Senate File 2166 - Introduced SENATE FILE 2166 BY SCHNEIDER A BILL FOR An Act relating to forfeiture of property for criminal 1 offenses. 2 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA: 3 TLSB 5652XS (5) 86 jh/rj
S.F. 2166 Section 1. NEW SECTION . 809B.1 Definitions. 1 As used in this chapter, unless the context otherwise 2 requires: 3 1. “Abandoned property” means personal property left by an 4 owner who intentionally relinquishes all rights to the control 5 of the personal property. “Abandoned property” does not include 6 real property. 7 2. “Actual knowledge” means direct and clear awareness of 8 information, a fact, or a condition. 9 3. “Constructive knowledge” means knowledge that is 10 imputed to family or household members of the defendant if the 11 defendant admitted guilt or was adjudicated guilty three or 12 more times for the same or similar offense, as specified in 13 statute, in the ten years prior to the alleged offense. 14 4. “Contraband” means goods that are unlawful to import, 15 export, or possess, including controlled substances without a 16 valid prescription. 17 5. “Conveyance” means a device used for transportation and 18 includes a motor vehicle, trailer, snowmobile, airplane, and 19 vessel, and any attached equipment. “Conveyance” does not 20 include property that is stolen or taken in violation of the 21 law. 22 6. “Instrumentality” means property otherwise lawful to 23 possess that is used in the furtherance or commission of an 24 offense of a law subject to forfeiture. “Instrumentality” 25 includes land, buildings, containers, a conveyance, equipment, 26 materials, products, a computer, computer software, a 27 telecommunications device, a firearm, ammunition, a tool, 28 money, securities, and negotiable instruments and other means 29 of exchange. 30 7. “Law enforcement agency” means any nonfederal police 31 force, or other local, county, or state agency that has the 32 authority under state law to engage in seizure and forfeiture. 33 8. “Law subject to forfeiture” means a state law that 34 carries a felony penalty and that explicitly includes 35 -1- LSB 5652XS (5) 86 jh/rj 1/ 18
S.F. 2166 forfeiture as a punishment or sanction for the offense. 1 Sec. 2. NEW SECTION . 809B.2 Purpose. 2 This chapter’s purpose is to deter criminal activity by 3 reducing crime’s economic incentive, increase the pecuniary 4 loss from criminal activity, protect against the wrongful 5 forfeiture of property, and ensure that only criminal 6 forfeiture is allowed in this state. 7 Sec. 3. NEW SECTION . 809B.3 Criminal forfeiture —— property 8 subject to forfeiture. 9 When a person is convicted of violating a law subject to 10 forfeiture, the court, consistent with this chapter, may order 11 the person to forfeit any of the following: 12 1. Property the person derived from the commission of the 13 offense. 14 2. Property directly traceable to property derived from the 15 commission of the offense. 16 3. Instrumentalities the person used in the commission of 17 the offense. 18 Sec. 4. NEW SECTION . 809B.4 Exemptions. 19 Real property that is a homestead, a motor vehicle of less 20 than ten thousand dollars in market value, and United States 21 currency totaling two hundred dollars or less are exempt from 22 forfeiture. 23 Sec. 5. NEW SECTION . 809B.5 Contraband. 24 A property right does not exist in contraband. Contraband 25 is subject to seizure and shall be disposed of according to 26 state law. Contraband is not subject to forfeiture under this 27 chapter. 28 Sec. 6. NEW SECTION . 809B.6 Conviction required —— standard 29 of proof. 30 1. Property may only be forfeited under this chapter if the 31 offense is of a state law subject to forfeiture, the offense is 32 established by proof of a criminal conviction, and the state 33 establishes that the property is forfeitable under this chapter 34 by clear and convincing evidence. 35 -2- LSB 5652XS (5) 86 jh/rj 2/ 18
S.F. 2166 2. This chapter does not prevent property from being 1 forfeited by plea agreement approved by the presiding criminal 2 court. 3 3. a. The court may waive the requirement of proof of a 4 criminal conviction if the prosecuting authority shows by a 5 preponderance of the evidence any of the following: 6 (1) The suspect died. 7 (2) The suspect was deported by the United States 8 government. 9 (3) The suspect fled the jurisdiction after being arrested, 10 charged with a crime subject to forfeiture of property, and 11 released on bail. 12 b. Property forfeitable under this subsection remains 13 subject to claims by innocent owners, creditors, and other 14 third parties pursuant to this chapter. 15 Sec. 7. NEW SECTION . 809B.7 Substitution of assets. 16 Upon the state’s motion following conviction, the court 17 may order the forfeiture of substitute property owned by the 18 defendant up to the value of unreachable property that is 19 beyond the court’s jurisdiction or cannot be located through 20 due diligence only if the state proves by a preponderance of 21 the evidence that the defendant intentionally transferred, 22 sold, or deposited property with a third party to avoid the 23 court’s jurisdiction. 24 Sec. 8. NEW SECTION . 809B.8 No additional remedies. 25 The state shall not seek personal money judgments or other 26 remedies not provided for in this chapter. 27 Sec. 9. NEW SECTION . 809B.9 No joint-and-several liability. 28 A defendant is not jointly and severally liable for 29 forfeiture awards owed by other defendants. When ownership is 30 unclear, a court may order each defendant to forfeit property 31 on a pro rata basis or by another means the court finds 32 equitable. 33 Sec. 10. NEW SECTION . 809B.10 Seizure of personal property 34 with process. 35 -3- LSB 5652XS (5) 86 jh/rj 3/ 18
S.F. 2166 At the request of the state at any time, a court may issue an 1 ex parte preliminary order to attach, seize, or secure personal 2 property for which forfeiture is sought and to provide for 3 custody of such property. Application, issuance, execution, 4 and return are subject to this Code statute or court rules. 5 Sec. 11. NEW SECTION . 809B.11 Seizure of personal property 6 without process. 7 Personal property subject to forfeiture may be seized at any 8 time without a court order if any of the following apply: 9 1. The seizure of personal property is incident to a lawful 10 arrest or a search lawfully conducted. 11 2. The personal property subject to seizure has been the 12 subject of a prior judgment in favor of the state. 13 3. The state has probable cause to believe that the delay 14 occasioned by the necessity to obtain process would result in 15 the removal or destruction of the personal property and that 16 the personal property is forfeitable under this chapter. 17 Sec. 12. NEW SECTION . 809B.12 Seizure of real property with 18 process. 19 1. Seizure of real property requires a court order. A court 20 may issue an order to seize or secure real property for which 21 forfeiture is sought only after proper notice to the property 22 owner and an opportunity for a contested hearing to determine 23 the sufficiency of probable cause for the seizure. 24 2. This section does not prohibit the prosecuting authority 25 from seeking a lis pendens or restraining order to hinder the 26 sale or destruction of the real property. 27 3. Application, issuance, execution, and return of any 28 order are subject to this Code or court rules. 29 Sec. 13. NEW SECTION . 809B.13 Receipt. 30 When property is seized, the law enforcement officer shall 31 give an itemized receipt to the person possessing the property, 32 or in the absence of a person, leave a receipt in the place 33 where the property was found, if reasonably possible. 34 Sec. 14. NEW SECTION . 809B.14 Title. 35 -4- LSB 5652XS (5) 86 jh/rj 4/ 18
S.F. 2166 1. At the time of seizure or entry of a restraining order, 1 the state acquires provisional title to the seized property. 2 Provisional title authorizes the state to hold and protect the 3 property. 4 2. Title to the property vests with the state when the trier 5 of fact renders a final forfeiture verdict and relates back to 6 the time when the state acquired provisional title. However, 7 this title is subject to claims by third parties adjudicated 8 under this chapter. 9 Sec. 15. NEW SECTION . 809B.15 Pretrial replevin hearing. 10 1. Following the seizure of property, a defendant or 11 claimant has a right to a pretrial hearing to determine the 12 validity of the seizure. 13 2. The defendant or claimant may claim at any time prior 14 to sixty days before trial of the related criminal offense the 15 right to possession of property by motion to the court to issue 16 a writ of replevin. 17 3. The defendant or claimant shall file a motion 18 establishing the validity of the alleged interest in the 19 property. 20 4. The court shall hear the motion no more than thirty days 21 after the motion is filed. 22 5. The state shall file an answer showing probable cause 23 for the seizure, or cross motions at least ten days before the 24 hearing. 25 6. Either party may, by agreement or for good cause, 26 move the court to delay the hearing for one extension of no 27 more than ten days. Any such motion may be supported by an 28 affidavit or other submission. 29 7. The court shall grant the motion if the court finds that 30 any of the following apply: 31 a. The final judgment will likely be that the state must 32 return the property to the claimant. 33 b. The property is not reasonably required to be held for 34 investigatory reasons. 35 -5- LSB 5652XS (5) 86 jh/rj 5/ 18
S.F. 2166 c. The property is the only reasonable means for a defendant 1 to pay for legal representation in the forfeiture or criminal 2 proceeding. At the court’s discretion under paragraph “b” , the 3 court may order the return of funds or property sufficient to 4 obtain legal counsel but less than the total amount seized, and 5 require an accounting. 6 8. In lieu of ordering the issuance of the writ, the court 7 may order the state to give security or written assurance for 8 satisfaction of any judgment, including damages, that may be 9 rendered in the action, or order other relief as may be just. 10 Sec. 16. NEW SECTION . 809B.16 Discovery. 11 Discovery is subject to the rules of criminal procedure. 12 Sec. 17. NEW SECTION . 809B.17 Trial proceedings. 13 The litigation related to the forfeiture of property shall 14 be held in a single proceeding following the trial of the 15 related alleged criminal offense. The litigation of whether 16 property of less than ten thousand dollars in value shall be 17 forfeited shall be held before only a judge. 18 Sec. 18. NEW SECTION . 809B.18 Proportionality hearing. 19 1. At any time following determination by the trier of fact, 20 the defendant may petition the court to determine whether the 21 forfeiture is unconstitutionally excessive under the state or 22 federal constitution. 23 2. The defendant has the burden of establishing the 24 forfeiture is grossly disproportional to the seriousness of 25 the offense by a preponderance of the evidence at a hearing 26 conducted by the court without a jury. 27 3. In determining whether the forfeiture of an 28 instrumentality is unconstitutionally excessive, the court may 29 consider all relevant factors, including but not limited to all 30 of the following: 31 a. The seriousness of the offense and the offense’s impact 32 on the community, including the duration of the activity and 33 the harm caused by the defendant. 34 b. The extent to which the defendant participated in the 35 -6- LSB 5652XS (5) 86 jh/rj 6/ 18
S.F. 2166 offense. 1 c. The extent to which the property was used in committing 2 the offense. 3 d. The sentence imposed for committing the offense subject 4 to forfeiture. 5 e. Whether the offense was completed or attempted. 6 4. In determining the value of the instrumentality subject 7 to forfeiture, the court may consider relevant factors, 8 including but not limited to any of the following: 9 a. The fair market value of the property. 10 b. The value of the property to the defendant including 11 hardship to the defendant if the forfeiture is realized. 12 c. The hardship from the loss of a motor vehicle or other 13 property to the defendant’s family members or others if the 14 property is forfeited. 15 5. The court shall not consider the value of the 16 instrumentality to the state in determining whether the 17 forfeiture of an instrumentality is constitutionally excessive. 18 Sec. 19. NEW SECTION . 809B.19 Secured interest. 19 1. Property encumbered by a valid security interest or 20 subject to a lease or rental agreement is not subject to 21 forfeiture. A person claiming a security interest must 22 establish by a preponderance of the evidence the validity 23 of the perfected security interest, a lease, or a rental 24 agreement. 25 2. The prosecuting authority shall summarily return 26 property to the person with a valid security interest in the 27 property, to the lessor, or to the person who is renting out 28 the property. 29 3. If the person alleges a valid security interest or that 30 the property is subject to a lease or rental agreement but 31 the state seeks to proceed with the forfeiture against the 32 property, the state shall prove by a preponderance of the 33 evidence that the person had actual knowledge of the underlying 34 offense giving rise to the forfeiture. 35 -7- LSB 5652XS (5) 86 jh/rj 7/ 18
S.F. 2166 Sec. 20. NEW SECTION . 809B.20 Innocent owner. 1 1. The property of an innocent owner shall not be forfeited. 2 Whether a person is an innocent owner shall be determined in 3 accordance with this section. 4 2. A person who has an ownership interest in property 5 subject to forfeiture existing at the time the illegal conduct 6 giving rise to forfeiture occurred and who claims to be an 7 innocent owner has the burden of proving by a preponderance 8 of the evidence that the person has a legal right, title, or 9 interest in the property seized under this chapter. 10 3. If subsection 2 is satisfied and the state seeks to 11 proceed with the forfeiture against the property, the state 12 shall prove by a preponderance of the evidence that the person 13 had actual or constructive knowledge of the underlying offense 14 giving rise to the forfeiture. 15 4. A person who acquired an ownership interest in property 16 subject to forfeiture after the commission of an offense giving 17 rise to the forfeiture and who claims to be an innocent owner 18 has the burden of proving by a preponderance of the evidence 19 that the person has legal right, title, or interest in the 20 property seized under this chapter. 21 5. If subsection 4 is satisfied and the state seeks to 22 proceed with the forfeiture against the property, the state 23 shall prove by a preponderance of the evidence that at the time 24 the person acquired the property any of the following applied: 25 a. The person had actual or constructive knowledge that the 26 property was subject to forfeiture. 27 b. The person was not a bona fide purchaser without notice 28 of any defect in title and for valuable consideration. 29 6. If the state fails to meet the state’s burden in 30 subsection 3 or 5, the court shall find that the person is an 31 innocent owner and shall order the state to relinquish all 32 claims of title to the property. 33 7. The suspect or convicted offender may invoke the right 34 against self-incrimination or the marital privilege during 35 -8- LSB 5652XS (5) 86 jh/rj 8/ 18
S.F. 2166 the forfeiture-related stage of the prosecution. The trier 1 of fact at the hearing may draw an adverse inference from the 2 invocation of the right or privilege. 3 Sec. 21. NEW SECTION . 809B.21 Appeal. 4 A party to forfeiture litigation may appeal the district 5 court’s decision regarding the seizure, forfeiture, and 6 distribution of property under this chapter. 7 Sec. 22. NEW SECTION . 809B.22 Disposition of property and 8 proceeds. 9 1. At any time when unclaimed property or contraband held 10 for evidentiary purposes is no longer needed for that purpose, 11 the court may order unclaimed property to be delivered to the 12 treasurer of state within thirty days, or, in the case of 13 contraband, be destroyed within thirty days. 14 2. If the forfeiture is granted, the court may order the 15 property be delivered to the treasurer of state within thirty 16 days. 17 3. Upon motion, the court may order that a portion of the 18 currency seized or proceeds from public auction be used to pay 19 reasonable nonpersonnel expenses of the seizure, storage, and 20 maintenance of custody of any forfeited items. 21 4. All abandoned property shall be delivered to the 22 treasurer of state within thirty days. 23 5. The treasurer of state shall dispose of all noncurrency 24 forfeited property at public auction. The auction proceeds and 25 forfeited currency shall first be used to pay all outstanding 26 recorded liens on the forfeited property, then to comply with 27 an order of the court to pay reasonable nonpersonnel expenses, 28 with all remaining funds to be deposited in the general fund 29 of the state. 30 Sec. 23. NEW SECTION . 809B.23 Prohibition on retaining 31 property —— sale restrictions. 32 A law enforcement agency shall not retain forfeited property 33 or sell forfeited property directly or indirectly to any 34 employee of the agency, to a person related by consanguinity or 35 -9- LSB 5652XS (5) 86 jh/rj 9/ 18
S.F. 2166 affinity to an employee of the agency within the third degree, 1 or to another law enforcement agency. 2 Sec. 24. NEW SECTION . 809B.24 Reporting. 3 1. On an annual basis, each law enforcement agency shall 4 report to the department of revenue the following information 5 about seizures and forfeitures completed by the law enforcement 6 agency under state forfeiture law and federal forfeiture law: 7 a. The total number of seizures of currency. 8 b. The total number of seizures and the number of items in 9 each class of property seized including vehicles, houses, and 10 other types of property. 11 c. The market value of each class of property seized 12 including currency, vehicles, houses, and other types of 13 property. 14 d. The total number of occurrences of each class of offense 15 underlying the forfeitures including controlled substances, 16 driving while intoxicated, and other offenses. 17 2. The department of revenue may require that information 18 not specified in this section also be reported. The department 19 of revenue shall develop standard forms, processes, and 20 deadlines for electronic data entry for annual submission of 21 forfeiture data by law enforcement agencies. 22 3. Each law enforcement agency shall file with the 23 department of revenue the report required under subsection 24 1 for the law enforcement agency and the corresponding 25 prosecutor’s office. The law enforcement agency shall 26 file separate reports for forfeitures completed under state 27 forfeiture law and federal forfeiture law. A report shall be 28 filed by a law enforcement agency even if the law enforcement 29 agency did not engage in seizures or forfeitures during the 30 reporting period. The department of revenue shall compile the 31 submissions and issue an aggregate report of all forfeitures 32 in the state. 33 4. By April 1 of each year, the department of revenue shall 34 make available on the department’s internet site the reports 35 -10- LSB 5652XS (5) 86 jh/rj 10/ 18
S.F. 2166 submitted by law enforcement agencies and the aggregate report 1 prepared by the department under subsection 3. 2 Sec. 25. NEW SECTION . 809B.25 Return of property, damages, 3 and costs. 4 1. The law enforcement agency that holds the property shall 5 return property to the owner within a reasonable period of time 6 not to exceed five days after any of the following: 7 a. The court finds that the owner has a bona fide security 8 interest. 9 b. The court finds that the owner is an innocent owner. 10 c. The owner’s acquittal of or the dismissal of the criminal 11 charge that is the basis of the forfeiture proceedings. 12 d. The disposal of the criminal charge that is the basis of 13 the forfeiture proceedings by nolle prosequi. 14 2. The law enforcement agency that holds the property is 15 responsible for any damages, storage fees, and related costs 16 applicable to property returned under subsection 1. 17 Sec. 26. NEW SECTION . 809B.26 Transfer of forfeitable 18 property to federal government. 19 A law enforcement agency, joint taskforce of any kind, 20 or prosecuting authority shall not directly or indirectly 21 transfer or refer seized property to any federal agency unless 22 the seized property includes seized United States currency in 23 excess of fifty thousand dollars. 24 Sec. 27. NEW SECTION . 809B.27 Preemption. 25 This chapter preempts laws by county, city, township, and 26 other tribal or local governments in the state which regulate 27 civil and criminal forfeiture. 28 Sec. 28. Section 80.39, subsection 1, Code 2016, is amended 29 to read as follows: 30 1. Personal property, except for motor vehicles subject to 31 sale pursuant to section 321.89 , and seizable property subject 32 to disposition pursuant to chapter 809 or 809A , which personal 33 property is found or seized by, turned in to, or otherwise 34 lawfully comes into the possession of the department or a local 35 -11- LSB 5652XS (5) 86 jh/rj 11/ 18
S.F. 2166 law enforcement agency and which the department or agency does 1 not own, shall be disposed of pursuant to this section . If by 2 examining the property the owner or lawful custodian of the 3 property is known or can be readily ascertained, the department 4 or agency shall notify the owner or custodian by certified mail 5 directed to the owner’s or custodian’s last known address, as 6 to the location of the property. If the identity or address of 7 the owner cannot be determined, notice by one publication in a 8 newspaper of general circulation in the area where the property 9 was found is sufficient notice. A published notice may contain 10 multiple items. 11 Sec. 29. Section 123.9, subsection 7, Code 2016, is amended 12 by striking the subsection. 13 Sec. 30. Section 321.232, subsection 3, Code 2016, is 14 amended to read as follows: 15 3. A speed detection jamming device sold, operated, or 16 possessed in violation of subsection 1 may be seized by a peace 17 officer and is subject to forfeiture as provided by chapter 809 18 or 809A . 19 Sec. 31. Section 321J.4B, subsections 6, 9, and 10, Code 20 2016, are amended to read as follows: 21 6. Upon conviction of the defendant for a second 22 or subsequent violation of subsection 2 , paragraph “a” , 23 subparagraph (2), the court shall order, if the convicted 24 person is the owner of the motor vehicle used in the commission 25 of the offense, that that motor vehicle be seized and forfeited 26 to the state pursuant to chapters 809 and 809A 809B . 27 9. Operating a motor vehicle on a street or highway in this 28 state in violation of an order of impoundment or immobilization 29 is a serious misdemeanor. A motor vehicle which is subject to 30 an order of impoundment or immobilization that is operated on a 31 street or highway in this state in violation of the order shall 32 be seized and forfeited to the state under chapters 809 and 33 809A 809B . 34 10. Once the period of impoundment or immobilization has 35 -12- LSB 5652XS (5) 86 jh/rj 12/ 18
S.F. 2166 expired, the owner of the motor vehicle shall have thirty 1 days to claim the motor vehicle and pay all fees and charges 2 imposed under this section . If the owner or the owner’s 3 designee has not claimed the vehicle and paid all fees and 4 charges imposed under this section within seven days from the 5 date of expiration of the period, the clerk shall send written 6 notification to the motor vehicle owner, at the owner’s last 7 known address, notifying the owner of the date of expiration of 8 the period of impoundment or immobilization and of the period 9 in which the motor vehicle must be claimed. If the motor 10 vehicle owner fails to claim the motor vehicle and pay all fees 11 and charges imposed within the thirty-day period, the motor 12 vehicle shall be forfeited to the state under chapters 809 and 13 809A 809B . 14 Sec. 32. Section 321J.4B, subsection 12, paragraph a, 15 subparagraph (2), Code 2016, is amended to read as follows: 16 (2) The holder of a security interest in a vehicle which 17 is impounded or immobilized pursuant to this section or 18 forfeited in the manner provided in chapters 809 and 809A 19 809B shall be notified of the impoundment, immobilization, 20 or forfeiture within seventy-two hours of the seizure of the 21 vehicle and shall have the right to claim the motor vehicle 22 without payment of any fees or surcharges unless the value of 23 the vehicle exceeds the value of the security interest held by 24 the creditor. 25 Sec. 33. Section 321J.10, subsection 7, Code 2016, is 26 amended to read as follows: 27 7. Specimens obtained pursuant to warrants issued under 28 this section are not subject to disposition under section 808.9 29 or chapter 809 or 809A 809B . 30 Sec. 34. Section 455B.103, subsection 4, paragraph d, 31 subparagraph (2), Code 2016, is amended to read as follows: 32 (2) In a reasonable manner, and any property seized shall be 33 treated in accordance with the provisions of chapters 808 , 809 , 34 and 809A 809B . 35 -13- LSB 5652XS (5) 86 jh/rj 13/ 18
S.F. 2166 Sec. 35. Section 462A.14D, subsection 7, Code 2016, is 1 amended to read as follows: 2 7. Specimens obtained pursuant to warrants issued under 3 this section are not subject to disposition under section 808.9 4 or chapter 809 or 809A 809B . 5 Sec. 36. Section 706A.3, subsection 3, paragraphs d and e, 6 Code 2016, are amended to read as follows: 7 d. Ordering the payment of all reasonable costs and expenses 8 of the investigation and prosecution of any violation, civil 9 or criminal, including reasonable attorney fees in the trial 10 and appellate courts. Such payments received by the state, 11 by judgment, settlement, or otherwise, shall be considered 12 forfeited property and disposed of pursuant to section 809A.17 13 chapter 809B . 14 e. Ordering the forfeiture of any property subject to 15 forfeiture under chapter 809A 809B , pursuant to the provisions 16 and procedures of that chapter. 17 Sec. 37. Section 706A.3, subsection 4, Code 2016, is amended 18 to read as follows: 19 4. Relief under subsection 3 , paragraphs “e” , “f” , and 20 “g” , shall not be granted in civil proceedings instituted 21 by an aggrieved person unless the prosecuting attorney has 22 instituted the proceedings or intervened. In any action under 23 this section brought by the state or in which the state has 24 intervened, the state may employ any of the powers of seizure 25 and restraint of property as are provided for forfeiture 26 actions under chapter 809A 809B , or as are provided for the 27 collection of taxes payable and past due, and whose collection 28 has been determined to be in jeopardy. 29 Sec. 38. Section 706B.2, subsection 4, Code 2016, is amended 30 to read as follows: 31 4. A person who is found guilty of a violation under this 32 section also may be charged with violations of chapter 706A , 33 and property involved in a violation under this chapter is 34 subject to forfeiture under chapter 809A 809B . 35 -14- LSB 5652XS (5) 86 jh/rj 14/ 18
S.F. 2166 Sec. 39. Section 715A.8, subsection 6, Code 2016, is amended 1 to read as follows: 2 6. Any real or personal property obtained by a person as 3 a result of a violation of this section , including but not 4 limited to any money, interest, security, claim, contractual 5 right, or financial instrument that is in the possession of the 6 person, shall be subject to seizure and forfeiture pursuant to 7 chapter 809A 809B . A victim injured by a violation of this 8 section , or a financial institution that has indemnified a 9 victim injured by a violation of this section , may file a claim 10 as an interest holder pursuant to section 809A.11 809B.15 for 11 payment of damages suffered by the victim including costs of 12 recovery and reasonable attorney fees. 13 Sec. 40. Section 716A.7, Code 2016, is amended to read as 14 follows: 15 716A.7 Forfeitures for violations of chapter. 16 All property, including all income or proceeds earned but 17 not yet received from a third party as a result of a violation 18 of this chapter , used in connection with a violation of this 19 chapter , known by the owner thereof to have been used in 20 violation of this chapter , shall be subject to seizure and 21 forfeiture pursuant to chapter 809A 809B . 22 Sec. 41. Section 724.26, subsection 4, Code 2016, is amended 23 to read as follows: 24 4. Except as provided in section 809A.17, subsection 5 , 25 paragraph “b” chapter 809B , a court that issues an order or 26 that enters a judgment of conviction described in subsection 27 2 and that finds the subject of the order or conviction to be 28 in possession of any firearm, offensive weapon, or ammunition 29 shall order that such firearm, offensive weapon, or ammunition 30 be sold or transferred by a date certain to the custody of a 31 qualified person in this state, as determined by the court. 32 The qualified person must be able to lawfully possess such 33 firearm, offensive weapon, or ammunition in this state. If 34 the court is unable to identify a qualified person to receive 35 -15- LSB 5652XS (5) 86 jh/rj 15/ 18
S.F. 2166 such firearm, offensive weapon, or ammunition, the court 1 shall order that the firearm, offensive weapon, or ammunition 2 be transferred by a date certain to the county sheriff or 3 a local law enforcement agency designated by the court for 4 safekeeping until a qualified person is identified to receive 5 the firearm, offensive weapon, or ammunition, until such order 6 is no longer in effect, until such conviction is vacated, or 7 until the person’s rights have been restored in accordance 8 with section 724.27 . If the firearm, offensive weapon, or 9 ammunition is to be transferred to the sheriff’s office or a 10 local law enforcement agency, the court shall assess the person 11 the reasonable cost of storing the firearm, offensive weapon, 12 or ammunition, payable to the county sheriff or the local law 13 enforcement agency. 14 Sec. 42. Section 809.5, subsection 1, paragraph f, 15 subparagraph (1), Code 2016, is amended to read as follows: 16 (1) If the aggregate fair market value of the property is 17 greater than five hundred dollars, forfeiture proceedings shall 18 be initiated pursuant to the provisions of chapter 809A 809B . 19 If the court does not order the property forfeited to the state 20 in the forfeiture proceedings pursuant to chapter 809A 809B , 21 the seizing agency shall become the owner of the property and 22 may dispose of it in any reasonable manner. 23 Sec. 43. Section 809.12A, Code 2016, is amended to read as 24 follows: 25 809.12A Appeals. 26 An appeal from a denial of an application for the return 27 of seized property or from an order for the return of seized 28 property shall be made within thirty days after the entry of 29 a judgment order. The appellant, other than the state, shall 30 post a bond of a reasonable amount as the court may fix and 31 approve, conditioned to pay all costs of the proceedings if the 32 appellant is unsuccessful on appeal. The appellant, other than 33 the state, may be required to post a supersedeas bond or other 34 security, as the court finds to be reasonable, in order to stay 35 -16- LSB 5652XS (5) 86 jh/rj 16/ 18
S.F. 2166 the operation of a forfeiture order under section 809A.16 1 chapter 809B . 2 Sec. 44. Section 809.15, Code 2016, is amended to read as 3 follows: 4 809.15 Combining proceedings. 5 In cases involving seized property and property subject to 6 forfeiture pursuant to section 809A.4 809B.3 , the court may 7 order that the proceedings be combined for purposes of this 8 chapter . 9 Sec. 45. REPEAL. Chapter 809A, Code 2016, is repealed. 10 EXPLANATION 11 The inclusion of this explanation does not constitute agreement with 12 the explanation’s substance by the members of the general assembly. 13 This bill relates to criminal asset forfeiture. 14 Asset forfeiture is a process by which contraband and 15 proceeds or instrumentalities related to criminal activity 16 may be seized by the state and sold. Under current law, 17 asset forfeiture is governed by Code chapter 809A. The bill 18 repeals Code chapter 809A and replaces it with new Code chapter 19 809B. Currently under Code chapter 809A, a conviction for a 20 criminal offense is not required for an asset to be subject to 21 forfeiture, and forfeiture need not be expressly authorized 22 as a penalty in the criminal statute. The bill provides that 23 property is not subject to forfeiture until a person has 24 been convicted of a felony for which forfeiture is expressly 25 authorized as a penalty. 26 The bill exempts homestead real property, motor vehicles of 27 less than $10,000 in market value, and United States currency 28 totaling $200 or less from forfeiture. 29 Current law requires the state to prove that property is 30 subject to forfeiture by a preponderance of the evidence. The 31 bill requires the state to prove, by clear and convincing 32 evidence, that the property is forfeitable. 33 The bill provides that a defendant is not jointly and 34 severally liable for forfeiture awards owed by other 35 -17- LSB 5652XS (5) 86 jh/rj 17/ 18
S.F. 2166 defendants. 1 The bill provides for a proportionality hearing, where 2 the defendant may petition the court that the forfeiture is 3 unconstitutionally excessive. 4 The bill requires law enforcement agencies to provide annual 5 reports to the department of revenue regarding forfeitures 6 completed by the law enforcement agencies. The bill requires 7 the department of revenue to prepare an annual report 8 aggregating the results and to post the aggregate report on the 9 department’s internet site. 10 The bill provides that new Code chapter 809B preempts laws by 11 county, city, township, and other tribal and local governments 12 in the state which regulate civil and criminal forfeiture. 13 The bill makes conforming changes relating to the repeal of 14 Code chapter 809A and new Code chapter 809B. 15 -18- LSB 5652XS (5) 86 jh/rj 18/ 18