HB2695 - 552R

Be it enacted by the Legislature of the State of Arizona:

Section 1. Section 13-4304, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4304. Property subject to forfeiture; exemptions; innocent owner

A. Except as provided in subsections B, C and D of this section, all property, including all interests in such property, described in a statute providing for its forfeiture is subject to forfeiture if both of the following apply:

1. The owner is convicted of an offense to which forfeiture applies.

2. The state establishes by clear and convincing evidence that the property is subject to forfeiture as provided in subsection E of this section.

B. A vehicle used by any person as a common carrier in the transaction of business as a common carrier may not be forfeited under this chapter unless the state proves by clear and convincing evidence that the owner or other person in charge of the vehicle was a consenting party or privy to the act or omission giving rise to forfeiture or knew of it.

C. A vehicle may not be forfeited under this chapter following a conviction for any act or for an omission committed or omitted by a person other than the owner while the vehicle was unlawfully in the possession of a person other than the owner in violation of the criminal laws of this state or of the United States.

D. Property may not be forfeited pursuant to section 13-3413, subsection A, paragraph 1 or 3 if the conduct giving rise to the seizure both:

1. Did not involve an amount of unlawful substance greater than the statutory threshold amount as defined in section 13-3401.

2. Was not committed for financial gain.

E. After a person is convicted of an offense for which forfeiture applies, a court may order the person to forfeit any of the following:

1. Property the person acquired through the commission of the offense.

2. Property that is directly traceable to property acquired through the commission of the offense.

3. Any property or instrumentality that the person used in the commission of the offense or to facilitate the offense.

4. Substitute assets as prescribed in section 13-2314, subsection D, paragraph 6, subdivision (d) and in accordance with section 13-4305, subsection C.

F. The court may waive the conviction requirement if the prosecuting authority shows by clear and convincing evidence that there is no known owner of the seized property, diligent efforts have been made to identify the owner of the seized property and no person has asserted an ownership interest in the seized property or that, before conviction, the defendant or alleged criminal:

1. Died.

2. No longer resides in the United States or was deported.

3. Was granted immunity or reduced punishment in exchange for testifying or assisting a law enforcement investigation or prosecution.

4. Fled the jurisdiction of this state.

5. Abandoned the property.

G. This section does not prevent property from being forfeited by the terms of a plea agreement that is approved by a court or by other agreement of the parties in a criminal proceeding.

H. A person who claims to be an innocent owner has the burden of production to show that the person either:

1. Held a legal right, title or interest in the property seized at the time the illegal conduct that gave rise to the seizure of the property occurred.

2. Acquired as a bona fide purchaser for value a legal right, title or interest in the property subject to forfeiture after the commission of the crime that gave rise to the seizure of the property.

I. If a person establishes that the person is an innocent owner pursuant to subsection H of this section and the state pursues a forfeiture proceeding with respect to that person's property, other than property described in section 13-3413 to successfully forfeit the property, the state shall prove by clear and convincing evidence that the innocent owner had actual knowledge of the underlying crime that gave rise to the forfeiture.

J. If the state is unable to prove the person is not an innocent owner as provided in subsections H and I of this section, the court shall find that the person is an innocent owner and order the state to relinquish all claims of title to the property and return the property to the innocent owner. END_STATUTE

Sec. 2. Section 13-4309, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4309. Postdeprivation hearing

A. After the seizure of property, the defendant in the related criminal matter or another person who claims an interest in the seized property, up to sixty days after the notice, may claim an interest in seized property by filing a motion with the superior court requesting an order for the release of the claimed property to the person's custody pending further forfeiture proceedings and orders pursuant to this chapter. A motion filed pursuant to this section must include facts to support the person's alleged interest in the property. The state may elect to not contest the motion and the release of the claimed property to the custody of the person who is claiming the interest in the seized property. The state may request that the court issue a protective order that preserves the availability of released property pending further forfeiture proceedings.

B. A person who makes a timely motion for the return of property has a right to a hearing on the motion before the resolution of any related criminal matter or forfeiture proceeding and within thirty days after the date that the motion is filed.

C. At least ten days before a hearing on a motion filed pursuant to this section, the state shall file an answer or responsive motion that includes the reasons why the state is entitled to retain possession of the property.

D. The court shall grant the claimant's motion if the court finds that any of the following applies:

1. It is likely that the final judgment will require the state to return the property to the claimant.

2. The property is not reasonably required to be held for evidentiary reasons.

3. The property is the only reasonable means for a defendant to pay for legal representation in a related criminal or forfeiture proceeding.

E. The court may order the return of money or property sufficient to obtain legal counsel but less than the total amount seized and the court may require an accounting.

F. In lieu of ordering the return of property, the court may order:

1. The state to give security or written assurance for satisfaction of any judgment, including damages, that may be rendered in a related forfeiture action.

2. Any other relief that the court deems to be just.

G. This section does not prevent either of the following:

1. The state from returning any property to the owner of the property.

2. The filing of a racketeering lien pursuant to section 13-2314.02 or a restitution lien pursuant to section 13-806. END_STATUTE