§ 5-73-130 — Seizure and forfeiture of firearm - Seizure and forfeiture of motor vehicle - Disposition of property seized

(a) If a person under eighteen (18) years of age is unlawfully in possession of a firearm, the firearm shall be seized and, after an adjudication of delinquency or a conviction, is subject to forfeiture. (b) If a felon or a person under eighteen (18) years of age is unlawfully in possession of a firearm in a motor vehicle, the motor vehicle is subject to seizure and, after an adjudication of delinquency or a conviction, subject to forfeiture. (c) As used in this section, "unlawfully in possession of a firearm" does not include any act of possession of a firearm that is prohibited only by a regulation or rule of the Arkansas State Game and Fish Commission. (d) The procedures for forfeiture and disposition of the seized property are as follows: (1) The prosecuting attorney of the judicial district within whose jurisdiction the property is seized that is sought to be forfeited shall promptly proceed against the property by filing in the circuit court a petition for an order to show cause why the circuit court should not order forfeiture of the property; and (2) The petition shall be verified and shall set forth: (A) A statement that the action is brought pursuant to this section; (B) The law enforcement agency bringing the action; (C) A description of the property sought to be forfeited; (D) A statement that on or about a date certain there was an adjudication of delinquency or a conviction and a finding that the property seized is subject to forfeiture; (E) A statement detailing the facts in support of subdivision (d)(1) of this section; and (F) A list of all persons known to the law enforcement agency, after diligent search and inquiry, who may claim an ownership interest in the property by title or registration or by virtue of a lien allegedly perfected in the manner prescribed by law. (e) (1) Upon receipt of a petition complying with the requirements of subdivision (d)(1) of this section, the circuit court judge having jurisdiction shall issue an order to show cause setting forth a statement that this subchapter is the controlling law. (2) In addition, the order shall set a date at least forty-one (41) days from the date of first publication of the order pursuant to subsection (f) of this section for all persons claiming an interest in the property to file such pleadings as they desire as to why the circuit court should not order the forfeiture of the property for use, sale, or other disposition by the law enforcement agency seeking forfeiture of the property. (3) The circuit court shall further order that any person who does not appear on that date is deemed to have defaulted and waived any claim to the subject property. (f) (1) The prosecuting attorney shall give notice of the forfeiture proceedings by: (A) Causing a copy of the order to show cause to be published two (2) times each week for two (2) consecutive weeks in a newspaper having general circulation in the county where the property is located with the last publication being not less than five (5) days before the show cause hearing; and (B) Sending a copy of the petition and order to show cause by certified mail, return receipt requested, to each person having ownership of or a security interest in the property or in the manner provided in Rule 4 of the Arkansas Rules of Civil Procedure if: (i) The property is of a type for which title or registration is required by law; (ii) The owner of the property is known in fact to the law enforcement agency at the time of seizure; or (iii) The property is subject to a security interest perfected in accordance with the Uniform Commercial Code, § 4-1-101 et seq. (2) The law enforcement agency is only obligated to make diligent search and inquiry as to the owner of the property, and if, after diligent search and inquiry, the law enforcement agency is unable to ascertain the owner, the requirement of actual notice by mail with respect to a person having a perfected security interest in the property is not applicable. (g) At the hearing on the matter, the petitioner has the burden to establish that the property is subject to forfeiture by a preponderance of the evidence. (h) In determining whether or not a motor vehicle should be ordered forfeited, the circuit court may take into consideration the following factors: (1) Any prior criminal conviction or delinquency adjudication of the felon or juvenile; (2) Whether or not the firearm was used in connection with any other criminal act; (3) Whether or not the motor vehicle was used in connection with any other criminal act; (4) Whether or not the juvenile or felon was the lawful owner of the motor vehicle in question; (5) If the juvenile or felon is not the lawful owner of the motor vehicle in question, whether or not the lawful owner knew of the unlawful act being committed that gives rise to the forfeiture penalty; and (6) Any other factor the circuit court deems relevant. (i) The final order of forfeiture by the circuit court shall perfect in the law enforcement agency right, title, and interest in and to the property and shall relate back to the date of the seizure. (j) Physical seizure of property is not necessary in order to allege in a petition under this section that the property is forfeitable. (k) Upon filing the petition, the prosecuting attorney for the judicial district may also seek a protective order to prevent the transfer, encumbrance, or other disposal of any property named in the petition. (l) The law enforcement agency to which a motor vehicle is forfeited shall either: (1) Sell the motor vehicle in accordance with subsection (m) of this section; or (2) If the motor vehicle is not subject to a lien that has been preserved by the circuit court, retain the motor vehicle for official use. (m) (1) If a law enforcement agency desires to sell a forfeited motor vehicle, the law enforcement agency shall first cause notice of the sale to be made by publication at least two (2) times a week for two (2) consecutive weeks in a newspaper having general circulation in the county and by sending a copy of the notice of the sale by certified mail, return receipt requested, to each person having ownership of or a security interest in the property or in the manner provided in Rule 4 of the Arkansas Rules of Civil Procedure if: (A) The property is of a type for which title or registration is required by law; (B) The owner of the property is known in fact to the law enforcement agency at the time of seizure; or (C) The property is subject to a security interest perfected in accordance with the Uniform Commercial Code, § 4-1-101 et seq. (2) The notice of the sale shall include the time, place, and conditions of the sale and a description of the property to be sold. (3) The property shall then be disposed of at public auction to the highest bidder for cash without appraisal. (n) The proceeds of any sale and any moneys forfeited shall be applied to the payment of: (1) The balance due on any lien preserved by the circuit court in the forfeiture proceedings; (2) The cost incurred by the seizing law enforcement agency in connection with the storage, maintenance, security, and forfeiture of the property; (3) The costs incurred by the prosecuting attorney or attorney for the law enforcement agency, approved by the prosecuting attorney, to which the property is forfeited; and (4) Costs incurred by the circuit court. (o) The remaining proceeds or moneys shall be deposited into a special county fund to be titled the "Juvenile Crime Prevention Fund", and the moneys in the fund shall be used solely for making grants to community-based nonprofit organizations that work with juvenile crime prevention and rehabilitation. (p) (1) The law enforcement agency to which a firearm is forfeited may trade the firearm to a federally licensed firearms dealer for credit toward future purchases by the law enforcement agency. (2) If the firearm is unable to be traded to a federally licensed firearms dealer, the law enforcement agency may dispose of the firearm as the law enforcement agency deems appropriate.

Legislative History

Amended by Act 2021, No. 433,§ 2, eff. 7/28/2021. Amended by Act 2019, No. 315,§ 171, eff. 7/24/2019. Amended by Act 2019, No. 630,§ 2, eff. 7/24/2019. Amended by Act 2019, No. 630,§ 1, eff. 7/24/2019. Acts 1994 (2nd Ex. Sess.), No. 55, § 1; 1994 (2nd Ex. Sess.), No. 56, § 1; 2005, No. 1994, § 260; 2007, No. 827, § 96.