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STATE OF WYOMING
HOUSE BILL NO. HB0180
Freedom from government seizure act.
Sponsored by: Representative(s) Provenza, Andrew, Brown,
Olsen, Singh and Western and Senator(s)
Barlow, Case, Driskill and Rothfuss
A BILL
for
1 AN ACT relating to controlled substances; amending the
2 procedures and requirements for the forfeiture and seizure
3 of property under the Wyoming Controlled Substances Act;
4 providing definitions; requiring reporting; making
5 conforming amendments; repealing conflicting provisions;
6 specifying applicability; and providing for an effective
7 date.
8
9 Be It Enacted by the Legislature of the State of Wyoming:
10
11 Section 1. W.S. 35-7-1049.1 is created to read:
12
13 35-7-1049.1. Forfeitures and seizures generally;
14 property subject to forfeiture.
15
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1 (a) As permitted and limited by subsections (c)
2 through (r) of this section, the following types of
3 property are subject to forfeiture:
4
5 (i) All controlled substances that have been
6 manufactured, distributed, dispensed or acquired in
7 violation of this act;
8
9 (ii) All raw materials, products and equipment
10 of any kind that are used, or intended for use, in
11 manufacturing, compounding, processing, delivering,
12 importing or exporting any controlled substance in
13 violation of this act;
14
15 (iii) All property that is used as a container
16 for property described in paragraph (i) or (ii) of this
17 subsection;
18
19 (iv) All books, records, research products and
20 materials, including formulas, microfilm, tapes and data,
21 that are used, or intended for use, in violation of this
22 act;
23
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1 (v) All conveyances including aircraft, vehicles
2 or vessels knowingly used, or intended for use, to
3 transport or facilitate the transportation of property
4 described in paragraph (i) or (ii) of this subsection,
5 provided that:
6
7 (A) No conveyance is subject to forfeiture
8 under this paragraph unless the conveyance was used to
9 transport or receive property in violation of this act;
10
11 (B) No conveyance used by any person as a
12 common carrier in the transaction of business as a common
13 carrier is subject to forfeiture under this section unless
14 it appears that the owner or corporate officer is a
15 consenting party or privy to a violation of this act;
16
17 (C) No conveyance is subject to forfeiture
18 under this paragraph by reason of any act committed without
19 the knowledge or consent of the owner;
20
21 (D) A conveyance is not subject to
22 forfeiture for a violation of W.S. 35-7-1031(c);
23
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1 (E) A forfeiture of a conveyance encumbered
2 by a bona fide security interest is subject to the security
3 interest if the secured party neither had knowledge of nor
4 consented to the act of violation.
5
6 (vi) All drug paraphernalia as defined by W.S.
7 35-7-1002(a)(xxvii);
8
9 (vii) All buildings knowingly used or intended
10 for use to store, manufacture or distribute property
11 described under paragraph (i) or (ii) of this subsection if
12 the owner has knowledge of or gives consent to the act of
13 the violation. A forfeiture of a building encumbered by a
14 bona fide security interest is subject to the security
15 interest of the secured party if that party did not have
16 knowledge of or give consent to the act;
17
18 (viii) Any property or other thing of pecuniary
19 value furnished in exchange for a controlled substance in
20 violation of this act, including any proceeds, assets or
21 other property of any kind traceable to the exchange and
22 any money, securities or other negotiable instruments used
23 to facilitate a violation of this act. Property used or
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1 furnished without the consent or knowledge of the owner is
2 not forfeitable under this section to the extent of the
3 owner's interest.
4
5 (b) Property subject to forfeiture under subsection
6 (a) of this section may be seized by any law enforcement
7 officer of the state upon process issued by any district
8 court or district court commissioner having jurisdiction
9 over the property. Seizure without process may be made if
10 the board or commissioner has probable cause to believe
11 that the property was used or is intended to be used in
12 violation of this act.
13
14 (c) Any person convicted of a violation of this act
15 punishable by imprisonment for more than one (1) year shall
16 be subject to forfeiture of property listed under
17 subsection (a) of this section. The procedure for
18 forfeiture shall be as provided in subsections (d) through
19 (m) of this section.
20
21 (d) Except for summary forfeiture under paragraph
22 (h)(vi) and subsections (j) through (m) of this section,
23 the court shall order forfeiture only as part of the
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1 defendant's sentence. If the state seeks to forfeit
2 property:
3
4 (i) The indictment or information shall contain
5 notice to the defendant that the state seeks forfeiture and
6 shall specifically identify the property sought to be
7 forfeited;
8
9 (ii) All property shall be returned to the
10 person from whom it was seized unless there is a finding or
11 verdict of guilt, an admission of guilt or a plea of nolo
12 contendere to a felony under this act;
13
14 (iii) After a verdict or finding of guilty, or
15 after a plea of guilty or nolo contendere is accepted, the
16 court shall conduct a forfeiture hearing to determine if
17 the property is subject to forfeiture under this section.
18 If the court finds by a preponderance of evidence that
19 property is subject to forfeiture, the court shall enter a
20 preliminary order directing the forfeiture;
21
22 (iv) The court may include in the preliminary
23 order of forfeiture additional conditions reasonably
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1 necessary to preserve the property's value pending any
2 appeal.
3
4 (e) If the court makes a preliminary order of
5 forfeiture of property, the legal interests of persons
6 other than a party to the criminal action shall be
7 determined, subject to the following:
8
9 (i) Following an entry of a preliminary order of
10 forfeiture, the state shall publish notice of the order in
11 a newspaper of general circulation in the state once a week
12 for two (2) weeks and shall provide written notice by first
13 class mail to the last known address of any person who,
14 after reasonable inquiry, appears to be a potential owner
15 or lien holder in the property. The notice shall describe
16 the forfeited property and shall advise that parties with a
17 potential interest in the property may contest the
18 forfeiture by filing a petition with the court not later
19 than sixty (60) days after the date of the second public
20 notice or, if notice is mailed under this paragraph, not
21 later than thirty (30) days after the written notice is
22 mailed;
23
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1 (ii) If a third party files a timely petition
2 asserting an interest in the property, the court shall
3 conduct a hearing. The court may permit the parties to
4 conduct discovery in accordance with the Wyoming Rules of
5 Civil Procedure if the court determines that discovery is
6 necessary or desirable to resolve factual issues. After the
7 hearing, the court shall enter a final order of forfeiture
8 by amending the preliminary order as necessary to account
9 for any third party rights. If no third party files a
10 timely petition, the preliminary order shall become the
11 final order upon expiration of the time for filing a
12 petition;
13
14 (iii) If a defendant appeals from a conviction
15 or a preliminary order of forfeiture, the court may stay
16 the preliminary order of forfeiture on terms appropriate to
17 ensure that the property remains available pending
18 appellate review. A stay shall not delay the ancillary
19 hearing or the determination of a third party's rights or
20 interests. If the court rules in favor of any third party
21 while an appeal is pending, the court may amend the order
22 of forfeiture but shall not transfer any property interest
23 to a third party until the decision on appeal becomes
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1 final, unless the defendant consents in writing or on the
2 record.
3
4 (f) An interest in property belonging to a third
5 party shall not be forfeited to the extent that the third
6 party establishes, by a preponderance of evidence, a
7 perfected lien in the property, a perfected priority
8 interest in the property or that he is an innocent owner.
9 For purposes of this subsection:
10
11 (i) With respect to a property interest in
12 existence at the time the violation of this act took place,
13 "innocent owner" means a person who held an interest in the
14 property who did not reasonably know of the conduct of the
15 defendant related to the violation;
16
17 (ii) With respect to a property interest
18 acquired after the violation of this act has taken place,
19 the term "innocent owner" means a person who, at the time
20 that person acquired the interest in the property:
21
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1 (A) Was a bona fide purchaser or seller for
2 value of the property or a holder of a bona fide security
3 interest; and
4
5 (B) Did not know and was reasonably without
6 cause to believe the property was subject to forfeiture.
7
8 (g) Property taken or detained under this section
9 shall not be subject to replevin, but is deemed to be in
10 the custody of the commissioner subject only to the orders
11 and decrees of the court having jurisdiction over the
12 proceedings. When property is seized under this act, the
13 commissioner shall place the property under seal or
14 otherwise assure the property is maintained under
15 conditions reasonably necessary to preserve the property's
16 value or may sell the property and hold the proceeds
17 thereof if the property is perishable or threatens to
18 decline speedily in value until the forfeiture proceedings
19 have become final as to all parties and all rights of
20 appeal have been exhausted. In order to preserve the
21 property, if cash, the commissioner may deposit funds into
22 a demand deposit account at an institution located within
23 the state of Wyoming.
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1
2 (h) When property is forfeited under this act, the
3 commissioner may:
4
5 (i) Retain it for official use, in which case it
6 shall become the property of the state of Wyoming;
7
8 (ii) Sell the property or any portion of the
9 property that is not required to be destroyed by law and
10 that is not harmful to the public. The proceeds shall be
11 used for payment of all proper expenses of the proceedings
12 for forfeiture and sale, including expenses of seizure,
13 maintenance of custody, advertising and court costs;
14
15 (iii) Require the board to take custody of the
16 property and remove it for disposition in accordance with
17 law;
18
19 (iv) Transfer ownership and control of the
20 property to any municipality or political subdivision of
21 the state for the transferee's official use; or
22
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1 (v) Authorize any law enforcement officer to
2 apply to the district court for an order providing for
3 destruction of the property if it is contraband controlled
4 substances or paraphernalia and is no longer necessary for
5 evidentiary purposes, provided that a district court order
6 shall not be necessary for the division of criminal
7 investigation to destroy quantities of contraband
8 controlled substances after the division has tested random
9 samples. The division of criminal investigation shall
10 adopt rules necessary to operate a program to destroy bulk
11 quantities of contraband controlled substances, which shall
12 include:
13
14 (A) The photographing and videotaping of
15 the entire bulk amount of seized contraband controlled
16 substances to maintain its evidentiary value and to create
17 exhibits for use in legal proceedings;
18
19 (B) The extraction of ten (10) random
20 samples from the entire bulk amount of seized contraband
21 controlled substances for laboratory analysis;
22
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1 (C) A weighing on properly calibrated
2 scales of both the bulk amount of seized contraband
3 controlled substances and the representative samples;
4
5 (D) The additional retention of:
6
7 (I) Five (5) ounces of organic
8 material if the controlled substance is marijuana or a
9 substance of similar organic composition;
10
11 (II) Five (5) grams of a controlled
12 substance in powdered or crystalline form;
13
14 (III) Five-tenths (0.5) of a gram of a
15 controlled substance in liquid form;
16
17 (IV) An amount sufficient for testing
18 by experts shall be made available from the additionally
19 retained sample for the purpose of defending criminal
20 charges arising from the possession, use or sale of the
21 controlled substance.
22
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1 (vi) After testing and the retention of samples
2 specified in paragraph (v) of this subsection, order the
3 destruction of the bulk amount of the seized contraband
4 controlled substance in excess of the representative sample
5 and the additional retained samples of the seized
6 contraband controlled substance;
7
8 (vii) Authorize any law enforcement officer,
9 after the representative samples and the additional
10 retained samples of the contraband controlled substance are
11 no longer necessary for evidentiary purposes, to apply to
12 the district court with jurisdiction for an order providing
13 for the destruction of the remaining contraband controlled
14 substance.
15
16 (j) Any controlled substance listed in Schedules I
17 through V that is possessed, transferred, sold or offered
18 for sale in violation of this act is contraband and shall
19 be seized and summarily forfeited to the state. Any
20 controlled substance listed in Schedules I through V that
21 is seized or comes into poss