§ 56-29-50 — Forfeiture of motor vehicle, tools, implements, or other instrumentality.

(A) The following are subject to forfeiture unless obtained by theft, fraud, or conspiracy to defraud and the rightful owner is known or can be identified and located: (1) any tool; (2) any instrumentality, including but not limited to any motor vehicle or motor vehicle part, whether owned or unowned by the person from whose possession or control it was seized, which is used or possessed either in violation of Section 56-29-30 or to promote or facilitate a violation of Section 56-29-30. (B) Any motor vehicle, other conveyance, or motor vehicle part used by any person as a common carrier is subject to forfeiture under this section where the owner or other person in charge of the motor vehicle, other conveyance, or motor vehicle part is a consenting party to a violation of Section 56-29-30. (C) Any motor vehicle, motor vehicle part, other conveyance, tool, implement, or instrumentality is not subject to forfeiture under this section by reason of any act or omission which the owner proves to have been committed or omitted without the owner's knowledge or consent. (D) A forfeiture of a motor vehicle, motor vehicle part, or other conveyance encumbered by a bona fide security interest is subject to the interest of the secured party where the secured party neither had knowledge of nor consented to the act or omission forming the ground for the forfeiture. (E)(1) The circuit solicitor shall give notice of the forfeiture proceeding by mailing a copy of the complaint in the forfeiture proceeding to each person whose right, title, or interest is of record at the Department of Motor Vehicles or any other department of the State, or any other state or territory of the United States, or of the federal government if the property is required to be registered in the Department of Motor Vehicles. (2) Notice of the proceeding must be given to any other person as may appear, from the facts and circumstances, to have any right, title, or interest in or to the property. (3) The owner of the property, or any person having, or claiming right, title, or interest in the property, may within thirty days after the mailing of the notice file a verified answer to the complaint and may appear at the hearing on the action for forfeiture. (4) The circuit solicitor shall show at a forfeiture hearing, by a preponderance of the evidence, that the property was used in the commission of a violation of Section 56-29-30, or was used or possessed to facilitate the violation. (5) Unless the circuit solicitor makes the showing required, the court shall order the property released to the owner. Where the prosecutor has made a showing, the court shall order: (a) the property be destroyed by the agency which seized it or some other agency designated by the court; (b) the property be delivered and retained for use by the agency which seized it or some other agency designated by the court; or (c) any other disposition which the court considers appropriate under the circumstances. (F) A copy of a forfeiture order must be filed with the clerk of court of the county in which the forfeiture occurs and with each federal or state department with which the property is required to be registered. The order, when filed, constitutes authority for the issuance to the agency to whom the property is delivered and retained for use or to any purchaser of the property of a title certificate, registration certificate, or other special certificate as may be required by law considering the condition of the property. (G) Proceeds from sale at public auction, after payment of all reasonable charges and expenses incurred by the agency designated by the court to conduct the sale in storing and selling the property, must be paid to the general fund of the county in which the seizure occurred. (H) No motor vehicle, either seized under Section 56-29-40 or forfeited under this section, may be released by the seizing agency or used or sold by an agency designated by the court unless any altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed vehicle identification number is corrected by the issuance and affixing of either an assigned or replacement vehicle identification number plate as may be appropriate under laws or regulations of this State. (I) No motor vehicle or motor vehicle part may be forfeited under this section solely on the basis that it is unidentifiable. Instead of forfeiture, any seized motor vehicle or motor vehicle part which is unidentifiable must be the subject of a written report sent by the seizing agency to the Department of Motor Vehicles which report must include a description of the motor vehicle or motor vehicle part, its color, if any, the date, time, and place of its seizure, the name of the person from whose possession or control it was seized, the grounds for its seizure, and the location where it is held or stored. (J) The proceeds of the public sale of an unidentifiable motor vehicle or motor vehicle part must be deposited in the general fund of the governmental unit employing the seizing agency after deduction of any reasonable and necessary towing and storage charges. (K) A seized motor vehicle or motor vehicle part that is neither forfeited nor unidentifiable must be held subject to the order of the court in which the criminal action is pending or, if a request for its release from custody is made, until the prosecutor has notified the defendant or the defendant's attorney of the request and both the prosecution and defense have been afforded a reasonable opportunity for an examination of the property to determine its true value and to produce or reproduce, by photographs or other identifying techniques, legally sufficient evidence for introduction at trial or other criminal proceedings. Upon expiration of a reasonable time for the completion of the examination which in no event shall exceed fourteen days from the date of service upon the defense of the notice of request for return of property as provided herein, the property must be released to the person making the request after satisfactory proof of such person's entitlement to the possession thereof. Notwithstanding the foregoing, upon application by either party with notice to the other, the court may order retention of the property if it determines that retention is necessary in the furtherance of justice. (L) When a seized vehicle is forfeited, restored to its owner, or disposed of as unidentifiable, the seizing agency shall retain a report of the transaction for a period of at least seven years from the date of the transaction. (M) When an applicant for a certificate of title or salvage certificate presents to the Department of Motor Vehicles proof that the applicant purchased or acquired a motor vehicle at the public sale conducted pursuant to this section and that fact is attested to by the seizing agency, the department shall issue a certificate of title, or salvage certificate for the motor vehicle upon receipt of the statutory fee, properly executed application for a certificate of title, or other certificate of ownership, and the certification of the seizing agency that a state-assigned number was applied for and affixed to the motor vehicle prior to the time that the motor vehicle was released by the seizing agency to the purchaser.

Legislative History

HISTORY: 1987 Act No. 16, SECTION 6; 1993 Act No. 181, SECTION 1501; 1996 Act No. 459, SECTION 244.