Bill Text: IA SF446 | 2017-2018 | 87th General Assembly | Enrolled


Bill Title: A bill for an act relating to asset forfeiture by prohibiting civil asset forfeiture for property valued at less than a minimum amount, raising the standard of proof for asset forfeiture, requiring a proportionality review for property to be forfeited, and requiring law enforcement agencies to retain certain records related to asset forfeiture and including applicability provisions. (Formerly SSB 1148.) Effective 7-1-17.

Spectrum: Partisan Bill (? 1-0)

Status: (Passed) 2017-05-09 - Signed by Governor. S.J. 1136. [SF446 Detail]

Download: Iowa-2017-SF446-Enrolled.html

Senate File 446 - Enrolled




                              SENATE FILE       
                              BY  COMMITTEE ON JUDICIARY

                              (SUCCESSOR TO SSB
                                  1148)
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                                   A BILL FOR
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                                        Senate File 446

                             AN ACT
 RELATING TO ASSET FORFEITURE BY PROHIBITING CIVIL
    ASSET FORFEITURE FOR PROPERTY VALUED AT LESS THAN A MINIMUM
    AMOUNT, RAISING THE STANDARD OF PROOF FOR ASSET FORFEITURE,
    REQUIRING A PROPORTIONALITY REVIEW FOR PROPERTY TO BE
    FORFEITED, AND REQUIRING LAW ENFORCEMENT AGENCIES TO RETAIN
    CERTAIN RECORDS RELATED TO ASSET FORFEITURE AND INCLUDING
    APPLICABILITY PROVISIONS.

 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
    Section 1.  Section 809A.1, Code 2017, is amended by adding
 the following new subsections:
    NEW SUBSECTION.  01.  "Convicted" or "conviction" includes
 a finding of guilt, a plea of guilty, deferred judgment,
 deferred or suspended sentence, adjudication of delinquency,
 or circumstances where a person is not charged with a criminal
 offense that is a serious or aggravated misdemeanor or felony
 related to the action for forfeiture based in whole or in part
 on the person's cooperation in providing information regarding
 the criminal activity of another person.
    NEW SUBSECTION.  001.  "Instrumentality" means property
 otherwise lawful to possess that is used in or intended to be
 used in a public offense.
    NEW SUBSECTION.  1A.  "Minimum civil forfeiture amount" means
 five thousand dollars.
    Sec. 2.  Section 809A.5, subsection 2, paragraph b, Code
 2017, is amended to read as follows:
    b.  The owner or interest holder is criminally responsible
 for the conduct giving rise to its forfeiture, whether or not
 the owner or interest holder is prosecuted or convicted.  If
 the forfeiture is for property valued at less than the minimum
 civil forfeiture amount, the owner or interest holder must also
 be convicted of the criminal offense for the conduct giving
 rise to forfeiture.
    Sec. 3.  Section 809A.8, subsection 1, paragraph a,
 subparagraph (2), Code 2017, is amended to read as follows:
    (2)  File a judicial forfeiture proceeding within ninety
 days after notice of pending forfeiture of property upon which
 a proper claim has been timely filed pursuant to section
 809A.11, or, if the value of the property is less than the
 minimum civil forfeiture amount, file a judicial forfeiture
 proceeding within ninety days after the conclusion of the
 criminal prosecution.
    Sec. 4.  Section 809A.8, subsection 1, paragraph d,
 unnumbered paragraph 1, Code 2017, is amended to read as
 follows:
    If a petition is timely filed, the prosecuting attorney may
 delay filing a judicial forfeiture proceeding for one hundred
 eighty days after the notice of pending forfeiture, or, if the
 value of the property is less than the minimum civil forfeiture
 amount, one hundred eighty days after the conclusion of the
 criminal prosecution, and the following procedures shall apply:
    Sec. 5.  Section 809A.12, subsections 6, 7, and 14, Code
 2017, are amended to read as follows:
    6.  A defendant convicted in any whose criminal proceeding
 results in a conviction is precluded from later denying the
 essential allegations of the criminal offense of which the
 defendant was convicted in any proceeding pursuant to this
 section. For the purposes of this section, a conviction
 results from a verdict or a plea of guilty. A defendant
 whose conviction is overturned on appeal may file a motion to
 correct, vacate, or modify a judgment of forfeiture under this
 subsection.
    7.  In any proceeding under this chapter, if a claim is based
 on an exemption provided for in this chapter, the burden of
 proving the existence of the exemption is on the claimant must
 make a prima facie showing of the existence of the exemption.
 However, once the claimant comes forward with some evidence
 supporting the existence of the exemption, the state The
 prosecuting attorney must provide some evidence to negate the
 assertion of the then prove by clear and convincing evidence
 that the exemption does not apply. The state's evidence must
 be substantial, though not necessarily rising to the level of a
 preponderance of the evidence, and more than a simple assertion
 of the claimant's interest in the property. The agency or
 political subdivision bringing the forfeiture action shall
 pay the reasonable attorney fees and costs, as determined by
 the court, incurred by a claimant who prevails on a claim for
 exemption in a proceeding under this chapter.
    14.  An acquittal or dismissal in a criminal proceeding shall
 not preclude civil proceedings under this chapter if the value
 of the property to be forfeited is equal to or exceeds the
 minimum civil forfeiture amount.
    Sec. 6.  Section 809A.12, Code 2017, is amended by adding the
 following new subsection:
    NEW SUBSECTION.  7A.  The prosecuting attorney must prove
 by clear and convincing evidence that the property is property
 subject to forfeiture.
    Sec. 7.  Section 809A.12, subsection 10, paragraph a, Code
 2017, is amended to read as follows:
    a.  The If the property to be forfeited is equal to or
 exceeds the minimum civil forfeiture amount, that the person
 has engaged in conduct giving rise to forfeiture.  If the
 property to be forfeited is less than the minimum civil
 forfeiture amount, that the person was convicted for the
 conduct giving rise to forfeiture.
    Sec. 8.  NEW SECTION.  809A.12A  Limitations on civil
 forfeiture.
    1.  If the total value of the property seized for forfeiture
 is less than the minimum civil forfeiture amount, a judicial
 forfeiture proceeding shall not be brought unless one of the
 following applies:
    a.  The conduct giving rise to forfeiture resulted in a
 conviction.
    b.  The property owner is deceased.
    c.  Charges have been filed against the property owner, a
 warrant was issued for the arrest of the property owner, and
 either of the following applies:
    (1)  The property owner is outside the state and is unable to
 be extradited or brought back to the state for prosecution.
    (2)  Law enforcement has made reasonable efforts to locate
 and arrest the property owner, but the property owner has not
 been located.
    d.  The property owner has not claimed the property subject
 to forfeiture or asserted any interest in the property at any
 time during or after the seizure of the property, and all
 claims brought under section 809A.11 have been denied.
    2.  The prosecuting attorney has the burden to prove by
 clear and convincing evidence that the value of the property
 is or exceeds the minimum civil forfeiture amount in any civil
 action.
    Sec. 9.  NEW SECTION.  809A.12B  Proportionality review.
    1.  Property shall not be forfeited as an instrumentality
 under this chapter to the extent that the amount or value of
 the property is grossly disproportionate to the severity of the
 offense.
    2.  Contraband and any proceeds obtained from the offense are
 not subject to proportionality review under this section.
    Sec. 10.  Section 809A.13, subsections 7 and 8, Code 2017,
 are amended to read as follows:
    7.  The forfeiture hearing shall be held without a jury
 and within sixty days after service of the complaint unless
 continued for good cause. The prosecuting attorney shall
 have the initial burden of proving by clear and convincing
 evidence that the property is subject to forfeiture by a
 preponderance of the evidence. If the state so proves the
 property is subject to forfeiture, the claimant has the burden
 of proving may assert that the claimant has an interest in the
 property which is exempt from forfeiture under this chapter by
 a preponderance of the evidence.  If the claimant asserts and
 makes a prima facie showing of the existence of the exemption,
 the prosecuting attorney then has the burden of proving by
 clear and convincing evidence that the exemption does not
 apply.
    8.  The court shall order the interest in the property
 returned or conveyed to the claimant if the prosecuting
 attorney fails to meet the state's burden or the claimant
 establishes by a preponderance of the evidence that the
 claimant has an interest that is exempt from forfeiture. The
 court shall order all other property forfeited to the state and
 conduct further proceedings pursuant to sections 809A.16 and
 809A.17.
    Sec. 11.  Section 809A.14, subsection 7, paragraph d, Code
 2017, is amended to read as follows:
    d.  In accordance with the findings made at the hearing, the
 court may amend the order of forfeiture if it determines that
 any claimant has established by a preponderance of the evidence
 that the claimant has properly petitioned for recognition
 of exemption under section 809A.11 and that the prosecuting
 attorney has not shown, by clear and convincing evidence, that
 the claimant does not have an interest in the property which is
 exempt under the provisions of section 809A.5.
    Sec. 12.  Section 809A.15, subsection 1, unnumbered
 paragraph 1, Code 2017, is amended to read as follows:
    The court shall order the forfeiture of any other property
 of a person, including a claimant, up to the value of
 that person's property found by the court to be subject to
 forfeiture under this chapter, if the prosecuting attorney
 proves by clear and convincing evidence that any of the
 following applies to the person's forfeitable property:
    Sec. 13.  Section 809A.16, subsection 2, Code 2017, is
 amended to read as follows:
    2.  Within one hundred eighty days of the date of a
 declaration of forfeiture, an owner or interest holder in
 property declared forfeited pursuant to subsection 1 may
 petition the court to have the declaration of forfeiture set
 aside, after making a prima facie showing that the state failed
 to serve proper notice as provided by section 809A.13. Upon
 such a showing the court shall allow the state to demonstrate
 by a preponderance of the clear and convincing evidence that
 notice was properly served. If the state fails to meet
 its burden of proof, the court may order the declaration of
 forfeiture set aside. The state may proceed with judicial
 proceedings pursuant to this chapter.
    Sec. 14.  NEW SECTION.  809A.18A  Recordkeeping.
    1.  Each law enforcement agency that has custody of any
 property that is subject to this chapter shall adopt and comply
 with a written internal control policy that does all of the
 following:
    a.  Provides for keeping detailed records as to the amount
 of property acquired by the agency and the date property was
 acquired.
    b.  Provides for keeping detailed records of the disposition
 of the property, which shall include but not be limited to all
 of the following:
    (1)  The manner in which the property was disposed, the
 date of disposition, and detailed financial records concerning
 any property sold.  The records shall not identify or enable
 identification of the individual officer who seized any item of
 property or the name of any person or entity who received any
 item of property.
    (2)  An itemized list of the specific expenditures made
 with amounts that are gained from the sale of the property and
 that are retained by the agency, including the specific amount
 expended on each expenditure, except that the policy shall
 not provide for or permit the identification of any specific
 expenditure that is made in an ongoing investigation.
    2.  The records kept under the internal control policy
 shall be open to public inspection during the agency's regular
 business hours. The policy adopted under this section is a
 public record open for inspection under chapter 22.
    Sec. 15.  APPLICABILITY.  This Act applies to forfeiture
 proceedings that begin on or after the effective date of this
 Act.


                                                                                            JACK WHITVER


                                                                                            LINDA UPMEYER


                                                                                            W. CHARLES SMITH


                                                                                            TERRY E. BRANSTA

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