Revision: March 8, 2016, midnight
\t \t\tHB 636-FN - AS AMENDED BY THE HOUSE
7Jan2016... 2507h
2015 SESSION
\t15-0385\t05/01
HOUSE BILL\t\t636-FN
AN ACT\trelative to forfeiture of property.
COMMITTEE:\tCriminal Justice and Public Safety
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AMENDED ANALYSIS
\tThis bill limits forfeiture to cases in which the state has found by clear and convincing evidence that the property was derived from, or used in, the commission of a crime. The bill also requires the state to deposit proceeds from forfeited property in the general fund.
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Explanation:\tMatter added to current law appears in bold italics.
\t\tMatter removed from current law appears [in brackets and struckthrough.]
\t\tMatter which is either (a) all new or (b) repealed and reenacted appears in regular type.
7Jan2016... 2507h\t15-0385\t05/01
STATE OF NEW HAMPSHIRE
In the Year of Our Lord Two Thousand Fifteen
AN ACT\trelative to forfeiture of property.
Be it Enacted by the Senate and House of Representatives in General Court convened:
\t\t1 New Section; Property Subject to Forfeiture. Amend RSA 617 by inserting after section 1 the following new section:
\t617:1-a Criminal Forfeiture; Property Subject to Forfeiture.
\t\tI. Subsequent to a criminal conviction pursuant to a statute that authorizes forfeiture, including but not limited to RSA 318-B:17-b, the court may order the person convicted to forfeit:
\t\t\t(a) Property the person derived from the commission of the crime;
\t\t\t(b) Property directly traceable to property derived from the commission of the crime; and
\t\t\t(c) Instrumentalities the person used in the commission of the crime.
\t\tII. When a conviction or agreement of the parties is not possible due to the person’s death, incompetence, unavailability, or not being within the jurisdiction of the court, or the person to be charged cannot be identified, forfeiture proceedings may be commenced.
\t\tIII. Property may be forfeited if the state establishes that the property is forfeitable by clear and convincing evidence.
\t\tIV. Nothing in this section shall prevent property from being forfeited by plea agreement approved by the presiding criminal court or other agreement of the parties.
\t\tV. At the request of any party, the civil portion of the forfeiture proceeding may be stayed by the court.
\t2 New Section; Forfeiture; Innocent Owner. Amend RSA 617 by inserting after section 4 the following new section:
\t617:4-a Innocent Owner. In addition to any other remedy provided by law, any person claiming to be an innocent owner of property seized for purposes of forfeiture may petition the court, after 10 days from the date of seizure, for return of the property. No item or property interest shall be subject to forfeiture unless the alleged innocent owner thereof was a consenting party to the crime. This provision shall not apply to property seized as evidence in a pending criminal investigation or prosecution.
\t3 New Section; Disposition of Unclaimed Property and Proceeds. Amend RSA 617 by inserting after section 10 the following new section:
\t617:11 Disposition of Property and Proceeds.
\t\tI. Notwithstanding any other provision of law, at any time when unclaimed property or contraband held for evidentiary purposes is no longer needed for that purpose, the court may order the state to deliver any unclaimed property, other than currency, to the commissioner of the department of administrative services, to deliver any currency to the state treasurer, and to destroy any contraband within 30 days.
\t\tII. If the forfeiture is granted, the court may order the state to deliver any currency to the state treasurer and any other property to the commissioner of the department of administrative services within 30 days. The commissioner of the department of administrative services shall dispose of the forfeited property at public auction.
\t\tIII. Upon motion, the court may order that a portion of the currency seized or proceeds from public auction be used to pay reasonable non-personnel expenses of the seizure, storage, and maintenance of custody of any forfeited items.
\t\tIV. The auction proceeds and forfeited currency shall be forwarded to the state treasurer and shall be used first to pay all outstanding recorded liens on the forfeited property, then to comply with an order of the court to pay reasonable non-personnel expenses, with all remaining funds to be deposited into the state’s general fund.
\t4 Forfeiture of Items Used in Connection with Drug Offense. Amend RSA 318-B:17-b, II(e) to read as follows:
\t\t\t(e) The department of justice shall, within 60 days of the seizure, [either] file a petition in the superior court having jurisdiction under this section [or seek administrative forfeiture pursuant to RSA 318-B:17-d]. If no such petition is filed [or administrative procedure initiated] within 60 days, the items or property interest seized shall be released or returned to the owners.
\t5 Forfeiture of Items Used in Connection with Drug Offense; Reference to Drug Forfeiture Fund Removed. Amend RSA 318-B:17-b, II-a(e) to read as follows:
\t\t\t(e) In the case of moneys, file a motion for transfer of evidence under RSA 595-A:6. Upon the court’s granting of the motion the moneys shall be immediately forwarded to an interest-bearing seized asset escrow account to be administered by the attorney general. Upon resolution of the forfeiture proceeding the moneys deposited shall be transferred to the [drug forfeiture] general fund or returned to the owners thereof as directed by the court. Unless otherwise ordered by a court in a specific case, interest on all moneys deposited in the seized asset escrow account shall be deposited annually into the [drug forfeiture fund established under RSA 318-B:17-c] general fund.
\t6 Disposition of Funds Obtained by the Attorney General. Amend RSA 7:6-e, III to read as follows:
\t\tIII. This section shall not apply to fines received by the attorney general in criminal cases, penalty assessment funds, [drug forfeiture funds as provided in RSA 318-B:17-b through RSA 318-B:17-d,] fines or civil penalties authorized by state law as a result of enforcement actions taken by state agencies or the attorney general, and money received on behalf of a victim or the state as restitution.
\t7 Repeal. The following are repealed:
\t\tI. RSA 318-B:17-b, V, relative to the distribution of proceeds from items forfeited from drug offenses.
\t\tII. RSA 318-B:17-c, establishing the drug forfeiture fund.
\t\tIII. RSA 318-B:17-d, relative to administrative forfeiture of items used in connection with drug offenses.
\t\tIV. RSA 6:12, I(b)(19), relative to the drug forfeiture fund.
\t8 Effective Date. This act shall take effect January 1, 2017.
\t\t\t\t\t\t\t\t\t\t\t15-0385
\t\t\t\t\t\t\t\t\t\t\tAmended 2/3/16
HB 636-FN- FISCAL NOTE
AN ACT\trelative to forfeiture of property.
FISCAL IMPACT:
The Departments of Justice, Administrative Services and the Judicial Branch state this bill, as amended by the House (Amendment #2015-2507h), will have an indeterminable impact on state revenue and expenditures and decrease local revenue by an indeterminable amount in FY 2017 and each year thereafter. There will be no impact on county and local expenditures or county revenue.
METHODOLOGY:
The Department of Justice states this bill would eliminate the drug forfeiture laws by changing the statutory procedures, eliminating the Drug Forfeiture Fund under RSA 318-B:17-c, and requiring all proceeds of drug forfeitures to be deposited in the general fund. The Department of Justice handles all drug forfeiture prosecutions. Under current law, 45% of the proceeds are distributed to the law enforcement agency or agencies, (including the Department of Justice), involved in the underlying case, 45% is deposited in the drug forfeiture fund, and 10% is deposited into a nonlapsing account in the Department of Health and Human Services. The Department indicates the funds deposited in the Drug Forfeiture Fund are used to support operations of the Attorney General’s Drug Task Force. The Department provided the following information for the most recent state fiscal years:
\t\tTotal\t Revenue to other law enforcement
\t\tRevenue\tagencies and the DHHS
2013\t$118,556\t\t$40,198
2014\t$103,978\t\t$23,143
2015\t$109,446\t\t$25,684
The Department of Administrative Services assumes it would use existing resources in the State Surplus program to conduct any required auctions. Upon approval of the court, the Department would be able to utilize funds from proceeds of the public auction to pay for reasonable costs to provide custody, maintenance or storage of the seized property. The Department states there is no way to predict the amount of forfeited property that may result from this bill and it is not able to determine the amount of revenue that would be deposited in the general fund.
The Judicial Branch indicates almost all of the forfeitures take place in the superior court. The Branch does not anticipate the bill will result in a fiscal impact greater than $10,000.
The Municipal Association states this bill does not appear to have an impact on municipal revenues or expenditures.