Bill Text: MI HB5728 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Civil procedure; other; release of vehicle seized under the Michigan vehicle code if person arrested is released without charges, person arrested is acquitted, or charges are dismissed; provide for. Amends sec. 625n of 1949 PA 300 (MCL 257.625n). TIE BAR WITH: HB 5725'09

Spectrum: Partisan Bill (Democrat 8-0)

Status: (Introduced - Dead) 2009-12-30 - Printed Bill Filed 12/21/2009 [HB5728 Detail]

Download: Michigan-2009-HB5728-Introduced.html

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HOUSE BILL No. 5728

 

December 18, 2009, Introduced by Reps. Melton, Valentine, Tlaib, Womack, Geiss, Constan, Liss and Cushingberry and referred to the Committee on Judiciary.

 

     A bill to amend 1949 PA 300, entitled

 

"Michigan vehicle code,"

 

by amending section 625n (MCL 257.625n), as amended by 2008 PA 539.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 625n. (1) Except as otherwise provided in this section

 

and in addition to any other penalty provided for in this act, the

 

judgment of sentence for a conviction for a violation of section

 

625(1) described in section 625(9)(b) or (c), a violation of

 

section 625(3) described in section 625(11)(b) or (c), a violation

 

of section 625(4), (5), or (7), or a violation of section 904(4) or

 

(5) may require 1 of the following with regard to the vehicle used

 

in the offense if the defendant owns the vehicle in whole or in

 

part or leases the vehicle:

 

     (a) Forfeiture of the vehicle if the defendant owns the

 

vehicle in whole or in part.

 

     (b) Return of the vehicle to the lessor if the defendant

 

leases the vehicle.

 

     (2) The A vehicle described in subsection (1) may be seized

 

pursuant to an order of seizure issued by the court having

 

jurisdiction upon a showing of probable cause that the vehicle is

 

subject to forfeiture or return to the lessor. Section 2977 of the

 

revised judicature act of 1961, 1961 PA 236, MCL 600.2977, applies

 

to a motor vehicle that has been seized under this subsection.

 

     (3) The forfeiture of a vehicle under this section is subject

 

to the interest of the holder of a security interest who did not

 

have prior knowledge of or consent to the violation.

 

     (4) Within 14 days after the defendant's conviction for a

 

violation described in subsection (1), the prosecuting attorney may

 

file a petition with the court for the forfeiture of the vehicle or

 

to have the court order return of a leased vehicle to the lessor.

 

The prosecuting attorney shall give notice by first-class mail or

 

other process to the defendant and his or her attorney, to all

 

owners of the vehicle, and to any person holding a security

 

interest in the vehicle that the court may require forfeiture or

 

return of the vehicle.

 

     (5) If a vehicle is seized before disposition of the criminal

 

proceedings, a defendant who is an owner or lessee of the vehicle

 

may move the court having jurisdiction over the proceedings to

 

require the seizing agency to file a lien against the vehicle and

 

to return the vehicle to the owner or lessee pending disposition of

 

the criminal proceedings. The court shall hear the motion within 7

 

days after the motion is filed. If the defendant establishes at the

 

hearing that he or she holds the legal title to the vehicle or that

 

he or she has a leasehold interest and that it is necessary for him

 

or her or a member of his or her family to use the vehicle pending

 

the outcome of the forfeiture action, the court may order the

 

seizing agency to return the vehicle to the owner or lessee. If the

 

court orders the return of the vehicle to the owner or lessee, the

 

court shall order the defendant to post a bond in an amount equal

 

to the retail value of the vehicle, and shall also order the

 

seizing agency to file a lien against the vehicle.

 

     (6) Within 14 days after notice by the prosecuting attorney is

 

given under subsection (4), the defendant, an owner, lessee, or

 

holder of a security interest may file a claim of interest in the

 

vehicle with the court. Within 21 days after the expiration of the

 

period for filing claims, but before or at sentencing, the court

 

shall hold a hearing to determine the legitimacy of any claim, the

 

extent of any co-owner's equity interest, the liability of the

 

defendant to any co-lessee, and whether to order the vehicle

 

forfeited or returned to the lessor. In considering whether to

 

order forfeiture, the court shall review the defendant's driving

 

record to determine whether the defendant has multiple convictions

 

under section 625 or a local ordinance substantially corresponding

 

to section 625, or multiple suspensions, restrictions, or denials

 

under section 904, or both. If the defendant has multiple

 

convictions under section 625 or multiple suspensions,

 

restrictions, or denials under section 904, or both, that factor

 

shall weigh heavily in favor of forfeiture.

 

     (7) If a vehicle is forfeited under this section, the unit of

 

government that seized the vehicle shall sell the vehicle pursuant

 

to the procedures under section 252g(1) and dispose of the proceeds

 

in the following order of priority:

 

     (a) Pay any outstanding security interest of a secured party

 

who did not have prior knowledge of or consent to the commission of

 

the violation.

 

     (b) Pay the equity interest of a co-owner who did not have

 

prior knowledge of or consent to the commission of the violation.

 

     (c) Satisfy any order of restitution entered in the

 

prosecution for the violation.

 

     (d) Pay any outstanding accrued towing and storage fees.

 

     (e) Pay the claim of each person who shows that he or she is a

 

victim of the violation to the extent that the claim is not covered

 

by an order of restitution.

 

     (f) Pay any outstanding lien against the property that has

 

been imposed by a governmental unit.

 

     (g) Pay the proper expenses of the proceedings for forfeiture

 

and sale, including, but not limited to, expenses incurred during

 

the seizure process and expenses for maintaining custody of the

 

property, advertising, and court costs.

 

     (h) The balance remaining after the payment of items under

 

subdivisions (a) through to (g) shall be distributed by the court

 

having jurisdiction over the forfeiture proceedings to the unit or

 

units of government substantially involved in effecting the

 

forfeiture. Seventy-five percent of the money received by a unit of

 

government under this subdivision shall be used to enhance

 

enforcement of the criminal laws and 25% of the money shall be used

 

to implement the William Van Regenmorter crime victim's rights act,

 

1985 PA 87, MCL 780.751 to 780.834. A unit of government receiving

 

money under this subdivision shall report annually to the

 

department of management and budget the amount of money received

 

under this subdivision that was used to enhance enforcement of the

 

criminal laws and the amount that was used to implement the William

 

Van Regenmorter crime victim's rights act, 1985 PA 87, MCL 780.751

 

to 780.834.

 

     (8) The court may order the defendant to pay to a co-lessee

 

any liability to the co-lessee determined under subsection (6). The

 

order may be enforced in the same manner as a civil judgment.

 

     (9) The return of a vehicle to the lessor under this section

 

does not affect or impair the lessor's rights or the defendant's

 

obligations under the lease.

 

     (10) A person who knowingly conceals, sells, gives away, or

 

otherwise transfers or disposes of a vehicle with the intent to

 

avoid forfeiture or return of the vehicle to the lessor under this

 

section is guilty of a misdemeanor punishable by imprisonment for

 

not more than 1 year or a fine of not more than $1,000.00, or both.

 

     (11) The failure of the court or prosecutor to comply with any

 

time limit specified in this section does not preclude the court

 

from ordering forfeiture of a vehicle or its return to a lessor,

 

unless the court finds that the owner or claimant suffered

 

substantial prejudice as a result of that failure.

 

     (12) The forfeiture provisions of this section do not preclude

 

the prosecuting attorney from pursuing a forfeiture proceeding

 

under any other law of this state or a local ordinance

 

substantially corresponding to this section.

 

     Enacting section 1. This amendatory act does not take effect

 

unless Senate Bill No.____ or House Bill No. 5725(request no.

 

01506'09) of the 95th Legislature is enacted into law.