§ 45-9-206 — Use Or Possession Of Property Subject To Criminal Forfeiture -- Property Subject To Criminal Forfeiture

45-9-206 . Use or possession of property subject to criminal forfeiture -- property subject to criminal forfeiture. (1) A person commits the offense of use or possession of property subject to criminal forfeiture if the person knowingly possesses, owns, uses, or attempts to use property that is subject to criminal forfeiture under this section. A person convicted of the offense of use or possession of property subject to criminal forfeiture shall be imprisoned in the state prison for a term not to exceed 10 years. Upon conviction, the property subject to criminal forfeiture is forfeited to the state and must be disposed of in accordance with the provisions of 44-12-212 and 44-12-213 .
(2) A person charged with an offense pursuant to this section may request a pretrial forfeiture hearing pursuant to 44-12-209 .
(3) The following property is subject to criminal forfeiture under this section:
(a) money, raw materials, products, equipment, and other property of any kind that is used or intended for use in manufacturing, preparing, cultivating, compounding, processing, delivering, importing, or exporting a dangerous drug in violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 ;
(b) property used or intended for use as a container for property enumerated in subsection (3)(a);
(c) a conveyance, including an aircraft, vehicle, or vessel, used or intended for use to facilitate a violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 ;
(d) books, records, research products and materials, formulas, microfilm, tapes, and data used or intended for use in connection with a violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 ;
(e) (i) everything of value furnished or intended to be furnished in exchange for a dangerous drug in violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 ; and
(ii) all proceeds traceable to such an exchange;
(f) money, negotiable instruments, securities, and weapons used or intended to be used to facilitate a violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 ;
(g) personal property constituting or derived from proceeds obtained directly or indirectly from a violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 ; and
(h) real property, including any right, title, and interest in a lot or tract of land and any appurtenances or improvements, that is directly used or intended to be used in any manner to facilitate a violation of or that is derived from or maintained by proceeds resulting from a violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 .
(4) Property subject to criminal forfeiture under this section may be seized under the following circumstances:
(a) A peace officer who has probable cause to make an arrest for a violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy was a violation of 45-9-101 , 45-9-103 , or 45-9-110 may seize a conveyance obtained with proceeds of the violation or used to facilitate the violation and shall immediately deliver the conveyance to the peace officer's law enforcement agency, to be held as evidence until a criminal forfeiture is declared or release ordered.
(b) Property subject to criminal forfeiture under this section may be seized by a peace officer under a search warrant issued by a court having jurisdiction over the property.
(c) Seizure without a warrant may be made if:
(i) the seizure is incident to an arrest or a search under a search warrant issued for another purpose or an inspection under an administrative inspection warrant;
(ii) the property was the subject of a prior judgment in favor of the state in a criminal proceeding or a criminal forfeiture proceeding based on this section or on Title 44, chapter 12;
(iii) a peace officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(iv) a peace officer has probable cause to believe that the property was used or is intended to be used in violation of 45-9-101 , 45-9-103 , or 45-9-110 or of 45-4-102 when the object of the conspiracy is a violation of 45-9-101 , 45-9-103 , or 45-9-110 .
(5) As used in this section, "dangerous drug" means a substance designated as a dangerous drug under Title 50, chapter 32, parts 1 and 2.
(6) A prosecution under subsection (1) must be commenced within 45 days of the seizure of the property involved.
(7) A bona fide security interest is not subject to forfeiture unless the person claiming a security interest had actual knowledge, as defined in 44-12-101 , that the property was subject to forfeiture at the time that the property was seized under this chapter. A person claiming a security interest bears the burden of production and must establish the validity of the interest by clear and convincing evidence.
(8) The property of an innocent owner is not subject to forfeiture under this section. A property owner or person with an ownership interest in property subject to forfeiture must be declared an innocent owner if:
(a) the property owner or person with an ownership interest in the property can establish a legal right, title, or interest in the seized property; and
(b) the state is unable to prove by clear and convincing evidence that the owner or person with an ownership interest in the property had actual knowledge, as defined in 44-12-101 , of the crime associated with a forfeiture proceeding.

Legislative History

En. Sec. 1, Ch. 537, L. 1995; amd. Sec. 11, Ch. 421, L. 2015.