AN ACT Relating to comprehensive forfeiture; amending RCW 9.92.110; adding a new chapter to Title 9 RCW; and prescribing penalties.

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

NEW SECTION. Sec. 1. This chapter may be cited as the comprehensive forfeiture act.

NEW SECTION. Sec. 2. As used in this chapter:

(1) "Administrative procedure" means the mechanism whereby assets are forfeited to the state without judicial process, and shall be governed by this chapter, and not by chapter 34.04 RCW.

(2) "Attorney general" means the officer provided for by chapter 43.10 RCW.

(3) "Prosecuting attorney" means the officer provided for by chapter 36.27 RCW.

(4) "Controlled substance" means the substances defined by RCW 69.50.101.

(5) "Covered offense" means any crime set forth in section 3 of this act.

(6) "Enterprise" includes any individual, person, sole proprietorship, partnership, corporation, or other legal entity, or any unchartered association or group of individuals associated in fact and includes unlawful as well as lawful enterprises and governmental as well as other entities.

(7) "Person" includes any individual or entity capable of holding a legal or beneficial interest in property.

(8) "Proceeds" means gross income derived directly or indirectly from or realized through unlawful covered offenses. Proceeds may consist of anything of value.

(9) "Property" means real property, including things growing on, affixed to, or found in land, and tangible and intangible personal property, including currency, instruments, securities, vehicles, or any other kind of conveyance, privilege, interest, claim, or right.

NEW SECTION. Sec. 3. Any person who commits, attempts to commit, conspires to commit, or solicits, coerces, or intimidates another person to commit any of the following crimes as defined by and chargeable under state law shall be subject to the forfeiture provisions of this chapter, in addition to fines and penalties imposed under each statute:

(1) Homicide in violation of chapter 9A.32 RCW.

(2) Kidnapping in violation of chapter 9A.40 RCW.

(3) Gambling in violation of chapter 9.46 RCW

(4) Arson in violation of chapter 9A.48 RCW.

(5) Robbery in violation of chapter 9A.56 RCW.

(6) Extortion, including unlawful debt collection in violation of RCW 9A.56.110.

(7) Bribery in violation of chapter 9A.68 RCW.

(8) The manufacture, sale, or distribution of, or possession with intent to distribute, a controlled substance in violation of chapter 69.50 RCW.

(9) Burglary in violation of chapter 9A.52 RCW.

(10) Sexual exploitation of children in violation of chapter 9.68A RCW.

NEW SECTION. Sec. 4. Any person who is convicted of a covered offense shall forfeit to the state:

(1) Any property acquired, maintained, or produced by means of, or as a result of, the commission of the covered offense.

(2) Any property constituting, or derived from, any proceeds which were obtained directly or indirectly from the commission of a covered offense.

(3) Any interest in, security of, claim against, or property, or contractual right of any kind affording a source of influence over any enterprise that the person has established, participated in, operated, controlled, or conducted in order to commit a covered offense.

(4) Property of any kind that substantially assisted in, facilitated in any manner, or was used or intended for use in the commission of a covered offense.

NEW SECTION. Sec. 5. (1) Any criminal complaint, information or indictment charging one or more covered offenses shall set forth with reasonable particularity property that the prosecuting attorney seeks to forfeit under this section.

(2) The court may, upon application of the prosecuting attorney, enter a restraining order or injunction, require any person claiming any interest in the subject property to execute a satisfactory performance bond to the state, or take any other action to preserve the availability of property subject to forfeiture described in section 4 of this act, whether prior or subsequent to the filing of a complaint, indictment, or information.

Written notice and an opportunity for a hearing shall be afforded to persons appearing to have an interest in the property, said hearing, however, to be limited to the issues of whether:

(a) There is a substantial probability that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, conveyed, encumbered or further encumbered, removed from the jurisdiction of the court, or otherwise made unavailable for forfeiture; or

(b) The need to preserve the availability of property through the entry of the requested order outweighs the hardship on any party against whom the order is to be entered.

(3) A temporary restraining order under this section may be entered upon application of the prosecuting attorney without notice or opportunity for a hearing when a complaint, information or indictment has not yet been filed with respect to the property if the prosecuting attorney demonstrates that there is probable cause to believe that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under section 4 of this act and that provision of notice will jeopardize the availability of the property for forfeiture. Such temporary restraining order shall expire within ten days of the date on which it is entered unless extended for good cause shown or unless the party against whom it is entered consents to an extension for a longer period.

A hearing requested by any party in interest concerning an order entered under this subsection shall be held at the earliest possible time and prior to the expiration of the temporary order.

The court may receive and consider, at a hearing held under this subsection, evidence and information that would be inadmissible under the rules of evidence.

(4) Upon conviction of a person for a covered offense, the court shall enter a judgment of forfeiture of the property described in section 4 of this act to the state and shall also authorize the prosecuting attorney to seize all property ordered forfeited upon such terms and conditions as the court shall deem proper. Following the entry of an order declaring the property forfeited, the court may, upon application of the prosecuting attorney, enter such appropriate restraining orders or injunctions; require the execution of satisfactory performance bonds; appoint receivers, conservators, appraisers, accountants, or trustees; or take any other action to protect the interest of the state in the property ordered forfeited. Any income accruing to, or derived from, an enterprise or an interest in an enterprise that has been ordered forfeited under this section may be used to offset ordinary and necessary expenses of the enterprise as required by law or that are necessary to protect the interests of the state or innocent third parties.

(5) All right, title, and interest in property described in section 4 of this act vests in the state upon the commission of the act giving rise to forfeiture under this chapter. Any such property that is subsequently transferred to any person may be the subject of a special verdict of forfeiture and thereafter shall be ordered forfeited to the state, unless the transferee establishes in a hearing under subsection (6)(f) of this section that he or she is a bona fide purchaser for value of such property who at the time of purchase was reasonably without cause to believe that the property was subject to forfeiture.

(6) Procedures subsequent to the special verdict of forfeiture shall be as follows:

(a) Following the entry of an order of forfeiture under this section, the state shall publish notice of the order and of its intent to dispose of the property for at least thirty days in such manner as the attorney general may provide by regulation. The state shall also, to the extent practicable, provide written notice to all parties known to have an interest in the property and all parties whose identity is reasonably subject to discovery and who may have an interest in the forfeited property.

(b) Any person, other than the defendant, asserting an interest in property that has been ordered forfeited to the state under this section may, within thirty days of the final publication of notice or his receipt of notice under subsection (6)(a) of this section, whichever is earlier, petition the court for a hearing to adjudicate the validity of his or her alleged interest in the property. The hearing shall be held by the court without a jury.

(c) The petition shall be signed by the petitioner under penalty of perjury and shall set forth the nature and extent of the petitioner's right, title or interest in the property; the time and circumstances of the petitioner's acquisition of the right, title, or interest in the property; any additional facts supporting the petitioner's claims; and the relief sought.

(d) The hearing on the petition shall, to the extent practicable and consistent with the interest of justice, be held within thirty days of the filing of the petition. The court may consolidate the hearing on the petition with a hearing on any other petition filed by a person other than the defendant and concerning the same property.

(e) At the hearing, the petitioner may testify and present evidence and witnesses on his or her own behalf and cross-examine witnesses who appear at the hearing. The state may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the criminal case that resulted in the order of forfeiture.

(f) In accordance with its findings at the hearing, the court shall amend the order of forfeiture if it determines that the petitioner has established by a preponderance of the evidence that:

(i) The petitioner has a right, title or interest in the property, and such right, title or interest was vested in the petitioner rather than the defendant or was superior to any right, title or interest of the defendant at the time of the commission of the acts which gave rise to the forfeiture of the property under this section; or

(ii) The petitioner is a bona fide purchaser for value of any right, title or interest in the property and was at the time of purchase reasonably without cause to believe that the property was subject to forfeiture under this section.

(g) Following the court's disposition of all petitions filed under this section, or if no such petitions are filed, following the expiration of the period provided in subsection (6)(b) of this section for the filing of such petitions, the state shall have clear title to property that is the subject of the order of forfeiture and shall transfer good and sufficient title to any subsequent purchaser, transferee or fund as provided in section 7 of this act.

(h) Except as provided in this section, no party claiming an interest in property subject to forfeiture under this section may:

(i) Intervene in a trial or appeal of a criminal case involving the forfeiture of such property; or

(ii) Commence any action against the state concerning the validity of the alleged interest.

(i) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of petitions filed under (e) of this subsection, after the entry of an order declaring property forfeited to the state, the court may, upon application of the prosecuting attorney, order that the testimony of any witness relating to the property forfeited be taken by deposition and that any designated book, paper, document, record, recording (electronic or otherwise), or other material not privileged, be produced at the same time and place, in the same manner as provided for the taking of depositions under the rules of criminal or civil procedure.

(j) If any of the property described in section 4 of this act:

(i) Cannot be located;

(ii) Has been transferred to, sold to or deposited with a third party;

(iii) Has been placed beyond the jurisdiction of the court;

(iv) Has been substantially diminished in value by any act or omission of the defendant; or

(v) Has been commingled with other property which cannot be divided without difficulty;

the court shall order the forfeiture of any other property of the defendant up to the value of the subject property.

(k) The court shall have jurisdiction to enter orders as provided in this section without regard to the location of any property that may be subject to forfeiture under this section or that has been ordered forfeited under this section.

NEW SECTION. Sec. 6. (1) In addition to or in lieu of the criminal forfeiture procedures of this chapter, any property described in section 4 of this act, except as designated in subsection (2) of this section, is subject to civil forfeiture to the state. Civil forfeiture proceedings shall be in the nature of an action in rem and shall be governed by the civil rules for in rem proceedings.

(2) All property described in section 4 of this act is subject to civil forfeiture except that:

(a) No conveyances used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this section unless it appears that the owner or other person in charge of the conveyance was a consenting party or privy to the covered offense charged.

(b) No conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of this state or of the United States.

(c) No property shall be forfeited under this section, to the extent of the interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without knowledge or consent of that owner.

(3) Property subject to forfeiture under this section may be seized by a law enforcement officer:

(a) Upon process issued under the rules of civil procedure applicable to in rem proceedings;

(b) Upon process issued under the provisions of RCW 10.79.020; or

(i) The seizure is incident to a lawful arrest or search;

(ii) The property subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this chapter or chapter 69.50 RCW;

(iii) The law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(iv) The law enforcement officer has probable cause to believe that the property is forfeitable under subsection (1) of this section.

(4) In the event of a seizure under subsection (3) of this section, the property shall not be subject to sequestration or attachment but is deemed to be in the custody of the law enforcement agency making the seizure, subject only to the order of the court. The seizing agency shall, as soon as practicable, but in any event within ten days of the seizure, provide written notice by registered mail of the seizure to all parties known to have an interest in the seized property. When property is seized under subsection (3) of this section, pending forfeiture and final disposition, the law enforcement agency making the seizure may:

(a) Place the property under seal;

(b) Remove the property to a storage area for safekeeping;

(d) Request another agency authorized by law to take custody of the property and remove it to an appropriate location within the jurisdiction of the court.

(5) As soon as practicable after seizure, the seizing agency shall conduct an inventory upon and cause the appraisal of the property seized.

(6) In the event of a seizure under subsection (3) of this section, the seizing agency shall promptly send to the prosecuting attorney a written request for forfeiture, which shall include a statement of all facts and circumstances including the names of all witnesses then known, the appraised value of the property, and the statutory provision relied upon for forfeiture.

(7) The prosecuting attorney shall immediately examine the facts and applicable law of the cases referred under this section, and if it is probable that the property is subject to forfeiture shall forthwith cause the initiation of administrative or judicial proceedings against the property. If, upon inquiry and examination, the prosecuting attorney determines that such proceedings probably cannot be sustained or that justice does not require the institution of such proceedings, he or she shall make a written report of such findings, transmit a copy to the seizing agency, and forthwith authorize the release of the property.

(8) If the value of any personal property seized does not exceed fifty thousand dollars the prosecuting attorney may forfeit the property administratively in the following manner:

(a) The prosecuting attorney shall provide notice of intention to forfeit property administratively by publication in a local newspaper of general circulation for thirty days.

(b) In addition, to the extent practicable the prosecuting attorney shall provide notice by registered mail of intent to forfeit the property administratively to all known interested parties and all parties whose identity is reasonably subject to discovery who may have an interest in the property seized.

(i) A description of the property;

(ii) The appraised value of the property;

(iii) The date and place of seizure;

(iv) The violation of law alleged against the subject property;

(v) The instructions for filing a claim and cost bond or a petition for remission or mitigation; and

(vi) A notice that the property will be forfeited to the state if a petition for remission or mitigation or a claim and cost bond has not been timely filed.

(d) Persons claiming an interest in the property may file petitions for remission or mitigation of forfeiture or a claim and cost bond with the prosecuting attorney within thirty days of the final notice by publication or receipt of written notice, whichever is earlier.

(e) The prosecuting attorney shall inquire into the facts and circumstances surrounding petitions for remission or mitigation of forfeiture.

(f) The prosecuting attorney shall provide the seizing agency and the petitioner a written decision on each petition for remission or mitigation within sixty days of receipt of such petition unless the circumstances of the case require additional time, in which case the prosecuting attorney shall notify the petitioner in writing and with specificity within the sixty-day period that the circumstances of the case require additional time and further notify the petitioner of the expected decision date.

(g) Any person claiming seized property under this subsection may institute judicial review of the seizure and proposed forfeiture by timely filing with the prosecuting attorney a claim and bond to the state in the amount of ten percent of the appraised value of the property or in the penal sum of twenty-five hundred dollars, whichever is greater, with sureties to be approved by the prosecuting attorney, upon condition that in the case of forfeiture the claimant shall pay all costs and expenses of the proceedings at the discretion of the court. Upon receipt of the claim and bond, or if he otherwise so elects, the prosecuting attorney shall file with the court a complaint in rem in accordance with the procedures set forth in subsection (9) of this section. Any funds received by the prosecuting attorney as cost bonds shall be placed in an escrow account pending final disposition of the case.

(h) If no petitions or claims with bonds are timely filed, the prosecuting attorney shall prepare a written declaration of forfeiture of the subject property to the state and dispose of the property in accordance with this chapter and the attorney general's regulations, if any, promulgated thereunder.

(i) If the petition is denied, the prosecuting attorney shall prepare a written declaration of forfeiture to the state and dispose of the property in accordance with this chapter and the attorney general's regulations, if any, promulgated thereunder.

(j) A written declaration of forfeiture signed by the prosecuting attorney under this chapter shall be deemed to provide good and sufficient title to the forfeited property.

(9) If the value of any personal property seized exceeds fifty thousand dollars, the prosecuting attorney shall immediately file a complaint in rem against the property and thereafter provide notice of intention to forfeit by publication in a local newspaper of general circulation for a period of at least thirty days. Such notice shall include:

(a) A description of the property;

(b) The appraised value of the property;

(d) The violation of law alleged against the subject property; and

(e) A summary of procedures set forth under the civil rules of procedure regarding responses to libel in rem actions.

The prosecuting attorney shall also, to the extent practicable, provide written notice of the action in rem to all known interested parties and all persons whose identity is reasonably subject to discovery who may have an interest in the property.

(10) Persons claiming an interest in the property may file claims against the property within thirty days of the final notice by publication or receipt of written notice, whichever is earlier. Such claims shall be filed and adjudicated in the manner set forth for petitions in criminal proceedings in section 5 (6)(b) through (g) of this act.

(11) If the property sought to be forfeited is real property, the prosecuting attorney shall file a complaint in rem against the property. In addition to providing notice as required by subsection (8) of this section, the prosecuting attorney shall file a lis pendens with respect to the property with the recorder of deeds in the county in which the property is located.

(12) Upon order of the court forfeiting the subject property to the state, the state shall have clear title to the forfeited property, and the prosecuting attorney may transfer good and sufficient title to any subsequent purchaser or transferee. Title to the forfeited property shall be deemed to have vested in the state upon the commission of the act giving rise to the forfeiture under this chapter.

(13) Upon entry of judgment for the claimant in any proceeding to forfeit property under this chapter, such property shall be returned forthwith to the claimant. If it appears that there was reasonable cause for the seizure or the filing of the complaint, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs or damages, nor shall the person or agency who made the seizure, nor the prosecuting attorney, be liable to suit or judgment on account of such seizure, suit, or prosecution.

(14) In any action brought under this section, the state shall have the initial burden of showing the existence of probable cause for seizure or arrest of the property. Upon such a showing by the state, the claimant shall have the burden of showing by a preponderance of evidence that the property was not subject to forfeiture under this chapter.

NEW SECTION. Sec. 7. (1) Any property forfeited to the state under this chapter shall be transferred to the attorney general who:

(a) May transfer the property to any local or state government entity or municipality or law enforcement agency within the state;

(b) May sell forfeited property to the public by public sale;

(c) May destroy any illegal or controlled substances, and may sell or destroy all raw materials, products, and equipment of any kind used or intended for use in manufacturing, compounding, or processing a controlled substance;

(d) May compromise and pay claims against the property forfeited under any provision of this chapter, and may promulgate rules and regulations concerning compromising and paying claims against property forfeited under any provision of this chapter; or

(e) May make any other disposition of forfeited property authorized by law.

(2) There is established in the state's treasury a special fund to be known as the asset forfeiture fund (hereinafter referred to as the "fund") in which shall be deposited all proceeds of a forfeiture. The fund shall be available to the attorney general for the following purposes:

(a) The payment of any expenses necessary to seize, detain, appraise, inventory, safeguard, maintain, advertise, or sell property seized, detained, or forfeited under this chapter or of any other necessary expenses incident to the seizure, detention, or forfeiture of such property; such payments may include but not be limited to payments for contract services and payments to reimburse any federal, state, or local agency for any expenditures made to perform the functions of this chapter;

(b) The payment of awards for information or assistance leading to a civil or criminal proceeding under this chapter;

(d) The payment of supplemental sums for law enforcement purposes;

(e) The payment of funds to reimburse victims.

(3) The attorney general shall transmit to the state legislature, not later than four months after the end of each fiscal year, a detailed report on the amounts deposited in the fund and a detailed description of withdrawals and property withheld from the fund and the uses thereof, but shall not make any disclosure which would compromise any investigation or prosecution.

NEW SECTION. Sec. 8. Notwithstanding any other provision of law, forfeiture proceedings under this chapter may be commenced at any time within ten years after the conduct in violation of this chapter terminates.

NEW SECTION. Sec. 9. Nothing in this chapter precludes a court from ordering the defendant to make restitution to a victim as part of a sentence imposed for a violation of a covered offense. The state shall not be compelled to provide funds for victim restitution under this chapter.

Sec. 10. Section 36, chapter 249, Laws of 1909 and RCW 9.92.110 are each amended to read as follows:

Every person sentenced to imprisonment in any penal institution shall be under the protection of the law, and any unauthorized injury to his person shall be punished in the same manner as if he were not so convicted or sentenced. A conviction of crime shall not work a forfeiture of any property, real or personal, or of any right or interest therein, except as provided in chapter 9.-- RCW (sections 1 through 9 of this 1985 act). All forfeitures in the nature of deodands, or in case of suicide or where a person flees from justice, are abolished.

NEW SECTION. Sec. 11. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION. Sec. 12. Sections 1 through 9 of this act shall constitute a new chapter in Title 9 RCW.