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House Bill 4382 History
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Key: Green = existing Code. Red = new code to be enacted
ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 4382
(By Delegates D. Poling, Ellem, Longstreth,
Frazier, Hamilton, Miley, Caputo, Boggs)
(Originating in the Committee on the Judiciary)
[March 1, 2010]
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, §61-13-13, §61-13-
14, §61-13-15, §61-13-16, §61-13-17, §61-13-18, §61-13-19,
§61-13-20 and §61-13-21 all relating to establishment of the
West Virginia Civil and Criminal Forfeiture Act; establishing
civil and criminal forfeiture proceedings pertaining to
property and assets used in, acquired, gained or flowing from
gained 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
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
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 §61-13-1, §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, §61-13-13, §61-13-14, §61-13-
15, §61-13-16, §61-13-17, §61-13-18, §61-13-19, §61-13-20,§61-13-21
and §61-13-22, all to read as follows:
ARTICLE 13. WEST VIRGINIA CRIMINAL AND CIVIL FORFEITURE ACT.
§61-13-1. 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".
§61-13-2. 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.
§61-13-3. 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) No vehicle used by any person as a common carrier in the
transaction of business as a common carrier may 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) No vehicle may 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) No owner's or interest holder's interest may be forfeited
under this article if the owner or interest establishes all of the
follwing:
(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) No owner's or interest holder's interest may 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.
(e) 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 provisionsal
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 proponderance of the evidence the amount of
any direct costs lawfully incurred.
§61-13-4. 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.
§61-13-5.
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.
61-13-6.
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) In the event of a seizure 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. 13-4306
§61-13-7.
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 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 interest is not known, by publication in one issue of a
newspaper of general circulation in the county in which the seizure
occurs. 13-4307
§61-13-813-430813-4308.
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 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, such
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. 13-4308
§61-13-9. 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 discretion makes
uncontested forfeiture available, he 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. In no event
shall the mailing of the declaration 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 fifteeen 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) No duplicate or repetitive notice or claim is
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. 13-4309
§61-13-10.
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 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 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) No evidence may 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) No person claiming to be an owner of or interest holder
in property seized for forfeiture under this article may commence
or maintain any action against the state concerning the validity
of the alleged interest other than as provided in this article. 13-4310
§61-13-11. 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 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. No extension of time
for the filing of a claim may 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) An injured person may submit a request for compensation
from 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 per cent of the remaining
balance, if any, as set forth in sections nineteen and twenty of
this article.
§61-13-12. 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 claimed interest in the property
within thirty days after initial notice of pending forfeiture or
after notice under paragraph one 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 for 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.
(i) 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.
§61-13-13. 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 for 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.
§61-13-14. 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 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 entire interest is exempt from forfeiture
under section three of this article to pay the costs of any
claimant who establishes that his 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.
§61-13-15. 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.
§61-13-16. 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 $1000 or imprisoned in a state
correctional facility not less than one year, or both fined and
imprisoned.
§61-13-17. 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.
§61-13-18. 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.
§61-13-19. 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.
§61-13-20. 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 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 subections (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.
§61-13-21. 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.
§61-13-22. 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.