Bill Text: IA SF2262 | 2015-2016 | 86th General Assembly | Introduced

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Bill Title: A bill for an act relating to forfeiture of property for criminal offenses. (Formerly SF 2166.)

Spectrum: Committee Bill

Status: (Introduced - Dead) 2016-03-10 - Referred to Judiciary. S.J. 471. [SF2262 Detail]

Download: Iowa-2015-SF2262-Introduced.html

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Senate File 2262 - Introduced




                                 SENATE FILE       
                                 BY  COMMITTEE ON JUDICIARY

                                 (SUCCESSOR TO SF 2166)

                                      A BILL FOR

  1 An Act relating to forfeiture of property for criminal
  2    offenses.
  3 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
    TLSB 5652SV (1) 86
    jh/rj

PAG LIN



  1  1    Section 1.  NEW SECTION.  809B.1  Definitions.
  1  2    As used in this chapter, unless the context otherwise
  1  3 requires:
  1  4    1.  "Abandoned property" means personal property left by an
  1  5 owner who intentionally relinquishes all rights to the control
  1  6 of the personal property. "Abandoned property" does not include
  1  7 real property.
  1  8    2.  "Actual knowledge" means direct and clear awareness of
  1  9 information, a fact, or a condition.
  1 10    3.  "Constructive knowledge" means knowledge that is
  1 11 imputed to family or household members of the defendant if the
  1 12 defendant admitted guilt or was adjudicated guilty three or
  1 13 more times for the same or similar offense, as specified in
  1 14 statute, in the ten years prior to the alleged offense.
  1 15    4.  "Contraband" means goods that are unlawful to import,
  1 16 export, or possess, including controlled substances without a
  1 17 valid prescription.
  1 18    5.  "Conveyance" means a device used for transportation and
  1 19 includes a motor vehicle, trailer, snowmobile, airplane, and
  1 20 vessel, and any attached equipment. "Conveyance" does not
  1 21 include property that is stolen or taken in violation of the
  1 22 law.
  1 23    6.  "Instrumentality" means property otherwise lawful to
  1 24 possess that is used in the furtherance or commission of an
  1 25 offense of a law subject to forfeiture. "Instrumentality"
  1 26 includes land, buildings, containers, a conveyance, equipment,
  1 27 materials, products, a computer, computer software, a
  1 28 telecommunications device, a firearm, ammunition, a tool,
  1 29 money, securities, and negotiable instruments and other means
  1 30 of exchange.
  1 31    7.  "Law enforcement agency" means any nonfederal police
  1 32 force, or other local, county, or state agency that has the
  1 33 authority under state law to engage in seizure and forfeiture.
  1 34    8.  "Law subject to forfeiture" means a state law that
  1 35 carries a felony penalty and that explicitly includes
  2  1 forfeiture as a punishment or sanction for the offense.
  2  2    Sec. 2.  NEW SECTION.  809B.2  Purpose.
  2  3    This chapter's purpose is to deter criminal activity by
  2  4 reducing crime's economic incentive, increase the pecuniary
  2  5 loss from criminal activity, protect against the wrongful
  2  6 forfeiture of property, and ensure that only criminal
  2  7 forfeiture is allowed in this state.
  2  8    Sec. 3.  NEW SECTION.  809B.3  Criminal forfeiture ==== property
  2  9 subject to forfeiture.
  2 10    When a person is convicted of violating a law subject to
  2 11 forfeiture, the court, consistent with this chapter, may order
  2 12 the person to forfeit any of the following:
  2 13    1.  Property the person derived from the commission of the
  2 14 offense.
  2 15    2.  Property directly traceable to property derived from the
  2 16 commission of the offense.
  2 17    3.  Instrumentalities the person used in the commission of
  2 18 the offense.
  2 19    Sec. 4.  NEW SECTION.  809B.4  Exemptions.
  2 20    Real property that is a homestead, a motor vehicle of less
  2 21 than ten thousand dollars in market value, and United States
  2 22 currency totaling two hundred dollars or less are exempt from
  2 23 forfeiture.
  2 24    Sec. 5.  NEW SECTION.  809B.5  Contraband.
  2 25    A property right does not exist in contraband. Contraband
  2 26 is subject to seizure and shall be disposed of according to
  2 27 state law. Contraband is not subject to forfeiture under this
  2 28 chapter.
  2 29    Sec. 6.  NEW SECTION.  809B.6  Conviction required ==== standard
  2 30 of proof.
  2 31    1.  Property may only be forfeited under this chapter if the
  2 32 offense is of a state law subject to forfeiture, the offense is
  2 33 established by proof of a criminal conviction, and the state
  2 34 establishes that the property is forfeitable under this chapter
  2 35 by clear and convincing evidence.
  3  1    2.  This chapter does not prevent property from being
  3  2 forfeited by plea agreement approved by the presiding criminal
  3  3 court.
  3  4    3.  a.  The court may waive the requirement of proof of a
  3  5 criminal conviction if the prosecuting authority shows by a
  3  6 preponderance of the evidence any of the following:
  3  7    (1)  The suspect died.
  3  8    (2)  The suspect was deported by the United States
  3  9 government.
  3 10    (3)  The suspect fled the jurisdiction after being arrested,
  3 11 charged with a crime subject to forfeiture of property, and
  3 12 released on bail.
  3 13    b.  Property forfeitable under this subsection remains
  3 14 subject to claims by innocent owners, creditors, and other
  3 15 third parties pursuant to this chapter.
  3 16    Sec. 7.  NEW SECTION.  809B.7  Substitution of assets.
  3 17    Upon the state's motion following conviction, the court
  3 18 may order the forfeiture of substitute property owned by the
  3 19 defendant up to the value of unreachable property that is
  3 20 beyond the court's jurisdiction or cannot be located through
  3 21 due diligence only if the state proves by a preponderance of
  3 22 the evidence that the defendant intentionally transferred,
  3 23 sold, or deposited property with a third party to avoid the
  3 24 court's jurisdiction.
  3 25    Sec. 8.  NEW SECTION.  809B.8  No additional remedies.
  3 26    The state shall not seek personal money judgments or other
  3 27 remedies not provided for in this chapter.
  3 28    Sec. 9.  NEW SECTION.  809B.9  No joint=and=several liability.
  3 29    A defendant is not jointly and severally liable for
  3 30 forfeiture awards owed by other defendants. When ownership is
  3 31 unclear, a court may order each defendant to forfeit property
  3 32 on a pro rata basis or by another means the court finds
  3 33 equitable.
  3 34    Sec. 10.  NEW SECTION.  809B.10  Seizure of personal property
  3 35 with process.
  4  1 At the request of the state at any time, a court may issue an
  4  2 ex parte preliminary order to attach, seize, or secure personal
  4  3 property for which forfeiture is sought and to provide for
  4  4 custody of such property. Application, issuance, execution,
  4  5 and return are subject to this Code statute or court rules.
  4  6    Sec. 11.  NEW SECTION.  809B.11  Seizure of personal property
  4  7 without process.
  4  8    Personal property subject to forfeiture may be seized at any
  4  9 time without a court order if any of the following apply:
  4 10    1.  The seizure of personal property is incident to a lawful
  4 11 arrest or a search lawfully conducted.
  4 12    2.  The personal property subject to seizure has been the
  4 13 subject of a prior judgment in favor of the state.
  4 14    3.  The state has probable cause to believe that the delay
  4 15 occasioned by the necessity to obtain process would result in
  4 16 the removal or destruction of the personal property and that
  4 17 the personal property is forfeitable under this chapter.
  4 18    Sec. 12.  NEW SECTION.  809B.12  Seizure of real property with
  4 19 process.
  4 20    1.  Seizure of real property requires a court order. A court
  4 21 may issue an order to seize or secure real property for which
  4 22 forfeiture is sought only after proper notice to the property
  4 23 owner and an opportunity for a contested hearing to determine
  4 24 the sufficiency of probable cause for the seizure.
  4 25    2.  This section does not prohibit the prosecuting authority
  4 26 from seeking a lis pendens or restraining order to hinder the
  4 27 sale or destruction of the real property.
  4 28    3.  Application, issuance, execution, and return of any
  4 29 order are subject to this Code or court rules.
  4 30    Sec. 13.  NEW SECTION.  809B.13  Receipt.
  4 31    When property is seized, the law enforcement officer shall
  4 32 give an itemized receipt to the person possessing the property,
  4 33 or in the absence of a person, leave a receipt in the place
  4 34 where the property was found, if reasonably possible.
  4 35    Sec. 14.  NEW SECTION.  809B.14  Title.
  5  1    1.  At the time of seizure or entry of a restraining order,
  5  2 the state acquires provisional title to the seized property.
  5  3 Provisional title authorizes the state to hold and protect the
  5  4 property.
  5  5    2.  Title to the property vests with the state when the trier
  5  6 of fact renders a final forfeiture verdict and relates back to
  5  7 the time when the state acquired provisional title. However,
  5  8 this title is subject to claims by third parties adjudicated
  5  9 under this chapter.
  5 10    Sec. 15.  NEW SECTION.  809B.15  Pretrial replevin hearing.
  5 11    1.  Following the seizure of property, a defendant or
  5 12 claimant has a right to a pretrial hearing to determine the
  5 13 validity of the seizure.
  5 14    2.  The defendant or claimant may claim at any time prior
  5 15 to sixty days before trial of the related criminal offense the
  5 16 right to possession of property by motion to the court to issue
  5 17 a writ of replevin.
  5 18    3.  The defendant or claimant shall file a motion
  5 19 establishing the validity of the alleged interest in the
  5 20 property.
  5 21    4.  The court shall hear the motion no more than thirty days
  5 22 after the motion is filed.
  5 23    5.  The state shall file an answer showing probable cause
  5 24 for the seizure, or cross motions at least ten days before the
  5 25 hearing.
  5 26    6.  Either party may, by agreement or for good cause,
  5 27 move the court to delay the hearing for one extension of no
  5 28 more than ten days. Any such motion may be supported by an
  5 29 affidavit or other submission.
  5 30    7.  The court shall grant the motion if the court finds that
  5 31 any of the following apply:
  5 32    a.  The final judgment will likely be that the state must
  5 33 return the property to the claimant.
  5 34    b.  The property is not reasonably required to be held for
  5 35 investigatory reasons.
  6  1    c.  The property is the only reasonable means for a defendant
  6  2 to pay for legal representation in the forfeiture or criminal
  6  3 proceeding. At the court's discretion under paragraph "b", the
  6  4 court may order the return of funds or property sufficient to
  6  5 obtain legal counsel but less than the total amount seized, and
  6  6 require an accounting.
  6  7    8.  In lieu of ordering the issuance of the writ, the court
  6  8 may order the state to give security or written assurance for
  6  9 satisfaction of any judgment, including damages, that may be
  6 10 rendered in the action, or order other relief as may be just.
  6 11    Sec. 16.  NEW SECTION.  809B.16  Discovery.
  6 12    Discovery is subject to the rules of criminal procedure.
  6 13    Sec. 17.  NEW SECTION.  809B.17  Trial proceedings.
  6 14    The litigation related to the forfeiture of property shall
  6 15 be held in a single proceeding following the trial of the
  6 16 related alleged criminal offense.  The litigation of whether
  6 17 property of less than ten thousand dollars in value shall be
  6 18 forfeited shall be held before only a judge.
  6 19    Sec. 18.  NEW SECTION.  809B.18  Proportionality hearing.
  6 20    1.  At any time following determination by the trier of fact,
  6 21 the defendant may petition the court to determine whether the
  6 22 forfeiture is unconstitutionally excessive under the state or
  6 23 federal constitution.
  6 24    2.  The defendant has the burden of establishing the
  6 25 forfeiture is grossly disproportional to the seriousness of
  6 26 the offense by a preponderance of the evidence at a hearing
  6 27 conducted by the court without a jury.
  6 28    3.  In determining whether the forfeiture of an
  6 29 instrumentality is unconstitutionally excessive, the court may
  6 30 consider all relevant factors, including but not limited to all
  6 31 of the following:
  6 32    a.  The seriousness of the offense and the offense's impact
  6 33 on the community, including the duration of the activity and
  6 34 the harm caused by the defendant.
  6 35    b.  The extent to which the defendant participated in the
  7  1 offense.
  7  2    c.  The extent to which the property was used in committing
  7  3 the offense.
  7  4    d.  The sentence imposed for committing the offense subject
  7  5 to forfeiture.
  7  6    e.  Whether the offense was completed or attempted.
  7  7    4.  In determining the value of the instrumentality subject
  7  8 to forfeiture, the court may consider relevant factors,
  7  9 including but not limited to any of the following:
  7 10    a.  The fair market value of the property.
  7 11    b.  The value of the property to the defendant including
  7 12 hardship to the defendant if the forfeiture is realized.
  7 13    c.  The hardship from the loss of a motor vehicle or other
  7 14 property to the defendant's family members or others if the
  7 15 property is forfeited.
  7 16    5.  The court shall not consider the value of the
  7 17 instrumentality to the state in determining whether the
  7 18 forfeiture of an instrumentality is constitutionally excessive.
  7 19    Sec. 19.  NEW SECTION.  809B.19  Secured interest.
  7 20    1.  Property encumbered by a valid security interest or
  7 21 subject to a lease or rental agreement is not subject to
  7 22 forfeiture. A person claiming a security interest must
  7 23 establish by a preponderance of the evidence the validity
  7 24 of the perfected security interest, a lease, or a rental
  7 25 agreement.
  7 26    2.  The prosecuting authority shall summarily return
  7 27 property to the person with a valid security interest in the
  7 28 property, to the lessor, or to the person who is renting out
  7 29 the property.
  7 30    3.  If the person alleges a valid security interest or that
  7 31 the property is subject to a lease or rental agreement but
  7 32 the state seeks to proceed with the forfeiture against the
  7 33 property, the state shall prove by a preponderance of the
  7 34 evidence that the person had actual knowledge of the underlying
  7 35 offense giving rise to the forfeiture.
  8  1    Sec. 20.  NEW SECTION.  809B.20  Innocent owner.
  8  2    1.  The property of an innocent owner shall not be forfeited.
  8  3 Whether a person is an innocent owner shall be determined in
  8  4 accordance with this section.
  8  5    2.  A person who has an ownership interest in property
  8  6 subject to forfeiture existing at the time the illegal conduct
  8  7 giving rise to forfeiture occurred and who claims to be an
  8  8 innocent owner has the burden of proving by a preponderance
  8  9 of the evidence that the person has a legal right, title, or
  8 10 interest in the property seized under this chapter.
  8 11    3.  If subsection 2 is satisfied and the state seeks to
  8 12 proceed with the forfeiture against the property, the state
  8 13 shall prove by a preponderance of the evidence that the person
  8 14 had actual or constructive knowledge of the underlying offense
  8 15 giving rise to the forfeiture.
  8 16    4.  A person who acquired an ownership interest in property
  8 17 subject to forfeiture after the commission of an offense giving
  8 18 rise to the forfeiture and who claims to be an innocent owner
  8 19 has the burden of proving by a preponderance of the evidence
  8 20 that the person has legal right, title, or interest in the
  8 21 property seized under this chapter.
  8 22    5.  If subsection 4 is satisfied and the state seeks to
  8 23 proceed with the forfeiture against the property, the state
  8 24 shall prove by a preponderance of the evidence that at the time
  8 25 the person acquired the property any of the following applied:
  8 26    a.  The person had actual or constructive knowledge that the
  8 27 property was subject to forfeiture.
  8 28    b.  The person was not a bona fide purchaser without notice
  8 29 of any defect in title and for valuable consideration.
  8 30    6.  If the state fails to meet the state's burden in
  8 31 subsection 3 or 5, the court shall find that the person is an
  8 32 innocent owner and shall order the state to relinquish all
  8 33 claims of title to the property.
  8 34    7.  The suspect or convicted offender may invoke the right
  8 35 against self=incrimination or the marital privilege during
  9  1 the forfeiture=related stage of the prosecution. The trier
  9  2 of fact at the hearing may draw an adverse inference from the
  9  3 invocation of the right or privilege.
  9  4    Sec. 21.  NEW SECTION.  809B.21  Appeal.
  9  5    A party to forfeiture litigation may appeal the district
  9  6 court's decision regarding the seizure, forfeiture, and
  9  7 distribution of property under this chapter.
  9  8    Sec. 22.  NEW SECTION.  809B.22  Disposition of property and
  9  9 proceeds.
  9 10    1.  At any time when unclaimed property or contraband held
  9 11 for evidentiary purposes is no longer needed for that purpose,
  9 12 the court may order unclaimed property to be delivered to the
  9 13 treasurer of state within thirty days, or, in the case of
  9 14 contraband, be destroyed within thirty days.
  9 15    2.  If the forfeiture is granted, the court may order the
  9 16 property be delivered to the treasurer of state within thirty
  9 17 days.
  9 18    3.  Upon motion, the court may order that a portion of the
  9 19 currency seized or proceeds from public auction be used to pay
  9 20 reasonable nonpersonnel expenses of the seizure, storage, and
  9 21 maintenance of custody of any forfeited items.
  9 22    4.  All abandoned property shall be delivered to the
  9 23 treasurer of state within thirty days.
  9 24    5.  The treasurer of state shall dispose of all noncurrency
  9 25 forfeited property at public auction. The auction proceeds and
  9 26 forfeited currency shall first be used to pay all outstanding
  9 27 recorded liens on the forfeited property, then to comply with
  9 28 an order of the court to pay reasonable nonpersonnel expenses,
  9 29 with all remaining funds to be deposited in the general fund
  9 30 of the state.
  9 31    Sec. 23.  NEW SECTION.  809B.23  Prohibition on retaining
  9 32 property ==== sale restrictions.
  9 33    A law enforcement agency shall not retain forfeited property
  9 34 or sell forfeited property directly or indirectly to any
  9 35 employee of the agency, to a person related by consanguinity or
 10  1 affinity to an employee of the agency within the third degree,
 10  2 or to another law enforcement agency.
 10  3    Sec. 24.  NEW SECTION.  809B.24  Reporting.
 10  4    1.  On an annual basis, each law enforcement agency shall
 10  5 report to the department of revenue the following information
 10  6 about seizures and forfeitures completed by the law enforcement
 10  7 agency under state forfeiture law and federal forfeiture law:
 10  8    a.  The total number of seizures of currency.
 10  9    b.  The total number of seizures and the number of items in
 10 10 each class of property seized including vehicles, houses, and
 10 11 other types of property.
 10 12    c.  The market value of each class of property seized
 10 13 including currency, vehicles, houses, and other types of
 10 14 property.
 10 15    d.  The total number of occurrences of each class of offense
 10 16 underlying the forfeitures including controlled substances,
 10 17 driving while intoxicated, and other offenses.
 10 18    2.  The department of revenue may require that information
 10 19 not specified in this section also be reported. The department
 10 20 of revenue shall develop standard forms, processes, and
 10 21 deadlines for electronic data entry for annual submission of
 10 22 forfeiture data by law enforcement agencies.
 10 23    3.  Each law enforcement agency shall file with the
 10 24 department of revenue the report required under subsection
 10 25 1 for the law enforcement agency and the corresponding
 10 26 prosecutor's office. The law enforcement agency shall
 10 27 file separate reports for forfeitures completed under state
 10 28 forfeiture law and federal forfeiture law. A report shall be
 10 29 filed by a law enforcement agency even if the law enforcement
 10 30 agency did not engage in seizures or forfeitures during the
 10 31 reporting period. The department of revenue shall compile the
 10 32 submissions and issue an aggregate report of all forfeitures
 10 33 in the state.
 10 34    4.  By April 1 of each year, the department of revenue shall
 10 35 make available on the department's internet site the reports
 11  1 submitted by law enforcement agencies and the aggregate report
 11  2 prepared by the department under subsection 3.
 11  3    Sec. 25.  NEW SECTION.  809B.25  Return of property, damages,
 11  4 and costs.
 11  5    1.  The law enforcement agency that holds the property shall
 11  6 return property to the owner within a reasonable period of time
 11  7 not to exceed five days after any of the following:
 11  8    a.  The court finds that the owner has a bona fide security
 11  9 interest.
 11 10    b.  The court finds that the owner is an innocent owner.
 11 11    c.  The owner's acquittal of or the dismissal of the criminal
 11 12 charge that is the basis of the forfeiture proceedings.
 11 13    d.  The disposal of the criminal charge that is the basis of
 11 14 the forfeiture proceedings by nolle prosequi.
 11 15    2.  The law enforcement agency that holds the property is
 11 16 responsible for any damages, storage fees, and related costs
 11 17 applicable to property returned under subsection 1.
 11 18    Sec. 26.  NEW SECTION.  809B.26  Transfer of forfeitable
 11 19 property to federal government.
 11 20    A law enforcement agency, joint taskforce of any kind,
 11 21 or prosecuting authority shall not directly or indirectly
 11 22 transfer or refer seized property to any federal agency unless
 11 23 the seized property includes seized United States currency in
 11 24 excess of fifty thousand dollars.
 11 25    Sec. 27.  NEW SECTION.  809B.27  Preemption.
 11 26    This chapter preempts laws by county, city, township, and
 11 27 other tribal or local governments in the state which regulate
 11 28 civil and criminal forfeiture.
 11 29    Sec. 28.  Section 80.39, subsection 1, Code 2016, is amended
 11 30 to read as follows:
 11 31    1.  Personal property, except for motor vehicles subject to
 11 32 sale pursuant to section 321.89, and seizable property subject
 11 33 to disposition pursuant to chapter 809 or 809A, which personal
 11 34 property is found or seized by, turned in to, or otherwise
 11 35 lawfully comes into the possession of the department or a local
 12  1 law enforcement agency and which the department or agency does
 12  2 not own, shall be disposed of pursuant to this section. If by
 12  3 examining the property the owner or lawful custodian of the
 12  4 property is known or can be readily ascertained, the department
 12  5 or agency shall notify the owner or custodian by certified mail
 12  6 directed to the owner's or custodian's last known address, as
 12  7 to the location of the property. If the identity or address of
 12  8 the owner cannot be determined, notice by one publication in a
 12  9 newspaper of general circulation in the area where the property
 12 10 was found is sufficient notice. A published notice may contain
 12 11 multiple items.
 12 12    Sec. 29.  Section 123.9, subsection 7, Code 2016, is amended
 12 13 by striking the subsection.
 12 14    Sec. 30.  Section 321.232, subsection 3, Code 2016, is
 12 15 amended to read as follows:
 12 16    3.  A speed detection jamming device sold, operated, or
 12 17 possessed in violation of subsection 1 may be seized by a peace
 12 18 officer and is subject to forfeiture as provided by chapter 809
 12 19 or 809A.
 12 20    Sec. 31.  Section 321J.4B, subsections 6, 9, and 10, Code
 12 21 2016, are amended to read as follows:
 12 22    6.  Upon conviction of the defendant for a second
 12 23 or subsequent violation of subsection 2, paragraph "a",
 12 24 subparagraph (2), the court shall order, if the convicted
 12 25 person is the owner of the motor vehicle used in the commission
 12 26 of the offense, that that motor vehicle be seized and forfeited
 12 27 to the state pursuant to chapters 809 and 809A 809B.
 12 28    9.  Operating a motor vehicle on a street or highway in this
 12 29 state in violation of an order of impoundment or immobilization
 12 30 is a serious misdemeanor. A motor vehicle which is subject to
 12 31 an order of impoundment or immobilization that is operated on a
 12 32 street or highway in this state in violation of the order shall
 12 33 be seized and forfeited to the state under chapters 809 and
 12 34 809A 809B.
 12 35    10.  Once the period of impoundment or immobilization has
 13  1 expired, the owner of the motor vehicle shall have thirty
 13  2 days to claim the motor vehicle and pay all fees and charges
 13  3 imposed under this section. If the owner or the owner's
 13  4 designee has not claimed the vehicle and paid all fees and
 13  5 charges imposed under this section within seven days from the
 13  6 date of expiration of the period, the clerk shall send written
 13  7 notification to the motor vehicle owner, at the owner's last
 13  8 known address, notifying the owner of the date of expiration of
 13  9 the period of impoundment or immobilization and of the period
 13 10 in which the motor vehicle must be claimed. If the motor
 13 11 vehicle owner fails to claim the motor vehicle and pay all fees
 13 12 and charges imposed within the thirty=day period, the motor
 13 13 vehicle shall be forfeited to the state under chapters 809 and
 13 14 809A 809B.
 13 15    Sec. 32.  Section 321J.4B, subsection 12, paragraph a,
 13 16 subparagraph (2), Code 2016, is amended to read as follows:
 13 17    (2)  The holder of a security interest in a vehicle which
 13 18 is impounded or immobilized pursuant to this section or
 13 19 forfeited in the manner provided in chapters 809 and 809A
 13 20  809B shall be notified of the impoundment, immobilization,
 13 21 or forfeiture within seventy=two hours of the seizure of the
 13 22 vehicle and shall have the right to claim the motor vehicle
 13 23 without payment of any fees or surcharges unless the value of
 13 24 the vehicle exceeds the value of the security interest held by
 13 25 the creditor.
 13 26    Sec. 33.  Section 321J.10, subsection 7, Code 2016, is
 13 27 amended to read as follows:
 13 28    7.  Specimens obtained pursuant to warrants issued under
 13 29 this section are not subject to disposition under section 808.9
 13 30 or chapter 809 or 809A 809B.
 13 31    Sec. 34.  Section 455B.103, subsection 4, paragraph d,
 13 32 subparagraph (2), Code 2016, is amended to read as follows:
 13 33    (2)  In a reasonable manner, and any property seized shall be
 13 34 treated in accordance with the provisions of chapters 808, 809,
 13 35 and 809A 809B.
 14  1    Sec. 35.  Section 462A.14D, subsection 7, Code 2016, is
 14  2 amended to read as follows:
 14  3    7.  Specimens obtained pursuant to warrants issued under
 14  4 this section are not subject to disposition under section 808.9
 14  5 or chapter 809 or 809A 809B.
 14  6    Sec. 36.  Section 706A.3, subsection 3, paragraphs d and e,
 14  7 Code 2016, are amended to read as follows:
 14  8    d.  Ordering the payment of all reasonable costs and expenses
 14  9 of the investigation and prosecution of any violation, civil
 14 10 or criminal, including reasonable attorney fees in the trial
 14 11 and appellate courts. Such payments received by the state,
 14 12 by judgment, settlement, or otherwise, shall be considered
 14 13 forfeited property and disposed of pursuant to section 809A.17
 14 14 chapter 809B.
 14 15    e.  Ordering the forfeiture of any property subject to
 14 16 forfeiture under chapter 809A 809B, pursuant to the provisions
 14 17 and procedures of that chapter.
 14 18    Sec. 37.  Section 706A.3, subsection 4, Code 2016, is amended
 14 19 to read as follows:
 14 20    4.  Relief under subsection 3, paragraphs "e", "f", and
 14 21 "g", shall not be granted in civil proceedings instituted
 14 22 by an aggrieved person unless the prosecuting attorney has
 14 23 instituted the proceedings or intervened. In any action under
 14 24 this section brought by the state or in which the state has
 14 25 intervened, the state may employ any of the powers of seizure
 14 26 and restraint of property as are provided for forfeiture
 14 27 actions under chapter 809A 809B, or as are provided for the
 14 28 collection of taxes payable and past due, and whose collection
 14 29 has been determined to be in jeopardy.
 14 30    Sec. 38.  Section 706B.2, subsection 4, Code 2016, is amended
 14 31 to read as follows:
 14 32    4.  A person who is found guilty of a violation under this
 14 33 section also may be charged with violations of chapter 706A,
 14 34 and property involved in a violation under this chapter is
 14 35 subject to forfeiture under chapter 809A 809B.
 15  1    Sec. 39.  Section 715A.8, subsection 6, Code 2016, is amended
 15  2 to read as follows:
 15  3    6.  Any real or personal property obtained by a person as
 15  4 a result of a violation of this section, including but not
 15  5 limited to any money, interest, security, claim, contractual
 15  6 right, or financial instrument that is in the possession of the
 15  7 person, shall be subject to seizure and forfeiture pursuant to
 15  8 chapter 809A 809B.  A victim injured by a violation of this
 15  9 section, or a financial institution that has indemnified a
 15 10 victim injured by a violation of this section, may file a claim
 15 11 as an interest holder pursuant to section 809A.11 809B.15 for
 15 12 payment of damages suffered by the victim including costs of
 15 13 recovery and reasonable attorney fees.
 15 14    Sec. 40.  Section 716A.7, Code 2016, is amended to read as
 15 15 follows:
 15 16    716A.7  Forfeitures for violations of chapter.
 15 17    All property, including all income or proceeds earned but
 15 18 not yet received from a third party as a result of a violation
 15 19 of this chapter, used in connection with a violation of this
 15 20 chapter, known by the owner thereof to have been used in
 15 21 violation of this chapter, shall be subject to seizure and
 15 22 forfeiture pursuant to chapter 809A 809B.
 15 23    Sec. 41.  Section 724.26, subsection 4, Code 2016, is amended
 15 24 to read as follows:
 15 25    4.  Except as provided in section 809A.17, subsection 5,
 15 26 paragraph "b" chapter 809B, a court that issues an order or
 15 27 that enters a judgment of conviction described in subsection
 15 28 2 and that finds the subject of the order or conviction to be
 15 29 in possession of any firearm, offensive weapon, or ammunition
 15 30 shall order that such firearm, offensive weapon, or ammunition
 15 31 be sold or transferred by a date certain to the custody of a
 15 32 qualified person in this state, as determined by the court.
 15 33 The qualified person must be able to lawfully possess such
 15 34 firearm, offensive weapon, or ammunition in this state. If
 15 35 the court is unable to identify a qualified person to receive
 16  1 such firearm, offensive weapon, or ammunition, the court
 16  2 shall order that the firearm, offensive weapon, or ammunition
 16  3 be transferred by a date certain to the county sheriff or
 16  4 a local law enforcement agency designated by the court for
 16  5 safekeeping until a qualified person is identified to receive
 16  6 the firearm, offensive weapon, or ammunition, until such order
 16  7 is no longer in effect, until such conviction is vacated, or
 16  8 until the person's rights have been restored in accordance
 16  9 with section 724.27. If the firearm, offensive weapon, or
 16 10 ammunition is to be transferred to the sheriff's office or a
 16 11 local law enforcement agency, the court shall assess the person
 16 12 the reasonable cost of storing the firearm, offensive weapon,
 16 13 or ammunition, payable to the county sheriff or the local law
 16 14 enforcement agency.
 16 15    Sec. 42.  Section 809.5, subsection 1, paragraph f,
 16 16 subparagraph (1), Code 2016, is amended to read as follows:
 16 17    (1)  If the aggregate fair market value of the property is
 16 18 greater than five hundred dollars, forfeiture proceedings shall
 16 19 be initiated pursuant to the provisions of chapter 809A 809B.
 16 20 If the court does not order the property forfeited to the state
 16 21 in the forfeiture proceedings pursuant to chapter 809A 809B,
 16 22 the seizing agency shall become the owner of the property and
 16 23 may dispose of it in any reasonable manner.
 16 24    Sec. 43.  Section 809.12A, Code 2016, is amended to read as
 16 25 follows:
 16 26    809.12A  Appeals.
 16 27    An appeal from a denial of an application for the return
 16 28 of seized property or from an order for the return of seized
 16 29 property shall be made within thirty days after the entry of
 16 30 a judgment order. The appellant, other than the state, shall
 16 31 post a bond of a reasonable amount as the court may fix and
 16 32 approve, conditioned to pay all costs of the proceedings if the
 16 33 appellant is unsuccessful on appeal. The appellant, other than
 16 34 the state, may be required to post a supersedeas bond or other
 16 35 security, as the court finds to be reasonable, in order to stay
 17  1 the operation of a forfeiture order under section 809A.16
 17  2 chapter 809B.
 17  3    Sec. 44.  Section 809.15, Code 2016, is amended to read as
 17  4 follows:
 17  5    809.15  Combining proceedings.
 17  6    In cases involving seized property and property subject to
 17  7 forfeiture pursuant to section 809A.4 809B.3, the court may
 17  8 order that the proceedings be combined for purposes of this
 17  9 chapter.
 17 10    Sec. 45.  REPEAL.  Chapter 809A, Code 2016, is repealed.
 17 11                           EXPLANATION
 17 12 The inclusion of this explanation does not constitute agreement with
 17 13 the explanation's substance by the members of the general assembly.
 17 14    This bill relates to criminal asset forfeiture.
 17 15    Asset forfeiture is a process by which contraband and
 17 16 proceeds or instrumentalities related to criminal activity
 17 17 may be seized by the state and sold. Under current law,
 17 18 asset forfeiture is governed by Code chapter 809A.  The bill
 17 19 repeals Code chapter 809A and replaces it with new Code chapter
 17 20 809B.   Currently under Code chapter 809A, a conviction for a
 17 21 criminal offense is not required for an asset to be subject to
 17 22 forfeiture, and forfeiture need not be expressly authorized
 17 23 as a penalty in the criminal statute. The bill provides that
 17 24 property is not subject to forfeiture until a person has
 17 25 been convicted of a felony for which forfeiture is expressly
 17 26 authorized as a penalty.
 17 27    The bill exempts homestead real property, motor vehicles of
 17 28 less than $10,000 in market value, and United States currency
 17 29 totaling $200 or less from forfeiture.
 17 30    Current law requires the state to prove that property is
 17 31 subject to forfeiture by a preponderance of the evidence. The
 17 32 bill requires the state to prove, by clear and convincing
 17 33 evidence, that the property is forfeitable.
 17 34    The bill provides that a defendant is not jointly and
 17 35 severally liable for forfeiture awards owed by other
 18  1 defendants.
 18  2    The bill provides for a proportionality hearing, where
 18  3 the defendant may petition the court that the forfeiture is
 18  4 unconstitutionally excessive.
 18  5    The bill requires law enforcement agencies to provide annual
 18  6 reports to the department of revenue regarding forfeitures
 18  7 completed by the law enforcement agencies. The bill requires
 18  8 the department of revenue to prepare an annual report
 18  9 aggregating the results and to post the aggregate report on the
 18 10 department's internet site.
 18 11    The bill provides that new Code chapter 809B preempts laws by
 18 12 county, city, township, and other tribal and local governments
 18 13 in the state which regulate civil and criminal forfeiture.
 18 14    The bill makes conforming changes relating to the repeal of
 18 15 Code chapter 809A and new Code chapter 809B.
       LSB 5652SV (1) 86
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