BILL REQ. #:  H-5339.1 

READ FIRST TIME 02/05/08.   

     AN ACT Relating to allowing civil forfeiture of conveyances used in prostitution-related offenses; and adding a new section to chapter 9A.88 RCW.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 9A.88 RCW to read as follows:
     (1)(a) Except as provided in (b) through (e) of this subsection, the following are subject to seizure and forfeiture and no property right exists in them: All conveyances, including aircraft, vehicles, or vessels, which are used, or intended for use, in any manner to facilitate a violation of RCW 9.68A.100, 9.68A.101, 9.68A.102, 9A.88.030, 9A.88.070, 9A.88.080, 9A.88.085, or 9A.88.110, within an area designated under subsection (11) of this section.
     (b) 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 an offense listed in (a) of this subsection.
     (c) 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.
     (d) 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.
     (e) When the owner of a conveyance has been arrested for a violation of an offense listed in (a) of this subsection, 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.
     (2) Personal property subject to forfeiture under this section may be seized by any law enforcement officer of this state upon process issued by any superior court having jurisdiction over the property. 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;
     (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 section;
     (c) A law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of an offense listed in subsection (1)(a) of this section.
     (3) In the event of seizure pursuant to subsection (2) of this section, 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 seizure on the owner of the property seized and the person in charge thereof and any person having any known right of interest therein, including any community property interest, of the seizure and intended forfeiture of the seized property. 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.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 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.
     (4) 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 (1) of this section within forty-five days of the seizure, the item seized shall be deemed forfeited.
     (5) If any person notifies the law enforcement agency in writing of the person's claim of ownership or right to possession of items specified in subsection (1) of this section within forty-five days of the seizure, 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 all cases, the burden of proof is upon the law enforcement agency to establish, by a preponderance of the evidence, that the property is subject to forfeiture.
     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 or items specified in subsection (1) of this section.
     (6) In any proceeding to forfeit property under this section, 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.
     (7) When property is forfeited under this section, the seizing law enforcement agency may:
     (a) 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;
     (b) Sell that which is not required to be destroyed by law and which is not harmful to the public; or
     (c) Request the appropriate sheriff or director of public safety to take custody of the property and remove it for disposition in accordance with law.
     (8)(a) 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 the seizure, and the amount of proceeds realized from disposition of the property.
     (b) Each seizing agency shall retain records of forfeited property for at least seven years.
     (c) Each seizing agency shall file a report including a copy of the records of forfeited property with the state treasurer each calendar quarter.
     (d) 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.
     (9)(a) By January 31st of each year, each seizing agency shall remit to the state treasurer an amount equal to the greater of ten percent of the net proceeds of any property forfeited during the preceding calendar year or the net proceeds of any property forfeited during the year minus the administrative costs of the forfeiture. Money remitted shall be deposited in the prostitution prevention and intervention account established under RCW 43.63A.740.
     (b) 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 the seizure; and in the case of sold property, after deducting the cost of sale, including reasonable fees or commissions paid to independent selling agents.
     (c) 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 by reference to any applicable commonly used index. 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 is zero.
     (d) The administrative costs of the forfeiture include, but are not limited to, the costs of impoundment, towing, hearings, and employee time.
     (10) 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 prostitution-related law enforcement activity. Money retained under this section may not be used to supplant preexisting funding sources.
     (11) A local governing authority may designate areas within which conveyances are subject to forfeiture under this section. The designation must be based on evidence indicating that the area has a disproportionate number of arrests for the offenses listed in subsection (1)(a) of this section as compared to other areas. The local governing authority shall post signs that indicate that the area has been designated under this subsection.