Bill Text: MI HB4325 | 2009-2010 | 95th Legislature | Engrossed
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-Engrossed.html
HB-4325, As Passed Senate, December 2, 2010
SENATE SUBSTITUTE FOR
HOUSE BILL NO. 4325
A bill to amend 2004 PA 452, entitled
"Identity theft protection act,"
(MCL 445.61 to 445.77) by adding sections 19a, 19b, and 19c.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 19a. 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) The property is seized 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 in violation of this act.
(e) There is probable cause to believe that the property is
the proceeds from activity in violation of this act.
Sec. 19b. (1) If property is seized pursuant to section 19a,
forfeiture proceedings shall be instituted promptly. If the
property is seized without process as provided under section 19a
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. The person filing the claim shall give 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 19c.
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 administrator 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 has 60 days
within which to examine that money. This 60-day period begins 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. 19c. (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:
(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 19(d) 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 (3).
(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. 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 as
appropriated by the entity having budgetary authority over the
seizing agency. A distribution made under this subparagraph shall
serve as a supplement to, and not a replacement for, the funds
budgeted on the date that the amendatory act that added this
section takes effect for law enforcement efforts pertaining to this
act.
(c) Require the administrator to take custody of the property
and remove it for disposition in accordance with law.
(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
shall have authority to do all 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 19b(1)(c) to pay the expenses of the proceedings of
forfeiture to the entity having budgetary authority over the
seizing agency.
Enacting section 1. This amendatory act takes effect April 1,
2011.
Enacting section 2. This amendatory act does not take effect
unless all of the following bills of the 95th Legislature are
enacted into law:
(a) Senate Bill No. 223.
(b) Senate Bill No. 225.
(c) Senate Bill No. 226.
