Bill Text: IN SB0215 | 2011 | Regular Session | Introduced
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-Introduced.html
Citations Affected: IC 34-24-1.
Synopsis: Forfeiture. Provides that, for purposes of the forfeiture
statute, law enforcement costs shall be calculated as follows: (1) if the
value of the seized property is $3,000 or less, 85% the entire amount
constitutes law enforcement costs; (2) if the value of the property is
more than $3,000 and less than $100,000, law enforcement costs are
$3,000 plus 50% of the value of the property between $3,000 and
$100,000, but may not exceed 85% of the value of the property; and (3)
if the value of the property is $100,000 or more, law enforcement costs
constitute $53,000 plus 20% of the amount equal to or exceeding
$100,000. Provides that 25% of law enforcement costs 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 that constitute law
enforcement costs 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 approves 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.
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A BILL FOR AN ACT to amend the Indiana Code concerning
criminal law and procedure.
(1) If the value of property seized under this article is three thousand dollars ($3,000) or less, eighty-five percent (85%) of the value of the seized property constitutes law enforcement costs.
(2) If the value of property seized under this article is more than three thousand dollars ($3,000) and less than one hundred thousand dollars ($100,000), law enforcement costs consist of three thousand dollars ($3,000) plus fifty percent (50%) of the amount between three thousand dollars ($3,000) and one hundred thousand dollars ($100,000). However, law enforcement costs under this subdivision may not exceed eighty-five percent (85%) of the value of the seized property.
(3) If the value of property seized is one hundred thousand dollars ($100,000) or more, law enforcement costs consist of
fifty-three thousand dollars ($53,000) plus twenty percent
(20%) of the amount equal to or exceeding one hundred
thousand dollars ($100,000).
(a) (b) 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) (c) If the prosecuting attorney fails to meet the burden of proof,
the court shall order the property released to the owner.
(c) (d) 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) (e) 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 under
subsection (a); and
(2) order that:
(A) 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); (d);
(B) 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 general
fund of the unit that employed the law enforcement officers
that seized the property; or and
(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. The
excess over the law enforcement costs may not be less than
fifteen percent (15%) of the value of the proceeds or
money.
(f) Twenty-five percent (25%) of the part of the sale proceeds or
money that constitutes law enforcement costs 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 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.
(g) The part of the sale proceeds or money that constitutes law
enforcement costs may be used only for:
(1) law enforcement purposes or to defray the expenses of
initiating and maintaining a forfeiture action; and
(2) disbursements under an appropriation from the state
general fund or the general fund of the unit that employed the
law enforcement officers who seized the property.
(e) (h) 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) (i) 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.
(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.
(c) 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) In determining whether to approve a compensation agreement under this section, the attorney general shall consider:
(1) the reasonableness of the proposed compensation agreement;
(2) whether the compensation agreement creates an actual or apparent conflict of interest; and
(3) any other issue that is relevant to the fairness of the proposed compensation agreement.
