Bill Text: HI SB180 | 2018 | Regular Session | Introduced
Bill Title: Relating To Property Forfeiture.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Introduced - Dead) 2018-01-17 - Re-Referred to JDC, WAM. [SB180 Detail]
Download: Hawaii-2018-SB180-Introduced.html
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THE SENATE |
S.B. NO. |
180 |
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TWENTY-NINTH LEGISLATURE, 2017 |
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STATE OF HAWAII |
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A BILL FOR AN ACT
relating to Property forfeiture.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. Chapter 712A, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:
"§712A- Criminal forfeiture special fund; established. (a) There is established the criminal forfeiture special fund within the treasury of the State and into which shall be deposited all proceeds of each forfeiture under this chapter and any penalties paid pursuant to section 712A-10(6).
All interest accrued by the revenues of the special fund shall become part of the special fund.
(b) Moneys in the criminal forfeiture special fund shall be allocated by the legislature through appropriations out of the special fund and for the sole purpose of providing assistance to victims of crime and their families.
(c) The criminal forfeiture special fund shall not be subject to sections 36-27, 36-30, and 37-53."
SECTION 2. Section 712A-5, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:
"(2) Except that:
(a) Real property, or an interest therein, may be forfeited under the provisions of this chapter only in cases in which the covered offense is chargeable as a felony offense under state law;
(b) No property shall be forfeited under this
chapter to the extent of an interest of an owner[, by]:
(i) By reason of the commission of any covered offense unless the owner has been convicted of the covered offense by a verdict or plea, including a no contest plea or a deferred acceptance of guilty or no contest plea; or
(ii) By reason of any act or omission established by that owner to have been committed or omitted without the knowledge and consent of that owner;
(c) No conveyance used by any person as a common carrier in the transaction of a business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;
(d) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; and
(e) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission."
SECTION 3. Section 712A-10, Hawaii Revised Statutes, is amended to read as follows:
"§712A-10 Administrative forfeiture. The prosecuting attorney may initiate administrative forfeiture of property other than real property, the estimated value of which is less than $100,000, or of any vehicle or conveyance, regardless of value. Administrative forfeiture shall be processed in the following manner:
(1) The prosecuting attorney shall file a petition
with the attorney general, pursuant to rules adopted by the attorney general[.];
(2) The prosecuting attorney shall give notice of
pending forfeiture by making reasonable efforts to serve a copy of the petition
in a manner provided in section 712A-8(a) or 712A-8(b) on all persons known to
have an interest in the property, together with instructions for filing a claim
and cost or in pauperis bond, or a petition for remission or mitigation[.];
(3) The attorney general shall give notice of intention to forfeit the property administratively by publication in the manner provided in section 712A-8(c). Notice by publication shall include:
(a) A description of the property;
(b) The estimated value of the property;
(c) The date and place of the seizure;
(d) The offense for which the property is subject to forfeiture;
(e) Instructions for filing a claim and cost or in pauperis bond, or a petition for remission or mitigation; and
(f) Notice that the property will be forfeited
to the State if a claim and cost or in pauperis bond or petition for remission
or mitigation is not filed in substantial compliance with this section[.];
(4) Persons claiming an interest in the property may
file either a petition for remission or mitigation of forfeiture, or a claim
and cost or in pauperis bond, but not both, with the attorney general, within
thirty days of notice by publication or receipt of written notice, whichever is
earlier. Notwithstanding section 1-29, the thirty-day time period prescribed
herein is computed by excluding the first day and including the last day,
unless the last day is a Saturday, Sunday, or holiday and then it is also
excluded, and the thirty-day time period runs until the end of the next day [which]
that is not a Saturday, Sunday, or a holiday. "Holiday"
includes any day designated as a holiday pursuant to section 8-1[.];
(5) Any person claiming seized property may seek remission or mitigation of the forfeiture by timely filing a petition with the attorney general. A petition for remission or mitigation shall not be used to challenge the sufficiency of the evidence to support the forfeiture or the actions of any government official but shall presume a valid forfeiture and ask the attorney general to invoke the executive power to pardon the property, in whole or in part. The petition shall be signed by the petitioner and sworn on oath before a notary public and shall contain the following:
(a) A reasonably complete description of the property;
(b) A statement of the interest of the petitioner in the property, as owner or interest-holder, which may be supported by bills of sale, contracts, or mortgages, or other documentary evidence; and
(c) Facts and circumstances sufficient to show whether the petitioner:
(i) Owns or holds an interest in the seized property as defined by section 712A-1;
(ii) Had any knowledge that the property was or would be involved in any violation of the law;
(iii) Had any knowledge of the particular
violation [which] that subjected the property to seizure and
forfeiture;
(iv) Had any knowledge that the user of the
property had any record, including arrests, except when the person was
acquitted or the charges dismissed due to lack of evidence, for the violation [which]
that subjected the property to seizure and forfeiture or for any crime [which]
that is similar in nature.
Any subsequent pleadings or written
communications alleging matters pertaining to [[]subparagraph[]]
(b) or (c) of this [[]paragraph[]] must also be signed by the
petitioner and sworn on oath before a notary public[.];
(6) If the attorney general, with sole discretion,
determines that remission is not warranted, the attorney general may
discretionarily mitigate the forfeiture where the petitioner has not met the
minimum requirements for remission but where there are present other
extenuating circumstances indicating that some relief should be granted to
avoid extreme hardship. Mitigation may also be granted where the minimum
requirements for remission have been met but the overall circumstances are such
that the attorney general determines that complete relief is not warranted.
Mitigation shall take the form of a money penalty imposed upon the petitioner,
which shall be deposited into the criminal forfeiture special fund
established under section [712A-16.] 712A- .
Extenuating circumstances include:
(a) Language or culture barrier;
(b) Humanitarian factors such as youth or extreme age;
(c) Presence of physical or mental disease, disorder, or defect;
(d) Limited or peripheral criminal culpability;
(e) Cooperation with the seizing agency or the prosecuting attorney; and
(f) Any contributory error on the part of
government officials[.];
(7) [It shall be the duty of the] The
attorney general [to] shall inquire into the facts and
circumstances alleged in a petition for remission or mitigation of forfeiture.
However, no petitioner is entitled to a hearing on the petition for remission
or mitigation. Hearings, if any, shall be held at the discretion of the
attorney general[.];
(8) The attorney general shall provide the seizing
agency and the petitioner a written decision on each petition for remission or
mitigation within sixty days of receipt of the petition unless the
circumstances of the case require additional time, in which case the attorney
general shall notify the petitioner in writing and with specificity within the
sixty-day period that the circumstances of the case require additional time and
further notify the petitioner of the expected decision date[.];
(9) Any person claiming seized property may seek judicial
review of the seizure and proposed forfeiture by timely filing with the
attorney general a claim and bond to the State in the amount of ten per cent of
the estimated value of the property or in the sum of $2,500, whichever is
greater, with sureties to be approved by the attorney general, upon condition
that if the claimant fails to prove that claimant's interest is exempt from
forfeiture under section 712A-5, the claimant shall pay the State's costs and
expenses, including reasonable attorneys fees incurred in connection with a
judicial proceeding. In lieu of a cost bond, a claimant may file an in
pauperis bond sworn on oath before a notary public. An in pauperis bond shall
be in the form set out in the appendix to the rules of penal procedure. The
claim shall be signed by the claimant and sworn on oath before a notary public
and shall comply with the requirements of section 712A-12(5). Upon receipt of
the claim and bond, the attorney general shall notify the prosecuting attorney
who may discretionarily continue to seek forfeiture by petitioning the circuit
court for forfeiture of the property within forty-five days of receipt of
notice that a proper claim and bond has been filed. The prosecuting attorney
may also elect to honor the claim in which case the prosecuting attorney shall
notify the seizing agency and authorize the release of the seizure for
forfeiture on the property or on any specified interest in it[.];
(10) If a judicial forfeiture proceeding is instituted
subsequent to notice of administrative forfeiture pursuant to paragraph (9), no
duplicate or repetitive notice shall be required. The judicial proceeding, if
any, shall adjudicate all timely filed claims. At the judicial proceeding, the
claimant may testify, present evidence and witnesses on the claimant's behalf,
and cross-examine witnesses who appear at the hearing. The State may present
evidence and witnesses in rebuttal and in defense of its claim to the property
and cross-examine witnesses who appear at the hearing. The State has the
initial burden of showing by a preponderance of the evidence that the
claimant's interest in the property is subject to forfeiture. On such a
showing by the State, the claimant has the burden of showing by a preponderance
of the evidence that the claimant's interest in the property is not subject to
forfeiture[.];
(11) [In the event] If a claim and bond
has not been filed in substantial compliance with this section, or if the
attorney general, with sole discretion, determines that remission or mitigation
is not warranted, the attorney general shall order forfeited all property
seized for forfeiture. [In the event] If the attorney general,
with sole discretion, determines that remission or mitigation is warranted, the
attorney general shall notify the seizing agency and the prosecuting attorney
and order the release of the seizure for forfeiture on the property or on any
specified interest in it. There shall be no appeal from the attorney general's
decision or order of forfeiture or remission or mitigation[.]; and
(12) Administrative proceedings and the adoption of
rules under this section are exempt from the requirements of chapter 91, [the
Hawaii administrative procedure act,] and are adjudicatory functions for
the purposes of applicable sections of the Hawaii Revised Statutes."
SECTION 4. Section 712A-16, Hawaii Revised Statutes, is amended to read as follows:
"§712A-16 Disposition of property forfeited. (1) All property forfeited to the State under this chapter shall be transferred to the attorney general who:
[(a) May transfer property, other than
currency, which shall be distributed in accordance with subsection (2) to any
local or state government entity, municipality, or law enforcement agency
within the State;
(b)] (a) May sell forfeited property
to the public by public sale; provided that for leasehold real property:
(i) The attorney general shall first offer the
holder of the immediate reversionary interest the right to acquire the
leasehold interest and any improvements built or paid for by the lessee for the
then fair market value of the leasehold interest and improvements. The holder
of the immediate reversionary interest shall have thirty days after receiving
written notice within which to accept or reject the offer in writing; provided
that the offer shall be deemed to be rejected if the holder of the immediate
reversionary interest has not communicated acceptance to the attorney general
within the thirty-day period. The holder of the immediate reversionary
interest shall have thirty days after acceptance to tender to the attorney
general the purchase price for the leasehold interest and any improvements,
upon which tender the leasehold interest and improvements shall be conveyed to
the holder of the immediate reversionary interest[.];
(ii) If the holder of the immediate
reversionary interest fails to exercise the right of first refusal provided in
subparagraph (i), the attorney general may proceed to sell the leasehold
interest and any improvements by public sale[.]; and
(iii) Any dispute between the attorney general and the holder of the immediate reversionary interest as to the fair market value of the leasehold interest and improvements shall be settled by arbitration pursuant to chapter 658A;
[(c)] (b) May sell or destroy all raw
materials, products, and equipment of any kind used or intended for use in
manufacturing, compounding, or processing a controlled substance or any untaxed
cigarettes in violation of chapter 245;
[(d)] (c) May compromise and pay valid
claims against property forfeited pursuant to this chapter; or
[(e)] (d) May make any other
disposition of forfeited property authorized by law.
(2) All forfeited property and the sale
proceeds thereof[, up to a maximum of three million dollars per year, not
previously transferred pursuant to [subsection] (1)(a) of this section,]
shall, after payment of expenses of administration and sale, be [distributed
as follows:
(a) One quarter shall be distributed to
the unit or units of state or local government [whose] officers or employees
conducted the investigation and caused the arrest of the person whose property
was forfeited or seizure of the property for forfeiture;
(b) One quarter shall be distributed to
the prosecuting attorney who instituted the action producing the forfeiture;
and
(c) One half shall be] deposited into
the criminal forfeiture special fund established [by this chapter.]
under section 712A- .
[(3) Property and money distributed to
units of state and local government shall be used for law enforcement purposes,
and shall complement but not supplant the funds regularly appropriated for such
purposes.
(4) There is established in the department
of the attorney general a revolving fund to be known as the criminal forfeiture
fund, hereinafter referred to as the "fund" in which shall be
deposited one-half of the proceeds of a forfeiture and any penalties paid
pursuant to section 712A-10(6). All moneys in the fund shall be expended by
the attorney general and are hereby appropriated for the following purposes:
(a) The payment of any expenses necessary
to seize, detain, appraise, inventory, safeguard, maintain, advertise, or sell
property seized, detained, or forfeited pursuant to this chapter or of any
other necessary expenses incident to the seizure, detention, or forfeiture of
such property and such contract services and payments to reimburse any federal,
state, or county agency for any expenditures made to perform the foregoing
functions;
(b) The payment of awards for information
or assistance leading to a civil or criminal proceeding;
(c) The payment of supplemental sums to
state and county agencies for law enforcement purposes;
(d) The payment of expenses arising in
connection with programs for training and education of law enforcement officers;
and
(e) The payment of expenses arising in
connection with enforcement pursuant to the drug nuisance abatement unit in the
department of the attorney general.
(5)] (3) The attorney general
may, without regard to the requirements of chapter 91, [promulgate] adopt
rules [and regulations] concerning the disposition of property[, the
use of the fund,] and compromising and paying valid claims against property
forfeited pursuant to this chapter.
[(6)] (4) Not less than twenty
days prior to the convening of each regular session, the attorney general shall
provide to the legislature a report on the use of the Hawaii omnibus criminal
forfeiture act during the fiscal year preceding the legislative session. The
report shall include:
(a) The total amount and type of property seized by law enforcement agencies;
(b) The total number of administrative and judicial actions filed by prosecuting attorneys and the disposition thereof;
(c) The total number of claims or petitions for remission or mitigation filed in administrative actions and the dispositions thereof;
(d) The total amount and type of property forfeited and the sale proceeds thereof; and
[(e) The total amount and type of property
distributed to units of state and local government;
(f)] (e) The amount of money deposited
into the criminal forfeiture special fund[; and
(g) The amount of money expended by the
attorney general from the criminal forfeiture fund under subsection (5) and the
reason for the expenditures]."
SECTION 5. Act 161, Session Laws of Hawaii 2016, is amended as follows:
1. By amending section 7 to read:
"SECTION 7. This Act shall take effect on July 1, 2017; provided that:
(1) Section 4 of this Act shall take effect on July 1, 2016;
(2) The sum appropriated by section 4 of this Act shall serve as the source of funding for the establishment of the law enforcement officer independent review board and expenses arising in connection with the board; and
(3) This Act shall be repealed on June 30, 2022[, and
section 712A-16, Hawaii Revised Statutes, shall be reenacted in the form in
which it read on June 30, 2017]."
2. By repealing section 2:
[SECTION 2. Section 712A-16, Hawaii
Revised Statutes, is amended by amending subsection (4) to read as follows:
"(4) There is established in the
department of the attorney general a revolving fund to be known as the criminal
forfeiture fund, hereinafter referred to as the "fund" in which shall
be deposited one-half of the proceeds of a forfeiture and any penalties paid
pursuant to section 712A-10(6). All moneys in the fund shall be expended by
the attorney general and are appropriated for the following purposes:
(a) The payment of any expenses necessary
to seize, detain, appraise, inventory, safeguard, maintain, advertise, or sell
property seized, detained, or forfeited pursuant to this chapter or of any
other necessary expenses incident to the seizure, detention, or forfeiture of
such property and such contract services and payments to reimburse any federal,
state, or county agency for any expenditures made to perform the foregoing
functions;
(b) The payment of awards for information
or assistance leading to a civil or criminal proceeding;
(c) The payment of supplemental sums to
state and county agencies for law enforcement purposes;
(d) The payment of expenses arising in
connection with programs for training and education of law enforcement
officers;
(e) The payment of expenses arising in
connection with enforcement pursuant to the drug nuisance abatement unit in the
department of the attorney general; and
(f) The payment of expenses arising in
connection with the law enforcement officer independent review board in the
department of the attorney general."]
SECTION 6. All unencumbered and unexpended moneys remaining on balance at the close of June 30, 2017, in the criminal forfeiture fund established under section 712A-16(4), Hawaii Revised Statutes, as that section read one day prior to the effective date of this Act, shall be transferred to the credit of the criminal forfeiture special fund established in section 1 of this Act.
SECTION 7. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.
SECTION 8. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 9. This Act shall take effect on July 1, 2017; provided that section 5 of this Act shall take effect on June 30, 2017.
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INTRODUCED BY: |
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Report Title:
Property; Hawaii Omnibus Criminal Forfeiture Act
Description:
Prohibits civil asset forfeiture based upon the commission of a covered offense, with regard to the property owner's interest, unless the property owner has been convicted of the offense. Requires the deposit of all proceeds from forfeitures into a special fund administered by the Legislature to provide assistance to crime victims and their families.
The summary description of legislation appearing on this page is for informational purposes only and is not legislation or evidence of legislative intent.
