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SENATE BILL No. 215

Citations Affected: IC 34-24; IC 35-33; IC 36-2.

(Continued next page)

Effective: July 1, 2011.

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Bray, Arnold, Randolph
(HOUSE SPONSOR _ FOLEY)

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    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.
    February 22, 2011, engrossed. Read third time, passed. Yeas 49, nays 0.

    March 28, 2011, read first time and referred to Committee on Judiciary.
    April 4, 2011, amended, reported _ Do Pass.
    April 11, 2011, read second time, amended, ordered engrossed.

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Digest Continued

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. Provides that the Indiana state police may make a motion that certain seized property must be transferred to the appropriate federal authority.

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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 this style type.
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 this style type reconciles conflicts between statutes enacted by the 2010 Regular Session of the General Assembly.

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    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

SOURCE: IC 34-24-1-4; (11)ES0215.2.1. -->     SECTION 1. IC 34-24-1-4 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 4. (a) At the hearing, the prosecuting attorney must show by a preponderance of the evidence that the property was within the definition of property subject to seizure under section 1 of this chapter. If the property seized was a vehicle, the prosecuting attorney must also show by a preponderance of the evidence that a person who has an ownership interest of record in the bureau of motor vehicles knew or had reason to know that the vehicle was being used in the commission of the offense.
    (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 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) The court may order 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 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) After the administrative fee is deducted under clause (A):
                (i) twelve percent (12%) of the remaining money or sale

proceeds shall be transferred to the county auditor for deposit in the county school security fund established under IC 36-2-22;
                (ii) five percent (5%) of the remaining money or sale proceeds shall be distributed to the county's county offender fund established under IC 36-2-21; and
                (iii) eighty-three percent (83%) of the remaining money or sale proceeds shall be distributed to the county auditor for distribution to law enforcement agencies, as directed by the court, as provided in subsection (e).
    (e) The distribution under subsection (d)(3)(B)(iii) must be made as follows:
        (1) Under a claim submitted by the prosecuting attorney.
        (2) Under a claim submitted by the county auditor, that has been approved by the county commissioner.
        (3) In accordance with the terms of an interlocal agreement or memorandum of understanding among local, state, out-of-state, and federal law enforcement agencies and the prosecuting attorney, if applicable.
        (4) If there is no interlocal agreement or memorandum of understanding among 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.
    (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.

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    (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.

SOURCE: IC 34-24-1-6; (11)ES0215.2.2. -->     SECTION 2. IC 34-24-1-6 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 6. (a) Where disposition of property is to be made at a public sale, notice of sale shall be published in accordance with IC 34-55-6.
    (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 section 4(d) section 4 of this chapter.

SOURCE: IC 34-24-1-8; (11)ES0215.2.3. -->     SECTION 3. IC 34-24-1-8 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 8. (a) A prosecuting attorney may retain an attorney to bring an action under this chapter only in accordance with this section.
     (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:

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        (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.

SOURCE: IC 34-24-1-9; (11)ES0215.2.4. -->     SECTION 4. IC 34-24-1-9 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 9. (a) Upon motion of a prosecuting attorney or the Indiana state police department under IC 35-33-5-5(j), property seized under this chapter must be transferred, subject to the perfected liens or other security interests of any person in the property, 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.

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    (b) Money received by a law enforcement agency as a result of a forfeiture 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 must be deposited into a nonreverting fund and may be expended only with the approval of:
        (1) the executive (as defined in IC 36-1-2-5), if the money is received by a local law enforcement agency; or
        (2) the governor, if the money is received by a law enforcement agency in the executive branch.
The money received under this subsection must be used solely for the benefit of any agency directly participating in the seizure or forfeiture for purposes consistent with federal laws and regulations.

SOURCE: IC 35-33-5-5; (11)ES0215.2.5. -->     SECTION 5. IC 35-33-5-5, AS AMENDED BY P.L.1-2007, SECTION 225, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]: Sec. 5. (a) All items of property seized by any law enforcement agency as a result of an arrest, search warrant, or warrantless search, shall be securely held by the law enforcement agency under the order of the court trying the cause, except as provided in this section.
    (b) Evidence that consists of property obtained unlawfully from its owner may be returned by the law enforcement agency to the owner before trial, in accordance with IC 35-43-4-4(h).
    (c) Following the final disposition of the cause at trial level or any other final disposition the following shall be done:
        (1) Property which may be lawfully possessed shall be returned to its rightful owner, if known. If ownership is unknown, a reasonable attempt shall be made by the law enforcement agency holding the property to ascertain ownership of the property. After ninety (90) days from the time:
            (A) the rightful owner has been notified to take possession of the property; or
            (B) a reasonable effort has been made to ascertain ownership of the property;
        the law enforcement agency holding the property shall, at a convenient time, dispose of this property at a public auction. The proceeds of this property shall be paid into the county general fund.
        (2) Except as provided in subsection (e), property, the possession of which is unlawful, shall be destroyed by the law enforcement agency holding it sixty (60) days after final disposition of the cause.
        (3) A firearm that has been seized from a person who is

dangerous (as defined in IC 35-47-14-1) shall be retained, returned, or disposed of in accordance with IC 35-47-14.
    (d) If any property described in subsection (c) was admitted into evidence in the cause, the property shall be disposed of in accordance with an order of the court trying the cause.
    (e) A law enforcement agency may destroy or cause to be destroyed chemicals, controlled substances, or chemically contaminated equipment (including drug paraphernalia as described in IC 35-48-4-8.5) associated with the illegal manufacture of drugs or controlled substances without a court order if all the following conditions are met:
        (1) The law enforcement agency collects and preserves a sufficient quantity of the chemicals, controlled substances, or chemically contaminated equipment to demonstrate that the chemicals, controlled substances, or chemically contaminated equipment was associated with the illegal manufacture of drugs or controlled substances.
        (2) The law enforcement agency takes photographs of the illegal drug manufacturing site that accurately depict the presence and quantity of chemicals, controlled substances, and chemically contaminated equipment.
        (3) The law enforcement agency completes a chemical inventory report that describes the type and quantities of chemicals, controlled substances, and chemically contaminated equipment present at the illegal manufacturing site.
The photographs and description of the property shall be admissible into evidence in place of the actual physical evidence.
    (f) For purposes of preserving the record of any conviction on appeal, a photograph demonstrating the nature of the property, and an adequate description of the property must be obtained before the disposition of the property. In the event of a retrial, the photograph and description of the property shall be admissible into evidence in place of the actual physical evidence. All other rules of law governing the admissibility of evidence shall apply to the photographs.
    (g) The law enforcement agency disposing of property in any manner provided in subsection (b), (c), or (e) shall maintain certified records of any disposition under subsection (b), (c), or (e). Disposition by destruction of property shall be witnessed by two (2) persons who shall also attest to the destruction.
    (h) This section does not affect the procedure for the disposition of firearms seized by a law enforcement agency.
    (i) A law enforcement agency that disposes of property by auction

under this section shall permanently stamp or otherwise permanently identify the property as property sold by the law enforcement agency.
    (j) Upon motion of the prosecuting attorney or the Indiana state police department, the court shall order property seized under IC 34-24-1 transferred, subject to the perfected liens or other security interests of any person in the property, 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.

SOURCE: IC 36-2-21; (11)ES0215.2.6. -->     SECTION 6. IC 36-2-21 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]:
     Chapter 21. County Offender Fund
    Sec. 1. (a) A county shall, by resolution, establish a county offender fund to receive money that may be used to defray the expenses of incarcerating, supervising, or treating offenders housed in the county, in particular those offenders housed locally who may have previously been transferred to the department of correction.
    (b) Money in the fund may be spent only under an appropriation from the county fiscal body. In appropriating money from the fund, the fiscal body shall give first priority to programs that defray the expense of housing an offender in jail, second priority to probation and community corrections programs, and third priority to problem solving courts and work release programs.

SOURCE: IC 36-2-22; (11)ES0215.2.7. -->     SECTION 7. IC 36-2-22 IS ADDED TO THE INDIANA CODE AS A NEW CHAPTER TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2011]:
    Chapter 22. County School Security Fund
    Sec. 1. (a) A county shall, by resolution, establish a county school security fund to receive money that may be used to assist public school districts with school security needs.
    (b) Money in the fund may be spent only under an appropriation from the county fiscal body.