(1) The several district
courts of this state shall have original jurisdiction of proceedings under this part 3.
(1.5) No judgment of forfeiture of property in any forfeiture proceeding shall
be entered unless and until an owner of the property is convicted of an offense
listed in section 16-13-301 or 16-13-303, or a lesser included offense of an eligible
offense if the conviction is the result of a negotiated guilty plea. Nothing in this
section shall be construed to require the conviction to be obtained in the same
jurisdiction as the jurisdiction in which the forfeiture action is brought. In the event
criminal charges arising from the same activity giving rise to the forfeiture
proceedings are filed against any individual claiming an interest in the property
subject to the forfeiture proceeding, the trial and discovery phases of the forfeiture
proceeding shall be stayed by the court until the disposition of the criminal
charges. A stay shall not be maintained during an appeal or post-conviction
proceeding challenging a criminal conviction. Nothing in this section shall be
construed to prohibit or prevent the parties from contemporaneously resolving
criminal charges and a forfeiture proceeding arising from the same activity.
(1.6) Upon acquittal or dismissal of a criminal action against a person named
in a forfeiture action related to the criminal action, unless the forfeiture action was
brought pursuant to one or more of paragraphs (a) to (f) of subsection (1.7) of this
section, the forfeiture claim shall be dismissed and the seized property shall be
returned as respects the subject matter property or interest therein of that person,
if the case has been adjudicated as to all other claims, interests, and owners, unless
possession of the property is illegal. If the forfeiture action is dismissed or
judgment is entered in favor of the claimant, the claimant shall not be subject to
any monetary charges by the state for storage of the property or expenses incurred
in the preservation of the property, unless at the time of dismissal the plaintiff
shows that those expenses would have been incurred to prevent waste of the
property even if it had not been seized.
(1.7) Notwithstanding the provisions of subsection (1.5) of this section:
(a) (I) A person shall lack standing for and shall be disallowed from pursuit of
a claim or defense in a civil forfeiture action upon a finding that a warrant or other
process has been issued for the apprehension of the person, and, in order to avoid
criminal prosecution, the person:
(A) Purposely leaves the state; or
(B) Declines to enter or reenter the state to submit to its jurisdiction; or
(C) Otherwise evades the jurisdiction of the court in which a criminal case is
pending against the person or from which a warrant has been issued, by failing to
appear in court or surrender on a warrant; and
(D) Is not known to be confined or held in custody in any other jurisdiction
within the United States for commission of criminal conduct in that jurisdiction.
(II) If a person lacks standing pursuant to this paragraph (a), the forfeiture
action may proceed and a judgment of forfeiture may be entered without a criminal
conviction of an owner, upon motion and notice as provided in the rules of civil
procedure.
(b) If, following notice to all persons known to have an interest, or who have
asserted an interest in the property subject to forfeiture, an owner fails to file an
answer or other appropriate pleading with the court claiming an interest in the
subject matter property, or no person establishes standing to contest the forfeiture
action pursuant to section 16-13-303 (5), a forfeiture action may proceed and a
judgment of forfeiture may be entered without a criminal conviction of an owner.
(c) If the plaintiff proves by clear and convincing evidence that the property
was instrumental in the commission of an offense listed in section 16-13-303 (1) or
that the property is traceable proceeds of the offense or related criminal activity by
a nonowner and the plaintiff proves by clear and convincing evidence that an owner
is not an innocent owner pursuant to section 16-13-303 (5.2)(a), a judgment of
forfeiture may be entered without a criminal conviction of an owner.
(d) If an owner of the property who was involved in the public nuisance act or
conduct giving rise to the claim of forfeiture subsequently dies, and was not an
innocent owner pursuant to section 16-13-303 (5.2)(a), a judgment of forfeiture may
be entered without a criminal conviction of an owner.
(e) If an owner received a deferred judgment, deferred sentence, or
participated in a diversion program, or in the case of a juvenile a deferred
adjudication or deferred sentence or participated in a diversion program for the
offense, a judgment of forfeiture may be entered without a criminal conviction.
(f) A defendant or claimant shall be permitted to waive the requirement of a
criminal conviction in order to settle a forfeiture action.
(1.8) Nothing in this section shall be construed to limit the temporary seizure
of property for evidentiary, investigatory, or protective purposes.
(2) An action to abate a public nuisance shall be brought in the county in
which the subject matter of the action, or some part thereof, is located or found or
in the county where the public nuisance act, or any portion thereof, was committed.
(2.5) All forfeiture actions shall proceed in state district court if the property
was seized by a local or state law enforcement agency as a result of an ongoing
state criminal investigation and the owner is being prosecuted in state court. Unless
directed by an authorized agent of the federal government, no state or local law
enforcement agency may transfer any property seized by the state or local agency
to a federal agency for forfeiture under federal law unless an owner of the property
is being prosecuted in federal court.
(3) Except as otherwise provided in this part 3, the practice and procedure in
an action to abate a public nuisance shall be governed by the Colorado rules of civil
procedure.
(3.5) An action brought pursuant to this part 3 regarding a class 1 public
nuisance shall be filed within sixty-three days following the seizure of the property
pursuant to section 16-13-315. The plaintiff may file the complaint after the
expiration of sixty-three days from the date of seizure only if the complaint is
accompanied by a written petition for late filing. Such petition for late filing shall
demonstrate good cause for the late filing of the complaint. The sixty-three-day
time limitation established by this subsection (3.5) shall not apply where the seizure
of the property occurred pursuant to a warrant authorizing such seizure or
otherwise under any statute or rule of criminal procedure, if the property is held as
evidence in a pending criminal investigation or in a pending criminal case.
(4) An action to abate a public nuisance may be brought by the district
attorney, or the attorney general with the consent of the district attorney, in the
name of the people of the state of Colorado or in the name of any officer, agency,
county, or municipality of this state whose duties or functions include or relate to
the subject matter of the action. Any action to abate a class 3 public nuisance as
defined by section 16-13-305 (1)(f) may be brought only upon the request of the
agency or officer issuing the order or under whose authority the order was issued
when such order relates to unlawful pollution or contamination.
(5) An action to abate a public nuisance, other than a class 4 public nuisance,
and any action in which a temporary restraining order, temporary writ of injunction,
or preliminary injunction is requested, shall be commenced by the filing of a
complaint, which shall be verified or supported by affidavit. Summons shall be
issued and served as in civil cases; except that a copy of the complaint and copies
of any orders issued by the court at the time of filing shall be served with the
summons.
(6) During all discovery procedures in actions brought pursuant to this part
3, a witness or party may refuse to answer any question if said witness or party
makes a good faith assertion that the disclosure would tend to identify, directly or
indirectly, a confidential informant for a law enforcement agency, unless the
district attorney intends to call said informant as a witness at any adversarial
hearing. On a motion to compel discovery, no witness or party shall be sanctioned in
any manner for withholding information pursuant to this subsection (6).
(7) Actions to abate a public nuisance shall be heard by the court, without a
jury, at all stages of the proceedings.
(8) Repealed.
(9) Part 2 of article 41 of title 38, C.R.S., shall not apply to any action under
this part 3.
(10) (a) Continuance of the trial of a public nuisance action shall be granted
upon stipulation of the parties or upon good cause shown.
(b) (Deleted by amendment, L. 2003, p. 897, � 8, effective July 1, 2003.)
(c) Public nuisance actions shall be included in the category of expedited
proceedings specified in rules 16 and 26 of the Colorado rules of civil procedure;
except that each party may conduct limited discovery as provided for in rule 26
(b)(2) of the Colorado rules of civil procedure. In addition, each party may move the
court to authorize additional discovery upon good cause shown.
(11) No claim for relief shall be asserted by any party other than the plaintiff
in a public nuisance action; except that the defendant may make a request for the
return of property seized pursuant to this part 3.
(12) If a public nuisance trial pursuant to this part 3 results in an order to
return subject personal property and the prosecution states an intent to appeal and
proceeds to appeal that judgment or order, the court shall stay the judgment or
order pending appeal, unless the court finds that the appeal was taken in bad faith
or for the purpose of delay. No appeal bond shall be required, but the court may
make appropriate orders to preserve the value of the property pending appeal.
(13) Unknown persons who may claim an interest in the property, persons
whose whereabouts are unknown despite a diligent good faith search, and persons
upon whom the plaintiff has been unable to effect service as otherwise provided in
the Colorado rules of civil procedure despite diligent good faith efforts may be
served pursuant to a court order by publishing a copy of a summons twice in a
newspaper of general circulation. The summons shall describe the property and
state where the complaint and attendant documents may be obtained, and a party
shall have thirty-five days after the last publication date to respond.