Minnesota Session Laws - 1985, Regular Session

  

                         Laws of Minnesota 1985 

                        CHAPTER 160-S.F.No. 693 
           An act relating to crimes; providing for forfeitures 
          of communications devices and proceeds derived from 
          commission of designated offenses; regulating the use, 
          possession and sale of electronic incapacitation 
          devices; imposing penalties; amending Minnesota 
          Statutes 1984, sections 152.19, subdivision 5; 
          609.531; and 624.731.  
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA: 
    Section 1.  Minnesota Statutes 1984, section 152.19, 
subdivision 5, is amended to read: 
    Subd. 5.  Property shall be forfeited after a conviction 
deemed to be a felony according to the following procedure: 
    (1) A separate complaint shall be filed against the 
property describing it, charging its use in the specified 
violation, and specifying the time and place of its unlawful use.
    (2) If the person arrested is acquitted, the court shall 
dismiss the complaint against any property seized pursuant to 
the preceding subdivisions and order the property returned to 
the persons legally entitled to it. 
    (3) If after conviction the court finds that the property, 
or any part thereof, was used in any violation as specified in 
the complaint, it shall order that the property unlawfully used 
be sold, destroyed, or disposed of by the appropriate agency in 
the following manner: 
    (a) The appropriate agency and prosecuting agency that 
handled the forfeiture may retain the property for official use 
but shall not use any motor vehicle required to be registered 
pursuant to chapter 168A until title is properly transferred 
pursuant to chapter 168A;  
    (b) Sell that which is not required to be destroyed by law 
and which is not harmful to the public; 
    (c) Require the commissioner of administration to take 
custody of the property and remove it for disposition in 
accordance with law; or 
     (d) Forward it to the federal drug enforcement 
administration. 
    Any property retained pursuant to clause (3)(a) of this 
subdivision shall be used only in the performance of official 
duties of the appropriate agency, and shall not be used for any 
other purpose.  All proceeds from property retained under clause 
(3)(a) of this subdivision which is later sold shall be 
disbursed as provided in clause (4) of this subdivision.  
    (4) One-third of the proceeds from the sale of forfeited 
property, after payment of seizure, storage, forfeiture and sale 
expenses and satisfaction of valid liens against the property, 
shall be forwarded to the state drug abuse authority for 
distribution among licensed hospitals and licensed drug 
treatment facilities of this state for the care and treatment of 
patients with drug related physical and psychological disorders, 
and licensed drug analysis centers.  The remaining two-thirds of 
net proceeds shall be shared equally between the agencies 
prosecuting the forfeiture proceeding and prosecuting agency 
with jurisdiction over the criminal offense or the agency 
handling the forfeiture proceeding at the request of the 
prosecuting agency, and the agency investigating the offense 
involved in the forfeiture, except that if the forfeiture 
proceeding was prosecuted by a county attorney whose position is 
not full time as provided in section 388.21, the prosecutor's 
share of net proceeds shall be forwarded to the county board. 
    Any local police relief association organized under chapter 
423, which received or was entitled to receive the proceeds of 
any sale made under this section before the enactment of Laws 
1984, chapter 625, shall continue to receive and retain the 
proceeds of these sales. 
    Sec. 2.  Minnesota Statutes 1984, section 609.531, is 
amended to read: 
    609.531 [FORFEITURES.] 
    Subdivision 1.  [DEFINITIONS.] For the purpose of this 
section, the following terms have the meanings given them.  
    (a) "Conveyance device" means a device used for 
transportation in connection with a designated offense and 
includes, but is not limited to, motor vehicles, trailers, 
snowmobiles, airplanes, and vessels.  The term "conveyance 
device" does not include property which is, in fact, itself 
stolen or taken in violation of the law.  
    (b) "Primary container" means a fundamental receptacle 
other than a conveyance device used to store or transport 
property.  
    (c) "Weapon used" means weapons used in the furtherance of 
a crime and defined as a dangerous weapon under section 609.02, 
subdivision 6.  
    (d) "Property" means property as defined in section 609.52, 
subdivision 1, clause (1).  
    (e) "Contraband property" means property which is illegal 
to possess under Minnesota law.  
    (f) "Appropriate agency" means either the bureau of 
criminal apprehension, Minnesota state patrol, county sheriffs 
and their deputies, or city police departments.  
    (g) "Designated offense" includes:  
    (1) For weapons used:  any violation of chapter 609;  
    (2) For all other purposes:  violation of, or an attempt or 
conspiracy to violate, sections 609.185; 609.19; 609.195; 
609.21; 609.221; 609.222; 609.223; 609.2231; 609.24; 609.245; 
609.25; 609.255; 609.322, subdivision 1 or 2; 609.342; 609.343; 
609.344; 609.345; 609.42; 609.425; 609.466; 609.485; 609.487; 
609.52; 609.521; 609.525; 609.53; 609.54; 609.551; 609.561; 
609.562; 609.563; 609.582; 609.59; 609.595; 609.687; 609.825; 
609.86; 609.88; 609.89; or 617.246, when the violation 
constitutes a felony.  
    (h) "Communications device or component" means a device or 
system used to facilitate in any manner the creation, storage, 
dissemination, or transmission of data in connection with a 
designated offense and includes computers and computer-related 
components as defined in section 609.87 and any other device or 
system that by means of electric, electronic or magnetic 
impulses may be used to facilitate in any manner the creation, 
storage, dissemination, or transmission of data.  
    Subd. 2.  [FORFEITURES OF CONVEYANCE DEVICES; 
COMMUNICATIONS DEVICES; PRIMARY CONTAINERS; WEAPONS USED, AND 
CONTRABAND PROPERTY.] Proceeds that are derived from or traced 
to the commission of a designated offense, conveyance 
devices, communications devices or components, primary 
containers, and weapons associated with the commission or 
utilized in the commission of a designated offense, and all 
contraband property shall be subject to forfeiture with the 
following limitations:  
    (a) No conveyance device, communications device or 
component or primary container used by any person as a common 
carrier in the transaction of business as a common carrier is 
subject to forfeiture under this section unless the owner or 
other person in charge of the conveyance or, container, or 
communications device or component is a consenting party or 
privy to commission of a designated offense.  
    (b) No conveyance device, communications device or 
component, primary container, or weapon used is subject to 
forfeiture under this section unless the owner of it is privy to 
a violation of a designated offense or unless the use of the 
conveyance device, communications device or component, primary 
container, or weapon in a violation occurred with his knowledge 
or consent.  
    (c) A forfeiture of a conveyance device, communications 
device or component, primary container, or weapon used 
encumbered by a bona fide security interest is subject to the 
interest of the secured party unless he had knowledge of or 
consented to the act or omission upon which the forfeiture is 
based.  
    (d) Proceeds which are derived from or traced to the 
commission of a designated offense are subject to forfeiture 
under this section only to the extent that the owner of the 
proceeds was privy to the violation upon which the forfeiture 
action is based.  
    Subd. 3.  [SEIZURE WITH PROCESS.] Any proceeds which are 
derived from or traced to the commission of a designated 
offense, conveyance device, communications device or component, 
primary container, weapon used, or contraband 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.  
    Subd. 4.  [SEIZURE WITHOUT PROCESS.] Seizure without 
process of a weapon used or of contraband property may be made 
if: 
    (a) the seizure is incident to an arrest or a search under 
a search warrant;  
    (b) the weapon subject to seizure has been the subject of a 
prior judgment in favor of the state in a criminal injunction or 
forfeiture proceeding;  
    (c) the appropriate agency has probable cause to believe:  
    (1) that the weapon was used or is intended to be used in 
commission of a designated offense; and 
    (2) that the delay occasioned by the necessity to obtain 
process would result in the removal, destruction, illegal use, 
or intended illegal use of the weapon; or 
    (d) the property is contraband property.  
    Subd. 5.  [NOT SUBJECT TO REPLEVIN.] Any conveyance device, 
communications device or component, primary container, weapon 
used, or contraband property taken or detained under this 
section shall not be subject to replevin, but is deemed to be in 
the custody of the appropriate agency subject only to the orders 
and decrees of the court having jurisdiction over the forfeiture 
proceedings.  When any proceeds which are derived from or traced 
to the commission of a designated offense, conveyance device, 
communications device or component, primary container, weapon 
used, or contraband property is seized under this section, the 
appropriate agency may:  
    (a) place the conveyance device, communications device or 
component, primary container, weapon used, or contraband 
property under seal; or 
    (b) remove the conveyance device, communications device or 
component, primary container, weapon used, or contraband 
property to a place designated by it.  
    Subd. 6.  [FORFEITURE PROCEDURES.] Any proceeds which are 
derived from or traced to the commission of a designated 
offense, conveyance device, communications device or component, 
primary container, weapon used, or contraband property shall be 
forfeited according to the following procedure:  
    (a) a separate complaint shall be filed against the 
proceeds which are derived from or traced to the commission of a 
designated offense, conveyance device, communications device or 
component, primary container, weapon used, or contraband 
property describing it, and either specifying that it is 
contraband property, or specifying that it constitutes proceeds 
derived from or traced to the commission of a designated 
offense, or charging its use in the specified violation, and 
specifying the time and place of its unlawful use; 
    (b) if the person charged with a designated offense is not 
convicted of an offense, the court shall dismiss the complaint 
against the proceeds which are derived from or traced to the 
commission of a designated offense, conveyance device, 
communications device of component, primary container, or weapon 
used pursuant to subdivisions 2 to 5 and order the property 
returned to the persons legally entitled to it;  
    (c) if after conviction of a felony offense the court finds 
that the proceeds derived from or traced to the commission of a 
designated offense, conveyance device, communications device or 
component, primary container or weapon was used in commission of 
a designated offense, it may order that the proceeds which are 
derived from or traced to the commission of a designated 
offense, conveyance device, communications device or component, 
primary container or weapon be sold, used, converted, or 
disposed of by the appropriate agency in the following manner:  
    (1) if the lawful ownership of the proceeds which are 
derived from or traced to the commission of a designated 
offense, conveyance device, communications device or component, 
primary container, or weapon used can be determined and it is 
found the owner was not privy to violation of a designated 
offense, the proceeds which are derived from or traced to the 
commission of a designated offense, conveyance device, 
communications device or component, primary container, or weapon 
used will be returned forthwith; or 
    (2) if the lawful ownership of the proceeds derived from or 
traced to the commission of a designated offense, conveyance 
device, communications device or component, primary container, 
or weapon used cannot be determined or if the lawful owner can 
be determined and it is found the owner was privy to violation 
of a designated offense, the appropriate agency or prosecuting 
agency handling the forfeiture may:  
    (i) retain the proceeds which are derived from or traced to 
the commission of a designated offense, conveyance device, 
communications device or component, primary container, weapon 
used, or contraband property for official use; or 
    (ii) sell the proceeds which are derived from or traced to 
the commission of a designated offense, conveyance device, 
communications device or component, primary container, or weapon 
used may be sold in accordance with law.  One-third of the 
proceeds from the sale, after payment of seizure, 
storage, forfeiture and sale expenses, and satisfaction of valid 
liens against the property, shall be forwarded to the 
prosecuting agency with jurisdiction over the criminal offense 
or the agency that handled the forfeiture proceedings at the 
request of the prosecuting agency for deposit in its operating 
fund, or similar fund; one-third of the proceeds shall be 
forwarded to the commissioner of public safety for disbursement 
pursuant to section 299C.065, and one-third of the proceeds 
shall be retained by the appropriate agency and deposited in its 
operating fund.  Any local police relief association organized 
under chapter 423, which received or was entitled to receive the 
proceeds of any sale made under this section before the 
enactment of Laws 1984, chapter 625, shall continue to receive 
and retain the proceeds of these sales; 
    (3) property which has been forfeited pursuant to this 
subdivision and which consists of proceeds derived from or 
traced to the commission of a designated offense must be applied 
first, to payment of seizure, storage, forfeiture and sale 
expenses and to satisfy valid liens against the property, and 
second, to any court-ordered restitution before being disposed 
of in accordance with clause (2)(i) and (ii).  
    (d) if the property is deemed to be contraband, the 
property shall be destroyed or used by the appropriate agency 
for law enforcement purposes. 
    Sec. 3.  Minnesota Statutes 1984, section 624.731, is 
amended to read: 
    624.731 [TEAR GAS AND TEAR GAS COMPOUNDS; ELECTRONIC 
INCAPACITATION DEVICES.] 
    Subdivision 1.  [DEFINITIONS.] For the purposes of this 
section,: 
    (a) "authorized tear gas compound" means a lachrymator or 
any substance composed of a mixture of a lachrymator including 
chloroacetophenone, alpha-chloroacetophenone,; 
phenylchloromethylketone, orthochlorobenzalmalononitrile or 
oleoresin capsicum, commonly known as tear gas; and 
    (b) "electronic incapacitation device" means a portable 
device which is designed or intended by the manufacturer to be 
used, offensively or defensively, to temporarily immobilize or 
incapacitate persons by means of electric pulse or current.  
"Electronic incapacitation device" does not include cattle 
prods, electric fences, or other electric devices which are used 
in agricultural, animal husbandry, or food production activities.
    Subd. 2.  [AUTHORIZED POSSESSION; USE.] (a) A person may 
possess and use an authorized tear gas compound in the exercise 
of reasonable force in defense of the person or his property 
only if it is propelled from an aerosol container, labelled with 
or accompanied by clearly written instructions as to its use and 
the dangers involved in its use, and dated to indicate its 
anticipated useful life.  
    (b) A person may possess and use an electronic 
incapacitation device in the exercise of reasonable force in 
defense of the person or his property only if the electronic 
incapacitation device is labelled with or accompanied by clearly 
written instructions as to its use and the dangers involved in 
its use.  
    Subd. 3.  [PROHIBITED POSSESSION; USE.] (a) No person under 
the age of 16 shall may possess or use an authorized tear gas 
compound except by written permission of his parent or guardian, 
and no person under the age of 18 may possess or use an 
electronic incapacitation device.  
    (b) No person prohibited from possessing a pistol pursuant 
to section 624.713, subdivision 1, clause (b), shall may possess 
or use an authorized tear gas compound or an electronic 
incapacitation device.  
    (c) No person prohibited from possessing a pistol pursuant 
to section 624.713, subdivision 1, clauses (c) to (e), shall may 
possess or use an authorized tear gas compound or an electronic 
incapacitation device, except that the certificate or other 
proof required for possession of a handgun shall not apply. 
     (d) No person shall possess or use tear gas or a tear gas 
compound other than an authorized tear gas compound.  
    Subd. 4.  [PROHIBITED USE.] (a) No person shall knowingly, 
or with reason to know, use tear gas, a tear gas compound, or an 
authorized tear gas compound, or an electronic incapacitation 
device on or against a peace officer who is in the performance 
of his duties. 
    (b) No person shall use tear gas, a tear gas compound, or 
an authorized tear gas compound, or an electronic incapacitation 
device except as authorized in subdivision 2 or 6.  
    (c) Tear gas or, a tear gas compound, or an electronic 
incapacitation device shall legally constitute a weapon when it 
is used in the commission of a crime.  
    Subd. 5.  [PROHIBITED SALE.] Except as permitted by 
subdivision 6, no person shall knowingly furnish or sell tear 
gas or a tear gas compound to another person.  No person shall 
knowingly furnish or sell an authorized tear gas compound or an 
electronic incapacitation device to a person prohibited from 
possessing it by subdivision 3.  No person shall knowingly 
furnish or sell an authorized tear gas compound or an electronic 
incapacitation device which fails to meet the requirements of 
subdivision 2.  No tear gas, tear gas compound or, authorized 
tear gas compound, or electronic incapacitation device shall be 
sold or furnished on premises where non-intoxicating malt liquor 
as defined in section 340.001, subdivision 2, is sold on an 
on-sale basis or where intoxicating liquor as defined in section 
340.07, subdivision 2, is sold on an on-sale or off-sale basis.  
No person shall sell tear gas, a tear gas compound or, 
authorized tear gas compound, or electronic incapacitation 
device in violation of local licensing requirements.  
    Subd. 6.  [EXCEPTIONS.] Nothing in this section shall 
prohibit the possession or use of by, or the sale or furnishing 
of, tear gas, a tear gas compound, or an authorized tear gas 
compound, or electronic incapacitation device to, a law 
enforcement agency, peace officer, the national guard or 
reserves, or a member of the national guard or reserves for use 
in their official duties, except that counties and 
municipalities may impose licensing requirements on sellers 
pursuant to subdivision 9.  
    Subd. 7.  [EXEMPTION.] Tear gas, tear gas compounds, and 
authorized tear gas compounds shall not be classified as an 
obnoxious or harmful gas, fluid, or substance under section 
609.60, clause (5).  
    Subd 8.  [PENALTIES.] (a) The following violations of this 
section shall be considered a felony:  
    (1) The possession or use of tear gas, a tear gas compound, 
or an authorized tear gas compound, or an electronic 
incapacitation device by a person specified in subdivision 3, 
clause (b).  
    (2) Knowingly selling or furnishing of tear gas, a tear gas 
compound, or an authorized tear gas compound, or an electronic 
incapacitation device to a person specified in subdivision 3, 
clause (b). 
    (3) The use of an electronic incapacitation device as 
prohibited in subdivision 4, clause (a).  
    (b) The following violation of this section shall be 
considered a gross misdemeanor and shall be punished by not less 
than 90 days in jail:  The prohibited use of tear gas, a tear 
gas compound, or an authorized tear gas compound as specified in 
subdivision 4, clause (a).  
    (c) The following violations of this section shall be 
considered a misdemeanor:  
    (1) The possession or use of tear gas, a tear gas compound, 
or an authorized tear gas compound, or an electronic 
incapacitation device which fails to meet the requirements of 
subdivision 2 by any person except as allowed by subdivision 6.  
    (2) The possession or use of an authorized tear gas 
compound or an electronic incapacitation device by a person 
specified in subdivision 3, clause (a) or (c).  
    (3) The use of tear gas, a tear gas compound, or an 
authorized tear gas compound, or an electronic incapacitation 
device except as allowed by subdivision 2 or 6.  
    (4) Knowingly selling or furnishing an authorized tear gas 
compound or an electronic incapacitation device to a person 
specified in subdivision 3, clause (a) or (c).  
    (5) Selling or furnishing of tear gas or a tear gas 
compound other than an authorized tear gas compound to any 
person except as allowed by subdivision 6.  
    (6) Selling or furnishing of an authorized tear gas 
compound or an electronic incapacitation device on premises 
where intoxicating liquor is sold on an on-sale or off-sale 
basis or where non-intoxicating malt liquor is sold on an 
on-sale basis.  
    (7) Selling an authorized tear gas compound or an 
electronic incapacitation device in violation of local licensing 
requirements.  
    Subd. 9.  [LOCAL LICENSING.] (a) For purposes of this 
section, "municipality" means statutory or home rule charter 
city or town.  
    (b) There is hereby conferred upon the governing body of 
each county, statutory or home rule charter city and town in the 
state the authority to license the business of vendors of tear 
gas, tear gas compounds, authorized tear gas compounds, or 
electronic incapacitation devices within their respective 
jurisdictions, to impose a license fee therefor, to impose 
qualifications for obtaining a license, the duration of licenses 
and to restrict the number of licenses the governing body will 
issue.  
    (c) Every person desiring a license from a local governing 
body shall file with the clerk of the municipality or the county 
board in the case of application to a county, a verified written 
application in the form to be prescribed by the local governing 
body.  
    (d) The local governing body may establish the grounds, 
notice and hearing procedures for revocation of licenses issued 
pursuant to this section.  The local governing body may also 
establish penalties for sale of tear gas, tear gas compounds or, 
authorized tear gas compounds, or electronic incapacitation 
devices in violation of its licensing requirements.  
    Subd. 10.  [LOCAL REGULATION.] This section shall be the 
exclusive regulation of the possession, use, and furnishing of 
tear gas, tear gas compounds, and authorized tear gas compounds, 
and electronic incapacitation devices in Minnesota.  This 
section shall supersede and preempt all regulation of the 
possession, use, and furnishing of tear gas and, tear gas 
compounds, authorized tear gas compounds, and electronic 
incapacitation devices by political subdivisions. 
    Approved May 20, 1985