§ 24W — Forfeiture of motor vehicle owned by certain drunk driving offenders; procedure; Operating Under the Influence Deterrent Trust Fund

Section 24W. (a) A motor vehicle or vessel owned by a person who has been assigned to an alcohol or controlled substance education, treatment or rehabilitation program or who was convicted of a violation of paragraph (a) of subdivision (1) of section 24, subsection (a) of section 24G, operating a motor vehicle with a percentage by weight of blood alcohol of eight one-hundredths or greater, or while under the influence of intoxicating liquor in violation of subsection (b) of said section 24G, section 24L, subsection (a) of section 8 of chapter 90B, section 8A or 8B of chapter 90B, or section 131/2 of chapter 265 or, in the case of another jurisdiction, for any like offense, if owned by such operator, may be forfeited to the commonwealth if such person has been so assigned or so convicted previously at least 3 times.(b) A district attorney or the attorney general may petition the superior or district court in the name of the commonwealth in the nature of a proceeding in rem to order forfeiture of such motor vehicle or vessel. The petition shall be filed in the court having jurisdiction over the criminal proceeding brought under this section. The proceeding shall be deemed a civil suit in equity. In all such actions where the motor vehicle or vessel is jointly owned before the date of the second or subsequent operating under the influence offense committed by the defendant by either a parent, spouse, child, grandparent, brother, sister, or parent of the spouse living in the defendant's household, the commonwealth shall have the burden of proving to the court the existence of probable cause to institute the action, and the claimant shall have the burden of proving to the court's satisfaction that the property is not forfeitable because the claimant is dependent on the motor vehicle or vessel for his livelihood or the maintenance of his family. The court shall order the commonwealth to give notice by certified or registered mail to the owners of the motor vehicle or vessel and to such other persons or entities who appear to have an interest therein, and the court shall promptly, but not less than 2 weeks after notice, hold a hearing on the petition. Upon the motion of an owner of the motor vehicle or vessel, the court may continue the hearing on the petition pending the outcome of a criminal trial related to a charge of operating under the influence in violation of this chapter or chapter 90B. During the pendency of the proceedings, the court may issue at the request of the commonwealth ex parte any preliminary order or process as is necessary to seize or secure the property for which forfeiture is sought and to provide for its custody. Process for seizure of the property shall issue only upon a showing of probable cause, and the application therefore and the issuance, execution and return thereof shall be subject to chapter 276, as applicable.(c) At a hearing under this section, the court shall hear evidence and make findings of fact and conclusions of law, and shall thereon issue a final order from which the parties shall have such right of appeal as from a decree in equity. No forfeiture under this section shall extinguish a perfected security interest held by a creditor in the property at the time of the filing of the forfeiture action. In all actions where a final order results in forfeiture, the final order shall provide for disposition of the property by the commonwealth or any subdivision thereof in any manner not prohibited by law, including official use by an authorized law enforcement or other agency, or at sale at public auction or by competitive bidding, with such sale being conducted by the office of the district attorney or the attorney general that obtained the final order of forfeiture.(d) The final order of the court shall provide that the proceeds of any such sale shall be used to pay the reasonable expenses of the forfeiture proceedings, seizure, storage, maintenance of custody, advertising and notice, and the balance of any such sale shall be distributed equally among the prosecuting district attorney or attorney general, the city, town or state police department involved in the forfeiture and the Victims of Drunk Driving Trust Fund established in section 66 of chapter 10. If more than 1 department was substantially involved in the seizure, the court having jurisdiction over the forfeiture proceeding shall distribute the portion for law enforcement equitably among the departments.(e) There shall be established within the office of the state treasurer a separate Operating Under the Influence Deterrent Trust Fund for each district attorney and for the attorney general. All monies and proceeds received by a prosecuting district attorney or attorney general pursuant to this section shall be deposited in the fund and shall be expended without further appropriation to defray the costs of investigations, to provide additional technical equipment or expertise, to provide matching funds to obtain federal grants, or for such other law enforcement purposes as the district attorney or attorney general deems appropriate. Any program seeking to be an eligible recipient of the funds shall file an annual audit report with the local district attorney and attorney general. Such report shall include, but not be limited to, a listing of the assets, liabilities, itemized expenditures and board of directors of the program. Within 90 days of the close of the fiscal year, each district attorney and the attorney general shall file an annual report with the house and senate committees on ways and means and the clerks of the senate and the house of representatives on the use of the monies in the trust fund for the purposes of deterring operating under the influence programs.(f) All moneys and proceeds received by a police department shall be deposited into the fund and shall be expended without further appropriation to defray the costs of investigations, to provide additional technical equipment or expertise, to provide matching funds to obtain federal grants, or to accomplish such other law enforcement purposes as the chief of police of such city or town, or the colonel of state police deem appropriate, but such funds shall not be considered a source of revenue to meet the operating needs of such department.