SB1574 - 562R

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

Section 1. Section 13-3413, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3413. Forfeiture and disposition of drugs and evidence

A. The following items used or intended for use in violation of this chapter are subject to seizure and forfeiture pursuant to chapter 39 of this title:

1. Property, equipment, containers, chemicals, materials, money, books, records, research products, formulas, microfilm, tapes and data.

2. Vapor-releasing substances containing a toxic substance.

3. Vehicles to transport or in any manner facilitate the transportation, sale or receipt of, or in which is contained or possessed, any item or drug, except as provided in chapter 39 of this title.

B. The following property is subject to seizure and forfeiture pursuant to chapter 39 of this title:

1. All proceeds traceable to an offense that is included in this chapter, that is committed for financial gain and that resulted in a criminal conviction or for which the criminal conviction is waived pursuant to section 13-4304, subsection f or section 13-4311, subsection b.

2. All proceeds seized in this state and traceable to an offense that:

(a) Resulted in a criminal conviction under the laws of the state in which the offense occurred and, if the offense occurred in a state other than this state, would be chargeable or indictable under this chapter if the offense occurred in this state.

(b) Is punishable by imprisonment for more than one year.

(d) Is committed for financial gain.

C. Peyote, dangerous drugs, prescription-only drugs, marijuana, narcotic drugs and plants from which such drugs may be derived that are seized in connection with any violation of this chapter or that come into the possession of a law enforcement agency are summarily forfeited.

D. When seizures of marijuana are made in excess of ten pounds or seizures of any other substance specified in subsection C of this section are made in excess of one pound in connection with any violation of this chapter the responsible law enforcement agency may retain ten pounds of the marijuana or one pound of the other substance randomly selected from the seized quantity for representation purposes as evidence. The agency may destroy the remainder of the seized marijuana or substance. Before any destruction is carried out, the responsible law enforcement agency shall photograph the material seized with identifying case numbers or other means of identification and prepare a report, identifying the seized material. The responsible law enforcement agency shall notify in writing any person arrested for a violation of this chapter or the attorney for the person at least twenty-four hours in advance that the photography will take place and that the person or the person's attorney may be present at such photographing of the seized material. In addition to the amount of marijuana or other substance retained for representation purposes as evidence, all photographs and records made under this section and properly identified are admissible in any court proceeding for any purpose for which the seized marijuana or substance itself would be admissible. Evidence retained after trial shall be disposed of pursuant to rule 28, Arizona rules of criminal procedure.

E. If a seizure is made of chemicals used for the manufacture of a narcotic drug or dangerous drug as defined in section 13-3401 in connection with a violation of this title, the seizing agency may apply to a magistrate or superior court judge in the application for the search warrant or as soon as reasonable after the seizure for an order allowing the proper disposal or destruction of the substances, on a showing to the magistrate or superior court judge by affidavit of both of the following:

1. The substances pose a significant safety hazard to life or property because of their explosive, flammable, poisonous or otherwise toxic nature.

2. No adequate and safe storage facility is reasonably available to the seizing agency.

F. On a proper showing pursuant to subsection E of this section, the magistrate or superior court judge shall order the substances to be properly destroyed if the containers are first photographed. In addition the magistrate or superior court judge may order that the chemicals be sampled and the samples preserved, unless the court finds either:

1. Sampling would be unnecessary or unsafe.

2. The chemicals are in labeled or factory sealed containers. END_STATUTE

Sec. 2. Section 13-3920, Arizona Revised Statutes, is amended to read:

START_STATUTE13-3920. Retention of property

A. All property seized on a warrant shall be retained in the custody of the seizing officer or agency that the officer represents, subject to the order of the court in which the warrant was issued, or any other court in which the property is sought to be used as evidence.

B. Notwithstanding section 13-3922, all property seized by a law enforcement agency in this state at any time must be returned to the owner, if known, within ten business days after the property's seizure unless any of the following applies:

1. The owner has been arrested and charged with a criminal offense subject to forfeiture.

2. The property is sought to be used as evidence.

3. It is illegal for the owner to possess the property.

4. The property was seized for forfeiture, in which case the property may be returned as prescribed by chapter 39 of this title.

5. the property has been abandoned. END_STATUTE

Sec. 3. Section 13-4301, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4301. Definitions

In this chapter, unless the context otherwise requires:

1. "Abandoned the property":

(a) Means personal property that the owner a person has intentionally relinquished the right to and or control over the personal property.

(b) Does not include property that is obtained as a result of a peace officer requesting, requiring or inducing a person to execute a document that purports to disclaim an interest in or right to the property or that relinquished interest in or rights to the property.

2. "Attorney for the state" means an attorney designated by the attorney general, by a county attorney or by a city attorney to investigate, commence and prosecute an action under this chapter.

3. "Commercially reasonable" means a sale or disposal that would be commercially reasonable under title 47, chapter 9, article 6.

4. "Injured person" means a person who has sustained economic loss, including medical loss, as a result of injury to his person, business or property by the conduct giving rise to the forfeiture of property, and who is not an owner of or an interest holder in the property. Injured person does not include a person who is responsible for the conduct giving rise to forfeiture or a person whose interest would not be exempt from forfeiture if the person were an owner of or interest holder in the property.

5. "Interest holder" means a person in whose favor there is a security interest or who is the beneficiary of a perfected encumbrance pertaining to an interest in property.

6. "Owner" means a person who is not a secured party as defined in section 47-9102 and who has an interest in property, whether legal or equitable. A person who holds property for the benefit of or as agent or nominee for another is not an owner. A purported interest that is not in compliance with any statute requiring its recordation or reflection in public records in order to perfect the interest against a bona fide purchaser for value shall not be recognized as an interest against this state in an action pursuant to this chapter. An owner with power to convey property binds other owners, and a spouse binds his spouse, by his act or omission.

7. "Person known to have an interest" means a person whose interest in property is reflected in the public records in which his interest is required by law to be recorded or reflected in order to perfect his interest. If a person's interest in property is not required by law to be reflected in public records in order to perfect his interest in the property, a person shall be known to have an interest only if his interest can be readily ascertained at the time the forfeiture action commences pursuant to this chapter.

8. "Personal property" includes all interests in property, as defined in section 13-105, in whatever form, except real property and fixtures as defined in section 47-9102.

9. "Seizing agency" means any department or agency of this state or its political subdivisions that regularly employs peace officers and that employs the peace officer who seizes property for forfeiture, or such other agency as the seizing agency may designate in a particular case by its chief executive officer or the chief executive officer's designee.

10. "Seizure for forfeiture" means seizure of property by a peace officer and either:

(a) There is an assertion by The seizing agency or by an attorney for the state asserts that the property is subject to forfeiture.

(b) The property has no evidentiary value. END_STATUTE

Sec. 4. Section 13-4305, Arizona Revised Statutes, is amended to read:

START_STATUTE13-4305. Seizure of property

A. Property subject to forfeiture under this chapter may be seized for forfeiture by a peace officer:

1. On process issued pursuant to the Arizona rules of civil procedure or this title, including a seizure warrant.

2. By making a seizure for forfeiture on property seized on process issued pursuant to law, including sections 13-3911, 13-3912, 13-3913, 13-3914 and 13-3915.

3. By making a seizure for forfeiture without court process if the officer has probable cause to believe that the property is subject to forfeiture and any of the following is true:

(a) The seizure for forfeiture is of property seized incident to a lawful arrest for a crime or a lawful search.

(b) The property subject to seizure for forfeiture has been the subject of a prior judgment in favor of this state or any other state or the federal government in a forfeiture proceeding.

(c) The peace officer has probable cause to believe that the property is subject to forfeiture and that the delay occasioned by the need to obtain a court order would result in the removal or destruction of the property or otherwise frustrate the seizure.

B. The court shall determine probable cause for seizure before real property may be seized for forfeiture. The court may make its determination ex parte if the state demonstrates that notice and an opportunity to appear would create a risk of harm to the public safety or welfare, including the risk of physical injury or the likelihood of property damage or financial loss.

C. The court shall determine probable cause for seizure before property may be seized for forfeiture as a substitute asset pursuant to section 13-2314, subsection D or E, or pursuant to section 13-4313, subsection A. The court may issue a seizure warrant for such property if it determines that there is probable cause to believe that the property is subject to forfeiture and is not available for seizure for forfeiture for any reason described in section 13-4313, subsection A. The determinations shall be made ex parte unless real property is to be seized and subsection B of this section requires notice and an opportunity to appear.

D. In establishing probable cause for seizure, a rebuttable presumption exists that the property of any person is subject to forfeiture if the state establishes all of the following by clear and convincing evidence:

1. Conduct giving rise to forfeiture occurred.

2. The person acquired the property during the period of the conduct giving rise to forfeiture or within a reasonable time after that period.

3. There is no likely source for the property other than the conduct giving rise to forfeiture.

E. The presence or possession of United States currency, debit cards or credit cards, without other indicia of a crime that subjects property to forfeiture, alone is insufficient probable cause for seizure of United States currency, debit cards or credit cards but may be considered as part of the totality of the circumstances of indicia of a crime in establishing probable cause for seizure under subsection D of this section. END_STATUTE