OLR Bill Analysis

sHB 7146 (as amended by House "A")*

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 seized in connection with criminal offenses, including certain controlled substances, drug sales, money laundering, identity theft, sexual exploitation, prostitution, and human trafficking offenses. Under the bill, property seized during a lawful search associated with these offenses may only be subject to forfeiture proceedings if the search results in an arrest. It also requires the court to return seized property to its owner unless there is a:

1. guilty plea or nolo contendere to any offense charged as a result of the same criminal information;

2. guilty verdict after a trial to the forfeiture-eligible offense under which the property was seized and the property (a) was possessed, controlled, designed, or intended for use in the offense; (b) was or had been used in committing the offense; or (c) constitutes the proceeds of such an offense; or

3. dismissal from completing a pretrial diversionary program (e.g., the accelerated pretrial rehabilitation program).

The bill also makes minor, technical, and conforming changes.

*House Amendment “A” strikes the underlying bill, which, among other things, (1) permitted 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; (2) limited the conditions under which property is subject to forfeiture to the state and established a procedure for someone to petition the court for the return of seized property; and (3) made various changes to the civil forfeiture proceedings, including when the court must order property returned to its owner and the evidence the state must provide in the proceedings.

EFFECTIVE DATE: October 1, 2017

PROPERTY SUBJECT TO FORFEITURE PROCEEDINGS

Applicability

The bill applies to seized property:

1. taken during a lawful arrest or a lawful search for a criminal offense, except for certain drug paraphernalia, sale, and possession offenses, that the state claims to be a nuisance and wants to dispose of or destroy;

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

3. used or associated with, or that constitutes the proceeds of, certain drug and controlled substances (including selling and manufacturing) and money laundering offenses; and

4. used to commit, constituting, or derived from certain sexual exploitation, prostitution, or human trafficking offenses.

Lawful Searches

For criminal offenses and the controlled substance and drug sale, sexual exploitation, prostitution, and human trafficking offenses, current law allows the chief state's attorney to petition the court to order forfeiture of property seized as a result of a lawful arrest or search. Under the bill, he may petition the court regarding property seized as a result of a lawful search only if it results in an arrest.

For identity theft offenses, current law does not require that the property be seized in connection with either a lawful arrest or search. The bill conforms the identity theft statutes to the bill's provisions for the other offenses described above by limiting property subject to forfeiture to property seized in connection with a lawful arrest or a lawful search resulting in an arrest.

FORFEITURE PROCEEDINGS

By law, forfeiture proceedings are civil suits in equity in which the court has jurisdiction over property. Any petition to the court to forfeit property associated with a crime must be brought by the chief state's attorney within 90 days of its seizure. The court must identify and notify the property's owner and any other interested party.

Current law requires the court to hold a hearing on the petition at least two weeks after notifying the owner and interested parties. The bill instead requires the hearing to be held within two weeks of the criminal proceeding being nolled, dismissed, or disposed of.

RETURN OF PROPERTY

Under the bill, property may be returned to its owner if the court (1) denies the state's petition (see below) or (2) finds that property seized in connection with criminal offenses, except for certain drug and controlled substance sale, possession, and paraphernalia offenses, was not associated with the criminal offense. 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 pursuant to a search warrant (see BACKGROUND).

Denied Petition

Under the bill, the court must deny the petition and return any property to the owner unless the proceeding results in a:

1. guilty plea or nolo contendere to any offense charged as a result of the same criminal information;

2. guilty verdict after a trial to a forfeiture-eligible offense under which the property was seized; or

3. dismissal from completing a pretrial diversionary program (e.g., the accelerated pretrial rehabilitation program).

Return of Property Seized in Connection with Non-Drug Crimes

Under current law, the court must order the property returned if the state fails to prove that it (1) was not possessed, controlled, designed, or intended for criminal use; (2) is not or was not intended to be used to commit a crime; or (3) does not constitute criminal proceeds.

Property must also be returned if the court finds it (1) has not been kept to violate or in violation of the law; (2) does not constitute criminal proceeds; or (3) is the property of a person who is not the defendant. The bill specifies that the court must return property under these circumstances irrespective of the findings in the related criminal proceeding.

Destruction or Disposition of Forfeited Property

By law, unchanged by the bill, if the state meets its burden of proof, the court must order that the property is a nuisance and that it be destroyed or disposed of to a charitable or educational institution or governmental agency or institution. Under the bill, the court may not issue such an order unless one of the following is entered: (1) a guilty plea or nolo contendere to the offense or another charge in the same criminal information, (2) a guilty verdict after a trial for the forfeiture-eligible offense, or (3) a dismissal resulting from a completed pretrial diversionary program.

By law, 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.

BACKGROUND

Related Law

CGS 54-36a provides a process for disposing of property seized in connection with a criminal arrest or seized pursuant to a search warrant. It includes specific provisions for the forfeiture of seized property such as stolen property, currency, fireworks, drugs, or drug paraphernalia. Among other things, the law generally requires law enforcement to inventory the seized property and provides a way for an owner to petition the court for its return.

COMMITTEE ACTION

Banking Committee

Joint Favorable Substitute

Yea

10

Nay

9

(03/07/2017)

Judiciary Committee

Joint Favorable

Yea

21

Nay

14

(05/09/2017)