Bill Text: IA SF267 | 2017-2018 | 87th General Assembly | Introduced
Bill Title: A bill for an act relating to forfeiture of property for criminal offenses and including applicability provisions.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2017-02-20 - Subcommittee: Schultz, Bisignano, and Schneider. S.J. 359. [SF267 Detail]
Download: Iowa-2017-SF267-Introduced.html
Senate File 267 - Introduced SENATE FILE BY BOLKCOM A BILL FOR 1 An Act relating to forfeiture of property for criminal offenses 2 and including applicability provisions. 3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: TLSB 1497XS (6) 87 jh/nh PAG LIN 1 1 Section 1. NEW SECTION. 809B.1 Definitions. 1 2 As used in this chapter, unless the context otherwise 1 3 requires: 1 4 1. "Abandoned property" means personal property left by an 1 5 owner who intentionally relinquishes all rights to the control 1 6 of the personal property. "Abandoned property" does not include 1 7 real property. 1 8 2. "Actual knowledge" means direct and clear awareness of 1 9 information, a fact, or a condition. 1 10 3. "Constructive knowledge" means knowledge that is 1 11 imputed to family or household members of the defendant if the 1 12 defendant admitted guilt or was adjudicated guilty three or 1 13 more times for the same or similar offense, as specified in 1 14 statute, in the ten years prior to the alleged offense. 1 15 4. "Contraband" means goods that are unlawful to import, 1 16 export, or possess, including controlled substances without a 1 17 valid prescription. 1 18 5. "Conveyance" means a device used for transportation and 1 19 includes a motor vehicle, trailer, snowmobile, airplane, and 1 20 vessel, and any attached equipment. "Conveyance" does not 1 21 include property that is stolen or taken in violation of the 1 22 law. 1 23 6. "Instrumentality" means property otherwise lawful to 1 24 possess that is used in the furtherance or commission of an 1 25 offense of a law subject to forfeiture. "Instrumentality" 1 26 includes land, buildings, containers, a conveyance, equipment, 1 27 materials, products, a computer, computer software, a 1 28 telecommunications device, a firearm, ammunition, a tool, 1 29 money, securities, and negotiable instruments and other means 1 30 of exchange. 1 31 7. "Law enforcement agency" means any nonfederal police 1 32 force, or other local, county, or state agency that has the 1 33 authority under state law to engage in seizure and forfeiture. 1 34 8. "Law subject to forfeiture" means a state law that 1 35 carries a felony penalty and that explicitly includes 2 1 forfeiture as a punishment or sanction for the offense. 2 2 Sec. 2. NEW SECTION. 809B.2 Purpose. 2 3 This chapter's purpose is to deter criminal activity by 2 4 reducing crime's economic incentive, increase the pecuniary 2 5 loss from criminal activity, protect against the wrongful 2 6 forfeiture of property, and ensure that only criminal 2 7 forfeiture is allowed in this state. 2 8 Sec. 3. NEW SECTION. 809B.3 Criminal forfeiture ==== property 2 9 subject to forfeiture. 2 10 When a person is convicted of violating a law subject to 2 11 forfeiture, the court, consistent with this chapter, may order 2 12 the person to forfeit any of the following: 2 13 1. Property the person derived from the commission of the 2 14 offense. 2 15 2. Property directly traceable to property derived from the 2 16 commission of the offense. 2 17 3. Instrumentalities the person used in the commission of 2 18 the offense. 2 19 Sec. 4. NEW SECTION. 809B.4 Exemptions. 2 20 Real property that is a homestead, a motor vehicle of less 2 21 than ten thousand dollars in market value, and United States 2 22 currency totaling two hundred dollars or less are exempt from 2 23 forfeiture. 2 24 Sec. 5. NEW SECTION. 809B.5 Contraband. 2 25 A property right does not exist in contraband. Contraband 2 26 is subject to seizure and shall be disposed of according to 2 27 state law. Contraband is not subject to forfeiture under this 2 28 chapter. 2 29 Sec. 6. NEW SECTION. 809B.6 Conviction required ==== standard 2 30 of proof. 2 31 1. Property may only be forfeited under this chapter if 2 32 the offense is of a law subject to forfeiture, the offense is 2 33 established by proof of a criminal conviction, and the state 2 34 establishes that the property is forfeitable under this chapter 2 35 by clear and convincing evidence. 3 1 2. This chapter does not prevent property from being 3 2 forfeited by plea agreement approved by the presiding criminal 3 3 court. 3 4 3. a. The court may waive the requirement of proof of a 3 5 criminal conviction if the prosecuting authority shows by a 3 6 preponderance of the evidence any of the following: 3 7 (1) The suspect died. 3 8 (2) The suspect was deported by the United States 3 9 government. 3 10 (3) The suspect fled the jurisdiction after being arrested, 3 11 charged with a crime subject to forfeiture of property, and 3 12 released on bail. 3 13 b. Property forfeitable under this subsection remains 3 14 subject to claims by innocent owners, creditors, and other 3 15 third parties pursuant to this chapter. 3 16 Sec. 7. NEW SECTION. 809B.7 Substitution of assets. 3 17 Upon the state's motion following conviction, the court 3 18 may order the forfeiture of substitute property owned by the 3 19 defendant up to the value of unreachable property that is 3 20 beyond the court's jurisdiction or cannot be located through 3 21 due diligence only if the state proves by a preponderance of 3 22 the evidence that the defendant intentionally transferred, 3 23 sold, or deposited property with a third party to avoid the 3 24 court's jurisdiction. 3 25 Sec. 8. NEW SECTION. 809B.8 No additional remedies. 3 26 The state shall not seek personal money judgments or other 3 27 remedies not provided for in this chapter. 3 28 Sec. 9. NEW SECTION. 809B.9 No joint=and=several liability. 3 29 A defendant is not jointly and severally liable for 3 30 forfeiture awards owed by other defendants. When ownership is 3 31 unclear, a court may order each defendant to forfeit property 3 32 on a pro rata basis or by another means the court finds 3 33 equitable. 3 34 Sec. 10. NEW SECTION. 809B.10 Seizure of personal property 3 35 with process. 4 1 At the request of the state at any time, a court may issue an 4 2 ex parte preliminary order to attach, seize, or secure personal 4 3 property for which forfeiture is sought and to provide for 4 4 custody of such property. Application, issuance, execution, 4 5 and return of any order are subject to this chapter or court 4 6 rules. 4 7 Sec. 11. NEW SECTION. 809B.11 Seizure of personal property 4 8 without process. 4 9 Personal property subject to forfeiture may be seized at any 4 10 time without a court order if any of the following apply: 4 11 1. The seizure of personal property is incident to a lawful 4 12 arrest or a search lawfully conducted. 4 13 2. The personal property subject to seizure has been the 4 14 subject of a prior judgment in favor of the state. 4 15 3. The state has probable cause to believe that the delay 4 16 occasioned by the necessity to obtain process would result in 4 17 the removal or destruction of the personal property and that 4 18 the personal property is forfeitable under this chapter. 4 19 Sec. 12. NEW SECTION. 809B.12 Seizure of real property with 4 20 process. 4 21 1. Seizure of real property requires a court order. A court 4 22 may issue an order to seize or secure real property for which 4 23 forfeiture is sought only after proper notice to the property 4 24 owner and an opportunity for a contested hearing to determine 4 25 the sufficiency of probable cause for the seizure. 4 26 2. This section does not prohibit the prosecuting authority 4 27 from seeking a lis pendens or restraining order to hinder the 4 28 sale or destruction of the real property. 4 29 3. Application, issuance, execution, and return of any 4 30 order are subject to this chapter or court rules. 4 31 Sec. 13. NEW SECTION. 809B.13 Receipt. 4 32 When property is seized, the law enforcement officer shall 4 33 give an itemized receipt to the person possessing the property, 4 34 or in the absence of a person, leave a receipt in the place 4 35 where the property was found, if reasonably possible. 5 1 Sec. 14. NEW SECTION. 809B.14 Title. 5 2 1. At the time of seizure or entry of a restraining order, 5 3 the state acquires provisional title to the seized property. 5 4 Provisional title authorizes the state to hold and protect the 5 5 property. 5 6 2. Title to the property vests with the state when the trier 5 7 of fact renders a final forfeiture verdict and relates back to 5 8 the time when the state acquired provisional title. However, 5 9 this title is subject to claims by third parties adjudicated 5 10 under this chapter. 5 11 Sec. 15. NEW SECTION. 809B.15 Pretrial replevin hearing. 5 12 1. Following the seizure of property, a defendant or 5 13 claimant has a right to a pretrial hearing to determine the 5 14 validity of the seizure. 5 15 2. The defendant or claimant may claim at any time prior 5 16 to sixty days before trial of the related criminal offense the 5 17 right to possession of property by motion to the court to issue 5 18 a writ of replevin. 5 19 3. The defendant or claimant shall file a motion 5 20 establishing the validity of the alleged interest in the 5 21 property. 5 22 4. The court shall hear the motion no more than thirty days 5 23 after the motion is filed. 5 24 5. The state shall file an answer showing probable cause 5 25 for the seizure, or cross motions, at least ten days before the 5 26 hearing. 5 27 6. Either party may, by agreement or for good cause, 5 28 move the court to delay the hearing for one extension of no 5 29 more than ten days. Any such motion may be supported by an 5 30 affidavit or other submission. 5 31 7. The court shall grant the motion if the court finds that 5 32 any of the following apply: 5 33 a. The final judgment will likely be that the state must 5 34 return the property to the claimant. 5 35 b. The property is not reasonably required to be held for 6 1 investigatory reasons. 6 2 c. The property is the only reasonable means for a defendant 6 3 to pay for legal representation in the forfeiture or criminal 6 4 proceeding. At the court's discretion under paragraph "b", the 6 5 court may order the return of funds or property sufficient to 6 6 obtain legal counsel but less than the total amount seized, and 6 7 require an accounting. 6 8 8. In lieu of ordering the issuance of the writ, the court 6 9 may order the state to give security or written assurance for 6 10 satisfaction of any judgment, including damages, that may be 6 11 rendered in the action, or order other relief as may be just. 6 12 Sec. 16. NEW SECTION. 809B.16 Discovery. 6 13 Discovery in a proceeding under this chapter is subject to 6 14 the rules of criminal procedure. 6 15 Sec. 17. NEW SECTION. 809B.17 Trial proceedings. 6 16 The litigation related to the forfeiture of property shall 6 17 be held in a single proceeding following the trial of the 6 18 related alleged criminal offense. The litigation of whether 6 19 property of less than ten thousand dollars in value shall be 6 20 forfeited shall be held before only a judge. 6 21 Sec. 18. NEW SECTION. 809B.18 Proportionality hearing. 6 22 1. At any time following determination by the trier of fact, 6 23 the defendant may petition the court to determine whether the 6 24 forfeiture is unconstitutionally excessive under the state or 6 25 federal constitution. 6 26 2. The defendant has the burden of establishing the 6 27 forfeiture is grossly disproportional to the seriousness of 6 28 the offense by a preponderance of the evidence at a hearing 6 29 conducted by the court without a jury. 6 30 3. In determining whether the forfeiture of an 6 31 instrumentality is unconstitutionally excessive, the court may 6 32 consider all relevant factors, including but not limited to all 6 33 of the following: 6 34 a. The seriousness of the offense and the offense's impact 6 35 on the community, including the duration of the activity and 7 1 the harm caused by the defendant. 7 2 b. The extent to which the defendant participated in the 7 3 offense. 7 4 c. The extent to which the property was used in committing 7 5 the offense. 7 6 d. The sentence imposed for committing the offense subject 7 7 to forfeiture. 7 8 e. Whether the offense was completed or attempted. 7 9 4. In determining the value of the instrumentality subject 7 10 to forfeiture, the court may consider relevant factors, 7 11 including but not limited to any of the following: 7 12 a. The fair market value of the property. 7 13 b. The value of the property to the defendant including 7 14 hardship to the defendant if the forfeiture is realized. 7 15 c. The hardship from the loss of a motor vehicle or other 7 16 property to the defendant's family members or others if the 7 17 property is forfeited. 7 18 5. The court shall not consider the value of the 7 19 instrumentality to the state in determining whether the 7 20 forfeiture of an instrumentality is constitutionally excessive. 7 21 Sec. 19. NEW SECTION. 809B.19 Secured interest. 7 22 1. Property encumbered by a valid security interest or 7 23 subject to a lease or rental agreement is not subject to 7 24 forfeiture. A person claiming a security interest must 7 25 establish by a preponderance of the evidence the validity 7 26 of the perfected security interest, a lease, or a rental 7 27 agreement. 7 28 2. The prosecuting authority shall summarily return 7 29 property to the person with a valid security interest in the 7 30 property, to the lessor, or to the person who is renting out 7 31 the property. 7 32 3. If the person alleges a valid security interest or that 7 33 the property is subject to a lease or rental agreement but 7 34 the state seeks to proceed with the forfeiture against the 7 35 property, the state shall prove by a preponderance of the 8 1 evidence that the person had actual knowledge of the underlying 8 2 offense giving rise to the forfeiture. 8 3 Sec. 20. NEW SECTION. 809B.20 Innocent owner. 8 4 1. The property of an innocent owner shall not be forfeited. 8 5 Whether a person is an innocent owner shall be determined in 8 6 accordance with this section. 8 7 2. A person who has an ownership interest in property 8 8 subject to forfeiture existing at the time the illegal conduct 8 9 giving rise to forfeiture occurred and who claims to be an 8 10 innocent owner has the burden of proving by a preponderance 8 11 of the evidence that the person has a legal right, title, or 8 12 interest in the property seized under this chapter. 8 13 3. If subsection 2 is satisfied and the state seeks to 8 14 proceed with the forfeiture against the property, the state 8 15 shall prove by a preponderance of the evidence that the person 8 16 had actual or constructive knowledge of the underlying offense 8 17 giving rise to the forfeiture. 8 18 4. A person who acquired an ownership interest in property 8 19 subject to forfeiture after the commission of an offense giving 8 20 rise to the forfeiture and who claims to be an innocent owner 8 21 has the burden of proving by a preponderance of the evidence 8 22 that the person has legal right, title, or interest in the 8 23 property seized under this chapter. 8 24 5. If subsection 4 is satisfied and the state seeks to 8 25 proceed with the forfeiture against the property, the state 8 26 shall prove by a preponderance of the evidence that at the time 8 27 the person acquired the property any of the following applied: 8 28 a. The person had actual or constructive knowledge that the 8 29 property was subject to forfeiture. 8 30 b. The person was not a bona fide purchaser without notice 8 31 of any defect in title and for valuable consideration. 8 32 6. If the state fails to meet the state's burden in 8 33 subsection 3 or 5, the court shall find that the person is an 8 34 innocent owner and shall order the state to relinquish all 8 35 claims of title to the property. 9 1 7. The suspect or convicted offender may invoke the right 9 2 against self=incrimination or the marital privilege during 9 3 the forfeiture=related stage of the prosecution. The trier 9 4 of fact at the hearing may draw an adverse inference from the 9 5 invocation of the right or privilege. 9 6 Sec. 21. NEW SECTION. 809B.21 Appeal. 9 7 A party to forfeiture litigation may appeal the district 9 8 court's decision regarding the seizure, forfeiture, and 9 9 distribution of property under this chapter. 9 10 Sec. 22. NEW SECTION. 809B.22 Disposition of property and 9 11 proceeds. 9 12 1. At any time when unclaimed property or contraband held 9 13 for evidentiary purposes is no longer needed for that purpose, 9 14 the court may order unclaimed property to be delivered to the 9 15 treasurer of state within thirty days, or, in the case of 9 16 contraband, be destroyed within thirty days. 9 17 2. If the forfeiture is granted, the court may order the 9 18 property be delivered to the treasurer of state within thirty 9 19 days. 9 20 3. Upon motion, the court may order that a portion of the 9 21 currency seized or proceeds from public auction be used to pay 9 22 reasonable nonpersonnel expenses of the seizure, storage, and 9 23 maintenance of custody of any forfeited items. 9 24 4. All abandoned property shall be delivered to the 9 25 treasurer of state within thirty days. 9 26 5. The treasurer of state shall dispose of all noncurrency 9 27 forfeited property at public auction. The auction proceeds and 9 28 forfeited currency shall first be used to pay all outstanding 9 29 recorded liens on the forfeited property, then to comply with 9 30 an order of the court to pay reasonable nonpersonnel expenses, 9 31 with all remaining funds to be deposited in the general fund 9 32 of the state. 9 33 Sec. 23. NEW SECTION. 809B.23 Prohibition on retaining 9 34 property ==== sale restrictions. 9 35 A law enforcement agency shall not retain forfeited property 10 1 or sell forfeited property directly or indirectly to any 10 2 employee of the agency, to a person related by consanguinity or 10 3 affinity to an employee of the agency within the third degree, 10 4 or to another law enforcement agency. 10 5 Sec. 24. NEW SECTION. 809.24 Reporting. 10 6 1. On an annual basis, each law enforcement agency shall 10 7 report to the department of revenue the following information 10 8 about seizures and forfeitures completed by the law enforcement 10 9 agency under state forfeiture law and federal forfeiture law: 10 10 a. The total number of seizures of currency. 10 11 b. The total number of seizures and the number of items in 10 12 each class of property seized including vehicles, houses, and 10 13 other types of property. 10 14 c. The market value of each class of property seized 10 15 including currency, vehicles, houses, and other types of 10 16 property. 10 17 d. The total number of occurrences of each class of offense 10 18 underlying the forfeitures including controlled substances, 10 19 driving while intoxicated, and other offenses. 10 20 2. The department of revenue may require that information 10 21 not specified in this section also be reported. The department 10 22 of revenue shall develop standard forms, processes, and 10 23 deadlines for electronic data entry for annual submission of 10 24 forfeiture data by law enforcement agencies. 10 25 3. Each law enforcement agency shall file with the 10 26 department of revenue the report required under subsection 10 27 1 for the law enforcement agency and the corresponding 10 28 prosecutor's office. The law enforcement agency shall 10 29 file separate reports for forfeitures completed under state 10 30 forfeiture law and federal forfeiture law. A report shall be 10 31 filed by a law enforcement agency even if the law enforcement 10 32 agency did not engage in seizures or forfeitures during the 10 33 reporting period. The department of revenue shall compile the 10 34 submissions and issue an aggregate report of all forfeitures 10 35 in the state. 11 1 4. By April 1 of each year, the department of revenue shall 11 2 make available on the department's internet site the reports 11 3 submitted by law enforcement agencies and the aggregate report 11 4 prepared by the department under subsection 3. 11 5 Sec. 25. NEW SECTION. 809B.25 Return of property, damages, 11 6 and costs. 11 7 1. The law enforcement agency that holds the property shall 11 8 return property to the owner within a reasonable period of time 11 9 not to exceed five days after any of the following: 11 10 a. The court finds that the owner has a bona fide security 11 11 interest. 11 12 b. The court finds that the owner is an innocent owner. 11 13 c. The owner's acquittal of or the dismissal of the criminal 11 14 charge that is the basis of the forfeiture proceedings. 11 15 d. The disposal of the criminal charge that is the basis of 11 16 the forfeiture proceedings by nolle prosequi. 11 17 2. The law enforcement agency that holds the property is 11 18 responsible for any damages, storage fees, and related costs 11 19 applicable to property returned under subsection 1. 11 20 Sec. 26. NEW SECTION. 809B.26 Transfer of forfeitable 11 21 property to federal government. 11 22 A law enforcement agency, joint task force of any kind, 11 23 or prosecuting authority shall not directly or indirectly 11 24 transfer or refer seized property to any federal agency unless 11 25 the seized property includes seized United States currency in 11 26 excess of fifty thousand dollars. 11 27 Sec. 27. NEW SECTION. 809B.27 Preemption. 11 28 This chapter preempts laws by county, city, township, and 11 29 other tribal or local governments in the state which regulate 11 30 civil and criminal forfeiture. 11 31 Sec. 28. Section 80.39, subsection 1, Code 2017, is amended 11 32 to read as follows: 11 33 1. Personal property, except for motor vehicles subject to 11 34 sale pursuant to section 321.89, and seizable property subject 11 35 to disposition pursuant to chapter 809or 809A, which personal 12 1 property is found or seized by, turned in to, or otherwise 12 2 lawfully comes into the possession of the department or a local 12 3 law enforcement agency and which the department or agency does 12 4 not own, shall be disposed of pursuant to this section. If by 12 5 examining the property the owner or lawful custodian of the 12 6 property is known or can be readily ascertained, the department 12 7 or agency shall notify the owner or custodian by certified mail 12 8 directed to the owner's or custodian's last known address, as 12 9 to the location of the property. If the identity or address of 12 10 the owner cannot be determined, notice by one publication in a 12 11 newspaper of general circulation in the area where the property 12 12 was found is sufficient notice. A published notice may contain 12 13 multiple items. 12 14 Sec. 29. Section 123.9, subsection 7, Code 2017, is amended 12 15 by striking the subsection. 12 16 Sec. 30. NEW SECTION. 124.417 Forfeiture of property. 12 17 Property involved in a violation under this chapter is 12 18 subject to seizure and forfeiture pursuant to chapter 809B. 12 19 Sec. 31. NEW SECTION. 124A.6 Forfeiture of property. 12 20 Property involved in a violation under this chapter is 12 21 subject to seizure and forfeiture pursuant to chapter 809B. 12 22 Sec. 32. Section 321.232, subsection 3, Code 2017, is 12 23 amended to read as follows: 12 24 3. A speed detection jamming device sold, operated, or 12 25 possessed in violation of subsection 1 may be seized by a peace 12 26 officer and is subject to forfeiture as provided by chapter 809 12 27or 809A. 12 28 Sec. 33. Section 321J.4B, subsections 6, 9, and 10, Code 12 29 2017, are amended to read as follows: 12 30 6. Upon conviction of the defendant for a second 12 31 or subsequent violation of subsection 2, paragraph "a", 12 32 subparagraph (2), the court shall order, if the convicted 12 33 person is the owner of the motor vehicle used in the commission 12 34 of the offense, that that motor vehicle be seized and forfeited 12 35 to the state pursuant to chapters 809 and809A809B. 13 1 9. Operating a motor vehicle on a street or highway in this 13 2 state in violation of an order of impoundment or immobilization 13 3 is a serious misdemeanor. A motor vehicle which is subject to 13 4 an order of impoundment or immobilization that is operated on a 13 5 street or highway in this state in violation of the order shall 13 6 be seized and forfeited to the state under chapters 809 and 13 7809A809B. 13 8 10. Once the period of impoundment or immobilization has 13 9 expired, the owner of the motor vehicle shall have thirty 13 10 days to claim the motor vehicle and pay all fees and charges 13 11 imposed under this section. If the owner or the owner's 13 12 designee has not claimed the vehicle and paid all fees and 13 13 charges imposed under this section within seven days from the 13 14 date of expiration of the period, the clerk shall send written 13 15 notification to the motor vehicle owner, at the owner's last 13 16 known address, notifying the owner of the date of expiration of 13 17 the period of impoundment or immobilization and of the period 13 18 in which the motor vehicle must be claimed. If the motor 13 19 vehicle owner fails to claim the motor vehicle and pay all fees 13 20 and charges imposed within the thirty=day period, the motor 13 21 vehicle shall be forfeited to the state under chapters 809 and 13 22809A809B. 13 23 Sec. 34. Section 321J.4B, subsection 12, paragraph a, 13 24 subparagraph (2), Code 2017, is amended to read as follows: 13 25 (2) The holder of a security interest in a vehicle which 13 26 is impounded or immobilized pursuant to this section or 13 27 forfeited in the manner provided in chapters 809 and809A 13 28809B shall be notified of the impoundment, immobilization, 13 29 or forfeiture within seventy=two hours of the seizure of the 13 30 vehicle and shall have the right to claim the motor vehicle 13 31 without payment of any fees or surcharges unless the value of 13 32 the vehicle exceeds the value of the security interest held by 13 33 the creditor. 13 34 Sec. 35. Section 321J.10, subsection 7, Code 2017, is 13 35 amended to read as follows: 14 1 7. Specimens obtained pursuant to warrants issued under 14 2 this section are not subject to disposition under section 808.9 14 3 or chapter 809 or809A809B. 14 4 Sec. 36. Section 455B.103, subsection 4, paragraph d, 14 5 subparagraph (2), Code 2017, is amended to read as follows: 14 6 (2) In a reasonable manner, and any property seized shall be 14 7 treated in accordance with the provisions of chapters 808, 809, 14 8 and809A809B. 14 9 Sec. 37. Section 462A.14D, subsection 7, Code 2017, is 14 10 amended to read as follows: 14 11 7. Specimens obtained pursuant to warrants issued under 14 12 this section are not subject to disposition under section 808.9 14 13 or chapter 809 or809A809B. 14 14 Sec. 38. Section 706A.3, subsection 3, paragraphs d and e, 14 15 Code 2017, are amended to read as follows: 14 16 d. Ordering the payment of all reasonable costs and expenses 14 17 of the investigation and prosecution of any violation, civil 14 18 or criminal, including reasonable attorney fees in the trial 14 19 and appellate courts. Such payments received by the state, 14 20 by judgment, settlement, or otherwise, shall be considered 14 21 forfeited property and disposed of pursuant tosection 809A.1714 22 chapter 809B. 14 23 e. Ordering the forfeiture of any property subject to 14 24 forfeiture under chapter809A809B, pursuant to the provisions 14 25 and procedures of that chapter. 14 26 Sec. 39. Section 706A.3, subsection 4, Code 2017, is amended 14 27 to read as follows: 14 28 4. Relief under subsection 3, paragraphs "e", "f", and 14 29 "g", shall not be granted in civil proceedings instituted 14 30 by an aggrieved person unless the prosecuting attorney has 14 31 instituted the proceedings or intervened. In any action under 14 32 this section brought by the state or in which the state has 14 33 intervened, the state may employ any of the powers of seizure 14 34 and restraint of property as are provided for forfeiture 14 35 actions under chapter809A809B, or as are provided for the 15 1 collection of taxes payable and past due, and whose collection 15 2 has been determined to be in jeopardy. 15 3 Sec. 40. Section 706B.2, subsection 4, Code 2017, is amended 15 4 to read as follows: 15 5 4. A person who is found guilty of a violation under this 15 6 section also may be charged with violations of chapter 706A, 15 7 and property involved in a violation under this chapter is 15 8 subject to forfeiture under chapter809A809B. 15 9 Sec. 41. Section 714.26, subsection 4, paragraph a, Code 15 10 2017, is amended to read as follows: 15 11 a. All seized personal property shall be disposed ofin 15 12 accordance with section 809.5 oras provided in paragraph "b" or 15 13 subject to seizure and forfeiture pursuant to chapter 809B. 15 14 Sec. 42. Section 715A.8, subsection 6, Code 2017, is amended 15 15 to read as follows: 15 16 6. Any real or personal property obtained by a person as 15 17 a result of a violation of this section, including but not 15 18 limited to any money, interest, security, claim, contractual 15 19 right, or financial instrument that is in the possession of the 15 20 person, shall be subject to seizure and forfeiture pursuant to 15 21 chapter809A809B. A victim injured by a violation of this 15 22 section, or a financial institution that has indemnified a 15 23 victim injured by a violation of this section, may file a claim 15 24 as an interest holder pursuant to section809A.11809B.15 for 15 25 payment of damages suffered by the victim including costs of 15 26 recovery and reasonable attorney fees. 15 27 Sec. 43. Section 716A.7, Code 2017, is amended to read as 15 28 follows: 15 29 716A.7 Forfeitures for violations of chapter. 15 30 All property, including all income or proceeds earned but 15 31 not yet received from a third party as a result of a violation 15 32 of this chapter, used in connection with a violation of this 15 33 chapter, known by the owner thereof to have been used in 15 34 violation of this chapter, shall be subject to seizure and 15 35 forfeiture pursuant to chapter809A809B. 16 1 Sec. 44. Section 724.26, subsection 4, Code 2017, is amended 16 2 to read as follows: 16 3 4. Except as provided insection 809A.17, subsection 5, 16 4 paragraph "b"chapter 809B, a court that issues an order or 16 5 that enters a judgment of conviction described in subsection 16 6 2 and that finds the subject of the order or conviction to be 16 7 in possession of any firearm, offensive weapon, or ammunition 16 8 shall order that such firearm, offensive weapon, or ammunition 16 9 be sold or transferred by a date certain to the custody of a 16 10 qualified person in this state, as determined by the court. 16 11 The qualified person must be able to lawfully possess such 16 12 firearm, offensive weapon, or ammunition in this state. If 16 13 the court is unable to identify a qualified person to receive 16 14 such firearm, offensive weapon, or ammunition, the court 16 15 shall order that the firearm, offensive weapon, or ammunition 16 16 be transferred by a date certain to the county sheriff or 16 17 a local law enforcement agency designated by the court for 16 18 safekeeping until a qualified person is identified to receive 16 19 the firearm, offensive weapon, or ammunition, until such order 16 20 is no longer in effect, until such conviction is vacated, or 16 21 until the person's rights have been restored in accordance 16 22 with section 724.27. If the firearm, offensive weapon, or 16 23 ammunition is to be transferred to the sheriff's office or a 16 24 local law enforcement agency, the court shall assess the person 16 25 the reasonable cost of storing the firearm, offensive weapon, 16 26 or ammunition, payable to the county sheriff or the local law 16 27 enforcement agency. 16 28 Sec. 45. Section 809.5, subsection 1, paragraph f, 16 29 subparagraph (1), Code 2017, is amended to read as follows: 16 30 (1) If the aggregate fair market value of the property is 16 31 greater than five hundred dollars, forfeiture proceedings shall 16 32 be initiated pursuant to the provisions of chapter809A809B. 16 33 If the court does not order the property forfeited to the state 16 34 in the forfeiture proceedings pursuant to chapter809A809B, 16 35 the seizing agency shall become the owner of the property and 17 1 may dispose of it in any reasonable manner. 17 2 Sec. 46. Section 809.12A, Code 2017, is amended to read as 17 3 follows: 17 4 809.12A Appeals. 17 5 An appeal from a denial of an application for the return 17 6 of seized property or from an order for the return of seized 17 7 property shall be made within thirty days after the entry of 17 8 a judgment order. The appellant, other than the state, shall 17 9 post a bond of a reasonable amount as the court may fix and 17 10 approve, conditioned to pay all costs of the proceedings if the 17 11 appellant is unsuccessful on appeal. The appellant, other than 17 12 the state, may be required to post a supersedeas bond or other 17 13 security, as the court finds to be reasonable, in order to stay 17 14 the operation of a forfeiture order undersection 809A.1617 15 chapter 809B. 17 16 Sec. 47. Section 809.15, Code 2017, is amended to read as 17 17 follows: 17 18 809.15 Combining proceedings. 17 19 In cases involving seized property and property subject to 17 20 forfeiture pursuant to section809A.4809B.3, the court may 17 21 order that the proceedings be combined for purposes of this 17 22 chapter. 17 23 Sec. 48. REPEAL. Chapter 809A, Code 2017, is repealed. 17 24 Sec. 49. APPLICABILITY. This Act applies to forfeiture 17 25 proceedings that arise on or after or that are pending as of 17 26 the effective date of this Act. 17 27 EXPLANATION 17 28 The inclusion of this explanation does not constitute agreement with 17 29 the explanation's substance by the members of the general assembly. 17 30 This bill relates to criminal asset forfeiture. 17 31 Asset forfeiture is a process by which contraband and 17 32 proceeds or instrumentalities related to criminal activity 17 33 may be seized by the state and sold. Under current law, 17 34 asset forfeiture is governed by Code chapter 809A. The bill 17 35 repeals Code chapter 809A and replaces it with new Code chapter 18 1 809B. Currently under Code chapter 809A, a conviction for a 18 2 criminal offense is not required for an asset to be subject to 18 3 forfeiture, and forfeiture need not be expressly authorized 18 4 as a penalty in the criminal statute. The bill provides that 18 5 property is not subject to forfeiture until a person has 18 6 been convicted of a felony for which forfeiture is expressly 18 7 authorized as a penalty. 18 8 Under current law, forfeiture is provided as a remedy for 18 9 certain driving while intoxicated offenses and for violations 18 10 of Code chapters 706B (money laundering), 715A (forgery 18 11 and related fraudulent criminal acts), and 716A (electronic 18 12 mail). The bill provides that forfeiture is also a remedy for 18 13 violations of Code chapters 124 (controlled substances) and 18 14 124A (imitation controlled substances) and Code section 714.26 18 15 (intellectual property counterfeiting). 18 16 The bill exempts homestead real property, motor vehicles of 18 17 less than $10,000 in market value, and United States currency 18 18 totaling $200 or less from forfeiture. 18 19 Current law requires the state to prove that property is 18 20 subject to forfeiture by a preponderance of the evidence. The 18 21 bill requires the state to prove, by clear and convincing 18 22 evidence, that the property is forfeitable. 18 23 The bill provides that a defendant is not jointly and 18 24 severally liable for forfeiture awards owed by other 18 25 defendants. 18 26 The bill provides for a proportionality hearing, where 18 27 the defendant may petition the court that the forfeiture is 18 28 unconstitutionally excessive. 18 29 The bill requires law enforcement agencies to provide annual 18 30 reports to the department of revenue regarding forfeitures 18 31 completed by the law enforcement agencies. The bill requires 18 32 the department of revenue to prepare an annual report 18 33 aggregating the results and to post the aggregate report on the 18 34 department's internet site. 18 35 The bill provides that new Code chapter 809B preempts laws by 19 1 county, city, township, and other tribal and local governments 19 2 in the state which regulate civil and criminal forfeiture. 19 3 The bill makes conforming changes relating to the repeal of 19 4 Code chapter 809A and new Code chapter 809B. 19 5 The bill applies to forfeiture proceedings that arise on or 19 6 after or that are pending as of the effective date of the bill. LSB 1497XS (6) 87 jh/nh
