Asset forfeiture-3.

2016
State of Wyoming
16LSO-0232
Introduced
1.3

HOUSE BILL

NO.

HB0014

Asset forfeiture-3.

Sponsored by:
Representative(s) Miller, Baker, Halverson and Kroeker and Senator(s) Kinskey

A BILL

for

AN ACT relating to the Wyoming Controlled Substances Act; amending the procedures and requirements for seizing and forfeiting property; providing definitions; conforming provisions; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

W.S. 35
‑
7
‑
1049(a)(intro), (v)(intro), (c), by creating new subsections (d) through (f), by amending and renumbering (d) and (e) as (g) and (h), by renumbering (f) as (j), by amending and renumbering (g) and (h) as (k) and (m),
by creating a new subsection (n),
by renumbering
(j) as (
o
) and by amending and renumbering (
k
) through (n) as (
p
) through (
r
) is amended to read:

35
‑
7
‑
1049
.

Forfeitures and seizures generally; property subject to forfeiture.

(a)

The following are subject to forfeiture
as permitted pursuant to subsections (c) through (n) of this section
:

(v)

All conveyances including aircraft, vehicles or vessels, knowingly used or intended for use to transport or in any manner to knowingly facilitate the transportation for the sale or receipt of property described in paragraph (a)(i) or (ii) of this section may be seized by the commissioner and forfeited to the state pursuant to
subsection (e) of
this section:

(c)

Prompt institution of proceedings.
‑
In the event of seizure pursuant to subsection (b)
Any person convicted of a violation of this act punishable by imprisonment for more than one (1) year, or a misdemeanor violation of this
act where the reasonably estimated value of the property seized, excluding any conveyance prohibited from being forfeited under
paragraph
(a)
(v)
of this section, is less than two

thousand dollars ($2,000.00), shall be subject to forfeiture of property listed under subsection (a)
of this section
.
,
p
roceedings under subsection (d) of this section shall be instituted promptly

The procedure for forfeiture shall be as provided in this section
.

(d)

Except for summary forfeiture under paragraph (h
)(
vi) and subsections (j) through (m) of this section, if the state seeks to forfeit property:

(i)

Within thirty (30) days from the date that property is seized, the
commissioner
shall serve a notice of intent to seek forfeiture upon any person reasonably known to have an interest in the property. The notice of intent to seek forfeiture shall describe the date and location of the seizure, the property seized and the statutory basis for the forfeiture. The notice of intent to seek forfeiture shall be served by:

(A)

Certified mail, return receipt requested, to the person's last known address; or

(B)

Service pursuant to the Wyoming Rules of Civil Procedure.

(ii)

After the notice of intent to seek forfeiture has been served, all forfeiture proceedings shall be stayed until there is a final order convicting the person from whom the property was seized of a violation specified in subsection (c) of this section and all rights of appeal to the Wyoming
s
upreme
c
ourt
have been exhausted.

(iii)

All property shall be returned to the person from whom it was seized unless there is a finding or verdict of guilt, an admission of guilt or a plea of nolo contendere to a violation specified in subsection (c) of this section;

(iv)

After
a final order of conviction, the
commissioner or the commissioner's designee
shall file a petition for the forfeiture of property in the district
court in which the criminal proceedings took place. Service of the petition on the person from whom the property was seized shall be pursuant to the Wyoming Rules of Civil Procedure. The petition under this paragraph shall describe with particularity the:

(A)

Approximate value of the property;

(B)

Facts giving rise to the seizure or custody;

(C)

Name and position of the person making the seizure or taking the property into custody;

(D)

Name and address of the owners of the property or those persons who were in possession of the property at the time of the seizure; and

(E)

Names and addresses of all persons known to have an interest in the property seized.

(vi)

The
court shall conduct an evidentiary hearing to determine if the property is subject to forfeiture under this section. The
commissioner or the commissioner's designee
shall have the burden of proof that the property is subject to forfeiture. If the court finds under a preponderance of evidence standard that property is subject to forfeiture, the court shall enter a preliminary order directing the forfeiture. If the court finds the property is not subject to forfeiture, it shall be returned
within five (5) days
to the person from whom it was seized
or another legal owner
.

(e)

If the court makes a preliminary order of forfeiture of property, legal interests of persons other than a party to the criminal action shall be determined, subject to the following:

(i)

After an entry of a preliminary order of forfeiture, the
commissioner or the commissioner's designee
shall publish notice of the order in a newspaper of general circulation in the state once a week for two (2) weeks and shall provide written notice by first class mail to the
last known address of any person who, after reasonable inquiry, appears to be a potential owner or lien holder in the property. The notice shall describe the forfeited property and shall advise that parties with a potential interest in the property may contest the forfeiture by filing a petition with the court not later than sixty (60) days after the date of the second public notice or, if notice is mailed under this paragraph, not later than thirty (30) days after mailing written notice;

(ii)

If a third party files a timely response asserting an interest in the property, the court shall conduct a hearing. The court may permit the parties to conduct discovery in accordance with the Wyoming Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues. After the hearing, the court shall enter a final order of forfeiture by amending the preliminary order as necessary to account for any third party rights. If no third party files a timely petition, the preliminary order becomes the final order upon expiration of the time for filing a petition;

(iii)

The party to the criminal action or a third party may appeal a final order of forfeiture. In the final order of forfeiture
, the
court shall enter terms appropriate to ensure that the property remains available pending appellate review.

(f)

An interest in property belonging to a third party shall not be forfeited to the extent that the third party establishes
he
has a perfected lien in the property or proves by a preponderance of evidence that he has a perfected priority interest in the property or proves he is an innocent owner. For purposes of this subsection:

(i)

With respect to a property interest in existence at the time the violation of this act took place, "innocent owner" means a person who held an interest in the property who did not reasonably know of the conduct of the defendant related to the violation;

(ii)

With respect to a property interest acquired after the violation of this act has taken place,
the term "innocent owner" means a person who, at the time that person acquired the interest in the property:

(A)

Was a bona fide purchaser or seller for value of goods or services or a holder of a bona fide security interest; and

(B)

Did not know and was reasonably without cause to believe the property was subject to forfeiture.

(d)
(g)

Seized property not repleviable; sealing or removal of seized property.
‑
Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the commissioner subject only to the orders and decrees of the court having jurisdiction over the
forfeiture
proceedings. When property is seized under this act, the commissioner
may:
shall place the property under seal or otherwise assure the property is maintained under conditions reasonably necessary to preserve the property's value
or may sell the property and hold the proceeds thereof if the property is perishable or threatens to decline speedily in value

until the forfeiture
proceedings have become final as to all parties and all rights of appeal have been exhausted to the Wyoming
s
upreme
c
ourt.

(
i
)

Place the property under seal;

(ii)

Remove the property to a place designated by him; or

(iii)

Require the board to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

(e)
(h)

When property is forfeited under this act, the commissioner may:

(
i
)

Retain it for official use; in which case it shall become the property of the state of Wyoming;

(ii)

Sell any such property which is not required to be destroyed by law and which is not harmful to the public. The proceeds shall be used for payment of all
proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs;

(iii)

Require the board to take custody of the property and remove it for disposition in accordance with law;

(iv)

Repealed
by Laws 1983, ch. 160, § 2.

(v)

Transfer ownership and control of the property to any municipality or political subdivision of the state for its official use; or

(vi)

Authorize any law enforcement officer to apply to the district court
with jurisdiction
for an order providing for destruction of the contraband controlled substances or paraphernalia if no longer necessary for evidentiary purposes, provided, however, that a district court order shall not be necessary for the division of criminal investigation to destroy quantities of contraband controlled substances after the division has tested random
samples. The division of criminal investigation shall adopt rules necessary to operate a program to destroy bulk quantities of contraband controlled substances, which shall include:

(A)

The photographing and videotaping of the entire bulk amount of seized contraband controlled substances to maintain its evidentiary value and to create exhibits for use in legal proceedings;

(B)

The extraction of ten (10) random samples from the entire bulk amount of seized contraband controlled substances for laboratory analysis;

(C)

A weighing on properly calibrated scales of both the bulk amount of seized contraband controlled substances and the representative samples;

(D)

The additional retention of:

(I)

Five (5) ounces of organic material if the controlled substance is marihuana or a substance of similar organic composition;

(II)

Five (5) grams of a controlled substance in powdered or crystalline form;

(III)

Five
‑
tenths (0.5) of a gram of a controlled substance in liquid form;

(IV)

An amount sufficient for testing by experts shall be made available from the additionally retained sample for the purpose of defending criminal charges arising from the possession, use or sale of the controlled substance.

(E)

After the testing and retention of samples specified in this paragraph, the commissioner or his designee may order the destruction of the bulk amount of the seized contraband controlled substance in excess of the representative sample and the additional retained samples of the seized contraband controlled substance;

(F)

Once the representative samples and the additional retained samples of the contraband controlled substance are no longer necessary for evidentiary purposes, any law enforcement officer, upon authorization from the commissioner, may apply to the district court with jurisdiction for an order providing for the destruction of the remaining contraband controlled substance.

(f)
(j)

Any controlled substance listed in Schedules I through V that is possessed, transferred, sold or offered for sale in violation of this act is contraband and shall be seized and summarily forfeited to the state. Any controlled substance listed in Schedules I through V which is seized or comes into possession of the state and the owner is unknown, is contraband and shall be summarily forfeited to the state.

(g)
(k)

Seizures and summary forfeiture of certain plants generally.
‑
Species of plants from which controlled substances in Schedules I and II may be derived which have been planted or cultivated in violation of this act, or of
which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.

(h)
(m)

Authority for seizure and forfeiture of plants.
‑
The failure, upon demand by the commissioner, or his authorized agent, of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce an appropriate registration, or proof that he is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.

(n)

A person's interest in property is not subject to forfeiture to the extent that the forfeiture is grossly disproportionate to the gravity of the offense giving rise to the forfeiture. The commissioner shall have the burden of demonstrating by a preponderance of the evidence that
a forfeiture
is not grossly disproportionate. Proportionality shall be decided by the court as follows:

(i)

In determining whether
a forfeiture
is grossly disproportionate, the court shall consider:

(A)

The extent to which the property was used or intended to be used in executing the underlying offense;

(B)

The value of the property, including both its fair market and subjective value;

(C)

The actions of the person involved in the activity giving rise to the forfeiture proceedings;

(D)

The severity of the criminal sanctions associated with the actions of the person;

(E)

Whether the property constitutes the person's lawful livelihood or means of earning a living;

(F)

Whether the offense or attempted offense has severe collateral consequences; and

(G)

Any other factors the court deems necessary and relevant.

(ii)

If the court finds the forfeiture is grossly disproportionate to the offense, it shall reduce or eliminate the forfeiture as it finds appropriate.

(j)
(o)

Any law enforcement agency of this state may accept, receive, dispose of and expend the property or proceeds from any property forfeited to the federal government or any state and allocated to the agency by the United States attorney general pursuant to 21 U.S.C. 881(e) or any law of another state. The property or proceeds shall be in addition to funds appropriated to the law enforcement agency by the state legislature or any unit of local government. The property or proceeds may be credited to any lawfully created fund or account designated to receive proceeds of forfeitures.

(k)
(p)

Any law enforcement agency of this state
which seizes property
,
other than property subject to summary forfeiture under paragraph (h
)(
vi) and subsections (j)
through (m) of this section, or
which receives property or proceeds pursuant to subsection
(j)
(o)
of this section shall report to the
attorney general

commissioner
on forms to be prescribed by the
attorney general

commissioner
:

(i)

The receipt of property or proceeds within thirty (30) days from the receipt; and

(ii)

The disposition or expenditure of any property or proceeds within ninety (90) days from the disposition or expenditure.

(m)
(q)

The
attorney general

commissioner
shall submit
a biennial
an annual
report to the joint appropriations interim committee
and the joint judiciary interim committee not later than August 1
concerning recipients and the amount of property and proceeds
accepted,
received, disposed of or expended under
subsection (j) of
this section
by law enforcement agencies, other than property subject to summary forfeiture under paragraph (h
)(
vi) and subsections (j) through (m) of this section
.

(n)
(r)

No law enforcement agency of this state shall accept property or proceeds pursuant to subsection
(j)
(o)
of this section if the tender of the property or proceeds is conditioned upon the state law enforcement agency's adoption of federal law enforcement practices and procedure.

Section 2
.

T
his act shall apply to seizures of property which occur
on or
after Ju
ly 1
, 2016 and to any subsequent forfeitures of property seized
on or
after Ju
ly

1
, 2016.

Section 3
.

This act is effective July 1, 2016
.

(END)

1
HB0014