 |
ARIZONA STATE SENATE
Fifty-Fifth Legislature, Second Regular Session
forfeiture; substitute assets; postdeprivation hearing
Purpose
Allows the court to order the forfeiture of substitute assets when appropriate.
Background
After a person
is convicted for an offense to which forfeiture applies, a court may order the
person to forfeit: 1) property the person acquired through the commission of
the offense;
2) property directly traceable to property acquired through the commission of
the offense; and
3) any property or instrumentality the person used in the commission of the
offense or to facilitate the offense. A person may file a claim of interest in
seized property by filing a motion with the superior court requesting the
release of claimed property and stating the facts to support the person's
alleged interest in the property (A.R.S. §§ 13-4304
and 13-4309).
A court must
determine probable cause before property may be seized for forfeiture as a
substitute asset. The forfeiture of substitute assets may be ordered if the
property: 1) cannot be located; 2) has been transferred, conveyed or sold to a
third party; 3) has been placed beyond the jurisdiction of the court; 4) has
been substantially diminished in value by any act or omission of the defendant;
5) has been commingled with other property which cannot be divided without
difficulty; or 6) is subject to any interest that is exempt from forfeiture
(A.R.S. §§ 13-4305
and
13-4313).
Substitute assets means any other property that has up to the same value
as property or interest acquired through a criminal enterprise and proceeds
traceable to racketeering offenses (A.R.S.
§ 13-2314).
There is no anticipated fiscal impact to the state General Fund associated with this legislation.
Provisions
1. Allows the court, after a person is convicted for an offense to which forfeiture applies, to order the person to forfeit any substitute assets as outlined and in accordance with requirements relating to seizure of property.
2. Specifies that statute governing the return of claimed property in postdeprivation hearings does not prevent:
a) the state from returning any property to the owner of the property; or
b) the filing of a racketeering lien or a restitution lien.
3. Makes technical changes.
4. Becomes effective on the general effective date.
House Action
JUD 2/16/22 DP 9-0-0-1
3rd Read 2/23/22 59-0-1
Prepared by Senate Research
March 8, 2022
ZD/sr