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[Utah Code Table of Contents]
[TITLE 24. Table of Contents]
24-1-1 Title.
This chapter is known as the "Utah Uniform Forfeiture
Procedures Act."
2002
24-1-2 Purpose.
It is the intent of this chapter to:
(1) provide a uniform set of procedures and substantive standards for the criminal and civil forfeiture of property within the state of Utah;
(2) permit law enforcement personnel to deter crime by lawfully seizing and forfeiting contraband and the instrumentalities and proceeds of criminal conduct;
(3) protect innocent owners and innocent interest holders from the forfeiture of their property;
(4) ensure that seizures and forfeitures of property from private citizens are in proportion to the violation or crime committed;
(5) ensure direct control and accountability over the use and sale of forfeited property and the revenue resulting from the disposal of forfeited property;
(6) ensure the revenue resulting from property forfeiture allows continued:
(a) law enforcement, crime prevention, and drug courts; and
(b) other appropriate activities related to the functions under Subsection (6)(a);
(7) maximize the benefits of, and accountability for, federal asset forfeiture sharing for the citizens of the state; and
(8) direct that any and all revenues resulting from the
sale of forfeited property be allocated to the Utah Commission
on Criminal and Juvenile Justice for grants to state and
local law enforcement agencies according to specified guidelines.
2004
24-1-3 Definitions.
As used in this section:
(1) "Account" means the Criminal Forfeiture Restricted Account created in Section 24-1-18 .
(2) "Agency" means any agency of municipal, county, or state government, including law enforcement agencies, law enforcement personnel, and multi-jurisdictional task forces.
(3) "Claimant" means:
(a) any owner of property as defined in this section;
(b) any interest holder as defined in this section; and
(c) any other person or entity who asserts a claim to any property seized for forfeiture under this section.
(4) "Complaint" means a civil complaint seeking the forfeiture of any real or personal property pursuant to this chapter.
(5) "Constructive seizure" means a seizure of property where the property is left in the control of the owner and the seizing agency posts the property with notice of seizure by that agency for forfeiture.
(6) "Contraband" means any property, item, or substance which is unlawful to produce or to possess under state or federal law.
(7) (a) "Innocent owner" means an owner or interest holder who held an ownership interest in property at the time the conduct subjecting the property to seizure occurred, and:
(i) did not have actual knowledge of the conduct subjecting the property to seizure; or
(ii) upon learning of the conduct subjecting the property to seizure, took reasonable steps to prohibit the illegal use of the property.
(b) "Innocent owner" means an owner or interest holder who acquired an ownership interest in the property and who had no knowledge that the illegal conduct subjecting the property to seizure had occurred or that the property had been seized for forfeiture, and:
(i) acquired the property in a bona fide transaction for value;
(ii) was a person, including a minor child, who acquired an interest in the property through probate or inheritance; or
(iii) was a spouse who acquired an interest in property through dissolution of marriage or by operation of law.
(8) (a) "Interest holder" means a secured party as defined in Subsection 70A-9a-102 (72), a mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to an interest in property, whose interest would be perfected against a good faith purchaser for value.
(b) "Interest holder" does not mean a person who holds property for the benefit of or as an agent or nominee for another person, or who is not in substantial compliance with any statute requiring an interest in property to be recorded or reflected in public records in order to perfect the interest against a good faith purchaser for value.
(9) "Legal costs" means the costs and expenses incurred by the prosecuting agency, not to exceed 20% of the net value of the forfeited property.
(10) "Legislative body" means:
(a) (i) the state Legislature, county commission, county council, city commission, city council, or town council that has fiscal oversight and budgetary approval authority over a seizing agency; or
(ii) the seizing agency's governing political subdivision; or
(b) the lead governmental entity of a multijurisdictional task force, as designated in a memorandum of understanding executed by the agencies participating in the task force.
(11) "Multijurisdictional task force" means a law enforcement task force or other agency comprised of persons who are employed by or acting under the authority of different governmental authorities, including federal, state, county or municipal governments, or any combination of these agencies.
(12) "Owner" means any person or entity, other than an interest holder as defined in this section, that possesses a bona fide legal or equitable interest in real or personal property.
(13) "Program" means the Crime Reduction Assistance Program created in Section 24-1-19 .
(14) "Property" means all property, whether real or personal, tangible or intangible.
(15) "Prosecuting attorney" means:
(a) the state attorney general and any assistant attorney general;
(b) any district attorney or deputy district attorney; and
(c) any county attorney or assistant county attorney;
(d) any other attorney authorized to commence an action on behalf of the state under this chapter or other provisions of state law.
(16) "Seize for forfeiture" means seizure of property:
(a) by a law enforcement officer or law enforcement agency, including a constructive seizure; and
(b) accompanied by an assertion by the officer or agency
or by a prosecuting attorney that the property is seized
for forfeiture in accordance with this chapter.
2004
24-1-3.5 Jurisdiction and venue.
(1) A state district court has jurisdiction over any action filed in accordance with this chapter regarding:
(a) all interests in property if the property for which forfeiture is sought is within this state at the time the action is filed; and
(b) the interests of owners or interest holders in the property, if the owner or interest holder is subject to the personal jurisdiction of the district court.
(2) (a) In addition to the venue provided for under Title 78, Chapter 13, Place of Trial-Venue, or any other provisions of law, a proceeding for forfeiture under this chapter may be maintained in the judicial district in which:
(i) any part of the property is found; or
(ii) a civil or criminal action could be maintained against an owner or interest holder for the conduct alleged to give cause for the forfeiture.
(b) A claimant may obtain a change of venue under Section
78-13-9
.
2004
24-1-4 Civil Procedures.
(1) An agency which seizes property under any provision of state law subjecting the property to forfeiture shall, as soon as practicable, but in no case more than 30 days after seizure:
(a) prepare a detailed inventory of all property seized and transfer the seized property to a designated official within the agency, who shall be responsible for holding and maintaining seized property pending a court order of release or final determination of forfeiture and disposition of property under this chapter;
(b) notify the prosecuting attorney for the appropriate jurisdiction who is responsible for initiating forfeiture proceedings under this chapter of the items of property seized, the place of the seizure and any persons arrested at the time of seizure; and
(c) give written notice to all owners and interest holders known, or reasonably discoverable after due diligence, of:
(i) the date of the seizure and the property seized;
(ii) the owner's or interest holder's rights and obligations under this chapter, including the availability of hardship relief in appropriate circumstances; and
(iii) a brief description of the statutory basis for the forfeiture and the judicial proceedings by which property is forfeited under this chapter.
(2) (a) If the seizing agency fails to provide notice as required in Subsection (1), an owner or interest holder entitled to notice who does not receive notice may void the forfeiture with respect to the owner's or interest holder's interest in the property by bringing a motion before the appropriate district court and serving it upon the seizing agency. The motion may be brought at any time prior to the final disposition of the property under this chapter.
(b) If an owner or interest holder brings a motion to void the forfeiture for lack of the notice required under Subsection (1), the court shall void the forfeiture unless the seizing agency demonstrates:
(i) good cause for the failure to give notice to that owner; or
(ii) that the owner otherwise had actual notice of the seizure.
(3) (a) Within 60 days of any seizure, the prosecuting attorney shall file a complaint for forfeiture in the appropriate district court and serve a summons and notice of intent to seek forfeiture with a copy of the complaint upon all owners and interest holders known to the prosecuting attorney to have an interest in the property. Service shall be by one of the following methods:
(i) if the owner's or interest holder's name and current address are known, either by personal service by any person qualified to serve process, by a law enforcement officer, or by certified mail, return receipt requested, to that address;
(ii) if the owner's or interest holder's name and address are required by law to be on record with any state agency in order to perfect an interest in property and the owner's or interest holder's current address is not known, by mailing a copy of the notice by certified mail, return receipt requested, to the most recent address listed by any of those agencies; or
(iii) if the owner's or interest holder's address is not known and is not on record as provided in Subsection (3)(a)(i) or (ii), by publication for two successive weeks in a newspaper of general circulation in the county in which the seizure occurred.
(b) Notice is effective upon the earlier of personal service, publication, or the mailing of a written notice.
(c) The summons and notice of intent to seek forfeiture shall:
(i) be addressed to the known owners and interest holders of the seized property, and to the person from whom the property was seized;
(ii) contain the name, business address, and business telephone number of the prosecuting attorney seeking the forfeiture; and
(iii) contain:
(A) a description of the property which is the subject matter of the forfeiture proceeding;
(B) notice that a complaint for forfeiture has been or will be filed;
(C) the time and procedural requirements for filing an answer or claim;
(D) notice of the availability of hardship or bond release of the property; and
(E) notice that failure to file an answer or other claim regarding the seized property will result in a default judgment against the seized property.
(d) The complaint shall describe with reasonable particularity:
(i) the property which is the subject matter of the forfeiture proceeding;
(ii) the date and place of seizure; and
(iii) the allegations which constitute a basis for forfeiture.
(4) (a) If the prosecuting attorney does not timely file a complaint for forfeiture of the property in accordance with Subsection (3), the agency shall promptly return the property to its owner and the prosecuting attorney may take no further action to effect the forfeiture of the property.
(b) If the agency knows of more than one owner, it shall return the property to the owner who was in possession at the time of the seizure.
(5) (a) In any case where the prosecuting attorney files a complaint for forfeiture of property, an owner or interest holder may file a claim and an answer to the complaint.
(b) The claim and answer shall be filed within 30 days after the complaint is served in person or by mail, or where applicable, within 30 days after publication under Subsection (3).
(6) (a) Except as otherwise provided in this chapter, forfeiture proceedings are governed by the Utah Rules of Civil Procedure.
(b) The court shall take all reasonable steps to expedite forfeiture proceedings and shall give these proceedings the same priority as is given to criminal cases.
(c) In all suits or actions brought for the civil forfeiture of any property under this chapter, the burden of proof is on the prosecuting attorney to establish, by clear and convincing evidence, to what extent, if any, property is subject to forfeiture.
(d) The right to trial by jury applies to forfeiture proceedings
under this chapter.
2004
24-1-5 No bond required in civil cases.
Any person may assert an interest in seized property or
file an answer to a complaint for civil forfeiture without
posting bond with respect to the property which is the subject
of the seizure or forfeiture action.
2000
24-1-6 Innocent owners.
(1) An innocent owner's or interest holder's interest in property may not be forfeited under any provision of state law.
(2) The prosecuting attorney has the burden of establishing by clear and convincing evidence that an owner or interest holder:
(a) is criminally responsible for the conduct giving rise to the forfeiture, subject to Subsection (4);
(b) knew of the conduct giving rise to the forfeiture, and allowed the property to be used in furtherance of the conduct;
(c) acquired the property with notice of its actual or constructive seizure for forfeiture under this chapter;
(d) acquired the property knowing the property was subject to forfeiture under this chapter; or
(e) acquired the property in an effort to conceal, prevent, hinder, or delay its lawful seizure or forfeiture under any provision of state law.
(3) For purposes of this chapter, an owner or interest holder may not be required to take steps that he reasonably believes would be likely to result in physical harm or danger to any person. An owner or interest holder may demonstrate that he took reasonable action to prohibit the illegal use of the property by, for example:
(a) timely notifying a law enforcement agency of information that led the owner to know that conduct subjecting the property to seizure would occur, was occurring, or has occurred;
(b) timely revoking or attempting to revoke permission for those engaging in the illegal conduct to use the property; or
(c) taking reasonable actions to discourage or prevent the illegal use of the property.
(4) If the state relies on Subsection (2)(a) to establish that a person is not an innocent owner or interest holder, and if the owner or the interest holder is criminally charged with the conduct giving rise to the forfeiture and is acquitted of that charge on the merits:
(a) the property subject to the forfeiture or the value of the property, if the property has been disposed of under Subsection 24-1-7 (15), shall be returned to the owner or interest holder; and
(b) any payments required under this chapter regarding holding the property shall be paid to the owner or interest holder.
(5) No owner may assert, under this section, an ownership interest in contraband.
(6) Property is presumed to be subject to forfeiture under this chapter if the prosecuting attorney establishes, by clear and convincing evidence, that:
(a) the owner or interest holder has engaged in conduct giving cause for forfeiture;
(b) the property was acquired by the owner or interest holder during that period of the conduct giving cause for forfeiture or within a reasonable time after that period; and
(c) there was no likely source for the purchase or acquisition of the property other than the conduct giving cause for forfeiture.
(7) A finding that property is the proceeds of conduct
giving cause for forfeiture does not require proof that the
property was the proceeds of any particular exchange or transaction.
2004
24-1-7 Hardship release of seized property.
(1) After property is seized for forfeiture, a person or entity may not alienate, convey, sequester, or attach that property until the court issues a final order of dismissal or an order of forfeiture regarding the property.
(2) The seizing agency or the prosecuting attorney may authorize the release of property seized for forfeiture to its owner if retention of actual custody is unnecessary.
(3) With the consent of a court of competent jurisdiction, the prosecuting attorney may discontinue forfeiture proceedings and transfer the action to another state or federal agency which has initiated forfeiture proceedings involving the same property.
(4) Property seized for forfeiture is considered to be in the custody of the district court and subject only to:
(a) the orders and decrees of the court having jurisdiction over the property or the forfeiture proceedings; and
(b) the acts of the seizing agency or the prosecuting attorney pursuant to this chapter.
(5) (a) An owner of property seized pursuant to this chapter may obtain release of the property by posting with the district court a surety bond or cash in an amount equal to the current fair market value of the property as determined by the court or by the parties' stipulation.
(b) The district court may refuse to order the release of the property if:
(i) the bond tendered is inadequate;
(ii) the property is contraband or is retained as evidence; or
(iii) the property is particularly altered or designed for use in conduct giving cause for forfeiture.
(c) If a surety bond or cash is posted and the property seized and then released on a bond or cash is forfeited, the court shall order the forfeiture of the surety bond or cash in lieu of the property.
(6) (a) As soon as practicable after seizure for forfeiture, and in no case later than 30 days after seizure for forfeiture, the seizing agency shall conduct a written inventory of the property seized.
(b) The seizing agency shall deposit property that is in the form of cash or other readily negotiable instruments into a restricted account maintained by the agency solely for the purpose of managing and protecting the property from commingling, loss, or devaluation during the pendency of the forfeiture proceedings.
(c) The seizing agency shall have in place written policy for the identification, tracking, management, and safekeeping of seized property, which shall include a prohibition against the transfer, sale, or auction of forfeited property to any employee of the seizing agency.
(d) An agency may not be awarded any funds from forfeiture through the Crime Reduction Assistance Program under Section 24-1-19 if the agency has not established or maintained the inventory policy, restricted account, and written policies required by this Subsection (6).
(7) An owner is entitled to the immediate release of seized property from the seizing agency pending the final determination of forfeiture if:
(a) the owner had a possessory interest in the property at the time of seizure;
(b) continued possession by the agency or the state pending the final disposition of the forfeiture proceedings will cause substantial hardship to the owner, such as:
(i) preventing the functioning of a legitimate business;
(ii) preventing any individual from working;
(iii) preventing any minor child or student from attending school;
(iv) preventing or hindering any person from receiving necessary medical care;
(v) hindering the care of an elderly or disabled dependent child or adult;
(vi) preventing an owner from retaining counsel to provide a defense in the forfeiture proceeding; or
(vii) leaving any individual homeless, or any other condition that the court determines causes a substantial hardship;
(c) the hardship from the continued possession by the agency of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the owner during the pendency of the proceeding; and
(d) determination of substantial hardship under this Subsection (7) is based upon the property's use prior to the seizure.
(8) The right to appointed counsel under Section 24-1-9 applies throughout civil forfeiture proceedings, including an owner's motion for hardship release.
(9) An owner may file a motion for hardship release:
(a) in the court in which forfeiture proceedings have commenced; or
(b) in any district court having jurisdiction over the property, if forfeiture proceedings have not yet commenced.
(10) The motion for hardship release shall also be served upon the prosecuting attorney or the seizing agency within ten days after filing the motion.
(11) The court shall render a decision on a motion for hardship filed under this section not later than 20 days after the date of filing, or ten days after service upon the prosecuting attorney or seizing agency, whichever is earlier, unless this period is extended by the parties or by the court for good cause shown.
(12) (a) If the owner demonstrates substantial hardship pursuant to this section, the court shall order the property immediately released to the owner pending completion of proceedings by the government to obtain forfeiture of the property.
(b) The court may place conditions on release of the property as it finds necessary and appropriate to preserve the availability of the property or its equivalent for forfeiture.
(13) The hardship release does not apply if the seized property is:
(a) contraband;
(b) currency or other monetary instrument or electronic funds, unless the property is used to pay for the reasonable costs of defending against the forfeiture proceeding or constitutes the assets of a legitimate business; or
(c) likely to be used to commit additional illegal acts if returned to the owner.
(14) (a) The court may order property which has been seized for forfeiture to be sold as allowed by Subsection (15), leased, rented, or operated to satisfy a specified interest of any owner or interest holder, or to preserve the interests of any party on motion of that party.
(b) The court may enter orders under Subsection (14)(a) after notice to persons known to have an interest in the property, and after an opportunity for a hearing.
(15) (a) A sale may be ordered under Subsection (14) when the property is liable to perish, waste, or be significantly reduced in value, or when the expenses of maintaining the property are disproportionate to its value.
(b) A third party designated by the court shall dispose of the property by commercially reasonable public sale and distribute the proceeds in the following order of priority:
(i) first, for the payment of reasonable expenses incurred in connection with the sale;
(ii) second, for the satisfaction of any interests, including those of interest holders, in the order of their priority as determined by Title 70A, Uniform Commercial Code; and
(iii) third, any balance of the proceeds shall be preserved
in the actual or constructive custody of the court, in an
interest-bearing account, subject to further proceedings
under this chapter.
2004
24-1-8 Criminal procedures.
(1) In cases where an owner is criminally prosecuted for conduct giving rise to forfeiture, the prosecuting attorney may elect to forfeit the owner's interest in the property civilly or criminally, provided that no civil forfeiture judgment may be entered with respect to the property of a defendant who is acquitted of the offense on which the forfeiture claim is based.
(2) If the prosecuting attorney elects to criminally forfeit the owner's interest in the property, the information or indictment must state that the owner's interest in the specifically described property is subject to criminal forfeiture and the basis for the forfeiture.
(3) (a) Upon application of the prosecuting attorney, the court may enter restraining orders or injunctions, or take other reasonable action to preserve for forfeiture under this section any forfeitable property if, after notice to persons known, or discoverable after due diligence, to have an interest in the property and after affording them an opportunity for a hearing, the court determines that:
(i) there is a substantial probability that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property being sold, transferred, destroyed or removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property or prevent its sale, transfer, destruction or removal through the entry of the requested order outweighs the hardship against any party against whom the order is to be entered.
(b) A temporary restraining order may be entered ex parte upon application of the prosecuting attorney before or after an information or indictment has been filed with respect to the property, if the prosecuting attorney demonstrates that:
(i) there is probable cause to believe that the property with respect to which the order is sought would, in the event of a conviction, be subject to forfeiture under this section; and
(ii) provision of notice would jeopardize the availability of the property for forfeiture or would jeopardize an ongoing criminal investigation.
(c) The temporary order expires not more than ten days after entry unless extended for good cause shown or unless the party against whom it is entered consents to an extension. An adversarial hearing concerning an order entered under this paragraph shall be held as soon as practicable and prior to the expiration of the temporary order.
(d) The court is not bound by the Utah Rules of Evidence regarding evidence it may receive and consider at any hearing under this paragraph.
(4) (a) Upon conviction by a jury of an owner for conduct giving rise to criminal forfeiture, the jury shall be instructed and asked to return a special verdict as to the extent of the property identified in the information or indictment, if any, that is forfeitable.
(b) Whether property is forfeitable shall be proven beyond a reasonable doubt.
(5) Upon conviction of a person for violating any provision of state law subjecting an owner's property to forfeiture and upon the jury's special verdict that the property is forfeitable, the court shall enter a judgment and order the property forfeited to the state treasurer upon the terms stated by the court in its order. Following the entry of an order declaring property forfeited, the court may, upon application of the prosecuting attorney, enter appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the interest of the state in property ordered forfeited.
(6) (a) After property is ordered forfeited under this section, the state treasurer shall direct the disposition of the property under Section 24-1-16 . Any property right or interest not exercisable by or transferable for value to the state expires and does not revert to the defendant. The defendant or any person acting in concert with or on behalf of the defendant is not eligible to purchase forfeited property at any sale held by the state treasurer unless approved by the judge.
(b) The court may stay the sale or disposition of the property pending the conclusion of any appeal of the criminal case giving rise to the forfeiture if the defendant demonstrates that proceeding with the sale or disposition of the property may result in irreparable injury, harm or loss to him.
(7) Except under Subparagraphs (3) or (10), a party claiming an interest in property subject to criminal forfeiture under this section:
(a) may not intervene in a trial or appeal of a criminal case involving the forfeiture of property under this section; and
(b) may not commence an action at law or equity against the state or the county concerning the validity of his alleged interests in the property subsequent to the filing of an indictment or an information alleging that the property is subject to forfeiture under this section.
(8) The district court of the state which has jurisdiction of a case under this part may enter orders under this section without regard to the location of any property which may be subject to forfeiture under this section, or which has been ordered forfeited under this section.
(9) To facilitate the identification or location of property declared forfeited and to facilitate the disposition of petitions for remission or mitigation of forfeiture, after the entry of an order declaring property forfeited to the state treasurer, the court, may upon application of the prosecuting attorney, order that the testimony of any witness relating to the property forfeited be taken by deposition, and that any book, paper, document, record, recording, or other material not privileged shall be produced as provided for depositions and discovery under the Utah Rules of Civil Procedure.
(10) (a) Following the entry of an order of forfeiture under this section, the prosecuting attorney shall publish notice of the order's intent to dispose of the property as the court may direct. The prosecuting attorney shall also provide direct written notice to any person known to have an alleged interest in the property subject to the order of forfeiture.
(b) Any person, other than the defendant, asserting a legal interest in property which has been ordered forfeited to the state treasurer under this section may, within 30 days of the final publication of notice or his receipt of written notice under Subparagraph (a), whichever is earlier, petition the court for a hearing to adjudicate the validity of his alleged interest in the property. Any genuine issue of material fact, including issues of standing, is triable to a jury upon demand of any party.
(c) The petition shall be in writing and signed by the petitioner under penalty of perjury. It shall set forth the nature and extent of the petitioner's right, title, or interest in the property, the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property, and any additional facts supporting the petitioner's claim and the relief sought.
(d) The trial or hearing on the petition shall be expedited to the extent practicable. The court may consolidate a trial or hearing on the petition and any petition filed by any other person under this section other than the defendant. The court shall permit the parties to conduct pretrial discovery pursuant to the Utah Rules of Civil Procedure.
(e) At the trial or hearing, the petitioner may testify and present evidence and witnesses on his own behalf and cross-examine witnesses who appear at the hearing. The prosecuting attorney may present evidence and witnesses in rebuttal and in defense of the claim to the property and cross-examine witnesses who appear. In addition to testimony and evidence presented at the trial or hearing, the court may consider the relevant portion of the record of the criminal case which resulted in the order of forfeiture. Any trial or hearing shall be conducted pursuant to the Utah Rules of Evidence.
(f) The court shall amend the order of forfeiture in accordance with its determination, if after the trial or hearing, the court or jury determines that the petitioner has established by a preponderance of the evidence that:
(i) the petitioner has a legal right, title, or interest in the property, and the right, title, or interest renders the order of forfeiture invalid in whole or in part because the right, title, or interest was vested in the petitioner rather than the defendant or was superior to any right, title, or interest of the defendant at the time of the commission of the acts or conduct which gave rise to the forfeiture of the property under this section; or
(ii) the petitioner acquired the right, title or interest in the property in a bona fide transaction for value and, at the time of such acquisition, the petitioner did not know that the property was subject to forfeiture.
(g) Following the court's disposition of all petitions
filed under this paragraph, or if no petitions are filed
following the expiration of the period provided in Subparagraph
(b) for the filing of petitions, the state treasurer has
clear title to property subject to the order of forfeiture
and may warrant good title to any subsequent purchaser or
transferee.
2002
24-1-9 Appointment of counsel for indigent claimants in civil and criminal forfeiture proceedings.
(1) The court may appoint counsel to represent indigent persons in civil and criminal forfeiture proceedings, including owners in criminal forfeiture proceedings who are not charged as criminal defendants. In determining whether to appoint counsel, the court shall take into account such factors as:
(a) the person's asserted interest in the property;
(b) the person's standing to contest the forfeiture; and
(c) whether the person's allegations appear to be in good faith or to be frivolous.
(2) The court shall set compensation for counsel in forfeiture
proceedings at a level equivalent to compensation provided
for counsel appointed in criminal cases.
2000
24-1-10 Prejudgment and postjudgment interest.
In any proceeding to forfeit currency or other negotiable
instruments under this chapter, the court shall award a prevailing
party prejudgment and postjudgment interest on the currency
or negotiable instruments at the legal rate of interest established
by Section
15-1-1
.
2004
24-1-11 Attorneys' fees and costs.
In any proceeding to forfeit seized property under this
chapter, the court shall award a prevailing party reasonable
attorneys' fees and other costs of litigation reasonably
incurred by the owner. An owner who prevails only in part
is entitled to recover reasonable attorneys' fees and reasonable
costs of suit related to those issues on which he prevailed.
2004
24-1-12 Compensation for damaged property.
(1) If property seized for forfeiture is returned by operation of this chapter, an owner has a civil right of action against a seizing agency for any claim based upon the negligent destruction, loss, damage, or other injury to seized property while in the possession or custody of the agency.
(2) As used in this section, "damage or other injury"
does not include normal depreciation, deterioration, or ordinary
wear and tear.
2004
24-1-13 Limitation on fees for holding seized property.
In any civil or criminal proceeding under this chapter
in which a judgment is entered in favor of an owner, or where
a forfeiture proceeding against an owner is voluntarily dismissed
by the prosecuting attorney, the seizing agency shall be
prohibited from charging that owner any fee for holding seized
property.
2000
24-1-14 Proportionality.
(1) (a) An owner's interest in property, excluding contraband, is not subject to forfeiture under any provision of state law if the forfeiture is substantially disproportional to the use of the property in committing or facilitating a violation of state law and the value of the property.
(b) Forfeiture of property used solely in a manner that is merely incidental and not instrumental to the commission or facilitation of a violation of law is not proportional.
(2) (a) In determining proportionality, the court shall consider:
(i) the conduct giving cause for the forfeiture;
(ii) what portion of the forfeiture, if any, is remedial in nature;
(iii) the gravity of the conduct for which the claimant is responsible in light of the offense; and
(iv) the value of the property.
(b) If the court finds that the forfeiture is substantially disproportional to the conduct for which the claimant is responsible, it shall reduce or eliminate the forfeiture, as it finds appropriate.
(3) The prosecuting attorney has the burden to demonstrate
that any forfeiture is proportional to an alleged violation
of state law. It is the province of the court, not the jury,
to decide questions of proportionality.
2004
24-1-15 Transfer and sharing procedures.
(1) For purposes of this section, property is considered to be "seized" whenever any agency takes possession of the property or exercises any degree of control over the property.
(2) (a) Seizing agencies or prosecuting attorneys authorized to bring civil or criminal forfeiture proceedings under this chapter may not directly or indirectly transfer seized property to any federal agency or any governmental entity not created under and subject to state law unless the court enters an order, upon petition of the prosecuting attorney, authorizing the property to be transferred. The court may not enter an order authorizing a transfer unless:
(i) the activity giving rise to the investigation or seizure is interstate in nature and sufficiently complex to justify the transfer;
(ii) the seized property may only be forfeited under federal law; or
(iii) pursuing forfeiture under state law would unreasonably burden prosecuting attorneys or state law enforcement agencies.
(b) Notwithstanding Subsection (2)(a), the court may refuse to enter an order authorizing a transfer to the federal government if the transfer would circumvent the protections of the Utah Constitution or of this chapter that would otherwise be available to the property owner.
(c) Prior to granting any order to transfer pursuant to Subsection (2)(a), the court must give any owner the right to be heard with regard to the transfer.
(3) (a) Subject to Subsection (3)(b), all property, money, or other things of value received by an agency pursuant to federal law which authorizes the sharing or transfer of all or a portion of forfeited property or the proceeds of the sale of forfeited property to an agency:
(i) shall be used in compliance with federal rules and regulations relating to equitable sharing;
(ii) shall be used only for those law enforcement purposes specified in Subsection 24-1-19 (8); and
(iii) may not be used for those law enforcement purposes prohibited in Subsection 24-1-19 (9).
(b) If an agency receives forfeiture proceeds under Subsection (3)(a) that equal an amount that is more than 25% greater than the annual budget of the receiving agency, the amount of the proceeds that is in excess of 125% of the agency's annual budget shall be passed through by the agency to the Commission on Criminal and Juvenile Justice to be used for the purposes under Section 24-1-19 .
(c) Subject to Subsection (3)(a), state agencies are encouraged to seek an equitable share of property forfeited by the federal government and to cooperate with federal law enforcement agencies in all cases in which cooperation is in the interest of this state.
(d) A law enforcement agency awarded any equitable share of property forfeited by the federal government may only use the award monies after approval or appropriation by the agency's legislative body.
(e) Law enforcement agencies are entitled to their equitable share of property forfeited by the federal government since March 29, 2001.
(f) (i) Each agency awarded any equitable share of property forfeited by the federal government shall file copies of all federal equitable sharing certifications, applications, and reports with the state auditor and the Commission on Criminal and Juvenile Justice at least annually.
(ii) This information shall provide details of all awards received from the federal government during the preceding reporting period, including for each award:
(A) the agency's case number or other identification;
(B) the amount of the award;
(C) the date of the award;
(D) the identity of the federal agency involved in the forfeiture;
(E) how the awarded property has been used; and
(F) a statement signed by both the agency's executive officer or designee and by the agency's legal counsel, that the agency has only used the awarded property for crime reduction or law enforcement purposes authorized under Section 24-1-19 , and only upon approval or appropriation by the agency's legislative body.
(4) (a) Any agency that violates Subsection (2) or (3) is civilly liable to the state for three times the amount of the forfeiture diverted and for costs of suit and reasonable attorneys' fees.
(b) Any damages awarded to the state shall be paid to the Criminal Forfeiture Restricted Account created in Section 24-1-18 .
(c) Any agent, including a state law enforcement officer,
detached to, deputized or commissioned by, or working in
conjunction with a federal agency, who knowingly transfers
or otherwise trades seized property in violation of Subsection
(2)(a) or who receives property, money, or other things of
value under Subsection (3)(a) and knowingly fails to transfer
the property in accordance with this section is guilty of
a class B misdemeanor.
2004
24-1-17 Disposition and allocation of forfeiture property.
(1) Upon finding that property is subject to forfeiture under this chapter, the court shall order the property forfeited to the state, and the seizing agency shall then:
(a) make the payments as required under this chapter; and
(b) transfer possession, custody, and control of the net forfeiture property or proceeds immediately to the Criminal Forfeiture Restricted Account created under Section 24-1-18 .
(2) If the forfeiture arises from any violation of Section 23-20-1 relating to wildlife resources, the court shall:
(a) direct that the legal costs of the forfeiture proceeding be paid to the prosecuting agency; and
(b) direct that the net forfeited property after the legal costs shall be deposited in the Wildlife Resources Account created in Section 23-14-13 .
(3) (a) Prior to transferring forfeited property, the seizing agency shall authorize a public or otherwise commercially reasonable sale of that property which is not required by law to be destroyed and that is not harmful to the public.
(b) The proceeds of the forfeited property shall remain segregated from other property, equipment, or assets of the seizing agency until transferred to the state in accordance with this chapter.
(4) From the forfeited property, both currency and the proceeds or revenue from the property, the seizing agency shall:
(a) deduct the seizing agency's direct costs and expenses, as approved by the court, of obtaining and maintaining the property pending forfeiture; and
(b) pay the legal costs to the prosecuting agency for the prosecution of the forfeiture proceeding.
(5) The remaining forfeited property shall then be deposited in the Criminal Forfeiture Restricted Account created in Section 24-1-18 .
(6) All property and proceeds awarded to the state through
forfeiture proceedings under this chapter shall be deposited
in the Criminal Forfeiture Restricted Account created in
Section
24-1-18
.
2004
24-1-18 Criminal Forfeiture Restricted Account.
(1) There is created within the General Fund a restricted account known as the Criminal Forfeiture Restricted Account.
(2) Proceeds from forfeited property and forfeited monies through state forfeitures shall be deposited in this account.
(3) Money in the account shall be appropriated to the
Commission on Criminal and Juvenile Justice for implementing
the Crime Reduction Assistance Program under Section
24-1-19
.
2004
24-1-19 Crime Reduction Assistance Program.
(1) There is created the Crime Reduction Assistance Program.
(2) The program shall fund crime prevention and law enforcement activities that have the purpose of:
(a) deterring crime by depriving criminals of the profits and proceeds of their illegal activities;
(b) weakening criminal enterprises by removing the instrumentalities of crime;
(c) reducing crimes involving substance abuse by supporting the creation, administration, or operation of drug court programs throughout the state;
(d) encouraging cooperation between local, state, and multijurisdictional law enforcement agencies;
(e) allowing the costs and expenses of law enforcement to be defrayed by the forfeited proceeds of crime; and
(f) increasing the equitability and accountability of the use of forfeited property used to assist law enforcement in reducing and preventing crime.
(3) (a) When property is forfeited under this chapter and transferred to the fund, the Commission on Criminal and Juvenile Justice shall make awards of monies from the fund to state, local, or multijurisdictional law enforcement agencies or political subdivisions of the state in compliance with this section and to further the program purposes under Subsection (2).
(b) In granting the awards, the Commission on Criminal and Juvenile Justice shall ensure that the amount of each award takes into consideration:
(i) the demonstrated needs of the agency;
(ii) the demonstrated ability of the agency to appropriately use the award;
(iii) the degree to which the agency's need is offset through the agency's participation in federal equitable sharing or through other federal and state grant programs; and
(iv) the agency's cooperation with other state and local agencies and task forces.
(4) Agencies or political subdivisions shall apply for program awards by completing and submitting forms specified by the Commission on Criminal and Juvenile Justice.
(5) Applying agencies or political subdivisions shall demonstrate compliance with all reporting and policy requirements applicable under this chapter and under Title 63, Chapter 25a, Criminal Justice and Substance Abuse, in order to qualify as a potential award recipient.
(6) Recipient law enforcement agencies may only use program award monies after approval or appropriation by the agency's legislative body, and the award monies are nonlapsing.
(7) A recipient law enforcement agency or political subdivision shall use program awards only for law enforcement or controlled substance law enforcement purposes as described in Subsection (8), and only as these purposes are specified by the agency or political subdivision in its application for the award.
(8) Permissible law enforcement purposes for which award monies may be used include:
(a) controlled substance interdiction and enforcement activities;
(b) drug court programs;
(c) activities calculated to enhance future investigations;
(d) law enforcement training that includes:
(i) implementation of the Fourth Amendment of the federal constitution and Utah Constitution Article I, Section 7, and addresses the protection of the individual's rights of due process;
(ii) protection of the rights of innocent property holders; and
(iii) the Tenth Amendment of the federal constitution regarding states' sovereignty and the states' reserved rights;
(e) law enforcement or detention facilities;
(f) law enforcement operations or equipment which are not routine costs or operational expenses;
(g) drug, gang, or crime prevention education programs which are sponsored in whole or in part by the law enforcement agency or its legislative body; and
(h) matching funds for other state or federal law enforcement grants.
(9) Law enforcement purposes for which award monies may not be granted or used include:
(a) payment of salaries, retirement benefits, or bonuses to any person;
(b) payment of enforcement expenses not related to law enforcement;
(c) uses not specified in the agency's award application;
(d) uses not approved or appropriated by the agency's legislative body;
(e) payments, transfers, or pass-through funding to entities other than law enforcement agencies; or
(f) uses, payments, or expenses that are not within the scope of the agency's functions.
(10) For each fiscal year, any state, local, or multijurisdictional agency or political subdivision that received a program award shall prepare, and file with the Utah Commission on Criminal and Juvenile Justice and the state auditor, a report in a form specified by the Utah Commission on Criminal and Juvenile Justice. The report shall include the following regarding each award:
(a) the agency's name;
(b) the amount of the award;
(c) the date of the award;
(d) how the award has been used; and
(e) a statement signed by both the agency's or political subdivision's executive officer or designee and by the agency's legal counsel, that:
(i) the agency or political subdivision has complied with all inventory, policy, and reporting requirements of this chapter;
(ii) all program awards were used for crime reduction or law enforcement purposes as specified in the application; and
(iii) and only upon approval or appropriation by the agency's or political subdivision's legislative body.
(11) The Utah Commission on Criminal and Juvenile Justice
shall report in writing to the legislative Law Enforcement
and Criminal Justice Interim Committee annually regarding
the forfeited property transferred to the fund, awards made
by the program, uses of program awards, and any equitable
share of property forfeited by the federal government as
reported by agencies pursuant to Subsection
24-1-15
(3).
2004
24-1-20 State Law Enforcement Forfeiture Account created - Revenue sources - Use of account designated.
(1) (a) There is created in the General Fund a restricted account called the State Law Enforcement Forfeiture Account.
(b) All monies awarded to the Department of Public Safety or the Department of Corrections, or any division or agency within either department, through the Crime Reduction Assistance Program created in Section 24-1-19 shall be deposited into the State Law Enforcement Forfeiture Account.
(c) All monies previously deposited, or currently held in the Drug Forfeiture Account created in Section 58-37-20 , and that were in that account when it was repealed by Initiative B, which passed in 2000, and which became effective March 29, 2001, shall be transferred to and deposited in the State Law Enforcement Forfeiture Account created in this Subsection (1).
(2) The Department of Public Safety and the Department of Corrections may expend amounts as appropriated by the Legislature from the State Law Enforcement Forfeiture Account for law enforcement purposes or controlled substance law enforcement purposes as specified in Section 24-1-19 .
(3) That portion of funds forfeited or that are required to be disbursed to other governmental entities under existing contractual agreements or Utah statutory requirements are exempt from this section.
(4) Funds forfeited as a result of the Salt Lake Airport Drug Program operated by the Department of Public Safety, not to exceed the Department of Public Safety's expenditure to that program, are exempt from this section.
(5) The Department of Public Safety and the Department of Corrections, as part of the annual legislative budget hearings, shall provide to the legislative Executive Offices and Criminal Justice Appropriations Subcommittee a complete accounting of expenditures and revenues from the funds received under this section.
(6) The Legislature may annually provide, in an appropriations
act, legislative direction for anticipated expenditures of
the monies received under this section.
2004
