5815-S.E AMH RILE PERR 06

ESSB 5815 - H AMD TO H AMD (5815-S.E AMH APPE PERR 05)

By Representative Riley

     On page 11 of the amendment, after line 20 add the following:

     "NEW SECTION. Sec. 2.  A new section is added to chapter 46.61 RCW to read as follows:

     (1) A vehicle driven by or under the actual physical control of the owner of the vehicle in violation of RCW 46.61.502 or 46.61.504 is, upon the conviction of the owner when that conviction is the second or subsequent conviction for a violation of RCW 46.61.502 or 46.61.504 within a five-year period, subject to seizure and forfeiture and no property right exists in that vehicle. 

     A forfeiture of a vehicle 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 the violation of RCW 46.61.502 or 46.61.504.

     (2) A vehicle subject to forfeiture under this chapter may be seized by a law enforcement officer of this state upon process issued by a court of competent jurisdiction.  Seizure of a vehicle may be made without process if the vehicle subject to seizure has been the subject of a prior judgment in favor of the state in a forfeiture proceeding based upon this section.

     (3) A seizure under subsection (2) of this section automatically 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 vehicle to be served within fifteen days after the seizure on the owner of the vehicle seized, on the person in charge of the vehicle, and on any person having a known right or interest in the vehicle, including a community property interest.  The notice of seizure 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.  Notice of seizure in the case of property subject to a security interest that has been perfected by filing a financing statement in accordance with chapter 62A.9 RCW, or a certificate of title shall be made by service upon the secured party to the secured party's assignee at the address shown on the financing statement or the certificate of title.

     (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 seized vehicle within ninety days of the seizure, the vehicle is deemed forfeited.  A perfected security interest of a secured party may be extinguished only after a contested hearing or agreement by the secured party.

     (5) If a person notifies the seizing law enforcement agency in writing of the person's claim of ownership or right to possession of the seized vehicle within ninety days of the seizure, the law enforcement agency shall give the person or persons a reasonable opportunity to be heard as to the claim or right.  The prosecuting attorney shall file the case into a court of competent jurisdiction.  The court to which the matter is file shall be the district court when the value of the vehicle is within the jurisdictional limit of the district court.  In a court hearing between two or more claimants to the vehicle involved, the prevailing party is entitled to a judgment for costs and reasonable attorneys' fees.  The burden of producing evidence is upon the person claiming to be the lawful owner or the person claiming to have the lawful right to possession of the vehicle.  The seizing law enforcement agency shall promptly return the vehicle to the claimant upon a determination by the chief law enforcement officer, of the seizing agency, the chief law enforcement officer's designee, or the court that the claimant neither knew of nor consented to the violation leading to seizure and is the present lawful owner or is lawfully entitled to possession of the vehicle.

     (6) When a vehicle is forfeited under this chapter the seizing law enforcement agency may sell the vehicle, retain it for official use, or upon application by a law enforcement agency of this state release the vehicle to that agency for the exclusive use of enforcing this title.

     (7) When a vehicle is forfeited, the seizing agency shall keep a record indicating the identity of the prior owner, if known, a description of the vehicle, the disposition of the vehicle, the value of the vehicle at the time of seizure, and the amount of proceeds realized from disposition of the vehicle.

     (8) Each seizing agency shall retain records of forfeited vehicles for at least seven years.

     (9) Each seizing agency shall file a report including a copy of the records of forfeited vehicles with the state treasurer each calendar quarter.

     (10) The quarterly report need not include a record of a forfeited vehicle that is still being held for use as evidence during the investigation or prosecution of a case or during the appeal from a conviction.

     (11) By January 31st of each year, each seizing agency shall remit to the state treasurer an amount equal to ten percent of the net proceeds of vehicles forfeited during the preceding calendar year.  Money remitted shall be deposited in the public safety and education account.

     (12) The net proceeds of a forfeited vehicle is the value of the forfeitable interest in the vehicle after deducting the cost of satisfying a bona fide security interest to which the vehicle is subject at the time of seizure; and in the case of a sold vehicle, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents.

     (13) The value of a sold forfeited vehicle is the sale price.  The value of a retained forfeited vehicle is the fair market value of the vehicle at the time of seizure, determined when possible by reference to an applicable commonly used index, such as the index used by the department of licensing.  A seizing agency may use, but need not use, an independent qualified appraiser to determine the value of retained vehicles.  If an appraiser is used, the value of the vehicle appraised is net of the cost of the appraisal.

NEW SECTION. Sec. 3.  A new section is added to chapter 46.61 RCW to read as follows:

     (1) Whenever a person is charged with a violation of RCW 46.61.502 or 46.61.504 and that person has been previously convicted for a violation of RCW 46.61.502 or 46.61.504 within a five-year period, the court shall instruct the person charged of the provisions of section 5 of this act and shall immediately forward notice of the charge to the director.

     (2) Upon the conviction or acquittal of the person charged or if a pending charge is otherwise terminated, the court shall immediately forward notice of the conviction, acquittal or other termination of charge to the director.

NEW SECTION. Sec. 4.  A new section is added to chapter 46.12 RCW to read as follows:

     Upon receiving notice of a charge under section 3 of this act, the director shall withhold the issuance of a certificate of ownership on a vehicle subject to section 5 of this act unless the applicant is included in the exceptions listed in that section or until receiving notice of acquittal or other termination of the charge under section 3 of this act.

NEW SECTION. Sec. 5.  A new section is added to chapter 46.12 RCW to read as follows:

     It is unlawful to convey, sell, or transfer the ownership of a motor vehicle that was driven by or was under the actual physical control of the owner of the vehicle who has previously been convicted for a violation of RCW 46.61.502 or 46.61.504 within a five-year period and is currently charged with a violation of RCW 46.61.502 or 46.61.504, except that:

     (1) A vehicle encumbered by a bona fide security interest may be transferred to the secured party or to a person designated by the secured party; and

     (2) A leased vehicle may be transferred to the lessor or to a person designated by the lessor.

     Sec. 6.  RCW 46.12.270 and 1969 ex.s. c 125 s 3 are each amended to read as follows:

     Any person violating ((the provisions of)) RCW 46.12.250 ((or)), 46.12.260 ((shall be)), or section 5 of this act is guilty of a misdemeanor and shall be punished by a fine of not more than two hundred fifty dollars or by imprisonment in a county jail for not more than ninety days."