HF 2242

as introduced - 86th Legislature (2009 - 2010) Posted on 02/09/2010 02:00am

A bill for an act
relating to natural resources; providing for seizure and forfeiture of certain
off-highway vehicles; modifying operating restrictions for all-terrain vehicles;
providing criminal penalties; amending Minnesota Statutes 2008, section 84.928,
subdivision 1a; proposing coding for new law in Minnesota Statutes, chapter 84;
repealing Minnesota Statutes 2008, sections 84.796; 84.805; 84.929.

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

Section 1.

new text begin [84.774] OFF-HIGHWAY VEHICLE CRIMINAL PENALTIES.
new text end

new text begin (a) Except as provided in paragraph (b), a person who violates a provision of
sections 84.773; 84.777; 84.788 to 84.795; 84.798 to 84.804; 84.90; or 84.922 to 84.928 or
rules of the commissioner relating to off-highway vehicle use is guilty of a misdemeanor.
new text end

new text begin (b) A person is guilty of a gross misdemeanor if the person violates section 84.773,
subdivision 2, clause (2), and the person recklessly upsets the natural and ecological
balance of a wetland or public waters wetland.
new text end

new text begin (c) A person is prohibited from operating an off-highway vehicle for a period of one
year if the person:
new text end

new text begin (1) is convicted of a gross misdemeanor under paragraph (b);
new text end

new text begin (2) violates the prohibition on the intentional operation on unfrozen public water,
in a state park, in a scientific and natural area, or in a wildlife management area under
section 84.773, subdivision 1, clause (3); or
new text end

new text begin (3) violates the prohibition on the willful, wanton, or reckless disregard for the safety
of persons or property under section 84.773, subdivision 2, clause (1).
new text end

new text begin The commissioner shall notify the person of the time period during which the person
is prohibited from operating an off-highway vehicle.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2009, and applies to crimes
committed on or after that date.
new text end

Sec. 2.

new text begin [84.7741] OFF-HIGHWAY VEHICLE FORFEITURE.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) As used in this section, the following terms have
the meanings given them.
new text end

new text begin (b) "Appropriate agency" means a law enforcement agency that has the authority
to make an arrest for a violation of a designated offense.
new text end

new text begin (c) "Claimant" means an owner of an off-highway vehicle or a person claiming a
leasehold or security interest in an off-highway vehicle.
new text end

new text begin (d) "Designated offense" means a gross misdemeanor violation under section
84.774, paragraph (b).
new text end

new text begin (e) "Family or household member" means:
new text end

new text begin (1) a parent, stepparent, or guardian;
new text end

new text begin (2) any of the following persons related by blood, marriage, or adoption: brother,
sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent,
great-grandparent, great-uncle, or great-aunt; or
new text end

new text begin (3) persons residing together or persons who regularly associate and communicate
with one another outside of a workplace setting.
new text end

new text begin (f) "Off-highway vehicle" and "vehicle" do not include an off-highway vehicle that
is stolen or taken in violation of the law.
new text end

new text begin (g) "Owner" means a person legally entitled to possession, use, and control of an
off-highway vehicle, including a lessee of an off-highway vehicle if the lease agreement
has a term of 180 days or more. There is a rebuttable presumption that a person registered
as the owner of an off-highway vehicle according to the records of the Department of
Public Safety or the Department of Natural Resources is the legal owner. For purposes
of this section, if an off-highway vehicle is owned jointly by two or more people, each
owner's interest extends to the whole of the vehicle and is not subject to apportionment.
new text end

new text begin (h) "Prosecuting authority" means the attorney in the jurisdiction in which the
designated offense occurred, or a designee, who is responsible for prosecuting violations of
a designated offense. If a state agency initiated the forfeiture and the attorney responsible
for prosecuting the designated offense declines to pursue forfeiture, the attorney general's
office, or its designee, may initiate forfeiture under this section.
new text end

new text begin (i) "Security interest" means a bona fide security interest perfected according to
section 168A.17, subdivision 2, based on a loan or other financing that, if an off-highway
vehicle is required to be registered under chapter 168, is listed on the vehicle's title.
new text end

new text begin Subd. 2. new text end

new text begin Seizure. new text end

new text begin (a) An off-highway vehicle subject to forfeiture under this
section may be seized by the appropriate agency upon process issued by any court having
jurisdiction over the vehicle.
new text end

new text begin (b) 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 vehicle 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 section; 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 vehicle.
If property is seized without process under this clause, the prosecuting authority must
institute a forfeiture action under this section as soon as is reasonably possible by serving
a notice of seizure and intent to forfeit at the address of the owner as listed in the records
of the Department of Public Safety or Department of Natural Resources.
new text end

new text begin Subd. 3. new text end

new text begin Right to possession vests immediately; custody. new text end

new text begin All right, title, and
interest in an off-highway vehicle subject to forfeiture under this section vests in the
appropriate agency upon commission of the conduct resulting in the designated offense
giving rise to the forfeiture. Any vehicle 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. When an
off-highway vehicle is seized under this section, the appropriate agency may:
new text end

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

new text begin (2) remove the vehicle to a place designated by the agency;
new text end

new text begin (3) place a disabling device on the vehicle; and
new text end

new text begin (4) take other steps reasonable and necessary to secure the vehicle and prevent waste.
new text end

new text begin Subd. 4. new text end

new text begin Bond by owner for possession. new text end

new text begin If the owner of an off-highway vehicle
that has been seized under this section seeks possession of the vehicle before the forfeiture
action is determined, the owner may, subject to the approval of the appropriate agency,
give security or post bond payable to the appropriate agency in an amount equal to the
retail value of the seized vehicle. On posting the security or bond, the seized vehicle may
be returned to the owner. The forfeiture action must proceed against the security as if it
were the seized vehicle.
new text end

new text begin Subd. 5. new text end

new text begin Evidence. new text end

new text begin Certified copies of court records and off-highway vehicle and
driver's records concerning prior incidents are admissible as substantive evidence where
necessary to prove the commission of a designated offense.
new text end

new text begin Subd. 6. new text end

new text begin Vehicle subject to forfeiture. new text end

new text begin An off-highway vehicle is subject to
forfeiture under this section if it was used in the commission of a designated offense.
new text end

new text begin Subd. 7. new text end

new text begin Presumptions; limitations on vehicle forfeiture. new text end

new text begin (a) An off-highway
vehicle is presumed subject to forfeiture under this section if the driver:
new text end

new text begin (1) is convicted of the designated offense upon which the forfeiture is based; or
new text end

new text begin (2) fails to appear for a scheduled court appearance with respect to the designated
offense charged and fails to voluntarily surrender within 48 hours after the time required
for appearance.
new text end

new text begin (b) An off-highway vehicle encumbered by a security interest perfected according
to section 168A.17, subdivision 2, or subject to a lease that has a term of 180 days or
more, is subject to the interest of the secured party or lessor unless the party or lessor had
knowledge of or consented to the act upon which the forfeiture is based. However, when
the proceeds of the sale of a seized vehicle do not equal or exceed the outstanding loan
balance, the appropriate agency shall remit all proceeds of the sale to the secured party
after deducting the agency's costs for the seizure, tow, storage, forfeiture, and sale of the
vehicle. If the sale of the vehicle is conducted in a commercially reasonable manner
consistent with section 336.9-610, the agency is not liable to the secured party for any
amount owed on the loan in excess of the sale proceeds. The validity and amount of a
nonperfected security interest must be established by its holder by clear and convincing
evidence.
new text end

new text begin (c) Notwithstanding paragraph (b), the secured party's or lessor's interest in an
off-highway vehicle is not subject to forfeiture based solely on the secured party's or
lessor's knowledge of the act or omission upon which the forfeiture is based if the secured
party or lessor demonstrates by clear and convincing evidence that the party or lessor took
reasonable steps to terminate use of the vehicle by the offender.
new text end

new text begin (d) An off-highway vehicle is not subject to forfeiture under this section if its owner
can demonstrate by clear and convincing evidence that the owner did not have actual
or constructive knowledge that the vehicle would be used or operated in any manner
contrary to law or that the owner took reasonable steps to prevent use of the vehicle by
the offender. If the offender is a family or household member of the owner and has three
or more prior off-highway vehicle convictions, the owner is presumed to know of any
vehicle use by the offender that is contrary to law.
new text end

new text begin Subd. 8. new text end

new text begin Administrative forfeiture procedure. new text end

new text begin (a) An off-highway vehicle used to
commit a designated offense is subject to administrative forfeiture under this subdivision.
new text end

new text begin (b) When an off-highway vehicle is seized under subdivision 2, or within a
reasonable time after seizure, the appropriate agency shall serve the driver or operator
of the vehicle with a notice of the seizure and intent to forfeit the vehicle. Additionally,
when an off-highway vehicle is seized under subdivision 2, or within a reasonable time
after that, all persons known to have an ownership, possessory, or security interest in the
vehicle must be notified of the seizure and the intent to forfeit the vehicle. For those
vehicles required to be registered under chapter 168, the notification to a person known to
have a security interest in the vehicle is required only if the vehicle is registered under
chapter 168 and the interest is listed on the vehicle's title. Notice mailed by certified mail
to the address shown in Department of Public Safety records is sufficient notice to the
registered owner of the vehicle. For off-highway vehicles not required to be registered
under chapter 168, notice mailed by certified mail to the address shown in the applicable
filing or registration for the vehicle is sufficient notice to a person known to have an
ownership, possessory, or security interest in the vehicle. Otherwise, notice may be given
in the manner provided by law for service of a summons in a civil action.
new text end

new text begin (c) The notice must be in writing and contain:
new text end

new text begin (1) a description of the vehicle seized;
new text end

new text begin (2) the date of the seizure; and
new text end

new text begin (3) notice of the right to obtain judicial review of the forfeiture and of the procedure
for obtaining that judicial review, printed in English, Hmong, and Spanish. Substantially,
the following language must appear conspicuously: "IF YOU DO NOT DEMAND
JUDICIAL REVIEW EXACTLY AS PRESCRIBED IN MINNESOTA STATUTES,
SECTION 84.7741, SUBDIVISION 8, YOU LOSE THE RIGHT TO A JUDICIAL
DETERMINATION OF THIS FORFEITURE AND YOU LOSE ANY RIGHT YOU
MAY HAVE TO THE ABOVE-DESCRIBED PROPERTY. YOU MAY NOT HAVE TO
PAY THE FILING FEE FOR THE DEMAND IF DETERMINED YOU ARE UNABLE
TO AFFORD THE FEE. IF THE PROPERTY IS WORTH $7,500 OR LESS, YOU MAY
FILE YOUR CLAIM IN CONCILIATION COURT. YOU DO NOT HAVE TO PAY
THE CONCILIATION COURT FILING FEE IF THE PROPERTY IS WORTH LESS
THAN $500."
new text end

new text begin (d) Within 30 days following service of a notice of seizure and forfeiture under this
subdivision, a claimant may file a demand for a judicial determination of the forfeiture.
The demand must be in the form of a civil complaint and must be filed with the court
administrator in the county in which the seizure occurred, together with proof of service of
a copy of the complaint on the prosecuting authority having jurisdiction over the forfeiture
and the standard filing fee for civil actions unless the petitioner has the right to sue in
forma pauperis under section 563.01. If the value of the seized property is $7,500 or less,
the claimant may file an action in conciliation court for recovery of the seized vehicle. A
copy of the conciliation court statement of claim must be served personally or by mail on
the prosecuting authority having jurisdiction over the forfeiture within 30 days following
service of the notice of seizure and forfeiture under this subdivision. If the value of the
seized property is less than $500, the claimant does not have to pay the conciliation court
filing fee. No responsive pleading is required of the prosecuting authority and no court
fees may be charged for the prosecuting authority's appearance in the matter. Pleadings,
filings, and methods of service are governed by the Rules of Civil Procedure.
new text end

new text begin (e) The complaint must be captioned in the name of the claimant as plaintiff and
the seized vehicle as defendant and must state with specificity the grounds on which the
claimant alleges the vehicle was improperly seized, the claimant's interest in the vehicle
seized, and any affirmative defenses the claimant may have. Notwithstanding any law to
the contrary, an action for the return of an off-highway vehicle seized under this section
may not be maintained by or on behalf of any person who has been served with a notice of
seizure and forfeiture unless the person has complied with this subdivision.
new text end

new text begin (f) If the claimant makes a timely demand for a judicial determination under this
subdivision, the forfeiture proceedings must be conducted according to subdivision 9.
new text end

new text begin Subd. 9. new text end

new text begin Judicial forfeiture procedure. new text end

new text begin (a) This subdivision governs judicial
determinations of the forfeiture of an off-highway vehicle used to commit a designated
offense. An action for forfeiture is a civil in rem action and is independent of any criminal
prosecution. All proceedings are governed by the Rules of Civil Procedure.
new text end

new text begin (b) If no demand for judicial determination of the forfeiture is pending, the
prosecuting authority may, in the name of the jurisdiction pursuing the forfeiture, file a
separate complaint against the vehicle, describing it, specifying that it was used in the
commission of a designated offense, and specifying the time and place of its unlawful use.
new text end

new text begin (c) The prosecuting authority may file an answer to a properly served demand
for judicial determination, including an affirmative counterclaim for forfeiture. The
prosecuting authority is not required to file an answer.
new text end

new text begin (d) A judicial determination under this subdivision must not precede adjudication in
the criminal prosecution of the designated offense without the consent of the prosecuting
authority. The district court administrator shall schedule the hearing as soon as practicable
after adjudication in the criminal prosecution. The district court administrator shall
establish procedures to ensure efficient compliance with this subdivision. The hearing is
to the court without a jury.
new text end

new text begin (e) There is a presumption that an off-highway vehicle seized under this section is
subject to forfeiture if the prosecuting authority establishes that the vehicle was used in
the commission of a designated offense. A claimant bears the burden of proving any
affirmative defense raised.
new text end

new text begin (f) If the forfeiture is based on the commission of a designated offense and the person
charged with the designated offense appears in court as required and is not convicted of
the offense, the court shall order the property returned to the person legally entitled to it
upon that person's compliance with the redemption requirements of subdivision 12.
new text end

new text begin (g) If the lawful ownership of the vehicle used in the commission of a designated
offense can be determined and the owner makes the demonstration required under
subdivision 7, paragraph (d), the vehicle must be returned immediately upon the owner's
compliance with the redemption requirements of subdivision 12.
new text end

new text begin (h) If the court orders the return of a seized vehicle under this subdivision, it must
order that filing fees be reimbursed to the person who filed the demand for judicial
determination. In addition, the court may order sanctions under section 549.211. Any
reimbursement fees or sanctions must be paid from other forfeiture proceeds of the law
enforcement agency and prosecuting authority involved and in the same proportion as
distributed under subdivision 10, paragraph (b).
new text end

new text begin Subd. 10. new text end

new text begin Disposition of forfeited vehicle. new text end

new text begin (a) If the vehicle is administratively
forfeited under subdivision 8, or if the court finds under subdivision 9 that the vehicle is
subject to forfeiture under subdivisions 6 and 7, the appropriate agency shall:
new text end

new text begin (1) sell the vehicle and distribute the proceeds under paragraph (b); or
new text end

new text begin (2) keep the vehicle for official use. If the agency keeps a forfeited off-highway
vehicle for official use, the agency shall make reasonable efforts to ensure that the
off-highway vehicle is available for use by the agency's officers who participate in
off-highway vehicle enforcement or education programs.
new text end

new text begin (b) The proceeds from the sale of forfeited vehicles, after payment of seizure,
towing, storage, forfeiture, and sale expenses and satisfaction of valid liens against the
property, must be distributed as follows:
new text end

new text begin (1) 70 percent of the proceeds must be forwarded to the appropriate agency for
deposit as a supplement to the state or local agency's operating fund or similar fund for use
in purchasing equipment for off-highway vehicle enforcement, training, and education; and
new text end

new text begin (2) 30 percent of the money or proceeds must be forwarded to the prosecuting
authority that handled the forfeiture for deposit as a supplement to its operating fund or
similar fund for prosecutorial purposes.
new text end

new text begin Subd. 11. new text end

new text begin Sale of forfeited vehicle by secured party. new text end

new text begin (a) A financial institution
with a valid security interest in or a valid lease covering a forfeited off-highway vehicle
may choose to dispose of the vehicle under this subdivision, in lieu of the appropriate
agency disposing of the vehicle under subdivision 10. A financial institution wishing to
dispose of an off-highway vehicle under this subdivision shall notify the appropriate
agency of its intent, in writing, within 30 days after receiving notice of the seizure and
forfeiture. The appropriate agency shall release the vehicle to the financial institution or
its agent after the financial institution presents proof of its valid security agreement or of
its lease agreement and the financial institution agrees not to sell the vehicle to a family or
household member of the violator, unless the violator is not convicted of the offense on
which the forfeiture is based. The financial institution shall dispose of the vehicle in a
commercially reasonable manner as defined in section 336.9-610.
new text end

new text begin (b) After disposing of the forfeited vehicle, the financial institution shall reimburse
the appropriate agency for its seizure, storage, and forfeiture costs. The financial
institution may then apply the proceeds of the sale to its storage costs, to its sale
expenses, and to satisfy the lien or the lease on the vehicle. If any proceeds remain, the
financial institution shall forward the proceeds to the state treasury, which shall credit the
appropriate fund as specified in subdivision 10.
new text end

new text begin Subd. 12. new text end

new text begin Redemption requirements. new text end

new text begin (a) If an off-highway vehicle is seized by a
peace officer for a designated offense, the seized vehicle must be released only:
new text end

new text begin (1) to the registered owner, a person authorized by the registered owner, a lienholder
of record, or a person who has purchased the vehicle from the registered owner, who
provides proof of ownership of the vehicle, proof of valid Minnesota driving privileges,
and proof of insurance required by law to cover the vehicle;
new text end

new text begin (2) if the vehicle is subject to a rental or lease agreement, to a renter or lessee with
valid Minnesota driving privileges who provides a copy of the rental or lease agreement
and proof of insurance required by law to cover the vehicle; or
new text end

new text begin (3) to an agent of a towing company authorized by a registered owner if the owner
provides proof of ownership of the vehicle and proof of insurance required by law to
cover the vehicle.
new text end

new text begin (b) The proof of ownership and insurance or, if applicable, the copy of the rental or
lease agreement required under paragraph (a) must be provided to the law enforcement
agency seizing the vehicle or to a person or entity designated by the law enforcement
agency to receive the information.
new text end

new text begin (c) No law enforcement agency, local unit of government, or state agency is
responsible or financially liable for any storage fees incurred due to a seizure under this
section.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective August 1, 2009, and applies to crimes
committed on or after that date.
new text end

Sec. 3.

Minnesota Statutes 2008, section 84.928, subdivision 1a, is amended to read:

Subd. 1a.

Crossing a public road right-of-way.

(a) An all-terrain vehicle may
make a direct crossing of a public road right-of-way provided:

(1) the crossing is made at an angle of approximately 90 degrees to the direction of
the road and at a place where no obstruction prevents a quick and safe crossing;

(2) the vehicle is brought to a complete stop before crossing the shoulder or
main-traveled way of the road;

(3) the driver yields the right-of-way to all oncoming traffic that constitutes an
immediate hazard;

(4) in crossing a divided road, the crossing is made only at an intersection of the
road with another public road; and

(5) if the crossing is made between the hours of one-half hour after sunset to
one-half hour before sunrise or in conditions of reduced visibility, only if both front and
rear lights are on.

(b) An all-terrain vehicle may be operated upon a bridge, other than a bridge that is
part of the main-traveled lanes of an interstate highway, or roadway shoulder or inside
bank of a public road right-of-way when required for the purpose of avoiding obstructions
to travel new text begin or environmentally sensitive areas new text end when no other method of avoidance is
possible; provided the all-terrain vehicle is operated in the extreme right-hand lane, the
entrance to the roadway is made within 100 feet of the bridge deleted text begin or deleted text end new text begin , new text end obstacle, new text begin or sensitive
area, new text end and the crossing is made without undue delay.

(c) A person shall not operate an all-terrain vehicle upon a public street or highway
unless the vehicle is equipped with at least one headlight and one taillight, each of
minimum candlepower as prescribed by rules of the commissioner, and with brakes
conforming to standards prescribed by rule of the commissioner, and all of which are
subject to the approval of the commissioner of public safety.

(d) An all-terrain vehicle may be operated upon a public road right-of-way other
than as provided by paragraph (b) in an emergency during the period of time when and at
locations where the condition of the roadway renders travel by automobile impractical.

(e) Chapters 169 and 169A apply to the operation of all-terrain vehicles upon streets
and highways, except for those provisions relating to required equipment and except those
provisions which by their nature have no application.

(f) A sled, trailer, or other device being towed by an all-terrain vehicle must be
equipped with reflective materials as required by rule of the commissioner.

(g) A driver's license is not required to operate an all-terrain vehicle along or on a
public road right-of-way if the right-of-way encompasses a trail administered by the
commissioner and designated for all-terrain vehicle use or multiple use.

(h) A road authority as defined in section 160.02, subdivision 25, may by permit
designate corridor access trails on public road rights-of-way for purposes of accessing
established all-terrain vehicle trails. A driver's license is not required to operate an
all-terrain vehicle on a designated corridor access trail.

Sec. 4. new text begin REVISOR'S INSTRUCTION.
new text end

new text begin In each section of Minnesota Statutes referred to in column A, the revisor of statutes
shall delete the reference in column B and insert the reference in column C.
new text end

new text begin Column A new text end	new text begin Column B new text end	new text begin Column C new text end
new text begin 84.777 new text end	new text begin 84.805 new text end	new text begin 84.804 new text end
new text begin 84.777 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end
new text begin 84.787, subd. 1 new text end	new text begin 84.796 new text end	new text begin 84.795 new text end
new text begin 84.788, subd. 9 new text end	new text begin 84.796 new text end	new text begin 84.795 new text end
new text begin 84.791, subd. 4 new text end	new text begin 84.796 new text end	new text begin 84.795 new text end
new text begin 84.794, subd. 2 new text end	new text begin 84.796 new text end	new text begin 84.795 new text end
new text begin 84.795, subd. 8 new text end	new text begin 84.796 new text end	new text begin 84.795 new text end
new text begin 84.797, subd. 1 new text end	new text begin 84.805 new text end	new text begin 84.804 new text end
new text begin 84.798, subd. 8 new text end	new text begin 84.805 new text end	new text begin 84.804 new text end
new text begin 84.804, subd. 6 new text end	new text begin 84.805 new text end	new text begin 84.804 new text end
new text begin 84.92, subd. 1 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end
new text begin 84.922, subd. 9 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end
new text begin 84.925, subd. 3 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end
new text begin 84.9256, subd. 4 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end
new text begin 84.927, subd. 2 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end
new text begin 84.928, subd. 1 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end
new text begin 84.928, subd. 6 new text end	new text begin 84.929 new text end	new text begin 84.928 new text end

Sec. 5. new text begin REPEALER.
new text end

new text begin Minnesota Statutes 2008, sections 84.796; 84.805; and 84.929, new text end new text begin are repealed.
new text end