Bill Text: IA SF446 | 2017-2018 | 87th General Assembly | Enrolled
Bill Title: A bill for an act relating to asset forfeiture by prohibiting civil asset forfeiture for property valued at less than a minimum amount, raising the standard of proof for asset forfeiture, requiring a proportionality review for property to be forfeited, and requiring law enforcement agencies to retain certain records related to asset forfeiture and including applicability provisions. (Formerly SSB 1148.) Effective 7-1-17.
Spectrum: Committee Bill
Status: (Passed) 2017-05-09 - Signed by Governor. S.J. 1136. [SF446 Detail]
Download: Iowa-2017-SF446-Enrolled.html
Senate File 446 - Enrolled
SENATE FILE
BY COMMITTEE ON JUDICIARY
(SUCCESSOR TO SSB
1148)
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A BILL FOR
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Senate File 446
AN ACT
RELATING TO ASSET FORFEITURE BY PROHIBITING CIVIL
ASSET FORFEITURE FOR PROPERTY VALUED AT LESS THAN A MINIMUM
AMOUNT, RAISING THE STANDARD OF PROOF FOR ASSET FORFEITURE,
REQUIRING A PROPORTIONALITY REVIEW FOR PROPERTY TO BE
FORFEITED, AND REQUIRING LAW ENFORCEMENT AGENCIES TO RETAIN
CERTAIN RECORDS RELATED TO ASSET FORFEITURE AND INCLUDING
APPLICABILITY PROVISIONS.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
Section 1. Section 809A.1, Code 2017, is amended by adding
the following new subsections:
NEW SUBSECTION. 01. "Convicted" or "conviction" includes
a finding of guilt, a plea of guilty, deferred judgment,
deferred or suspended sentence, adjudication of delinquency,
or circumstances where a person is not charged with a criminal
offense that is a serious or aggravated misdemeanor or felony
related to the action for forfeiture based in whole or in part
on the person's cooperation in providing information regarding
the criminal activity of another person.
NEW SUBSECTION. 001. "Instrumentality" means property
otherwise lawful to possess that is used in or intended to be
used in a public offense.
NEW SUBSECTION. 1A. "Minimum civil forfeiture amount" means
five thousand dollars.
Sec. 2. Section 809A.5, subsection 2, paragraph b, Code
2017, is amended to read as follows:
b. The owner or interest holder is criminally responsible
for the conduct giving rise to its forfeiture, whether or not
the owner or interest holder is prosecuted or convicted. If
the forfeiture is for property valued at less than the minimum
civil forfeiture amount, the owner or interest holder must also
be convicted of the criminal offense for the conduct giving
rise to forfeiture.
Sec. 3. Section 809A.8, subsection 1, paragraph a,
subparagraph (2), Code 2017, is amended to read as follows:
(2) File a judicial forfeiture proceeding within ninety
days after notice of pending forfeiture of property upon which
a proper claim has been timely filed pursuant to section
809A.11, or, if the value of the property is less than the
minimum civil forfeiture amount, file a judicial forfeiture
proceeding within ninety days after the conclusion of the
criminal prosecution.
Sec. 4. Section 809A.8, subsection 1, paragraph d,
unnumbered paragraph 1, Code 2017, is amended to read as
follows:
If a petition is timely filed, the prosecuting attorney may
delay filing a judicial forfeiture proceeding for one hundred
eighty days after the notice of pending forfeiture, or, if the
value of the property is less than the minimum civil forfeiture
amount, one hundred eighty days after the conclusion of the
criminal prosecution, and the following procedures shall apply:
Sec. 5. Section 809A.12, subsections 6, 7, and 14, Code
2017, are amended to read as follows:
6. A defendant convicted in any whose criminal proceeding
results in a conviction is precluded from later denying the
essential allegations of the criminal offense of which the
defendant was convicted in any proceeding pursuant to this
section. For the purposes of this section, a conviction
results from a verdict or a plea of guilty. A defendant
whose conviction is overturned on appeal may file a motion to
correct, vacate, or modify a judgment of forfeiture under this
subsection.
7. In any proceeding under this chapter, if a claim is based
on an exemption provided for in this chapter, the burden of
proving the existence of the exemption is on the claimant must
make a prima facie showing of the existence of the exemption.
However, once the claimant comes forward with some evidence
supporting the existence of the exemption, the state The
prosecuting attorney must provide some evidence to negate the
assertion of the then prove by clear and convincing evidence
that the exemption does not apply. The state's evidence must
be substantial, though not necessarily rising to the level of a
preponderance of the evidence, and more than a simple assertion
of the claimant's interest in the property. The agency or
political subdivision bringing the forfeiture action shall
pay the reasonable attorney fees and costs, as determined by
the court, incurred by a claimant who prevails on a claim for
exemption in a proceeding under this chapter.
14. An acquittal or dismissal in a criminal proceeding shall
not preclude civil proceedings under this chapter if the value
of the property to be forfeited is equal to or exceeds the
minimum civil forfeiture amount.
Sec. 6. Section 809A.12, Code 2017, is amended by adding the
following new subsection:
NEW SUBSECTION. 7A. The prosecuting attorney must prove
by clear and convincing evidence that the property is property
subject to forfeiture.
Sec. 7. Section 809A.12, subsection 10, paragraph a, Code
2017, is amended to read as follows:
a. The If the property to be forfeited is equal to or
exceeds the minimum civil forfeiture amount, that the person
has engaged in conduct giving rise to forfeiture. If the
property to be forfeited is less than the minimum civil
forfeiture amount, that the person was convicted for the
conduct giving rise to forfeiture.
Sec. 8. NEW SECTION. 809A.12A Limitations on civil
forfeiture.
1. If the total value of the property seized for forfeiture
is less than the minimum civil forfeiture amount, a judicial
forfeiture proceeding shall not be brought unless one of the
following applies:
a. The conduct giving rise to forfeiture resulted in a
conviction.
b. The property owner is deceased.
c. Charges have been filed against the property owner, a
warrant was issued for the arrest of the property owner, and
either of the following applies:
(1) The property owner is outside the state and is unable to
be extradited or brought back to the state for prosecution.
(2) Law enforcement has made reasonable efforts to locate
and arrest the property owner, but the property owner has not
been located.
d. The property owner has not claimed the property subject
to forfeiture or asserted any interest in the property at any
time during or after the seizure of the property, and all
claims brought under section 809A.11 have been denied.
2. The prosecuting attorney has the burden to prove by
clear and convincing evidence that the value of the property
is or exceeds the minimum civil forfeiture amount in any civil
action.
Sec. 9. NEW SECTION. 809A.12B Proportionality review.
1. Property shall not be forfeited as an instrumentality
under this chapter to the extent that the amount or value of
the property is grossly disproportionate to the severity of the
offense.
2. Contraband and any proceeds obtained from the offense are
not subject to proportionality review under this section.
Sec. 10. Section 809A.13, subsections 7 and 8, Code 2017,
are amended to read as follows:
7. The forfeiture hearing shall be held without a jury
and within sixty days after service of the complaint unless
continued for good cause. The prosecuting attorney shall
have the initial burden of proving by clear and convincing
evidence that the property is subject to forfeiture by a
preponderance of the evidence. If the state so proves the
property is subject to forfeiture, the claimant has the burden
of proving may assert that the claimant has an interest in the
property which is exempt from forfeiture under this chapter by
a preponderance of the evidence. If the claimant asserts and
makes a prima facie showing of the existence of the exemption,
the prosecuting attorney then has the burden of proving by
clear and convincing evidence that the exemption does not
apply.
8. The court shall order the interest in the property
returned or conveyed to the claimant if the prosecuting
attorney fails to meet the state's burden or the claimant
establishes by a preponderance of the evidence that the
claimant has an interest that is exempt from forfeiture. The
court shall order all other property forfeited to the state and
conduct further proceedings pursuant to sections 809A.16 and
809A.17.
Sec. 11. Section 809A.14, subsection 7, paragraph d, Code
2017, is amended to read as follows:
d. In accordance with the findings made at the hearing, the
court may amend the order of forfeiture if it determines that
any claimant has established by a preponderance of the evidence
that the claimant has properly petitioned for recognition
of exemption under section 809A.11 and that the prosecuting
attorney has not shown, by clear and convincing evidence, that
the claimant does not have an interest in the property which is
exempt under the provisions of section 809A.5.
Sec. 12. Section 809A.15, subsection 1, unnumbered
paragraph 1, Code 2017, is amended to read as follows:
The court shall order the forfeiture of any other property
of a person, including a claimant, up to the value of
that person's property found by the court to be subject to
forfeiture under this chapter, if the prosecuting attorney
proves by clear and convincing evidence that any of the
following applies to the person's forfeitable property:
Sec. 13. Section 809A.16, subsection 2, Code 2017, is
amended to read as follows:
2. Within one hundred eighty days of the date of a
declaration of forfeiture, an owner or interest holder in
property declared forfeited pursuant to subsection 1 may
petition the court to have the declaration of forfeiture set
aside, after making a prima facie showing that the state failed
to serve proper notice as provided by section 809A.13. Upon
such a showing the court shall allow the state to demonstrate
by a preponderance of the clear and convincing evidence that
notice was properly served. If the state fails to meet
its burden of proof, the court may order the declaration of
forfeiture set aside. The state may proceed with judicial
proceedings pursuant to this chapter.
Sec. 14. NEW SECTION. 809A.18A Recordkeeping.
1. Each law enforcement agency that has custody of any
property that is subject to this chapter shall adopt and comply
with a written internal control policy that does all of the
following:
a. Provides for keeping detailed records as to the amount
of property acquired by the agency and the date property was
acquired.
b. Provides for keeping detailed records of the disposition
of the property, which shall include but not be limited to all
of the following:
(1) The manner in which the property was disposed, the
date of disposition, and detailed financial records concerning
any property sold. The records shall not identify or enable
identification of the individual officer who seized any item of
property or the name of any person or entity who received any
item of property.
(2) An itemized list of the specific expenditures made
with amounts that are gained from the sale of the property and
that are retained by the agency, including the specific amount
expended on each expenditure, except that the policy shall
not provide for or permit the identification of any specific
expenditure that is made in an ongoing investigation.
2. The records kept under the internal control policy
shall be open to public inspection during the agency's regular
business hours. The policy adopted under this section is a
public record open for inspection under chapter 22.
Sec. 15. APPLICABILITY. This Act applies to forfeiture
proceedings that begin on or after the effective date of this
Act.
JACK WHITVER
LINDA UPMEYER
W. CHARLES SMITH
TERRY E. BRANSTA
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