1 SB210
2 213217-5
3 By Senators Orr, Albritton, Elliott, Smitherman, Singleton and
4 Whatley
5 RFD: Judiciary
6 First Read: 09-FEB-21
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1 SB210
2
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4 ENROLLED, An Act,
5 Relating to asset forfeitures; to amend Section
6 20-2-93, Code of Alabama 1975, to further provide for the
7 seizure and forfeiture of certain property used in the
8 commission of certain drug-related offenses.
9 BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:
10 Section 1. Section 20-2-93, Code of Alabama 1975, is
11 amended to read as follows:
12 "20-2-93.
13 "(a) For the purposes of this section only, the
14 following words shall have the following meanings:
15 "(1) CHARGEABLE CRIMINAL OFFENSE. An offense in
16 which property is used or otherwise implicated as property
17 subject to forfeiture under subsection (b). The term includes
18 any act that could be charged as a felony or misdemeanor,
19 regardless of whether a formal criminal prosecution or
20 delinquency proceeding has begun at the time the forfeiture
21 was initiated.
22 "(2) CONTRABAND. All property as described in
23 subsections (t) and (u). The term includes drug paraphernalia,
24 as defined in Section 13A-12-260, and illegal firearms.
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1 "(3) FORFEITURE ACTION. A civil action to forfeit
2 property to the state which is initiated by the prosecuting
3 authority in accordance with this section.
4 "(4) INNOCENT OWNER. A bona fide purchaser,
5 lienholder, mortgagee, or other owner, other than a defendant,
6 of property that is subject to forfeiture, including any of
7 the following:
8 "a. A person who has a valid claim, lien, or other
9 interest in the property seized, who did not have knowledge or
10 consent to the conduct that caused the property to be
11 forfeited, seized, or abandoned under subsection (n) and which
12 property is subject to the requirements of subsection (w).
13 "b. A person who has an interest in the property and
14 did not participate in the commission of a crime or delinquent
15 act giving rise to the forfeiture.
16 "(5) INVENTORY. A written, itemized list of all
17 property seized under this section that names all persons to
18 whom the inventory is given at the time of the seizure, as
19 provided in Rule 3.11 of the Alabama Rules of Criminal
20 Procedure.
21 "(6) KNOWLEDGE. An awareness or understanding of
22 information, a fact, or a condition.
23 "(7) PROSECUTING AUTHORITY. The Attorney General, a
24 district attorney, or a designee thereof.
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1 "(8) RESPONDENT. Any person asserting a claim or
2 interest in the property subject to the forfeiture action.
3 "(9) SEIZING AGENCY. A state, county, or municipal
4 law enforcement agency or department that seizes property in
5 accordance with this section.
6 "(10) SEIZURE ORDER. A written order issued by a
7 court in connection with a seizure, establishing that probable
8 cause exists to believe that the seizure is valid as described
9 by this section. The term includes, but is not limited to, a
10 search warrant issued pursuant to Article 1, commencing with
11 Section 15-5-1, of Chapter 5 of Title 15.
12 "(a)(b) The following are subject to seizure and
13 forfeiture:
14 "(1) All controlled substances which that have been
15 grown, manufactured, distributed, dispensed, or acquired in
16 violation of any law of this state;.
17 "(2) All raw materials, products, and equipment of
18 any kind which that are used or intended for use in
19 manufacturing, cultivating, growing, compounding, processing,
20 delivering, importing, or exporting any controlled substance
21 in violation of any law of this state;.
22 "(3) All property which is used or intended for use
23 as a container for property described in subdivision (1) or
24 (2) of this subsection;
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1 "(4)(3) All moneys monies, negotiable instruments,
2 securities, or other things of value furnished or intended to
3 be furnished by any person in exchange for a controlled
4 substance in violation of any law of this state; all proceeds
5 traceable to such an exchange; and all moneys monies,
6 negotiable instruments, and securities used or intended to be
7 used to facilitate any violation of any law of this state
8 concerning controlled substances;.
9 "(4) All property that is used or intended for use
10 as a container for property described in subdivision (1), (2),
11 or (3).
12 "(5) All conveyances, including aircraft, vehicles,
13 or vessels, or agricultural machinery, which are used, or are
14 intended for use, to transport, or in any manner to facilitate
15 the transportation, sale, receipt, possession, or concealment
16 of, any property described in subdivision (1), or (2), or (3)
17 of this subsection;.
18 "(6) All books, records, and research products and
19 materials, including formulas, microfilm, tapes, and data,
20 which are used or intended for use in violation of any law of
21 this state concerning controlled substances;.
22 "(7) All imitation controlled substances, as defined
23 under the laws of this state;.
24 "(8) All real property or fixtures used or intended
25 to be used for the manufacture, cultivation, growth, receipt,
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1 storage, handling, distribution, or sale of any controlled
2 substance in violation of any law of this state;.
3 "(9) All property of any type whatsoever
4 constituting, or derived from, any proceeds obtained directly,
5 or indirectly, from any violation of any law of this state
6 concerning controlled substances;.
7 "(c)(1) All of the following are exempt from seizure
8 and forfeiture under this section:
9 "a. United States currency totaling two hundred
10 fifty dollars ($250) or less.
11 "b. A motor vehicle that is less than five thousand
12 dollars ($5,000) in market value.
13 "(2) For purposes of seizures and forfeitures under
14 subdivision (1), the Attorney General shall advise law
15 enforcement agencies of publications the agencies may use to
16 establish the value of a motor vehicle.
17 "(3) The district attorney for a judicial circuit
18 may increase the minimum dollar amounts provided in
19 subdivision (1) for seizures and forfeitures that occur within
20 the judicial circuit.
21 "(b)(d) Except as provided in subsection (c),
22 property Property subject to forfeiture under this chapter
23 section may be seized by state, county, or municipal law
24 enforcement agencies a seizing agency upon process issued by
25 any court having jurisdiction over the property. Seizure
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1 without process may be made if under any of the following
2 conditions:
3 "(1) The seizure is incident to an arrest or a
4 search under a search warrant or an inspection under an
5 administrative inspection warrant;.
6 "(2) The property subject to seizure has been the
7 subject of a prior judgment in favor of the state in a
8 criminal injunction or forfeiture proceeding based upon this
9 chapter;.
10 "(3) The state, county, or municipal law enforcement
11 seizing agency has probable cause to believe that the property
12 is directly or indirectly dangerous to health or safety; or.
13 "(4) The state, county, or municipal law enforcement
14 seizing agency has probable cause to believe that the property
15 was used or is intended to be used in violation of this
16 chapter.
17 "(c)(e)(1) In the event of a seizure pursuant to
18 subsection (b) of this section (d), proceedings under
19 subsection (d) (p) of this section shall be instituted
20 promptly. Prior to the commencement of a forfeiture action by
21 the prosecuting authority under this section against property
22 not seized pursuant to a warrant, the seizing agency shall do
23 all of the following:
24 "a. Within seven business days, or an extension of
25 time for good cause shown, after the seizure pursuant to
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1 subsection (d), obtain a seizure order from any circuit or
2 district judge in the jurisdiction of the seizure.
3 "b. Within 14 days after obtaining a seizure order
4 under subdivision (1), the seizing agency shall present the
5 seizure order and an application for forfeiture, which shall
6 include an inventory, to the prosecuting authority in the
7 jurisdiction for consideration.
8 "(2)a. Upon the issuance of a seizure order pursuant
9 to this subsection, the clerk of the court for the
10 jurisdiction shall establish a circuit civil case number and
11 file the order in that case number, which shall become the
12 case number for the forfeiture action should a prosecuting
13 authority file a forfeiture action pursuant to subsection (g).
14 "b. At the request of the seizing agency, the court
15 may order the filing sealed to protect the confidentiality of
16 any ongoing investigation or witnesses.
17 "(3) If the prosecuting authority has not filed a
18 forfeiture action pursuant to this section after 90 days from
19 the date of the seizure order, the clerk shall notify the
20 judge assigned to the case who may review the case with the
21 prosecuting authority for a possible dismissal due to
22 inaction. Pursuant to an order under this subsection, the
23 property shall be tendered to the owner within 14 business
24 days after the dismissal, unless the property is contraband,
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1 in which case the property shall be destroyed at the
2 conclusion of the criminal case.
3 "(4) On motion by the prosecuting authority,
4 property otherwise due to be tendered to the owner pursuant to
5 subdivision (3) or subsection (f) may be retained by the
6 prosecuting authority for the duration of the criminal
7 prosecution only if the prosecuting authority proves, by a
8 preponderance of the evidence, that the seized property is
9 necessary for evidentiary purposes in the criminal
10 prosecution, and that the use of affidavits, photographic
11 evidence, or other admissible evidence is an insufficient
12 means to establish an element of the underlying criminal
13 offense.
14 "(f) A forfeiture action may only be instituted
15 after the finding of probable cause by the prosecuting
16 authority that the seizure is valid. If the prosecuting
17 authority does not find probable cause that the seizure is
18 valid, the property shall be tendered to the owner within 14
19 business days of the denial, unless the property is
20 contraband, in which case the property shall be destroyed at
21 the conclusion of the criminal case.
22 "(g) Upon compliance with subsection (f), the
23 prosecuting authority may file a forfeiture action in the
24 circuit court under this section within 42 days, or a greater
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1 time upon a showing of good cause to the court, from the date
2 of the seizure of the property.
3 "(h) The seizing agency shall provide an inventory
4 to any person in possession of the seized property at the time
5 of the seizure. The inventory shall be prima facie evidence of
6 notice of the seizure to any person served with the inventory
7 at the time of the seizure.
8 "(i)(1) Nothing in this section shall be construed
9 to permit a seizing agency to conduct extrajudicial seizures
10 or forfeitures.
11 "(2) A law enforcement officer may not induce or
12 require a person to waive, for purposes of a seizure or
13 forfeiture action, the person's interest in property.
14 "(j) On motion of any party, the court may stay the
15 proceedings under this section, including any requirement
16 under the Alabama Rules of Civil Procedure.
17 "(k) Nothing in this section shall prevent the pro
18 tanto dismissal of any party pursuant to the Alabama Rules of
19 Civil Procedure.
20 "(l) An innocent owner may petition the court for a
21 hearing under Section 15-5-63 at any time after seizure of
22 property and before entry of a conviction in the related
23 criminal case.
24 "(m) The state may stipulate that the interest of an
25 innocent owner is exempt from forfeiture upon presentation of
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1 proof of the claim. The state shall file the stipulation with
2 the court exercising jurisdiction over the forfeiture action,
3 and the filing of the stipulation shall constitute an
4 admission by the state that the interest is exempt from
5 forfeiture. If a stipulation is submitted, no further claim,
6 answer, or pleading shall be required of the stipulated
7 innocent owner or lienholder, and a judgment shall be entered
8 exempting that interest from forfeiture. An order under this
9 subsection shall waive all court costs.
10 "(n) Convictions or adjudications of chargeable
11 criminal offenses may be considered by the court as prima
12 facie evidence that the property seized is contraband,
13 proceeds, or instrumentalities, and is due to be forfeited.
14 The conviction or adjudication may be proven by the court
15 taking judicial notice or by providing a certified copy of the
16 conviction or adjudication to the court.
17 "(o) All civil forfeiture cases are in rem and all
18 issues shall be tried in the circuit court without the
19 presence of a jury. The state must prove by a preponderance of
20 the evidence the property subject to forfeiture is an
21 instrumentality of, or proceeds derived directly from, a
22 chargeable criminal offense.
23 "(p)(1) The state may file for a default judgment
24 against any party at any time pursuant to the Alabama Rules of
25 Civil Procedure unless the case is stayed under subsection
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1 (j). The state may satisfy its burden for a default judgment
2 with testimony taken under oath, or by presenting a sworn to
3 and notarized affidavit.
4 "(2) A respondent shall be deemed to have abandoned
5 the property and any claims to the property, and a default
6 judgement may be entered by the court, upon the occurrence of
7 any of the following:
8 "a. The death of the respondent.
9 "b. The deportation of the respondent.
10 "c. The absconding of the respondent. Violation of
11 bond in the underlying criminal case and the issuance of a
12 failure to appear warrant is prima facie evidence of the
13 respondent's abandonment of the property.
14 "(q) As part of an order of final judgment, pursuant
15 to a trial or a default judgment hearing, the court shall not
16 condemn and forfeit an instrumentality that is
17 disproportionate to the underlying chargeable criminal offense
18 or offenses that gave rise to the forfeiture action. Among
19 other factors, the court may consider the following in
20 determining whether a seizure is proportional to the
21 underlying chargeable criminal offense or offenses:
22 "(1) The extent to which the property was used in
23 committing the chargeable criminal offense or offenses.
24 "(2) The extent to which the respondent participated
25 in the chargeable criminal offense or offenses.
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1 "(3) Any legitimate use of the property seized.
2 "(4) The maximum possible prison sentence for the
3 chargeable criminal offense or offenses.
4 "(5) The maximum possible fines for the chargeable
5 criminal offense or offenses.
6 "(6) Possession of a firearm by the respondent
7 during the chargeable criminal offense or offenses.
8 "(7) The seriousness of the chargeable criminal
9 offense or offenses and its impact on the community, including
10 the duration of the activity and the harm caused.
11 "(d)(r) Property taken or detained under this
12 section shall not be subject to replevin, but is deemed to be
13 in the custody of the state, county, or municipal law
14 enforcement seizing agency, subject only to the orders and
15 judgment of the court having jurisdiction over the forfeiture
16 proceedings. When property is seized under this chapter, the
17 state, county, or municipal law enforcement seizing agency may
18 do any of the following:
19 "(1) Place the property under seal;.
20 "(2) Remove the property to a place designated by
21 it; the seizing agency.
22 "(3) Require the state, county, or municipal law
23 enforcement seizing agency to take cu