Bill Text: PA HB2262 | 2009-2010 | Regular Session | Introduced

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Bill Title: Further providing for controlled substance forfeiture; providing for vehicle forfeiture when driving under the influence; further providing for procedure with respect to seized property subject to liens and rights of lienholders; and, in driving after imbibing alcohol or utilizing drugs, further providing for grading and for penalties; and making editorial changes.

Spectrum: Moderate Partisan Bill (Republican 11-2)

Status: (Introduced - Dead) 2010-02-19 - Referred to TRANSPORTATION [HB2262 Detail]

Download: Pennsylvania-2009-HB2262-Introduced.html

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PRINTER'S NO. 3226
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 2262 Session of2010
INTRODUCED BY GROVE, BOYD, GILLESPIE, GINGRICH, HARRIS, HORNAMAN, MOUL, MURT, PYLE, READSHAW, ROCK, SWANGER AND TALLMAN, FEBRUARY 19, 2010
REFERRED TO COMMITTEE ON TRANSPORTATION, FEBRUARY 19, 2010
AN ACT
Amending Titles 42 (Judiciary and Judicial Procedure)and 75
(Vehicles) of the Pennsylvania Consolidated Statutes,further
providing for controlled substance forfeiture; providing for
vehicle forfeiture when driving under the influence; further
providing for procedure with respect to seized property
subject to liens and rights of lienholders; and in driving
after imbibing alcohol or utilizing drugs, for grading and
for penalties; and making editorial changes.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 6801(b), (d), (e) and (k) of Title 42 of
the Pennsylvania Consolidated Statutes are amended to read:
§ 6801. Controlled substances forfeiture.
* * *
(b) Process and seizure.--Property subject to forfeiture
under this [chapter] section may be seized by the law
enforcement authority upon process issued by any court of common
pleas having jurisdiction over the property. Seizure without
process may be made if:
(1) the seizure is incident to an arrest or a search
under a search warrant or inspection under an administrative
inspection warrant;
(2) the property subject to seizure has been the subject
of a prior judgment in favor of the Commonwealth in a
criminal injunction or forfeiture proceeding under this
[chapter] section;
(3) there is probable cause to believe that the property
is dangerous to health or safety; or
(4) there is probable cause to believe that the property
has been used or is intended to be used in violation of The
Controlled Substance, Drug, Device and Cosmetic Act.
* * *
(d) Custody of property.--Property taken or detained under
this section shall not be subject to replevin, but is deemed to
be in the custody of the law enforcement authority subject only
to the orders and decrees of the court of common pleas having
jurisdiction over the forfeiture proceedings and of the district
attorney or the Attorney General. When property is seized under
this [chapter] section, the law enforcement authority shall
place the property under seal and either:
(1) remove the property to a place designated by it; or
(2) require that the district attorney or Attorney
General take custody of the property and remove it to an
appropriate location for disposition in accordance with law.
(e) Use of property held in custody.--Whenever property is
forfeited under this [chapter] section, the property shall be
transferred to the custody of the district attorney, if the law
enforcement authority seizing the property has local or county
jurisdiction, or the Attorney General, if the law enforcement
authority seizing the property has Statewide jurisdiction. The
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district attorney or the Attorney General, where appropriate,
may:
(1) Retain the property for official use.
(2) Sell any forfeited property which is not required to
be destroyed by law and which is not harmful to the public,
but the proceeds from any such sale shall be used to pay all
proper expenses of the proceedings for forfeiture and sale,
including expenses of seizure, maintenance of custody,
advertising and court costs. The balance of the proceeds
shall be dealt with in accordance with subsections (f) and
(g).
* * *
(k) Proceeds and appropriations.--The proceeds or future
proceeds from forfeited property under this [chapter] section
shall be in addition to any appropriation made to the Office of
Attorney General.
Section 2. Title 42 is amended by adding a section to read:
§ 6801.2. Vehicle forfeiture.
(a) Forfeiture generally.--Except as provided in subsection
(b), in addition to any other penalty imposed under law, the
court shall order forfeiture of a vehicle to the Commonwealth
which an individual was driving or operating or was in actual
physical control of at the time of the commission of an offense
which is classified as a felony of the third degree under 75
Pa.C.S. § 3803(c) (relating to grading).
(b) Exceptions.--The following shall apply:
(1) No vehicle used by any person as a common carrier in
the transaction of business as a common carrier shall be
forfeited under this section unless it appears that the owner
or other person in charge of the conveyance was a consenting
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party or privy to a violation of 75 Pa.C.S. (relating to
vehicles).
(2) No vehicle shall be forfeited under this section by
reason of any act or omission which the owner of the vehicle
establishes to have been committed or omitted without the
owner's reasonable knowledge or consent.
(3) No bona fide security interest shall be subject to
forfeiture or impairment if it was retained or acquired in
any of the following circumstances:
(i) Under 13 Pa.C.S. (relating to commercial code)
by any merchant dealing in new or used vehicles.
(ii) By any licensed or regulated finance company,
bank or lending institution or by any other business
regularly engaged in the financing of or lending on the
security of the vehicle.
(c) Process and seizure.--
(1) Property subject to forfeiture under this section
may be seized by the law enforcement authority upon process
issued by any court of common pleas having jurisdiction over
the property.
(2) Seizure without process may be made if any of the
following apply:
(i) The seizure is incident to an arrest or a search
under a search warrant or inspection under an
administrative inspection warrant.
(ii) The property subject to seizure has been the
subject of a prior judgment in favor of the Commonwealth
in a criminal injunction or forfeiture proceeding under
this section.
(iii) There is probable cause to believe that the
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property has been used or is intended to be used in
violation of 75 Pa.C.S. § 3802 (relating to driving under
influence of alcohol or controlled substance).
(3) In the event seizure without process occurs under
paragraph (2), proceedings for the issuance of process shall
be instituted as soon as possible.
(d) Custody.--Property taken or detained under this section
shall not be subject to replevin but is deemed to be in the
custody of the law enforcement authority, subject only to the
orders and decrees of the court of common pleas having
jurisdiction over the forfeiture proceedings and of the district
attorney or the Attorney General. When property is seized under
this section, the law enforcement authority shall place the
property under seal and either:
(1) remove the property to a place designated by it; or
(2) require that the district attorney or Attorney
General take custody of the property and remove it to an
appropriate location for disposition in accordance with law.
(e) Use or sale of property.--Whenever property is forfeited
under this section, the property shall be transferred to the
custody of the district attorney, if the law enforcement
authority seizing the property has local or county jurisdiction,
or to the Attorney General, if the law enforcement authority
seizing the property has Statewide jurisdiction. The district
attorney or the Attorney General, where appropriate, may do any
of the following:
(1) Retain the property for official use.
(2) Sell any forfeited property. The proceeds from any
sale shall be used to pay all proper expenses of the
proceedings for forfeiture and sale, including expenses of
20100HB2262PN3226 - 5 -
seizure, maintenance of custody, advertising and court costs.
The balance of the proceeds shall be dealt with in accordance
with subsections (f) and (g).
(f) Use of cash or proceeds of property.--Cash or proceeds
of forfeited property transferred to the custody of the district
attorney under subsection (e) shall be placed in the operating
fund of the county in which the district attorney is elected.
The appropriate county authority shall immediately release from
the operating fund, without restriction, a like amount for the
use of the district attorney enforcing the driving under the
influence provisions of 75 Pa.C.S. The entity having budgetary
control shall not anticipate future forfeitures or proceeds from
future forfeitures in adopting and approving the budget for the
district attorney.
(g) Distribution of property among law enforcement
authorities.--If both municipal and State law enforcement
authorities were substantially involved in effecting the
seizure, the court having jurisdiction over the forfeiture
proceedings shall equitably distribute the property between the
district attorney and the Attorney General.
(h) Authorization to utilize property or proceeds.--The
district attorney and the Attorney General shall utilize
forfeited property or proceeds from forfeited property for the
purpose of enforcing the provisions of 75 Pa.C.S. In appropriate
cases, the district attorney and the Attorney General may
designate proceeds from forfeited property to be utilized by
community-based drug and alcohol programs and crime-fighting
programs and for relocation and protection of witnesses in
criminal cases.
(i) Annual audit.--It shall be the responsibility of every
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county in this Commonwealth to provide, through the controller,
board of auditors or other appropriate auditor and the district
attorney, an annual audit of all forfeited property and proceeds
obtained under this section. The audit shall not be made public
but shall be submitted to the Office of Attorney General. The
county shall report all forfeited property and proceeds obtained
under this section and the disposition of the property and
proceeds to the Attorney General by September 30 of each year.
(j) Annual report and confidential information.--The
Attorney General shall do all of the following:
(1) Annually submit a report to the Appropriations and
Judiciary Committees of the Senate and the Appropriations and
Judiciary Committees of the House of Representatives
specifying the forfeited property or proceeds of forfeited
property obtained under this section. The report shall give
an accounting of all proceeds derived from the sale of
forfeited property and the use made of unsold forfeited
property.
(2) Adopt procedures and guidelines governing the
release of information by the district attorney to protect
the confidentiality of forfeited property or proceeds used in
ongoing law enforcement activities.
(k) Proceeds and appropriations.--The proceeds or future
proceeds from forfeited property under this section shall be in
addition to any appropriation made to the Office of Attorney
General.
Section 3. Section 6802(a)(5), (f) introductory paragraph,
(j) introductory paragraph and (k) of Title 42 are amended to
read:
§ 6802. Procedure with respect to seized property subject to
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liens and rights of lienholders.
(a) General procedure.--The proceedings for the forfeiture
or condemnation of property, the sale of which is provided for
in this chapter, shall be in rem, in which the Commonwealth
shall be the plaintiff and the property the defendant. A
petition shall be filed in the court of common pleas of the
judicial district where the property is located, verified by
oath or affirmation of an officer or citizen, containing the
following:
* * *
(5) An allegation that the property is subject to
forfeiture [pursuant to section 6801(a) (relating to
controlled substances forfeiture) or 6801.1(a) (relating to
terrorism forfeiture)] under this chapter and an averment of
material facts upon which the forfeiture action is based.
* * *
(f) Preservation of the property subject for forfeiture.--
Upon application of the Commonwealth, the court may enter a
restraining order or injunction, require the execution of a
satisfactory performance bond or take any other action to
preserve the availability of property [described in section
6801(a) or 6801.1(a)] under this chapter for forfeiture under
this section either:
* * *
(j) Owner's burden of proof.--At the time of the hearing, if
the Commonwealth produces evidence that the property in question
was unlawfully used, possessed or otherwise subject to
forfeiture under [section 6801(a) or 6801.1(a)] this chapter,
the burden shall be upon the claimant to show:
* * *
20100HB2262PN3226 - 8 -
(k) Court-ordered release of property.--If a person claiming
the ownership of or right of possession to or claiming to be the
holder of a chattel mortgage or contract of conditional sale
upon the property, the disposition of which is provided for in
this section, prior to the sale presents a petition to the court
alleging over the property lawful ownership, right of
possession, a lien or reservation of title and if, upon public
hearing, due notice of which having been given to the Attorney
General or the district attorney, the claimant shall prove by
competent evidence to the satisfaction of the court that the
property was lawfully acquired, possessed and used by him or, it
appearing that the property was unlawfully used by a person
other than the claimant, that the unlawful use was without the
claimant's knowledge or consent, then the court may order the
property returned or delivered to the claimant. Such absence of
knowledge or consent must be reasonable under the circumstances
presented. Otherwise, it shall be retained for official use or
sold in accordance with [section 6801(e) or 6801.1(f)] this
chapter.
Section 4. Section 3803(a) introductory paragraph of Title
75 is amended and the section is amended by adding a subsection
to read:
§ 3803. Grading.
(a) Basic offenses.--Notwithstanding the provisions of
[subsection (b)] subsections (b) and (c):
* * *
(c) Habitual offender.--
(1) An individual who violates section 3802(b) and who
has four or more prior offenses commits a felony of the third
degree.
20100HB2262PN3226 - 9 -
(2) An individual who violates section 3802(a)(1), where
the individual refused testing of blood or breath, or who
violates section 3802(c) or (d) and who has three or more
prior offenses commits a felony of the third degree.
Section 5. Section 3804(b)(4) and (c)(3) of Title 75 are
amended and the subsections are amended by adding paragraphs to
read:
§ 3804. Penalties.
* * *
(b) High rate of blood alcohol; minors; commercial vehicles
and school buses and school vehicles; accidents.--Except as set
forth in subsection (c), an individual who violates section
3802(a)(1) where there was an accident resulting in bodily
injury, serious bodily injury or death of any person or damage
to a vehicle or other property or who violates section 3802(b),
(e) or (f) shall be sentenced as follows:
* * *
(4) For a fourth [or subsequent] offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $1,500 nor more
than $10,000; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(5) For a fifth or subsequent offense, to:
(i) undergo imprisonment of not less than two years;
(ii) pay a fine of not less than $2,500 nor more
than $15,000; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(c) Incapacity; highest blood alcohol; controlled
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substances.--An individual who violates section 3802(a)(1) and
refused testing of blood or breath or an individual who violates
section 3802(c) or (d) shall be sentenced as follows:
* * *
(3) For a third [or subsequent] offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
(4) For a fourth or subsequent offense, to:
(i) undergo imprisonment of not less than two years;
(ii) pay a fine of not less than $5,000; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
* * *
Section 6. The following provisions shall apply to all
offenses committed on or after the effective date of this
section:
(1) The amendment of 42 Pa.C.S. § 6801(b), (d), (e) and
(k).
(2) The addition of 42 Pa.C.S. § 6801.2.
(3) The amendment of 42 Pa.C.S. § 6802(a)(5), (f)
introductory paragraph, (j) introductory paragraph and (k).
(4) The amendment or addition of 75 Pa.C.S. § 3803(a)
and (c).
(5) The amendment or addition of 75 Pa.C.S. § 3804(b)(4)
and (5) and (c)(3) and (4).
Section 7. This act shall take effect in 60 days.
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