HB 1682-FN – AS INTRODUCED
2012 SESSION
05/10
HOUSE BILL 1682-FN
AN ACT relative to forfeiture of personal property.
SPONSORS: Rep. Cohn, Merr 6; Rep. Bowers, Sull 3; Rep. D. McGuire, Merr 8
This bill recodifies RSA 617, relative to the forfeiture of personal property.
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Explanation: Matter added to current law appears in bold italics.
Matter removed from current law appears [in brackets and struckthrough.]
Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.
12-2446
05/10
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Twelve
AN ACT relative to forfeiture of personal property.
Be it Enacted by the Senate and House of Representatives in General Court convened:
1 Forfeitures of Personal Property. RSA 617 is repealed and reenacted to read as follows:
CHAPTER 617
FORFEITURES OF PERSONAL PROPERTY
617:1 Definitions. As used in this chapter, the terms defined in this section have the following meanings:
I. “Contraband” means goods that are unlawful to import, export, or possess.
II. “Conveyance” means a device used for transportation and includes a motor vehicle, trailer, snowmobile, airplane, and vessel and any equipment attached to it. The term does not include property that is stolen or taken in violation of the law.
III. “Instrumentality” means property otherwise lawful to possess that is used in an offense. An “instrumentality” includes a tool, a firearm, a conveyance, a computer, computer software, a telecommunications device, money, and other means of exchange.
IV. A “law subject to forfeiture” is a state law that carries a felony penalty and that explicitly includes forfeiture as a punishment or sanction for the offense.
617:2 Purpose. This chapter’s purpose is to:
I. Deter criminal activity by reducing its economic incentives;
II. Increase the pecuniary loss from criminal activity; and
III. Protect against the wrongful forfeiture of property.
617:3 Exclusivity. This chapter sets out the exclusive process governing forfeitures in the state and supersedes any conflicting provisions in law.
617:4 Criminal Asset Forfeiture. When a person is convicted of violating a law subject to forfeiture, the court, consistent with this chapter, shall order the person to forfeit:
I. Proceeds and property the person derived directly from the commission of the crime;
II. Proceeds and property directly traceable to proceeds and property derived directly from the commission of the crime; and
III. Instrumentalities the person used in the commission of the crime.
617:5 Conviction Required; Standard of Proof.
I. Property used in or derived from the violation of a law is subject to forfeiture only if the violation is of a law subject to forfeiture and the violation is established by proof of a criminal conviction.
II. The state shall establish that seized property is forfeitable under RSA 617:4 by clear and convincing evidence.
617:6 No Civil Asset Forfeiture. There is no civil forfeiture procedure by which the state may take possession of the proceeds and instrumentalities of a crime. All such forfeitures are criminal forfeitures subject to the requirements of this chapter.
617:7 Rule of Lenity. The court shall resolve any ambiguity in this chapter relating to the state taking property through asset forfeiture in favor of the property owner.
617:8 Court-Appointed Counsel. If a court determines that a person opposing forfeiture is financially unable to obtain representation by counsel, the court, at the request of the person, shall insure that the person is represented by an attorney at the state’s expense. The attorney shall submit a statement of reasonable fees and costs to the court in a manner directed by the court.
617:9 Authorization to Use Forfeiture.
I. Except for federal forfeitures consistent with RSA 617:38, forfeiture may occur only pursuant to an explicit grant of authority in state law. An ordinance enacted by a county, municipality, or other unit of government authorizing forfeiture is not valid.
II. A prosecutor having jurisdiction over a law subject to forfeiture has authority to pursue forfeiture.
617:10 Property Subject to Forfeiture; Contraband.
I. Property subject to forfeiture is limited to:
(a) Land, buildings, containers, conveyances, equipment, materials, products, money, securities, and negotiable instruments; and
(b) Ammunition, firearms, and ammunition-and-firearm accessories found on or in proximity to a person who violated a law subject to forfeiture or in a conveyance used to violate a law subject to forfeiture.
II. No property right exists in contraband, including scheduled drugs without a valid prescription. Contraband is subject to seizure and must be disposed of according to state law. Contraband is not subject to forfeiture under this chapter.
617:11 Substitution of Assets for Unreachable Property. Upon the state’s motion following conviction, the court may order the forfeiture of substitute property owned fully by the defendant up to the value of unreachable property only if the state proves by a preponderance of the evidence that the defendant intentionally transferred, sold, or deposited property with a third party to avoid the court’s jurisdiction.
617:12 No Additional Remedies. Except as otherwise provided in this chapter, the state may not seek additional remedies, including but not limited to personal money judgments.
617:13 No Joint-and-Several Liability; Pro Rata Forfeitures.
I. A defendant is not jointly and severally liable for forfeiture awards owed by other defendants.
II. When ownership is unclear, a court may order each defendant to forfeit property on a pro rata basis proportional to the proceeds that each defendant personally received.
Process
617:14 Designating Property Subject To Forfeiture.
I. Property subject to forfeiture must be identified by the state in an indictment of a grand jury or by information in the court in any related criminal proceeding in which a person with an interest in the property has been simultaneously charged with a violation of a law subject to forfeiture.
II. The indictment or information must specify the time and place of the violation, identify the property, and particularly describe its use in the commission of the crime or derivation from the commission of the crime.
III. At any time prior to trial, the state, with the consent of the court and any defendant with an interest in the property, may file an ancillary charge alleging that property is subject to forfeiture.
617:15 Seizure with Process. At the request of the state, a court may issue an ex parte preliminary order to seize or secure property for which forfeiture is sought and to provide for its custody. Application, issuance, execution, and return are subject to state law.
617:16 Seizure Without Process. Property subject to forfeiture may be seized without a court order if:
I. The seizure is incident to a lawful arrest or a lawful search;
II. The property subject to seizure has been the subject of a prior judgment in favor of the state; or
III. The state has probable cause to believe that the delay occasioned by the necessity to obtain process would result in the removal or destruction of the property and that the property is forfeitable under RSA 617:4.
617:17 Receipt for Seized Property. When property is seized, the law enforcement officer shall give an itemized receipt to the person in possession of the property; or in the absence of any person, leave a receipt in the place where the property was found, if reasonably possible.
617:18 Bill of Particulars. A motion for a bill of particulars may be made before arraignment, within 90 days after arraignment, or at any later time that the court permits. A bill of particulars may be amended at any time subject to conditions that justice requires.
617:19 Title.
I. At the time of seizure or entry of a restraining order, the state acquires provisional title to the seized property. Provisional title authorizes the state to hold and protect the property.
II. Title to the property vests with the state when the trier of fact renders a final forfeiture verdict and relates back to the time when the state acquired provisional title. However, this title is subject to claims by third parties adjudicated under this chapter.
617:20 Storage. When property is seized, the state shall use reasonable diligence to secure the property and prevent waste.
617:21 Records.
I. A state entity having custody of seized property that is subject to forfeiture shall maintain the following records:
(a) The exact kinds, quantities, and forms of the property.
(b) The date and from whom it received the property.
(c) The violation of law that subjected the property to seizure.
(d) The liens against the seized property.
(e) The make, model, and serial number of each seized firearm.
(f) To whom and when the notice of forfeiture was given.
(g) To whom it delivered the property.
(h) The date and manner of destruction or disposition of the property.
II. The records required under paragraph I are subject to RSA 91-A.
617:22 Bond by Owner for Possession.
I. If the owner of property that has been seized seeks its possession before the criminal trial, the owner may post bond or give substitute property in an amount equal to the fair market value of the seized property at the time the bond amount is determined.
II. On the posting of bond or the giving of substitute property, the state shall return the seized property to the owner within a reasonable period of time not to exceed 3 business days. The forfeiture action may then proceed against the bond or substitute property as if it were the seized property.
III. This section does not apply to property reasonably held for investigatory purposes.
617:23 Petition for Remission or Mitigation. Prior to the entry of a court’s order disposing of the forfeiture action, any person who has an interest in seized property may file with the state’s attorney general a petition for remission or mitigation of the forfeiture. The attorney general shall remit or mitigate the forfeiture upon terms and conditions the attorney general deems reasonable if the attorney general finds that:
I. The petitioner did not intend to violate the law; or
II. Extenuating circumstances justify the remission or mitigation of the forfeiture.
617:24 Pretrial Replevin Hearing.
I. Following the seizure of property under this chapter, a defendant or third-party has a right to a pretrial hearing to determine the validity of the seizure.
II. The claimant may claim at any time prior to 60 days before trial of the related criminal violation the right to possession of property by motion to the court to issue a writ of replevin.
III. The claimant shall file a motion establishing the validity of the alleged right, title, or interest in the property.
IV. The court shall hear the motion no more than 30 days after the motion is filed.
V. The state shall file an answer showing probable cause for the seizure, or cross motions at least 10 days before the hearing.
VI. The court shall grant the motion if it finds that:
(a) It is likely the final judgment will be that the state must return the property to the claimant; or
(b) The property is the only reasonable means for a defendant to pay for legal representation in the forfeiture or criminal proceeding.
VII. In lieu of ordering the issuance of the writ, the court may order the state to give security for satisfaction of any judgment, including damages, that may be rendered in the action, or order other relief as may be just.
617:25 Discovery. Discovery is subject to the rules of criminal procedure.
617:26 Right to Trial by Jury. Any party to a forfeiture action has a right to trial by jury.
617:27 Trial Proceedings.
I. A trial related to the forfeiture of property must be held in a single proceeding together with the trial of the related alleged crime unless the defendant moves to bifurcate the trial.
II. The court, upon motion of a defendant, shall separate the trial of the criminal matter against the defendant from the matter related to the forfeiture of property.
III. The court, upon motion of a defendant, shall allow a defendant to waive the right to trial by jury related to the forfeiture of property while preserving the right to trial by jury of any crime alleged.
IV. If the court bifurcates the jury trial, the court shall first instruct and submit to the jury the issue of the guilt or innocence of the defendant to be determined by proof beyond a reasonable doubt and shall restrict argument of counsel to those issues.
V. If the court bifurcates the jury trial, each party may introduce evidence in the forfeiture phase that was not introduced in the criminal phase.
VI. If the jury finds a defendant guilty of the related criminal offense and the defendant did not waive the right to trial by jury related to the forfeiture, the court shall instruct and submit to the jury the issue of the forfeiture. The court may use interrogatories to address the forfeiture issue.
617:28 Proportionality.
I. Following determination by the trier of fact, the owner may petition the court to determine whether the forfeiture is unconstitutionally excessive under the state or federal constitution.
II. The owner has the burden of establishing that the forfeiture is grossly disproportional to the seriousness of the offense by a preponderance of the evidence at a hearing conducted by the court without a jury.
III. In determining whether the forfeiture of an instrumentality is constitutionally excessive, the court shall consider all relevant factors, including, but not limited to:
(a) The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused by the person whose property is subject to forfeiture;
(b) The extent to which the person whose property is subject to forfeiture participated in the offense;
(c) The extent to which the property was used in committing the offense;
(d) The sentence imposed for committing the crime subject to forfeiture; and
(e) Whether the offense was completed or attempted.
IV. In determining the value of the instrumentality subject to forfeiture, the court shall consider relevant factors, including, but not limited to:
(a) The fair market value of the property;
(b) The value of the property to the person whose property is subject to forfeiture including hardship to the owner if the forfeiture is realized; and
(c) The hardship from the loss of a motor vehicle or other property to family members or others if the property is forfeited assets.
V. The court may not consider the value of the instrumentality to the state in determining whether the forfeiture of an instrumentality is constitutionally excessive.
Third-Party Interests
617:29 Secured Interest.
I. A bona fide security interest is not subject to forfeiture unless the person claiming a security interest had actual knowledge that the property was subject to forfeiture at the time of the property was seized or restrained under this chapter.
II. A person claiming a security interest bears the burden of establishing that the validity of the interest by a preponderance of the evidence.
617:30 Ancillary Hearing of Third-Party Interests.
I. A person not charged in the indictment or information but who has an interest in property subject to forfeiture may not intervene after the criminal trial has begun.
II. Following the entry of a verdict of forfeiture of property pursuant to this chapter or the entry of a guilty plea in court on the record, the state shall exercise reasonable diligence to identify persons with a potential interest in the property and make reasonable efforts to give notice to potential claimants. The state shall provide written notice of its intent to dispose of the property to any person known or alleged to have an interest in the property exempted from forfeiture under this chapter, including any person potentially making claims for court-ordered child support; employment-related compensation; or payment of unsecured debts. The notice must also be made by publication in a reasonable geographic area.
III. A person other than the defendant asserting a legal interest in the property, within 60 days of the date of the notice, may petition the court for a hearing to adjudicate the validity of the alleged interest in the property. The request for the hearing must be signed by the petitioner under penalty of perjury and state the nature and extent of the petitioner’s right, title, or interest in the property; the time and circumstances of the petitioner’s acquisition of the right, title, or interest; and any additional facts supporting the petitioner’s claim and the relief sought.
IV. Upon the filing of a petition, the court shall schedule the hearing as soon as practicable but in no event later than 6 months after the sentencing of any defendant convicted upon the same indictment. The court shall issue or amend a final order of forfeiture in accordance with its determination if, after the hearing, the court determines that:
(a) The petitioner has a legal right, title, or interest in the property, and such right, title or interest renders the order of forfeiture invalid in whole or in part because the right, title or interest was vested in the petitioner rather the defendant or was superior to any right, title or interest of the defendant at the time of the property was seized or restrained under this chapter; or
(b) The petitioner is a bona fide purchaser for value of the right, title, or interest in the property and was at the time of purchase without cause to believe that the property was subject to forfeiture under this chapter. The state has the burden of proof with respect to the issue of whether the petitioner was without cause to believe that the property was subject to forfeiture at the time of purchase or other acquisition of value.
V. A qualified indigent who wishes to contest the forfeiture of property and appears to have an exempt interest has a right to court-appointed counsel as provided in RSA 617:8. In addition, the court shall waive the person’s court fees.
617:31 Innocent Partial or Joint Owner.
I. The property of an innocent partial or joint owner may not be forfeited under any forfeiture statute. The process for determining whether a person is an innocent partial or joint owner is set out in this section.
II. A person who has any form of partial or joint interest, including joint tenancy, tenancy in common, or tenancy by the entirety, in property subject to forfeiture existing at the time the illegal conduct giving rise to forfeiture occurred and who claims to be an innocent partial or joint owner shall make a prima facie case that the person has a legal right, title, or interest in the property seized or restrained under this chapter.
III. If paragraph II is satisfied and the state seeks to proceed with the forfeiture against the person’s ownership interest, the state shall prove by a preponderance of the evidence that the person had actual knowledge of the underlying crime giving rise to the forfeiture or was willfully blind to its commission.
IV. If paragraph III is satisfied and the person seeks to establish the person’s innocent owner status, the person shall show by a preponderance of the evidence that the person did all that reasonably could be expected under the circumstances to prohibit, abate, or terminate the illegal use of the property. The person may show that the person did all that reasonably could be expected by demonstrating, among other things, that the person, to the extent permitted by law:
(a) Gave timely notice to an appropriate law enforcement agency of information that led the person to know the conduct giving rise to a forfeiture would occur or had occurred; or
(b) In a timely fashion revoked or made a good-faith attempt to revoke permission for those engaging in the illegal conduct to use the property or took reasonable actions in consultation with a law enforcement agency to discourage or prevent the illegal use of the property.
V. A person is not required under this section to take steps that the person reasonably believes would be likely to subject the person to physical danger.
VI. If paragraph IV is satisfied, the court shall find that the claimant was not a party to the crime and is an innocent partial or joint owner.
VII. A person who acquired an ownership interest in property after the commission of a crime giving rise to the forfeiture has occurred and who claims to be an innocent partial or joint owner, shall make a prima facie case that the person legal right, title, or interest in the property seized or restrained under this chapter.
VIII. If paragraph VII is satisfied and the state seeks to proceed with the forfeiture against the person’s ownership interest, the state shall prove by a preponderance of the evidence that at the time the person acquired the property interest the person had actual knowledge that the property was subject to forfeiture or was willfully blind to the commission of the crime that subjected the property to forfeiture.
IX. If the state fails to meet its burden in paragraph VIII, the court shall find that the person was not a party to the crime and is an innocent partial or joint owner.
X. An otherwise valid claim under paragraph VIII may not be denied on the grounds that the person gave nothing of value in exchange for the property if:
(a) The property is the person’s primary residence;
(b) Depriving the person of the property would deprive the person of the means to maintain reasonable shelter in the community for the person and all dependents residing with the person;
(c) The property is not, and is not traceable to, the proceeds of any criminal offense; and
(d) The person acquired interest in the property through marriage, divorce, or legal separation, or the person was the spouse or legal dependent of someone whose death resulted in the transfer of the property to the person through inheritance or probate, except that the court shall limit the value of any real property interest for which innocent ownership is recognized under this paragraph to the value necessary to maintain reasonable shelter in the community for the person and all dependents residing with the person.
XI. If the innocent joint or partial owner’s claim is established under this section, the state shall relinquish all claims of title to the property that may have vested with it.
XII. If the court determines that an innocent joint or partial owner has any form of partial or joint interest in a conveyance subject to forfeiture related to operating a conveyance while impaired, the court may order that the innocent joint or partial owner participate in the ignition interlock device program under state law as a condition of ordering the device be returned to the innocent owner.
XIII. If the court determines that an innocent joint or partial owner has any form of partial or joint interest in property, other than property described in paragraph XII, the court shall enter an appropriate order reflecting the innocent owner’s preference for:
(a) Severing the property;
(b) Transferring the property to the state with a provision that the state compensate the innocent owner to the extent of the owner’s ownership interest once a final order of forfeiture has been entered and the property has been reduced to liquid assets; or
(c) Permitting the innocent owner to retain the property subject to a lien in favor of the state to the extent of the forfeitable interest in the property.
Postforfeiture
617:32 Sale of Property. If a trier of fact finds that property is to be forfeited, the court shall order the state to:
I. Return stolen property to its owner;
II. Sell all other firearms, ammunition and firearm accessories to licensed firearms dealers in a commercially reasonable manner; and
III. Sell other property in a commercially reasonable manner.
617:33 Prohibition on Retaining Property; Sale Restrictions. The law enforcement agency that seized property forfeited under this chapter may not retain it for its own use or sell it directly or indirectly to any employee of the agency, to a person related to an employee by blood or marriage, or to another law enforcement agency.
617:34 Disposition of Proceeds.
I. Proceeds seized and proceeds from the sale of forfeited assets shall only be distributed pursuant to a court order. The order shall be implemented by the department of justice and shall provide for disposition of the items or property interests by the state in any manner not prohibited by law, including retention for official use by law enforcement or other public agencies or sale at public auction. The department of justice shall pay the reasonable expenses of the forfeiture proceeding, seizure, storage, maintenance of custody, advertising, court costs and notice of sale from any money forfeited and from the proceeds of any sale or public auction of forfeited items. All outstanding recorded liens on said items or property interests seized shall be paid in full upon conclusion of the court proceedings from the proceeds of any sale or public auction of forfeited items. The balance remaining shall be distributed by the department of justice as follows:
(a) Of the first $500,000:
(1) Forty-five percent shall be returned to the fiscal officer or officers of the municipal, county, state, or federal government which provided the law enforcement agency or agencies responsible for the seizure. Moneys returned to each fiscal officer shall be deposited in a special account and shall be used primarily for meeting expenses incurred by law enforcement agencies in connection with drug-related investigations. Except as provided in RSA 31:95-b, such funds shall be available for expenditure without further appropriation by the legislative body of the municipal, county, state or federal government, and shall not be transferred or expended for any other purpose. Moneys returned to a state law enforcement agency shall be deposited in a special nonlapsing account established within the office of the state treasurer and shall be in addition to all other state appropriations to such agency;
(2) Ten percent shall be deposited into a special nonlapsing account established within the office of the state treasurer for the department of health and human services; and
(3) Forty-five percent shall be deposited in a revolving drug forfeiture fund, administered by the department of justice pursuant to RSA 318-B:17-c; and
(b) Of any balance remaining:
(1) Ten percent shall be deposited in the manner prescribed in subparagraph I(a)(2) of this section; and
(2) Ninety percent shall be deposited in the manner prescribed in subparagraph I(a)(3) of this section.
II. The total amount of payments made to the special account for the department of health and human services pursuant to subparagraphs I(a)(2) and I(b)(1) of this section shall not exceed $400,000 in any fiscal year and any excess over $400,000 which would otherwise be paid to such special account under this section shall be deposited in the general fund. The revolving drug forfeiture fund shall at no time exceed $1,000,000. All sums in the revolving drug forfeiture fund in excess of $1,000,000 shall be credited to the general fund.
III. All remaining funds shall be deposited into the state’s treasury and credited to the general fund.
617:35 Reporting.
I. For each forfeiture action occurring in the state regardless of the authority for it, the participating law enforcement agency and prosecutor shall provide a written record of the forfeiture incident to the department of justice.
II. The record shall include the amount forfeited, the underlying crime or conduct, its date, and whether the property had a lien against it. The record shall also list the number of firearms forfeited and the make, model, and serial number of each firearm forfeited. The record shall indicate how the property was disposed.
III. The law enforcement agency and the prosecutor shall report to the department of justice all instances in which property seized for forfeiture is returned to its owner either because forfeiture is not pursued or for any other reason.
IV. For forfeitures resulting from the activities of multi jurisdictional law enforcement entities, each entity on its own behalf shall report the information required in this section.
V. The department of justice may require information not specified in this section to be reported as well.
VI. Reports shall be made on a monthly basis in a manner prescribed by the department of justice.
VII. The department of justice shall report annually to the general court with a copy forwarded to the state library on the nature and extent of forfeitures.
VIII. The department of justice shall include in its report required under paragraph VII recommended changes to forfeiture law to better ensure that forfeiture proceedings are handled in a manner that is fair to innocent property owners, secured interest holders, citizens, and taxpayers.
IX. The department of justice shall include in its report required under paragraph VII information on law enforcement agencies and prosecutorial offices not in compliance with this section and shall order the state to withhold payment of any funds to those agencies and offices until compliance is achieved.
Miscellaneous Provisions
617:36 Return of Property, Damages, and Costs.
I. The state shall return property to the owner within a reasonable period of time not to exceed 3 business days after a court finds that:
(a) The owner had a bona fide security interest;
(b) The owner was an innocent owner;
(c) Charges against the owner were dismissed; or
(d) The owner was found not guilty of the criminal charge that is the basis for the forfeiture action.
II. If property returned under paragraph I has been damaged, the owner may make a claim in court for the damages to the seized property against the agency that seized the property.
III. The state is responsible for any storage fees and related costs applicable to property returned under paragraph I.
617:37 Penalty for Violations.
I. Any person acting under color of law, official title, or position who takes any action intending to conceal, transfer, withhold, retain, divert, or otherwise prevent any proceeds, conveyances, real property, or any things of value forfeited under the law of the state or the United States from being applied, deposited, used, or returned to the owner in accordance with this chapter is subject to a civil penalty in an amount equal to 3 times the value of the forfeited property concealed, transferred, withheld, retained, or diverted.
II. Any taxpayer to the state has standing to challenge in court any action contrary to this chapter.
617:38 Interaction with Federal Government.
I. No unit of state government may transfer a criminal investigation or proceeding to the federal government to circumvent state forfeiture law.
II. For a state government unit to transfer a criminal investigation or proceeding that includes forfeiture to the federal government, a state court shall affirmatively find that:
(a) The suspected criminal activity giving rise to the forfeiture is interstate in nature and sufficiently complex to justify the transfer; or
(b) The seized property is forfeitable only as a violation of federal law.
III. All funds paid by the federal government must be deposited into the state’s treasury. The state shall credit:
(a) The state government unit involved with the federal government sufficiently to reimburse it for investigation costs, excluding salaries, that the state government unit incurred related to the seizure of the assets subject to the forfeiture action; and
(b) The remainder to the general fund.
IV. No unit of state government may accept from the federal government any instrumentality or payment of proceeds not permitted by paragraph III.
V. The state government unit shall report all transfers to the federal government of an investigation or criminal proceeding that involves forfeiture per the reporting requirements in RSA 617:35.
VI. Any taxpayer has standing to challenge in court the receipt of any proceeds or instrumentality by a state government unit from the federal government contrary to paragraphs III and IV.
617:39 Attorneys’ Fees. In any forfeiture proceeding under this chapter in which the claimant prevails, the state is liable for:
I. Reasonable attorney fees and other litigation costs reasonably incurred by the claimant;
II. Postjudgment interest; and
III. In cases involving currency, other negotiable instruments, or the proceeds of an interlocutory sale:
(a) Interest actually paid to the state from the date of seizure of the property that resulted from the investment of the property in an interest-bearing account or instrument; and
(b) An imputed amount of interest that the currency, instruments, or proceeds would have earned at the rate applicable to the 30-day U.S. Treasury Bill, for any period during which no interest was paid, not including any period when the property reasonably was in use as evidence in an official proceeding or in conducting scientific tests for the purpose of collecting evidence, commencing 15 days after the property was seized by a law enforcement agency.
617:40 Disposing of Property of a Person Deported.
I. This section applies to disposing of property when the owner is deported from the United States to a foreign country.
II. If the owner of property is deported after being convicted of a violation of a state law that is subject to forfeiture and the property is found to be an instrumentality or proceeds of the violation of that state law, the court shall enter an order disposing of the property in accordance with this chapter.
III. If the owner of property is deported but the owner is not convicted of violating a state law that is subject to forfeiture or the property is not found to be an instrumentality or proceeds from the violation of a state law subject to forfeiture for which the owner of the property is convicted, the property shall be returned to the next of kin of the person deported.
IV. If the next of kin is not known or refuses the property, the state shall exercise reasonable diligence to identify persons with a potential interest in the property and make reasonable efforts to give notice to potential claimants. The state shall provide written notice to persons known or alleged to have an interest in the property including other family members and any person potentially making claims for court-ordered child support, employment-related compensation, or payment of debts. The notice shall also be made by publication in a reasonable geographic area.
V. If no claim is made within 60 days of the notice’s publication date, the court shall enter an order disposing of the property in accordance with RSA 617:34.
VI. A person wanting to assert a legal claim to the property shall, within 60 days of the date of the applicable notice in paragraph IV, petition the court for a hearing to adjudicate the validity of the alleged interest in the property. The petition for the hearing shall be signed by the claimant under penalty of perjury. It must state the nature and extent of the claimant’s right, title, or interest in the property; the time and circumstances of the claimant’s acquisition of the right, title, or interest; and any additional facts supporting the claim and the relief sought.
VII. The court shall schedule a hearing as soon as practicable to determine if the claimant has a legal right, title, or interest in the property or is a bona fide purchaser for value of the legal right, title, or interest in the property.
2 Forfeiture of Items Used in Connection With Drug Offense. RSA 318-B:17-b is repealed and reenacted to read as follows:
318-B:17-b Forfeiture of Items Used in Connection With Drug Offense.
I. Interests in the following property, upon petition of the attorney general, shall be subject to forfeiture pursuant to RSA 617 and said property interest shall be provisionally vested in the state:
(a) All materials, products and equipment of any kind, including, but not limited to, firearms, scales, packaging equipment, surveillance equipment and grow lights, which are used or intended for use in procurement, manufacture, compounding, processing, concealing, trafficking, delivery or distribution of a controlled drug in felonious violation of this chapter.
(b) Property interest in any conveyance, including but not limited to aircraft, vehicles, or vessels, which is used or intended for use in the procurement, manufacture, compounding, processing, concealing, trafficking, delivery or distribution of a controlled drug in felonious violation of this chapter.
(c) Any moneys, coin, currency, negotiable instruments, securities or other investments knowingly used or intended for use in the procurement, manufacture, compounding, processing, concealing, trafficking, delivery or distribution of a controlled drug in felonious violation of this chapter and all proceeds, including moneys, coin, currency, negotiable instruments, securities or other investments, and any real or personal property, traceable thereto. All moneys, coin, currency, negotiable instruments, securities and other investments found in proximity to controlled substances are presumed to be forfeitable under this paragraph.
(d) Any books, records, ledgers and research material, including formulae, microfilm, tapes and any other data which are used or intended for use in felonious violation of this chapter.
(e) Any real property, including any right, title, leasehold interest, and other interest in the whole of any lot or tract of land and any appurtenances or improvements, which real property is knowingly used or intended for use, in any manner or part, in the procurement, manufacture, compounding, processing, concealing, trafficking, delivery or distribution of a controlled drug in felonious violation of this chapter.
II. Title to property under paragraph I vests in the state when the trier of fact renders a final forfeiture verdict and relates back to the time when the state acquired provisional title. However, this title is subject to claims by third parties adjudicated under this chapter.
3 Search Warrants; Seizure, Custody and Disposition of Articles. Amend RSA 595-A:6 to read as follows:
595-A:6 Seizure, Custody and Disposition of Articles; Exceptions. If an officer in the execution of a search warrant, or by some other authorized method, finds property or articles he is empowered to take, he shall seize and safely keep them under the direction of the court or justice so long as necessary to permit them to be produced or used as evidence in any trial. Upon application by a prosecutor, defendant, or civil claimants, the court, prior to trial or upon an appeal after trial, shall, upon notice to a defendant and hearing, and except for good cause shown, order returned to the rightful owners any stolen, embezzled or fraudulently obtained property, or any other property of evidential value, not constituting contraband. This section shall apply regardless of how possession of the property was obtained by the state. Photographs or other identification or analysis made of the returned property shall be admissible at trial as secondary evidence, in lieu of the originals, for all relevant purposes, including ownership. In the case of unknown, unapprehended defendants, or defendants wilfully absent from the jurisdiction, the court shall have discretion to appoint a guardian ad litem to represent the interest of such unknown or absent defendants. The judicial findings on such matters as ownership, identification, chain of possession or value made at such an evidentiary hearing for the restoration of property to the rightful owners shall thereafter be admissible at trial, to be considered with other evidence on the same issues, if any, as may be admitted before the finder of fact. All other property seized in execution of a search warrant or otherwise coming into the hands of the police shall be returned to the owner of the property, or shall be disposed of as the court or justice orders, which may include forfeiture pursuant to RSA 617 and either sale or destruction as the public interest requires, in the discretion of the court or justice, and in accordance with due process of law. Any property, the forfeiture and disposition of which is specified in any general or special law, shall be disposed of in accordance therewith.
4 Repeal. RSA 318-B:17-d through 318-B:17-f, relative to the forfeiture of controlled drugs, are repealed.
5 Effective Date. This act shall take effect January 1, 2013.
LBAO
12-2446
Revised 01/09/12
HB 1682 FISCAL NOTE
AN ACT relative to forfeiture of personal property.
FISCAL IMPACT:
The Judicial Branch and Judicial Council state this bill may increase state expenditures by an indeterminable amount in FY 2013 and each year thereafter. The Department of Justice, Department of Health and Human Services, and Treasury Department state this bill will have an indeterminable fiscal impact on state revenue and expenditures in FY 2013 and each year thereafter. The New Hampshire Association of Counties states this bill may decrease county revenue by an indeterminable amount in FY 2013 and each year thereafter. The New Hampshire Municipal Association states this bill will have an indeterminable fiscal impact on local revenue in FY 2013 and each year thereafter.
METHODOLOGY:
The Judicial Branch states this bill makes changes relative to the forfeiture of personal property. The Branch states it is not able to determine the fiscal impact of this bill due to the new procedures established by the bill. The Branch is able to state that this bill will have a fiscal impact in excess of $10,000 when considering the superior court will be involved throughout the forfeiture process and the additional issues that may require court determinations, such as determining if forfeiture is unconstitutionally excessive. The Court may also have an increase in expenditures related to court-appointed counsel for a person who is financially unable to obtain representation by counsel if it is determined that pursuant to RSA 490:31 the Branch is responsible for these costs.
The Department of Justice states this bill eliminates the civil forfeiture process for proceeds and instrumentalities of a crime and requires any forfeiture action be incorporated into the criminal prosecution. The Department states civil forfeitures are handled either by the Department or the US Drug Enforcement Agency. The bill also purports to prohibit the federal forfeitures except under limited circumstances. The bill appears to require the Department to initiate all drug forfeitures, although the actual forfeiture must be litigated as part of the criminal proceeding, which are mostly handled by the county attorneys. The bill requires any person who has an interest in property being forfeited may, prior to the court issuing an order of forfeiture, file a petition with the Department for remission of mitigation of the forfeiture. Finally, the Department would be responsible for the disposition of all forfeited property. The Department states forfeitures processed through the federal government are initiated by local or county law enforcement that seized the property directly. The Department has no information about the number of federal forfeitures that are initiated. This bill would require the Department be involved in all forfeitures statewide, increasing expenditures by an indeterminable amount. The Department states it has used forfeiture funds to support the State’s Drug Task Force. The Department collected $409,199 in federal drug forfeiture funds and $304,977 through the state forfeiture process for FY 2009 through FY 2011. The Department estimates this bill may decrease forfeiture revenue by approximately 57 percent, having a negative impact on the State’s Drug Task Force Operation but will increase the state forfeiture fund by an indeterminable amount. The Department is not able to determine the exact fiscal impact of this bill.
The Treasury Department states this bill proposes that any proceeds seized or proceeds resulting from the sale forfeited assets must be deposited in non lapsing accounts established within the Department. The Department states that to the extent any costs for maintaining and administering these non lapsing accounts are paid from proceeds deposited into the accounts, the Department would have an increase in restricted revenue and expenditures. If the costs for maintaining and administering these non lapsing accounts are not paid from proceeds deposited into the accounts, there may be an increase cost to the state general fund. Additionally, any proceeds in the Department of Health and Human Services special account in excess of $400,000 shall be deposited into the state general fund and any amount in excess of $1,000,000 in the drug forfeiture fund administered by the Department of Justice shall be deposited into the state general fund. The Department has no information to estimate any amounts that may be deposited into the general fund. Lastly, any funds paid by the federal government must be paid to the Department. Any state government unit involved with the federal government shall be reimbursed using the funds received from the federal government for investigation costs incurred in the seizure of the assets subject to the forfeiture action with any remainder being deposited into the general fund.
The Department of Health and Human Services states this bill does not alter the formula for distribution of monies from forfeited property or funds to the Department. The Department is not able to determine if the procedural changes in this bill will make it more or less likely that forfeiture funds will increase or decrease. The Department is not able to determine the fiscal impact of this bill.
The Judicial Council states this bill may result in an indeterminable increase in state general fund expenditures. The Council states if an individual is found to be indigent, the court could assign counsel at the request of the indigent person. The Council states the rate for assigned counsel is $60 per hour with no proscribed limits or caps. The Council is not able to determine an exact fiscal impact as it is unknown how many cases will result due to this bill.
The New Hampshire Association of Counties states to the extent this bill diminishes the number of state forfeitures, county revenue as a part of the distribution to participating agencies may decrease. The Association is not able to predict the number of forfeitures that would not be completed to determine the fiscal impact.
The New Hampshire Municipal Association states the impact on municipal revenue is indeterminable.