Bill Text: HI SB2635 | 2016 | Regular Session | Introduced

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Bill Title: Law Enforcement; Property Subject to Forfeiture; Burden of Proof; Disposition of Property Forfeited; General Fund

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Introduced - Dead) 2016-01-27 - Referred to JDL, WAM. [SB2635 Detail]

Download: Hawaii-2016-SB2635-Introduced.html

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THE SENATE	S.B. NO.	2635
TWENTY-EIGHTH LEGISLATURE, 2016
STATE OF HAWAII

A BILL FOR AN ACT

 

 

relating to forfeiture.

 

 

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

 

     SECTION 1.  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 unless the owner or interest-holder of the property has been convicted of a covered offense and the State has met the rebuttable presumption established in section 712A-11(3);

    [(b)] (c)  No property shall be forfeited under this chapter to the extent of an interest of an owner, 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)] (d)  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)] (e)  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)] (f)  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."

     SECTION 2.  Section 712A-10, Hawaii Revised Statutes, is amended by amending subsection (10) to read as follows:

     "(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] clear and convincing 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.] and that the claimant consented to the use of the property with knowledge that it would be or was used for a purpose for which forfeiture is authorized; provided that if the claimant prevails, only the prevailing claimant shall recover attorneys' fees and costs."

     SECTION 3.  Section 712A-11, Hawaii Revised Statutes, is amended as follows:

     1.  By amending subsections (1), (2), and (3) to read:

     "(1)  In any judicial or administrative proceeding pursuant to this chapter, 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] thirty 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] clear and convincing evidence exists for the forfeiture of the applicant's interest [then exists,]; 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 criminal conduct] been convicted of a covered offense for which property is subject to forfeiture[;] pursuant to section 712A-5(2)(b);

     (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."

     2.  By amending subsection (6) to read:

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

     SECTION 4.  Section 712A-12, Hawaii Revised Statutes, is amended by amending subsection (8) to read as follows:

     "(8)  The State has the [initial] burden of showing by [a preponderance of the] clear and convincing 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.] and that the claimant consented to the use of the property with knowledge that it would be or was used for a purpose for which forfeiture is authorized."

     SECTION 5.  Section 712A-13, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

     "(1)  If a forfeiture is authorized by law, it shall be ordered by a court on a petition for forfeiture filed by the prosecuting attorney in an in personam civil or criminal action.  In any civil in personam action brought under this section, the owner or interest-holder may testify, present evidence and witnesses on the owner or interest-holder'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] clear and convincing evidence that the owner or interest-holder's interest in the property is subject to forfeiture[.  On such a showing by the State, the owner or interest-holder has the burden of showing by a preponderance of the evidence that the owner or interest-holder's interest in the property is not subject to forfeiture.] and that the claimant consented to the use of the property with knowledge that it would be or was used for a purpose for which forfeiture is authorized; provided that if the claimant prevails, only the prevailing claimant shall recover attorneys' fees and costs."

     SECTION 6.  Section 712A-16, Hawaii Revised Statutes, is amended to read as follows:

     "§712A-16  Disposition of property forfeited.  (1)  All property forfeited to the State under this chapter shall be transferred to the attorney general who:

     (a)  May transfer property, other than currency, which shall be distributed in accordance with subsection (2) [to any local or state government entity, municipality, or law enforcement agency within the State];

     (b)  May sell forfeited property to the public by public sale; provided that for leasehold real property:

         (i)  The attorney general shall first offer the holder of the immediate reversionary interest the right to acquire the leasehold interest and any improvements built or paid for by the lessee for the then fair market value of the leasehold interest and improvements.  The holder of the immediate reversionary interest shall have thirty days after receiving written notice within which to accept or reject the offer in writing; provided that the offer shall be deemed to be rejected if the holder of the immediate reversionary interest has not communicated acceptance to the attorney general within the thirty-day period.  The holder of the immediate reversionary interest shall have thirty days after acceptance to tender to the attorney general the purchase price for the leasehold interest and any improvements, upon which tender the leasehold interest and improvements shall be conveyed to the holder of the immediate reversionary interest.

        (ii)  If the holder of the immediate reversionary interest fails to exercise the right of first refusal provided in subparagraph (i), the attorney general may proceed to sell the leasehold interest and any improvements by public sale.

       (iii)  Any dispute between the attorney general and the holder of the immediate reversionary interest as to the fair market value of the leasehold interest and improvements shall be settled by arbitration pursuant to chapter 658A;

     (c)  May sell or destroy all raw materials, products, and equipment of any kind used or intended for use in manufacturing, compounding, or processing a controlled substance or any untaxed cigarettes in violation of chapter 245;

     (d)  May compromise and pay valid claims against property forfeited pursuant to this chapter; or

     (e)  May make any other disposition of forfeited property authorized by law.

     (2)  All forfeited property and the sale proceeds thereof, up to a maximum of three million dollars per year, not previously transferred pursuant to [[]subsection[]] (1)(a) of this section, shall, after payment of expenses of administration and sale, be distributed as follows:

     (a)  One [quarter shall be distributed to the unit or units of state or local government [whose] officers or employees conducted the investigation and caused the arrest of the person whose property was forfeited or seizure of the property for forfeiture;

     (b)  One quarter shall be distributed to the prosecuting attorney who instituted the action producing the forfeiture; and] half shall be deposited in the general fund of the State to support the judiciary; and

    [(c)] (b)  One half shall be deposited into the criminal forfeiture fund established by this chapter.

     [(3)  Property and money distributed to units of state and local government shall be used for law enforcement purposes, and shall complement but not supplant the funds regularly appropriated for such purposes.

     (4)] (3)  There is established in the department of the attorney general a revolving fund to be known as the criminal forfeiture fund, hereinafter referred to as the "fund" in which shall be deposited one-half of the proceeds of a forfeiture and any penalties paid pursuant to section 712A-10(6).  All moneys in the fund shall be expended by the attorney general and are hereby appropriated for the following purposes:

     (a)  The payment of any expenses necessary to seize, detain, appraise, inventory, safeguard, maintain, advertise, or sell property seized, detained, or forfeited pursuant to this chapter or of any other necessary expenses incident to the seizure, detention, or forfeiture of such property and such contract services and payments to reimburse any federal, state, or county agency for any expenditures made to perform the foregoing functions;

     (b)  The payment of awards for information or assistance leading to a civil or criminal proceeding;

     (c)  The payment of supplemental sums to state and county agencies for law enforcement purposes;

     (d)  The payment of expenses arising in connection with programs for training and education of law enforcement officers; and

     (e)  The payment of expenses arising in connection with enforcement pursuant to the drug nuisance abatement unit in the department of the attorney general.

     [(5)] (4)  The attorney general may, without regard to the requirements of chapter 91, promulgate rules and regulations concerning the disposition of property, the use of the fund, and compromising and paying valid claims against property forfeited pursuant to this chapter.

     [(6)] (5)  Not less than twenty days prior to the convening of each regular session, the attorney general shall provide to the legislature a report on the use of the Hawaii omnibus criminal forfeiture act during the fiscal year preceding the legislative session.  The report shall include:

     (a)  The total amount and type of property seized by law enforcement agencies;

     (b)  The total number of administrative and judicial actions filed by prosecuting attorneys and the disposition thereof;

     (c)  The total number of claims or petitions for remission or mitigation filed in administrative actions and the dispositions thereof;

     (d)  The total amount and type of property forfeited and the sale proceeds thereof;

     (e)  [The total amount and type of property distributed to units of state and local government;] The amount of money deposited into the general fund of the State;

     (f)  The amount of money deposited into the criminal forfeiture fund; and

     (g)  The amount of money expended by the attorney general from the criminal forfeiture fund under subsection [(5)] (3) and the reason for the expenditures."

     SECTION 7.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

     SECTION 8.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 9.  This Act shall take effect upon its approval.

 

INTRODUCED BY:	_____________________________

 

 

Report Title:

Law Enforcement; Property Subject to Forfeiture; Burden of Proof; Disposition of Property Forfeited; General Fund

 

Description:

Specifies that no property shall be forfeited unless the owner or interest-holder of the property has been convicted of a covered offense and the State has met its rebuttable presumption for forfeiture.  Requires the State to show by clear and convincing evidence that a claimant's interest in the property is subject to forfeiture.  Limits the authority to recover attorneys' fees and costs to a prevailing claimant only.  Requires half of any forfeited property and sales proceeds to be deposited in the general fund of the State to support the judiciary.

 

 

 

The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.