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, 15% of
the proceeds shall be provided to the common school fund, and 85% of
the proceeds shall be transferred to an account for distribution to law
enforcement agencies participating in the seizure. Specifies that money
or the proceeds of seized property placed in a county asset forfeiture
account may be only disbursed by action of the county legislative body
under a claim submitted by a law enforcement agency or prosecuting
attorney, and must be disbursed pursuant to an interlocal agreement, if
applicable. 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) 33 1/3% of the first $10,000; (2) 25% of
the amount between $10,000 and $100,000; and (3) 20% of the amount
that is at least $100,000; unless a court finds that the forfeiture action
is unusually complex. Requires a court to notify the Indiana criminal
justice institute of the amount and manner of a forfeiture distribution.
Provides that a deputy prosecuting attorney who engages in a forfeiture
action for the prosecuting attorney's office may not receive a
contingency fee.
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.
February 17, 2011, reported favorably _ Do Pass.
February 21, 2011, read second time, amended, ordered engrossed.
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
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or
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 shall be distributed as
follows:
(A) Fifteen percent (15%) of the proceeds shall be
transferred to the treasurer of state for deposit in the
common school fund.
(B) Eighty-five percent (85%) of the proceeds shall be
distributed as follows:
(i) If every law enforcement agency participating in the
seizure is from one (1) county, the proceeds shall be
transferred to the county auditor for deposit in a county
asset forfeiture account established by ordinance. Funds
in the county asset forfeiture account shall be disbursed
in accordance with subsection (e).
(ii) If the state police department or a law enforcement
agency outside the county participated in the seizure, the
court shall order the proceeds distributed to the
appropriate county asset forfeiture fund (in the case of
another county) or the state police asset forfeiture
account (in the case of the state police department) in
accordance with the agreement or memorandum of
understanding between the participating law
enforcement agencies. If the disposition of all or any part
of the proceeds is not addressed in the agreement or
memorandum of understanding, the court shall
determine the distribution of funds. Funds deposited in
the county asset forfeiture account of another county
shall be distributed in that county in accordance with
subsection (e).
(e) Funds in the county asset forfeiture account may be
disbursed only by action of the county legislative body:
(1) under a claim submitted by a law enforcement agency or
prosecuting attorney; and
(2) in accordance with the terms of an interlocal agreement or
memorandum of understanding between local law
enforcement agencies, or between a local law enforcement
agency and the prosecuting attorney, if applicable.
(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. Money or other
proceeds from a forfeiture action may only be disbursed 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.
(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 pursuant to 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 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.