AN
ACT Relating to civil forfeitures of property; amending RCW 69.50.505,
9A.83.030, and 69.50.520; and creating a new section.
BE IT
ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:
Sec.
1. RCW
69.50.505 and 1993 c 487 s 1 are each amended to read as follows:
(a)
The following are subject to seizure and forfeiture and no property right
exists in them:
(1)
All controlled substances which have been manufactured, distributed, dispensed,
acquired, or possessed in violation of this chapter or chapter 69.41 or 69.52
RCW, and all hazardous chemicals, as defined in RCW 64.44.010, used or intended
to be used in the manufacture of controlled substances;
(2)
All raw materials, products, and equipment of any kind which are used, or
intended for use, in manufacturing, compounding, processing, delivering,
importing, or exporting any controlled substance in violation of this chapter
or chapter 69.41 or 69.52 RCW;
(3)
All property which is used, or intended for use, as a container for property
described in paragraphs (1) or (2);
(4)
All conveyances, including aircraft, vehicles, or vessels, which are used, or
intended for use, in any manner to facilitate the sale, delivery, or receipt of
property described in paragraphs (1) or (2), except that:
(i)
No conveyance 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
it appears that the owner or other person in charge of the conveyance is a
consenting party or privy to a violation of this chapter or chapter 69.41 or
69.52 RCW;
(ii)
No conveyance is subject to forfeiture under this section by reason of any act
or omission established by the owner thereof to have been committed or omitted
without the owner's knowledge or consent;
(iii)
No conveyance is subject to forfeiture under this section if used in the
receipt of only an amount of marijuana for which possession constitutes a
misdemeanor under RCW 69.50.401(e);
(iv)
A forfeiture of a conveyance 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 act or omission; and
(v)
When the owner of a conveyance has been arrested under this chapter or chapter
69.41 or 69.52 RCW the conveyance in which the person is arrested may not be
subject to forfeiture unless it is seized or process is issued for its seizure
within ten days of the owner's arrest;
(5)
All books, records, and research products and materials, including formulas,
microfilm, tapes, and data which are used, or intended for use, in violation of
this chapter or chapter 69.41 or 69.52 RCW;
(6)
All drug paraphernalia;
(7)
All moneys, negotiable instruments, securities, or other tangible or intangible
property of value furnished or intended to be furnished by any person in
exchange for a controlled substance in violation of this chapter or chapter
69.41 or 69.52 RCW, all tangible or intangible personal property, proceeds, or
assets acquired in whole or in part with proceeds traceable to an exchange or
series of exchanges in violation of this chapter or chapter 69.41 or 69.52 RCW,
and all moneys, negotiable instruments, and securities used or intended to be
used to facilitate any violation of this chapter or chapter 69.41 or 69.52
RCW. A forfeiture of money, negotiable instruments, securities, or other
tangible or intangible property encumbered by a bona fide security interest is
subject to the interest of the secured party if, at the time the security
interest was created, the secured party neither had knowledge of nor consented
to the act or omission. No personal property may be forfeited under this
paragraph, to the extent of the interest of an owner, by reason of any act or
omission which that owner establishes was committed or omitted without the
owner's knowledge or consent; and
(8)
All real property, including any right, title, and interest in the whole of any
lot or tract of land, and any appurtenances or improvements which are being
used with the knowledge of the owner for the manufacturing, compounding,
processing, delivery, importing, or exporting of any controlled substance, or
which have been acquired in whole or in part with proceeds traceable to an
exchange or series of exchanges in violation of this chapter or chapter 69.41
or 69.52 RCW, if such activity is not less than a class C felony and a
substantial nexus exists between the commercial production or sale of the
controlled substance and the real property. However:
(i)
No property may be forfeited pursuant to this subsection, to the extent of the
interest of an owner, by reason of any act or omission committed or omitted
without the owner's knowledge or consent;
(ii)
The bona fide gift of a controlled substance, legend drug, or imitation
controlled substance shall not result in the forfeiture of real property;
(iii)
The possession of marijuana shall not result in the forfeiture of real property
unless the marijuana is possessed for commercial purposes, the amount possessed
is five or more plants or one pound or more of marijuana, and a substantial
nexus exists between the possession of marijuana and the real property. In
such a case, the intent of the offender shall be determined by the
preponderance of the evidence, including the offender's prior criminal history,
the amount of marijuana possessed by the offender, the sophistication of the
activity or equipment used by the offender, and other evidence which
demonstrates the offender's intent to engage in commercial activity;
(iv)
The unlawful sale of marijuana or a legend drug shall not result in the
forfeiture of real property unless the sale was forty grams or more in the case
of marijuana or one hundred dollars or more in the case of a legend drug, and a
substantial nexus exists between the unlawful sale and the real property; and
(v)
A forfeiture of real property encumbered by a bona fide security interest is
subject to the interest of the secured party if the secured party, at the time
the security interest was created, neither had knowledge of nor consented to
the act or omission.
(b)
Real or personal property subject to forfeiture under this chapter may be
seized by any board inspector or law enforcement officer of this state upon
process issued by any superior court having jurisdiction over the property.
Seizure of real property shall include the filing of a lis pendens by the
seizing agency. 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: PROVIDED, That real
property seized under this section may be transferred or conveyed to any 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:
(1)
The seizure is incident to an arrest or a search under a search warrant or an
inspection under an administrative inspection warrant;
(2)
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 board inspector or law enforcement officer has probable cause to believe that
the property is directly or indirectly dangerous to health or safety; or
(4)
The board inspector or law enforcement officer has probable cause to believe
that the property was used or is intended to be used in violation of this
chapter.
(c)
In the event of seizure pursuant to subsection (b), 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 and the
person in charge thereof and any person having any known right or interest
therein, including any community property interest, of the seizure and intended
forfeiture of the seized property. 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. 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)) 62A.9A
RCW, or a certificate of title, shall be made by service upon the secured party
or the secured party's assignee at the address shown on the financing statement
or the certificate of title. 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
shall be deemed complete upon mailing within the fifteen day period following
the seizure.
(d)
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
subsection (a)(4), (a)(7), or (a)(8) of this section within forty-five days of
the seizure in the case of personal property and ninety days in the case of
real property, the item 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.
(e)
If any person notifies the seizing law enforcement agency in writing of the
person's claim of ownership or right to possession of items specified in
subsection (a)(2), (a)(3), (a)(4), (a)(5), (a)(6), (a)(7), or (a)(8) of this
section 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
hearing shall be before the chief law enforcement officer of the seizing agency
or the chief law enforcement officer's designee, except where the seizing
agency is a state agency as defined in RCW 34.12.020(4), the hearing shall be
before the chief law enforcement officer of the seizing agency or an administrative
law judge appointed under chapter 34.12 RCW, except that any person asserting a
claim or right may remove the matter to a court of competent jurisdiction.
Removal of any matter involving personal property may only be accomplished
according to the rules of civil procedure. The person seeking removal of the
matter must serve process against the state, county, political subdivision, or
municipality that operates the seizing agency, and any other party of interest,
in accordance with RCW 4.28.080 or 4.92.020, within forty-five days after the
person seeking removal has notified the seizing law enforcement agency of the
person's claim of ownership or right to possession. The court to which the
matter is to be removed shall be the district court when the aggregate value of
personal property is within the jurisdictional limit set forth in RCW
3.66.020. A hearing before the seizing agency and any appeal therefrom shall
be under Title 34 RCW. ((In a court hearing between two or more claimants
to the article or articles involved, the prevailing party shall be entitled to
a judgment for costs and reasonable attorney's fees. In cases involving
personal property, 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 property.)) In all cases ((involving real
property)), the burden of ((producing evidence shall be)) proof
is upon the law enforcement agency to establish, by a preponderance of
the evidence, that the property is subject to forfeiture. ((The burden
of proof that the seized real property is subject to forfeiture shall be upon
the law enforcement agency.))
The
seizing law enforcement agency shall promptly return the article or articles to
the claimant upon a determination by the administrative law judge or court that
the claimant is the present lawful owner or is lawfully entitled to possession
thereof of items specified in subsection (a)(2), (a)(3), (a)(4), (a)(5),
(a)(6), (a)(7), or (a)(8) of this section.
(f)
In any proceeding to forfeit property under this title, where the claimant
substantially prevails, the claimant is entitled to reasonable attorneys' fees
reasonably incurred by the claimant. In addition, in a court hearing between
two or more claimants to the article or articles involved, the prevailing party
is entitled to a judgment for costs and reasonable attorneys' fees.
(g)
When property is forfeited under this chapter the board or seizing law
enforcement agency may:
(1)
Retain it for official use or upon application by any law enforcement agency of
this state release such property to such agency for the exclusive use of
enforcing the provisions of this chapter;
(2)
Sell that which is not required to be destroyed by law and which is not harmful
to the public;
(3)
Request the appropriate sheriff or director of public safety to take custody of
the property and remove it for disposition in accordance with law; or
(4)
Forward it to the drug enforcement administration for disposition.
(((g)))
(h)(1) When property is forfeited, the seizing agency shall keep a
record indicating the identity of the prior owner, if known, a description of
the property, the disposition of the property, the value of the property at the
time of seizure, and the amount of proceeds realized from disposition of the
property.
(2)
Each seizing agency shall retain records of forfeited property for at least
seven years.
(3)
Each seizing agency shall file a report including a copy of the records of
forfeited property with the state treasurer each calendar quarter.
(4)
The quarterly report need not include a record of forfeited property that is
still being held for use as evidence during the investigation or prosecution of
a case or during the appeal from a conviction.
(((h)))
(i)(1) 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 any
property forfeited during the preceding calendar year. Money remitted shall be
deposited in the violence reduction and drug enforcement ((and
education)) account under RCW 69.50.520.
(2)
The net proceeds of forfeited property is the value of the forfeitable interest
in the property after deducting the cost of satisfying any bona fide security
interest to which the property is subject at the time of seizure; and in the
case of sold property, after deducting the cost of sale, including reasonable
fees or commissions paid to independent selling agents, and the cost of any valid
landlord's claim for damages under subsection (((n))) (o) of this
section.
(3)
The value of sold forfeited property is the sale price. The value of retained
forfeited property is the fair market value of the property 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 for valuation of
motor vehicles. A seizing agency may use, but need not use, an independent
qualified appraiser to determine the value of retained property. If an
appraiser is used, the value of the property appraised is net of the cost of
the appraisal. The value of destroyed property and retained firearms or
illegal property is zero.
(((i)))
(j) 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 controlled substances related
law enforcement activity. Money retained under this section may not be used to
supplant preexisting funding sources.
(((j)))
(k) Controlled substances listed in Schedule I, II, III, IV, and V that
are possessed, transferred, sold, or offered for sale in violation of this
chapter are contraband and shall be seized and summarily forfeited to the
state. Controlled substances listed in Schedule I, II, III, IV, and V, which
are seized or come into the possession of the board, the owners of which are
unknown, are contraband and shall be summarily forfeited to the board.
(((k)))
(l) Species of plants from which controlled substances in Schedules I
and II may be derived which have been planted or cultivated in violation of
this chapter, or of which the owners or cultivators are unknown, or which are
wild growths, may be seized and summarily forfeited to the board.
(((l)))
(m) The failure, upon demand by a board inspector or law enforcement
officer, of the person in occupancy or in control of land or premises upon
which the species of plants are growing or being stored to produce an appropriate
registration or proof that he is the holder thereof constitutes authority for
the seizure and forfeiture of the plants.
(((m)))
(n) Upon the entry of an order of forfeiture of real property, the court
shall forward a copy of the order to the assessor of the county in which the
property is located. Orders for the forfeiture of real property shall be
entered by the superior court, subject to court rules. Such an order shall be
filed by the seizing agency in the county auditor's records in the county in
which the real property is located.
(((n)))
(o) A landlord may assert a claim against proceeds from the sale of
assets seized and forfeited under subsection (((f))) (g)(2) of
this section, only if:
(l)
A law enforcement officer, while acting in his or her official capacity,
directly caused damage to the complaining landlord's property while executing a
search of a tenant's residence; and
(2)
The landlord has applied any funds remaining in the tenant's deposit, to which
the landlord has a right under chapter 59.18 RCW, to cover the damage directly
caused by a law enforcement officer prior to asserting a claim under the
provisions of this section;
(i)
Only if the funds applied under (2) of this subsection are insufficient to
satisfy the damage directly caused by a law enforcement officer, may the
landlord seek compensation for the damage by filing a claim against the
governmental entity under whose authority the law enforcement agency operates
within thirty days after the search;
(ii)
Only if the governmental entity denies or fails to respond to the landlord's
claim within sixty days of the date of filing, may the landlord collect damages
under this subsection by filing within thirty days of denial or the expiration
of the sixty-day period, whichever occurs first, a claim with the seizing law
enforcement agency. The seizing law enforcement agency must notify the
landlord of the status of the claim by the end of the thirty-day period.
Nothing in this section requires the claim to be paid by the end of the
sixty-day or thirty-day period.
(3)
For any claim filed under (2) of this subsection, the law enforcement agency
shall pay the claim unless the agency provides substantial proof that the
landlord either:
(i)
Knew or consented to actions of the tenant in violation of this chapter or
chapter 69.41 or 69.52 RCW; or
(ii)
Failed to respond to a notification of the illegal activity, provided by a law
enforcement agency under RCW 59.18.075, within seven days of receipt of
notification of the illegal activity.
(((o)))
(p) The landlord's claim for damages under subsection (((n))) (o)
of this section may not include a claim for loss of business and is limited to:
(1)
Damage to tangible property and clean-up costs;
(2)
The lesser of the cost of repair or fair market value of the damage directly
caused by a law enforcement officer;
(3)
The proceeds from the sale of the specific tenant's property seized and forfeited
under subsection (((f))) (g)(2) of this section; and
(4)
The proceeds available after the seizing law enforcement agency satisfies any
bona fide security interest in the tenant's property and costs related to sale
of the tenant's property as provided by subsection (((h))) (i)(2)
of this section.
(((p)))
(q) Subsections (((n))) (o) and (((o))) (p)
of this section do not limit any other rights a landlord may have against a
tenant to collect for damages. However, if a law enforcement agency satisfies
a landlord's claim under subsection (((n))) (o) of this section,
the rights the landlord has against the tenant for damages directly caused by a
law enforcement officer under the terms of the landlord and tenant's contract
are subrogated to the law enforcement agency.
Sec.
2. RCW
9A.83.030 and 1992 c 210 s 3 are each amended to read as follows:
(1)
Proceeds traceable to or derived from specified unlawful activity or a
violation of RCW 9A.83.020 are subject to seizure and forfeiture. 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 shall vest 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. Any 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 any 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 an
inspection under an administrative inspection warrant issued pursuant to RCW
69.50.502; 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 (((g))) (h) through (((i))) (j) and
(((m))) (n).
Sec.
3. RCW
69.50.520 and 2000 2nd sp.s. c 1 s 917 are each amended to read as follows:
The
violence reduction and drug enforcement account is created in the state
treasury. All designated receipts from RCW 9.41.110(8), 66.24.210(4),
66.24.290(2), 69.50.505(((h))) (i)(1), 82.08.150(5),
82.24.020(2), 82.64.020, and section 420, chapter 271, Laws of 1989 shall be
deposited into the account. Expenditures from the account may be used only for
funding services and programs under chapter 271, Laws of 1989 and chapter 7,
Laws of 1994 sp. sess., including state incarceration costs. Funds from the
account may also be appropriated to reimburse local governments for costs
associated with implementing criminal justice legislation including chapter
338, Laws of 1997. During the 1999-2001 biennium, funds from the account may
also be used for costs associated with providing grants to local governments in
accordance with chapter 338, Laws of 1997, the design, sitework, and construction
of the special commitment center, the replacement of the department of
corrections' offender-based tracking system, and for multijurisdictional
narcotics task forces. After July 1, 2001, at least seven and one-half percent
of expenditures from the account shall be used for providing grants to
community networks under chapter 70.190 RCW by the family policy council.
*NEW
SECTION. Sec. 4.
(1) The senate and house of representatives
judiciary committees shall convene a workgroup to evaluate Washington civil
forfeiture laws and practices. The efforts of the workgroup shall include: An
evaluation of the enacted changes to the federal civil forfeiture act and how
they compare to current Washington law; an analysis of whether a requirement
for a criminal conviction before civil forfeiture would raise additional
constitutional issues; a comprehensive review of every civil forfeiture case
that took place in Washington state under state law during the year 2000; a
discussion of recommendations and issues in the Washington civil forfeiture
statutes, including issues upon which the workgroup can agree and those that
remain in dispute; and any other civil forfeiture issues identified by the
workgroup during its deliberations.
(2)
The workgroup shall consist of sixteen members. Four members shall be from the
senate, two from each caucus to be appointed by the president of the senate,
and four members shall be from the house of representatives, two from each
caucus to be appointed by the co-speakers of the house of representatives. The
American civil liberties union, the Washington association of sheriffs and
police chiefs, the Washington association of prosecuting attorneys, and the
Washington association of criminal defense lawyers may appoint two
representatives each to participate in the workgroup.
(3)
The members of the legislature appointed to the workgroup shall be paid by the
legislature under chapter 44.04 RCW. Support staff for the workgroup shall be
provided by the senate committee services and the office of program research.
(4)
The workgroup shall submit its findings and recommendations to the senate
judiciary committee and house of representatives judiciary committee not later
than December 1, 2001. The workgroup shall terminate on December 15, 2001.
*Sec. 4 was vetoed. See message at end of chapter.
NEW
SECTION. Sec. 5. 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.
