§ 34-24-1-4 — Hearing; disposition of property; distribution of funds

Indiana § 34-24-1-4

• Jurisdiction: Indiana
• Title 34: CIVIL LAW AND PROCEDURE
• Art. 24: CIVIL PROCEEDINGS RELATED TO CRIMINAL
• Ch. 1: Forfeiture of Property Used in Violation of Certain

Text

(a) At the hearing, the prosecuting attorney
must show by a preponderance of the evidence that the property was
within the definition of property subject to seizure under section 1 of
this chapter. If the property seized was a vehicle, the prosecuting
attorney must also show by a preponderance of the evidence that a
person who has an ownership interest of record in the bureau of motor
vehicles knew or had reason to know that the vehicle was being used
in the commission of the offense.
(b) If the prosecuting attorney fails to meet the burden of proof, the
court shall order the property released to the owner, unless the owner's
possession of the property is illegal. If property is released to the owner
under this subsection, the owner is not subject to or responsible for any
charges for storage of the property or other expenses incurred in the
preservation of the property.
(c) If the court enters judgment in favor of the state, the court,
subject to section 5 of this chapter, shall order distribution of the
property in accordance with subsection (d). The court's order may
permit the law enforcement agency to use the property for a period not
to exceed three (3) years. However, the order must require that, after
the period specified by the court, the law enforcement agency shall
deliver the property to the county sheriff for public sale.
(d) If the court enters judgment in favor of the state, the court shall,
subject to section 5 of this chapter order that:
(1) the property, if it is not money or real property, be sold under
section 6 of this chapter, by the sheriff of the county in which the
property was seized, and if the property is a vehicle, this sale must
occur after any period of use specified in subsection (c);
(2) the property, if it is real property, be sold in the same manner
as real property is sold on execution under IC 34-55-6; and
(3) the proceeds of the sale or the money be distributed as
follows:
(A) To pay attorney's fees, if outside counsel is employed under
section 8 of this chapter.
(B) After payment of attorney's fees under clause (A), one third
(1/3) of the remaining amount shall be deposited into the
forfeiture fund established by the prosecuting attorney to offset
expenses incurred in connection with the investigation and
prosecution of the action.
(C) Except as provided in clause (D), after distribution of the
proceeds described in clauses (A) and (B), if applicable,
eighty-five percent (85%) of the remaining proceeds shall be
deposited in the:
(i) general fund of the state;
(ii) general fund of the unit that employed the law
enforcement officers that seized the property; or
(iii) county law enforcement fund established for the support
of the drug task force;
as determined by the court, to offset expenses incurred in the
investigation of the acts giving rise to the action.
(D) After distribution of the proceeds described in clauses (A)
and (B), if applicable, eighty-five percent (85%) of the
remaining proceeds shall be deposited in the general fund of a
unit if the property was seized by a local law enforcement
agency of the unit for an offense, an attempted offense, or a
conspiracy to commit a felony terrorist offense (as defined in IC 35-50-2-18) or an offense under IC 35-47 as part of or in
furtherance of an act of terrorism.
The court shall order that the proceeds remaining after the distribution
of funds to offset expenses described in subdivision (3) be forfeited and
transferred to the treasurer of state for deposit in the common school
fund.
(e) If property that is seized under this chapter (or IC 34-4-30.1-4
before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section 3
of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (or IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an
ownership interest of record as a bona fide purchaser for value. A
person is a bona fide purchaser for value under this section if the
person, at the time of the transfer, did not have reasonable cause to
believe that the property was subject to forfeiture under this chapter.
(f) If the property seized was an unlawful telecommunications
device (as defined in IC 35-45-13-6) or plans, instructions, or
publications used to commit an offense under IC 35-45-13, the court
may order the sheriff of the county in which the person was convicted
of an offense under IC 35-45-13 to destroy as contraband or to
otherwise lawfully dispose of the property.
[Pre-1998 Recodification Citation: 34-4-30.1-4.]

Legislative History

As added by P.L.1-1998, SEC.19. Amended by P.L.123-2002, SEC.31; P.L.47-2018, SEC.3; P.L.66-2019, SEC.5.