure for forfeiture or actual knowledge of it, whichever is earlier, and complying with the requirements for claims in section 712A-12, may issue an order to show cause to the seizing agency, with thirty days' notice to the prosecuting attorney, for a hearing on the issue of whether probable cause for forfeiture of the applicant's interest then exists[,] to validate the continued seizure of the property pending the outcome of a judicial forfeiture proceeding, provided that, the order to show cause shall be set aside upon the filing of a petition for [either administrative or] judicial forfeiture prior to the hearing, in which event forfeiture proceedings shall be in accordance with this chapter.

     (3)  There shall be a rebuttable presumption that any property of a person is subject to forfeiture under this chapter if the State establishes, by the standard of proof applicable to that proceeding, all of the following:

     (a)  That the person has engaged in and been convicted of criminal conduct for which property is subject to forfeiture;

     (b)  That the property was acquired by the person during the period of the criminal conduct or within a reasonable time after that period; and

     (c)  That there was no likely source for the property other than the criminal conduct giving rise to forfeiture.

     (4)  A finding that property is the proceeds of criminal conduct giving rise to forfeiture does not require proof that the property is the proceeds [[]of[]] any particular exchange or transaction.

     (5)  A defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding pursuant to this chapter.  For the purposes of this chapter, a conviction may result from a verdict or plea, including a no contest plea, or deferred acceptance of guilty plea, or no contest plea.

     [(6)  An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this chapter.

     (7)] (6)  In any judicial forfeiture proceeding pursuant to this chapter, if a defense is based on an exemption provided for in this chapter, the burden of proving the existence of the exemption is on the claimant or party raising the defense, and it is not necessary to negate the exemption in any petition, application, complaint, or indictment.

     [(8)] (7)  For good cause shown, on motion by the prosecuting attorney, the court may stay discovery against the State in civil forfeiture proceedings prior to trial on a criminal complaint or indictment arising from the same conduct and against a claimant who is a defendant in the criminal proceeding after making provision to prevent loss to any party resulting from the delay.  The stay provided by this subsection shall not be available pending appeal of any order or judgment in the criminal proceeding.

     [(9)] (8)  The court shall receive and consider, at any hearing held pursuant to this chapter, except the hearing on claims pursuant to sections 712A-12(4) through (8) and 712A-13(7), evidence and information which would be admissible under the rules of penal procedure relating to preliminary hearings.

     [(10)] (9)  All property, including all interest in such property, declared forfeited under this chapter vests in this State on the commission of the act or omission giving rise to forfeiture under this chapter together with the proceeds of the property after the act or omission.  Any property or proceeds transferred to any person after the act or omission are subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing pursuant to this chapter the showings set out in section 712A-5(2)."

     SECTION 6.  Section 712A-12, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  In rem forfeiture proceedings are not permitted except when the owner of the property has died without successors in interest, cannot be located, or has abandoned claims of ownership, and when the owner was deemed convicted of a covered offense, as provided in section 712A-5 or when the State claims that the owner would have been deemed convicted if the owner had not died or disappeared.  If a forfeiture is authorized by law, it shall be ordered by a court on an action in rem brought by the prosecuting attorney on a verified petition for forfeiture filed in the criminal or civil division of the circuit court."

     SECTION 7.  Section 712A-10, Hawaii Revised Statutes, is repealed.

     ["§712A-10  Administrative forfeiture.  The prosecuting attorney may initiate administrative forfeiture of property other than real property, the estimated value of which is less than $100,000, or of any vehicle or conveyance, regardless of value.  Administrative forfeiture shall be processed in the following manner:

     (1)  The prosecuting attorney shall file a petition with the attorney general, pursuant to rules adopted by the attorney general.

     (2)  The prosecuting attorney shall give notice of pending forfeiture by making reasonable efforts to serve a copy of the petition in a manner provided in section 712A-8(a) or 712A-8(b) on all persons known to have an interest in the property, together with instructions for filing a claim and cost or in pauperis bond, or a petition for remission or mitigation.

     (3)  The attorney general shall give notice of intention to forfeit the property administratively by publication in the manner provided in section 712A-8(c).  Notice by publication shall include:

         (a)  A description of the property;

         (b)  The estimated value of the property;

         (c)  The date and place of the seizure;

         (d)  The offense for which the property is subject to forfeiture;

         (e)  Instructions for filing a claim and cost or in pauperis bond, or a petition for remission or mitigation; and

         (f)  Notice that the property will be forfeited to the State if a claim and cost or in pauperis bond or petition for remission or mitigation is not filed in substantial compliance with this section.

     (4)  Persons claiming an interest in the property may file either a petition for remission or mitigation of forfeiture, or a claim and cost or in pauperis bond, but not both, with the attorney general, within thirty days of notice by publication or receipt of written notice, whichever is earlier.  Notwithstanding section 1-29, the thirty-day time period prescribed herein is computed by excluding the first day and including the last day, unless the last day is a Saturday, Sunday, or holiday and then it is also excluded, and the thirty-day time period runs until the end of the next day which is not a Saturday, Sunday, or a holiday.  "Holiday" includes any day designated as a holiday pursuant to section 8-1.

     (5)  Any person claiming seized property may seek remission or mitigation of the forfeiture by timely filing a petition with the attorney general.  A petition for remission or mitigation shall not be used to challenge the sufficiency of the evidence to support the forfeiture or the actions of any government official but shall presume a valid forfeiture and ask the attorney general to invoke the executive power to pardon the property, in whole or in part.  The petition shall be signed by the petitioner and sworn on oath before a notary public and shall contain the following:

         (a)  A reasonably complete description of the property;

         (b)  A statement of the interest of the petitioner in the property, as owner or interest-holder which may be supported by bills of sale, contracts, or mortgages, or other documentary evidence; and

         (c)  Facts and circumstances sufficient to show whether the petitioner:

              (i)  Owns or holds an interest in the seized property as defined by section 712A-1;

             (ii)  Had any knowledge that the property was or would be involved in any violation of the law;

            (iii)  Had any knowledge of the particular violation which subjected the property to seizure and forfeiture;

             (iv)  Had any knowledge that the user of the property had any record, including arrests, except when the person was acquitted or the charges dismissed due to lack of evidence, for the violation which subjected the property to seizure and forfeiture or for any crime which is similar in nature.

          Any subsequent pleadings or written communications alleging matters pertaining to [subparagraph] (b) or (c) of this [paragraph] must also be signed by the petitioner and sworn on oath before a notary public.

     (6)  If the attorney general, with sole discretion, determines that remission is not warranted, the attorney general may discretionarily mitigate the forfeiture where the petitioner has not met the minimum requirements for remission but where there are present other extenuating circumstances indicating that some relief should be granted to avoid extreme hardship.  Mitigation may also be granted where the minimum requirements for remission have been met but the overall circumstances are such that the attorney general determines that complete relief is not warranted.  Mitigation shall take the form of a money penalty imposed upon the petitioner which shall be deposited into the criminal forfeiture fund established under section 712A-16.  Extenuating circumstances include:

         (a)  Language or culture barrier;

         (b)  Humanitarian factors such as youth or extreme age;

         (c)  Presence of physical or mental disease, disorder, or defect;

         (d)  Limited or peripheral criminal culpability;

         (e)  Cooperation with the seizing agency or the prosecuting attorney; and

         (f)  Any contributory error on the part of government officials.

     (7)  It shall be the duty of the attorney general to inquire into the facts and circumstances alleged in a petition for remission or mitigation of forfeiture.  However, no petitioner is entitled to a hearing on the petition for remission or mitigation.  Hearings, if any, shall be held at the discretion of the attorney general.

     (8)  The attorney general shall provide the seizing agency and the petitioner a written decision on each petition for remission or mitigation within sixty days of receipt of the petition unless the circumstances of the case require additional time, in which case the attorney general shall notify the petitioner in writing and with specificity within the sixty-day period that the circumstances of the case require additional time and further notify the petitioner of the expected decision date.

     (9)  Any person claiming seized property may seek judicial review of the seizure and proposed forfeiture by timely filing with the attorney general a claim and bond to the State in the amount of ten per cent of the estimated value of the property or in the sum of $2,500, whichever is greater, with sureties to be approved by the attorney general, upon condition that if the claimant fails to prove that claimant's interest is exempt from forfeiture under section 712A-5, the claimant shall pay the State's costs and expenses, including reasonable attorneys fees incurred in connection with a judicial proceeding.  In lieu of a cost bond, a claimant may file an in pauperis bond sworn on oath before a notary public.  An in pauperis bond shall be in the form set out in the appendix to the rules of penal procedure.  The claim shall be signed by the claimant and sworn on oath before a notary public and shall comply with the requirements of section 712A-12(5).  Upon receipt of the claim and bond, the attorney general shall notify the prosecuting attorney who may discretionarily continue to seek forfeiture by petitioning the circuit court for forfeiture of the property within forty-five days of receipt of notice that a proper claim and bond has been filed.  The prosecuting attorney may also elect to honor the claim in which case the prosecuting attorney shall notify the seizing agency and authorize the release of the seizure for forfeiture on the property or on any specified interest in it.

    (10)  If a judicial forfeiture proceeding is instituted subsequent to notice of administrative forfeiture pursuant to paragraph (9), no duplicate or repetitive notice shall be required.  The judicial proceeding, if any, shall adjudicate all timely filed claims.  At the judicial proceeding, the claimant may testify, present evidence and witnesses on the claimant's behalf, and cross-examine witnesses who appear at the hearing.  The State may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing.  The State has the initial burden of showing by a preponderance of the evidence that the claimant's interest in the property is subject to forfeiture.  On such a showing by the State, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture.

    (11)  In the event a claim and bond has not been filed in substantial compliance with this section, or if the attorney general, with sole discretion, determines that remission or mitigation is not warranted, the attorney general shall order forfeited all property seized for forfeiture.  In the event the attorney general, with sole discretion, determines that remission or mitigation is warranted, the attorney general shall notify the seizing agency and the prosecuting attorney and order the release of the seizure for forfeiture on the property or on any specified interest in it.  There shall be no appeal from the attorney general's decision or order of forfeiture or remission or mitigation.

    (12)  Administrative proceedings and the adoption of rules under this section are exempt from the requirements of chapter 91, the Hawaii administrative procedure act, and are adjudicatory functions for the purposes of applicable sections of the Hawaii Revised Statutes."]

     SECTION 8.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 9.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 10.  This Act shall take effect on July 1, 2030.

Report Title:

Civil Asset Forfeiture

 

Description:

Restricts asset forfeitures to cases involving the commission of a covered misdemeanor or felony offense.  Repeals administrative forfeiture proceedings.  Requires the agency to pay for safe and secure storage of the seized property until the completion of the forfeiture proceeding or final disposition of the property.  Provides that the property is forfeited only when the property owner has been convicted of an underlying felony or misdemeanor covered offense.  (HB1559 HD2)

 

 

 

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