§ 40:2611 — Judicial proceedings generally

Louisiana § 40:2611

• Jurisdiction: Louisiana
• Title 40: Public Health and Safety

Text

A. A judicial forfeiture proceeding under this Chapter is subject to the provisions of this Section.
B. The court, on application of the district attorney, may enter any restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, appraisers, accountants, or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to forfeiture under this Chapter, including a writ of attachment or a warrant for its seizure, whether before or after the filing of a Notice of Pending Forfeiture or petition for forfeiture.
C. If property is seized for forfeiture or a forfeiture lien is filed without a previous judicial determination of probable cause or order of forfeiture or a hearing under the provisions of Section 2613 of this Chapter, the court, on an application filed by an owner of or interest holder in the property, within ten days after notice of its seizure for forfeiture or lien, or actual knowledge of it, whichever is earlier, and after complying with the requirements for claims in Section 2610 of this Chapter, after five days notice to the district attorney, may issue an order to show cause to the seizing agency, for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists. The hearing shall be held within thirty days of the order to show cause unless continued for good cause on motion of either party. If the court finds that there is no probable cause for forfeiture of the property, the property shall be released to the custody of the applicant or from the lien pending the outcome of a judicial proceeding pursuant to this Section.
D. The court may order property which has been seized for forfeiture sold to satisfy a specified interest of any interest holder, on motion of such party, and after notice and a hearing, on all of the following conditions:
(1) That the interest holder has filed a proper claim and is a business authorized to do business in this state under the jurisdiction of the commissioner of financial institutions, the Department of Insurance, or the United States Securities and Exchange Commission, or that the interest holder is such a business which or a person who has an interest which the district attorney has stipulated is exempt from forfeiture.
(2) That the interest holder shall dispose of the property by commercially reasonable public sale and apply the proceeds to their interest and then to reasonable expenses incurred in connection with the sale or disposal.
(3) That the balance of the proceeds, if any, be returned to the actual or constructive custody of the court, in an interest bearing account, subject to further proceedings under this Chapter.
E. 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 pursuant to this Section regardless of the pendency of an appeal from that conviction. However, evidence of the pendency of an appeal is admissible. For the purposes of this Section, a conviction results from a verdict or plea of guilty, including a plea of nolo contendere.
F. In hearings and determinations pursuant to this Section, the court may receive and consider, in making any determination of probable cause or reasonable cause, all evidence admissible in determining probable cause at a preliminary hearing or by a judge pursuant to C.Cr.P. Art. 162 together with inferences therefrom.
G. The fact that money or a negotiable instrument was found in proximity to contraband or an instrumentality of conduct giving rise to forfeiture shall give rise to the permissible inference that the money or negotiable instrument was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate the conduct.
H. There shall also be a rebuttable presumption that any property of a person is subject to forfeiture under this Section if the state establishes all of the following:
(1) That the person has engaged in conduct giving rise to forfeiture.
(2) That the property was acquired by the person during the period of the conduct giving rise to forfeiture or within a reasonable time after that period.
(3) That there was no likely source for the property other than the conduct giving rise to forfeiture.
I. All property declared forfeited under this Chapter vests in this state on the commission of the conduct giving rise to forfeiture together with the proceeds of the property after that time. Any such property or proceeds subsequently transferred to any person remain subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing under the provisions of this Chapter that the transferee is a bona fide purchaser for value and the transferee's interest is exempt under Section 2605 of this Chapter.
J. An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this Chapter; however, for good cause shown, on motion by the district attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of this Chapter. Such a stay shall not be available pending an appeal.
K. Except as otherwise provided by this Chapter, all proceedings hereunder shall be governed by the provisions of the Louisiana Code of Civil Procedure. Additionally, any action under the provisions of this Chapter may be consolidated with any other action or proceeding pursuant to the Chapter relating to the same property on motion of the district attorney and may be consolidated on motion of an interest holder.
L. If a claimant whose property has been seized for forfeiture is successful in obtaining the return of the property in a civil proceeding, the court may award the claimant reasonable attorney fees, to be paid by the seizing agency, and the claimant shall also be exempt from any storage fees, or other costs incurred in the seizure, preservation, storage, or return of such seized property. Any searched or seized vehicle that is subsequently returned to a claimant, with or without court mandate, shall be returned in substantially the same condition as when searched or seized, together with any interest earned on monies or other negotiable instruments deposited, held, or invested.

Legislative History

Acts 1989, No. 375, §1, eff. Jan. 1, 1990; Acts 1992, No. 875, §1; Acts 1997, No. 1334, §1.