Senate Judiciary
April 20, 2022
2022-1677s
04/10
Amendment to HB 1296-FN
Amend RSA 318-B:17-b, I-d as inserted by section 1 of the bill by replacing it with the following:
I-d. A document purporting to waive or relinquish rights or interests in seized property shall be valid only if the document is obtained by the prosecuting authority and accepted by the superior court in conjunction with a plea or conviction. Before accepting the document, the superior court shall determine that the waiver was executed knowingly and voluntarily.
Amend RSA 318-B:17-b, III as inserted by section 1 of the bill by replacing it with the following:
III. The court may order forfeiture of all items or property interests subject to the provisions of paragraph I[, except as follows:
(a) No item or property interest shall be subject to forfeiture unless the owner or owners thereof were consenting parties to a felonious violation of this chapter and had knowledge thereof.
(b) No items or property interests shall be subject to forfeiture unless involved in an offense which may be charged as a felony] as part of a criminal prosecution and following a conviction for a felony violation of this chapter pursuant to paragraph III-a. All forfeiture-related petitions shall be filed at and heard by the superior court that has jurisdiction over the criminal case.
Amend RSA 318-B:17-b, III-a(a)-(j) as inserted by section 1 of the bill by replacing them with the following:
III-a.(a)(1) If a defendant in a criminal matter is represented by a public defender or counsel appointed by the court, the public defender or appointed counsel shall represent the defendant in the forfeiture proceeding and any other related criminal proceeding.
(2) Following seizure, a defendant or any other person with an interest in the property shall have a right to a post-seizure hearing. The court shall give such post-seizure hearings priority on the court's docket.
(3) A person with an interest in the property may petition the superior court for a hearing.
(4) The court may hold a post-seizure hearing:
(A) As a separate hearing; or
(B) At the same time as a probable cause determination, a post-arraignment hearing, or other pretrial hearing.
(5) A party, by agreement or for good cause, may move for one extension of no more than 10 days. Any motion may be supported by affidavits or other submissions.
(6) The court shall order the return of property if it finds:
(A) The seizure was invalid;
(B) A criminal charge has not been filed and no extension of the filing period is available;
(C) The property is not reasonably required to be held as evidence; or
(D) The final judgment likely shall be in favor of the defendant or any other person with an interest in the property.
(7) The provisions of this section shall not apply to contraband.
(b) In a case in which the state seeks forfeiture of property the prosecuting authority shall file with the superior court a petition for forfeiture. The petition shall be a separate document and accompany the initial or a subsequent indictment or information. It shall include the following information:
(1) A description of the property seized;
(2) The time, date, and place of the seizure; and
(3) A description of how the property was used in or derived from the alleged crime.
(c)(1) The prosecuting authority may allege, in the petition, the forfeiture of property as a sanction related to the crime for which the defendant is charged, as part of sentencing consideration, or through other means for the court to oversee the forfeiture proceeding.
(2) The petition shall not be read to the jury.
(3) At the superior court's discretion, the court may allow the prosecuting authority to amend the petition for forfeiture as required in the interest of justice.
(4) The prosecuting authority shall serve the indictment or information as provided by the rules of the court.
(5) The prosecuting authority shall serve the petition for forfeiture:
(A) At arraignment;
(B) For cases initiated in the circuit court-district division, no later than 90 days after the underlying criminal case has been bound over to the superior court;
(C) For cases initiated in superior court, no later than 90 days after the complaint has been filed;
(D) As established by the superior court in its grant of a motion by the prosecuting authority that seeks extension of the deadlines in subparagraphs (B) or (C) as required in the interests of justice; or
(E) At the superior court’s discretion.
(6) The court shall order the return of the property to the owner if the prosecuting authority does not file an indictment or information as provided by the court’s rules, the period of an extension expires, or the court does not grant an extension.
(d) Discovery related to the forfeiture proceeding shall be subject to rules 12 and 13 in New Hampshire's rules of criminal procedure.
(e) The court shall consider the loss of property subject to forfeiture as a criminal sanction as part of and following the prosecution of the underlying crime. Property may be forfeited if:
(1) The state secures a conviction under this chapter; and
(2) The state establishes by a preponderance of the evidence that the property is an instrumentality of, or proceeds derived directly from, the crime for which the state secured a conviction.
(f) After the defendant’s conviction, the court shall hold the forfeiture proceeding at its discretion. It shall be conducted by the court without a jury.
(g) Nothing in this paragraph shall prevent property from being forfeited as part of:
(1) A plea agreement; or
(2) A grant of immunity or reduced punishment, with or without the filing of a criminal charge, in exchange for testifying or assisting a law enforcement investigation or prosecution.
(h) The court may waive the conviction requirement and grant title to the property to the state if the prosecuting authority files a motion no fewer than 90 days after seizure and shows by a preponderance of the evidence that, before conviction, the defendant:
(1) Is deceased;
(2) Was deported by the United States government;
(3) Has abandoned the property; or
(4) Has fled the jurisdiction.
(i) The defendant may petition the superior court to determine, before trial, at trial or upon conviction, whether the forfeiture is unconstitutionally excessive under the state or federal constitution. The defendant shall bear the burden of establishing the forfeiture is unconstitutionally excessive by a preponderance of the evidence at a hearing conducted by the court without a jury. In determining whether the forfeiture is unconstitutionally excessive, the court shall not consider the value of the property to the state, but may consider other relevant factors including:
(1) The seriousness of the crime and its impact on the community, including the duration of the activity, use of a firearm, and harm caused by the defendant;
(2) The extent to which the defendant participated in the crime;
(3) The extent to which the property was used in committing the crime;
(4) Whether the crime was completed or attempted;
(5) The sentence or fine to be imposed for committing the crime;
(6) The hardship to the defendant if the forfeiture of a motor vehicle would deprive the defendant of the defendant’s livelihood;
(7) An unjust hardship to the defendant’s family if the property is forfeited; and
(8) All relevant factors related to the fair market value of the property.
(j)(1) Property encumbered by a security interest shall not be forfeited. The prosecuting authority shall return property to a secured interest holder, other than the defendant or rightful owner, up to the value of the interest. Contraband shall not be returned.
(2) If the property is not returned, the secured interest holder may petition the court at any time before the court enters judgment in the criminal prosecution or grants the motion in subparagraph (h).
(3) The court shall hear the petition within 30 days after its filing or at the court’s discretion. The hearing shall be held before the court without a jury. The court may consolidate the hearing on the petition with any other hearing before the court in the case.
(4) The secured interest holder shall establish by a preponderance of the evidence the validity of the security interest, mortgage, lien, leasehold, lease, rental agreement, or other agreement.
(5) If the secured interest holder alleges a valid interest but the prosecuting authority seeks to proceed, the prosecuting authority shall prove by a preponderance of the evidence that:
(A) The interest is invalid;
(B) The interest resulted from a fraudulent conveyance; or
(C) The secured interest holder consented to the use of the property in the crime for which the defendant is charged.
(6) If the state fails to meet its burden under subparagraph (5), the court shall order the state to relinquish claims to the property, up to the value of the interest, and return the interest to the secured interest holder.
Amend RSA 318-B:17-b, III-a (k)(2) as inserted by section 1 of the bill by replacing it with the following:
(2) If the property is not summarily returned, an innocent owner may petition the superior court at any time before the court enters judgment in the criminal prosecution or grants the motion in subparagraph (h).
| Date | Body | Type |
|---|---|---|
| Jan. 12, 2022 | House | Hearing |
| Feb. 9, 2022 | House | Hearing |
| March 2, 2022 | House | Exec Session |
| House | Floor Vote | |
| April 5, 2022 | Senate | Hearing |
| April 28, 2022 | Senate | Floor Vote |
April 28, 2022: Sen. French Move to Refer to Interim Study, MA, VV; 04/28/2022; SJ 10
April 28, 2022: Sen. French Withdraws motion of Inexpedient to Legislate; 04/28/2022; SJ 10
April 28, 2022: Sen. French Moved Inexpedient to Legislate; 04/28/2022; SJ 10
April 28, 2022: Ought to Pass: MF, VV; 04/28/2022; SJ 10
April 28, 2022: Committee Amendment # 2022-1677s, AF, VV; 04/28/2022; SJ 10
April 20, 2022: Committee Report: Ought to Pass with Amendment # 2022-1677s, 04/28/2022; SC 17
March 30, 2022: Hearing: 04/05/2022, Room 100, SH, 02:30 pm; SC 14
March 22, 2022: Introduced 03/17/2022 and Referred to Judiciary; SJ 6
March 15, 2022: Ought to Pass: MA VV 03/15/2022 HJ 6
March 15, 2022: Amendment # 2022-0874h: AA VV 03/15/2022 HJ 6
March 9, 2022: Minority Committee Report: Inexpedient to Legislate
March 9, 2022: Majority Committee Report: Ought to Pass with Amendment # 2022-0874h (NT) (Vote 11-10; RC)
Feb. 28, 2022: Executive Session: 03/02/2022 10:00 AM LOB 202-204
Feb. 3, 2022: Public Hearing on Amendment # 2021-0264h: 02/09/2022 09:45 am LOB 202-204
Jan. 8, 2022: Public Hearing: 01/12/2022 11:15 pm LOB 202-204
Nov. 19, 2021: Introduced 01/05/2022 and referred to Criminal Justice and Public Safety