Bill Text: IN SB0215 | 2011 | Regular Session | Amended
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-Amended.html
Citations Affected: IC 34-24.
Synopsis: Forfeiture. Provides that, in a forfeiture proceeding, 85% of
the proceeds shall be awarded to participating law enforcement
agencies, and 15% of the proceeds shall be deposited in the common
school fund. Provides that 25% of the proceeds awarded to law
enforcement shall be transferred to the prosecuting attorney to defray
the expenses of bringing the forfeiture action; however, this amount is
capped at: (1) $10,000 if the amount of property seized is less than
$100,000; and (2) $20,000 if the amount of property seized is $100,000
or more. Specifies that money or the proceeds of seized property
awarded to a law enforcement agency may be used only for: (1) law
enforcement purposes; and (2) disbursements under an appropriation
by the state or a local government unit. Permits a prosecuting attorney
to retain an attorney to bring a forfeiture action only if the attorney
general reviews the compensation agreement between the prosecuting
attorney and the retained attorney, and requires that the compensation
agreement with the attorney be capped at: (1) $10,000 if the amount of
property seized is less than $100,000; and (2) $20,000 if the amount of
property seized is $100,000 or more. Prohibits a prosecuting attorney
from retaining a prosecuting attorney or a deputy prosecuting attorney
to bring a forfeiture action.
Effective: July 1, 2011.
January 6, 2011, read first time and referred to Committee on Judiciary.
February 14, 2011, amended, reported favorably _ Do Pass. Pursuant to Senate Rule
68(b); reassigned to Committee on Appropriations.
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in
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A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
(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, or the state and a unit (if appropriate), the court, subject to section 5 of this chapter, shall order delivery to the law enforcement agency that seized the property. The court's order may permit the agency to use the property for a period not to exceed three (3) years. However, the order must require that, after the period specified by the court, the law
enforcement agency shall deliver the property to the county sheriff for
public sale.
(d) If the court enters judgment in favor of the state, or the state and
a unit (if appropriate), the court shall, subject to section 5 of this
chapter,
(1) determine the amount of law enforcement costs; and
(2) order that:
(A) (1) the property, if it is not money or real property, be sold
under section 6 of this chapter, by the sheriff of the county in
which the property was seized, and if the property is a vehicle,
this sale must occur after any period of use specified in subsection
(c);
(B) (2) the property, if it is real property, be sold in the same
manner as real property is sold on execution under IC 34-55-6;
(C) the proceeds of the sale or the money be:
(i) deposited in the general fund of the state, or the unit that
employed the law enforcement officers that seized the
property; or
(ii) deposited in the general fund of a unit if the property
was seized by a local law enforcement agency of the unit for
an offense, an attempted offense, or a conspiracy to commit
an offense under IC 35-47 as part of or in furtherance of an
act of terrorism; and
(D) any excess in value of the proceeds or the money over the law
enforcement costs be forfeited and transferred to the treasurer of
state for deposit in the common school fund. and
(3) the proceeds of the sale or money be deposited as follows:
(A) Eighty-five percent (85%) of the proceeds shall be
deposited in the:
(i) state police asset forfeiture fund, if the property was
seized by the state police department; or
(ii) local law enforcement forfeiture fund, if the unit has
established a local law enforcement forfeiture fund. If
there is no local law enforcement forfeiture fund, the
proceeds shall be deposited in the safe schools fund
established under IC 5-2-10.1.
(B) Fifteen percent (15%) of the proceeds shall be
transferred to the treasurer of state for deposit in the
common school fund.
If law enforcement agencies from more than one (1) jurisdiction
participated in the seizure of forfeited property, the court shall
determine how the proceeds of the sale or money shall be divided
among the participating law enforcement agencies.
(e) 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) 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.
(g) Twenty-five percent (25%) of the part of the sale proceeds
or money under subsection (d)(3)(A) shall be transferred to the
state general fund for disbursement to the prosecuting attorney for
use in defraying the expense of initiating and maintaining a
forfeiture action. However, a prosecuting attorney may not receive
in one (1) action more than:
(1) ten thousand dollars ($10,000), if the total value of
property seized under this article is less than one hundred
thousand dollars ($100,000); or
(2) twenty thousand dollars ($20,000), if the total value of
property seized under this article is one hundred thousand
dollars ($100,000) or more.
(h) Proceeds or money described under subsection (d)(3)(A)
may be:
(1) disbursed only from the local law enforcement forfeiture
fund under an appropriation; and
(2) used only for law enforcement purposes.
(i) 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. Money or other
proceeds from a forfeiture action may only be disbursed under a
court order.
(j) As soon as practicable after the proceeds of the forfeiture
have been distributed, the court shall notify the state police
department of the amount and manner of the distribution.
(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), the compensation agreement between a prosecuting attorney and an attorney retained to bring an action under this chapter may not permit the attorney to retain more than:
(1) ten thousand dollars ($10,000) if the total value of property seized under this article is less than one hundred thousand dollars ($100,000); or
(2) twenty thousand dollars ($20,000) if the total value of property seized under this article is one hundred thousand dollars ($100,000) or more.
(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 may
not be a prosecuting attorney or a deputy prosecuting attorney, but
must be admitted to the practice of law in Indiana.
(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.
