Bill Text: MI HB4158 | 2017-2018 | 99th Legislature | Engrossed
Bill Title: Criminal procedure; forfeiture; asset forfeiture; require a criminal conviction before proceeding. Amends 1978 PA 368 (MCL 333.1101 - 333.25211) by adding secs. 7521a & 7521b.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Engrossed - Dead) 2018-05-10 - Referred To Committee On Judiciary [HB4158 Detail]
Download: Michigan-2017-HB4158-Engrossed.html
HB-4158, As Passed House, May 8, 2018
SUBSTITUTE FOR
HOUSE BILL NO. 4158
A bill to amend 1978 PA 368, entitled
"Public health code,"
by amending section 7523 (MCL 333.7523), as amended by 2016 PA 418,
and by adding section 7521a.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 7521a. (1) Except as otherwise provided in this section,
property may be seized as provided in section 7522 for a violation
of this article, but is not subject to forfeiture under section
7521 or disposition under section 7524 unless 1 of the following
applies:
(a) A criminal proceeding involving or relating to the
property has been completed and the defendant is convicted of a
violation of this article.
(b) A criminal proceeding involving or relating to the
property has been completed and the defendant enters into a plea
agreement that is approved by the presiding criminal court.
(c) No person claims any interest in the property as provided
under section 7523.
(d) The owner of the property executes a signed form stating
that he or she is relinquishing ownership of the property and
provides that form to the law enforcement agency that seized the
property.
(2) If a person executes a form under subsection (1)(d), the
prosecuting attorney for the county in which the property was
seized or, if the attorney general is actively handling a case
involving or related to the property, the attorney general, must
review the seizure of the property and approve the forfeiture of
the property before the property may be forfeited.
(3) The state court administrator's office shall develop and
make available to law enforcement agencies, the courts, and the
public the form described in subsection (1)(d).
(4) A form executed under subsection (1)(d) is confidential
and is not subject to disclosure under the freedom of information
act, 1976 PA 442, MCL 15.231 to 15.246.
(5) Subsection (1) does not prohibit the immediate destruction
of property that may not be lawfully possessed by any person or
that is dangerous to the health or safety of the public regardless
of whether the person is convicted of a violation of this article.
(6) This section applies to forfeiture proceedings that are
pending on, or initiated on or after, January 1, 2019.
(7) This section does not apply to forfeiture proceedings in
which the aggregate net equity value of the property seized exceeds
$50,000.00, excluding the value of contraband.
Sec. 7523. (1) If property is seized under section 7522,
forfeiture
proceedings shall must be instituted promptly. If the
property is seized without process under section 7522, and the
total value of the property seized does not exceed $50,000.00, the
following
procedure shall must be used:
(a) The local unit of government that seized the property or,
if the property was seized by this state, the state shall notify
the owner of the property that the property has been seized, and
that the local unit of government or, if applicable, the state
intends to forfeit and dispose of the property by delivering a
written notice to the owner of the property or by sending the
notice to the owner by certified mail. If the name and address of
the owner are not reasonably ascertainable, or delivery of the
notice
cannot be reasonably accomplished, the notice shall must be
published in a newspaper of general circulation in the county in
which the property was seized, for 10 successive publishing days.
(b) Unless all criminal proceedings involving or relating to
the property have been completed, the seizing agency shall
immediately notify the prosecuting attorney for the county in which
the property was seized or, if the attorney general is actively
handling a case involving or relating to the property, the attorney
general of the seizure of the property and the intention to forfeit
and dispose of the property.
(c) Any person claiming an interest in property that is the
subject of a notice under subdivision (a) may, within 20 days after
receipt of the notice or of the date of the first publication of
the notice, file a written claim signed by the claimant with the
local unit of government or the state expressing his or her
interest in the property and any objection to forfeiture. An
objection under this subsection must be written, verified, and
signed by the claimant, and include a detailed description of the
property and the property interest asserted. The verification must
be notarized and include a certification stating that the
undersigned has examined the claim and believes it to be, to the
best of his or her knowledge, true and complete. A written claim
under this subsection must be made on the form developed by the
state court administrator's office as required under subsection
(2). Upon the filing of the claim, the local unit of government or,
if applicable, this state shall transmit the claim with a list and
description of the property seized to the attorney general, the
prosecuting attorney for the county, or the city or township
attorney for the local unit of government in which the seizure was
made. The attorney general, the prosecuting attorney, or the city
or township attorney shall promptly institute forfeiture
proceedings after the expiration of the 20-day period. However,
unless all criminal proceedings involving or relating to the
property have been completed, a city or township attorney shall not
institute forfeiture proceedings without the consent of the
prosecuting attorney or, if the attorney general is actively
handling a case involving or relating to the property, the attorney
general.
(d) If no claim is filed within the 20-day period as described
in subdivision (c), the local unit of government or this state
shall declare the property forfeited and shall dispose of the
property as provided under section 7524. However, unless all
criminal proceedings involving or relating to the property have
been completed, the local unit of government or the state shall not
dispose of the property under this subdivision without the written
consent of the prosecuting attorney or, if the attorney general is
actively handling a case involving or relating to the property, the
attorney general.
(2) The state court administrator's office shall develop and
make available to law enforcement agencies, courts, and the public
a form for asserting an ownership interest in seized property under
subsection (1)(c). The form must require a claimant to provide a
detailed description of the property, his or her ownership interest
in the property, and a signed attestation that the claimant has a
bona fide ownership interest in the property.
(3) (2)
Property taken or detained under
this article is not
subject to an action to recover personal property, but is deemed to
be in the custody of the seizing agency subject only to this
section or an order and judgment of the court having jurisdiction
over the forfeiture proceedings. When property is seized under this
article, the seizing agency may do any of the following:
(a) Place the property under seal.
(b) Remove the property to a place designated by the court.
(c) Require the administrator to take custody of the property
and remove it to an appropriate location for disposition in
accordance with law.
(d) Deposit money seized under this article into an interest-
bearing account in a financial institution. As used in this
subdivision, "financial institution" means a state or nationally
chartered bank or a state or federally chartered savings and loan
association, savings bank, or credit union whose deposits are
insured by an agency of the United States government and that
maintains a principal office or branch office located in this state
under the laws of this state or the United States.
(4) (3)
Title to real property forfeited
under this article
shall
must be determined by a court of competent jurisdiction.
A
forfeiture of real property encumbered by a bona fide security
interest is subject to the interest of the secured party who
neither had knowledge of nor consented to the act or omission.
(5) (4)
An attorney for a person who is
charged with a crime
involving
or related to the money seized under this article shall
must be afforded a period of 60 days within which to examine that
money. This 60-day period begins to run after notice is given under
subsection (1)(a) but before the money is deposited into a
financial
institution under subsection (2)(d). (3)(d). If the
attorney general, prosecuting attorney, or city or township
attorney fails to sustain his or her burden of proof in forfeiture
proceedings under this article, the court shall order the return of
the money, including any interest earned on money deposited into a
financial
institution under subsection (2)(d).(3)(d).
Enacting section 1. This amendatory act takes effect 90 days
after the date it is enacted into law.