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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY ERICKSON, RAFFERTY, WASHINGTON, WAUGH AND PICCOLA, MARCH 4, 2009 |
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| REFERRED TO TRANSPORTATION, MARCH 4, 2009 |
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| AN ACT |
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1 | Amending Titles 42 (Judiciary and Judicial Procedure) and 75 |
2 | (Vehicles) of the Pennsylvania Consolidated Statutes, making |
3 | an editorial change; further providing for loss of property |
4 | rights to Commonwealth; providing for vehicle forfeiture when |
5 | driving under the influence; and further providing for |
6 | procedure with respect to seized property subject to liens |
7 | and rights of lienholders, for grading and for penalties. |
8 | The General Assembly of the Commonwealth of Pennsylvania |
9 | hereby enacts as follows: |
10 | Section 1. Section 6801(b), (d), (e) and (k) of Title 42 of |
11 | the Pennsylvania Consolidated Statutes are amended to read: |
12 | § 6801. Controlled substance forfeiture. |
13 | * * * |
14 | (b) Process and seizure.--Property subject to forfeiture |
15 | under this [chapter] section may be seized by the law |
16 | enforcement authority upon process issued by any court of common |
17 | pleas having jurisdiction over the property. Seizure without |
18 | process may be made if: |
19 | (1) the seizure is incident to an arrest or a search |
20 | under a search warrant or inspection under an administrative |
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1 | inspection warrant; |
2 | (2) the property subject to seizure has been the subject |
3 | of a prior judgment in favor of the Commonwealth in a |
4 | criminal injunction or forfeiture proceeding under this |
5 | [chapter] section; |
6 | (3) there is probable cause to believe that the property |
7 | is dangerous to health or safety; or |
8 | (4) there is probable cause to believe that the property |
9 | has been used or is intended to be used in violation of The |
10 | Controlled Substance, Drug, Device and Cosmetic Act. |
11 | * * * |
12 | (d) Custody of property.--Property taken or detained under |
13 | this section shall not be subject to replevin, but is deemed to |
14 | be in the custody of the law enforcement authority subject only |
15 | to the orders and decrees of the court of common pleas having |
16 | jurisdiction over the forfeiture proceedings and of the district |
17 | attorney or the Attorney General. When property is seized under |
18 | this [chapter] section, the law enforcement authority shall |
19 | place the property under seal and either: |
20 | (1) remove the property to a place designated by it; or |
21 | (2) require that the district attorney or Attorney |
22 | General take custody of the property and remove it to an |
23 | appropriate location for disposition in accordance with law. |
24 | (e) Use of property held in custody.--Whenever property is |
25 | forfeited under this [chapter] section, the property shall be |
26 | transferred to the custody of the district attorney, if the law |
27 | enforcement authority seizing the property has local or county |
28 | jurisdiction, or the Attorney General, if the law enforcement |
29 | authority seizing the property has Statewide jurisdiction. The |
30 | district attorney or the Attorney General, where appropriate, |
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1 | may: |
2 | (1) Retain the property for official use. |
3 | (2) Sell any forfeited property which is not required to |
4 | be destroyed by law and which is not harmful to the public, |
5 | but the proceeds from any such sale shall be used to pay all |
6 | proper expenses of the proceedings for forfeiture and sale, |
7 | including expenses of seizure, maintenance of custody, |
8 | advertising and court costs. The balance of the proceeds |
9 | shall be dealt with in accordance with subsections (f) and |
10 | (g). |
11 | * * * |
12 | (k) Proceeds and appropriations.--The proceeds or future |
13 | proceeds from forfeited property under this [chapter] section |
14 | shall be in addition to any appropriation made to the Office of |
15 | Attorney General. |
16 | Section 2. Title 42 is amended by adding a section to read: |
17 | § 6801.2. Vehicle forfeiture. |
18 | (a) Forfeiture generally.--Except as provided in subsection |
19 | (b), in addition to any other penalty imposed under law, the |
20 | court shall order forfeiture of a vehicle to the Commonwealth |
21 | which an individual was driving or operating or was in actual |
22 | physical control of at the time of the commission of an offense |
23 | which is classified as a felony of the third degree under 75 |
24 | Pa.C.S. § 3803(c) (relating to grading). |
25 | (b) Exceptions.--The following shall apply: |
26 | (1) No vehicle used by any person as a common carrier in |
27 | the transaction of business as a common carrier shall be |
28 | forfeited under this section unless it appears that the owner |
29 | or other person in charge of the conveyance was a consenting |
30 | party or privy to a violation of 75 Pa.C.S. (relating to |
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1 | vehicles). |
2 | (2) No vehicle shall be forfeited under this section by |
3 | reason of any act or omission which the owner of the vehicle |
4 | establishes to have been committed or omitted without the |
5 | owner's reasonable knowledge or consent. |
6 | (3) No bona fide security interest shall be subject to |
7 | forfeiture or impairment if it was retained or acquired in |
8 | any of the following circumstances: |
9 | (i) Under 13 Pa.C.S. (relating to commercial code) |
10 | by any merchant dealing in new or used vehicles. |
11 | (ii) By any licensed or regulated finance company, |
12 | bank or lending institution or by any other business |
13 | regularly engaged in the financing of or lending on the |
14 | security of the vehicle. |
15 | (c) Process and seizure.-- |
16 | (1) Property subject to forfeiture under this section |
17 | may be seized by the law enforcement authority upon process |
18 | issued by any court of common pleas having jurisdiction over |
19 | the property. |
20 | (2) Seizure without process may be made if any of the |
21 | following apply: |
22 | (i) The seizure is incident to an arrest or a search |
23 | under a search warrant or inspection under an |
24 | administrative inspection warrant. |
25 | (ii) The property subject to seizure has been the |
26 | subject of a prior judgment in favor of the Commonwealth |
27 | in a criminal injunction or forfeiture proceeding under |
28 | this section. |
29 | (iii) There is probable cause to believe that the |
30 | property has been used or is intended to be used in |
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1 | violation of 75 Pa.C.S. § 3802 (relating to driving under |
2 | influence of alcohol or controlled substance). |
3 | (3) In the event seizure without process occurs under |
4 | paragraph (2), proceedings for the issuance of process shall |
5 | be instituted as soon as possible. |
6 | (d) Custody.--Property taken or detained under this section |
7 | shall not be subject to replevin but is deemed to be in the |
8 | custody of the law enforcement authority, subject only to the |
9 | orders and decrees of the court of common pleas having |
10 | jurisdiction over the forfeiture proceedings and of the district |
11 | attorney or the Attorney General. When property is seized under |
12 | this section, the law enforcement authority shall place the |
13 | property under seal and either: |
14 | (1) remove the property to a place designated by it; or |
15 | (2) require that the district attorney or Attorney |
16 | General take custody of the property and remove it to an |
17 | appropriate location for disposition in accordance with law. |
18 | (e) Use or sale of property.--Whenever property is forfeited |
19 | under this section, the property shall be transferred to the |
20 | custody of the district attorney, if the law enforcement |
21 | authority seizing the property has local or county jurisdiction, |
22 | or to the Attorney General, if the law enforcement authority |
23 | seizing the property has Statewide jurisdiction. The district |
24 | attorney or the Attorney General, where appropriate, may do any |
25 | of the following: |
26 | (1) Retain the property for official use. |
27 | (2) Sell any forfeited property. The proceeds from any |
28 | sale shall be used to pay all proper expenses of the |
29 | proceedings for forfeiture and sale, including expenses of |
30 | seizure, maintenance of custody, advertising and court costs. |
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1 | The balance of the proceeds shall be dealt with in accordance |
2 | with subsections (f) and (g). |
3 | (f) Use of cash or proceeds of property.--Cash or proceeds |
4 | of forfeited property transferred to the custody of the district |
5 | attorney under subsection (e) shall be placed in the operating |
6 | fund of the county in which the district attorney is elected. |
7 | The appropriate county authority shall immediately release from |
8 | the operating fund, without restriction, a like amount for the |
9 | use of the district attorney enforcing the driving under the |
10 | influence provisions of 75 Pa.C.S. The entity having budgetary |
11 | control shall not anticipate future forfeitures or proceeds from |
12 | future forfeitures in adopting and approving the budget for the |
13 | district attorney. |
14 | (g) Distribution of property among law enforcement |
15 | authorities.--If both municipal and State law enforcement |
16 | authorities were substantially involved in effecting the |
17 | seizure, the court having jurisdiction over the forfeiture |
18 | proceedings shall equitably distribute the property between the |
19 | district attorney and the Attorney General. |
20 | (h) Authorization to utilize property or proceeds.--The |
21 | district attorney and the Attorney General shall utilize |
22 | forfeited property or proceeds from forfeited property for the |
23 | purpose of enforcing the provisions of 75 Pa.C.S. In appropriate |
24 | cases, the district attorney and the Attorney General may |
25 | designate proceeds from forfeited property to be utilized by |
26 | community-based drug and alcohol programs and crime-fighting |
27 | programs and for relocation and protection of witnesses in |
28 | criminal cases. |
29 | (i) Annual audit.--It shall be the responsibility of every |
30 | county in this Commonwealth to provide, through the controller, |
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1 | board of auditors or other appropriate auditor and the district |
2 | attorney, an annual audit of all forfeited property and proceeds |
3 | obtained under this section. The audit shall not be made public |
4 | but shall be submitted to the Office of Attorney General. The |
5 | county shall report all forfeited property and proceeds obtained |
6 | under this section and the disposition of the property and |
7 | proceeds to the Attorney General by September 30 of each year. |
8 | (j) Annual report and confidential information.--The |
9 | Attorney General shall do all of the following: |
10 | (1) Annually submit a report to the Appropriations and |
11 | Judiciary Committees of the Senate and the Appropriations and |
12 | Judiciary Committees of the House of Representatives |
13 | specifying the forfeited property or proceeds of forfeited |
14 | property obtained under this section. The report shall give |
15 | an accounting of all proceeds derived from the sale of |
16 | forfeited property and the use made of unsold forfeited |
17 | property. |
18 | (2) Adopt procedures and guidelines governing the |
19 | release of information by the district attorney to protect |
20 | the confidentiality of forfeited property or proceeds used in |
21 | ongoing law enforcement activities. |
22 | (k) Proceeds and appropriations.--The proceeds or future |
23 | proceeds from forfeited property under this section shall be in |
24 | addition to any appropriation made to the Office of Attorney |
25 | General. |
26 | Section 3. Section 6802(a)(5), (f) introductory paragraph, |
27 | (j) introductory paragraph and (k) of Title 42, are amended to |
28 | read: |
29 | § 6802. Procedure with respect to seized property subject to |
30 | liens and rights of lienholders. |
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1 | (a) General procedure.--The proceedings for the forfeiture |
2 | or condemnation of property, the sale of which is provided for |
3 | in this chapter, shall be in rem, in which the Commonwealth |
4 | shall be the plaintiff and the property the defendant. A |
5 | petition shall be filed in the court of common pleas of the |
6 | judicial district where the property is located, verified by |
7 | oath or affirmation of an officer or citizen, containing the |
8 | following: |
9 | * * * |
10 | (5) An allegation that the property is subject to |
11 | forfeiture [pursuant to section 6801(a) (relating to |
12 | controlled substances forfeiture) or 6801.1(a) (relating to |
13 | terrorism forfeiture)] under this chapter and an averment of |
14 | material facts upon which the forfeiture action is based. |
15 | * * * |
16 | (f) Preservation of the property subject for forfeiture.-- |
17 | Upon application of the Commonwealth, the court may enter a |
18 | restraining order or injunction, require the execution of a |
19 | satisfactory performance bond or take any other action to |
20 | preserve the availability of property described [in section |
21 | 6801(a) or 6801.1(a)] under this chapter for forfeiture under |
22 | this section either: |
23 | * * * |
24 | (j) Owner's burden of proof.--At the time of the hearing, if |
25 | the Commonwealth produces evidence that the property in question |
26 | was unlawfully used, possessed or otherwise subject to |
27 | forfeiture under [section 6801(a) or 6801.1(a)] this chapter, |
28 | the burden shall be upon the claimant to show: |
29 | * * * |
30 | (k) Court-ordered release of property.--If a person claiming |
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1 | the ownership of or right of possession to or claiming to be the |
2 | holder of a chattel mortgage or contract of conditional sale |
3 | upon the property, the disposition of which is provided for in |
4 | this section, prior to the sale presents a petition to the court |
5 | alleging over the property lawful ownership, right of |
6 | possession, a lien or reservation of title and if, upon public |
7 | hearing, due notice of which having been given to the Attorney |
8 | General or the district attorney, the claimant shall prove by |
9 | competent evidence to the satisfaction of the court that the |
10 | property was lawfully acquired, possessed and used by him or, it |
11 | appearing that the property was unlawfully used by a person |
12 | other than the claimant, that the unlawful use was without the |
13 | claimant's knowledge or consent, then the court may order the |
14 | property returned or delivered to the claimant. Such absence of |
15 | knowledge or consent must be reasonable under the circumstances |
16 | presented. Otherwise, it shall be retained for official use or |
17 | sold in accordance with [section 6801(e) or 6801.1(f)] this |
18 | chapter. |
19 | Section 4. Section 3803(a) introductory paragraph of Title |
20 | 75 is amended and the section is amended by adding a subsection |
21 | to read: |
22 | § 3803. Grading. |
23 | (a) Basic offenses.--Notwithstanding the provisions of |
24 | [subsection (b)] subsections (b) and (c): |
25 | * * * |
26 | (c) Habitual offender.-- |
27 | (1) An individual who violates section 3802(b) and who |
28 | has four or more prior offenses commits a felony of the third |
29 | degree. |
30 | (2) An individual who violates section 3802(a)(1), where |
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1 | the individual refused testing of blood or breath, or who |
2 | violates section 3802(c) or (d) and who has three or more |
3 | prior offenses commits a felony of the third degree. |
4 | Section 5. Section 3804(b)(4) and (c)(3) of Title 75 are |
5 | amended and the subsections are amended by adding paragraphs to |
6 | read: |
7 | § 3804. Penalties. |
8 | * * * |
9 | (b) High rate of blood alcohol; minors; commercial vehicles |
10 | and school buses and school vehicles; accidents.--Except as set |
11 | forth in subsection (c), an individual who violates section |
12 | 3802(a)(1) where there was an accident resulting in bodily |
13 | injury, serious bodily injury or death of any person or damage |
14 | to a vehicle or other property or who violates section 3802(b), |
15 | (e) or (f) shall be sentenced as follows: |
16 | * * * |
17 | (4) For a fourth [or subsequent] offense, to: |
18 | (i) undergo imprisonment of not less than one year; |
19 | (ii) pay a fine of not less than $1,500 nor more |
20 | than $10,000; and |
21 | (iii) comply with all drug and alcohol treatment |
22 | requirements imposed under sections 3814 and 3815. |
23 | (5) For a fifth or subsequent offense, to: |
24 | (i) undergo imprisonment of not less than two years; |
25 | (ii) pay a fine of not less than $2,500 nor more |
26 | than $15,000; and |
27 | (iii) comply with all drug and alcohol treatment |
28 | requirements imposed under sections 3814 and 3815. |
29 | (c) Incapacity; highest blood alcohol; controlled |
30 | substances.--An individual who violates section 3802(a)(1) and |
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1 | refused testing of blood or breath or an individual who violates |
2 | section 3802(c) or (d) shall be sentenced as follows: |
3 | * * * |
4 | (3) For a third [or subsequent] offense, to: |
5 | (i) undergo imprisonment of not less than one year; |
6 | (ii) pay a fine of not less than $2,500; and |
7 | (iii) comply with all drug and alcohol treatment |
8 | requirements imposed under sections 3814 and 3815. |
9 | (4) For a fourth or subsequent offense, to: |
10 | (i) undergo imprisonment of not less than two years; |
11 | (ii) pay a fine of not less than $5,000; and |
12 | (iii) comply with all drug and alcohol treatment |
13 | requirements imposed under sections 3814 and 3815. |
14 | * * * |
15 | Section 6. The following provisions shall apply to all |
16 | offenses committed on or after the effective date of this act: |
17 | (1) The amendment of 42 Pa.C.S. § 6801(b), (d), (e) and |
18 | (k). |
19 | (2) The addition of 42 Pa.C.S. § 6801.2. |
20 | (3) The amendment of 42 Pa.C.S. § 6802(a)(5), (f) |
21 | introductory paragraph, (j) introductory paragraph and (k). |
22 | (4) The amendment or addition of 75 Pa.C.S. § 3803(a) |
23 | introductory paragraph and (c). |
24 | (5) The amendment or addition of 75 Pa.C.S. § 3804(b)(4) |
25 | and (5) and (c)(3) and (4). |
26 | Section 7. This act shall take effect in 60 days. |
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