§ 16-13-505 — Forfeiture proceedings
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(1) The several district courts of this
state shall have original jurisdiction in proceedings under this part 5.
(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
involving the conduct listed in section 16-13-503, 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 the 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 response with the court claiming an interest in the
subject matter property, or no person establishes standing to contest the forfeiture
action pursuant to section 16-13-504 (2), 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 16-13-503 (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 16-13-504 (2.2), 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 16-13-504 (2.2), 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.
(2) (a) The prosecuting attorney shall file a petition in forfeiture to perfect
title in seized contraband property no later than sixty-three days after the seizure.
The prosecuting attorney may file the petition after the expiration of sixty-three
days from the date of seizure only if the petition is accompanied by a written
statement of good cause for the late filing. The sixty-three-day time limitation
established by this paragraph (a) 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. The petition shall be
accompanied by a supporting affidavit, and both shall describe the property seized
with reasonable particularity and shall include a list of witnesses to be called in
support of the claim for forfeiture, including the addresses and telephone numbers
thereof.
(b) If the court finds from the petition and supporting affidavit that probable
cause exists to believe that the seized property is contraband property as defined in
this part 5, it shall, without delay, issue a citation directed to interested parties to
show cause why the property should not be forfeited. The citation shall fix the date
and time for a first appearance on the petition. The date fixed shall be no less than
thirty-five days and no more than sixty-three days from the date of the issuance of
the citation.
(c) At the first appearance on the petition, the court shall set a date and time
for a hearing on the merits of the petition within forty-nine days after the first
appearance.
(d) The only responsive pleading shall be designated a response to petition
and citation to show cause and shall be filed with the court at or before the first
appearance on the petition and shall include:
(I) A statement admitting or denying the averments of the petition;
(II) A statement setting forth with particularity why the seized property
should not be forfeited. The statement shall include specific factual and legal
grounds supporting it and any affirmative defense to forfeiture as provided in this
part 5.
(III) A list of witnesses whom the respondent intends to call at the hearing on
the merits, including the addresses and telephone numbers thereof; and
(IV) A verified statement, supported by documentation, that the claimant is
the true owner of the property or an interest therein.
(e) No claim for relief against the plaintiff shall be set forth in the response,
except a request for return of the seized property.
(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) The citation specified in paragraph (b) of subsection (2) of this section
shall:
(a) Describe the property;
(b) State the county, place, and date of seizure;
(c) State the name of the agency holding the seized property;
(d) State the date and time of the first appearance and the court in which it
will be held;
(e) State that judgment in favor of the plaintiff shall enter forthwith against
any party who fails to file a response pursuant to paragraph (d) of subsection (2) of
this section or who fails to appear personally or by counsel at the first appearance
before the court; and
(f) Advise the defendant of the right to continue the action under the
circumstances stated in subsection (5) of this section.
(4) Except as otherwise provided in this part 5, the practice and procedure in
an action to perfect title to contraband property shall be governed by the Colorado
rules of civil procedure. Actions to perfect title to contraband property 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.
(5) Continuance of the hearing on the merits shall be granted upon
stipulation of the parties or upon good cause shown.
(6) The hearing on the merits shall be heard by the court without a jury.
(7) If the seized property is of a type for which title or registration is required
by law, or if the owner of the property and his or her address are known in fact, or if
the seized property is subject to a perfected security interest, the prosecuting
attorney shall give notice of the forfeiture action to the claimant, either by personal
service of the petition, supporting affidavit, and citation upon him or her or by
sending copies of such documents by certified mail, return receipt requested, to the
last-known address of such claimant. If the documents are properly mailed to an
address which the prosecutor has reasonable grounds to believe is the last-known
address of the potential claimant, said documents shall be deemed served whether
or not the claimant responds to the notice to claim them at the post office.
Unknown persons who may claim any interest in the property, persons whose
addresses are unknown, and persons upon whom the prosecutor has been unable to
effect service as otherwise provided in this subsection (7) despite diligent good
faith efforts may be served pursuant to a court order by publishing a copy of the
citation twice in a newspaper of general circulation in the county in which the
proceeding is instituted. The fact of such publication shall be conclusively
established by the publisher's affidavit of publication. The first publication shall be
more than fourteen days and the last publication not less than seven days before
the first appearance date on the citation.
(8) If any claimant to the property subject to a forfeiture action, including a
claimant unknown to the plaintiff, is properly served with the citation according to
the procedures specified in subsection (7) of this section and fails to appear
personally or by counsel on the first appearance date or fails to file a response as
required by this section, the court shall forthwith find said person in default and
enter an order forfeiting said person's interest in the property and distributing the
proceeds of forfeiture as provided in this part 5. A default order of forfeiture
entered pursuant to this section shall only be set aside upon an express finding by
the court that a claimant was improperly served through no fault of such claimant
and had no notice of the first appearance on the citation or was prevented from
appearing and responding due to an emergency situation caused by events beyond
such claimant's control when such claimant had made diligent, good faith, and
reasonable efforts to prepare a response and appear.
(9) If a forfeiture hearing held pursuant to this part 5 results in an order to
return the subject property to a claimant and the prosecution states an intent to
appeal and proceeds to initiate an appeal of the order, the court shall stay
execution of the order pending appeal, unless the court finds that the appeal is
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.
(10) The evidentiary burdens at a forfeiture hearing brought pursuant to this
part 5 shall be as follows:
(a) The claimant shall first prove by a preponderance of the evidence that
such claimant is the true owner of the property.
(b) If the claimant establishes that such claimant is the true owner of the
property sought to be forfeited, the prosecuting attorney shall have the burden of
going forward with the evidence and proving the allegations of the petition by clear
and convincing evidence.
(c) (Deleted by amendment, L. 93, p. 629, � 3, effective July 1, 1993.)
(11) Actions pursuant to this part 5 shall be brought in the name of the
people of the state of Colorado by the district attorney in the county in which the
property was seized or in the county in which any subject act occurred. With the
consent of the district attorney, the attorney general may also bring such an action.
Colorado § 16-13-505 (Forfeiture proceedings) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.