BILL REQ. #:  H-0416.2 

Read first time 01/21/2003.   Referred to Committee on Criminal Justice & Corrections.

     AN ACT Relating to penalties for acts of fraud committed against elderly persons; amending RCW 9A.60.010 and 19.86.010; adding a new section to chapter 9A.60 RCW; adding new sections to chapter 19.86 RCW; and prescribing penalties.

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

Sec. 1   RCW 9A.60.010 and 1999 c 143 s 38 are each amended to read as follows:
     The following definitions and the definitions of RCW 9A.56.010 are applicable in this chapter unless the context otherwise requires:
     (1) "Written instrument" means: (a) Any paper, document, or other instrument containing written or printed matter or its equivalent; or (b) any access device, token, stamp, seal, badge, trademark, or other evidence or symbol of value, right, privilege, or identification;
     (2) "Complete written instrument" means one which is fully drawn with respect to every essential feature thereof;
     (3) "Incomplete written instrument" means one which contains some matter by way of content or authentication but which requires additional matter in order to render it a complete written instrument;
     (4) To "falsely make" a written instrument means to make or draw a complete or incomplete written instrument which purports to be authentic, but which is not authentic either because the ostensible maker is fictitious or because, if real, he did not authorize the making or drawing thereof;
     (5) To "falsely complete" a written instrument means to transform an incomplete written instrument into a complete one by adding or inserting matter, without the authority of anyone entitled to grant it;
     (6) To "falsely alter" a written instrument means to change, without authorization by anyone entitled to grant it, a written instrument, whether complete or incomplete, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner;
     (7) "Forged instrument" means a written instrument which has been falsely made, completed, or altered;
     (8) "Elderly person" means a person sixty years of age or older.

NEW SECTION.  Sec. 2   A new section is added to chapter 9A.60 RCW to read as follows:
     (1) When any person is found guilty of having committed an offense against an elderly person under this chapter, the court shall assess a penalty. The assessment shall be in addition to any other penalty or fine imposed by law and shall be in the amount of up to ten thousand dollars for a felony offense and up to five thousand dollars for a nonfelony offense.
     (2) Money collected under subsection (1) of this section shall be paid by the clerk of the court to the county treasurer who shall monthly transmit the money to the state treasurer for deposit as follows:
     (a) Fifty percent of the money shall be deposited in the violence reduction and drug enforcement account under RCW 69.50.520; and
     (b) Fifty percent of the money shall be deposited in the public safety and education account under RCW 43.08.250, to be used solely for the crime victims' compensation program.

Sec. 3   RCW 19.86.010 and 1961 c 216 s 1 are each amended to read as follows:
     As used in this chapter:
     (1) "Person" shall include, where applicable, natural persons, corporations, trusts, unincorporated associations and partnerships.
     (2) "Trade" and "commerce" shall include the sale of assets or services, and any commerce directly or indirectly affecting the people of the state of Washington.
     (3) "Assets" shall include any property, tangible or intangible, real, personal, or mixed, and wherever situate, and any other thing of value.
     (4) "Elderly person" means a person sixty years of age or older.

NEW SECTION.  Sec. 4   A new section is added to chapter 19.86 RCW to read as follows:
     A person who violates or causes another to violate a provision of this chapter shall pay to the general fund a civil penalty of not more than ten thousand dollars for each violation if the violation was committed against an elderly person. A violation of a provision of this chapter constitutes a separate violation with respect to each elderly person involved.

NEW SECTION.  Sec. 5   A new section is added to chapter 19.86 RCW to read as follows:
     (1) Proceeds traceable to or derived from specified unlawful activity or a violation of this chapter are subject to seizure and forfeiture if the violation was committed against an elderly person. The attorney general or county prosecuting attorney may file a civil action for the forfeiture of proceeds. Unless otherwise provided for under this section, no property rights exist in these proceeds. All right, title, and interest in the proceeds vests in the governmental entity of which the seizing law enforcement agency is a part upon commission of the act or omission giving rise to forfeiture under this section.
     (2) Real or personal property subject to forfeiture under this chapter may be seized by any law enforcement officer of this state upon process issued by a superior court that has jurisdiction over the property. An agency seizing real property shall file a lis pendens concerning the property. Real property seized under this section shall not be transferred or otherwise conveyed until ninety days after seizure or until a judgment of forfeiture is entered, whichever is later. Real property seized under this section may be transferred or conveyed to a person or entity who acquires title by foreclosure or deed in lieu of foreclosure of a security interest. Seizure of personal property without process may be made if:
     (a) The seizure is incident to an arrest or a search under a search warrant; or
     (b) 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 based upon this chapter.
     (3) A seizure under subsection (2) of this section commences proceedings for forfeiture. The law enforcement agency under whose authority the seizure was made shall cause notice of the seizure and intended forfeiture of the seized proceeds to be served within fifteen days after the seizure on the owner of the property seized and the person in charge thereof and any person who has a known right or interest therein, including a community property interest. Service of notice of seizure of real property shall be made according to the rules of civil procedure. However, the state may not obtain a default judgment with respect to real property against a party who is served by substituted service absent an affidavit stating that a good faith effort has been made to ascertain if the defaulted party is incarcerated within the state, and that there is no present basis to believe that the party is incarcerated within the state. The notice of seizure in other cases may be served by any method authorized by law or court rule including but not limited to service by certified mail with return receipt requested. Service by mail is complete upon mailing within the fifteen-day period after the seizure.
     (4) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the property within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the property seized shall be deemed forfeited. The community property interest in real property of a person whose spouse committed a violation giving rise to seizure of the real property may not be forfeited if the person did not participate in the violation.
     (5) If a person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of property within forty-five days of the seizure in the case of personal property and ninety days in the case of real property, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right. The provisions of RCW 69.50.505(e) shall apply to any such hearing. The seizing law enforcement agency shall promptly return property to the claimant upon the direction of the administrative law judge or court.
     (6) Disposition of forfeited property shall be made in the manner provided for in RCW 69.50.505 (h), (i), and (n).
     (7) Forfeited property and net proceeds not required to be paid to the state treasurer shall be retained by the seizing law enforcement agency exclusively for the expansion and improvement of consumer protection-related law enforcement activity. Money retained under this section may not be used to supplant preexisting fund sources.