H-4072              _______________________________________________

                                                   HOUSE BILL NO. 1808

                        _______________________________________________

State of Washington                              50th Legislature                              1988 Regular Session

By Representatives Grant, Beck, Meyers, Jones, Zellinsky, Kremen, Sprenkle, D. Sommers, Heavey, Moyer, Cantwell, P. King, Jesernig, Dorn, Sanders, Winsley, Schoon, B. Williams, Silver, Butterfield, Amondson, Holland, May, Miller, Todd, Dellwo and Brough

Read first time 1/27/88 and referred to Committee on Judiciary.

AN ACT Relating to seizure and forfeiture of property; and adding a new chapter to Title 10 RCW.

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

NEW SECTION. Sec. 1.     (1) In all cases involving commission of a felony, the following are subject to seizure and forfeiture, subject to the provisions of subsection (2) of this section:

          (a)  All moneys, negotiable instruments, securities, weapons, and real and personal property which is used in any manner to commit any act which is a necessary element of the crime; and

          (b) All conveyances, including aircraft, vehicles, or vessels, which are used in any manner to commit any act which is a necessary element of the crime.

          (2) This section shall not apply to those items listed in subsection (1) of this section which are owned by another, unless it is established that the crime was committed with the knowledge or consent of the owner.  If the owner of the item is an entity owned wholly or partially by the individual committing the crime, the owner shall be presumed to have known or consented to the use of the conveyance in the criminal activity.  A forfeiture of an item encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to any element of the crime.

NEW SECTION. Sec. 2.     (1)  Property subject to forfeiture under this chapter may be seized by any law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property.  Seizure without process may be made if:

          (a) The seizure is incident to an arrest or a search under a search warrant;

          (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; or

          (c) A law enforcement officer has probable cause to believe that the property was used in violation of this chapter.

          (2) In the event of seizure pursuant to this chapter, proceedings for forfeiture shall be deemed commenced by the seizure.  The law enforcement agency under whose authority the seizure was made shall cause notice to be served within fifteen days following the seizure on the owner of the property seized, the person in charge thereof, the person from whom the property was seized, and any person having any known right or interest in the property.  The notice shall state that the property was seized, the date of the seizure, and the proposed forfeiture of the seized property.  The notice 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 shall be deemed complete upon mailing within the fifteen-day period following the seizure.

          (3) If no person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in section 1 of this act within forty-five days of the seizure, the item seized shall be deemed forfeited.

          (4) If any person claims ownership or right to possession of items specified in section 1 of this act, the person or persons shall be afforded a reasonable opportunity to be heard as to the claim or right upon notification in writing to the seizing law enforcement agency and upon application to the superior court of the county in which the property was seized within forty-five days of the seizure.  The burden of producing evidence shall be upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the items seized.  The seizing law enforcement agency shall promptly return the article or articles to the claimant upon a determination by the court that the claimant is the present lawful owner or is lawfully entitled to possession.  If the court determines that the claimant is not the lawful owner or entitled to possession of the items seized, the court shall enter a judgment declaring that the seized items are forfeited.

          (5) When property is forfeited under this chapter, it shall be sold,  and the proceeds and all money forfeited shall be used for payment of all proper expenses of the investigation leading to the seizure and of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, actual costs of the prosecuting or city attorney, and court costs.  Fifty percent of the money remaining after payment of such expenses shall be deposited in the general fund of the state, county, or city of the seizing law enforcement agency, and fifty percent shall be remitted to the state treasurer for deposit in the public safety and education account established in RCW 43.08.250.  If the property has no market value, it shall be disposed of by the seizing law enforcement agency.

NEW SECTION. Sec. 3.     Sections 1 and 2 of this act shall constitute a new chapter in Title 10 RCW.

NEW SECTION. Sec. 4.     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.