Bill Text: MI SB0002 | 2019-2020 | 100th Legislature | Engrossed

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Criminal procedure: forfeiture; asset forfeiture; require a criminal conviction before proceeding. Amends 1978 PA 368 (MCL 333.1101 - 333.25211) by adding sec. 7521a. TIE BAR WITH: HB 4001'19, HB 4002'19

Spectrum: Bipartisan Bill

Status: (Passed) 2019-05-14 - Assigned Pa 0007'19 With Immediate Effect [SB0002 Detail]

Download: Michigan-2019-SB0002-Engrossed.html

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SB-0002, As Passed Senate, February 13, 2019

 

 

 

 

 

 

 

 

 

 

 

 

SENATE BILL No. 2

 

 

January 15, 2019, Introduced by Senator LUCIDO and referred to the Committee on Judiciary and Public Safety.

 

 

 

     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, 2020.

     (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.