Bill Text: IN SB0215 | 2011 | Regular Session | Enrolled
Bill Title: Forfeiture.
Spectrum: Slight Partisan Bill (Democrat 2-1)
Status: (Vetoed) 2011-05-13 - Vetoed by the Governor [SB0215 Detail]
Download: Indiana-2011-SB0215-Enrolled.html
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AN ACT to amend the Indiana Code concerning criminal law and procedure.
(1) in the name of the state;
(2) within the period that a prosecution may be commenced under IC 35-41-4-2 for the offense that is the basis for the seizure.
(b) If the property seized was a vehicle or real property, the prosecuting attorney shall serve, under the Indiana Rules of Trial Procedure, a copy of the complaint upon each person whose right, title, or interest is of record in the bureau of motor vehicles, in the county recorder's office, or other office authorized to receive or record vehicle or real property ownership interests.
(c) The owner of the seized property, or any person whose right, title, or interest is of record may, within twenty (20) days after service
of the complaint under the Indiana Rules of Trial Procedure, file an
answer to the complaint and may appear at the hearing on the action.
(d) If, at the end of the time allotted for an answer, there is no
answer on file, the court, upon motion, shall enter judgment in favor of
the state and the unit (if appropriate) for reimbursement of law
enforcement costs and shall order the property disposed of in
accordance with section 4 of this chapter.
(b) If the prosecuting attorney fails to meet the burden of proof, the court shall order the property released to the owner.
(c) If the court enters judgment in favor of the state,
(d) If the court enters judgment in favor of the state,
(3) the proceeds of the sale or the money shall be transferred to the county auditor for deposit in the county's asset forfeiture account, established by ordinance, for distribution as follows:
(A) If the state police department has not requested that the seized property be transferred to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e), and any related regulations adopted by the United States Department of Justice, not more than thirty-three and one-third percent (33 1/3%) of the proceeds of the sale or the money to be transferred as an administrative fee to:
(i) the prosecuting attorney's office only if an attorney was not retained under a compensation agreement under section 8 of this chapter; or
(ii) an attorney retained by the prosecuting attorney under a compensation agreement under section 8 of this chapter.
(B) If the prosecuting attorney has declined a request from the state police department that the seized property be transferred to the appropriate federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e), and any related regulations adopted by the United States Department of Justice, not more than twenty percent (20%) of the proceeds of the sale or the money, up to a maximum of five thousand dollars ($5,000), to be transferred as an administrative fee to:
(i) the prosecuting attorney's office only if an attorney
was not retained under a compensation agreement under
section 8 of this chapter; or
(ii) an attorney retained by the prosecuting attorney
under a compensation agreement under section 8 of this
chapter.
After the administrative fee is deducted under clause (A) or
(B), fifteen percent (15%) of the remaining money or sale
proceeds shall be transferred to the county auditor for deposit
in the common school fund, and eighty-five percent (85%) of
the remaining money or sale proceeds shall be distributed to
the county auditor for distribution to law enforcement
agencies participating in the seizure or forfeiture, as provided
in subsection (e).
(e) The distribution of the eighty-five percent (85%) share
allocated to law enforcement agencies under subsection (d)(3) must
be made as follows:
(1) Pursuant to a claim submitted by the prosecuting attorney
to the county auditor on behalf of the prosecuting attorney or
another agency. However, a claim on behalf of the prosecuting
attorney may be approved only if:
(A) the prosecuting attorney is not entitled to the
administrative fee under subsection (d)(3); and
(B) the prosecuting attorney presents documented evidence
of direct costs incurred as a result of the seizure or
forfeiture.
(2) In accordance with the terms of an interlocal agreement or
memorandum of understanding among all local, state,
out-of-state, and federal law enforcement agencies and the
prosecuting attorney, if applicable.
(3) If there is no interlocal agreement or memorandum of
understanding among all local, state, out-of-state, and federal
law enforcement agencies and the prosecuting attorney, the
court may distribute remaining proceeds among local, state,
out-of-state, and federal law enforcement agencies and the
prosecuting attorney in proportion to the contribution the
agency or prosecuting attorney made to the seizure or
forfeiture. In determining the appropriate distribution under
this subdivision, the court shall consider any form, document,
agreement, or other documentary evidence relevant to this
distribution. The prosecuting attorney may receive a
distribution under this subdivision only if:
(A) the prosecuting attorney is not entitled to the
administrative fee under subsection (d)(3); and
(B) the prosecuting attorney presents documented evidence
of direct costs incurred as a result of the seizure or
forfeiture.
Funds distributed to a law enforcement agency of a city or town
shall be transferred to the fiscal body of the city or town and may
only be disbursed pursuant to an appropriation. Funds distributed
under this subsection may be used only for law enforcement
purposes.
(e) (f) If property that is seized under this chapter (or IC 34-4-30.1-4
before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section 3
of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (or
IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an
ownership interest of record as a bona fide purchaser for value. A
person is a bona fide purchaser for value under this section if the
person, at the time of the transfer, did not have reasonable cause to
believe that the property was subject to forfeiture under this chapter.
(f) (g) If the property seized was an unlawful telecommunications
device (as defined in IC 35-45-13-6) or plans, instructions, or
publications used to commit an offense under IC 35-45-13, the court
may order the sheriff of the county in which the person was convicted
of an offense under IC 35-45-13 to destroy as contraband or to
otherwise lawfully dispose of the property.
(h) This subsection applies to every forfeiture action, including
a forfeiture action that is the result of a settlement. Every
forfeiture action must be filed with a court. Except for money or
property seized under this chapter that is transferred to a federal
authority under IC 34-24-1-9, money or other proceeds from a
forfeiture action may be disbursed only in accordance with this
section.
(i) As soon as practicable after the proceeds of the forfeiture
have been distributed, the court shall notify the Indiana criminal
justice institute of the amount and manner of the distribution.
(j) Funds transferred:
(1) as an administrative fee to a prosecuting attorney or an
attorney retained by a prosecuting attorney under subsection
(d)(3)(A) or (d)(3)(B); or
(2) to a law enforcement agency or prosecuting attorney
under subsection (e);
are necessary reimbursement of law enforcement expenses without
which a forfeiture could not have been effected.
(b) When property is sold at a public sale under this chapter, the proceeds shall be distributed in the following order:
(1) First, to the sheriff of the county for all expenditures made or incurred in connection with the sale, including storage, transportation, and necessary repair.
(2) Second, to any person:
(A) holding a valid lien, mortgage, land contract, or interest under a conditional sales contract or the holder of other such interest; or
(B) who is a co-owner and has an ownership interest;
up to the amount of that person's interest as determined by the court.
(3) The remainder, if any, shall be transferred by the sheriff to the appropriate fund as ordered by the court in
(b) The compensation agreement between a prosecuting attorney and an attorney retained to bring an action under this chapter must be:
(1) in writing; and
(2) approved by the attorney general for form and legality.
(c) Except as provided in subsection (d), a compensation agreement between a prosecuting attorney and an attorney retained to bring an action under this chapter may be established under a contingency fee agreement limited as follows:
(1) The contingency fee may not exceed thirty-three and one-third percent (33 1/3%) of the first ten thousand dollars ($10,000) of proceeds or money obtained under a settlement or judgment.
(2) The contingency fee may not exceed twenty-five percent (25%) of the part of the proceeds or money obtained under a settlement or judgment that is more than ten thousand dollars ($10,000) and less than one hundred thousand dollars
($100,000).
(3) The contingency fee may not exceed twenty percent (20%)
of the part of the proceeds or money obtained under a
settlement or judgment that is at least one hundred thousand
dollars ($100,000).
(d) A court may authorize a compensation agreement between
a prosecuting attorney and an attorney retained to bring an action
under this chapter that exceeds the limits established in subsection
(c) if the court finds that the issues presented in a particular
forfeiture action are unusually complex or time consuming as
compared with other forfeiture actions.
(b) (e) An attorney retained under this section is not required to be
a deputy prosecuting attorney, but must be admitted to the practice of
law in Indiana. A prosecuting attorney or deputy prosecuting
attorney who engages in a forfeiture action for the prosecuting
attorney's office may not receive a contingency fee.
(f) A prosecuting attorney may request the assistance of the
attorney general in bringing an action under this chapter. The
attorney general may decline to provide assistance.
(g) If an attorney retained under this section is paid on a
contingency or percentage basis, the value of seized property used
to calculate the attorney's fee is, unless otherwise ordered by a
court:
(1) for currency, the value of the seized currency; and
(2) for other property, the amount realized from the sale of
the property at auction.
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