HF 2393 (LSB 5558HV (2) 87)

HOUSE FILE 2393

BY  COMMITTEE ON NATURAL RESOURCES

(SUCCESSOR TO HF 2251)

A BILL FOR

An Act relating to the seizure of property by the department of natural resources.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  Section 481A.11, Code 2018, is amended to read as follows:
   481A.11  Confiscated or accidentally killed game.
   Except as provided in section 481A.13 or 481A.13A, any game or fish seized by the commission under section 481A.12 or any game accidentally killed by a motor vehicle on a public highway shall, when salvageable, be disposed of as determined by the commission or its designee.
    Sec. 2.  Section 481A.12, Code 2018, is amended to read as follows:
   481A.12  Seizure of wildlife taken or handled illegally.
   The director or any peace officer shall seize with or without warrant and take possession of, or direct the disposal of, any fish, furs, birds, or animals, or mussels, clams, or frogs, which have been caught, taken, or killed at a time, in a manner, or for a purpose, or had in possession or under control, or offered for shipment, or illegally transported in the state or to a point beyond its borders, contrary to the Code. All fish, furs, birds, or animals, or mussels, clams, or frogs seized under this section may shall be relinquished to a representative of the commission or disposed of and kept as provided in section 481A.13.
    Sec. 3.  Section 481A.13, Code 2018, is amended to read as follows:
   481A.13  Search warrants.
   Any court having jurisdiction of the offense, upon receiving proof of probable cause for believing that any fish, mussels, clams, frogs, birds, furs, or animals caught, taken, killed, had in possession, under control, or shipped, contrary to the Code, or hidden or concealed in any place, shall issue a search warrant and cause a search to be made in any place therefor. The property so seized under warrant shall be safely kept under the direction of the court so long as necessary for the purpose of being used as evidence in any trial, and if a trial results in a conviction the property seized shall be confiscated by the director or the director’s officers.  If the trial does not result in a conviction, the property shall be returned to the person pursuant to section 481A.13A.
    Sec. 4.  NEW SECTION.  481A.13A  Conviction required for property confiscation —— return of property.
   1.  The state shall not confiscate property seized under section 481A.12 or 481A.13 unless the person from whom the property was seized is convicted of the violation for which the property was seized.
   2.  If the person from whom the property was seized is not convicted of the violation for which the property was seized, the department, law enforcement agency, or other governmental agency in possession of the seized property shall return the seized property to the person within thirty days of any of the following:
   a.  The date the person is found not guilty of the violation.
   b.  The date the action involving the violation is dismissed.
   c.  The date the statute of limitations expires for the alleged violation for which the property was seized.
   3.  For purposes of this section, “convicted” includes a finding of guilt, payment of a scheduled fine, a plea of guilty, deferred judgment, deferred or suspended sentence, adjudication of delinquency, or circumstance where a person is not charged with a criminal offense related to the violation based in whole or in part on the person’s agreement to provide information regarding the criminal activity of another person.
    Sec. 5.  Section 483A.32, Code 2018, is amended to read as follows:
   483A.32  Public nuisance.
   1.  Any Subject to subsection 2, any device, contrivance, or material used to violate a rule adopted by the commission, or any other provision of this chapter or chapter 481A, 481B, 482, 484A, or 484B, is a public nuisance and may be condemned by the state. The director, the director’s officers, or any peace officer, shall seize the devices, contrivances, or materials used as a public nuisance, without warrant or process, and deliver them to a magistrate having jurisdiction. An automobile shall not be construed to be a public nuisance under this section.
   2.  The state may only condemn property seized as a public nuisance if the person from whom the property was seized is convicted of the violation for which the property was seized as a public nuisance.
   3.  If the person from whom the property was seized is not convicted of the violation for which the property was seized, the department, law enforcement agency, or other governmental agency in possession of the seized property shall return the seized property to the person within thirty days of any of the following:
   a.  The date the person is found not guilty of the violation.
   b.  The date the action involving the violation is dismissed.
   c.  The date the statute of limitations expires for the alleged violation for which the property was seized.
   4.  For purposes of this section, “convicted” means the same as in section 481A.13A, subsection 3.
    Sec. 6.  Section 483A.33, subsection 3, paragraph a, Code 2018, is amended to read as follows:
   a.  The person from whom the property was seized may make application for its return in the office of the clerk of the district court for the county in which the property was seized. The application shall be filed within thirty days after the receipt of the notice of condemnation or the person is convicted of the violation for which the property was seized, whichever occurs later. Failure to file the application within this time period terminates the interest of the person and the ownership of the property shall be transferred to the state, except that a person who is not convicted of the violation for which the property was seized is not required to file an application and is entitled to the return of the property in accordance with section 483A.32.
    Sec. 7.  Section 483A.33, subsection 4, Code 2018, is amended to read as follows:
   4.  If an application for return of condemnable property is timely and of sufficient grounds, the claim shall be set for hearing. The hearing shall be held not less than ten nor more than thirty days after the filing of the claim claim is filed or the person is convicted for the violation for which the property was seized as a public nuisance, whichever occurs later. The proceeding shall be conducted by a magistrate or a district associate judge. All claims to the same property shall be heard in one proceeding, unless it is shown that the proceeding would result in prejudice to one or more of the parties.
    Sec. 8.  Section 483A.33, Code 2018, is amended by adding the following new subsection:
   NEW SUBSECTION.  6.  For purposes of this section, “convicted” means the same as in section 481A.13A, subsection 3.
EXPLANATION
The inclusion of this explanation does not constitute agreement with
the explanation’s substance by the members of the general assembly.
   This bill relates to seizure of property by the department of natural resources, provides that seized property may only be forfeited to the state upon conviction of the violation which led to the seizure, and requires the department to return the seized property if the person is not convicted of the violation.
   The bill defines “convicted” as a finding of guilt, payment of a scheduled fine, a plea of guilty, deferred judgment, deferred or suspended sentence, adjudication of delinquency, or circumstance where a person is not charged with a criminal offense related to the violation based in whole or in part on the person’s agreement to provide information regarding the criminal activity of another person.
   Under current law, a peace officer may seize any fish, furs, birds, animals, mussels, clams, or frogs which have been caught, taken, or killed at a time, in a manner, or for a purpose, or had in possession or under control, or offered for shipment, or illegally transported in the state or to a point beyond its borders, contrary to the Code. Such seized wildlife may be disposed of or relinquished to a representative of the natural resource commission. The bill provides that such seized wildlife must be kept for trial, and if the person from whom the wildlife was seized is not convicted, the department of natural resources, law enforcement agency, or other governmental agency in possession of the seized property shall return the wildlife within 30 days of the person being found not guilty, the action being dismissed, or the expiration of the statute of limitations for the alleged violation for which the property was seized.
   Under current law, any device, contrivance, or material used to violate a rule adopted by the commission, or any other provision of Code chapter 481A (wildlife conservation), 481B (endangered plants and wildlife), 482 (commercial fishing), 483A (fishing and hunting licenses, contraband, and guns), 484A (migratory game birds), or 484B (hunting preserves), is a public nuisance and may be condemned by the state. The bill provides that such seized property may only be condemned by the state if the person from whom the property was seized is convicted of the violation for which the property was seized as a public nuisance. If the person from whom the property was seized is not convicted, the department of natural resources, law enforcement agency, or other governmental agency in possession of the property is required to return the property to the person within 30 days of the person being found not guilty, the action being dismissed, or the expiration of the statute of limitations for the alleged violation for which the property was seized.
   Under current law, after the state files an application for condemnation of property seized as a public nuisance, a person must file an application for return within 30 days. Failure to timely file the application terminates the person’s interest in the property. A hearing for the condemnation of the property then must be held not less than 10 nor more than 30 days after the application for return is filed.
   The bill provides that a person must file an application for return within 30 days of the state’s application for condemnation or the conviction of the person, whichever occurs later, except that a person who is not convicted of the violation is not required to file an application and is entitled to the return of the property. The bill also provides that a hearing for the condemnation of the property, if any, must be held not less than 10 nor more than 30 days after the application for return is filed or the conviction of the person, whichever occurs later.