Introduced Version
Senate Bill 72 History
| Email
Key: Green = existing Code. Red = new code to be enacted
Senate Bill No. 72
(By Senator Miller)
____________
[Introduced February 13, 2013; referred to the Committee on the
Judiciary; and then to the Committee on Finance.]
____________
A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new article, designated §61-14-1, §61-14-2,
§61-14-3, §61-14-4, §61-14-5, §61-14-6, §61-14-7, §61-14-8,
§61-14-9, §61-14-10, §61-14-11, §61-14-12, §61-14-13, §61-14-
14, §61-14-15, §61-14-16, §61-14-17, §61-14-18, §61-14-19,
§61-14-20, §61-14-21 and §61-14-22, all relating to
establishment of the West Virginia Criminal and Civil
Forfeiture Act; establishing civil and criminal forfeiture
proceedings pertaining to property and assets used in,
acquired, gained or flowing from various criminal activities
and juvenile offenses; providing definitions; statement of
purpose of forfeitures; identifying property subject to
forfeiture; establishing exemptions; providing the state with
provisional title to property subject to forfeiture; establishing procedures for seizure of property; establishing
protections for innocent third-party owners and interest
holders; establishing a procedure for processing uncontested
forfeitures; establishing general procedures for challenging
and evaluating forfeiture procedures; providing for the filing
and processing of petitions for in rem forfeiture proceedings;
providing for the filing and processing and establishing
related procedures for in personam forfeiture proceedings;
allowing additional procedures applicable in criminal and
civil proceedings in which forfeiture of property is sought;
allowing for forfeiture of and execution on substitute
property under certain conditions; allowing for release of
seized property upon provision of adequate security bond or
deposit; providing certain exceptions and limitations;
establishing procedures for forfeiture; establishing burdens
of proof; providing for the seizure and disposition of
forfeited and other property; civil forfeiture action and
pretrial hardship release; establishing the crime of
interference with or diminishing forfeitable property;
providing right to trial by jury; creating standards and
procedures for care of property in law-enforcement custody;
providing provisions for the sale of forfeited property;
prioritizing and directing the application of proceeds and forfeiture funds; providing exceptions; and criminal
penalties.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new article, designated §61-14-1, §61-14-2,
§61-14-3, §61-14-4, §61-14-5, §61-14-6, §61-14-7, §61-14-8, §61-14-
9, §61-14-10, §61-14-11, §61-14-12, §61-14-13, §61-14-14, §61-14-
15, §61-14-16, §61-14-17, §61-14-18, §61-14-19, §61-14-20, §61-14-
21 and §61-14-22, all to read as follows:
ARTICLE 14. WEST VIRGINIA CRIMINAL AND CIVIL FORFEITURE ACT.
§61-14-1. Purpose and scope.
(a) The provisions of this article establish general
forfeiture guidelines and procedures to be followed in both civil
and criminal cases in which forfeiture of property or restitution
is sought for the specified crimes and offenses set forth in
subsection (c) of this section, when committed by adult offenders,
or their equivalent if committed by a juvenile offender.
(b) Forfeitures under this article shall be governed by all of
the following purposes:
(1) To provide economic disincentives and remedies to deter
and offset the economic effect of offenses by seizing and
forfeiting contraband, proceeds, and certain instrumentalities;
(2) To prioritize restitution for victims of offenses;
(3) To protect third parties from wrongful forfeiture of their
property; and
(4) To ensure that seizures and forfeitures of
instrumentalities are proportionate to the offense committed.
(c) Offenses for which property may be forfeited pursuant to
provisions of this article include any act or omission which, when
committed by an adult, constitutes one or more of the following
misdemeanor or felony offenses:
(1) Any of the following crimes of fraud:
(A) As defined in section nine, article eight, chapter thirty-
one-a of this code as against banking institutions;
(B) As defined in section eighteen, article twenty, chapter
forty-seven and section nineteen, article twenty, chapter forty-
seven of this code as against bingo;
(C) As defined in section eighteen, article twenty-one,
chapter forty-seven and section nineteen, article twenty-one,
chapter forty-seven of this code as against charitable raffles;
(D) As defined in section twenty-six, article two, chapter
fourteen as against claims against the state;
(E) As defined in section four, article three-c of this
chapter as against computer fraud;
(F) As defined in section twenty-four, article three of this
chapter as against credit cards;
(G) As defined in section twenty-four, article three of this
chapter as against disposing of property to defraud creditors;
(H) As defined in section thirteen, article two-a, chapter
seventeen-a of this code as against motor vehicle records;
(I) As defined in section forty, article three of this chapter
of this chapter as against obtaining food or lodging;
(J) As defined in section twenty-four, article three of this
chapter as against money, property and services;
(K) As defined in section forty-four, article three of this
chapter as against public utilities;
(L) As defined in sections twenty-four-a and twenty-four-b,
article three of this chapter as against telephone services;
(M) As defined in section fifty-seven, article three of this
chapter as against bogus receipts or universal product codes;
(2) Any crime against the elderly as "elderly" is defined in
section three-k, article five-p, chapter sixteen of this code;
(3) Any crime listed in section one, article eight-c of this
chapter as against child pornography,
(4) Any crime listed in section thirteen, article two of this
chapter as against extortion;
(5) Any crime listed in section fourteen, article two of this
chapter as against abduction, kidnaping or concealing of a child;
(6) Any crime listed in section five, article eight of this chapter as against prostitution and houses of ill fame and
assignation;
(7) Any crime listed in section fifty-four, article three of
this chapter as against identity theft; and
(8) Any crime listed in section twenty-four, article six of
this chapter as against terrorist activities.
(d) Offenses for which property may be forfeited pursuant to
provisions of this article also include any comparable equivalent
act or omission committed by a juvenile, which, if committed by an
adult, would constitute any of the misdemeanor of felony offenses
listed in subsection (c) of this section.
(e) The provisions of this article apply to any act or
omission that could be charged as a felony or misdemeanor under the
listed statutes, or an equivalent juvenile offense, whether or not
a formal criminal prosecution or delinquent child proceeding is
pending at the time the forfeiture is initiated.
(f) The seizure and forfeiture provisions of this article do
not apply to:
(1) Any offenses in violation of article three-a, chapter
sixty of this code, relating to sales by retail liquor licensees;
(2) Any offenses in violation of article four, chapter sixty
of this code, relating to licenses under the state control of
alcoholic liquors;
(3) Any offenses in violation of article six, chapter sixty of
this code, relating to miscellaneous provisions under the state
control of alcoholic liquors; or
(4) Any offenses in violation of chapter sixty-a, commonly
known as the "Uniform Controlled Substances Act".
(g) The provisions of this article do not apply to or amend
the provisions of article seven, chapter sixty-a of this code,
commonly known as the "West Virginia Contraband Forfeiture Act".
§61-14-2. Definitions.
As used in this article:
(1) "Aircraft" has the same meaning as described in section
one, article two-a, chapter twenty-nine of this code.
(2) "Computers," "computer networks," "computer systems,"
"computer software," and "telecommunications device" have the same
meanings as described in section three, article three-c, chapter
sixty-one of this chapter.
(3) "Financial institution" means a bank, credit union,
savings and loan association, or a licensee or registrant as
defined in section two, article one, chapter thirty-one-a of this
code.
(4) "Firearm" and "deadly weapon" have the same meanings as in
section two, article seven of this chapter.
(5) "Innocent person" includes any bona fide purchaser of property that is subject to forfeiture, including any person who
establishes a valid claim to or interest in the property in
accordance with the provisions of section seven, chapter sixty-a of
this code and any victim of an alleged offense.
(6) "Instrumentality" means property otherwise lawful to
possess that is used in or intended to be used in an offense. An
"instrumentality" may include, but is not limited to, a firearm, a
mobile instrumentality, a computer, a computer network, a computer
system, computer software, a telecommunications device, money, and
any other means of exchange.
(7) "Law-enforcement officer" includes, but is not limited to,
the definition contained in section three, article ten, chapter
fifteen of this code and the office of the prosecutor.
(8) "Mobile instrumentality" means an instrumentality that is
inherently mobile and used in the routine transport of persons.
"Mobile instrumentality" includes, but is not limited to, any
vehicle, any watercraft, and any aircraft.
(9) "Money" has the same meaning as in section one, article
six, chapter forty-seven of this code.
(10) "Offense" means any act or omission that could be charged
as a criminal offense or a delinquent act, whether or not a formal
criminal prosecution or delinquent child proceeding began at the
time the forfeiture is initiated.
(11) "Proceeds" means both of the following:
(A) In cases involving unlawful goods, services, or
activities, "proceeds" means any property derived directly or
indirectly from an offense. "Proceeds" may include, but is not
limited to, money or any other means of exchange. "Proceeds" is
not limited to the net gain or profit realized from the offense.
(B) In cases involving lawful goods or services that are sold
or provided in an unlawful manner, "proceeds" means the amount of
money or other means of exchange acquired through the illegal
transactions resulting in the forfeiture, less the direct costs
lawfully incurred in providing the goods or services. The lawful
costs deduction does not include any part of the overhead expenses
of, or income taxes paid by, the entity providing the goods or
services. The alleged offender or delinquent child has the burden
to prove that any costs are lawfully incurred.
(12) "Property" means "property" as defined in section ten,
article two, chapter two of this code and any benefit, privilege,
claim, position, interest in an enterprise, or right derived,
directly or indirectly, from the offense.
(13) "Property subject to forfeiture" includes contraband and
proceeds and may include instrumentalities as provided in this
article.
(14) "Prosecutor" means any duly elected or appointed prosecutor or special prosecutor.
(15) "Vehicle" has the same meaning as in section four,
article one, chapter seventeen and section one, article one,
chapter seventeen-b of this code.
(16) "Watercraft" means any motorized or nonmotorized vessel.
§61-14-3. Property subject to forfeiture; exemptions; burden of
proof.
(a) The following property is subject to forfeiture to the
state or a political subdivision pursuant to this article:
(1) Contraband involved in any offense set forth in
subsections (c) and (d), section one of this article;
(2) Proceeds derived from or acquired through the commission
of any offense set forth in subsections (c) and (d), section one of
this article;
(3) An instrumentality that is used in or intended to be used
in the commission or facilitation of any offense listed in
subsections (c) and (d) of section one of this article: Provided,
That the use or intended use is consistent with an attempt to
commit, complicity in committing or a conspiracy to commit the
described offense.
(b) In determining whether an alleged instrumentality was used
in or was intended to be used in the commission or facilitation of
an offense or an attempt, complicity, or conspiracy to commit an offense in a manner sufficient to warrant its forfeiture, the trier
of fact shall consider the following factors the trier of fact
determines are relevant:
(1) Whether the offense could not have been committed or
attempted but for the presence of the instrumentality;
(2) Whether the primary purpose in using the instrumentality
was to commit or attempt to commit the offense;
(3) The extent to which the instrumentality furthered the
commission of, or attempt to commit, the offense.
(c) All property, including all interests in such property,
described in a statute providing for its forfeiture is subject to
forfeiture. However:
(1) A vehicle used by any person as a common carrier in the
transaction of business as a common carrier may not be forfeited
under the provisions of this article unless it appears that the
owner or other person in charge of the vehicle was a consenting
party or privy to the act or omission giving rise to the forfeiture
or know or had reason to know of it.
(2) A vehicle may not be forfeited under the provisions of
this article for any act or omission established by the owner to
have been committed or omitted by a person other than the owner
while the vehicle was unlawfully in the possession of a person
other than the owner in violation of the criminal laws of this state or of the United States.
(3) An owner's or interest holder's interest may not be
forfeited under this article if the owner or interest establishes
all of the following:
(A) He or she acquired the interest before or during the
conduct giving rise to forfeiture;
(B) He or she is a bonafide purchaser for value not knowingly
taking part in an illegal transaction; and
(C) Her or she at the time of the purchase and at all times
after the purchase and before the filing of a lien notice or the
provisions of notice of pending forfeiture or the filing and notice
of a civil or criminal proceeding relating to the property,
whichever is earlier, was reasonably without notice of the act or
notice of the act or omission giving rise to the forfeiture and was
reasonably without cause to believe that the property was subject
to forfeiture.
(4) An owner's or interest holder's interest may not be
forfeited under this article if the owner or interest holder
establishes all of the following:
(A) He or she acquired the interest before or during the
conduct giving rise to forfeiture; and
(B) He or she did not know and could not reasonably have known
of the act or omission which gave rise to the forfeiture, or that it was likely to occur.
(d) In any forfeiture action under the provisions of sections
eleven, twelve or thirteen of this article, if a property owner or
third party claims lawful interest in the subject property alleged
to be proceeds, the state or political subdivision has provisional
title and a right to hold the property if it proves both of the
following by a preponderance of the evidence:
(1) The interest in the property was acquired by the alleged
offender or delinquent child during the commission of the offense
or within a reasonable time after that period; and
(2) There is no likely source for the interest in the property
other than as proceeds derived from or acquired through the
commission of the offense.
(e) If the alleged offender or delinquent child claims that
the property was acquired, in whole or in part, with other lawful
assets, the alleged offender or delinquent child shall have the
burden to prove by a preponderance of the evidence the amount of
any direct costs lawfully incurred.
§61-14-4. Provisional title to property subject to forfeiture.
The state or political subdivision acquires provisional title
to property subject to forfeiture under this article upon a
person's commission of an offense giving rise to forfeiture,
subject to third party claims and a final adjudication under the provisions of this article. Provisional title authorizes the state
or political subdivision to seize and hold the property, and to act
to protect the property under this section before any proceeding
under this article. Title to the property vests with the state or
political subdivision when the trier of fact renders a final
forfeiture verdict or order under the provisions of this article,
but that title is subject to third party claims adjudicated under
those sections.
§61-14-5. Seizure of property.
(a) Property subject to forfeiture under this article may be
seized for forfeiture by a law-enforcement officer:
(1) On process issued pursuant to the Rules of Civil Procedure
or the provisions of this article including a seizure warrant.
(2) By making a seizure for forfeiture on property seized on
process issued pursuant to law.
(3) By making a seizure for forfeiture without court process
if any of the following is true:
(A) The seizure for forfeiture is of property seized incident
to an arrest or search.
(B) The property subject to seizure for forfeiture has been
the subject of a prior judgment in favor of this state or any other
state or the federal government in a forfeiture proceeding.
(C) The law-enforcement officer has probable cause to believe that the property is subject to forfeiture.
(b) Property subject to forfeiture under this article may be
seized for forfeiture by placing the property under constructive
seizure. Constructive seizure may be made by posting notice of
seizure for forfeiture on the property or by filing notice of
seizure for forfeiture or notice of pending forfeiture in any
appropriate public record relating to the property.
(c) The court shall determine probable cause for seizure
before real property may be seized for forfeiture, unless the
seizure is pursuant to a constructive seizure or the filing of a
lis pendens. The court may make its determination ex parte if the
state demonstrates that notice and an opportunity to appear would
create a risk of harm to the public safety or welfare, including
the risk of physical injury or the likelihood of property damage or
financial loss.
(d) The court shall determine probable cause for seizure
before property may be seized for forfeiture as a substitute asset
pursuant to subsection (a) of section thirteen of this article,
unless the seizure is pursuant to a constructive seizure or the
filing of a lien or lis pendens. The court may issue a seizure
warrant for such property if it determines that there is probable
cause to believe that the property is subject to forfeiture and is
not available for seizure for forfeiture for any reason described in subsection (a), section thirteen of this article. The
determinations shall be made ex parte unless real property is to be
seized and subsection (c) of this section requires notice and an
opportunity to appear.
(e) In establishing a preponderance of the evidence and in
determining probable cause for seizure and for forfeiture, a
rebuttable presumption exists that the property of any person is
subject to forfeiture if the state establishes all of the following
by the standard of proof applicable to that proceeding:
(1) Conduct giving rise to forfeiture occurred.
(2) The person acquired the property during the period of the
conduct giving rise to forfeiture or within a reasonable time after
that period.
(3) There is no likely source for the property other than the
conduct giving rise to forfeiture.
(f) In establishing a preponderance of the evidence and in
determining probable cause for seizure and for forfeiture, the fact
that money or any negotiable instrument was found in proximity to
contraband or to instrumentalities of an offense gives rise to an
inference that the money or instrument was the proceeds of
contraband or was used or intended to be used to facilitate
commission of the offense.
§61-14-6. Powers and duties of law-enforcement officers and agencies.
(a) In the event of a seizure for forfeiture under section
five of this article, the property is not subject to replevin,
conveyance, sequestration or attachment but is deemed to be in the
custody of the law-enforcement agency making the seizure for
forfeiture. The seizing agency or the attorney for the state may
authorize the release of the seizure for forfeiture of the property
if forfeiture or retention is unnecessary, may transfer the
property to any other state or federal agency or may transfer the
action to another attorney for the state by discontinuing
forfeiture proceedings in favor of forfeiture proceedings initiated
by the other agency or attorney. An action pursuant to this
article shall be consolidated with any other action or proceeding
pursuant to this article relating to the same property on motion by
the attorney for the state in either action.
(b) If property is seized for forfeiture under section five of
this article, pending forfeiture and final disposition, the seizing
agency may do any of the following:
(1) Remove the property to a storage area for safekeeping or,
if the property is a negotiable instrument or money, deposit it in
an interest-bearing account.
(2) Remove the property to a place designated by the court.
(3) Provide for another custodian or agency to take custody of the property and remove it to an appropriate location within the
jurisdiction of the court.
(c) As soon as practicable after seizure for forfeiture, the
seizing agency shall conduct an inventory and estimate the value of
the property seized. Within twenty days the seizing agency or the
attorney for the state shall make reasonable efforts to provide
notice of seizure for forfeiture to all persons known to have an
interest in the seized property.
(d) A person who acts in good faith and in a reasonable manner
to comply with an order of the court or a request of a law-
enforcement officer is not liable to any person for acts done in
compliance with the order or request.
(e) A possessory lien of a person from whose possession
property is seized is not affected by the seizure.
(f) If a seizure is for forfeiture under section five of this
article, the seizing agency shall send to an attorney for the state
a written request for forfeiture within twenty days, which shall
include a statement of facts and circumstances of the seizure
including the names of witnesses then known, the appraised or
estimated value of the property and a summary of the facts relied
on for forfeiture.
(g) An owner of property seized for forfeiture may obtain the
release of the seized property by posting with the attorney for the state a surety bond or cash in an amount equal to the full fair
market value of the property as determined by the attorney for the
state. The state may refuse to release the property if any of the
following applies:
(1) The bond or cash tendered is inadequate.
(2) The property is retained as contraband or evidence.
(3) The property is particularly altered or designed for use
in conduct giving rise to forfeiture.
(h) If an owner of property posts a surety bond or cash and
the property is forfeited the court shall forfeit the surety bond
or cash in lieu of the property.
§61-14-7. Notice of pending forfeiture.
Whenever notice of pending forfeiture is required under this
article it shall be given or provided in one of the following ways
and is effective at the time of personal service, publication or
the mailing of written notice, whichever is earlier:
(a) If the owner's or interest holder's name and current
address are known by either:
(1) Personal service.
(2) Mailing a copy of the notice by certified mail to the
address.
(b) If the owner's or interest holder's interest is required
by law to be on record with a county recorder's office, the Secretary of State, the Department of Transportation Motor Vehicle
Division, the Game and Fish Department, or another state or federal
licensing agency in order to perfect an interest in the property,
but his or her current address is not known, by mailing a copy of
the notice by certified mail to any address on the record.
(c) If the owner's or interest holder's address is not known,
and is not on record as provided in paragraph (b) of this section,
or if his or her interest is not known, by publication in one issue
of a newspaper of general circulation in the county in which the
seizure occurs.
§61-14-813-430813-4308. Commencement of proceedings.
(a) The attorney for the state shall determine whether it is
probable that the property is subject to forfeiture and, if so, may
cause the initiation of uncontested or judicial proceedings against
the property. If, on inquiry and examination, the attorney
determines that the proceedings probably cannot be sustained or
that justice does not require the institution of such proceedings,
he or she shall notify the seizing agency and immediately authorize
the release of the seizure for forfeiture on the property or on any
specified interest in it.
(b) If the state fails to initiate forfeiture proceedings
against property seized for forfeiture by notice of pending
forfeiture within sixty days after its seizure for forfeiture, or fails to pursue forfeiture of such property on which a timely claim
has been properly filed by filing a complaint, information or
indictment pursuant to section eleven or section twelve of this
article within sixty days after notice of pending forfeiture or, if
uncontested forfeiture has been made available, within sixty days
after a declaration of forfeiture, whichever is later, the property
shall be released from its seizure for forfeiture on the request of
an owner or interest holder, pending further proceedings pursuant
to this article, which shall be commenced within two years after
actual discovery of the last act giving rise to forfeiture.
(c) If the property sought to be forfeited is real property,
including fixtures, the attorney for the state may file a lis
pendens or a notice of pending forfeiture with respect to the
property with the county recorder of the county in which the
property is located, without a filing fee or other charge.
§61-14-9. Uncontested forfeiture.
If a forfeiture is authorized by law, the attorney for the
state may make uncontested civil forfeiture available to owners of
and interest holders in personal property in the following manner:
(a) If the attorney for the state in his or her discretion
makes uncontested forfeiture available, he or she shall provide
notice of pending forfeiture by giving notice within thirty days
after seizure for forfeiture as provided in section seven of this article to all persons known to have an interest who have not
previously received the notice.
(b) An owner of or interest holder in the property may elect
to file either a claim with the court within thirty days after the
notice or a petition for remission or mitigation of forfeiture with
the attorney for the state within thirty days after the notice and
not after a complaint has been filed, but may not file both. The
claim or petition shall comply with the requirements for claims in
subsections (e) and (f) of section eleven of this article.
(c) The following apply if one or more owners or interest
holders timely file a petition for remission or mitigation:
(1) The attorney for the state shall inquire into whether the
property is subject to forfeiture and the facts and circumstances
surrounding petitions for remission or mitigation of forfeiture.
(2) The attorney for the state shall provide the seizing
agency and the petitioner with a written declaration of forfeiture,
remission or mitigation of any or all interest in the property in
response to each petition within ninety days after the effective
date of the notice of pending forfeiture unless one or more
petitioners request an extension of time in writing or unless the
circumstances of the case require additional time, in which case
the attorney for the state shall notify the petitioner in writing
and with specificity within the ninety-day period that the circumstances of the case require additional time and further
notify the petitioner of the expected decision date. The mailing
of the declaration may not be more than one hundred twenty days
after the date of the state's notice of pending forfeiture.
(3) An owner or interest holder in any property declared
forfeited may file a claim as described in subsections (e) and (f)
of section eleven in this article, in the circuit court in the
county in which the uncontested forfeiture was declared within
thirty days after the mailing of the declaration of forfeiture.
(4) If a declaration of forfeiture pursuant to this section is
followed by a timely claim, or at any other time, the attorney for
the state may elect to proceed as provided for judicial
forfeitures.
(5) If no petitioner files a claim in the court within thirty
days after the mailing of the declaration of forfeiture, the
declaration becomes final and the attorney for the state shall
proceed as provided in sections fourteen and fifteen of this
article.
(d) If no petitions for remission or mitigation or claims are
timely filed, the attorney for the state shall proceed as provided
in sections fourteen and fifteen of this article.
(e) If one or more petitions for remission or mitigation and
one or more claims are timely filed, no complaint for forfeiture need be filed by the state until sixty days after an uncontested
declaration of forfeiture.
(f) If a judicial forfeiture proceeding follows a notice of
pending forfeiture making uncontested civil forfeiture available:
(1) A duplicate or repetitive notice or claim is not required.
The judicial proceedings shall adjudicate all timely filed claims.
If a claim has been timely filed pursuant to subsections (b) or (c)
of this section it shall be determined in a judicial forfeiture
proceeding after the commencement of such a proceeding pursuant to
subsection (a), section eleven or subsection (a), section twelve of
this article.
(2) The declarations of forfeiture, remission or mitigation
responsive to all petitioners who subsequently filed claims are
void and shall be regarded as rejected offers to compromise.
§61-14-10. Judicial forfeiture proceedings; general.
(a) In any proceeding pursuant to this article, the court, on
application of the state, may enter any restraining order or
injunction, require the execution of satisfactory performance
bonds, create receiverships, appoint conservators, appraisers,
accountants or trustees or take any other action to seize, secure,
maintain or preserve the availability of property subject to
forfeiture under this article, including a warrant for its seizure,
whether prior or subsequent to the filing of a notice of pending forfeiture, complaint, indictment or information.
(b) If property is seized for forfeiture without a prior
judicial determination of probable cause, an order of forfeiture or
a hearing pursuant to subsection (d), section twelve of this
article, the court, on an application filed by an owner of or
interest holder in the property within fifteen days after notice of
its seizure for forfeiture or actual knowledge of it, whichever is
earlier, and complying with the requirements for claims in
subsections (e) and (f) of section eleven of this article, may
issue an order to show cause to the seizing agency for a hearing on
the sole issue of whether probable cause for forfeiture of the
property then exists. Notice of the order to show cause hearing
must be served upon the attorney for the state at least five
working days before the hearing is held. If the court finds that
no probable cause for forfeiture of the property then exists or if
the state elects not to contest the issue, the property seized for
forfeiture from the applicant shall be released to the custody of
the applicant pending the outcome of a judicial proceeding pursuant
to this article. If the court finds that probable cause for the
forfeiture of the property then exists, the court shall not order
the property released, except as provided in subsection (g),
section six of this article.
(c) A defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of
the criminal offense of which he or she was convicted in any
proceeding pursuant to this article. For the purposes of this
article, a conviction may result from a verdict or plea including
a no contest plea.
(d) In any judicial forfeiture hearing, determination or other
proceeding pursuant to this article, the applicant, petitioner or
claimant must establish by a preponderance of the evidence that he
or she is an owner of or interest holder in the property seized for
forfeiture before other evidence is taken. The burden of proving
the standing of the claimant and the existence of the exemption is
on the claimant or party raising the claim, and it is not necessary
to negate the standing of any claimant or the existence of any
exemption in any notice, application, complaint, information or
indictment.
(e) In hearings and determinations pursuant to this article:
(1) The law of evidence relating to civil actions applies
equally to all parties, including the state, an applicant, a
petitioner, a claimant and a defendant, on all issues required to
be established by a preponderance of the evidence.
(2) The court shall receive and consider, in making any
determination of probable cause or reasonable cause, all evidence
and information that would be permissible in determining probable cause at a preliminary hearing, at a grand jury or by a magistrate
pursuant to section thirteen of this article, together with
inferences from the evidence and information.
(3) Evidence may not be suppressed in any hearing pursuant to
this article on the ground that its acquisition by search or
seizure violated constitutional protections applicable in criminal
cases relating to unreasonable searches or seizures.
(f) All property, including all interests in such property,
declared forfeited under this title vests in this state on the
commission of the act or omission giving rise to forfeiture under
this article together with the proceeds of the property after such
time. Any such property or proceeds subsequently transferred to
any person are subject to forfeiture and thereafter shall be
ordered forfeited unless the transferee claims and establishes in
a hearing pursuant to this article the showings set out in section
three of this article.
(g) On the motion of a party and after notice to any persons
who are known to have an interest in the property and an
opportunity to be heard, the court may order property that has been
seized for forfeiture sold, leased, rented or operated to satisfy
an interest of any interest holder who has timely filed a proper
claim or to preserve the interests of any party. The court may
order a sale or any other disposition of the property if the property may perish, waste, be foreclosed on or otherwise be
significantly reduced in value or if the expenses of maintaining
the property are or will become greater than its fair market value.
If the court orders a sale, the court shall designate a third party
or state property manager to dispose of the property by public sale
or other commercially reasonable method and shall distribute the
proceeds in the following order of priority:
(1) Payment of reasonable expenses incurred in connection with
the sale.
(2) Satisfaction of exempt interests in the order of their
priority.
(3) Preservation of the balance, if any, in the actual or
constructive custody of the court in an interest-bearing account,
subject to further proceedings under this article.
(h) If the property is disposed of pursuant to subsection (g)
of this section, a successful claimant may apply to the court for
actual monetary damages suffered, if any, as a result of the
disposal of the property, but the state, a political subdivision of
the state, or an officer, employee or agent of any of them shall
not in any event be liable under this article for incidental or
consequential damages or for damages either:
(1) That could have been avoided if the claimant had made full
and immediate disclosure to the attorney for the state of facts or evidence known or available to the claimant.
(2) In excess of the fair market value of the property seized
for forfeiture at the time of its seizure plus interest from the
time of its seizure for forfeiture.
(i) If an indictment or information is filed alleging the same
conduct as the conduct giving rise to forfeiture in a civil
forfeiture proceeding, the court in the civil proceeding may stay
civil discovery against the criminal defendant and against the
state in the civil proceeding until the defendant's criminal trial
is completed. Before staying civil discovery, the court shall make
adequate provision to prevent any loss or expense to any victim or
party resulting from the delay, including loss or expense due to
maintenance, management, insurance, storage or preservation of the
availability of the property or due to depreciation in the value of
the property.
(j) A person claiming to be an owner of or interest holder in
property seized for forfeiture under this article may not commence
or maintain any action against the state concerning the validity of
the alleged interest other than as provided in this article.
§61-14-11. Judicial in rem forfeiture proceedings.
(a) If a forfeiture is authorized by law, it shall be ordered
by a court on an action in rem brought by the state pursuant to a
notice of pending forfeiture or a verified complaint for forfeiture. The state may serve the complaint in the manner
provided by section seven of this article or by the West Virginia
Rules of Civil Procedure.
(b) A civil in rem action may be brought by the state in
addition to or in lieu of the civil and criminal in personam
forfeiture procedures set forth in sections eleven, twelve and
thirteen of this article or the uncontested civil forfeiture
procedures set forth in section nine of this article. Judicial in
rem forfeiture proceedings are in the nature of an action in rem
and are governed by the West Virginia Rules of Civil Procedure
unless a different procedure is provided by law.
(c) On the filing of a civil in rem action by the state
circuit court the clerk of the court in which the action is filed
shall provide, and the attorney for the state may provide, the
notice of pending forfeiture required by section seven of this
article unless the files of the clerk of the court reflect that
such notice has previously been made.
(d) An owner of or interest holder in the property may file a
claim against the property, within thirty days after the notice,
for a hearing to adjudicate the validity of his or her claimed
interest in the property. The hearing shall be held by the court
without a jury.
(e) The claim shall be signed by the claimant under penalty of perjury and shall set forth all of the following:
(1) The caption of the proceeding as set forth on the notice
of pending forfeiture or complaint and the name of the claimant.
(2) The address at which the claimant will accept future
mailings from the court or attorney for the state.
(3) The nature and extent of the claimant's interest in the
property.
(4) The date, the identity of the transferor and the
circumstances of the claimant's acquisition of the interest in the
property.
(5) The specific provisions of this article relied on in
asserting that the property is not subject to forfeiture.
(6) All facts supporting each such assertion.
(7) Any additional facts supporting the claimant's claim.
(8) The precise relief sought.
(f) Copies of the claim shall be mailed to the seizing agency
and to the attorney for the state. An extension of time for the
filing of a claim may not be granted.
(g) Within twenty days after service of the complaint, the
claimant shall file and serve the answer to the complaint and the
answers to interrogatories and requests for admission if any were
served with the complaint. The answer shall be signed by the owner
or interest holder under penalty of perjury, shall comply with the West Virginia Rules of Civil Procedure relating to answers and
shall comply with all of the requirements for claims. If no proper
answer is timely filed, the attorney for the state shall proceed as
provided in sections fourteen and fifteen with ten days' notice to
any person who has timely filed a claim that has not been stricken
by the court.
(h) At the time of filing its pleadings or at any other time
not less than thirty days before the hearing, the state and any
claimant who has timely answered the complaint may serve discovery
requests on any other party, the answers or response to which shall
be due in twenty days, and may take the deposition of any person at
any time after the expiration of fifteen days after the filing and
service of the complaint. Any party may move for summary judgment
at any time after an answer or responsive pleading is served and
not less than thirty days before the hearing. The state, as the
party defending against the claim, may make offers of judgment at
any time more than ten days before the hearing begins.
(i)Forfeited property to the court at any time before the
earlier of the entry of a final judgment or an application for an
order of the forfeiture of the property, or if a hearing pursuant
to subsections (k), (l) and (m) of this section is held, not less
than thirty days before the hearing. The request shall be signed
by the requestor under penalty of perjury and shall set forth all of the following:
(1) The caption of the proceeding as set forth on the notice
of pending forfeiture or complaint and the name of the requestor.
(2) The address at which the requestor will accept future
mailings from the court or parties to the action.
(3) The property subject to forfeiture from which the
requestor seeks compensation.
(4) The nature of the economic loss sustained by the
requestor.
(5) All facts supporting each such assertion.
(6) Any additional facts supporting the request.
(7) The amount of economic loss for which the requestor seeks
compensation.
(j) If a proper request for compensation from forfeited
property is timely filed, the court shall hold a hearing to
establish whether there is a factual basis for the request. The
requestor has the burden of establishing by a preponderance of the
evidence that the requestor is an injured person who sustained
economic loss.
(k) The hearing on the claim, to the extent practicable and
consistent with the interest of justice, shall be held sixty days
after all parties have complied with the disclosure required by
rule 26.1 of the West Virginia Rules of Civil Procedure. The court may consolidate the hearing on the claim with a hearing on any
other claim concerning the same property.
(l) At the hearing, the claimant may testify, present evidence
and witnesses on the claimant's own behalf and cross-examine
witnesses who appear at the hearing. The state may present
evidence and witnesses and cross-examine witnesses who appear at
the hearing.
(m) At the hearing, the state has the burden of establishing
by a preponderance of the evidence that the property is subject to
forfeiture. Any claimant who has previously established by a
preponderance of the evidence that the claimant is an owner of or
interest holder in the property has the burden of establishing by
a preponderance of the evidence that the claimant's interest in the
property is exempt from forfeiture.
(n) In accordance with its findings at the hearing:
(1) The court shall order an interest in property returned or
conveyed to a claimant, if any, who has established by a
preponderance of the evidence that the claimant is an owner of or
interest holder in the property if either of the following applies:
(A) The state has failed to establish by a preponderance of
the evidence that the interest is subject to forfeiture.
(B) The claimant has established by a preponderance of the
evidence that the interest is exempt from forfeiture.
(2) The court shall order all other property, including all
interests in the property, forfeited to this state and proceed
pursuant to sections fourteen and fifteen of this article.
(3) If the court finds that a requestor is an injured person
the court shall determine the amount of the injured person's
economic loss caused by the conduct giving rise to the forfeiture
of the designated property and shall require the following:
(A) If the designated property is not contraband and is not
altered or designed for use in conduct giving rise to forfeiture,
the attorney for the state shall sell the property as provided in
subsections (a) and (b) of section fifteen, and shall apply the
resulting balance to compensate the injured person's economic loss
in the amount found by the court.
(B) If the balance is insufficient to compensate the economic
loss of all injured persons the attorney for the state shall
distribute the balance among the injured persons according to a
method determined by the court.
(C) After compensation of all injured persons, the attorney
for the state shall transmit ten percent of the remaining balance,
if any, as set forth in sections nineteen and twenty of this
article.
§61-14-12. Judicial in personam proceedings.
(a) If a forfeiture is authorized by law, it shall be ordered by a court on proceedings by the state in an in personam civil or
criminal action pursuant to section thirteen of this article or any
other law providing for a forfeiture.
(b) Any complaint, information or indictment alleging or
charging one or more offenses included in section one, or any other
offense giving rise to forfeiture under this article, shall set
forth with reasonable particularity property that the state seeks
to forfeit pursuant to this section in that action, if any. The
court shall allow the allegation that particular new or different
or differently described property is subject to forfeiture in an in
personam criminal or civil case to be made at any time prior to the
date the case is actually tried unless the allegation is filed
fewer than twenty days before the case is actually tried, and the
court finds on the record that the defendant was in fact prejudiced
by the untimely filing and states reasons for these findings,
provided that when the allegation is filed, the state must make
available to the defendant a copy of any material information
concerning the allegation.
(c) In any proceeding pursuant to this section, the court, on
application of the state, may enter any order authorized by
subsection (a), section ten of this article, or take any other
action to seize, secure, maintain or preserve the availability of
property subject to forfeiture under this article, including a warrant for its seizure, whether before or after the filing of a
complaint, indictment or information.
(d) Notwithstanding subsection (e) of this section, a
temporary restraining order under this section may be entered on
application of the state without notice or an opportunity for a
hearing if the state demonstrates both that:
(1) There is probable cause to believe that the property with
respect to which the order is sought would, in the event of final
judgment or conviction, be subject to forfeiture under this
article.
(2) Provision of notice will jeopardize the availability of
the property for forfeiture. A temporary restraining order expires
within ten days after the date on which it is entered unless the
party against whom it is entered consents to an extension for a
longer period or unless after commencing a hearing the court enters
or is considering a preliminary injunction.
(e) Notice of the entry of the restraining order and an
opportunity for a hearing shall be afforded to persons known to
have an interest in the property, whether or not a temporary
restraining order is entered without notice. The hearing, however,
is limited to the issues of whether both:
(1) There is a probability that the state will prevail on the
issue of forfeiture and that failure to enter the order will result in the property being destroyed, conveyed, encumbered or further
encumbered, removed from the jurisdiction of the court, concealed
or otherwise made unavailable for forfeiture.
(2) The need to preserve the availability of property through
the entry of the requested order outweighs the hardship on any
owner, interest holder or defendant against whom the order is to be
entered.
(f) A hearing requested by any owner or interest holder
concerning an order entered under this section shall be held at the
earliest possible time and before the expiration of a temporary
order.
(g) On a determination of liability or the conviction of a
person for conduct giving rise to forfeiture under this article,
the court shall enter a judgment of forfeiture of the property
described in the forfeiture statute alleged and set out in the
complaint, information or indictment, as amended, and shall also
authorize the county attorney or Attorney General, their agents or
any peace officer to seize all property ordered forfeited that was
not previously seized or is not then under seizure. Following the
entry of an order declaring the property forfeited, the court, on
application of the state, may enter any order authorized by
subsection (a), section ten of this article or take any other
action to protect the interest of this state or a political subdivision in the property ordered forfeited. The filing of the
order of forfeiture in the appropriate public records perfects the
interest of the state in the property described in the order as of
the earlier of the date of the act or omission giving rise to
forfeiture or the date that a notice of seizure for forfeiture or
notice of pending forfeiture or lien was first filed in the
records, which entitles the state to all rights of a secured party
as to that property in addition to any other rights or remedies of
the state in relation to the property. Any income accruing to, or
derived from, an enterprise or any interest in an enterprise or
other property interest that is forfeited under this article is
also forfeited from the time of the conduct giving rise to
forfeiture. It may be used pending procedures subsequent to a
verdict or finding of liability to offset ordinary and necessary
expenses of the enterprise or property as required by law or that
are necessary to protect the interests of this state or a political
subdivision.
(h) Procedures subsequent to the verdict or finding of
liability and order of forfeiture shall be as follows:
(1) Following the entry of an order of forfeiture under this
subsection the clerk of the court shall, and the attorney for the
state may, give notice of pending forfeiture to all owners and
interest holders who have not previously been given notice, if any, in the manner provided in section seven of this article.
(2) An owner of or interest holder in property that has been
ordered forfeited pursuant to such action whose claim is not
precluded may file a claim as described in subsections (e) and (f),
section eleven of this article in the court for a hearing to
adjudicate the validity of his or her claimed interest in the
property within thirty days after initial notice of pending
forfeiture or after notice under paragraph (1) of this subsection,
whichever is earlier.
(3) The hearing on the claim, to the extent practicable and
consistent with the interest of justice, shall be held within sixty
days after the order of forfeiture. The court may consolidate the
hearing on the claim with a hearing on any other claim filed by a
person other than a party or defendant in the underlying action and
concerning the same property.
(4) The hearing shall be held by the court without a jury and
conducted in the manner provided in rem judicial forfeiture actions
including the provisions of section eleven, subsections (j) and
(k). In addition to testimony and evidence presented at the
hearing, the court shall consider the relevant portions of the
record of the underlying civil or criminal action that resulted in
the order of forfeiture.
(5) In accordance with its findings at the hearing, the court may amend the order of forfeiture if it determines that any
claimant has established by a preponderance of the evidence that
the claimant is an owner of or interest holder in the property if
either of the following applies:
(A) The state has failed to establish by a preponderance of
the evidence that the interest is subject to forfeiture under this
article.
(B) The claimant has established by a preponderance of the
evidence that the interest is exempt from forfeiture under section
three of this article.
In order to facilitate the identification or location of
property declared forfeited and to facilitate the disposition of
filed or subsequent claims pursuant to subsection (h)(2) of this
section, the court, on application of the state, may order that the
testimony of any witness relating to the property forfeited or
alleged to be subject to forfeiture be taken by deposition and that
any designated book, paper, document, record, recording, electronic
or otherwise, or other material which is not privileged be produced
at the same time and place and in the same manner as that provided
for the taking of depositions under the rules of civil procedure.
§61-14-13. Supplemental remedies.
(a) The court shall order the forfeiture of any other property
of a claimant or an in personam civil or criminal defendant up to the value of the claimant's or defendant's property that the court
finds is subject to forfeiture if any of the following
circumstances apply to the property:
(1) It cannot be located.
(2) It has been transferred or conveyed to, sold to or
deposited with a third party.
(3) It has been placed beyond the jurisdiction of the court.
(4) It has been substantially diminished in value by any act
or omission of the defendant.
(5) It has been commingled with other property which cannot be
divided without difficulty.
(6) It is subject to any interest that is exempt from
forfeiture.
(b) In addition to any other remedy provided by law, if property
subject to forfeiture is conveyed, alienated, encumbered, disposed of,
received, removed from the jurisdiction of the court, concealed or
otherwise rendered unavailable for forfeiture after the filing of a
lien notice or provision of notice of pending forfeiture or after the
filing and notice of a civil proceeding or criminal proceeding
alleging forfeiture under this article, whichever is earlier, the
state may institute an action in circuit court against the person
named in the lien or notice of pending forfeiture or the defendant in
the civil proceeding or criminal proceeding, and the court shall enter final judgment against the person named in the lien or notice of
pending forfeiture or the defendant in the civil proceeding or
criminal proceeding in an amount equal to the fair market value of the
property, together with reasonable investigative expenses and attorney
fees. If a civil proceeding under this article is pending, the action
shall be filed only in the court where the civil proceeding is
pending.
(c) This section does not limit the right of the state to obtain
any order or injunction, receivership, writ, attachment, garnishment
or other remedy authorized under this article or appropriate to
protect the interests of the state or available under other applicable
law.
§61-14-14. Seizure of forfeited or other property - Disposition.
(a) If no petitions for remission or mitigation or claims are
timely filed or if no petitioner files a claim in the court within
thirty days after the mailing of a declaration of forfeiture, the
attorney for the state shall apply to the court for an order of
forfeiture and allocation of forfeited property pursuant to section
fifteen of this article. On the state's written application showing
jurisdiction, notice and facts sufficient to demonstrate probable
cause for forfeiture, the court shall order the property forfeited to
the state.
(b) After the court's disposition of all claims timely filed under this article, the state has clear title to the forfeited
property and the court shall so order. Title to the forfeited
property and its proceeds is deemed to have vested in the state on the
commission of the act or omission giving rise to the forfeiture under
this article.
(c) If, in his or her discretion, the attorney for the state has
entered into a stipulation with an interest holder that the interest
holder has an interest that is exempted from forfeiture, the court, on
application of the attorney for the state, may release or convey
forfeited personal property to the interest holder if all of the
following are true:
(1) The interest holder has an interest which was acquired in the
regular course of business as a financial institution.
(2) The amount of the interest holder's encumbrance is readily
determinable and it has been reasonably established by proof made
available by the attorney for the state to the court.
(3) The encumbrance held by the interest holder seeking
possession is the only interest exempted from forfeiture and the order
forfeiting the property to the state transferred all of the rights of
the owner prior to forfeiture, including rights to redemption, to the
state.
(4) After the court's release or conveyance, the interest holder
shall dispose of the property by a commercially reasonable public sale, and within ten days of disposition shall tender to the state the
amount received at disposition less the amount of the interest
holder's encumbrance and reasonable expense incurred by the interest
holder in connection with the sale or disposal.
(d) On order of the court forfeiting the subject property, the
attorney for the state may transfer good and sufficient title to any
subsequent purchaser or transferee, and the title shall be recognized
by all courts, by this state and by all departments and agencies of
this state and any political subdivision.
(e) On entry of judgment for a claimant or claimants in any
proceeding to forfeit property under this article such property or
interest in property shall be returned or conveyed immediately to the
claimant or claimants designated by the court. If it appears that
there was reasonable cause for the seizure for forfeiture or for the
filing of the notice of pending forfeiture, complaint, information or
indictment, the court shall cause a finding to be entered, and the
claimant is not, in such case, entitled to costs or damages, nor is
the person or seizing agency that made the seizure, nor is the
attorney for the state liable to suit or judgment on account of such
seizure, suit or prosecution.
(f) The court shall order any claimant who fails to establish
that his or her entire interest is exempt from forfeiture under
section three of this article to pay the costs of any claimant who establishes that his or her entire interest is exempt from forfeiture
under section three of this article and the state's costs and expenses
of the investigation and prosecution of the matter, including
reasonable attorney fees.
§61-14-15. Seizure of forfeited or other property - disposition.
(a) Upon the entry of a forfeiture order under the provisions of
sections five, nine, eleven, twelve or thirteen of this article, if
necessary, the court shall order an appropriate law-enforcement
officer to seize the forfeited property on conditions that the court
considers proper. If necessary, the court shall order the person in
possession of the property to deliver the property by a specific date
to the law-enforcement agency involved in the initial seizure of the
property. The court shall deliver the order by personal service or
certified mail.
(b) With respect to property that is the subject of a forfeiture
order issued under the provisions of section five, nine, eleven,
twelve or thirteen of this article, the court that issued the order,
upon petition of the prosecutor who prosecuted the underlying offense
or act or brought the civil forfeiture action, may do any of the
following:
(1) Enter any appropriate restraining orders or injunctions;
require execution of satisfactory performance bonds; appoint
receivers, conservators, appraisers, accountants, or trustees; or take any other action necessary to safeguard and maintain the forfeited
property;
(2) Authorize the payment of rewards to persons who provide
information resulting in forfeiture of the property under this
article;
(3) Authorize the prosecutor to settle claims;
(4) Restore forfeited property to victims and grant petitions for
mitigation or remission of forfeiture;
(5) Authorize a stay of the forfeiture order pending appeal or
resolution of any claim to the property if requested by a person other
than the defendant or a person acting in concert with, or on behalf
of, the defendant.
(c) To facilitate the identification and location of property
that is the subject of a forfeiture order and to facilitate the
disposition of petitions for remission or mitigation issued under this
section, after the issuance of a forfeiture order and upon application
by the prosecutor, the court, consistent with the West Virginia Rules
of Civil Procedure, may order that the testimony of any witness
relating to the forfeited property be taken by deposition and that any
designated material that is not privileged be produced at the same
time and place as the testimony.
(d) The court shall order forfeiture of any other property of the
offender or delinquent child up to the value of the unreachable property if any of the following describe any property subject to a
forfeiture order under the provisions of section eleven, twelve or
thirteen of this article:
(1) It cannot be located through due diligence.
(2) It has been transferred, sold or deposited with a third
party.
(3) It has been placed beyond the jurisdiction of the court.
(4) It has been substantially diminished in value or has been
commingled with other property and cannot be divided without
difficulty or undue injury to innocent persons.
(e) After the state or political subdivision is granted clear
title under the provisions of section eleven, twelve or thirteen of
this article, the prosecutor shall direct disposition of the property
pursuant to this article, making due provisions for the rights of
innocent persons.
(f) Any interest in property not exercisable by, or transferable
for value to, the state or political subdivision shall expire and may
not revert to the offender or delinquent child who forfeited the
property. The offender or delinquent child may not purchase the
property at a sale under this article.
(g) Any income accruing to or derived from forfeited property may
be used to offset ordinary and necessary expenses related to the
property that are required by law or necessary to protect the interest of the state, political subdivision or third parties.
§61-14-16. Interference with or diminishing forfeitable property.
(a) A person may not destroy, damage, remove, or transfer
property that is subject to forfeiture or otherwise take any action in
regard to property that is subject to forfeiture with purpose to do
any of the following:
(1) Prevent or impair the state's or political subdivision's
lawful authority to take the property into its custody or control
under this article or to continue holding the property under its
lawful custody or control;
(2) Impair or defeat the court's continuing jurisdiction over the
person and property;
(3) Devalue property that the person knows, or has reasonable
cause to believe, is subject to forfeiture proceedings under this
article.
(b) (1) Whoever violates the provisions of this section is guilty
of interference with or diminishing forfeitable property.
(2) A person who interferes with or diminishes forfeitable
property is guilty of a felony and, upon conviction thereof, shall be
fined not more than $1,000 or imprisoned in a state correctional
facility not less than one year, or both fined and imprisoned.
§61-14-17. Right to trial by jury.
Parties to a forfeiture action under this article have a right to trial by jury as follows:
(a) In a criminal forfeiture action, the defendant has the right
to trial by jury.
(b) In a civil forfeiture action, the defendant, the state or
political subdivision and third party claimants have the right to
trial by jury.
§61-14-18. Forfeiture of property as instrumentality where value
disproportionate.
(a) Property may not be forfeited as an instrumentality under
this article to the extent that the amount or value of the property is
disproportionate to the severity of the offense. The owner of the
property shall have the burden of going forward with the evidence and
the burden to prove by a preponderance of the evidence that the amount
or value of the property subject to forfeiture is disproportionate to
the severity of the offense.
(b) Contraband and any proceeds obtained from the offense are not
subject to proportionality review under this section.
(c) In determining the severity of the offense for purposes of
forfeiture of an instrumentality, the court shall consider all
relevant factors including, but not limited to, the following:
(1) The seriousness of the offense and its impact on the
community, including the duration of the activity and the harm caused
or intended by the person whose property is subject to forfeiture;
(2) The extent to which the person whose property is subject to
forfeiture participated in the offense;
(3) Whether the offense was completed or attempted.
(d) In determining the value of the property that is an
instrumentality and that is subject to forfeiture, the court shall
consider relevant factors including, but not limited to, the
following:
(1) The fair market value of the property;
(2) The value of the property to the person whose property is
subject to forfeiture, including hardship to the person or to innocent
persons if the property were forfeited.
§61-14-19. Care of property in law-enforcement custody.
(a) (1) Any property that has been lost, abandoned, stolen,
seized pursuant to a search warrant, or otherwise lawfully seized or
forfeited and that is in the custody of a law-enforcement agency shall
be kept safely by the agency, pending the time it no longer is needed
as evidence or for another lawful purpose, and shall be disposed of
pursuant to the provisions of sections twenty and twenty-one of this
article.
(2) This article does not apply to the custody and disposal of
any of the following:
(A) Items seized under the provisions of:
(i) Article three-a, chapter sixty of this code, relating to sales by retail liquor licensees;
(ii) Article four, chapter sixty of this code, relating to
licenses under the state control of alcoholic liquors;
(iii) Article six, chapter sixty of this code, relating to
miscellaneous provisions under the state control of alcoholic liquors;
or
(iv) Article seven, chapter sixty-a of this code, commonly known
as the "West Virginia Contraband Forfeiture Act".
(B) Abandoned junk motor vehicles or other property of negligible
value;
(C) Property held by a department of rehabilitation and
correction institution that is unclaimed, that does not have an
identified owner, that the owner agrees to dispose of, or that is
identified by the department as having little value;
(D) Animals taken, and devices used in unlawfully taking animals,
under the provisions of:
(i) Section four, article ten, chapter seven of this code,
relating to custody and care of animals abandoned, neglected or
cruelly treated;
(ii) Section eight, article twenty, chapter nineteen of this
code, relating to dogs and cats, impounding and disposition;
(iii) Section twenty-three, article twenty, chapter nineteen of
this code, relating to dogs and cats, impounding and disposition;
(iv) Section five-a, article two, chapter twenty of this code,
relating to wildlife resources, forfeiture by person causing injury,
death or destruction of game of protected species of animal;
(v) Section five-c, article two, chapter twenty of this code,
relating to wildlife resources, protection of bald eagles and golden
eagles and forfeiture;
(vi) Section nineteen-a, article eight of this chapter, relating
to cruelty to animals; and
(vii) Section nineteen-a, article eight of this chapter, relating
to prohibiting animal fighting ventures.
(b)(1) Each law-enforcement agency that has custody of any
property that is subject to this section shall adopt and comply with
a written internal control policy that does all of the following:
(A) Provides for keeping detailed records as to the amount of
property acquired by the agency and the date property was acquired;
(B) Provides for keeping detailed records of the disposition of
the property, which shall include, but not be limited to, both of the
following:
(i) The manner in which it was disposed, the date of disposition,
detailed financial records concerning any property sold, and the name
of any person who received the property. The record shall not
identify or enable identification of the individual officer who seized
any item of property.
(ii) The general types of expenditures made with amounts that are
gained from the sale of the property and that are retained by the
agency, including the specific amount expended on each general type of
expenditure, except that the policy may not provide for or permit the
identification of any specific expenditure that is made in an ongoing
investigation.
(C) Complies with section twenty of this article if the agency
has a Law-enforcement Trust Fund or similar fund created under that
section.
(2) Each law-enforcement agency that during any calendar year has
any seized or forfeited property covered by this section in its
custody, including amounts distributed under section thirteen of this
article to its Law-enforcement Trust Fund or a similar fund created
for the West Virginia State Police, the State Tax Division or State
Board of Pharmacy, shall prepare a report covering the calendar year
that cumulates all of the information contained in all of the public
records kept by the agency pursuant to this section for that calendar
year. The agency shall send a copy of the cumulative report to the
Attorney General not later than March 1 in the calendar year following
the calendar year covered by the report.
(3) The records kept under the internal control policy shall be
open to public inspection during the agency's regular business hours.
(4) Not later than April 15 in each calendar year in which reports are sent to the Attorney General under subsection (b)(2) of
this section, the Attorney General shall send to the President of the
Senate and the Speaker of the House of Delegates a written notice that
indicates that the Attorney General received reports that cover the
previous calendar year, that the reports are open for inspection under
and that the Attorney General will provide a copy of any or all of the
reports to the President of the Senate or the Speaker of the House of
Delegates upon request.
(c) A law-enforcement agency with custody of property to be
disposed of under the provisions of sections fourteen or fifteen of
this article section shall make a reasonable effort to locate persons
entitled to possession of the property, to notify them of when and
where it may be claimed, and to return the property to them at the
earliest possible time. In the absence of evidence identifying
persons entitled to possession, it is sufficient notice to advertise
in a newspaper of general circulation in the county and to briefly
describe the nature of the property in custody and inviting persons to
view and establish their right to it.
(d) As used in this article: "Law-enforcement agency" includes
correctional institutions.
§61-14-20. Disposal of unclaimed or forfeited property.
(a) Unclaimed or forfeited property in the custody of a law-
enforcement agency, other than property described in subsection (a)(2) of section nineteen of this article, shall be disposed of by order of
any court of record that has territorial jurisdiction over the
political subdivision that employs the law-enforcement agency, as
follows:
(1) Drugs shall be disposed of pursuant to the provisions of
chapter sixty-a of this code.
(2) Firearms and dangerous ordnance suitable for police work may
be given to a law-enforcement agency for that purpose. Firearms
suitable for sporting use or as museum pieces or collectors' items may
be sold at public auction pursuant to subsection (b) of this section.
The agency shall destroy other firearms and dangerous ordnance or
shall send them to the State Police for destruction by the State
Police.
(3) Obscene materials shall be destroyed.
(4) Beer, intoxicating liquor, or alcohol seized from a person
who does not hold a permit issued under the provisions of chapter
sixty of this code or otherwise forfeited to the state for an offense
under the provisions of that chapter shall be sold by the Alcohol
Beverage Control Commissioner if the commissioner determines that it
is fit for sale or shall be placed in the custody of the
investigations unit in the State Police and be used for training
relating to law-enforcement activities, notwithstanding any other
existing provision of law to the contrary. All other money collected under this division shall be paid in accordance with this code. Any
beer, intoxicating liquor or alcohol that the commissioner determines
to be unfit for sale shall be destroyed.
(5) Money received by an inmate of a correctional institution
from an unauthorized source or in an unauthorized manner shall be
returned to the sender, if known, or deposited in the inmates'
industrial and entertainment fund of the institution if the sender is
not known.
(6) Any mobile instrumentality forfeited under this article may
be given to the law-enforcement agency that initially seized the
mobile instrumentality for use in performing its duties, if the agency
wants the mobile instrumentality. The agency shall take the mobile
instrumentality subject to any security interest or lien on the mobile
instrumentality.
(7) Vehicles and vehicle parts forfeited under the provisions of
section two of this article may be given to a law-enforcement agency
for use in performing its duties. Those parts may be incorporated
into any other official vehicle. Parts that do not bear vehicle
identification numbers or derivatives of them may be sold or disposed
of as provided by rules of the Commissioner of Motor Vehicles. Parts
from which a vehicle identification number or derivative of it has
been removed, defaced, covered, altered, or destroyed and that are not
suitable for police work or incorporation into an official vehicle shall be destroyed and sold as junk or scrap.
(8) Computers, computer networks, computer systems and computer
software suitable for police work may be given to a law-enforcement
agency for that purpose or disposed of in subsection (b) of this
section.
(b) Unclaimed or forfeited property that is not described in
subsection(a) of this section, with court approval, may be used by the
law-enforcement agency who confiscated the item. If it is not used by
the agency, it may be sold without appraisal at a public auction to
the highest bidder for cash or disposed of in another manner that the
court considers proper.
(c) Except as provided in subsections (a) and (f) of this section
and after compliance with subsection (d) of this section when
applicable, any moneys acquired from the sale of property disposed of
pursuant to this section shall be distributed as follows:
(1) First, to pay costs incurred in the seizure, storage,
maintenance, security and sale of the property and in the forfeiture
proceeding;
(2) Second, in a criminal forfeiture case, to satisfy any
restitution ordered to the victim of the offense or, in a civil
forfeiture case, to satisfy any recovery ordered for the person
harmed, unless paid from other assets;
(3) Third, to pay the balance due on any security interest preserved under this article;
(4) Fourth, apply the remaining amounts as follows:
(A) Twenty percent to the Regional Jail Authority to offset the
per diem rate for every county;
(B) Ten percent to the county prosecutor; and
(C) Seventy percent divided among the investigating agencies
through a memo of understanding.
(d) Any property forfeited under this article shall not be used
to pay any fine imposed upon a person who is convicted of or pleads
guilty to an underlying criminal offense or a different offense
arising out of the same facts and circumstances.
§61-14-21. Sale of forfeited property - application of proceeds -
forfeiture funds.
(a) Except as otherwise provided in this section, property
ordered forfeited as contraband, proceeds, or an instrumentality
pursuant to this article shall be disposed of, used, or sold pursuant
to the provisions of section twenty-one of this article. If the
property is to be sold under that section, the prosecutor shall cause
notice of the proposed sale to be given in accordance with law.
(b) If the contraband or instrumentality forfeited under this
article is sold, any moneys acquired from a sale and any proceeds
forfeited under this article shall be applied in the following order:
(1) First, to pay costs incurred in the seizure, storage, maintenance, security and sale of the property and in the forfeiture
proceeding;
(2) Second, in a criminal forfeiture case, to satisfy any
restitution ordered to the victim of the offense or, in a civil
forfeiture case, to satisfy any recovery ordered for the person
harmed, unless paid from other assets;
(3) Third, to pay the balance due on any security interest
preserved under this article;
(4) Fourth, apply the remaining amounts as follows:
(A) Twenty percent to the Regional Jail Authority to offset the
per diem rate for every county;
(B) Ten percent to the county prosecutor; and
(C) Seventy percent divided among the investigating agencies
through a memo of understanding.
(c) Any failure of a law-enforcement officer or agency,
prosecutor, court, or the Attorney General to comply with this section
in relation to any property seized does not affect the validity of the
seizure and shall not be considered to be the basis for suppressing
any evidence resulting from the seizure, provided the seizure itself
was lawful.
§61-14-22. Forfeiture under federal law.
(a) Nothing in this article precludes the head of a law-
enforcement agency that seizes property from seeking forfeiture under federal law. If the property is forfeitable under this article and
federal forfeiture is not sought, the property is subject only to this
article.
(b) Any law-enforcement agency that receives moneys from a sale
of forfeited property under federal law shall deposit, use, and
account for the amounts, including any interest derived, in accordance
with applicable federal law.
NOTE: The purpose of this bill is to provide for forfeiture of
property used in various crimes and the disposition of such property.
This article is new; therefore, strike-throughs and underscoring
have been omitted.