ENROLLED
Senate Bill No. 452
(By Senator Buckalew)
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[Passed March 8, 1996; in effect ninety days from passage.]
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AN ACT to amend and reenact sections seven hundred four, seven
hundred six and seven hundred seven, article seven, chapter
sixty-a of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to allowing
seized or forfeited assets to be deposited into interest-
bearing depositories insured by an agency of the federal
government.
Be it enacted by the Legislature of West Virginia:
That sections seven hundred four, seven hundred six and
seven hundred seven, article seven, chapter sixty-a of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted, all to read as follows:
ARTICLE 7. WEST VIRGINIA CONTRABAND FORFEITURE ACT.
§60A-7-704. Procedures for seizure of forfeitable property.
(a) Seizure of property made subject to forfeiture by the provisions of this article may be made upon process issued by any
court of record having jurisdiction over the property.
(b) Notwithstanding the provisions of subsection (a) of this
section, seizure of property subject to forfeiture by the
provisions of this article may be made without process if:
(1) The seizure is incident to a lawful arrest or pursuant
to a search under a search warrant or an inspection warrant;
(2) The property subject to seizure has been the subject of
a prior judgment in favor of the state in a forfeiture proceeding
based upon this article;
(3) The appropriate person has probable cause to believe
that the property is directly or indirectly dangerous to health
or safety; or
(4) The appropriate person has probable cause to believe
that the property was used or intended for use in violation of
this chapter.
(c) In the event of seizure pursuant to subsection (b) of
this section, forfeiture proceedings shall be instituted within
ninety days of the seizure thereof.
(d) Property taken or detained under this section shall not
be subject to replevin, but is deemed to be in the custody of the
appropriate person, subject only to the orders and decrees of the
court having jurisdiction over the forfeiture proceedings. When property is seized under this article, the appropriate person
may:
(1) Place the property under seal;
(2) Remove the property to a place designated by him;
(3) Require the appropriate law-enforcement agency to take
custody of the property and remove it to an appropriate location
for disposition in accordance with law; or
(4) In the case of seized moneys, securities or other
negotiable instruments, place the assets in any interest-bearing
depository insured by an agency of the federal government.
The requirements of this subsection pertaining to the
removal of seized property are not mandatory in the case of real
property and appurtenances thereto.
§60A-7-706. Disposition of forfeited moneys, securities or
other negotiable instruments; distribution of
proceeds.
(a) Whenever moneys, securities or other negotiable
instruments are forfeited under the provisions of this article,
such proceeds shall be distributed as follows:
(1) Ten percent of the proceeds shall be tendered to the
office of the prosecuting attorney which initiated the forfeiture
proceeding;
(2) The balance shall be deposited in a special law-enforcement investigation fund. The fund may be placed in any
interest-bearing depository insured by an agency of the federal
government. The fund shall be administered by the chief of the
law-enforcement agency that seized the forfeited property.
(b) No funds shall be expended from the special law-
enforcement investigation fund except as follows:
(1) In the case of the funds belonging to the department of
public safety, the funds shall only be expended at the direction
of the superintendent of the department and in accordance with
the provisions of section fifteen, article two, chapter five-a of
this code and the provisions of subsection (j), section two,
article two, chapter twelve of this code;
(2) In the case of funds belonging to the office of either
the sheriff or prosecuting attorney of any county in which the
special fund has been created, the funds therein may only be
expended in the manner provided in sections four and five,
article five, chapter seven of this code; and
(3) In the case of funds belonging to the police department
of any municipality in which the special fund has been created,
the funds therein may only be expended in the manner provided in
section twenty-two, article thirteen, chapter eight of this code.
§60A-7-707. Disposition of other forfeited property;
distribution of proceeds.
(a) When property other than that referred to in section
seven hundred six of this article is forfeited under this
article, the circuit court ordering the forfeiture, upon
application by the prosecuting attorney or the chief of the law-
enforcement agency that seized said forfeited property, may
direct that:
(1) Title to the forfeited property be vested in the law-
enforcement agency so petitioning; or
(2) The law-enforcement agency responsible for the seizure
retain the property for official use; or
(3) The forfeited property shall be offered at public
auction to the highest bidder for cash. Notice of such public
auction shall be published as a Class III legal advertisement in
accordance with article three, chapter fifty-nine of this code.
The publication area shall be the county where the public auction
will be held.
(b) When a law-enforcement agency receives property pursuant
to this section, the court may, upon request of the prosecuting
attorney initiating the forfeiture proceeding, require the law-
enforcement agency to pay unto the office of said prosecuting
attorney a sum not to exceed ten percent of the value of the
property received to compensate said office for actual costs and
expenses incurred.
(c) The proceeds of every public sale conducted pursuant to
this section shall be paid and applied as follows: First, to the
balance due on any security interest preserved by the court;
second, to the costs incurred in the storage, maintenance and
security of the property; third, to the costs incurred in selling
the property.
(d) Any proceeds of a public sale remaining after
distribution pursuant to subsection (c) of this section shall be
distributed as follows:
(1) Ten percent of such proceeds shall be tendered to the
office of the prosecuting attorney who initiated the forfeiture
proceeding.
(2) The balance shall be deposited in a special law-
enforcement investigation fund. Such fund shall be administered
by the chief of the law-enforcement agency that seized the
forfeited property sold and shall take the form of an interest-
bearing account with any interest earned to be compounded to the
fund. Any funds deposited in the special law-enforcement
investigative fund pursuant to this article shall be expended
only to defray the costs of protracted or complex investigations,
to provide additional technical equipment or expertise, to
provide matching funds to obtain federal grants or for such other
law-enforcement purposes as the chief of the law-enforcement agency may deem appropriate; however, these funds may not be
utilized for regular operating needs.
(e) If more than one law-enforcement agency was
substantially involved in effecting the seizure and forfeiture of
property, the court wherein the petition for forfeiture was filed
shall equitably distribute the forfeited property among the law-
enforcement agencies. In the event of a public sale of such
property pursuant to subsection (a) of this section, the court
shall equitably distribute any proceeds remaining after
distribution pursuant to subsection (c) and subdivision (1),
subsection (d) of this section among such law-enforcement
agencies for deposit into their individual special law-
enforcement investigative fund. Equitable distribution shall be
based upon the overall contribution of the individual law-
enforcement agency to the investigation which led to the seizure.
(f) Upon the sale of any forfeited property for which title
or registration is required by law, the state shall issue a title
or registration certificate to any bona fide purchaser at a
public sale of the property conducted pursuant to subsection (a)
of this section. Upon the request of the law-enforcement agency
receiving, pursuant to the order of the court, or electing to
retain, pursuant to subsection (a) of this section, any forfeited
property for which title or registration is required by law, the state shall issue a title or registration certificate to the
appropriate governmental body.
(g) Any funds expended pursuant to the provisions of this
section, shall only be expended in the manner provided in
subsection (b), section seven hundred five of this article.
(h) Every prosecuting attorney or law-enforcement agency
receiving forfeited property or proceeds from the sale of
forfeited property pursuant to this article shall submit an
annual report to the body which has budgetary authority over such
agency. Such report shall specify the type and approximate value
of all forfeited property and the amount of proceeds from the
sale of forfeited property received in the preceding year. No
county or municipality may use anticipated receipts of forfeited
property in their budgetary process.
(i) In lieu of the sale of any forfeited property subject to
a bona fide security interest preserved by an order of the court,
the law-enforcement agency receiving the forfeited property may
pay the balance due on any security interest preserved by the
court from funds budgeted to the office or department or from the
special fund and retain possession of the forfeited property for
official use pursuant to subsection (a) of this section.
(j) In every case where property is forfeited, disposition
of the forfeited property, in accordance with this article, shall be made within six months of the date upon which the court of
jurisdiction orders forfeiture. Should the office or agency
receiving the property fail either to place the property in
official use or dispose of the property in accordance with law,
the court of jurisdiction shall cause disposition of the property
to be made with any proceeds therefrom to be awarded to the
state.
(k) No disposition shall occur until all applicable periods
for filing a notice of intent to appeal has expired and no party
in interest shall have filed such notice. The filing of the
notice of intent to appeal shall stay any such disposition until
the appeal has been finally adjudicated or until the appeal
period of one hundred eighty days has expired without an appeal
having actually been taken or filed, unless a valid extension of
the appeal has been granted by the circuit court under the
provisions of section seven, article four, chapter fifty-eight of
this code.
(l) The special law-enforcement investigative funds of each
law-enforcement agency may be placed in an interest-bearing
depository insured by the federal government.