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House File 250 - IntroducedA Bill ForAn Act 1relating to forfeiture of property for criminal
2offenses.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 809B.1 Definitions.
2As used in this chapter, unless the context otherwise
3requires:
41. “Abandoned property” means personal property left by an
5owner who intentionally relinquishes all rights to the control
6of the personal property. “Abandoned property” does not include
7real property.
82. “Actual knowledge” means direct and clear awareness of
9information, a fact, or a condition.
103. “Constructive knowledge” means knowledge that is
11imputed to family or household members of the defendant if the
12defendant admitted guilt or was adjudicated guilty three or
13more times for the same or similar offense, as specified in
14statute, in the ten years prior to the alleged offense.
154. “Contraband” means goods that are unlawful to import,
16export, or possess, including controlled substances without a
17valid prescription.
185. “Conveyance” means a device used for transportation and
19includes a motor vehicle, trailer, snowmobile, airplane, and
20vessel, and any attached equipment. “Conveyance” does not
21include property that is stolen or taken in violation of the
22law.
236. “Instrumentality” means property otherwise lawful to
24possess that is used in the furtherance or commission of an
25offense of a law subject to forfeiture. “Instrumentality”
26includes land, buildings, containers, a conveyance, equipment,
27materials, products, a computer, computer software, a
28telecommunications device, a firearm, ammunition, a tool,
29money, securities, and negotiable instruments and other means
30of exchange.
317. “Law enforcement agency” means any nonfederal police
32force, or other local, county, or state agency that has the
33authority under state law to engage in seizure and forfeiture.
348. “Law subject to forfeiture” means a state law that
35carries a felony penalty and that explicitly includes
-1-1forfeiture as a punishment or sanction for the offense.
2 Sec. 2. NEW SECTION. 809B.2 Purpose.
3This chapter’s purpose is to deter criminal activity by
4reducing crime’s economic incentive, increase the pecuniary
5loss from criminal activity, protect against the wrongful
6forfeiture of property, and ensure that only criminal
7forfeiture is allowed in this state.
8 Sec. 3. NEW SECTION. 809B.3 Criminal forfeiture — property
9subject to forfeiture.
10When a person is convicted of violating a law subject to
11forfeiture, the court, consistent with this chapter, may order
12the person to forfeit any of the following:
131. Property the person derived from the commission of the
14offense.
152. Property directly traceable to property derived from the
16commission of the offense.
173. Instrumentalities the person used in the commission of
18the offense.
19 Sec. 4. NEW SECTION. 809B.4 Exemptions.
20Real property that is a homestead, a motor vehicle of less
21than ten thousand dollars in market value, and United States
22currency totaling two hundred dollars or less are exempt from
23forfeiture.
24 Sec. 5. NEW SECTION. 809B.5 Contraband.
25A property right does not exist in contraband. Contraband
26is subject to seizure and shall be disposed of according to
27state law. Contraband is not subject to forfeiture under this
28chapter.
29 Sec. 6. NEW SECTION. 809B.6 Conviction required — standard
30of proof.
311. Property may only be forfeited under this chapter if the
32offense is of a state law subject to forfeiture, the offense is
33established by proof of a criminal conviction, and the state
34establishes that the property is forfeitable under this chapter
35by clear and convincing evidence.
-2- 12. This chapter does not prevent property from being
2forfeited by plea agreement approved by the presiding criminal
3court.
43. a. The court may waive the requirement of proof of a
5criminal conviction if the prosecuting authority shows by a
6preponderance of the evidence any of the following:
7(1) The suspect died.
8(2) The suspect was deported by the United States
9government.
10(3) The suspect fled the jurisdiction after being arrested,
11charged with a crime subject to forfeiture of property, and
12released on bail.
13b. Property forfeitable under this subsection remains
14subject to claims by innocent owners, creditors, and other
15third parties pursuant to this chapter.
16 Sec. 7. NEW SECTION. 809B.7 Substitution of assets.
17Upon the state’s motion following conviction, the court
18may order the forfeiture of substitute property owned by the
19defendant up to the value of unreachable property that is
20beyond the court’s jurisdiction or cannot be located through
21due diligence only if the state proves by a preponderance of
22the evidence that the defendant intentionally transferred,
23sold, or deposited property with a third party to avoid the
24court’s jurisdiction.
25 Sec. 8. NEW SECTION. 809B.8 No additional remedies.
26The state shall not seek personal money judgments or other
27remedies not provided for in this chapter.
28 Sec. 9. NEW SECTION. 809B.9 No joint-and-several liability.
29A defendant is not jointly and severally liable for
30forfeiture awards owed by other defendants. When ownership is
31unclear, a court may order each defendant to forfeit property
32on a pro rata basis or by another means the court finds
33equitable.
34 Sec. 10. NEW SECTION. 809B.10 Seizure of personal property
35with process.
-3- 1At the request of the state at any time, a court may issue an
2ex parte preliminary order to attach, seize, or secure personal
3property for which forfeiture is sought and to provide for
4custody of such property. Application, issuance, execution,
5and return are subject to this Code statute or court rules.
6 Sec. 11. NEW SECTION. 809B.11 Seizure of personal property
7without process.
8Personal property subject to forfeiture may be seized at any
9time without a court order if any of the following apply:
101. The seizure of personal property is incident to a lawful
11arrest or a search lawfully conducted.
122. The personal property subject to seizure has been the
13subject of a prior judgment in favor of the state.
143. The state has probable cause to believe that the delay
15occasioned by the necessity to obtain process would result in
16the removal or destruction of the personal property and that
17the personal property is forfeitable under this chapter.
18 Sec. 12. NEW SECTION. 809B.12 Seizure of real property with
19process.
201. Seizure of real property requires a court order. A court
21may issue an order to seize or secure real property for which
22forfeiture is sought only after proper notice to the property
23owner and an opportunity for a contested hearing to determine
24the sufficiency of probable cause for the seizure.
252. This section does not prohibit the prosecuting authority
26from seeking a lis pendens or restraining order to hinder the
27sale or destruction of the real property.
283. Application, issuance, execution, and return of any
29order are subject to this Code or court rules.
30 Sec. 13. NEW SECTION. 809B.13 Receipt.
31When property is seized, the law enforcement officer shall
32give an itemized receipt to the person possessing the property,
33or in the absence of a person, leave a receipt in the place
34where the property was found, if reasonably possible.
35 Sec. 14. NEW SECTION. 809B.14 Title.
-4- 11. At the time of seizure or entry of a restraining order,
2the state acquires provisional title to the seized property.
3Provisional title authorizes the state to hold and protect the
4property.
52. Title to the property vests with the state when the trier
6of fact renders a final forfeiture verdict and relates back to
7the time when the state acquired provisional title. However,
8this title is subject to claims by third parties adjudicated
9under this chapter.
10 Sec. 15. NEW SECTION. 809B.15 Pretrial replevin hearing.
111. Following the seizure of property, a defendant or
12claimant has a right to a pretrial hearing to determine the
13validity of the seizure.
142. The defendant or claimant may claim at any time prior
15to sixty days before trial of the related criminal offense the
16right to possession of property by motion to the court to issue
17a writ of replevin.
183. The defendant or claimant shall file a motion
19establishing the validity of the alleged interest in the
20property.
214. The court shall hear the motion no more than thirty days
22after the motion is filed.
235. The state shall file an answer showing probable cause
24for the seizure, or cross motions at least ten days before the
25hearing.
266. Either party may, by agreement or for good cause,
27move the court to delay the hearing for one extension of no
28more than ten days. Any such motion may be supported by an
29affidavit or other submission.
307. The court shall grant the motion if the court finds that
31any of the following apply:
32a. The final judgment will likely be that the state must
33return the property to the claimant.
34b. The property is not reasonably required to be held for
35investigatory reasons.
-5- 1c. The property is the only reasonable means for a defendant
2to pay for legal representation in the forfeiture or criminal
3proceeding. At the court’s discretion under paragraph “b”, the
4court may order the return of funds or property sufficient to
5obtain legal counsel but less than the total amount seized, and
6require an accounting.
78. In lieu of ordering the issuance of the writ, the court
8may order the state to give security or written assurance for
9satisfaction of any judgment, including damages, that may be
10rendered in the action, or order other relief as may be just.
11 Sec. 16. NEW SECTION. 809B.16 Discovery.
12Discovery is subject to the rules of criminal procedure.
13 Sec. 17. NEW SECTION. 809B.17 Trial proceedings.
14The litigation related to the forfeiture of property shall
15be held in a single proceeding following the trial of the
16related alleged criminal offense. The litigation of whether
17property of less than ten thousand dollars in value shall be
18forfeited shall be held before only a judge.
19 Sec. 18. NEW SECTION. 809B.18 Proportionality hearing.
201. At any time following determination by the trier of fact,
21the defendant may petition the court to determine whether the
22forfeiture is unconstitutionally excessive under the state or
23federal constitution.
242. The defendant has the burden of establishing the
25forfeiture is grossly disproportional to the seriousness of
26the offense by a preponderance of the evidence at a hearing
27conducted by the court without a jury.
283. In determining whether the forfeiture of an
29instrumentality is unconstitutionally excessive, the court may
30consider all relevant factors, including but not limited to all
31of the following:
32a. The seriousness of the offense and the offense’s impact
33on the community, including the duration of the activity and
34the harm caused by the defendant.
35b. The extent to which the defendant participated in the
-6-1offense.
2c. The extent to which the property was used in committing
3the offense.
4d. The sentence imposed for committing the offense subject
5to forfeiture.
6e. Whether the offense was completed or attempted.
74. In determining the value of the instrumentality subject
8to forfeiture, the court may consider relevant factors,
9including but not limited to any of the following:
10a. The fair market value of the property.
11b. The value of the property to the defendant including
12hardship to the defendant if the forfeiture is realized.
13c. The hardship from the loss of a motor vehicle or other
14property to the defendant’s family members or others if the
15property is forfeited.
165. The court shall not consider the value of the
17instrumentality to the state in determining whether the
18forfeiture of an instrumentality is constitutionally excessive.
19 Sec. 19. NEW SECTION. 809B.19 Secured interest.
201. Property encumbered by a valid security interest or
21subject to a lease or rental agreement is not subject to
22forfeiture. A person claiming a security interest must
23establish by a preponderance of the evidence the validity
24of the perfected security interest, a lease, or a rental
25agreement.
262. The prosecuting authority shall summarily return
27property to the person with a valid security interest in the
28property, to the lessor, or to the person who is renting out
29the property.
303. If the person alleges a valid security interest or that
31the property is subject to a lease or rental agreement but
32the state seeks to proceed with the forfeiture against the
33property, the state shall prove by a preponderance of the
34evidence that the person had actual knowledge of the underlying
35offense giving rise to the forfeiture.
-7-1 Sec. 20. NEW SECTION. 809B.20 Innocent owner.
21. The property of an innocent owner shall not be forfeited.
3Whether a person is an innocent owner shall be determined in
4accordance with this section.
52. A person who has an ownership interest in property
6subject to forfeiture existing at the time the illegal conduct
7giving rise to forfeiture occurred and who claims to be an
8innocent owner has the burden of proving by a preponderance
9of the evidence that the person has a legal right, title, or
10interest in the property seized under this chapter.
113. If subsection 2 is satisfied and the state seeks to
12proceed with the forfeiture against the property, the state
13shall prove by a preponderance of the evidence that the person
14had actual or constructive knowledge of the underlying offense
15giving rise to the forfeiture.
164. A person who acquired an ownership interest in property
17subject to forfeiture after the commission of an offense giving
18rise to the forfeiture and who claims to be an innocent owner
19has the burden of proving by a preponderance of the evidence
20that the person has legal right, title, or interest in the
21property seized under this chapter.
225. If subsection 4 is satisfied and the state seeks to
23proceed with the forfeiture against the property, the state
24shall prove by a preponderance of the evidence that at the time
25the person acquired the property any of the following applied:
26a. The person had actual or constructive knowledge that the
27property was subject to forfeiture.
28b. The person was not a bona fide purchaser without notice
29of any defect in title and for valuable consideration.
306. If the state fails to meet the state’s burden in
31subsection 3 or 5, the court shall find that the person is an
32innocent owner and shall order the state to relinquish all
33claims of title to the property.
347. The suspect or convicted offender may invoke the right
35against self-incrimination or the marital privilege during
-8-1the forfeiture-related stage of the prosecution. The trier
2of fact at the hearing may draw an adverse inference from the
3invocation of the right or privilege.
4 Sec. 21. NEW SECTION. 809B.21 Appeal.
5A party to forfeiture litigation may appeal the district
6court’s decision regarding the seizure, forfeiture, and
7distribution of property under this chapter.
8 Sec. 22. NEW SECTION. 809B.22 Disposition of property and
9proceeds.
101. At any time when unclaimed property or contraband held
11for evidentiary purposes is no longer needed for that purpose,
12the court may order unclaimed property to be delivered to the
13treasurer of state within thirty days, or, in the case of
14contraband, be destroyed within thirty days.
152. If the forfeiture is granted, the court may order the
16property be delivered to the treasurer of state within thirty
17days.
183. Upon motion, the court may order that a portion of the
19currency seized or proceeds from public auction be used to pay
20reasonable nonpersonnel expenses of the seizure, storage, and
21maintenance of custody of any forfeited items.
224. All abandoned property shall be delivered to the
23treasurer of state within thirty days.
245. The treasurer of state shall dispose of all noncurrency
25forfeited property at public auction. The auction proceeds and
26forfeited currency shall first be used to pay all outstanding
27recorded liens on the forfeited property, then to comply with
28an order of the court to pay reasonable nonpersonnel expenses,
29with all remaining funds to be deposited in the general fund
30of the state.
31 Sec. 23. NEW SECTION. 809B.23 Prohibition on retaining
32property — sale restrictions.
33A law enforcement agency shall not retain forfeited property
34or sell forfeited property directly or indirectly to any
35employee of the agency, to a person related by consanguinity or
-9-1affinity to an employee of the agency within the third degree,
2or to another law enforcement agency.
3 Sec. 24. NEW SECTION. 809B.24 Reporting.
41. On an annual basis, each law enforcement agency shall
5report to the department of revenue the following information
6about seizures and forfeitures completed by the law enforcement
7agency under state forfeiture law and federal forfeiture law:
8a. The total number of seizures of currency.
9b. The total number of seizures and the number of items in
10each class of property seized including vehicles, houses, and
11other types of property.
12c. The market value of each class of property seized
13including currency, vehicles, houses, and other types of
14property.
15d. The total number of occurrences of each class of offense
16underlying the forfeitures including controlled substances,
17driving while intoxicated, and other offenses.
182. The department of revenue may require that information
19not specified in this section also be reported. The department
20of revenue shall develop standard forms, processes, and
21deadlines for electronic data entry for annual submission of
22forfeiture data by law enforcement agencies.
233. Each law enforcement agency shall file with the
24department of revenue the report required under subsection
251 for the law enforcement agency and the corresponding
26prosecutor’s office. The law enforcement agency shall
27file separate reports for forfeitures completed under state
28forfeiture law and federal forfeiture law. A report shall be
29filed by a law enforcement agency even if the law enforcement
30agency did not engage in seizures or forfeitures during the
31reporting period. The department of revenue shall compile the
32submissions and issue an aggregate report of all forfeitures
33in the state.
344. By April 1 of each year, the department of revenue shall
35make available on the department’s internet site the reports
-10-1submitted by law enforcement agencies and the aggregate report
2prepared by the department under subsection 3.
3 Sec. 25. NEW SECTION. 809B.25 Return of property, damages,
4and costs.
51. The law enforcement agency that holds the property shall
6return property to the owner within a reasonable period of time
7not to exceed five days after any of the following:
8a. The court finds that the owner has a bona fide security
9interest.
10b. The court finds that the owner is an innocent owner.
11c. The owner’s acquittal of or the dismissal of the criminal
12charge that is the basis of the forfeiture proceedings.
13d. The disposal of the criminal charge that is the basis of
14the forfeiture proceedings by nolle prosequi.
152. The law enforcement agency that holds the property is
16responsible for any damages, storage fees, and related costs
17applicable to property returned under subsection 1.
18 Sec. 26. NEW SECTION. 809B.26 Transfer of forfeitable
19property to federal government.
20A law enforcement agency, joint taskforce of any kind,
21or prosecuting authority shall not directly or indirectly
22transfer or refer seized property to any federal agency unless
23the seized property includes seized United States currency in
24excess of fifty thousand dollars.
25 Sec. 27. NEW SECTION. 809B.27 Preemption.
26This chapter preempts laws by county, city, township, and
27other tribal or local governments in the state which regulate
28civil and criminal forfeiture.
29 Sec. 28. Section 80.39, subsection 1, Code 2019, is amended
30to read as follows:
311. Personal property, except for motor vehicles subject to
32sale pursuant to section 321.89, and seizable property subject
33to disposition pursuant to chapter 809 or 809A, which personal
34property is found or seized by, turned in to, or otherwise
35lawfully comes into the possession of the department or a local
-11-1law enforcement agency and which the department or agency does
2not own, shall be disposed of pursuant to this section. If by
3examining the property the owner or lawful custodian of the
4property is known or can be readily ascertained, the department
5or agency shall notify the owner or custodian by certified mail
6directed to the owner’s or custodian’s last known address, as
7to the location of the property. If the identity or address of
8the owner cannot be determined, notice by one publication in a
9newspaper of general circulation in the area where the property
10was found is sufficient notice. A published notice may contain
11multiple items.
12 Sec. 29. Section 123.9, subsection 7, Code 2019, is amended
13by striking the subsection.
14 Sec. 30. Section 321.232, subsection 3, Code 2019, is
15amended to read as follows:
163. A speed detection jamming device sold, operated, or
17possessed in violation of subsection 1 may be seized by a peace
18officer and is subject to forfeiture as provided by chapter 809
19or 809A.
20 Sec. 31. Section 321J.4B, subsections 6, 9, and 10, Code
212019, are amended to read as follows:
226. Upon conviction of the defendant for a second
23or subsequent violation of subsection 2, paragraph “a”,
24subparagraph (2), the court shall order, if the convicted
25person is the owner of the motor vehicle used in the commission
26of the offense, that that motor vehicle be seized and forfeited
27to the state pursuant to chapters 809 and 809A 809B.
289. Operating a motor vehicle on a street or highway in this
29state in violation of an order of impoundment or immobilization
30is a serious misdemeanor. A motor vehicle which is subject to
31an order of impoundment or immobilization that is operated on a
32street or highway in this state in violation of the order shall
33be seized and forfeited to the state under chapters 809 and
34809A 809B.
3510. Once the period of impoundment or immobilization has
-12-1expired, the owner of the motor vehicle shall have thirty
2days to claim the motor vehicle and pay all fees and charges
3imposed under this section. If the owner or the owner’s
4designee has not claimed the vehicle and paid all fees and
5charges imposed under this section within seven days from the
6date of expiration of the period, the clerk shall send written
7notification to the motor vehicle owner, at the owner’s last
8known address, notifying the owner of the date of expiration of
9the period of impoundment or immobilization and of the period
10in which the motor vehicle must be claimed. If the motor
11vehicle owner fails to claim the motor vehicle and pay all fees
12and charges imposed within the thirty-day period, the motor
13vehicle shall be forfeited to the state under chapters 809 and
14809A 809B.
15 Sec. 32. Section 321J.4B, subsection 12, paragraph a,
16subparagraph (2), Code 2019, is amended to read as follows:
17(2) The holder of a security interest in a vehicle which is
18impounded or immobilized pursuant to this section or forfeited
19in the manner provided in chapters 809 and 809A809B shall be
20notified of the impoundment, immobilization, or forfeiture
21within seventy-two hours of the seizure of the vehicle and
22shall have the right to claim the motor vehicle without
23payment of any fees or surcharges unless the value of the
24vehicle exceeds the value of the security interest held by the
25creditor.
26 Sec. 33. Section 321J.10, subsection 7, Code 2019, is
27amended to read as follows:
287. Specimens obtained pursuant to warrants issued under
29this section are not subject to disposition under section 808.9
30or chapter 809 or 809A 809B.
31 Sec. 34. Section 455B.103, subsection 4, paragraph d,
32subparagraph (2), Code 2019, is amended to read as follows:
33(2) In a reasonable manner, and any property seized shall be
34treated in accordance with the provisions of chapters 808, 809,
35and 809A 809B.
-13-1 Sec. 35. Section 462A.14D, subsection 7, Code 2019, is
2amended to read as follows:
37. Specimens obtained pursuant to warrants issued under
4this section are not subject to disposition under section 808.9
5or chapter 809 or 809A 809B.
6 Sec. 36. Section 706A.3, subsection 3, paragraphs d and e,
7Code 2019, are amended to read as follows:
8d. Ordering the payment of all reasonable costs and expenses
9of the investigation and prosecution of any violation, civil
10or criminal, including reasonable attorney fees in the trial
11and appellate courts. Such payments received by the state,
12by judgment, settlement, or otherwise, shall be considered
13forfeited property and disposed of pursuant to section
14809A.17chapter 809B.
15e. Ordering the forfeiture of any property subject to
16forfeiture under chapter 809A 809B, pursuant to the provisions
17and procedures of that chapter.
18 Sec. 37. Section 706A.3, subsection 4, Code 2019, is amended
19to read as follows:
204. Relief under subsection 3, paragraphs “e”, “f”, and
21“g”, shall not be granted in civil proceedings instituted
22by an aggrieved person unless the prosecuting attorney has
23instituted the proceedings or intervened. In any action under
24this section brought by the state or in which the state has
25intervened, the state may employ any of the powers of seizure
26and restraint of property as are provided for forfeiture
27actions under chapter 809A 809B, or as are provided for the
28collection of taxes payable and past due, and whose collection
29has been determined to be in jeopardy.
30 Sec. 38. Section 706B.2, subsection 4, Code 2019, is amended
31to read as follows:
324. A person who is found guilty of a violation under this
33section also may be charged with violations of chapter 706A,
34and property involved in a violation under this chapter is
35subject to forfeiture under chapter 809A 809B.
-14-1 Sec. 39. Section 715A.8, subsection 6, Code 2019, is amended
2to read as follows:
36. Any real or personal property obtained by a person as
4a result of a violation of this section, including but not
5limited to any money, interest, security, claim, contractual
6right, or financial instrument that is in the possession of the
7person, shall be subject to seizure and forfeiture pursuant to
8chapter 809A 809B. A victim injured by a violation of this
9section, or a financial institution that has indemnified a
10victim injured by a violation of this section, may file a claim
11as an interest holder pursuant to section 809A.11 809B.15 for
12payment of damages suffered by the victim including costs of
13recovery and reasonable attorney fees.
14 Sec. 40. Section 716A.7, Code 2019, is amended to read as
15follows:
16716A.7 Forfeitures for violations of chapter.
17All property, including all income or proceeds earned but
18not yet received from a third party as a result of a violation
19of this chapter, used in connection with a violation of this
20chapter, known by the owner thereof to have been used in
21violation of this chapter, shall be subject to seizure and
22forfeiture pursuant to chapter 809A 809B.
23 Sec. 41. Section 724.26, subsection 4, Code 2019, is amended
24to read as follows:
254. Except as provided in section 809A.17, subsection 5,
26paragraph “b” chapter 809B, a court that issues an order or
27that enters a judgment of conviction described in subsection
282 and that finds the subject of the order or conviction to be
29in possession of any firearm, offensive weapon, or ammunition
30shall order that such firearm, offensive weapon, or ammunition
31be sold or transferred by a date certain to the custody of a
32qualified person in this state, as determined by the court.
33The qualified person must be able to lawfully possess such
34firearm, offensive weapon, or ammunition in this state. If
35the court is unable to identify a qualified person to receive
-15-1such firearm, offensive weapon, or ammunition, the court
2shall order that the firearm, offensive weapon, or ammunition
3be transferred by a date certain to the county sheriff or
4a local law enforcement agency designated by the court for
5safekeeping until a qualified person is identified to receive
6the firearm, offensive weapon, or ammunition, until such order
7is no longer in effect, until such conviction is vacated, or
8until the person’s rights have been restored in accordance
9with section 724.27. If the firearm, offensive weapon, or
10ammunition is to be transferred to the sheriff’s office or a
11local law enforcement agency, the court shall assess the person
12the reasonable cost of storing the firearm, offensive weapon,
13or ammunition, payable to the county sheriff or the local law
14enforcement agency.
15 Sec. 42. Section 809.5, subsection 1, paragraph f,
16subparagraph (1), Code 2019, is amended to read as follows:
17(1) If the aggregate fair market value of the property is
18greater than five hundred dollars, forfeiture proceedings shall
19be initiated pursuant to the provisions of chapter 809A 809B.
20If the court does not order the property forfeited to the state
21in the forfeiture proceedings pursuant to chapter 809A 809B,
22the seizing agency shall become the owner of the property and
23may dispose of it in any reasonable manner.
24 Sec. 43. Section 809.12A, Code 2019, is amended to read as
25follows:
26809.12A Appeals.
27An appeal from a denial of an application for the return
28of seized property or from an order for the return of seized
29property shall be made within thirty days after the entry of
30a judgment order. The appellant, other than the state, shall
31post a bond of a reasonable amount as the court may fix and
32approve, conditioned to pay all costs of the proceedings if
33the appellant is unsuccessful on appeal. The appellant, other
34than the state, may be required to post a supersedeas bond
35or other security, as the court finds to be reasonable, in
-16-1order to stay the operation of a forfeiture order under section
2809A.16chapter 809B.
3 Sec. 44. Section 809.15, Code 2019, is amended to read as
4follows:
5809.15 Combining proceedings.
6In cases involving seized property and property subject to
7forfeiture pursuant to section 809A.4809B.3, the court may
8order that the proceedings be combined for purposes of this
9chapter.
10 Sec. 45. REPEAL. Chapter 809A, Code 2019, is repealed.
11 Sec. 46. APPLICABILITY. This Act applies to forfeiture
12proceedings that arise on or after or that are pending as of
13the effective date of this Act.
14EXPLANATION
15The inclusion of this explanation does not constitute agreement with
16the explanation’s substance by the members of the general assembly.
17This bill relates to criminal asset forfeiture.
18Asset forfeiture is a process by which contraband and
19proceeds or instrumentalities related to criminal activity
20may be seized by the state and sold. Under current law,
21asset forfeiture is governed by Code chapter 809A. The bill
22repeals Code chapter 809A and replaces it with new Code chapter
23809B. Currently under Code chapter 809A, a conviction for a
24criminal offense is not required for an asset to be subject
25to forfeiture for property valued at $5,000 and less, and
26forfeiture need not be expressly authorized as a penalty in
27the criminal statute. The bill provides that property is not
28subject to forfeiture until a person has been convicted of
29a felony for which forfeiture is expressly authorized as a
30penalty.
31Under current law, forfeiture is provided as a remedy for
32certain driving while intoxicated offenses and for violations
33of Code chapters 706B (money laundering), 715A (forgery and
34related fraudulent criminal acts), and 716A (electronic mail).
35The bill exempts homestead real property, motor vehicles of
-17-1less than $10,000 in market value, and United States currency
2totaling $200 or less from forfeiture.
3The bill provides that a defendant is not jointly and
4severally liable for forfeiture awards owed by other
5defendants.
6The bill provides for a proportionality hearing, where
7the defendant may petition the court that the forfeiture is
8unconstitutionally excessive.
9The bill requires law enforcement agencies to provide annual
10reports to the department of revenue regarding forfeitures
11completed by the law enforcement agencies. The bill requires
12the department of revenue to prepare an annual report
13aggregating the results and to post the aggregate report on the
14department’s internet site.
15The bill provides that new Code chapter 809B preempts laws by
16county, city, township, and other tribal and local governments
17in the state which regulate civil and criminal forfeiture.
18The bill makes conforming changes relating to the repeal of
19Code chapter 809A and new Code chapter 809B.
20The bill applies to forfeiture proceeding that arise on or
21after or that are pending as of the effective date of the bill.
-18-asf/jh
2offenses.
3BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
1 Section 1. NEW SECTION. 809B.1 Definitions.
2As used in this chapter, unless the context otherwise
3requires:
41. “Abandoned property” means personal property left by an
5owner who intentionally relinquishes all rights to the control
6of the personal property. “Abandoned property” does not include
7real property.
82. “Actual knowledge” means direct and clear awareness of
9information, a fact, or a condition.
103. “Constructive knowledge” means knowledge that is
11imputed to family or household members of the defendant if the
12defendant admitted guilt or was adjudicated guilty three or
13more times for the same or similar offense, as specified in
14statute, in the ten years prior to the alleged offense.
154. “Contraband” means goods that are unlawful to import,
16export, or possess, including controlled substances without a
17valid prescription.
185. “Conveyance” means a device used for transportation and
19includes a motor vehicle, trailer, snowmobile, airplane, and
20vessel, and any attached equipment. “Conveyance” does not
21include property that is stolen or taken in violation of the
22law.
236. “Instrumentality” means property otherwise lawful to
24possess that is used in the furtherance or commission of an
25offense of a law subject to forfeiture. “Instrumentality”
26includes land, buildings, containers, a conveyance, equipment,
27materials, products, a computer, computer software, a
28telecommunications device, a firearm, ammunition, a tool,
29money, securities, and negotiable instruments and other means
30of exchange.
317. “Law enforcement agency” means any nonfederal police
32force, or other local, county, or state agency that has the
33authority under state law to engage in seizure and forfeiture.
348. “Law subject to forfeiture” means a state law that
35carries a felony penalty and that explicitly includes
-1-1forfeiture as a punishment or sanction for the offense.
2 Sec. 2. NEW SECTION. 809B.2 Purpose.
3This chapter’s purpose is to deter criminal activity by
4reducing crime’s economic incentive, increase the pecuniary
5loss from criminal activity, protect against the wrongful
6forfeiture of property, and ensure that only criminal
7forfeiture is allowed in this state.
8 Sec. 3. NEW SECTION. 809B.3 Criminal forfeiture — property
9subject to forfeiture.
10When a person is convicted of violating a law subject to
11forfeiture, the court, consistent with this chapter, may order
12the person to forfeit any of the following:
131. Property the person derived from the commission of the
14offense.
152. Property directly traceable to property derived from the
16commission of the offense.
173. Instrumentalities the person used in the commission of
18the offense.
19 Sec. 4. NEW SECTION. 809B.4 Exemptions.
20Real property that is a homestead, a motor vehicle of less
21than ten thousand dollars in market value, and United States
22currency totaling two hundred dollars or less are exempt from
23forfeiture.
24 Sec. 5. NEW SECTION. 809B.5 Contraband.
25A property right does not exist in contraband. Contraband
26is subject to seizure and shall be disposed of according to
27state law. Contraband is not subject to forfeiture under this
28chapter.
29 Sec. 6. NEW SECTION. 809B.6 Conviction required — standard
30of proof.
311. Property may only be forfeited under this chapter if the
32offense is of a state law subject to forfeiture, the offense is
33established by proof of a criminal conviction, and the state
34establishes that the property is forfeitable under this chapter
35by clear and convincing evidence.
-2- 12. This chapter does not prevent property from being
2forfeited by plea agreement approved by the presiding criminal
3court.
43. a. The court may waive the requirement of proof of a
5criminal conviction if the prosecuting authority shows by a
6preponderance of the evidence any of the following:
7(1) The suspect died.
8(2) The suspect was deported by the United States
9government.
10(3) The suspect fled the jurisdiction after being arrested,
11charged with a crime subject to forfeiture of property, and
12released on bail.
13b. Property forfeitable under this subsection remains
14subject to claims by innocent owners, creditors, and other
15third parties pursuant to this chapter.
16 Sec. 7. NEW SECTION. 809B.7 Substitution of assets.
17Upon the state’s motion following conviction, the court
18may order the forfeiture of substitute property owned by the
19defendant up to the value of unreachable property that is
20beyond the court’s jurisdiction or cannot be located through
21due diligence only if the state proves by a preponderance of
22the evidence that the defendant intentionally transferred,
23sold, or deposited property with a third party to avoid the
24court’s jurisdiction.
25 Sec. 8. NEW SECTION. 809B.8 No additional remedies.
26The state shall not seek personal money judgments or other
27remedies not provided for in this chapter.
28 Sec. 9. NEW SECTION. 809B.9 No joint-and-several liability.
29A defendant is not jointly and severally liable for
30forfeiture awards owed by other defendants. When ownership is
31unclear, a court may order each defendant to forfeit property
32on a pro rata basis or by another means the court finds
33equitable.
34 Sec. 10. NEW SECTION. 809B.10 Seizure of personal property
35with process.
-3- 1At the request of the state at any time, a court may issue an
2ex parte preliminary order to attach, seize, or secure personal
3property for which forfeiture is sought and to provide for
4custody of such property. Application, issuance, execution,
5and return are subject to this Code statute or court rules.
6 Sec. 11. NEW SECTION. 809B.11 Seizure of personal property
7without process.
8Personal property subject to forfeiture may be seized at any
9time without a court order if any of the following apply:
101. The seizure of personal property is incident to a lawful
11arrest or a search lawfully conducted.
122. The personal property subject to seizure has been the
13subject of a prior judgment in favor of the state.
143. The state has probable cause to believe that the delay
15occasioned by the necessity to obtain process would result in
16the removal or destruction of the personal property and that
17the personal property is forfeitable under this chapter.
18 Sec. 12. NEW SECTION. 809B.12 Seizure of real property with
19process.
201. Seizure of real property requires a court order. A court
21may issue an order to seize or secure real property for which
22forfeiture is sought only after proper notice to the property
23owner and an opportunity for a contested hearing to determine
24the sufficiency of probable cause for the seizure.
252. This section does not prohibit the prosecuting authority
26from seeking a lis pendens or restraining order to hinder the
27sale or destruction of the real property.
283. Application, issuance, execution, and return of any
29order are subject to this Code or court rules.
30 Sec. 13. NEW SECTION. 809B.13 Receipt.
31When property is seized, the law enforcement officer shall
32give an itemized receipt to the person possessing the property,
33or in the absence of a person, leave a receipt in the place
34where the property was found, if reasonably possible.
35 Sec. 14. NEW SECTION. 809B.14 Title.
-4- 11. At the time of seizure or entry of a restraining order,
2the state acquires provisional title to the seized property.
3Provisional title authorizes the state to hold and protect the
4property.
52. Title to the property vests with the state when the trier
6of fact renders a final forfeiture verdict and relates back to
7the time when the state acquired provisional title. However,
8this title is subject to claims by third parties adjudicated
9under this chapter.
10 Sec. 15. NEW SECTION. 809B.15 Pretrial replevin hearing.
111. Following the seizure of property, a defendant or
12claimant has a right to a pretrial hearing to determine the
13validity of the seizure.
142. The defendant or claimant may claim at any time prior
15to sixty days before trial of the related criminal offense the
16right to possession of property by motion to the court to issue
17a writ of replevin.
183. The defendant or claimant shall file a motion
19establishing the validity of the alleged interest in the
20property.
214. The court shall hear the motion no more than thirty days
22after the motion is filed.
235. The state shall file an answer showing probable cause
24for the seizure, or cross motions at least ten days before the
25hearing.
266. Either party may, by agreement or for good cause,
27move the court to delay the hearing for one extension of no
28more than ten days. Any such motion may be supported by an
29affidavit or other submission.
307. The court shall grant the motion if the court finds that
31any of the following apply:
32a. The final judgment will likely be that the state must
33return the property to the claimant.
34b. The property is not reasonably required to be held for
35investigatory reasons.
-5- 1c. The property is the only reasonable means for a defendant
2to pay for legal representation in the forfeiture or criminal
3proceeding. At the court’s discretion under paragraph “b”, the
4court may order the return of funds or property sufficient to
5obtain legal counsel but less than the total amount seized, and
6require an accounting.
78. In lieu of ordering the issuance of the writ, the court
8may order the state to give security or written assurance for
9satisfaction of any judgment, including damages, that may be
10rendered in the action, or order other relief as may be just.
11 Sec. 16. NEW SECTION. 809B.16 Discovery.
12Discovery is subject to the rules of criminal procedure.
13 Sec. 17. NEW SECTION. 809B.17 Trial proceedings.
14The litigation related to the forfeiture of property shall
15be held in a single proceeding following the trial of the
16related alleged criminal offense. The litigation of whether
17property of less than ten thousand dollars in value shall be
18forfeited shall be held before only a judge.
19 Sec. 18. NEW SECTION. 809B.18 Proportionality hearing.
201. At any time following determination by the trier of fact,
21the defendant may petition the court to determine whether the
22forfeiture is unconstitutionally excessive under the state or
23federal constitution.
242. The defendant has the burden of establishing the
25forfeiture is grossly disproportional to the seriousness of
26the offense by a preponderance of the evidence at a hearing
27conducted by the court without a jury.
283. In determining whether the forfeiture of an
29instrumentality is unconstitutionally excessive, the court may
30consider all relevant factors, including but not limited to all
31of the following:
32a. The seriousness of the offense and the offense’s impact
33on the community, including the duration of the activity and
34the harm caused by the defendant.
35b. The extent to which the defendant participated in the
-6-1offense.
2c. The extent to which the property was used in committing
3the offense.
4d. The sentence imposed for committing the offense subject
5to forfeiture.
6e. Whether the offense was completed or attempted.
74. In determining the value of the instrumentality subject
8to forfeiture, the court may consider relevant factors,
9including but not limited to any of the following:
10a. The fair market value of the property.
11b. The value of the property to the defendant including
12hardship to the defendant if the forfeiture is realized.
13c. The hardship from the loss of a motor vehicle or other
14property to the defendant’s family members or others if the
15property is forfeited.
165. The court shall not consider the value of the
17instrumentality to the state in determining whether the
18forfeiture of an instrumentality is constitutionally excessive.
19 Sec. 19. NEW SECTION. 809B.19 Secured interest.
201. Property encumbered by a valid security interest or
21subject to a lease or rental agreement is not subject to
22forfeiture. A person claiming a security interest must
23establish by a preponderance of the evidence the validity
24of the perfected security interest, a lease, or a rental
25agreement.
262. The prosecuting authority shall summarily return
27property to the person with a valid security interest in the
28property, to the lessor, or to the person who is renting out
29the property.
303. If the person alleges a valid security interest or that
31the property is subject to a lease or rental agreement but
32the state seeks to proceed with the forfeiture against the
33property, the state shall prove by a preponderance of the
34evidence that the person had actual knowledge of the underlying
35offense giving rise to the forfeiture.
-7-1 Sec. 20. NEW SECTION. 809B.20 Innocent owner.
21. The property of an innocent owner shall not be forfeited.
3Whether a person is an innocent owner shall be determined in
4accordance with this section.
52. A person who has an ownership interest in property
6subject to forfeiture existing at the time the illegal conduct
7giving rise to forfeiture occurred and who claims to be an
8innocent owner has the burden of proving by a preponderance
9of the evidence that the person has a legal right, title, or
10interest in the property seized under this chapter.
113. If subsection 2 is satisfied and the state seeks to
12proceed with the forfeiture against the property, the state
13shall prove by a preponderance of the evidence that the person
14had actual or constructive knowledge of the underlying offense
15giving rise to the forfeiture.
164. A person who acquired an ownership interest in property
17subject to forfeiture after the commission of an offense giving
18rise to the forfeiture and who claims to be an innocent owner
19has the burden of proving by a preponderance of the evidence
20that the person has legal right, title, or interest in the
21property seized under this chapter.
225. If subsection 4 is satisfied and the state seeks to
23proceed with the forfeiture against the property, the state
24shall prove by a preponderance of the evidence that at the time
25the person acquired the property any of the following applied:
26a. The person had actual or constructive knowledge that the
27property was subject to forfeiture.
28b. The person was not a bona fide purchaser without notice
29of any defect in title and for valuable consideration.
306. If the state fails to meet the state’s burden in
31subsection 3 or 5, the court shall find that the person is an
32innocent owner and shall order the state to relinquish all
33claims of title to the property.
347. The suspect or convicted offender may invoke the right
35against self-incrimination or the marital privilege during
-8-1the forfeiture-related stage of the prosecution. The trier
2of fact at the hearing may draw an adverse inference from the
3invocation of the right or privilege.
4 Sec. 21. NEW SECTION. 809B.21 Appeal.
5A party to forfeiture litigation may appeal the district
6court’s decision regarding the seizure, forfeiture, and
7distribution of property under this chapter.
8 Sec. 22. NEW SECTION. 809B.22 Disposition of property and
9proceeds.
101. At any time when unclaimed property or contraband held
11for evidentiary purposes is no longer needed for that purpose,
12the court may order unclaimed property to be delivered to the
13treasurer of state within thirty days, or, in the case of
14contraband, be destroyed within thirty days.
152. If the forfeiture is granted, the court may order the
16property be delivered to the treasurer of state within thirty
17days.
183. Upon motion, the court may order that a portion of the
19currency seized or proceeds from public auction be used to pay
20reasonable nonpersonnel expenses of the seizure, storage, and
21maintenance of custody of any forfeited items.
224. All abandoned property shall be delivered to the
23treasurer of state within thirty days.
245. The treasurer of state shall dispose of all noncurrency
25forfeited property at public auction. The auction proceeds and
26forfeited currency shall first be used to pay all outstanding
27recorded liens on the forfeited property, then to comply with
28an order of the court to pay reasonable nonpersonnel expenses,
29with all remaining funds to be deposited in the general fund
30of the state.
31 Sec. 23. NEW SECTION. 809B.23 Prohibition on retaining
32property — sale restrictions.
33A law enforcement agency shall not retain forfeited property
34or sell forfeited property directly or indirectly to any
35employee of the agency, to a person related by consanguinity or
-9-1affinity to an employee of the agency within the third degree,
2or to another law enforcement agency.
3 Sec. 24. NEW SECTION. 809B.24 Reporting.
41. On an annual basis, each law enforcement agency shall
5report to the department of revenue the following information
6about seizures and forfeitures completed by the law enforcement
7agency under state forfeiture law and federal forfeiture law:
8a. The total number of seizures of currency.
9b. The total number of seizures and the number of items in
10each class of property seized including vehicles, houses, and
11other types of property.
12c. The market value of each class of property seized
13including currency, vehicles, houses, and other types of
14property.
15d. The total number of occurrences of each class of offense
16underlying the forfeitures including controlled substances,
17driving while intoxicated, and other offenses.
182. The department of revenue may require that information
19not specified in this section also be reported. The department
20of revenue shall develop standard forms, processes, and
21deadlines for electronic data entry for annual submission of
22forfeiture data by law enforcement agencies.
233. Each law enforcement agency shall file with the
24department of revenue the report required under subsection
251 for the law enforcement agency and the corresponding
26prosecutor’s office. The law enforcement agency shall
27file separate reports for forfeitures completed under state
28forfeiture law and federal forfeiture law. A report shall be
29filed by a law enforcement agency even if the law enforcement
30agency did not engage in seizures or forfeitures during the
31reporting period. The department of revenue shall compile the
32submissions and issue an aggregate report of all forfeitures
33in the state.
344. By April 1 of each year, the department of revenue shall
35make available on the department’s internet site the reports
-10-1submitted by law enforcement agencies and the aggregate report
2prepared by the department under subsection 3.
3 Sec. 25. NEW SECTION. 809B.25 Return of property, damages,
4and costs.
51. The law enforcement agency that holds the property shall
6return property to the owner within a reasonable period of time
7not to exceed five days after any of the following:
8a. The court finds that the owner has a bona fide security
9interest.
10b. The court finds that the owner is an innocent owner.
11c. The owner’s acquittal of or the dismissal of the criminal
12charge that is the basis of the forfeiture proceedings.
13d. The disposal of the criminal charge that is the basis of
14the forfeiture proceedings by nolle prosequi.
152. The law enforcement agency that holds the property is
16responsible for any damages, storage fees, and related costs
17applicable to property returned under subsection 1.
18 Sec. 26. NEW SECTION. 809B.26 Transfer of forfeitable
19property to federal government.
20A law enforcement agency, joint taskforce of any kind,
21or prosecuting authority shall not directly or indirectly
22transfer or refer seized property to any federal agency unless
23the seized property includes seized United States currency in
24excess of fifty thousand dollars.
25 Sec. 27. NEW SECTION. 809B.27 Preemption.
26This chapter preempts laws by county, city, township, and
27other tribal or local governments in the state which regulate
28civil and criminal forfeiture.
29 Sec. 28. Section 80.39, subsection 1, Code 2019, is amended
30to read as follows:
311. Personal property, except for motor vehicles subject to
32sale pursuant to section 321.89, and seizable property subject
33to disposition pursuant to chapter 809 or 809A, which personal
34property is found or seized by, turned in to, or otherwise
35lawfully comes into the possession of the department or a local
-11-1law enforcement agency and which the department or agency does
2not own, shall be disposed of pursuant to this section. If by
3examining the property the owner or lawful custodian of the
4property is known or can be readily ascertained, the department
5or agency shall notify the owner or custodian by certified mail
6directed to the owner’s or custodian’s last known address, as
7to the location of the property. If the identity or address of
8the owner cannot be determined, notice by one publication in a
9newspaper of general circulation in the area where the property
10was found is sufficient notice. A published notice may contain
11multiple items.
12 Sec. 29. Section 123.9, subsection 7, Code 2019, is amended
13by striking the subsection.
14 Sec. 30. Section 321.232, subsection 3, Code 2019, is
15amended to read as follows:
163. A speed detection jamming device sold, operated, or
17possessed in violation of subsection 1 may be seized by a peace
18officer and is subject to forfeiture as provided by chapter 809
19or 809A.
20 Sec. 31. Section 321J.4B, subsections 6, 9, and 10, Code
212019, are amended to read as follows:
226. Upon conviction of the defendant for a second
23or subsequent violation of subsection 2, paragraph “a”,
24subparagraph (2), the court shall order, if the convicted
25person is the owner of the motor vehicle used in the commission
26of the offense, that that motor vehicle be seized and forfeited
27to the state pursuant to chapters 809 and 809A 809B.
289. Operating a motor vehicle on a street or highway in this
29state in violation of an order of impoundment or immobilization
30is a serious misdemeanor. A motor vehicle which is subject to
31an order of impoundment or immobilization that is operated on a
32street or highway in this state in violation of the order shall
33be seized and forfeited to the state under chapters 809 and
34809A 809B.
3510. Once the period of impoundment or immobilization has
-12-1expired, the owner of the motor vehicle shall have thirty
2days to claim the motor vehicle and pay all fees and charges
3imposed under this section. If the owner or the owner’s
4designee has not claimed the vehicle and paid all fees and
5charges imposed under this section within seven days from the
6date of expiration of the period, the clerk shall send written
7notification to the motor vehicle owner, at the owner’s last
8known address, notifying the owner of the date of expiration of
9the period of impoundment or immobilization and of the period
10in which the motor vehicle must be claimed. If the motor
11vehicle owner fails to claim the motor vehicle and pay all fees
12and charges imposed within the thirty-day period, the motor
13vehicle shall be forfeited to the state under chapters 809 and
14809A 809B.
15 Sec. 32. Section 321J.4B, subsection 12, paragraph a,
16subparagraph (2), Code 2019, is amended to read as follows:
17(2) The holder of a security interest in a vehicle which is
18impounded or immobilized pursuant to this section or forfeited
19in the manner provided in chapters 809 and 809A809B shall be
20notified of the impoundment, immobilization, or forfeiture
21within seventy-two hours of the seizure of the vehicle and
22shall have the right to claim the motor vehicle without
23payment of any fees or surcharges unless the value of the
24vehicle exceeds the value of the security interest held by the
25creditor.
26 Sec. 33. Section 321J.10, subsection 7, Code 2019, is
27amended to read as follows:
287. Specimens obtained pursuant to warrants issued under
29this section are not subject to disposition under section 808.9
30or chapter 809 or 809A 809B.
31 Sec. 34. Section 455B.103, subsection 4, paragraph d,
32subparagraph (2), Code 2019, is amended to read as follows:
33(2) In a reasonable manner, and any property seized shall be
34treated in accordance with the provisions of chapters 808, 809,
35and 809A 809B.
-13-1 Sec. 35. Section 462A.14D, subsection 7, Code 2019, is
2amended to read as follows:
37. Specimens obtained pursuant to warrants issued under
4this section are not subject to disposition under section 808.9
5or chapter 809 or 809A 809B.
6 Sec. 36. Section 706A.3, subsection 3, paragraphs d and e,
7Code 2019, are amended to read as follows:
8d. Ordering the payment of all reasonable costs and expenses
9of the investigation and prosecution of any violation, civil
10or criminal, including reasonable attorney fees in the trial
11and appellate courts. Such payments received by the state,
12by judgment, settlement, or otherwise, shall be considered
13forfeited property and disposed of pursuant to section
14809A.17chapter 809B.
15e. Ordering the forfeiture of any property subject to
16forfeiture under chapter 809A 809B, pursuant to the provisions
17and procedures of that chapter.
18 Sec. 37. Section 706A.3, subsection 4, Code 2019, is amended
19to read as follows:
204. Relief under subsection 3, paragraphs “e”, “f”, and
21“g”, shall not be granted in civil proceedings instituted
22by an aggrieved person unless the prosecuting attorney has
23instituted the proceedings or intervened. In any action under
24this section brought by the state or in which the state has
25intervened, the state may employ any of the powers of seizure
26and restraint of property as are provided for forfeiture
27actions under chapter 809A 809B, or as are provided for the
28collection of taxes payable and past due, and whose collection
29has been determined to be in jeopardy.
30 Sec. 38. Section 706B.2, subsection 4, Code 2019, is amended
31to read as follows:
324. A person who is found guilty of a violation under this
33section also may be charged with violations of chapter 706A,
34and property involved in a violation under this chapter is
35subject to forfeiture under chapter 809A 809B.
-14-1 Sec. 39. Section 715A.8, subsection 6, Code 2019, is amended
2to read as follows:
36. Any real or personal property obtained by a person as
4a result of a violation of this section, including but not
5limited to any money, interest, security, claim, contractual
6right, or financial instrument that is in the possession of the
7person, shall be subject to seizure and forfeiture pursuant to
8chapter 809A 809B. A victim injured by a violation of this
9section, or a financial institution that has indemnified a
10victim injured by a violation of this section, may file a claim
11as an interest holder pursuant to section 809A.11 809B.15 for
12payment of damages suffered by the victim including costs of
13recovery and reasonable attorney fees.
14 Sec. 40. Section 716A.7, Code 2019, is amended to read as
15follows:
16716A.7 Forfeitures for violations of chapter.
17All property, including all income or proceeds earned but
18not yet received from a third party as a result of a violation
19of this chapter, used in connection with a violation of this
20chapter, known by the owner thereof to have been used in
21violation of this chapter, shall be subject to seizure and
22forfeiture pursuant to chapter 809A 809B.
23 Sec. 41. Section 724.26, subsection 4, Code 2019, is amended
24to read as follows:
254. Except as provided in section 809A.17, subsection 5,
26paragraph “b” chapter 809B, a court that issues an order or
27that enters a judgment of conviction described in subsection
282 and that finds the subject of the order or conviction to be
29in possession of any firearm, offensive weapon, or ammunition
30shall order that such firearm, offensive weapon, or ammunition
31be sold or transferred by a date certain to the custody of a
32qualified person in this state, as determined by the court.
33The qualified person must be able to lawfully possess such
34firearm, offensive weapon, or ammunition in this state. If
35the court is unable to identify a qualified person to receive
-15-1such firearm, offensive weapon, or ammunition, the court
2shall order that the firearm, offensive weapon, or ammunition
3be transferred by a date certain to the county sheriff or
4a local law enforcement agency designated by the court for
5safekeeping until a qualified person is identified to receive
6the firearm, offensive weapon, or ammunition, until such order
7is no longer in effect, until such conviction is vacated, or
8until the person’s rights have been restored in accordance
9with section 724.27. If the firearm, offensive weapon, or
10ammunition is to be transferred to the sheriff’s office or a
11local law enforcement agency, the court shall assess the person
12the reasonable cost of storing the firearm, offensive weapon,
13or ammunition, payable to the county sheriff or the local law
14enforcement agency.
15 Sec. 42. Section 809.5, subsection 1, paragraph f,
16subparagraph (1), Code 2019, is amended to read as follows:
17(1) If the aggregate fair market value of the property is
18greater than five hundred dollars, forfeiture proceedings shall
19be initiated pursuant to the provisions of chapter 809A 809B.
20If the court does not order the property forfeited to the state
21in the forfeiture proceedings pursuant to chapter 809A 809B,
22the seizing agency shall become the owner of the property and
23may dispose of it in any reasonable manner.
24 Sec. 43. Section 809.12A, Code 2019, is amended to read as
25follows:
26809.12A Appeals.
27An appeal from a denial of an application for the return
28of seized property or from an order for the return of seized
29property shall be made within thirty days after the entry of
30a judgment order. The appellant, other than the state, shall
31post a bond of a reasonable amount as the court may fix and
32approve, conditioned to pay all costs of the proceedings if
33the appellant is unsuccessful on appeal. The appellant, other
34than the state, may be required to post a supersedeas bond
35or other security, as the court finds to be reasonable, in
-16-1order to stay the operation of a forfeiture order under section
2809A.16chapter 809B.
3 Sec. 44. Section 809.15, Code 2019, is amended to read as
4follows:
5809.15 Combining proceedings.
6In cases involving seized property and property subject to
7forfeiture pursuant to section 809A.4809B.3, the court may
8order that the proceedings be combined for purposes of this
9chapter.
10 Sec. 45. REPEAL. Chapter 809A, Code 2019, is repealed.
11 Sec. 46. APPLICABILITY. This Act applies to forfeiture
12proceedings that arise on or after or that are pending as of
13the effective date of this Act.
14EXPLANATION
15The inclusion of this explanation does not constitute agreement with
16the explanation’s substance by the members of the general assembly.
17This bill relates to criminal asset forfeiture.
18Asset forfeiture is a process by which contraband and
19proceeds or instrumentalities related to criminal activity
20may be seized by the state and sold. Under current law,
21asset forfeiture is governed by Code chapter 809A. The bill
22repeals Code chapter 809A and replaces it with new Code chapter
23809B. Currently under Code chapter 809A, a conviction for a
24criminal offense is not required for an asset to be subject
25to forfeiture for property valued at $5,000 and less, and
26forfeiture need not be expressly authorized as a penalty in
27the criminal statute. The bill provides that property is not
28subject to forfeiture until a person has been convicted of
29a felony for which forfeiture is expressly authorized as a
30penalty.
31Under current law, forfeiture is provided as a remedy for
32certain driving while intoxicated offenses and for violations
33of Code chapters 706B (money laundering), 715A (forgery and
34related fraudulent criminal acts), and 716A (electronic mail).
35The bill exempts homestead real property, motor vehicles of
-17-1less than $10,000 in market value, and United States currency
2totaling $200 or less from forfeiture.
3The bill provides that a defendant is not jointly and
4severally liable for forfeiture awards owed by other
5defendants.
6The bill provides for a proportionality hearing, where
7the defendant may petition the court that the forfeiture is
8unconstitutionally excessive.
9The bill requires law enforcement agencies to provide annual
10reports to the department of revenue regarding forfeitures
11completed by the law enforcement agencies. The bill requires
12the department of revenue to prepare an annual report
13aggregating the results and to post the aggregate report on the
14department’s internet site.
15The bill provides that new Code chapter 809B preempts laws by
16county, city, township, and other tribal and local governments
17in the state which regulate civil and criminal forfeiture.
18The bill makes conforming changes relating to the repeal of
19Code chapter 809A and new Code chapter 809B.
20The bill applies to forfeiture proceeding that arise on or
21after or that are pending as of the effective date of the bill.
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