SF 2579

as introduced - 86th Legislature (2009 - 2010) Posted on 02/11/2010 02:40pm

A bill for an act
relating to public safety; making numerous changes to the controlled substance
forfeiture law; requesting the legislative auditor to conduct an evaluation
on forfeiture; expanding the reporting requirements related to forfeiture;
requiring model policies on forfeiture; amending Minnesota Statutes 2008,
sections 97A.221, by adding a subdivision; 97A.223, by adding a subdivision;
97A.225, by adding a subdivision; 169A.63, by adding a subdivision; 609.531,
subdivision 6a; 609.5311, subdivision 3; 609.5314; 609.5315, subdivision 6;
609.5318, subdivision 3; 609.762, by adding a subdivision; 609.905, by adding a
subdivision; Minnesota Statutes 2009 Supplement, section 84.7741, by adding
a subdivision; proposing coding for new law in Minnesota Statutes, chapters
388; 626.

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

Section 1.

Minnesota Statutes 2009 Supplement, section 84.7741, is amended by
adding a subdivision to read:

new text begin Subd. 13. new text end

new text begin Reporting. new text end

new text begin The appropriate agency and prosecuting authority shall report
on forfeitures occurring under this section as described in section 609.5315, subdivision 6.
new text end

Sec. 2.

Minnesota Statutes 2008, section 97A.221, is amended by adding a subdivision
to read:

new text begin Subd. 5. new text end

new text begin Reporting. new text end

new text begin The enforcement officer shall report on forfeitures occurring
under this section as described in section 609.5315, subdivision 6.
new text end

Sec. 3.

Minnesota Statutes 2008, section 97A.223, is amended by adding a subdivision
to read:

new text begin Subd. 6. new text end

new text begin Reporting. new text end

new text begin The enforcement officer shall report on forfeitures occurring
under this section as described in section 609.5315, subdivision 6.
new text end

Sec. 4.

Minnesota Statutes 2008, section 97A.225, is amended by adding a subdivision
to read:

new text begin Subd. 10. new text end

new text begin Reporting. new text end

new text begin The enforcement officer shall report on forfeitures occurring
under this section as described in section 609.5315, subdivision 6.
new text end

Sec. 5.

Minnesota Statutes 2008, section 169A.63, is amended by adding a subdivision
to read:

new text begin Subd. 12. new text end

new text begin Reporting. new text end

new text begin The appropriate agency and prosecuting authority shall report
on forfeitures occurring under this section as described in section 609.5315, subdivision 6.
new text end

Sec. 6.

new text begin [388.30] CONTROLLED SUBSTANCE FORFEITURE POLICIES.
new text end

new text begin Subdivision 1. new text end

new text begin Statewide model policy required. new text end

new text begin The Minnesota County Attorneys
Association, in consultation with the attorney general's office and the Peace Officer
Standards and Training Board, shall develop a model policy on controlled substance
forfeitures designed to encourage the uniform application of these laws across the state.
At a minimum, the policy shall address the following: the type of training and assistance
provided to law enforcement by prosecutors; the level of involvement of prosecutors in
administrative forfeitures, including reviewing administrative forfeiture cases before the
forfeiture is finalized; situations in which forfeitures should not be pursued; and best
practices in pursuing forfeitures.
new text end

new text begin Subd. 2. new text end

new text begin Local policies required. new text end

new text begin The county attorney in each county shall adopt
a written policy on controlled substance forfeitures for attorneys within the office.
The policy must be identical or substantially similar to the model policy described in
subdivision 1.
new text end

new text begin Subd. 3. new text end

new text begin Report to legislature. new text end

new text begin By February 1, 2011, the Minnesota County
Attorneys Association and each county attorney shall adopt the policies required in
this section and the association shall forward an electronic copy of the model policy
to the chairs and ranking minority members of the senate and house of representatives
committees having jurisdiction over criminal justice and civil law policy.
new text end

new text begin EXPIRATION. new text end

new text begin Subdivision 3 expires on July 1, 2011.
new text end

Sec. 7.

Minnesota Statutes 2008, section 609.531, subdivision 6a, is amended to read:

Subd. 6a.

Forfeiture a civil procedure; conviction results in presumption.

(a) An
action for forfeiture is a civil in rem action and is independent of any criminal prosecution,
except as provided in this subdivision and section 609.5318. The appropriate agency
handling the forfeiture deleted text begin has the benefit of the evidentiary presumption of section 609.5314,
subdivision 1, but otherwise deleted text end bears the burden of proving the act or omission giving rise to
the forfeiture by clear and convincing evidence, except that in cases arising under section
609.5312, the designated offense may only be established by a criminal conviction.

(b) A court may not issue an order of forfeiture under section 609.5311 while the
alleged owner of the property is in custody and related criminal proceedings are pending
against the alleged owner. For forfeiture of a motor vehicle, the alleged owner is the
registered owner according to records of the Department of Public Safety. For real
property, the alleged owner is the owner of record. For other property, the alleged owner is
the person notified by the prosecuting authority in filing the forfeiture action.

Sec. 8.

Minnesota Statutes 2008, section 609.5311, subdivision 3, is amended to read:

Subd. 3.

Limitations on forfeiture of certain property associated with controlled
substances.

(a) A conveyance device is subject to forfeiture under this section only if the
retail value of the controlled substance is deleted text begin $25 deleted text end new text begin $100 new text end or more and the conveyance device is
associated with a felony-level controlled substance crime.

(b) Real property is subject to forfeiture under this section only if the retail value of
the controlled substance or contraband is deleted text begin $1,000 deleted text end new text begin $4,000 new text end or more.

(c) Property used by any person as a common carrier in the transaction of business
as a common carrier is subject to forfeiture under this section only if the owner of the
property is a consenting party to, or is privy to, the use or intended use of the property as
described in subdivision 2.

(d) Property is subject to forfeiture under this section only if its owner was privy to
the use or intended use described in subdivision 2, or the unlawful use or intended use of
the property otherwise occurred with the owner's knowledge or consent.

(e) Forfeiture under this section of a conveyance device or real property encumbered
by a bona fide security interest is subject to the interest of the secured party unless the
secured party had knowledge of or consented to the act or omission upon which the
forfeiture is based. A person claiming a security interest bears the burden of establishing
that interest by clear and convincing evidence.

(f) Forfeiture under this section of real property is subject to the interests of a good
faith purchaser for value unless the purchaser had knowledge of or consented to the act or
omission upon which the forfeiture is based.

(g) Notwithstanding paragraphs (d), (e), and (f), property is not subject to forfeiture
based solely on the owner's or secured party's knowledge of the unlawful use or intended
use of the property if: (1) the owner or secured party took reasonable steps to terminate
use of the property by the offender; or (2) the property is real property owned by the
parent of the offender, unless the parent actively participated in, or knowingly acquiesced
to, a violation of chapter 152, or the real property constitutes proceeds derived from or
traceable to a use described in subdivision 2.

(h) The Department of Corrections Fugitive Apprehension Unit shall not seize
a conveyance device or real property, for the purposes of forfeiture under paragraphs
(a) to (g).

new text begin (i) Property is not subject to forfeiture under this section if the forfeiture would
create an undue hardship for members of the owner's immediate family.
new text end

Sec. 9.

Minnesota Statutes 2008, section 609.5314, is amended to read:

609.5314 ADMINISTRATIVE FORFEITURE OF CERTAIN PROPERTY
SEIZED IN CONNECTION WITH A CONTROLLED SUBSTANCES SEIZURE.

Subdivision 1.

Property subject to administrative forfeiture deleted text begin ; presumption deleted text end .

(a) new text begin Subject to paragraph (b), new text end the following are deleted text begin presumed to be deleted text end subject to administrative
forfeiture under this section:

(1) all money, precious metals, and precious stones found in proximity to deleted text begin : deleted text end new text begin controlled
substances with a retail value of $100 or more if possession or sale of the controlled
substance would be a felony under chapter 152;
new text end

new text begin (2) all money, precious metals, and precious stones found in proximity to:
new text end

deleted text begin (i) controlled substances;
deleted text end

deleted text begin (ii) deleted text end new text begin (i) new text end forfeitable drug manufacturing or distributing equipment or devices; or

deleted text begin (iii) deleted text end new text begin (ii) new text end forfeitable records of manufacture or distribution of controlled substances;

deleted text begin (2) deleted text end new text begin (3) new text end all conveyance devices containing controlled substances with a retail value of
deleted text begin $100 deleted text end new text begin $400 new text end or more if possession or sale of the controlled substance would be a felony
under chapter 152; and

deleted text begin (3) deleted text end new text begin (4) new text end all firearms, ammunition, and firearm accessories found:

(i) in a conveyance device used or intended for use to commit or facilitate the
commission of a felony offense involving a controlled substance;

(ii) on or in proximity to a person from whom a felony amount of controlled
substance is seized; or

(iii) on the premises where a controlled substance is seized and in proximity to the
controlled substance, if possession or sale of the controlled substance would be a felony
under chapter 152.

(b) new text begin The value of property forfeited under this section may not exceed $7,500.
Forfeitures of property with values exceeding $7,500 are governed by section 609.5311.
new text end

new text begin (c) new text end The Department of Corrections Fugitive Apprehension Unit shall not seize items
listed in paragraph (a), clauses deleted text begin (2) deleted text end new text begin (3) new text end and deleted text begin (3) deleted text end new text begin (4) new text end , for the purposes of forfeiture.

deleted text begin (c) A claimant of the property bears the burden to rebut this presumption.
deleted text end

Subd. 2.

Administrative forfeiture procedure.

(a) Forfeiture of property described
in subdivision 1 is governed by this subdivision. When seizure occurs, or within deleted text begin a
reasonable time deleted text end new text begin ten business days new text end after that, all persons known to have an ownership,
possessory, or security interest in seized property must be notified of the seizure and the
intent to forfeit the property. In the case of a motor vehicle required to be registered under
chapter 168, notice mailed by certified mail to the address shown in Department of Public
Safety records is deemed sufficient notice to the registered owner. The notification to a
person known to have a security interest in seized property required under this paragraph
applies only to motor vehicles required to be registered under chapter 168 and only if the
security interest is listed on the vehicle's title.

(b) Notice may otherwise be given in the manner provided by law for service of a
summons in a civil action. The notice must be in writing and contain:

(1) a description of the property seized;

(2) the date of seizure;

(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, new text begin Somali, new text end and Spanish.
deleted text begin Substantially the following language must appear conspicuously: "IF YOU DO NOT
DEMAND JUDICIAL REVIEW EXACTLY AS PRESCRIBED IN MINNESOTA
STATUTES, SECTION 609.5314, SUBDIVISION 3, 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." deleted text end new text begin The notice must be worded in plain language that is likely
to be understandable to persons with limited reading skills; and new text end

new text begin (4) a separate detachable form designed in a manner and with sufficient space to be
easily used by the person to object to the forfeiture.
new text end

Subd. 3.

deleted text begin Judicial determination deleted text end new text begin Objection to forfeiture new text end .

(a) Within 60 days
following service of a notice of seizure and forfeiture under this section, a claimant may
file deleted text begin a demand for a judicial determination of deleted text end new text begin an objection to new text end the forfeiture. new text begin The objection
must identify the claimant, describe the property, and state the grounds for the objection.
new text end The deleted text begin demand deleted text end new text begin objection new text end must be in deleted text begin the form of a civil complaint deleted text end new text begin writing new text end and must be deleted text begin filed
with deleted text end new text begin made to new text end the deleted text begin court administrator deleted text end new text begin county attorney new text end in the county in which the seizure
occurred deleted text begin , together with proof of service of a copy of the complaint on the county attorney
for that county, 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 property. 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
county attorney and no court fees may be charged for the county attorney's appearance in
the matter. The proceedings are governed by the Rules of Civil Procedure deleted text end . new text begin The clamant
may, but is not required to, use the detachable form described in subdivision 2, paragraph
(b), clause (4). new text end

(b) deleted text begin The complaint must be captioned in the name of the claimant as plaintiff and
the seized property as defendant, and must state with specificity the grounds on which
the claimant alleges the property was improperly seized and the plaintiff's interest in the
property seized. deleted text end Notwithstanding any law to the contrary, an action for the return of
property 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.

(c) If the claimant makes a timely deleted text begin demand for judicial determination deleted text end new text begin objection to
forfeiture new text end under this subdivision, the deleted text begin appropriate agency must conduct the forfeiture under
section 609.531, subdivision 6a deleted text end new text begin county attorney, after reviewing the case, may pursue a
judicial forfeiture under section 609.5311 new text end . The limitations and defenses set forth in section
609.5311, subdivision 3, apply to the judicial determination. new text begin If the county attorney does
not initiate a forfeiture under section 609.5311 within 60 days of receiving the claimant's
written objection to the forfeiture, the appropriate agency shall return the seized property.
new text end

(d) If deleted text begin a demand for judicial determination of an administrative deleted text end new text begin an objection to
new text end forfeiture is filed under this subdivision and the court orders the return of the seized
property, the court shall order that filing fees be reimbursed to the person who filed the
demand. In addition, the court may order sanctions under section 549.211. If the court
orders payment of these costs, they must be paid from forfeited money or proceeds from
the sale of forfeited property from the appropriate law enforcement and prosecuting
agencies in the same proportion as they would be distributed under section 609.5315,
subdivision 5.

Sec. 10.

Minnesota Statutes 2008, section 609.5315, subdivision 6, is amended to read:

Subd. 6.

Reporting requirement.

new text begin (a) For each forfeiture occurring in the state
regardless of the authority for it, new text end the appropriate agency new text begin and the prosecutor new text end shall provide
a written record of deleted text begin each deleted text end new text begin the new text end forfeiture incident to the state auditor. The record shall
include the amount forfeited, new text begin the statutory authority for the forfeiture, its new text end date, deleted text begin and deleted text end a brief
description of the circumstances involved new text begin , and whether the forfeiture was contested. For
controlled substance and driving while impaired forfeitures, the record shall indicate
whether the forfeiture was initiated as an administrative or a judicial forfeiture new text end . The
record shall also list the number of firearms forfeited and the make, model, and serial
number of each firearm forfeited. new text begin 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) new text end 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 on the nature and extent
of forfeitures.

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

Sec. 11.

Minnesota Statutes 2008, section 609.5318, subdivision 3, is amended to read:

Subd. 3.

Hearing.

(a) Within 60 days following service of a notice of seizure and
forfeiture, a claimant may demand a judicial determination of the forfeiture. If a related
criminal proceeding is pending, the 60-day period begins to run at the conclusion of
those proceedings. The demand must be in the form of deleted text begin a civil complaint deleted text end new text begin an objection to
forfeiture new text end as provided in section 609.5314, subdivision 3, except as otherwise provided
in this section.

(b) If the claimant makes a timely demand for judicial determination under this
subdivision, the appropriate agency must conduct the forfeiture under subdivision 4.

Sec. 12.

Minnesota Statutes 2008, section 609.762, is amended by adding a subdivision
to read:

new text begin Subd. 6. new text end

new text begin Reporting. new text end

new text begin The law enforcement and prosecuting agencies shall report on
forfeitures occurring under this section as described in section 609.5315, subdivision 6.
new text end

Sec. 13.

Minnesota Statutes 2008, section 609.905, is amended by adding a subdivision
to read:

new text begin Subd. 3. new text end

new text begin Reporting. new text end

new text begin The prosecuting authority shall report on forfeitures occurring
under this section as described in section 609.5315, subdivision 6.
new text end

Sec. 14.

new text begin [626.8475] CONTROLLED SUBSTANCE FORFEITURE POLICIES.
new text end

new text begin Subdivision 1. new text end

new text begin Statewide model policy required. new text end

new text begin The Peace Officer Standards
and Training Board, after consulting with the Minnesota County Attorneys Association,
the Minnesota Sheriffs Association, the Minnesota Chiefs of Police Association, and
the Minnesota Police and Peace Officers Association, shall develop a model policy
on controlled substance forfeitures designed to encourage the uniform application of
these laws across the state. At a minimum, the policy shall address the following: the
level of cooperation with and involvement of prosecutors in forfeiture cases, including
reviewing administrative forfeiture cases before the forfeiture is finalized; situations in
which forfeitures should not be pursued; disposition of forfeited items; and best practices
in pursuing forfeitures.
new text end

new text begin Subd. 2. new text end

new text begin Local policies required. new text end

new text begin The chief law enforcement officer of every
state and local law enforcement agency shall adopt and implement a written policy on
controlled substance forfeitures that is identical or substantially similar to the model
policy described in subdivision 1.
new text end

new text begin Subd. 3. new text end

new text begin Report to legislature. new text end

new text begin By February 1, 2011, the Peace Officer Standards
and Training Board and each chief law enforcement officer shall adopt the policies
required in this section and the board shall forward an electronic copy of the model policy
to the chairs and ranking minority members of the senate and house of representatives
committees having jurisdiction over criminal justice and civil law policy. This subdivision
expires on July 1, 2011.
new text end

Sec. 15. new text begin LEGISLATIVE AUDITOR REPORT ON FORFEITURE.
new text end

new text begin The Legislative Audit Commission is requested to direct the legislative auditor to
conduct a program evaluation on forfeitures in Minnesota. If feasible, the evaluation
must address all types of forfeitures and include information on the number of forfeitures
occurring; how often forfeitures are successfully challenged; the types of property
forfeited; the disposition of forfeited property; how well forfeitures achieve their
legislative purpose; and how effective the use of forfeiture is. If possible, the evaluation
must also compare Minnesota's forfeiture laws and practice with those of other states.
new text end