Stricken language would be deleted from and underlined language would be added to present law.
1 State of Arkansas
2 93rd General Assembly A Bill
3 Regular Session, 2021 SENATE BILL 197
4
5 By: Senator A. Clark
6
7 For An Act To Be Entitled
8 AN ACT TO REFORM THE CIVIL ASSET FORFEITURE PROCESS;
9 CONCERNING PROPERTY USED IN THE COMMISSION OF AN
10 OFFENSE THAT IS SEIZED AND FORFEITED AS A RESULT OF A
11 CRIMINAL INVESTIGATION; AND FOR OTHER PURPOSES.
12
13
14 Subtitle
15 TO REFORM THE CIVIL ASSET FORFEITURE
16 PROCESS; CONCERNING PROPERTY USED IN THE
17 COMMISSION OF AN OFFENSE THAT IS SEIZED
18 AND FORFEITED AS A RESULT OF A CRIMINAL
19 INVESTIGATION.
20
21
22 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
23
24 SECTION 1. DO NOT CODIFY. Legislative intent.
25 (a) The General Assembly generally disfavors forfeiture of real or
26 personal property.
27 (b) It is the intent of the General Assembly to consolidate,
28 standardize, simplify, and to end the civil asset forfeiture and replace it
29 with a criminal forfeiture process used by the state to seize and forfeit
30 real property or personal property used in the commission of an offense.
31
32 SECTION 2. Arkansas Code Title 5, Chapter 5, Subchapter 2, is
33 repealed.
34 Subchapter 2 Forfeiture of Conveyances Used in Commission of Certain Crimes
35
36 5-5-201. Forfeiture requirement Exceptions.
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1 (a) Upon conviction, any conveyance, including an aircraft, motor
2 vehicle, or vessel, is subject to forfeiture under this subchapter if it is
3 used in the commission or attempt of:
4 (1) A burglary;
5 (2) A robbery;
6 (3) A theft;
7 (4) An arson; or
8 (5) Trafficking of persons, 5-18-103.
9 (b) However:
10 (1) A conveyance used by any person as a common carrier in the
11 transaction of business as a common carrier is not subject to forfeiture
12 under this subchapter unless it appears that the owner or other person in
13 charge of the conveyance was a consenting party or privy to the commission or
14 attempt to commit the offense;
15 (2) A conveyance is not subject to forfeiture under this
16 subchapter by reason of any act or omission established by the owner of the
17 conveyance to have been committed or omitted without his or her knowledge or
18 consent and without the knowledge or consent of any person having possession,
19 care, or control of the conveyance with the owner's permission; and
20 (3) A forfeiture of a conveyance encumbered by a security
21 interest is subject to the security interest of the secured party if the
22 secured party neither had knowledge of nor consented to the use of the
23 conveyance in the commission or attempt to commit the offense.
24 (c)(1) A person who uses or possesses one (1) or more of the following
25 items or conveyances in the commission of a second or subsequent offense for
26 criminal trespass, 5-39-203, or criminal trespass on premises located in an
27 unincorporated area, 5-39-305, that occurs within five (5) years of a prior
28 offense of criminal trespass, 5-39-203, or criminal trespass on premises
29 located in an unincorporated area, 5-39-305, is subject to that item's or
30 conveyance's being seized and forfeited under this subchapter:
31 (A) An all-terrain vehicle, as defined under 27-21-102;
32 (B) A conveyance, including an aircraft, motor vehicle, or
33 vessel;
34 (C) A harvesting device, as defined under 5-39-101;
35 (D) A killing device, as defined under 5-39-101; or
36 (E) A tool or other implement.
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1 (2) A person or entity that has a valid security interest in an
2 item or conveyance subject to seizure and forfeiture under this subsection is
3 entitled to notice of any forfeiture proceeding as well as the right to
4 intervene in the forfeiture proceeding in order to secure and represent the
5 person's or entity's interest in the item or conveyance to be forfeited.
6
7 5-5-202. Seizure of conveyances.
8 (a) A conveyance subject to forfeiture under this subchapter may be
9 seized by any law enforcement agent upon process issued by any circuit court
10 having jurisdiction over the conveyance upon a petition filed by the
11 prosecuting attorney of the judicial district.
12 (b) Seizure without process may be made if:
13 (1) The seizure is incident to an arrest or a search under a
14 search warrant; or
15 (2) Any law enforcement officer has probable cause to believe
16 that the conveyance was used in the commission or attempt of:
17 (A) A burglary;
18 (B) A robbery;
19 (C) A theft;
20 (D) An arson; or
21 (E) Trafficking of persons, 5-18-103.
22
23 5-5-203. Control of seized conveyances.
24 (a) When a conveyance is seized under this subchapter, the conveyance
25 shall remain in the custody of the seizing law enforcement agency.
26 (b)(1) The conveyance is not subject to replevin.
27 (2) However, the conveyance is subject only to an order or
28 decree of the circuit court having jurisdiction over the conveyance.
29
30 5-5-204. Use or sale of conveyances Disposition of sale proceeds.
31 (a)(1)(A) Upon conviction and a hearing, when the circuit court having
32 jurisdiction over the conveyance seized finds by a preponderance of the
33 evidence that a ground for a forfeiture exists under this subchapter, the
34 circuit court may enter an order to sell the conveyance.
35 (B) After allowance for reasonable expenses of seizure and
36 maintenance of custody of the conveyance, the proceeds from a sale under
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1 subdivision (a)(1)(A) of this section shall be used to satisfy any
2 outstanding restitution under 5-4-205 owed to a victim of an offense for
3 which the conveyance was used, if the victim files a petition with the
4 circuit court or makes a request to the circuit court within thirty (30) days
5 of the filing of the judgment and commitment order of the convicted
6 defendant.
7 (2) If there is not a victim of an offense owed restitution
8 under 5-4-205, the circuit court shall enter an order to:
9 (A) Permit the law enforcement agency or the prosecuting
10 attorney for the judicial district in which the conveyance was seized to
11 retain the conveyance for official use; or
12 (B)(i) Permit the law enforcement agency to sell the
13 conveyance at a public or private sale.
14 (ii) In the event of a sale, the circuit court shall
15 provide by order that the proceeds be used for payment of any proper expense
16 of the proceeding for forfeiture and sale, including expenses of:
17 (a) Investigation;
18 (b) Seizure;
19 (c) Maintenance of custody;
20 (d) Advertising; and
21 (e) Court costs.
22 (b) Any proceeds from the sale of a forfeited conveyance under
23 subdivision (a)(2)(B) of this section, or if there was a victim of an offense
24 owed restitution under 5-4-205, the proceeds remaining after the
25 satisfaction of the victim's restitution under 5-4-205 in excess of a
26 proper expense shall be distributed as follows:
27 (1) Forty percent (40%) to be deposited into the State Treasury
28 as special revenues to the credit of the Department of Arkansas State Police
29 Fund;
30 (2)(A) Forty percent (40%) to the law enforcement agency that
31 perfected the arrest.
32 (B) However, if a federal agency perfected the arrest, the
33 forty percent (40%) under subdivision (b)(2)(A) of this section shall be
34 distributed to the county sheriff's office of the county responsible for the
35 prosecution; and
36 (3) Twenty percent (20%) to the county sheriff's office of the
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1 county responsible for the prosecution.
2
3 SECTION 3. Arkansas Code Title 5, Chapter 5, Subchapter 3, is
4 repealed.
5 Subchapter 3 Forfeiture of Property Due to Theft of Livestock
6
7 5-5-301. Definitions.
8 As used in this subchapter:
9 (1)(A) Contraband property means property of any nature,
10 including personal property, tangible property, or intangible property.
11 (B) Contraband property does not include real property;
12 (2) Livestock means:
13 (A) Cattle or swine or a sheep, goat, horse, or mule; and
14 (B) Any carcass, skin, or part of cattle or swine or a
15 sheep, goat, horse, or mule; and
16 (3) Theft of livestock means a theft of property:
17 (A) That is classified as a felony violation pursuant to
18 5-36-103; and
19 (B) In which the property taken was livestock.
20
21 5-5-302. Property subject to forfeiture.
22 (a) The following property is subject to forfeiture pursuant to this
23 subchapter:
24 (1) Contraband property used or intended to be used in the
25 commission of theft of livestock;
26 (2) The proceeds gained from the commission of theft of
27 livestock;
28 (3) Personal property acquired with proceeds gained from the
29 commission of theft of livestock;
30 (4)(A) Any conveyance, including an aircraft, vessel, vehicle,
31 or horse that is used or intended for use to transport or in any manner to
32 facilitate the transportation for the purpose of the commission of theft of
33 livestock.
34 (B) No conveyance used by any person as a common carrier
35 in the transportation of business as a common carrier is subject to
36 forfeiture under this section unless it appears that the owner or other
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1 person in charge of the conveyance is a consenting party or privy to a
2 violation of this subchapter.
3 (C) No conveyance is subject to forfeiture under this
4 section by reason of any act or omission established by the owner of the
5 conveyance to have been committed or omitted without the owner's knowledge or
6 consent.
7 (D) A forfeiture of a conveyance encumbered by a bona fide
8 security interest is subject to the bona fide security interest of the
9 secured party;
10 (5) Any book, record, or research product or material including
11 microfilm, tape, or data that is used or intended for use in the theft of
12 livestock; and
13 (6)(A)(i) Anything of value furnished or intended to be
14 furnished or traded or used as payment or invested for anything of value in
15 return for the commission of the theft of livestock.
16 (ii) However, subdivision (a)(6)(A)(i) of this
17 section does not include real property.
18 (B) It may be presumed that property described in
19 subdivision (a)(6)(A)(i) of this section was acquired with proceeds gained
20 from the commission of theft of livestock and is subject to forfeiture.
21 (b) Property that is used in the commission of theft of livestock that
22 has title of ownership with two (2) parties on the title or a cosigner is
23 subject to forfeiture if one (1) party on the title uses the property in the
24 commission of theft of livestock or receives titled property as the proceeds
25 of the commission of theft of livestock, even if the second party claims that
26 he or she did not have knowledge or involvement in the commission of theft of
27 livestock.
28 (c)(1) Any money, coin, or currency found in possession of a person
29 arrested for the theft of livestock or found in, on, or in close proximity to
30 any forfeited property used or intended for the use in the theft of livestock
31 is presumed to be forfeitable under this section.
32 (2) The burden of proof is upon a claimant of property described
33 in subdivision (c)(1) of this section to rebut the presumption under
34 subdivision (c)(1) of this section.
35
36 5-5-303. Petition for forfeiture Order.
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1 (a)(1) The prosecuting attorney of the judicial district within whose
2 jurisdiction there is property that is sought to be forfeited pursuant to
3 5-5-302 shall promptly proceed against the property by filing in the circuit
4 court having jurisdiction of the property a petition for an order to show
5 cause why the circuit court should not order forfeiture of the property.
6 (2) The petition shall be verified and shall set forth:
7 (A) A statement that the action is brought pursuant to
8 5-5-302;
9 (B) The law enforcement agency bringing the action;
10 (C) A description of the property sought to be forfeited;
11 (D) A statement that on or about a date certain the
12 property was used or intended to be used in a criminal act constituting theft
13 of livestock or that a criminal act constituting theft of livestock took
14 place in, upon, or by means of the property;
15 (E) A statement detailing the facts in support of
16 subsection (a) of this section; and
17 (F) A list of all persons known to the law enforcement
18 agency, after diligent search and inquiry, who may claim an ownership
19 interest in the property by title or registration or by virtue of a lien
20 allegedly perfected in the manner prescribed by law.
21 (b)(1) Upon receipt of a petition complying with the requirements of
22 subsection (a) of this section, the circuit judge of the court having
23 jurisdiction shall issue an order to show cause setting forth a statement
24 that this subchapter is the controlling law.
25 (2) In addition, the order shall set a date at least forty-one
26 (41) days from the date of first publication of the order pursuant to
27 subsection (c) of this section for any person claiming an interest in the
28 property to file such pleadings as the person desires as to why the circuit
29 court should not order the forfeiture of the property to use, sale, or other
30 disposition by the law enforcement agency seeking forfeiture of the property.
31 (3) The circuit court shall further order that any person who
32 does not appear on that date is deemed to have defaulted and waived any claim
33 to the property.
34 (c)(1) The prosecuting attorney shall give notice of the forfeiture
35 proceedings by:
36 (A) Causing to be published a copy of the order to show
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1 cause two (2) times each week for two (2) consecutive weeks in a newspaper
2 having general circulation in the county where the property is located; and
3 (B) Sending a copy of the petition and order to show cause
4 by certified mail, return receipt requested, to any person having ownership
5 of or a security interest in the property or in the manner provided in Rule 4
6 of the Arkansas Rules of Civil Procedure, if:
7 (i) The property is of a type for which title or
8 registration is required by law;
9 (ii) The owner of the property is known in fact to
10 the law enforcement agency at the time of seizure; or
11 (iii) The property is subject to a security interest
12 perfected in accordance with the Uniform Commercial Code, 4-1-101 et seq.
13 (2) The law enforcement agency is obligated only to make
14 diligent search and inqu