Fiscal Summary
Decrease State Revenue - $1,872,300/State Law Enforcement Agencies
$539,800/Division of Administrative Procedures
Increase State Revenue - $748,900/Asset Forfeiture Trust Fund
Decrease State Expenditures - $539,800/Secretary of State
Decrease Local Revenue - $3,757,200
Bill Summary
This bill enacts the Asset Forfeiture and Disposition of Seized Property Act, which will apply, on and after July 1, 2017, to property subject to forfeiture as the result of the commission of a criminal offense. This bill summary does not describe each difference between present law and this bill, but does highlight the significant differences as follows:
(1) Under present law, forfeiture may occur without an arrest. This bill requires that a person be arrested and convicted before property is subject to forfeiture;
(2) The present law burden of proof for the state in forfeiture hearings is a preponderance of evidence. The burden of proof for the state under this bill is clear and convincing evidence;
(3) In addition to changing the evidentiary burden, this bill replaces the present law forfeiture hearing process with an ancillary forfeiture proceeding process. Under present law, once property is seized, there must be a forfeiture warrant hearing before a judge. If the judge issues a forfeiture warrant, any person who claims an interest in the seized property has 30 days to petition the seizing agency for a hearing before an agency hearing officer or administrative judge. The results of the administrative hearing may be appealed to Davidson County circuit or chancery court. An ancillary proceeding will occur after the conclusion of the criminal trial of the person whose property was seized and will be heard by the same judge and, if applicable, jury as heard the criminal trial. Ancillary proceedings involving property valued at less than $20,000 will be held before a judge only. Decisions rendered at an ancillary proceeding may be appealed to the appellate courts;
(4) Under this bill, a person who claims an interest in seized property and does not want to wait until the ancillary proceeding to obtain a disposition of the property may move the court for a writ of replevin (a demand to return the property);
(5) Present law authorizes the administrative head of the applicable agency to, in the interests of justice, order that the seized property be returned to the claimant notwithstanding that the hearing officer found that the state carried its burden of proof and recommended forfeiture of the property. This bill does not authorize a return of property based on the "interests of justice," but it does authorize a court that is considering a motion filed under (4) to order the return of property or funds sufficient to obtain legal counsel;
(6) This bill authorizes a person whose property is forfeited to petition the trial court for a non-jury hearing on whether the forfeiture was constitutionally excessive;
(7) Present law specifies which law enforcement officers may negotiate or enter into any type of settlement agreement or agreements prior to a forfeiture hearing and requires that all negotiated settlements by any seizing agency are subject to the approval of the chief administrative officer of the applicable agency. This bill prohibits forfeiture based on a plea agreement or other agreement of the parties to a criminal proceeding;
(8) Under present law, proceeds from the disposition of forfeited goods are generally either deposited in the state treasury or returned to the local law enforcement agency that seized the property to be used for drug education or drug prevention. Under present law, the excess proceeds from the forfeiture of motor vehicles that are seized from persons caught driving with a license that was suspended due to a DUI is deposited in the alcohol and drug addiction treatment fund. This bill requires that the proceeds from forfeited property be deposited in an asset forfeiture trust fund to be used by the state to reimburse persons who have a bona fide security interest in seized property, innocent owners of seized property, persons whose property was seized and who were later acquitted or whose charges were dismissed, and persons whose charge was the basis of the forfeiture proceedings was disposed of by formal abandonment of the charges; and
(9) This bill prohibits law enforcement agencies from transferring seized property to the federal government unless the value of the seized property exceeds $50,000 or if the transfer would circumvent protections otherwise available to a putative interest holder. This bill authorizes a law enforcement agency to transfer seized property to the federal government if the conduct that gave rise to the seizure is interstate in nature and complex or the seized property may only be forfeited under federal law. Any proceeds from forfeited property that are returned to a law enforcement agency by the federal government must be deposited in the general fund.
