Iowa-2017-HF2251-Introduced
House File 2251 - Introduced
HOUSE FILE
BY HEARTSILL
A BILL FOR
1 An Act relating to the seizure of property by the department of
2 natural resources.
3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
TLSB 5558YH (1) 87
js/jh
PAG LIN
1 1 Section 1. Section 481A.11, Code 2018, is amended to read
1 2 as follows:
1 3 481A.11 Confiscated or accidentally killed game.
1 4 Except as provided in section 481A.13 or 481A.13A, any game
1 5 or fish seized by the commission under section 481A.12 or any
1 6 game accidentally killed by a motor vehicle on a public highway
1 7 shall, when salvageable, be disposed of as determined by the
1 8 commission or its designee.
1 9 Sec. 2. Section 481A.12, Code 2018, is amended to read as
1 10 follows:
1 11 481A.12 Seizure of wildlife taken or handled illegally.
1 12 The director or any peace officer shall seize with or
1 13 without warrant and take possession of, or direct the disposal
1 14 of, any fish, furs, birds, or animals, or mussels, clams, or
1 15 frogs, which have been caught, taken, or killed at a time,
1 16 in a manner, or for a purpose, or had in possession or under
1 17 control, or offered for shipment, or illegally transported in
1 18 the state or to a point beyond its borders, contrary to the
1 19 Code. All fish, furs, birds, or animals, or mussels, clams,
1 20 or frogs seized under this section may shall be relinquished
1 21 to a representative of the commission or disposed of and kept
1 22 as provided in section 481A.13.
1 23 Sec. 3. Section 481A.13, Code 2018, is amended to read as
1 24 follows:
1 25 481A.13 Search warrants.
1 26 Any court having jurisdiction of the offense, upon receiving
1 27 proof of probable cause for believing that any fish, mussels,
1 28 clams, frogs, birds, furs, or animals caught, taken, killed,
1 29 had in possession, under control, or shipped, contrary to the
1 30 Code, or hidden or concealed in any place, shall issue a search
1 31 warrant and cause a search to be made in any place therefor.
1 32 The property so seized under warrant shall be safely kept under
1 33 the direction of the court so long as necessary for the purpose
1 34 of being used as evidence in any trial, and if a trial results
1 35 in a conviction the property seized shall be confiscated by the
2 1 director or the director's officers. If the trial does not
2 2 result in a conviction, the property shall be returned to the
2 3 person pursuant to section 481A.13A.
2 4 Sec. 4. NEW SECTION. 481A.13A Conviction required for
2 5 property confiscation ==== return of property.
2 6 1. The state shall not confiscate property seized under
2 7 section 481A.12 or 481A.13 unless the person from whom the
2 8 property was seized is convicted of the violation for which the
2 9 property was seized.
2 10 2. If the person from whom the property was seized is not
2 11 convicted of the violation for which the property was seized,
2 12 the department, law enforcement agency, or other governmental
2 13 agency in possession of the seized property shall return the
2 14 seized property to the person within thirty days of any of the
2 15 following:
2 16 a. The date the person is found not guilty of the violation.
2 17 b. The date the action involving the violation is dismissed.
2 18 c. The date the statute of limitations expires for the
2 19 alleged violation for which the property was seized.
2 20 3. For purposes of this section, "convicted" includes
2 21 a finding of guilt, payment of a scheduled fine, a plea of
2 22 guilty, deferred judgment, deferred or suspended sentence,
2 23 adjudication of delinquency, or circumstance where a person is
2 24 not charged with a criminal offense related to the violation
2 25 based in whole or in part on the person's agreement to provide
2 26 information regarding the criminal activity of another person.
2 27 Sec. 5. Section 483A.32, Code 2018, is amended to read as
2 28 follows:
2 29 483A.32 Public nuisance.
2 30 1. Any Subject to subsection 2, any device, contrivance,
2 31 or material used to violate a rule adopted by the commission,
2 32 or any other provision of this chapter or chapter 481A, 481B,
2 33 482, 484A, or 484B, is a public nuisance and may be condemned
2 34 by the state. The director, the director's officers, or
2 35 any peace officer, shall seize the devices, contrivances,
3 1 or materials used as a public nuisance, without warrant or
3 2 process, and deliver them to a magistrate having jurisdiction.
3 3 An automobile shall not be construed to be a public nuisance
3 4 under this section.
3 5 2. The state may only condemn property seized as a public
3 6 nuisance if the person from whom the property was seized is
3 7 convicted of the violation for which the property was seized as
3 8 a public nuisance.
3 9 3. If the person from whom the property was seized is not
3 10 convicted of the violation for which the property was seized,
3 11 the department, law enforcement agency, or other governmental
3 12 agency in possession of the seized property shall return the
3 13 seized property to the person within thirty days of any of the
3 14 following:
3 15 a. The date the person is found not guilty of the violation.
3 16 b. The date the action involving the violation is dismissed.
3 17 c. The date the statute of limitations expires for the
3 18 alleged violation for which the property was seized.
3 19 4. For purposes of this section, "convicted" means the same
3 20 as in section 481A.13A, subsection 3.
3 21 Sec. 6. Section 483A.33, subsection 3, paragraph a, Code
3 22 2018, is amended to read as follows:
3 23 a. The person from whom the property was seized may make
3 24 application for its return in the office of the clerk of the
3 25 district court for the county in which the property was seized.
3 26 The application shall be filed within thirty days after
3 27 the receipt of the notice of condemnation or the person is
3 28 convicted of the violation for which the property was seized,
3 29 whichever occurs later. Failure to file the application within
3 30 this time period terminates the interest of the person and the
3 31 ownership of the property shall be transferred to the state,
3 32 except that a person who is not convicted of the violation
3 33 for which the property was seized is not required to file an
3 34 application and is entitled to the return of the property in
3 35 accordance with section 483A.32.
4 1 Sec. 7. Section 483A.33, subsection 4, Code 2018, is amended
4 2 to read as follows:
4 3 4. If an application for return of condemnable property
4 4 is timely and of sufficient grounds, the claim shall be set
4 5 for hearing. The hearing shall be held not less than ten nor
4 6 more than thirty days after the filing of the claim claim is
4 7 filed or the person is convicted for the violation for which
4 8 the property was seized as a public nuisance, whichever occurs
4 9 later. The proceeding shall be conducted by a magistrate or
4 10 a district associate judge. All claims to the same property
4 11 shall be heard in one proceeding, unless it is shown that the
4 12 proceeding would result in prejudice to one or more of the
4 13 parties.
4 14 Sec. 8. Section 483A.33, Code 2018, is amended by adding the
4 15 following new subsection:
4 16 NEW SUBSECTION. 6. For purposes of this section,
4 17 "convicted" means the same as in section 481A.13A, subsection 3.
4 18 EXPLANATION
4 19 The inclusion of this explanation does not constitute agreement with
4 20 the explanation's substance by the members of the general assembly.
4 21 This bill relates to seizure of property by the department
4 22 of natural resources, provides that seized property may only
4 23 be forfeited to the state upon conviction of the violation
4 24 which led to the seizure, and requires the department to return
4 25 the seized property if the person is not convicted of the
4 26 violation.
4 27 The bill defines "convicted" as a finding of guilt, payment
4 28 of a scheduled fine, a plea of guilty, deferred judgment,
4 29 deferred or suspended sentence, adjudication of delinquency,
4 30 or circumstance where a person is not charged with a criminal
4 31 offense related to the violation based in whole or in part on
4 32 the person's agreement to provide information regarding the
4 33 criminal activity of another person.
4 34 Under current law, a peace officer may seize any fish,
4 35 furs, birds, animals, mussels, clams, or frogs which have
5 1 been caught, taken, or killed at a time, in a manner, or for
5 2 a purpose, or had in possession or under control, or offered
5 3 for shipment, or illegally transported in the state or to a
5 4 point beyond its borders, contrary to the Code. Such seized
5 5 wildlife may be disposed of or relinquished to a representative
5 6 of the natural resource commission. The bill provides that
5 7 such seized wildlife must be kept for trial, and if the
5 8 person from whom the wildlife was seized is not convicted, the
5 9 department of natural resources, law enforcement agency, or
5 10 other governmental agency in possession of the seized property
5 11 shall return the wildlife within 30 days of the person being
5 12 found not guilty, the action being dismissed, or the expiration
5 13 of the statute of limitations for the alleged violation for
5 14 which the property was seized.
5 15 Under current law, any device, contrivance, or material
5 16 used to violate a rule adopted by the commission, or any other
5 17 provision of Code chapter 481A (wildlife conservation), 481B
5 18 (endangered plants and wildlife), 482 (commercial fishing),
5 19 483A (fishing and hunting licenses, contraband, and guns),
5 20 484A (migratory game birds), or 484B (hunting preserves), is
5 21 a public nuisance and may be condemned by the state. The bill
5 22 provides that such seized property may only be condemned by
5 23 the state if the person from whom the property was seized is
5 24 convicted of the violation for which the property was seized
5 25 as a public nuisance. If the person from whom the property was
5 26 seized is not convicted, the department of natural resources,
5 27 law enforcement agency, or other governmental agency in
5 28 possession of the property is required to return the property
5 29 to the person within 30 days of the person being found not
5 30 guilty, the action being dismissed, or the expiration of the
5 31 statute of limitations for the alleged violation for which the
5 32 property was seized.
5 33 Under current law, after the state files an application for
5 34 condemnation of property seized as a public nuisance, a person
5 35 must file an application for return within 30 days. Failure to
6 1 timely file the application terminates the person's interest in
6 2 the property. A hearing for the condemnation of the property
6 3 then must be held not less than 10 nor more than 30 days after
6 4 the application for return is filed.
6 5 The bill provides that a person must file an application
6 6 for return within 30 days of the state's application for
6 7 condemnation or the conviction of the person, whichever
6 8 occurs later, except that a person who is not convicted of
6 9 the violation is not required to file an application and is
6 10 entitled to the return of the property. The bill also provides
6 11 that a hearing for the condemnation of the property, if any,
6 12 must be held not less than 10 nor more than 30 days after
6 13 the application for return is filed or the conviction of the
6 14 person, whichever occurs later.
LSB 5558YH (1) 87
js/jh