OLR Bill Analysis

sHB 7146

AN ACT REQUIRING A CRIMINAL CONVICTION FOR CERTAIN OFFENSES BEFORE ASSETS SEIZED IN A LAWFUL ARREST OF LAWFUL SEARCH MAY BE FORFEITED IN A CIVIL PROCEEDING.

SUMMARY

This bill makes changes to the laws governing civil forfeiture of property:

1. that was seized as a result of a lawful arrest or lawful search for a non-drug criminal offense and that the state claims to be a nuisance or desires to dispose of or destroy;

2. used or associated with, or that constitutes the proceeds of, certain drug offenses; and

3. constituting or derived from the proceeds obtained by a person as a result of certain identity theft offenses.

The bill permits the chief state's attorney to petition the court to order forfeiture of such property within 90 days of a criminal conviction, instead of within 90 days of the seizure resulting from a lawful arrest or lawful search as under current law.

The bill also limits the conditions under which property is subject to forfeiture to the state and establishes a procedure by which a person who claims interest in seized property may petition the court for its return. The bill repeals a provision that specifies that the state's failure to proceed against property in a civil forfeiture proceeding does not prevent its use as evidence in a criminal trial.

Additionally, the bill makes various changes to the civil forfeiture proceedings, including the circumstances in which the court must order property returned to its owner and the evidence the state must provide to meet its burden of proof in such proceedings.

It also makes minor, technical, and conforming changes.

EFFECTIVE DATE: October 1, 2017

PROPERTY SUBJECT TO FORFEITURE

For non-drug crimes, current law allows the state to seek forfeiture of any property (1) believed to be possessed, controlled, designed, or intended for criminal use or (2) that is, has been, or may be used in the commission of a crime. Under the bill, the property must be believed to (1) have been used in a crime or (2) be directly traceable to the proceeds derived from a crime.

The law, unchanged by the bill, specifies certain property for which the state may seek forfeiture related to drug and money laundering, identity theft, and sexual exploitation, prostitution, and human trafficking crimes.

FORFEITURE PROCEEDINGS

Forfeiture proceedings are civil suits in equity in which the court has jurisdiction over property.

The bill allows the chief state's attorney to petition the court to forfeit property associated with a crime within 90 days of a criminal conviction, instead of within 90 days of the property's seizure during a lawful search or arrest as under current law.

Non-drug Crimes

The bill requires the state, in civil forfeiture proceedings for property related to certain non-drug crimes, to prove by clear and convincing evidence that the property:

1. was used in a crime,

2. constitutes proceeds derived from a crime, or

3. is directly traceable to proceeds derived from a crime.

Current law requires the state to prove all material facts by clear and convincing evidence.

Drug Offenses, Money Laundering, and Identity Theft

The law, unchanged by the bill, requires the state to prove all material facts by clear and convincing evidence in civil forfeiture proceedings related to (1) property seized in relation to identity theft and (2) money or property seized in relation to drug offenses.

Disposition of Forfeited Property

Under the law, unchanged by the bill, if the state meets its burden of proof, the court must render judgment that the property is a nuisance and order it destroyed or disposed of to a charitable or educational institution or governmental agency or institution. However, the state may not destroy or dispose of the property if (1) it is subject to a bona fide mortgage, lease, rent, lien, or security deposit and (2) the destruction or disposition would violate the holder's rights.

By law, forfeited money and certain proceeds from the sale of nuisance property must be deposited to the:

1. General Fund in cases involving non-drug criminal offenses,

2. Drug Assets Forfeiture Revolving Account in cases involving drug crimes or money laundering, and

3. Privacy Protection Guaranty and Enforcement Account in identity theft cases.

PETITION FOR THE RETURN OF PROPERTY

For certain drug, money laundering, and identity theft crimes, the bill repeals provisions that prevent forfeiture of money or property that the owner used or intends to use to pay legitimate attorney's fees in connection with a criminal offense.

The bill instead establishes a process for a claimant to petition the court for the return of money or property seized in a lawful search or lawful arrest to pay legitimate attorney's fees in a forfeiture proceeding or related criminal prosecution for certain non-drug, drug, money laundering, and identity theft crimes.

Under the bill, any person claiming an interest in seized property may, at least 60 days before the criminal trial, petition the court for its return. The court must:

1. identify the owner of the property and any other person who appears to have an interest in the property and

2. order the claimant to notify the owner and any other interested parties by certified or registered mail.

The court must promptly, but not less than 30 days after the notice, hold a hearing on the petition. (It is unclear whether the court must hold a hearing within 30 days after the notice is sent or received.)

The bill requires the court to order the property returned or delivered to the claimant if it finds:

1. he or she has a legal right or title to, or interest in, the property;

2. the state is not likely to obtain an order of forfeiture under the bill's provisions;

3. the property is not reasonably required to be held by the state for investigatory purposes; and

4. the property is intended to be used by the claimant to pay legitimate attorney's fees in a civil forfeiture proceeding or related criminal prosecution.

Existing law, unchanged by the bill, provides a process by which an owner may petition the court for the return of property seized during a criminal arrest or lawful search that did not result in arrest (see BACKGROUND).

BACKGROUND

Related Law

CGS 54-36a provides a process for the disposition of property seized in connection with a criminal arrest or seized pursuant to a search warrant without an arrest. This includes specific provisions for the forfeiture of seized property including stolen property, currency, fireworks, drugs, or drug paraphernalia. Among other things, this law requires law enforcement to inventory the seized property and provides a process by which an owner may petition the court for the return of the property.

COMMITTEE ACTION

Banking Committee

Joint Favorable Substitute

Yea

10

Nay

9

(03/07/2017)