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Introduced Version House Bill 4382 History

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hb4382 intr
H. B. 4382


(By Delegates D. Poling, Ellem, Longstreth,

Frazier, Hamilton, Miley, Caputo, Boggs)


[Introduced February 5, 2010 ; referred to the

Committee on the Judiciary.]



A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §61-13-1, §61-13-2, §61-13-3, §61-13-4, §61-13-5, §61-13-6, §61-13-7, §61-13-8, §61-13-9, §61-13-10, §61-13-11, §61-13-12 and §61-13-13, all relating to crimes; forfeiture of property used in various crimes; providing definitions; statement of purpose of forfeitures; procedure for forfeiture; seizure and disposition of forfeited and other property; civil forfeiture action and pretrial hardship release; interference with or diminishing forfeitable property; providing right to trial by jury; care of property in law-enforcement custody; sale of forfeited property, application of proceeds and forfeiture funds; and providing exceptions.

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 §61-13-1, §61-13-2, §61-13-3, §61-13-4, §61-13-5, §61-13-6, §61-13-7, §61-13-8,
§61-13-9, §61-13-10, §61-13-11, §61-13-12 and §61-13-13, all to read as follows:
ARTICLE 13. FORFEITURE.

§61-13-1. Purposes of forfeiture.

(a) 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;

(4) To ensure that seizures and forfeitures of instrumentalities are proportionate to the offense committed.

(b) As used in this article:

(1) Confiscation of "aircraft" has the same effect as section seven hundred three-a, article seven, chapter sixty-a 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. Except as otherwise specified, an offense for which property may be forfeited includes: Fraud as defined in section nine, article eight, chapter thirty-one-a of this code as against banking institutions; section eighteen, article twenty, chapter forty-seven and section nineteen, article twenty, chapter forty-seven
of this code as against bingo; section eighteen, article twenty-one, chapter forty-seven and section nineteen, article twenty-one, chapter forty-seven of this code as against charitable raffles; section twenty-six, article two, chapter fourteen as against claims against the state; section four, article three-c of this chapter as against computer fraud; section twenty-four, article three of this chapter as against credit cards; section twenty-four, article three of this chapter as against disposing of property to defraud creditors; sections four and five, article seven, chapter of this code as against Medicaid; section thirteen, article two-a, chapter seventeen-a of this code as against motor vehicle records; section forty, article three of this chapter; section forty, article three of this chapter as against obtaining food or lodging; section twenty-four, article three of this chapter as against money, property and services; section four, article five, chapter nine of this code as against public assistance and relief; section forty-five, article ten, chapter five of this code as against public employee's retirement; section forty-four, article three of this chapter as against public utilities; section sixteen, article two-a, chapter fifteen of this code as against state police retirement; sections twenty-four-a and twenty-four-b, article three of this chapter as against telephone services; and section fifty-seven, article three of this chapter as against bogus receipts or universal product codes. Also included is any crime against the elderly as "elderly" is defined in section three-k, article five-p, chapter sixteen of this code; and other crimes listed in section one, article eight-c of this chapter as against child pornography, section thirteen, article two of this chapter as against extortion; section fourteen, article two of this chapter as against abduction, kidnaping or concealing of a child; section five, article eight of this chapter as against prostitution and houses of ill fame and assignation, section fifty-four, article three of this chapter as against identity theft; and section twenty-four, article six of this chapter as against terroristic activities. The commission of an "offense" includes the commission of a delinquent act.
(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.

§61-13-2. Property subject to forfeiture.

(a) The following property is subject to forfeiture to the state or a political subdivision:

(1) Contraband involved in an offense;

(2) Proceeds derived from or acquired through the commission
of an offense;
(3) An instrumentality that is used in or intended to be used in the commission or facilitation of any of the following offenses when the use or intended use, consistent with division (B) of this section, is sufficient to warrant forfeiture under this article:

(A) Fraud as defined in section nine, article eight, chapter thirty-one-a of this code as against banking institutions; sections eighteen and nineteen, article twenty, chapter forty-seven of this code as against bingo; sections eighteen and nineteen, article twenty-one, chapter forty-seven of this code as against charitable raffles; section twenty-six, article two, chapter fourteen of this code as against claims against the state; section four, article three-c of this chapter as against computer fraud; section twenty- four, article three of this chapter as against credit cards; section twenty-four, article three of this chapter as against disposing of property to defraud creditors; sections four and five, article seven, chapter nine of this code as against Medicaid; section thirteen, article two-a, chapter seventeen-a of this code as against motor vehicle records; section forty, article three of this chapter as against obtaining food or lodging; section twenty- four, article three of this chapter as against money, property and services; section four, article five, chapter nine of this code as against public assistance and relief; section forty-five, article ten, chapter five of this code as against public employee's retirement; section forty-four, article three of this chapter as
against public utilities; section sixteen, article two-a, chapter fifteen of this code as against state police retirement; sections twenty-four-a and twenty-four-b, article three of this chapter as against telephone services; and section fifty-seven, article three of this chapter as against bogus receipts or universal product codes. Also included is any crime against the elderly, elderly being defined in section three-k, article five-p, chapter sixteen of this code; and other crimes listed in section one, article section one, article eight-c of this chapter as against child pornography, section thirteen, article two of this chapter as against extortion; section fourteen, article two of this chapter as against abduction, kidnaping or concealing of a child; section five, article eight of this chapter as against prostitution and houses of ill fame and assignation, section fifty-four, article three of this chapter as against identity theft; and section twenty-four, article six of this chapter as against terroristic activities.
(B) An attempt to commit, complicity in committing, or a conspiracy to commit an offense of the type described in divisions (A)(3)(a) of this section.

(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) The forfeiture provisions of this article do not apply to:

(1) Article three-a, chapter sixty of this code, relating to sales by retail liquor licensees;

(2) Article four, chapter sixty of this code, relating to licenses under the state control of alcoholic liquors;

(3) Article six, chapter sixty of this code, relating to miscellaneous provisions under the state control of alcoholic liquors; or

(4) Article seven, chapter sixty-a of this code, commonly known as the "West Virginia Contraband Forfeiture Act".

§61-13-3. Provisional title to property subject to forfeiture.

(a)(1) 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.
(2) A law-enforcement officer may seize property that the officer has probable cause to believe is property subject to forfeiture. If a law-enforcement officer seizes property that is titled or registered under law, the officer or the law-enforcement agency that employs the officer shall notify the property owner of the seizure. The agency shall give notice to the property owner at the owner's last known address as soon as practical after the seizure and may give the notice by certified mail or orally by any means, including telephone. If the officer or agency is unable to provide the notice required by this division despite reasonable, good faith efforts, those efforts constitute fulfillment of the notice requirement.

(3) In a civil forfeiture case under this article in which the state or political subdivision seeks to seize real property, the property owner may request a hearing before the seizure, and in the hearing the state or political subdivision shall show probable cause that the real property is subject to forfeiture.

(4) A person aggrieved by an alleged unlawful seizure of property may seek relief from the seizure by filing a motion in the appropriate court that shows the person's interest in the property,
states why the seizure was unlawful, and requests the property's return. If the motion is filed before an indictment, information, or a complaint seeking forfeiture of the property is filed, the court shall promptly schedule a hearing on the motion, and at the hearing the person shall demonstrate by a preponderance of the evidence that the seizure was unlawful and that the person is entitled to the property. If the motion is filed by a defendant after an indictment, information, or a complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a motion to suppress evidence. If the motion is filed by a third party after an indictment, information, or complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a petition of a person with an alleged interest in the subject property, pursuant to divisions (E) and (F) of section four of this article.
(5)(a) In any action under the provisions of sections four or five 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 property if it proves both of the following by a preponderance of the evidence:

(i) 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.

(ii) 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.
(b) The alleged offender or delinquent child shall have the burden to prove the amount of any direct costs lawfully incurred.

(B)(1) Upon application by the prosecutor who prosecutes or brings an action that allows forfeiture under this article, the court in which the action is prosecuted or filed may issue an order taking any reasonable action necessary to preserve the reachability of the property including, but not limited to, a restraining order or injunction, an order requiring execution of a satisfactory bond or insurance policy, an order to inspect, photograph, or inventory the property, an order placing a lien or lis pendens against the property, or an order appointing a receiver or trustee. The court may issue an order of this nature at any of the following times:

(a) Upon the filing of a complaint, indictment, or information alleging the property to be subject to forfeiture under the provisions of section two of this article;

(b) Prior to the filing of a complaint, an indictment, or information alleging the property to be subject to forfeiture under the provisions of section two of this article, if, after giving notice to all persons known to have a interest in the property and giving those persons an opportunity to be heard, the court determines that all of the following apply:

(i) There is a substantial probability the state or political subdivision will prevail on the forfeiture issue.

(ii) There is a substantial probability that failure to enter the order will result in the property being destroyed, being removed from the court's jurisdiction, or otherwise being made unavailable for forfeiture.

(iii) The need to preserve the availability of the property outweighs the hardship on the person against whom the order is to be entered.

(c) As a condition of releasing the property based on a determination of substantial hardship under division (D) of this section.

(2) Except as otherwise provided in division (B)(3) of this section, the court shall make an order under division (B)(1)(b) of this section effective for not more than ninety days, but the court may extend the order if the prosecutor demonstrates that the need to preserve the reachability of the property still exists or for other good cause shown and shall extend the order if an indictment, information, or a complaint is filed alleging that the property is subject to forfeiture.

(3) A court may issue an order under division (B)(1) of this section without giving notice or a hearing to a person known to have a interest in the property if the prosecutor demonstrates that the property is subject to forfeiture and that giving notice and a hearing will jeopardize the availability of the property for forfeiture. Notwithstanding the ninety-day limit described in division (B)(2) of this section, the court shall make an order
under division (B)(3) of this section effective for not more than ten days, but the court may extend the order if the prosecutor again demonstrates that the property is subject to forfeiture and that a hearing will jeopardize the availability of the property or for other good cause shown or if the person subject to the order consents to a longer period. If a party requests a hearing on the order, the court shall hold the hearing at the earliest possible time before the order expires.
(4) At any hearing under division (B) of this section, the court may receive and consider evidence and information that is inadmissible under the Rules of Evidence. The court shall cause the hearing to be recorded and shall cause a transcript to be made. If property is to be seized as a result of the hearing, the recording and transcript shall not be a public record until the property is seized. This section does not authorize making available for inspection any confidential law enforcement investigatory record or trial preparation record.

(C) Except as otherwise provided in division (E) of this section, any replevin, conversion, or other civil action brought concerning property subject to a criminal or civil forfeiture action under this article shall be stayed until the forfeiture action is resolved.

(D)(1) A person with an interest in property that is subject to forfeiture and that is seized under this article may seek conditional release of the property by requesting possession from
the person with custody of the property. The request shall demonstrate how the person meets the requirements specified in divisions (D)(3)(a), (b) and (c) of this section.
(2) If the person with custody of the property does not release the property within fifteen days after a person makes a request under division (D)(1) of this section, or within seven days after a person makes the request if the property was seized as a mobile instrumentality or if the request is to copy records, the person who made the request may file a petition for conditional release with the court in which the complaint, indictment, or information is filed or, if no complaint, indictment, or information is filed, the court that issued the seizure warrant for the property. The petition shall demonstrate how the person meets the requirements specified in divisions (D)(3)(a), (b) and (c) of this section and the steps the person has taken to secure release of the property from the official. Unless extended for good cause shown, the petition shall be filed either within thirty days of the filing of a complaint, an indictment, or information in the forfeiture action or, if no complaint, indictment, or information is filed, within thirty days of the issuance of the seizure warrant of the property.

If the court finds that the person meets the criteria specified in divisions (D)(3)(a), (b) and (c) of this section, the court shall order the property's conditional return to the person pending completion of the forfeiture action. In issuing this
order, the court shall notify the person of the prohibitions against interfering with or diminishing property in section 07 of the Revised Code and may make any order necessary to ensure that the value of the property is maintained.
If personal, business, or governmental records are seized, including those contained in computer files, a person may petition the court for a prompt opportunity to copy, at the person's expense, any records that are not contraband. The court may grant the petition if the person demonstrates how the person meets the requirements specified in divisions (D)(3)(a) and (c) of this section. The court shall order a competent person to supervise the copying.

(3) Except when there is probable cause that the property is contraband, property that must be held for a reasonable time as evidence related to an offense, or property that is likely to be used in additional offenses or except when the state or political subdivision meets the burden imposed under division (A)(5) of this section regarding alleged proceeds, a court may conditionally release property subject to forfeiture to a person who demonstrates all of the following:

(a) A possessory interest in the property;

(b) Sufficient ties to the community to provide assurance that the property will be available at the time of trial;

(c) That failure to conditionally release the property will cause a substantial hardship to the claimant.

(4) In determining whether a substantial hardship exists, the court shall weigh the claimant's likely hardship from the state's or political subdivision's continued possession of the property against the risk that the property will be destroyed, damaged, lost, concealed, or transferred if returned to the claimant. The court shall consider in favor of release the possibility that withholding the property would prevent a legitimate business from functioning, prevent the claimant's or an innocent person from maintaining employment, or leave the claimant or an innocent person homeless.

(5) If the state or political subdivision shows that the claimant's petition is frivolous, the court shall deny the petition. Otherwise, the state or political subdivision may respond to the petition by submitting evidence ex parte to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending trial.

(6) The court shall decide on the petition not more than thirty days after it is filed. If the property seized is alleged to be a mobile instrumentality, the court shall decide on the petition as soon as practicable within the thirty-day period. If personal, business, or governmental records were seized and a person files a petition to copy the records, the court shall decide on the petition as soon as practicable. In any case, the court may extend the time for deciding on the petition by consent of the parties or for good cause shown.

(E) Nothing in this section precludes a financial institution that has or purports to have a security interest in or lien on property described in section two of this article from filing an action in connection with the property, prior to its disposition under the provisions of this article, to obtain possession of the property in order to foreclose or otherwise enforce the security interest or lien.

If a financial institution commences a civil action or takes any other appropriate legal action to sell the property prior to its seizure or prior to its disposition under the provisions of this article, if the person who is responsible for conducting the sale has actual knowledge of the commencement of a forfeiture action under the provisions of either section four or five of this article, and if the property is sold, then the person shall dispose of the proceeds of the sale in the following order:

(1) First, to the payment of the costs of the sale, excluding any associated attorney's fees, and to the payment of the costs incurred by law-enforcement agencies and financial institutions in connection with the seizure, storage, and maintenance of, and provision of security for, the property;

(2) Second, in the order of priority of the security interests and liens, to the payment of valid security interests and liens pertaining to the property that, at the time at which the state or political subdivision gains provisional title, are held by known secured parties and lienholders;

(3) Third, to the court that has or would have jurisdiction in a case or proceeding under the provisions of section four or section five of this article for disposition under this article.

(F) A prosecutor may file a forfeiture action under the provisions of section four or five of this article, or both sections. If property is seized pursuant to this section and a criminal forfeiture has not begun under the provisions of section four of this article, the prosecutor of the county in which the seizure occurred shall commence a civil action to forfeit that property under the provisions of section five of this article.

If the property seized includes property alleged to be a mobile instrumentality or includes personal, business, or governmental records, the civil forfeiture action shall be brought within thirty days of seizure. Otherwise, the action shall be brought within sixty days of seizure. In either case, the period within which the action shall be brought may be extended by agreement of the parties or by the court for good cause shown.

A prosecutor may file an appropriate charging instrument under the provisions of section four of this article to seek a criminal forfeiture after a civil forfeiture action begins. Filing a charging instrument for an offense that is also the basis of a civil forfeiture action stays the civil action.

A civil action to obtain civil forfeiture may be commenced as described in section five of this article regardless of whether the offender or delinquent child has pleaded guilty to, been convicted
of, or been adjudicated a delinquent child for the act that is the basis of the order.
(G) The prosecutor shall maintain an accurate record of each item disposed of under the provisions of section four or section five of this article. The record shall not identify or enable the identification of the officer who seized the property. The record is a public record open for inspection.

§61-13-4. Charging instrument - forfeiture order - amendment.

(a)(1) Property described in division (A) of section two of this article may be forfeited under this section only if the complaint, indictment, or information charging the offense or municipal violation, or the complaint charging the delinquent act, contains a specification that sets forth all of the following to the extent it is reasonably known at the time of the filing:

(A) The nature and extent of the alleged offender's or delinquent child's interest in the property;

(B) A description of the property;

(C) If the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense.

(2) If any property is not reasonably foreseen to be subject to forfeiture at the time of filing the indictment, information, or complaint, the trier of fact still may return a verdict of forfeiture concerning that property in the hearing described in division (B) of this section if the prosecutor, upon discovering
the property to be subject to forfeiture, gave prompt notice of this fact to the alleged offender or delinquent child.
(3) For good cause shown, the court may consider issues of the guilt of the alleged offender or the delinquency of the alleged delinquent child separate from whether property specified as subject to forfeiture should be forfeited.

(b) If a person pleads guilty to or is convicted of an offense or is adjudicated a delinquent child for committing a delinquent act and the complaint, indictment, or information charging the offense or act contains a specification covering property subject to forfeiture under the provisions of section two of this article, the trier of fact shall determine whether the person's property shall be forfeited. If the state or political subdivision proves by a preponderance of the evidence that the property is in whole or part subject to forfeiture under the provisions of section two of this article, after a proportionality review under the provisions of section nine of this article when relevant, the trier of fact shall return a verdict of forfeiture that specifically describes the extent of the property subject to forfeiture. If the trier of fact is a jury, on the offender's or delinquent child's motion, the court shall make the determination of whether the property shall be forfeited.

(c) If the court enters a verdict of forfeiture under this section, the court imposing sentence or disposition, in addition to any other sentence authorized in this article or any disposition
authorized in this article, shall order that the offender or delinquent child forfeit to the state or political subdivision the offender's or delinquent child's interest in the property. The property vests with the state or political subdivision subject to the claims of third parties. The court may issue any additional order to affect the forfeiture, including, but not limited to, an order under section six of this article.
(d) After the entry of a forfeiture order under this section, the prosecutor shall attempt to identify any person with an interest in the property subject to forfeiture by searching appropriate public records and making reasonably diligent inquiries. The prosecutor shall give notice of the forfeiture that remains subject to the claims of third parties and proposed disposal of the forfeited property to any person known to have an interest in the property. The prosecutor also shall publish notice of the forfeiture that remains subject to the claims of third parties and proposed disposal of the forfeited property once each week for two consecutive weeks in a newspaper of general circulation in the county in which the property was seized.

(e)(1) Any person, other than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the forfeiture order, who asserts a legal interest in the property that is the subject of the order may petition the court that issued the order for a hearing under division (E)(3) of this section to adjudicate the validity of the person's alleged
interest in the property. All of the following apply to the petition:
(A) It shall be filed within thirty days after the final publication of notice or the person's receipt of notice under division (D) of this section.

(B) It shall be signed by the petitioner under the penalties for falsification specified in section twenty-two, article three of this chapter.

(C) It shall describe the nature and extent of the petitioner's interest in the property, the time and circumstances of the petitioner's acquisition of that interest, any additional facts supporting the petitioner's claim and the relief sought.

(2)(a) In lieu of filing a petition as described in division (E)(1) of this section, a person, other than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the forfeiture order, may file an affidavit as described in this division to establish the validity of the alleged right, title, or interest in the property that is the subject of the forfeiture order if the person is a secured party or other lienholder of record that asserts a legal interest in the property, including, but not limited to, a mortgage, security interest, or other type of lien. The affidavit shall contain averments that the secured party or other lienholder acquired its alleged right, title or interest in the property in the regular course of its business, for a specified valuable
consideration, without actual knowledge of any facts pertaining to the offense that was the basis of the forfeiture order, in good faith, and without the intent to prevent or otherwise impede the state or political subdivision from seizing or obtaining a forfeiture of the property. The person shall file the affidavit within thirty days after the earlier of the final publication of notice or the receipt of notice under division (D) of this section.
(b) Except as otherwise provided in this section, the affidavit constitutes prima-facie evidence of the validity of the affiant's alleged interest in the property.

(c) Unless the prosecutor files a motion challenging the affidavit within ten days after its filing and unless the prosecutor establishes by a preponderance of the evidence at the hearing held under division (E)(3) of this section that the affiant does not possess the alleged interest in the property or that the affiant had actual knowledge of facts pertaining to the offense or delinquent act that was the basis of the forfeiture order, the affidavit constitutes conclusive evidence of the validity of the affiant's interest in the property.

(d) Any subsequent purchaser or other transferee of property pursuant to forfeiture under this section takes the property subject to the continued validity of the interest of the affiant.

(3) Upon receipt of a petition or affidavit filed under division (E)(1) or (2) of this section, the court shall hold a hearing to determine the validity of the petitioner's interest in
the property that is the subject of the forfeiture order or, if the affidavit was challenged, to determine the validity of the affiant's interest in the property. To the extent practicable and consistent with the interests of justice, the court shall hold the hearing within thirty days after the filing of the petition or within thirty days after the prosecutor files the motion challenging the affidavit. The court may consolidate the hearing with a hearing on any other petition or affidavit that is filed by a person other than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the forfeiture order and that relates to the property that is the subject of the forfeiture order.
At the hearing, the petitioner or affiant may testify, present evidence and witnesses on the petitioner's or affiant's behalf, and cross-examine witnesses for the state or political subdivision. In regards to a petition, the state or political subdivision may present evidence and witnesses in rebuttal and in defense of its claim to the property and may cross-examine witnesses for the petitioner. In regards to an affidavit, the prosecutor may present evidence and witnesses and cross-examine witnesses for the affiant.

In addition to the evidence and testimony presented at the hearing, the court also shall consider the relevant portions of the record in the criminal or delinquent child case that resulted in the forfeiture order.

(F)(1) If the hearing involves a petition, the court shall amend its forfeiture order if it determines at the hearing held pursuant to division (E)(3) of this section that the petitioner has established either of the following by a preponderance of the evidence:

(a) The petitioner has a legal interest in the property that is subject to the forfeiture order that renders the order completely or partially invalid because the legal interest in the property was vested in the petitioner, rather than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the order, or was superior to any interest of that offender or delinquent child, at the time of the commission of the offense or delinquent act that is the basis of the order.

(b) The petitioner is a bona fide purchaser for value of the interest in the property that is subject to the forfeiture order and was, at the time of the purchase, reasonably without cause to believe that it was subject to forfeiture.

(2) The court also shall amend its forfeiture order to reflect any interest of a secured party or other lienholder of record in the property subject to forfeiture who prevails at a hearing on the petition or affidavit filed pursuant to division (E)(1) or (2) of this section.

(G) If the court disposes of all petitions or affidavits timely filed under this section in favor of the state or political
subdivision, the state or political subdivision shall have clear title to the property that is the subject of a forfeiture order issued under this section, but only to the extent that other parties' lawful interests in the property are not infringed. To the extent that the state or political subdivision has clear title to the property, the state or political subdivision may warrant good title to any subsequent purchaser or other transferee.
§61-13-5. Civil forfeiture action - pretrial hardship release.

(a) The prosecutor of the political subdivision in which property described in division (A) of section two of this article is located may commence a civil forfeiture action under this section by filing in the circuit court of the county in which the property is located a complaint requesting an order that forfeits the property to the state or a political subdivision. The filing shall be consistent with division (F) of section three of this article.

(b) Prior to or upon the commencement of a civil forfeiture action, the prosecutor shall attempt to identify any person with an interest in the property subject to forfeiture by searching appropriate public records and making reasonably diligent inquiries. The prosecutor shall give notice of the commencement of the civil action, together with a copy of the complaint, to each person who is reasonably known to have any interest in the property, by certified mail, return receipt requested, or by personal service. The prosecutor shall cause a similar notice to
be published once each week for two consecutive weeks in a newspaper of general circulation in the county in which the property is located.
(c) A person with an interest in the property subject to forfeiture may petition the court to release the property pursuant to division (D) of section three of this article. The court shall consider the petition as provided in that section. If a timely petition for pretrial hardship release is not filed, or if a petition is filed but not granted, the person may file a claim for the release of the property under the Rules of Civil Procedure. The court shall dispose of any petitions timely filed under this division.

(d) The court shall issue a civil forfeiture order if it determines that the prosecutor has proved by a preponderance of the evidence that the property is subject to forfeiture under the provisions of section two of this article, and, after a proportionality review under section nine of this article when relevant, the trier of fact specifically describes the extent of the property to be forfeited. A civil forfeiture order shall state that all interest in the property in question of the adult or juvenile who committed the act that is the basis of the order is forfeited to the state or political subdivision and shall make due provision for the interest in that property of any other person, when appropriate under this section. The court may issue any additional order to affect the forfeiture, including, but not
limited to, one or more orders under the provisions of section six of this article.
(e) If the court disposes of all petitions timely filed under this section in favor of the state or political subdivision, the state or political subdivision shall have clear title to the property that is the subject of a forfeiture order under this section, but only to the extent that other parties' lawful interests in the property are not infringed. To the extent that the state or political subdivision has clear title to the property, the state or political subdivision may warrant good title to any subsequent purchaser or other transferee.

§61-13-6. Seizure of forfeited or other property - disposition.

(a) Upon the entry of a forfeiture order under the provisions of section four or five 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 four or five 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 from funds provided under division (F) of section twelve of 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 Civil Rules, 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 four or five 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 four or five 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.

§61-13-7. 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) Except as otherwise provided in divisions (B)(3), (4) and (5) of this section, interference with or diminishing forfeitable property is a felony. A person who interferes with or diminishes forfeitable property is guilty of a felony and, upon conviction thereof, shall be fined not more than $1000 or imprisoned in a
state correctional facility not less than one year, or both fined and imprisoned.
§61-13-8. 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.

§61-13-9. 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.
§61-13-10. 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 twelve and thirteen 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; and (iii) section twenty-three, article twenty, chapter nineteen of this code, relating to dogs and cats, impounding and disposition; 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; section five-c, article two, chapter twenty of this code, relating to wildlife resources, protection of bald eagles and golden eagles and forfeiture; section nineteen-a, article eight of this chapter, relating to cruelty to animals; and 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 thirteen 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 division (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 section twelve or thirteen 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 sections eleven, twelve and thirteen of this article: "Law-enforcement agency" includes correctional institutions.
§61-13-11. Disposal of unclaimed or forfeited property.
(a) Unclaimed or forfeited property in the custody of a law-enforcement agency, other than property described in division (A)(2) of section eleven 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 division (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)(a) 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.
(b) 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.
(7) 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 under division (B) of this section.
(B) Unclaimed or forfeited property that is not described in division (A) of this section or division (A)(2) of section eleven of this article, 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 divisions (A) and (F) of this section and after compliance with division (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.
(G) 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.
§61-13-12. 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 twelve 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.
(F) 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.
§61-13-13. 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.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.
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