Bill Text: MI HB4325 | 2009-2010 | 95th Legislature | Introduced
Bill Title: Criminal procedure; forfeiture; forfeiture of assets in crimes involving identity theft; provide for. Amends 2004 PA 452 (MCL 445.61 - 445.77) by adding secs. 19a, 19b & 19c. TIE BAR WITH: SB 0223'09, SB 0225'09, SB 0226'09
Spectrum: Moderate Partisan Bill (Democrat 6-1)
Status: (Passed) 2010-12-29 - Assigned Pa 314'10 [HB4325 Detail]
Download: Michigan-2009-HB4325-Introduced.html
HOUSE BILL No. 4325
February 18, 2009, Introduced by Reps. Spade, DeShazor, Lemmons, Tlaib, Leland, Switalski and Bauer and referred to the Committee on Judiciary.
A bill to amend 2004 PA 452, entitled
"Identity theft protection act,"
(MCL 445.61 to 445.77) by adding sections 14, 14a, 14b, 14c, and
14d.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 14. The following property is subject to forfeiture under
this act:
(a) Equipment of any kind that is used or intended to be used
to commit a felony violation of this act.
(b) Except as provided in subparagraphs (i) to (iii), a
conveyance, including an aircraft, vehicle, or vessel used or
intended to be used to facilitate the transportation of property
described in subdivision (a):
(i) A conveyance used by a person as a common carrier in the
transaction of business as a common carrier is not subject to
forfeiture unless the owner or other person in charge of the
conveyance is a consenting party or privy to a violation of this
act.
(ii) A conveyance is not subject to forfeiture by reason of any
act or omission established by the owner of that conveyance to have
been committed or omitted without the owner's knowledge or consent.
(iii) A forfeiture of a conveyance encumbered by a bona fide
security interest is subject to the interest of the secured party
who neither had knowledge of nor consented to the act or omission.
(c) Books, records, and research products and materials,
including formulas, microfilm, tapes, and data used, or intended
for use, to commit a felony violation of this act.
(d) Any thing of value that is furnished or intended to be
furnished in exchange for identity information obtained in a felony
violation of this act or that is used or intended to be used to
facilitate any felony violation of this act, including, but not
limited to, money, negotiable instruments, or securities. To the
extent of the interest of an owner, a thing of value is not subject
to forfeiture under this subdivision by reason of any act or
omission that is established by the owner of the item to have been
committed or omitted without the owner's knowledge or consent. Any
money that is found in close proximity to any property that is
subject to forfeiture under subdivision (a), (b), or (c) is
presumed to be subject to forfeiture under this subdivision. This
presumption may be rebutted by clear and convincing evidence.
Sec. 14a. Property that is subject to forfeiture under this
act may be seized upon process issued by the circuit court having
jurisdiction over the property. Seizure without process may be made
under any of the following circumstances:
(a) Incident to a lawful arrest, pursuant to a search warrant,
or pursuant to an inspection under an administrative inspection
warrant.
(b) The property is the subject of a prior judgment in favor
of this state in an injunction or forfeiture proceeding under this
act.
(c) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(d) There is probable cause to believe that the property was
used or is intended to be used to commit a felony violation of this
act.
Sec. 14b. (1) If property is seized under section 14a,
forfeiture proceedings shall be instituted promptly. However, if
the property is seized without process as provided under section
14a, and the total value of the property seized does not exceed
$50,000.00, the following procedure shall be used:
(a) The local unit of government that seized the property or,
if the property was seized by the state, the state shall notify the
owner of the property that the property has been seized, and that
the local unit of government or, if applicable, the state intends
to forfeit and dispose of the property by delivering a written
notice to the owner of the property or by sending the notice to the
owner by certified mail. If the name and address of the owner are
not reasonably ascertainable, or delivery of the notice cannot be
reasonably accomplished, the notice shall be published in a
newspaper of general circulation in the county in which the
property was seized, for 10 successive publishing days.
(b) Unless all criminal proceedings involving or relating to
the property have been completed, the seizing agency shall
immediately notify the prosecuting attorney for the county in which
the property was seized or, if the attorney general is actively
handling a case involving or relating to the property, the attorney
general of the seizure of the property and the intention to forfeit
and dispose of the property.
(c) Any person claiming an interest in property that is the
subject of a notice under subdivision (a) may, within 20 days after
receipt of the notice or of the date of the first publication of
the notice, file a written claim signed by the claimant with the
local unit of government or the state expressing his or her
interest in the property. Upon the filing of the claim and the
giving of a bond to the local unit of government or the state in
the amount of 10% of the value of the claimed property, but not
less than $250.00 or greater than $5,000.00, with sureties approved
by the local unit of government or the state containing the
condition that if the property is ordered forfeited by the court
the obligor shall pay all costs and expenses of the forfeiture
proceedings. The local unit of government or, if applicable, the
state shall transmit the claim and bond with a list and description
of the property seized to the attorney general, the prosecuting
attorney for the county, or the city or township attorney for the
local unit of government in which the seizure was made. The
attorney general, the prosecuting attorney, or the city or township
attorney shall promptly institute forfeiture proceedings after the
expiration of the 20-day period. However, unless all criminal
proceedings involving or relating to the property have been
completed, a city or township attorney shall not institute
forfeiture proceedings without the consent of the prosecuting
attorney or, if the attorney general is actively handling a case
involving or relating to the property, the attorney general.
(d) If no claim is filed or bond given within the 20-day
period as described in subdivision (c), the local unit of
government or the state shall declare the property forfeited and
shall dispose of the property as provided under section 14c.
However, unless all criminal proceedings involving or relating to
the property have been completed, the local unit of government or
the state shall not dispose of the property under this subdivision
without the written consent of the prosecuting attorney or, if the
attorney general is actively handling a case involving or relating
to the property, the attorney general.
(2) Property taken or detained under this act is not subject
to an action to recover personal property, but is considered to be
in the custody of the seizing agency subject only to this section
or an order and judgment of the court having jurisdiction over the
forfeiture proceedings. When property is seized under this act, the
seizing agency may do any of the following:
(a) Place the property under seal.
(b) Remove the property to a place designated by the court.
(c) Require the department of state police to take custody of
the property and remove it to an appropriate location for
disposition in accordance with law.
(d) Deposit money seized under this act into an interest-
bearing account in a financial institution. As used in this
subdivision, "financial institution" means a state or nationally
chartered bank or a state or federally chartered savings and loan
association, savings bank, or credit union whose deposits are
insured by an agency of the United States government and that
maintains a principal office or branch office located in this state
under the laws of this state or the United States.
(3) Title to real property forfeited under this act shall be
determined by a court of competent jurisdiction. A forfeiture of
real property encumbered by a bona fide security interest is
subject to the interest of the secured party who neither had
knowledge of nor consented to the act or omission.
(4) An attorney for a person who is charged with a crime
involving or related to the money seized under this act shall be
afforded a period of 60 days within which to examine that money.
This 60-day period shall begin to run after notice is given under
subsection (1)(a) but before the money is deposited into a
financial institution under subsection (2)(d). If the attorney
general, prosecuting attorney, or city or township attorney fails
to sustain his or her burden of proof in forfeiture proceedings
under this act, the court shall order the return of the money,
including any interest earned on money deposited into a financial
institution under subsection (2)(d).
Sec. 14c. (1) When property is forfeited under this act, the
local unit of government that seized the property may do any of the
following, or if the property is seized by or in the custody of the
state, the state may do any of the following, subject to section
14b(1)(d):
(a) Retain it for official use.
(b) Sell that which is not required to be destroyed by law and
which is not harmful to the public. The proceeds and any money,
negotiable instruments, securities, or any other thing of value as
described in section 14 that are forfeited under this act shall be
deposited with the treasurer of the entity having budgetary
authority over the seizing agency and applied as follows:
(i) For the payment of proper expenses of the proceedings for
forfeiture and sale, including expenses incurred during the seizure
process, maintenance of custody, advertising, and court costs,
except as otherwise provided in subsection (4).
(ii) The balance remaining after the payment of expenses shall
be distributed by the court having jurisdiction over the forfeiture
proceedings to the treasurer of the entity having budgetary
authority over the seizing agency. If more than 1 agency was
substantially involved in effecting the forfeiture, the court
having jurisdiction over the forfeiture proceeding shall equitably
distribute the money among the treasurers of the entities having
budgetary authority over the seizing agencies. A seizing agency may
direct that the funds or a portion of the funds it would otherwise
have received under this subsection be paid to nonprofit
organizations whose primary activity is to assist law enforcement
agencies with identity theft criminal investigations and obtaining
information for solving crimes. The money received by a seizing
agency under this subparagraph and all interest and other earnings
on money received by the seizing agency under this subparagraph
shall be used to enhance law enforcement efforts pertaining to this
act, as appropriated by the entity having budgetary authority over
the seizing agency.
(c) Forward it to the department of state police for
disposition.
(2) In the course of selling real property under subsection
(1)(b), the court that has entered an order of forfeiture may, on
motion of the agency to whom the property has been forfeited,
appoint a receiver to dispose of the real property forfeited. The
receiver shall be entitled to reasonable compensation. The receiver
may do 1 or more of the following:
(a) List the forfeited real property for sale.
(b) Make whatever arrangements are necessary for the
maintenance and preservation of the forfeited real property.
(c) Accept offers to purchase the forfeited real property.
(d) Execute instruments transferring title to the forfeited
real property.
(3) If a court enters an order of forfeiture, the court may
order a person who claimed an interest in the forfeited property
under section 14b(1)(c) to pay the expenses of the proceedings of
forfeiture to the entity having budgetary authority over the
seizing agency.
Sec. 14d. (1) Before February 1 of each year, each local unit
of government that had forfeiture proceedings pending in the
circuit court under section 14b; or effectuated a forfeiture of
property under section 14b without a forfeiture proceeding in the
circuit court; or received money, negotiable instruments,
securities, or any other thing of value under section 14c during
the fiscal year for the local unit of government ending in the
immediately preceding calendar year shall submit a report to the
state attorney general for analysis and transmittal to the
secretary of the senate and the clerk of the house of
representatives. The annual report shall be a summary of the local
unit of government's activities regarding the forfeiture of
property under this act for the fiscal year and shall contain the
following information, as applicable:
(a) The number of forfeiture proceedings that were instituted
in the circuit court by the local unit of government.
(b) The number of forfeiture proceedings instituted by the
local unit of government that were concluded in the circuit court.
(c) The number of all forfeiture proceedings instituted by the
local unit of government that were pending in the circuit court at
the end of the year.
(d) The number of forfeitures accomplished by the local unit
of government without filing a forfeiture proceeding in the circuit
court.
(e) The net total proceeds of all property forfeited under
this act through forfeitures instituted by the local unit of
government that the local unit of government is required to account
for and report to the state treasurer pursuant to either of the
following, as applicable:
(i) 1919 PA 71, MCL 21.41 to 21.55.
(ii) The uniform budgeting and accounting act, 1968 PA 2, MCL
141.421 to 141.440a.
(f) An inventory of property received by the local unit of
government under section 14c, including, but not limited to, all of
the following:
(i) All of the following real property:
(A) Single-family residential.
(B) Multiple-family residential.
(C) Industrial.
(D) Commercial.
(E) Agricultural.
(ii) Any type of conveyance described in section 14, including
the year, make, and model.
(iii) Money, negotiable instruments, and securities.
(iv) The total value of personal property, excluding personal
property described in subparagraphs (ii) and (iii).
(g) A statement explaining how the money received by the local
unit of government under section 14c(1)(b)(ii) has been used or is
being used to enhance the law enforcement efforts pertaining to
this act.
(2) The records of a local unit of government described in
subsection (1) regarding the forfeiture of property under this act
shall be audited in accordance with 1 of the following, as
applicable:
(a) 1919 PA 71, MCL 21.41 to 21.55.
(b) The uniform budgeting and accounting act, 1968 PA 2, MCL
141.421 to 141.440a.
(3) The records of a local unit of government described in
subsection (1) regarding the forfeiture of property under this act
may be audited by an auditor of the local unit of government.
Enacting section 1. This amendatory act takes effect November
1, 2009.
