Bill Text: IN SB0247 | 2012 | Regular Session | Introduced
Bill Title: Forfeiture.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2012-01-04 - First reading: referred to Committee on Judiciary [SB0247 Detail]
Download: Indiana-2012-SB0247-Introduced.html
Citations Affected: IC 34-24-1.
Synopsis: Forfeiture. Specifies that law enforcement costs in a civil
forfeiture include only those costs actually incurred in the investigation
and prosecution of the specific offense, including expenses actually
incurred in bringing the forfeiture action. Requires every forfeiture
action to be filed with a court, and requires a court to notify the Indiana
criminal justice institute of the amount and manner of a forfeiture
distribution. 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 of the
amount of the proceeds or money obtained; (2) 25% of the part of the
amount between $10,000 and $100,000; and (3) 20% of the part of the
amount that is at least $100,000; unless a court finds that the forfeiture
action is unusually complex. Provides that 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, and
specifies that if an attorney receives a contingency fee, the contingency
fee must be determined based on: (1) the value of the seized currency,
if applicable; and (2) the amount realized from the sale of other
property at auction.
Effective: July 1, 2012.
January 4, 2012, read first time and referred to Committee on Judiciary.
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A BILL FOR AN ACT to amend the Indiana Code concerning
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(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,
(1) determine the amount of law enforcement costs actually
incurred in the investigation and prosecution of the specific
offense, including expenses actually incurred in bringing the
forfeiture action; 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);
(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 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
actual law enforcement costs be forfeited and transferred to
the treasurer of state for deposit in the common school fund.
(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) 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.
(h) 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) A 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.
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.
