Bill Text: MI HB5730 | 2009-2010 | 95th Legislature | Introduced

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Bill Title: Civil procedure; other; release of vehicle seized under the Michigan penal code if person arrested is released without charges, person arrested is acquitted, or charges are dismissed; provide for. Amends secs. 159n & 535a of 1931 PA 328 (MCL 750.159n & 750.535a). TIE BAR WITH: HB 5725'09

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Introduced - Dead) 2009-12-30 - Printed Bill Filed 12/21/2009 [HB5730 Detail]

Download: Michigan-2009-HB5730-Introduced.html

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HOUSE BILL No. 5730

 

December 18, 2009, Introduced by Reps. Bettie Scott, Valentine, Tlaib, Melton, Womack, Geiss, Constan, Liss and Cushingberry and referred to the Committee on Judiciary.

 

     A bill to amend 1931 PA 328, entitled

 

"The Michigan penal code,"

 

by amending sections 159n and 535a (MCL 750.159n and 750.535a),

 

section 159n as added by 1995 PA 187 and section 535a as amended by

 

2006 PA 129.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     Sec. 159n. (1) A civil in rem forfeiture proceeding under this

 

chapter is a proceeding against property subject to forfeiture

 

under section 159m instituted by the filing of a petition by the

 

prosecuting agency.

 

     (2) Personal or intangible property subject to civil in rem

 

forfeiture under section 159m may be seized pursuant to an order of

 

seizure issued by the court having jurisdiction over the property.

 

     (3) Upon an ex parte application by the prosecuting agency,

 

before or after the initiation of a civil in rem forfeiture

 

proceeding, the court may determine ex parte whether there is

 

probable cause to believe that personal or intangible property is

 

subject to civil in rem forfeiture under section 159m and that

 

notice to those persons having or claiming an interest in the

 

property before seizure would cause the loss or destruction of the

 

property. In making this determination, the court shall, as a

 

matter of law, make a determination that the property constituted

 

an interest in, means of control over, or influence over an

 

enterprise involved in a violation of section 159i. If the court

 

finds that probable cause does not exist to believe the property is

 

subject to forfeiture under this act, the court shall dismiss the

 

plaintiff prosecuting agency's application and, if a civil in rem

 

forfeiture proceeding has been initiated, shall dismiss the

 

petition. If the court finds that probable cause does exist to

 

believe the property is subject to forfeiture but there is not

 

probable cause to believe that prior notice would result in loss or

 

destruction of the property, the court shall order service on all

 

persons known to have or claim an interest in the property before a

 

further hearing on whether an order of seizure should issue. If the

 

court finds that there is probable cause to believe that the

 

property is subject to forfeiture and to believe that prior notice

 

would cause loss or destruction of the property, the court shall

 

issue an order of seizure directing the sheriff or other law

 

enforcement officer in the county where the property is found to

 

seize it.

 

     (4) Personal or intangible property subject to civil in rem

 

forfeiture under this chapter may be seized without process under

 

any of the following circumstances:

 

     (a) The seizure is incident to a lawful arrest.

 

     (b) The seizure is pursuant to a valid search warrant.

 

     (c) The seizure is pursuant to an inspection under a valid

 

administrative inspection warrant.

 

     (d) There is probable cause to believe that the property is

 

directly or indirectly dangerous to health or safety.

 

     (e) Exigent circumstances exist that preclude the obtaining of

 

a court order, and there is probable cause to believe that the

 

property is subject to civil in rem forfeiture under section 159m.

 

     (f) The property is the subject of a prior judgment in favor

 

of this state in a forfeiture proceeding.

 

     (5) The prosecuting agency may apply ex parte for an order

 

authorizing the filing of a lien notice against real property

 

subject to civil in rem forfeiture under section 159m. The

 

application shall be supported by a sworn affidavit setting forth

 

probable cause for a civil in rem forfeiture action pursuant to

 

sections 159m to 159q. An order authorizing the filing of a lien

 

notice may be issued upon a showing of probable cause to believe

 

that the property is subject to civil in rem forfeiture under

 

section 159m.

 

     (6) Real property shall not be seized without notice and a

 

hearing.

 

     (7) Property that belongs to the victim of a crime shall

 

promptly be returned to the victim, except in the following

 

circumstances:

 

     (a) The property is contraband.

 

     (b) If the ownership of the property is disputed, until the

 

dispute is resolved.

 

     (c) The property is required to be retained as evidence

 

pursuant to section 4(4) of the William Van Regenmorter crime

 

victim's rights act, Act No. 87 of the Public Acts of 1985, being

 

section 780.754 of the Michigan Compiled Laws 1985 PA 87, MCL

 

780.754.

 

     (8) Personal or intangible property seized under this section

 

is not subject to any other action to recover personal property,

 

but is considered to be in the custody of the seizing agency

 

subject only to this chapter, or to an order and judgment of the

 

court having jurisdiction over the civil in rem forfeiture

 

proceedings. When property is seized under this section, the

 

seizing agency may do 1 or more of the following:

 

     (a) Place the property under seal.

 

     (b) Remove the property to a place designated by the court.

 

     (9) Section 2977 of the revised judicature act of 1961, 1961

 

PA 236, MCL 600.2977, applies to a motor vehicle that has been

 

seized under this section but not finally forfeited.

 

     Sec. 535a. (1) As used in this section:

 

     (a) "Bona fide purchaser for value" means a person who

 

purchases property for value in good faith and without notice of

 

any adverse claim to the property.

 

     (b) "Chop shop" means any of the following:

 

     (i) Any area, building, storage lot, field, or other premises

 

or place where 1 or more persons are engaged or have engaged in

 

altering, dismantling, reassembling, or in any way concealing or

 

disguising the identity of a stolen motor vehicle or of any major

 

component part of a stolen motor vehicle.

 

     (ii) Any area, building, storage lot, field, or other premises

 

or place where there are 3 or more stolen motor vehicles present or

 

where there are major component parts from 3 or more stolen motor

 

vehicles present.

 

     (c) "Major component part" means 1 of the following parts of a

 

motor vehicle:

 

     (i) The engine.

 

     (ii) The transmission.

 

     (iii) The right or left front fender.

 

     (iv) The hood.

 

     (v) A door allowing entrance to or egress from the passenger

 

compartment of the vehicle.

 

     (vi) The front or rear bumper.

 

     (vii) The right or left rear quarter panel.

 

     (viii) The deck lid, tailgate, or hatchback.

 

     (ix) The trunk floor pan.

 

     (x) The cargo box of a pickup.

 

     (xi) The frame, or if the vehicle has a unitized body, the

 

supporting structure or structures that serve as the frame.

 

     (xii) The cab of a truck.

 

     (xiii) The body of a passenger vehicle.

 

     (xiv) An airbag or airbag assembly.

 

     (xv) A wheel or tire.

 

     (xvi) Any other part of a motor vehicle that the secretary of

 

state determines is comparable in design or function to any of the

 

parts listed in subparagraphs (i) to (xv).

 

     (d) "Motor vehicle" means either of the following:

 

     (i) A device in, upon, or by which a person or property is or

 

may be transported or drawn upon a highway that is self-propelled

 

or that may be connected to and towed by a self-propelled device.

 

     (ii) A land-based device that is self-propelled but not

 

designed for use upon a highway, including, but not limited to,

 

farm machinery, a bulldozer, or a steam shovel.

 

     (2) Except as provided in subsection (3), a person who

 

knowingly owns, operates, or conducts a chop shop or who knowingly

 

aids and abets another person in owning, operating, or conducting a

 

chop shop is guilty of a felony punishable by imprisonment for not

 

more than 10 years or a fine of not more than $250,000.00, or both.

 

     (3) Upon a second or subsequent conviction under this section,

 

the person convicted may be imprisoned for not more than 10 years

 

and shall be fined not less than $10,000.00 or more than

 

$250,000.00, or both.

 

     (4) In addition to any other punishment, a person convicted of

 

violating this section shall be ordered to make restitution to the

 

rightful owner of a stolen motor vehicle or of a stolen major

 

component part, or to the owner's insurer if the owner has already

 

been compensated for the loss by the insurer, for any financial

 

loss sustained as a result of the theft of the motor vehicle or a

 

major component part. Restitution shall be imposed in addition to,

 

but not instead of, any imprisonment or fine imposed.

 

     (5) All of the following are subject to seizure and, if a

 

person is charged with a violation or attempted violation of

 

subsection (2) and is convicted of a violation or attempted

 

violation of subsection (2) or section 415, 416, 535, or 536a,

 

subject to forfeiture:

 

     (a) An engine, tool, machine, implement, device, chemical, or

 

substance used or designed for altering, dismantling, reassembling,

 

or in any other way concealing or disguising the identity of a

 

stolen motor vehicle or any major component part.

 

     (b) A stolen motor vehicle or major component part found at

 

the site of a chop shop or a motor vehicle or major component part

 

for which that there is probable cause to believe that it is

 

stolen.

 

     (c) A wrecker, car hauler, or any other motor vehicle that is

 

used or has been used to convey or transport a stolen motor vehicle

 

or major component part.

 

     (d) Any book, record, money, negotiable instrument, or other

 

personal property or real property, except real property that is

 

the primary residence of the spouse or a dependent child of the

 

owner, that is or has been used in a chop shop operation.

 

     (6) Except as provided in subsection (7), property described

 

in subsection (5) may be seized by a state or local law enforcement

 

agency upon process issued by the recorder's court of the city of

 

Detroit or the district or circuit court having jurisdiction over

 

the property. Seizure without process may be made in any of the

 

following cases:

 

     (a) The seizure is incident to an arrest or pursuant to a

 

search warrant or an inspection under an administrative inspection

 

warrant.

 

     (b) The property subject to seizure has been the subject of a

 

prior judgment in favor of this state in a forfeiture proceeding

 

based upon this section.

 

     (c) Exigent circumstances exist that preclude obtaining

 

process and there is probable cause to believe that the property

 

was used or is intended to be used in violation of this section.

 

     (7) To retain property for which seizure and forfeiture are

 

sought under this section pending the forfeiture hearing, a

 

licensed used or secondhand vehicle parts dealer or the owner may

 

post a bond in the amount of 1-1/2 times the value of the property.

 

This subsection does not apply to a motor vehicle or major

 

component part that is to be used as evidence in a criminal

 

proceeding.

 

     (8) If property other than real property is seized under

 

subsection (6), the seizing law enforcement agency shall do 1 or

 

more of the following, subject to subsection (10):

 

     (a) Place the property under seal.

 

     (b) Remove the property to a designated storage area.

 

     (c) Petition the district or circuit court to appoint a

 

custodian to take custody of the property and to remove it to an

 

appropriate location for disposition in accordance with law.

 

     (9) The seizing agency may deposit money seized under

 

subsection (8) (6) into an interest-bearing account in a financial

 

institution. As used in this subsection, "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.

 

     (10) An attorney for a person who is charged with a violation

 

of this section involving or related to money seized by a law

 

enforcement agency under this section 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 (12) but

 

before the money is deposited into a financial institution under

 

subsection (9). If the attorney general or prosecuting attorney

 

fails to sustain his or her burden of proof in criminal proceedings

 

under this section, the court shall order the return of the money,

 

including any interest earned on money deposited into a financial

 

institution under subsection (9).

 

     (11) If property is seized without process under subsection

 

(6), within 14 days after the seizure, the seizing agency shall

 

return the property to the person from whom it was seized unless a

 

hearing has been scheduled to determine whether the seizure was

 

proper and reasonable notice of the hearing has been given.

 

     (12) The rightful owner of any property that is to be

 

forfeited under subsection (5) shall be served notice at least 10

 

days before the matter is to be heard regarding the forfeiture and,

 

if the rightful owner did not know of and did not consent to the

 

commission of the crime, the property shall be returned to the

 

rightful owner. If the rightful owner of the property is not known

 

or cannot be found, notice may be served by publishing notice of

 

the forfeiture hearing not less than 10 days before the date of the

 

hearing in a newspaper of general circulation in the county where

 

the hearing is to be held. The notice shall contain a general

 

description of the property and any serial or registration numbers

 

on the property.

 

     (13) A forfeiture of property encumbered by a bona fide

 

security interest is subject to the interest of the secured party

 

who did not know of or consent to the act or omission in violation

 

of this section.

 

     (14) Any property seized under subsection (6) that was stolen

 

shall be returned to its rightful owner if that ownership can be

 

established to the satisfaction of the seizing law enforcement

 

agency. Any stolen property that is unclaimed after seizure may be

 

sold as provided by law.

 

     (15) Section 2977 of the revised judicature act of 1961, 1961

 

PA 236, MCL 600.2977, applies to a motor vehicle that has been

 

seized under this section but not finally forfeited.

 

     (16) (15) Any property forfeited under this section may be

 

sold pursuant to an order of the court. The proceeds of the sale

 

shall be distributed by the court having jurisdiction over the

 

forfeiture proceeding to the entity having budgetary authority over

 

the seizing law enforcement agency. If more than 1 law enforcement

 

agency was substantially involved in effecting the forfeiture, the

 

court having jurisdiction over the forfeiture proceeding shall

 

distribute equitably the proceeds of the sale among the entities

 

having budgetary authority over the seizing law enforcement

 

agencies. Twenty-five percent of the money received by an entity

 

under this subsection shall be used to enhance law enforcement

 

efforts pertaining to this section.

 

     (17) (16) This section does not apply to a person who is a

 

bona fide purchaser for value of the motor vehicle or major

 

component parts. described in subsection (1).

 

     Enacting section 1. This amendatory act does not take effect

 

unless Senate Bill No.____ or House Bill No. 5725(request no.

 

01506'09) of the 95th Legislature is enacted into law.