Bill Summary – FastDemocracy

Enrolled Copy                                                                           S.B. 98
                            ASSET FORFEITURE AMENDMENTS
                                      2021 GENERAL SESSION
                                          STATE OF UTAH
                                Chief Sponsor: Todd D. Weiler
                              House Sponsor: Karianne Lisonbee
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 LONG TITLE
 General Description:
        This bill amends provisions related to asset forfeiture.
 Highlighted Provisions:
        This bill:
        < clarifies provisions related to the seizure and forfeiture of property and contraband;
        < addresses jurisdiction of a district court over seized property;
        < provides, with certain exceptions, that seized property may not be transferred or
 shared with a federal agency or an agency of another state;
        < requires that a disclaimer of seized property by an individual be knowing and
 voluntary;
        < provides that law enforcement agencies have 30 days to process seized cash or
 negotiable instruments;
        < requires the cash or negotiable instrument be deposited into an interest-bearing
 account;
        < amends provisions related to the retention of property for court proceedings;
        < reduces the length of time for an agency to present a written request for forfeiture to
 a prosecutor;
        < allows an agency or prosecuting attorney to release property to an innocent owner;
        < prohibits the forfeiture of property seized upon the sole offense of possession of a
 controlled substance;
        < permits grants to any agency involved in forfeiture activities regardless of whether
 the agency contributed to the State Asset Forfeiture Fund;
      S.B. 98                                                                       Enrolled Copy
        < requires certification of asset forfeiture specialists by Peace Officers Standards and
 Training or the Utah Prosecution Council; and
        < makes technical and conforming changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        24-1-102, as last amended by Laws of Utah 2017, Chapters 285 and 362
        24-1-103, as enacted by Laws of Utah 2013, Chapter 394
        24-2-102, as enacted by Laws of Utah 2013, Chapter 394
        24-2-103, as last amended by Laws of Utah 2017, Chapter 362
        24-3-101, as enacted by Laws of Utah 2013, Chapter 394
        24-3-103, as last amended by Laws of Utah 2017, Chapters 285 and 334
        24-3-104, as enacted by Laws of Utah 2013, Chapter 394
        24-4-101, as enacted by Laws of Utah 2013, Chapter 394
        24-4-102, as last amended by Laws of Utah 2017, Chapter 362
        24-4-103, as enacted by Laws of Utah 2013, Chapter 394
        24-4-104, as last amended by Laws of Utah 2017, Chapter 362
        24-4-105, as last amended by Laws of Utah 2014, Chapter 112
        24-4-109, as enacted by Laws of Utah 2013, Chapter 394
        24-4-110, as last amended by Laws of Utah 2017, Chapter 362
        24-4-111, as enacted by Laws of Utah 2013, Chapter 394
        24-4-112, as enacted by Laws of Utah 2013, Chapter 394
        24-4-113, as enacted by Laws of Utah 2013, Chapter 394
        24-4-115, as last amended by Laws of Utah 2017, Chapter 303
        24-4-116, as enacted by Laws of Utah 2013, Chapter 394
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       Enrolled Copy                                                                                S.B. 98
           24-4-117, as last amended by Laws of Utah 2015, Chapter 134
           24-4-118, as last amended by Laws of Utah 2017, Chapter 303
 ENACTS:
           24-2-102.5, Utah Code Annotated 1953
           24-2-104, Utah Code Annotated 1953
           24-2-107, Utah Code Annotated 1953
           24-2-108, Utah Code Annotated 1953
           24-3-101.5, Utah Code Annotated 1953
           24-4-103.3, Utah Code Annotated 1953
           24-4-103.5, Utah Code Annotated 1953
           24-4-119, Utah Code Annotated 1953
           53-13-110.5, Utah Code Annotated 1953
 RENUMBERS AND AMENDS:
           24-2-105, (Renumbered from 24-4-114, as last amended by Laws of Utah 2015,
 Chapter 134)
           24-2-106, (Renumbered from 24-3-102, as enacted by Laws of Utah 2013, Chapter 394)
 REPEALS:
           24-4-107, as last amended by Laws of Utah 2017, Chapter 362
           24-4-108, as enacted by Laws of Utah 2013, Chapter 394
77
 Be it enacted by the Legislature of the state of Utah:
           Section 1. Section 24-1-102 is amended to read:
           24-1-102. Definitions.
           As used in this title:
           (1) "Account" means the Criminal Forfeiture Restricted Account created in Section
 24-4-116.
           (2) (a) "Acquitted" means a finding by a jury or a judge at trial that a claimant is not
 guilty.
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        S.B. 98                                                                         Enrolled Copy
         (b) "Acquitted" does not include:
         (i) a verdict of guilty on a lesser or reduced charge;
         (ii) a plea of guilty to a lesser or reduced charge; or
         (iii) dismissal of a charge as a result of a negotiated plea agreement.
         (3) (a) "Agency" means [any] an agency of [municipal, county, or state government,
 including law enforcement agencies, law enforcement personnel, and multijurisdictional task
 forces] this state or a political subdivision of this state.
         (b) "Agency" includes a law enforcement agency or a multijurisdictional task force.
         (4) "Claimant" means [any]:
         (a) an owner of property as defined in this section;
         (b) an interest holder as defined in this section; or
         (c) [person] an individual or entity who asserts a claim to any property seized for
 forfeiture under this title.
         (5) "Commission" means the [Utah] State Commission on Criminal and Juvenile
 Justice created in Section 63M-7-201.
         (6) "Complaint" means a civil [in rem] or criminal complaint seeking the forfeiture of
 any real or personal property under this title.
         (7) (a) "Computer" means an electronic, magnetic, optical, electrochemical, or other
 high-speed data processing device that performs logical, arithmetic, and storage functions[,
 and].
         (b) "Computer" includes any device that is used for the storage of digital or electronic
 files, flash memory, software, or other electronic information.
         [(b)] (c) "Computer" does not mean a computer server of an Internet or [an] electronic
 service provider, or the service provider's employee, if used [for the purpose of compliance
 with obligations pursuant to] to comply with the requirements under 18 U.S.C. Sec. 2258A.
         (8) "Constructive seizure" means a seizure of property where the property is left in the
 control of the owner and [the seizing] an agency posts the property with a notice of intent to
 seek forfeiture.
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        Enrolled Copy                                                                              S.B. 98
         (9) (a) "Contraband" means any property, item, or substance that is unlawful to
 produce or to possess under state or federal law.
         [(b) All controlled substances that are]
         (b) "Contraband" includes:
         (i) a controlled substance that is possessed, transferred, distributed, or offered for
 distribution in violation of Title 58, Chapter 37, Utah Controlled Substances Act[, are
 contraband.]; or
         [(c) A computer is contraband if it:]
         (ii) a computer that:
         [(i)] (A) contains or houses child pornography, or is used to create, download, transfer,
 upload to a storage account, or store any electronic or digital files containing child
 pornography; or
         [(ii)] (B) contains the personal identifying information of another [person] individual,
 as defined in Subsection 76-6-1102(1), whether that [person] individual is alive or deceased,
 and the personal identifying information has been used to create false or fraudulent
 identification documents or financial transaction cards in violation of Title 76, Chapter 6, Part
 5, Fraud.
         (10) "Forfeit" means to divest a claimant of an ownership interest in property seized
 under this title.
         [(10)] (11) "Innocent owner" means a claimant who:
         (a) held an ownership interest in property at the time [the conduct subjecting the
 property to forfeiture occurred] of the commission of an offense subjecting the property to
 forfeiture under this title, and:
         (i) did not have actual knowledge of the [conduct] offense subjecting the property to
 forfeiture; or
         (ii) upon learning of the [conduct subjecting the property to forfeiture] commission of
 the offense, took reasonable steps to prohibit the [illegal] use of the property in the commission
 of the offense; or
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        S.B. 98                                                                          Enrolled Copy
         (b) acquired an ownership interest in the property and had no knowledge that the
 [illegal conduct subjecting the property to forfeiture] commission of the offense subjecting the
 property to forfeiture under this title had occurred or that the property had been seized for
 forfeiture, and:
         (i) acquired the property in a bona fide transaction for value;
         (ii) was [a person] an individual, including a minor child, who acquired an interest in
 the property through probate or inheritance; or
         (iii) was a spouse who acquired an interest in property through dissolution of marriage
 or by operation of law.
         [(11)] (12) (a) "Interest holder" means a secured party as defined in Section
 70A-9a-102, a party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a
 security interest or encumbrance pertaining to an interest in property, whose interest would be
 perfected against a good faith purchaser for value.
         (b) "Interest holder" does not mean a person:
         (i) who holds property for the benefit of or as an agent or nominee for another
 person[,]; or
         (ii) who is not in substantial compliance with any statute requiring an interest in
 property to be recorded or reflected in public records in order to perfect the interest against a
 good faith purchaser for value.
         [(12)] (13) "Known address" means any address provided by a claimant to the peace
 officer or agency at the time the property [was] is seized, or the claimant's most recent address
 on record with a governmental entity if no address was provided at the time of the seizure.
         [(13)] (14) "Legal costs" means the costs and expenses incurred by a party in a
 forfeiture action.
         [(14)] (15) "Legislative body" means:
         (a) (i) the Legislature, county commission, county council, city commission, city
 council, or town council that has fiscal oversight and budgetary approval authority over an
 agency; or
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        Enrolled Copy                                                                                S.B. 98
         (ii) the agency's governing political subdivision; or
         (b) the lead governmental entity of a multijurisdictional task force, as designated in a
 memorandum of understanding executed by the agencies participating in the task force.
         [(15)] (16) "Multijurisdictional task force" means a law enforcement task force or other
 agency comprised of [persons] individuals who are employed by or acting under the authority
 of different governmental entities, including federal, state, county, or municipal governments,
 or any combination of [these] federal, state, county, or municipal agencies.
         [(16)] (17) "Owner" means [any person] an individual or entity, other than an interest
 holder, that possesses a bona fide legal or equitable interest in real or personal property.
         (18) "Peace officer" means an employee:
         (a) of an agency;
         (b) whose duties consist primarily of the prevention and detection of violations of laws
 of this state or a political subdivision of this state; and
         (c) who is authorized by the agency to seize property under this title.
         [(17)] (19) (a) "Proceeds" means:
         (i) property of any kind that is obtained directly or indirectly as a result of the
 commission of an offense [that gives rise to forfeiture]; or
         (ii) any property acquired directly or indirectly from, produced through, realized
 through, or caused by an act or omission regarding property under Subsection [(17)] (19)(a)(i).
         (b) "Proceeds" includes any property of any kind without reduction for expenses
 incurred in the acquisition, maintenance, or production of that property, or any other purpose
 regarding property under Subsection [(17)] (19)(a)(i).
         (c) "Proceeds" is not limited to the net gain or profit realized from the offense that
 [gives rise to forfeiture] subjects the property to forfeiture.
         [(18)] (20) "Program" means the State Asset Forfeiture Grant Program [established]
 created in Section 24-4-117.
         [(19)] (21) (a) "Property" means all property, whether real or personal, tangible or
 intangible[, but].
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        S.B. 98                                                                             Enrolled Copy
         (b) "Property" does not include contraband.
         [(20)] (22) "Prosecuting attorney" means:
         (a) the attorney general and [any] an assistant attorney general;
         (b) [any] a district attorney or deputy district attorney;
         (c) [any] a county attorney or assistant county attorney; and
         (d) [any other] an attorney authorized to commence an action on behalf of the state
 under this title.
         [(21)] (23) "Public interest use" means a:
         (a) use by a government agency as determined by the legislative body of the agency's
 jurisdiction; or
         (b) donation of the property to a nonprofit charity registered with the state.
         [(22)] (24) "Real property" means land [and includes], including any building, fixture,
 improvement, appurtenance, structure, or other development that is affixed permanently to
 land.
         Section 2. Section 24-1-103 is amended to read:
         24-1-103. Venue.
         [(1) A state district court has jurisdiction over any action filed in accordance with this
 title regarding:]
         [(a) all interests in property if the property is within this state at the time the action is
 filed; and]
         [(b) a claimant's interests in the property, if the claimant is subject to the personal
 jurisdiction of the district court.]
         [(2) (a)] (1) In addition to the venue provided for under Title 78B, Chapter 3, Part 3,
 Place of Trial -- Venue, or any other provisions of law, a proceeding [for forfeiture] under this
 title may be maintained in the judicial district in which:
         (a) the property is seized;
         [(i)] (b) any part of the property is found; or
         [(ii)] (c) a civil or criminal action could be maintained against a claimant for the
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        Enrolled Copy                                                                                 S.B. 98
 [conduct alleged to constitute grounds for forfeiture] offense subjecting the property to
 forfeiture under this title.
         [(b)] (2) A claimant may obtain a change of venue under Section 78B-3-309.
         Section 3. Section 24-2-102 is amended to read:
         24-2-102. Grounds for seizing property.
         [(1) Property may be seized by a peace officer or any other person authorized by law
 upon process issued by a court having jurisdiction over the property in accordance with the
 Utah Rules of Criminal Procedure relating to search warrants or administrative warrants.]
         (1) A peace officer may seize property and contraband upon a search warrant or
 administrative warrant that is issued in accordance with the Utah Rules of Criminal Procedure.
         (2) [Property may be seized] A peace officer may seize property and contraband under
 this chapter when:
         (a) the seizure is incident to an arrest;
         (b) the property seized is the subject of a prior judgment in favor of the state in a
 criminal injunction or forfeiture proceeding under this title; or
         (c) the peace officer [or other person authorized by law] has probable cause to believe
 that the property:
         (i) is directly or indirectly dangerous to health or safety;
         (ii) is evidence of [a crime] an offense;
         (iii) has been used or was intended to be used to commit [a crime] an offense; or
         (iv) is proceeds of [a crime] an offense.
         Section 4. Section 24-2-102.5 is enacted to read:
         24-2-102.5. Seizure of contraband.
         If a peace