HF 2989

as introduced - 86th Legislature (2009 - 2010) Posted on 02/15/2010 10:20am

A bill for an act
relating to public safety; recodifying and consolidating certain forfeiture
provisions while making numerous substantive and technical changes; proposing
coding for new law in Minnesota Statutes, chapter 609; repealing Minnesota
Statutes 2008, sections 169A.63; 609.531, subdivisions 1, 1a, 4, 5, 5a, 6a;
609.5311; 609.5312; 609.5313; 609.5314; 609.5315; 609.5316; 609.5317;
609.5318; 609.762, subdivisions 2, 3, 4, 5; Minnesota Statutes 2009 Supplement,
section 609.762, subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [609.95] FORFEITURES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin For the purposes of this section, the following terms
have the meanings given them.
new text end

new text begin (a) "Appropriate agency" means the Bureau of Criminal Apprehension, the
Department of Commerce Division of Insurance Fraud Prevention, the Minnesota Division
of Driver and Vehicle Services, the Minnesota State Patrol, a county sheriff's department,
the Three Rivers Park District park rangers, the Department of Natural Resources Division
of Enforcement, the University of Minnesota Police Department, the Department of
Corrections Fugitive Apprehension Unit, or a city, metropolitan transit, or airport police
department. For forfeitures under subdivision 7, the term means a law enforcement agency
that has the authority to make an arrest for a violation of a designated DWI offense.
new text end

new text begin (b) "Contraband" means property that is illegal to possess under Minnesota law.
new text end

new text begin (c) "Controlled substance" has the meaning given in section 152.01, subdivision 4.
new text end

new text begin (d) "Conveyance device" means a device used for transportation and includes,
but is not limited to, a motor vehicle, trailer, snowmobile, airplane, and vessel and any
equipment attached to it. The term "conveyance device" does not include property that is,
in fact, itself stolen or taken in violation of the law.
new text end

new text begin (e) "Designated DWI license revocation" includes a license revocation under section
169A.52 or a license disqualification under section 171.165 resulting from a violation of
section 169A.52; within ten years of the first of two or more qualified prior impaired
driving incidents as defined in section 169A.03, subdivision 22.
new text end

new text begin (f) "Designated DWI offense" includes:
new text end

new text begin (1) a violation of section 169A.20 under the circumstances described in section
169A.24 or 169A.25; or
new text end

new text begin (2) a violation of section 169A.20 or an ordinance in conformity with it:
new text end

new text begin (i) by a person whose driver's license or driving privileges have been canceled
as inimical to public safety under section 171.04, subdivision 1, clause (10), and not
reinstated; or
new text end

new text begin (ii) by a person who is subject to a restriction on the person's driver's license under
section 171.09, subdivision 1, paragraph (d), clause (1), which provides that the person
may not use or consume any amount of alcohol or a controlled substance.
new text end

new text begin (g) "Designated offense" includes:
new text end

new text begin (1) for weapons used: any violation of this chapter, chapter 152, or chapter 624;
new text end

new text begin (2) for driver's license or identification card transactions: any violation of section
171.22; and
new text end

new text begin (3) for all other purposes: a felony violation of, or a felony-level attempt or
conspiracy to violate, section 325E.17; 325E.18; 609.185; 609.19; 609.195; 609.21;
609.221; 609.222; 609.223; 609.2231; 609.24; 609.245; 609.25; 609.255; 609.282;
609.283; 609.322; 609.342, subdivision 1, clauses (a) to (f); 609.343, subdivision 1,
clauses (a) to (f); 609.344, subdivision 1, clauses (a) to (e) and (h) to (j); 609.345,
subdivision 1, clauses (a) to (e) and (h) to (j); 609.352; 609.42; 609.425; 609.466;
609.485; 609.52; 609.525; 609.527; 609.528; 609.53; 609.54; 609.551; 609.561; 609.562;
609.563; 609.582; 609.59; 609.595; 609.611; 609.631; 609.66, subdivision 1e; 609.671,
subdivisions 3, 4, 5, 8, and 12; 609.687; 609.821; 609.825; 609.86; 609.88; 609.89;
609.893; 609.895; 617.246; 617.247; or a gross misdemeanor or felony violation of
section 609.891 or 624.7181; or any violation of section 609.324.
new text end

new text begin (h) "Property" means property as defined in section 609.52, subdivision 1, clause (1).
new text end

new text begin (i) "Weapon used" means a dangerous weapon as defined under section 609.02,
subdivision 6, that the actor used or had in possession in furtherance of a crime.
new text end

new text begin Subd. 2. new text end

new text begin Purpose and construction. new text end

new text begin (a) The purpose of this section is to deter
criminal activity. Property is subject to forfeiture only when courts determine that
forfeiture is necessary and proportional to fulfilling that purpose.
new text end

new text begin (b) Courts shall strictly construe this section and resolve any doubt in its applicability
in favor of the party challenging the forfeiture.
new text end

new text begin Subd. 3. new text end

new text begin Controlled substances and property associated with controlled
substances. new text end

new text begin (a) The following are subject to forfeiture under this section following a
conviction for a felony-level controlled substance crime:
new text end

new text begin (1) all controlled substances that were manufactured, distributed, dispensed, or
acquired in violation of chapter 152;
new text end

new text begin (2) all real and personal property that was used in or represents the proceeds derived
proximately from the manufacturing, compounding, processing, delivering, importing,
cultivating, exporting, transporting, or exchanging of contraband or a controlled substance
that has not been lawfully manufactured, distributed, dispensed, and acquired; and
new text end

new text begin (3) all books, records, and research products and materials, including formulas,
microfilm, tapes, and data that are used in the manner described in clause (2).
new text end

new text begin (b) For purposes of forfeiture under this subdivision, a stipulation of facts that is a
part of a diversion agreement is considered to be a conviction.
new text end

new text begin Subd. 4. new text end

new text begin Property associated with designated offenses. new text end

new text begin Upon conviction, all real
and personal property that was used to commit a designated offense or represents the
proceeds derived proximately from a designated offense is subject to forfeiture.
new text end

new text begin Subd. 5. new text end

new text begin Designated offenses; computers and related property subject to
forfeiture. new text end

new text begin (a) As used in this subdivision, "property" has the meaning given in section
609.87, subdivision 6.
new text end

new text begin (b) When a computer or a component part of a computer is used to commit a
designated offense, upon conviction, the computer and all software, data, and other
property contained in the computer are subject to forfeiture unless prohibited by the
Privacy Protection Act, United States Code, title 42, sections 2000aa to 2000aa-12, or
other state or federal law.
new text end

new text begin (c) Regardless of whether a forfeiture action is initiated following the lawful seizure
of a computer and related property, if the appropriate agency returns hardware, software,
data, or other property to the owner, the agency may charge the owner for the cost of
separating contraband from the computer or other property returned, including salary and
contract costs. The agency may not charge these costs to an owner of a computer or
related property who was not privy to the act or omission upon which the seizure was
based, or who did not have knowledge of or consent to the act or omission, if the owner:
new text end

new text begin (1) requests from the agency copies of specified legitimate data files and provides
sufficient storage media; or
new text end

new text begin (2) requests the return of a computer or other property less data storage devices on
which contraband resides.
new text end

new text begin Subd. 6. new text end

new text begin Gambling devices, prizes, and proceeds. new text end

new text begin The following are subject to
forfeiture under this section following a conviction for a gambling crime:
new text end

new text begin (1) devices used or intended for use, including those defined in section 609.75,
subdivision 4, as a gambling device, except as authorized in sections 299L.07 and 349.11
to 349.23;
new text end

new text begin (2) all real and personal property that was used in gambling, including money used
as prizes, or that represents the proceeds derived proximately from gambling;
new text end

new text begin (3) books, records, and research products and materials, including formulas,
microfilm, tapes, and data used or intended for use in gambling; and
new text end

new text begin (4) property used or intended to be used to illegally influence the outcome of a
horse race.
new text end

new text begin Subd. 7. new text end

new text begin Additional conveyance device forfeitures. new text end

new text begin (a) Upon conviction,
a conveyance device is subject to forfeiture under this section if it was used in the
commission of one of the following crimes:
new text end

new text begin (1) a designated DWI offense;
new text end

new text begin (2) a prostitution offense under section 609.324 or a local ordinance substantially
similar to section 609.324; or
new text end

new text begin (3) fleeing a peace officer under section 609.487 when endangering life or property.
new text end

new text begin (b) A conveyance device is subject to forfeiture under this section if it was used in
conduct resulting in a designated DWI license revocation and the driver fails to seek
judicial review of the revocation in a timely manner as required by section 169A.53,
subdivision 2, or the license revocation is judicially reviewed and sustained under section
169A.53, subdivision 2.
new text end

new text begin Subd. 8. new text end

new text begin Residential rental property. new text end

new text begin (a) When contraband or a controlled
substance manufactured, distributed, or acquired in violation of chapter 152 is seized on
residential rental property incident to a lawful search or arrest, following a felony-level
conviction, the county attorney shall give the notice required by this subdivision to (1) the
landlord of the property or the fee owner identified in the records of the county assessor,
and (2) the agent authorized by the owner to accept service pursuant to section 504B.181.
The notice shall state what has been seized and specify the applicable duties and penalties
under this subdivision. The notice shall state that the landlord who chooses to assign
the right to bring an eviction action retains all rights and duties, including removal of a
tenant's personal property following issuance of the writ of restitution and delivery of the
writ to the sheriff for execution. The notice shall also state that the landlord may contact
the county attorney if threatened by the tenant. Notice shall be sent by certified letter,
return receipt requested, within 30 days of the seizure. If receipt is not returned, notice
shall be given in the manner provided by law for service of summons in a civil action.
new text end

new text begin (b) Within 15 days after notice of the first occurrence, the landlord shall bring, or
assign to the county attorney of the county in which the real property is located, the right
to bring an eviction action against the tenant. The assignment must be in writing on a form
prepared by the county attorney. Should the landlord choose to assign the right to bring
an eviction action, the assignment shall be limited to those rights and duties up to and
including delivery of the writ of restitution to the sheriff for execution.
new text end

new text begin (c) Upon notice of a second occurrence on any residential rental property owned by
the same landlord in the same county and involving the same tenant, and within one year
after notice of the first occurrence, the property is subject to forfeiture under this section,
unless an eviction action has been commenced as provided in paragraph (b) or the right
to bring an eviction action was assigned to the county attorney as provided in paragraph
(b). If the right has been assigned and not previously exercised, or if the county attorney
requests an assignment and the landlord makes an assignment, the county attorney may
bring an eviction action rather than an action for forfeiture.
new text end

new text begin (d) Nothing in this subdivision prevents the county attorney from proceeding under
subdivision 3 whenever that subdivision applies.
new text end

new text begin (e) It is a defense against a proceeding under paragraph (b) that the tenant had no
knowledge or reason to know of the presence of the contraband or controlled substance
or could not prevent its being brought onto the property.
new text end

new text begin (f) It is a defense against a proceeding under paragraph (c) that the landlord made
every reasonable attempt to evict a tenant or to assign the county attorney the right to
bring an eviction action against the tenant, or that the landlord did not receive notice
of the seizure.
new text end

new text begin Subd. 9. new text end

new text begin Seizure. new text end

new text begin (a) Property subject to forfeiture under this section may be seized
by the appropriate agency upon process issued by any court having jurisdiction over the
property. Property may be seized without process if:
new text end

new text begin (1) the seizure is incident to a lawful arrest or a lawful search;
new text end

new text begin (2) the property subject to seizure has been the subject of a prior judgment in favor
of the state in a criminal injunction or forfeiture proceeding under this chapter; or
new text end

new text begin (3) the appropriate agency has probable cause to believe that the delay occasioned
by the necessity to obtain process would result in the removal or destruction of the
property and that:
new text end

new text begin (i) the property was used or is intended to be used in commission of a felony; or
new text end

new text begin (ii) the property is dangerous to health or safety.
new text end

new text begin If property is seized without process, the prosecutor shall institute a forfeiture action
under this section as soon as is reasonably possible.
new text end

new text begin (b) When property is seized under this subdivision, the appropriate agency may:
new text end

new text begin (1) place the property under seal;
new text end

new text begin (2) remove the property to a place designated by it; and
new text end

new text begin (3) in the case of controlled substances, require the state Board of Pharmacy to
take custody of the property and remove it to an appropriate location for disposition
in accordance with law.
new text end

new text begin Except for contraband under clause (3), the agency shall ensure that the property is
maintained and cared for in a manner likely to secure the property and preserve its value.
new text end

new text begin (c) Any property seized under this section is not subject to replevin, but is deemed to
be in the custody of the appropriate agency subject to the orders and decrees of the court
having jurisdiction over the forfeiture proceedings.
new text end

new text begin (d) Property seized illegally is not subject to forfeiture under this section.
new text end

new text begin Subd. 10. new text end

new text begin Release of property before final determination. new text end

new text begin (a) If the owner of
property that has been seized under this section seeks possession of the property before
the forfeiture action is determined, the owner may give security or post bond payable to
the appropriate agency in an amount equal to the retail value of the seized property. The
appropriate agency may deny acceptance of the security or bond by obtaining a court order
within two business days of the attempt to post the security or bond by showing cause for
the agency to maintain possession of the seized asset. On posting the security or bond,
the seized property must be returned to the owner and the forfeiture action shall proceed
against the security as if it were the seized property. This subdivision does not apply
to contraband property.
new text end

new text begin (b) If the owner of a conveyance device that has been seized under this section
seeks possession of the device before the forfeiture action is determined, the owner may
surrender the device's certificate of title in exchange for the device. The device must be
returned to the owner within 24 hours if the owner surrenders the device's certificate of
title to the appropriate agency, pending resolution of the forfeiture action. If the certificate
is surrendered, the owner may not be ordered to post security or bond as a condition of
release of the device. If the device is not returned as required in this subdivision, the
appropriate agency is liable to the owner for the owner's actual costs incurred due to the
agency's failure to return it. When a certificate of title is surrendered under this provision,
the agency shall notify the Department of Public Safety and any secured party noted on
the certificate. The agency shall also notify the department and the secured party when it
returns a surrendered title to the device's owner.
new text end

new text begin (c) Any person with an interest in property that has been seized for forfeiture under
this section may file an application to have an order to show cause issued to the prosecuting
agency to determine if probable cause existed to seize the property for forfeiture.
new text end

new text begin When a hearing is held on the show cause order, the court shall determine if probable
cause to seize the property for forfeiture exists on the date of the hearing. If the court finds
that probable cause for seizure of the property for forfeiture does not exist, the appropriate
agency shall release the property.
new text end

new text begin Subd. 11. new text end

new text begin Forfeiture a civil procedure; conviction or implied consent revocation
as prerequisite; speedy determination. new text end

new text begin (a) An action for forfeiture under this section is
an independent civil in rem action. The appropriate agency handling the forfeiture has the
burden of proving by clear and convincing evidence that:
new text end

new text begin (1) except as provided in subdivision 7, paragraph (b), the owner of the property was
convicted of a crime that subjects the property to forfeiture;
new text end

new text begin (2) the owner's property was used in committing the underlying crime or conduct or
represents proceeds derived proximately from the underlying crime; and
new text end

new text begin (3) the forfeiture of any property used to commit a crime or conduct is proportional
to the underlying crime or conduct.
new text end

new text begin (b) Forfeitures under this section are not subject to the rules of civil procedure.
new text end

new text begin (c) Notwithstanding section 357.021, no filing or other court-related fees may be
assessed against a person contesting a forfeiture.
new text end

new text begin (d) Forfeiture actions must be heard by the court at the earliest practicable date, and
in any event no later than 120 days following the filing of the claimant's answer unless
this requirement is waived by the claimant.
new text end

new text begin (e) The court may order sanctions under section 549.211.
new text end

new text begin Subd. 12. new text end

new text begin Complaint; notice. new text end

new text begin The prosecutor must file a separate complaint
against the property subject to forfeiture under this section stating the act, omission, or
occurrence giving rise to the forfeiture and the date and place of the act or occurrence.
The prosecutor shall notify by personal service the owner or possessor of the property of
the action, if known or readily ascertainable. The action must be captioned in the name of
the prosecuting jurisdiction as plaintiff and the property as defendant.
new text end

new text begin The complaint must be accompanied by a written notice describing the property
seized, the date of seizure, and a description of the forfeiture process, including the steps
the person has to take to defend the person's interest in the property. This notice must
be worded in plain language that is likely to be understood by a person with limited
reading skills. This notice must include a detachable form designed in a manner and with
sufficient space to be easily used by the person receiving it to object to the forfeiture.
The objection may be made by immediately returning the form to the person serving it
or by filing it in the district court having jurisdiction over the property or the person's
residence. If the objection is made to the person serving the complaint, that person shall
give the objector written acknowledgment of the objection and forward the objection to
the prosecutor who shall file it with the court. The written objection shall serve as the
person's answer to the complaint.
new text end

new text begin Subd. 13. new text end

new text begin Limitations; liens and innocent owner. new text end

new text begin (a) Property encumbered by a
bona fide security interest is subject to the interest of the secured party. A person claiming
a security interest bears the burden of establishing that interest by clear and convincing
evidence.
new text end

new text begin (b) If any person who has not been convicted of an underlying crime or the subject of
a final implied consent determination that triggers a forfeiture demonstrates by substantial
evidence that the person has an ownership interest in property subject to forfeiture under
this section, the person's interest is not subject to forfeiture unless the prosecutor proves
by clear and convincing evidence that the person took the property or interest with the
intent of defeating the forfeiture or the person consented to the underlying criminal act or
conduct.
new text end

new text begin Subd. 14. new text end

new text begin Return of property and damages. new text end

new text begin (a) Property shall be returned to the
property owner no later than three business days after a court finds that:
new text end

new text begin (1) the property owner has a bona fide security interest or is an innocent owner
under subdivision 13;
new text end

new text begin (2) charges against the accused property owner are dismissed;
new text end

new text begin (3) the accused property owner is found not guilty of the criminal charge that is
the basis for the forfeiture action;
new text end

new text begin (4) the designated DWI license revocation that is the basis for the forfeiture is
overturned; or
new text end

new text begin (5) the property is a computer and the property owner is not privy to the act or
omission upon which the seizure is made, under subdivision 5.
new text end

new text begin (b) A property owner may bring a claim in district court for damages to the seized
property against the agency that seized the property, under the circumstances described in
paragraph (a), clauses (1) to (5).
new text end

new text begin Subd. 15. new text end

new text begin Department of Corrections Fugitive Apprehension Unit. new text end

new text begin The
Department of Corrections Fugitive Apprehension Unit may not seize conveyance devices
or real property for forfeiture under this section.
new text end

new text begin Subd. 16. new text end

new text begin Unclaimed property; contraband. new text end

new text begin Notwithstanding any contrary
provision in this section, a judgment of forfeiture may be entered without an underlying
conviction or designated DWI license revocation for the following types of property:
new text end

new text begin (1) contraband; and
new text end

new text begin (2) property for which no person has claimed an interest and, after reasonable
investigation, no owner has been found.
new text end

new text begin Subd. 17. new text end

new text begin Disposition of forfeited property. new text end

new text begin (a) If the court finds under this
section that property is subject to forfeiture, it shall order the appropriate agency to do
one of the following:
new text end

new text begin (1) unless a different disposition is provided under clause (3) or (4), either destroy
firearms, ammunition, and firearm accessories that the agency decides not to use for law
enforcement purposes, or sell them to federally licensed firearms dealers, as defined in
section 624.7161, subdivision 1, and distribute the proceeds under paragraph (b);
new text end

new text begin (2) sell property that is not required to be destroyed by law and is not harmful to
the public and distribute the proceeds under paragraph (b);
new text end

new text begin (3) sell antique firearms, as defined in section 624.712, subdivision 3, to the public
and distribute the proceeds under paragraph (b);
new text end

new text begin (4) destroy or use for law enforcement purposes semiautomatic military-style assault
weapons, as defined in section 624.712, subdivision 7;
new text end

new text begin (5) take custody of the property and remove it for disposition in accordance with
law; or
new text end

new text begin (6) disburse money as provided under paragraph (b).
new text end

new text begin Notwithstanding clauses (1) and (3), the Hennepin or Ramsey County sheriff may not
sell firearms, ammunition, or firearms accessories if the policy is disapproved by the
applicable county board.
new text end

new text begin (b) The money or proceeds from the sale of forfeited property, after payment of
seizure, storage, forfeiture, and sale expenses, and satisfaction of valid liens against
the property, must be forwarded to the commissioner of management and budget to be
deposited into the state treasury and credited to the general fund. This money must be
appropriated by the legislature for public safety purposes.
new text end

new text begin (c) Sales of forfeited property under this subdivision must be conducted in a
commercially reasonable manner.
new text end

new text begin (d) Employees of law enforcement agencies and their family members may not
purchase forfeited items directly from the appropriate agency.
new text end

new text begin Subd. 18. new text end

new text begin Reporting requirement. new text end

new text begin (a) For each forfeiture occurring in the state
regardless of the authority for it, the appropriate agency and the prosecutor shall provide a
written record of the forfeiture incident to the state auditor. The record shall include the
amount forfeited, the underlying crime or conduct, its date, whether the property had a lien
against it, and whether the forfeiture was contested. The record shall also list the number
of firearms forfeited and the make, model, and serial number of each firearm forfeited.
The record shall indicate how the property was or is to be disposed of.
new text end

new text begin (b) An appropriate agency and the prosecutor shall report to the state auditor all
instances in which property seized for forfeiture is returned to its owner either because
forfeiture is not pursued or for any other reason.
new text end

new text begin (c) The state auditor may require information not specified in this subdivision to
be reported as well.
new text end

new text begin (d) Reports shall be made on a monthly basis in a manner prescribed by the state
auditor. The state auditor shall report annually to the legislature and the public on the
nature and extent of forfeitures.
new text end

new text begin (e) For forfeitures resulting from the activities of multijurisdictional law enforcement
entities, the entity on its own behalf shall report the information required in this
subdivision.
new text end

new text begin (f) The state auditor shall include in its report required under paragraph (d)
recommended changes to forfeiture law to better ensure that forfeiture proceedings are
handled in a manner that is fair to innocent property owners and interest holders.
new text end

new text begin (g) The state auditor shall include in its report required under paragraph (d)
information on law enforcement agencies and prosecutorial offices not in compliance
with this section.
new text end

new text begin Subd. 19. new text end

new text begin Penalty for violations. new text end

new text begin (a) Any person acting under color of law, official
title, or position who takes any action intending to conceal, transfer, withhold, retain,
divert, or otherwise prevent any proceeds, conveyances, real property, or any things
of value forfeited under the law of this state or the United States from being applied,
deposited, or used in accordance with this section is subject to a civil penalty in an
amount of three times the value of the forfeited property concealed, transferred, withheld,
retained, or diverted.
new text end

new text begin (b) Nothing in this subdivision shall be construed to impair judicial immunity
if otherwise applicable.
new text end

new text begin Subd. 20. new text end

new text begin Coordination with federal law. new text end

new text begin The state and local units of government
shall take all necessary steps to obtain shared property or proceeds from the United States
Department of Justice resulting from a forfeiture. Any property or proceeds received from
the United States Department of Justice by the state or any local unit of government shall
be disposed of as provided in subdivision 17.
new text end

new text begin Neither the state, a local unit of government, nor any forfeiting agency shall
transfer forfeiture proceedings to the federal government to circumvent state law. For an
appropriate agency to transfer a forfeiture proceeding to the federal government, a state
court shall have affirmatively found that:
new text end

new text begin (1) the activity giving rise to the forfeiture is interstate in nature and sufficiently
complex to justify the transfer; or
new text end

new text begin (2) the seized property is forfeitable only under federal law.
new text end

Sec. 2. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin In the 2010 and subsequent editions of Minnesota Statutes, the revisor of statutes
shall make changes to statutory cross-references as necessitated by this bill.
new text end

Sec. 3. new text begin REPEALER.
new text end

new text begin (a) new text end new text begin Minnesota Statutes 2008, sections 169A.63; 609.531, subdivisions 1, 1a, 4, 5, 5a, and 6a; 609.5311; 609.5312; 609.5313; 609.5314; 609.5315; 609.5316; 609.5317; 609.5318; and 609.762, subdivisions 2, 3, 4, and 5, new text end new text begin are repealed. new text end

new text begin (b) new text end new text begin Minnesota Statutes 2009 Supplement, section 609.762, subdivision 1, new text end new text begin is repealed. new text end