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.