§ 29B-13 — Judicial in rem procedures

If property seized under this Article is non-real property that exceeds $20,000 in value excluding the value of any conveyance, or is real property, or a claimant has filed a claim under paragraph (3) of Section 29B-12 of this Article, the following judicial in rem procedures shall apply: (1) If, after a review of the facts surrounding the seizure, the State's Attorney is of the opinion that the seized property is subject to forfeiture, then, within 28 days of the receipt of notice of seizure by the seizing agency or the filing of the claim, whichever is later, the State's Attorney shall institute judicial forfeiture proceedings by filing a verified complaint for forfeiture. If authorized by law, a forfeiture shall be ordered by a court on an action in rem brought by a State's Attorney under a verified complaint for forfeiture. (2) A complaint of forfeiture shall include: (A) a description of the property seized; (B) the date and place of seizure of the property; (C) the name and address of the law enforcement agency making the seizure; and (D) the specific statutory and factual grounds for the seizure. (3) The complaint shall be served upon the person from whom the property was seized and all persons known or reasonably believed by the State to claim an interest in the property, as provided in Section 29B-10 of this Article. The complaint shall be accompanied by the following written notice: "This is a civil court proceeding subject to the Code of Civil Procedure. You received this Complaint of Forfeiture because the State's Attorney's office has brought a legal action seeking forfeiture of your seized property. This complaint starts the court process where the State seeks to prove that your property should be forfeited and not returned to you. This process is also your opportunity to try to prove to a judge that you should get your property back. The complaint lists the date, time, and location of your first court date. You must appear in court on that day, or you may lose the case automatically. You must also file an appearance and answer. If you are unable to pay the appearance fee, you may qualify to have the fee waived. If there is a criminal case related to the seizure of your property, your case may be set for trial after the criminal case has been resolved. Before trial, the judge may allow discovery, where the State can ask you to respond in writing to questions and give them certain documents, and you can make similar requests of the State. The trial is your opportunity to explain what happened when your property was seized and why you should get the property back." (4) Forfeiture proceedings under this Article shall be subject to the Code of Civil Procedure and the rules of evidence relating to civil actions shall apply to proceedings under this Article with the following exception. The parties shall be allowed to use, and the court shall receive and consider, all relevant hearsay evidence that relates to evidentiary foundation, chain of custody, business records, recordings, laboratory analysis, laboratory reports, and relevant hearsay related to the use of technology in the investigation that resulted in the seizure of property that is subject to the forfeiture action. (5) Only an owner of or interest holder in the property may file an answer asserting a claim against the property in the action in rem. For purposes of this Section, the owner or interest holder shall be referred to as claimant. Upon motion of the State, the court shall first hold a hearing, in which a claimant shall establish by a preponderance of the evidence, that he or she has a lawful, legitimate ownership interest in the property and that it was obtained through a lawful source. (6) The answer must be signed by the owner or interest holder under penalty of perjury and shall set forth: (A) the caption of the proceedings as set forth on the notice of pending forfeiture and the name of the claimant; (B) the address at which the claimant will accept mail; (C) the nature and extent of the claimant's interest in the property; (D) the date, identity of transferor, and circumstances of the claimant's acquisition of the interest in the property; (E) the names and addresses of all other persons known to have an interest in the property; (F) all essential facts supporting each assertion; (G) the precise relief sought; and (H) in a forfeiture action involving currency or its equivalent, a claimant shall provide the State with notice of his or her intent to allege that the currency or its equivalent is not related to the alleged factual basis for the forfeiture, and why. The answer shall follow the rules under the Code of Civil Procedure. (7) The answer shall be filed with the court within 45 days after service of the civil in rem complaint. (8) The hearing shall be held within 60 days after filing of the answer unless continued for good cause. (9) At the judicial in rem proceeding, in the State's case in chief, the State shall show by a preponderance of the evidence that the property is subject to forfeiture. If the State makes such a showing, the claimant shall have the burden of production to set forth evidence that the property is not related to the alleged factual basis of the forfeiture. After this production of evidence, the State shall maintain the burden of proof to overcome this assertion. A claimant shall provide the State notice of its intent to allege that the currency or its equivalent is not related to the alleged factual basis of the forfeiture and why. As to conveyances, at the judicial in rem proceeding, in its case in chief, the State shall show by a preponderance of the evidence: (A) that the property is subject to forfeiture; and (B) at least one of the following: (i) that the claimant was legally accountable for the conduct giving rise to the forfeiture; (ii) that the claimant knew or reasonably should have known of the conduct giving rise to the forfeiture; (iii) that the claimant knew or reasonably should have known that the conduct giving rise to the forfeiture was likely to occur; (iv) that the claimant held the property for the benefit of, or as nominee for, any person whose conduct gave rise to its forfeiture; (v) that if the claimant acquired the interest through any person engaging in any of the conduct described above or conduct giving rise to the forfeiture: (a) the claimant did not acquire it as a bona fide purchaser for value; or (b) the claimant acquired the interest under the circumstances that the claimant reasonably should have known the property was derived from, or used in, the conduct giving rise to the forfeiture; or (vi) that the claimant is not the true owner of the property that is subject to forfeiture. (10) If the State does not meet its burden to show that the property is subject to forfeiture, the court shall order the interest in the property returned or conveyed to the claimant and shall order all other property forfeited to the State. If the State does meet its burden to show that the property is subject to forfeiture, the court shall order all property forfeited to the State. (11) A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding under this Article regardless of the pendency of an appeal from that conviction. However, evidence of the pendency of an appeal is admissible. (12) On a motion by the parties, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a money laundering violation. Such a stay shall not be available pending an appeal. Property subject to forfeiture under this Article shall not be subject to return or release by a court exercising jurisdiction over a criminal case involving the seizure of the property unless the return or release is consented to by the State's Attorney.

Legislative History

(Source: P.A. 100-699, eff. 8-3-18; 100-1163, eff. 12-20-18.)