Chapter 780 Oregon Laws 2001

AN ACT

HB 2429

Relating to forfeiture; creating new provisions; amending ORS 475.495, 475A.005, 475A.010, 475A.020, 475A.030, 475A.035, 475A.040, 475A.045, 475A.050, 475A.055, 475A.060, 475A.075, 475A.080, 475A.085, 475A.100, 475A.110, 475A.115, 475A.120, 475A.130, 475A.155, 475A.160, 647.155 and 809.730; repealing ORS 475A.090, 475A.095, 475A.105, 475A.125 and 475A.135; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 475A.005 is amended to read:

475A.005. As used in this chapter, unless the context requires otherwise:

(1) “All persons known to have an interest” means:

(a) Any person who has, prior to the time the property is seized for civil forfeiture, filed notice of interest with any public office as may be required or permitted by law to be filed with respect to the property which has been seized for civil forfeiture;

(b) Any person from whose custody the property was seized; or

(c) Any person who has an interest in the property, including all owners and occupants of the property, whose identity and address is known or is ascertainable upon diligent inquiry and whose rights and interest in the property may be affected by the action.

(2) “Attorney fees” has the meaning given that term in ORCP 68 A.

[(3) “Costs and disbursements” are those expenditures set forth in ORCP 68 A.]

[(4)] (3) “Financial institution” means any person lawfully conducting business as:

(a) A financial institution or trust company, as those terms are defined in ORS 706.008;

(b) A consumer finance company subject to the provisions of ORS chapter 725;

(c) A mortgage banker or a mortgage broker as those terms are defined in ORS 59.840, a mortgage servicing company or other mortgage company;

(d) An officer, agency, department or instrumentality of the federal government, including but not limited to:

(A) The Secretary of Housing and Urban Development;

(B) The Federal Housing Administration;

(D) The Farmers Home Administration;

(E) The Federal National Mortgage Association;

(F) The Government National Mortgage Administration;

(G) The Federal Home Loan Mortgage Association;

(H) The Federal Agricultural Mortgage Corporation; and

(I) The Small Business Administration;

(e) An agency, department or instrumentality of the state, including but not limited to:

(A) The Housing Agency;

(B) Any entity established by the Director of Veterans’ Affairs to carry out the provisions of ORS chapter 407; and

(f) An agency, department or instrumentality of any municipality in the state, including but not limited to such agencies as the Portland Development Commission;

(g) An insurer as defined in ORS 731.106;

(h) A private mortgage insurance company;

(i) A pension plan or fund or other retirement plan; and

(j) A broker-dealer or investment adviser as defined in ORS 59.015.

[(5)] (4) “Forfeiting agency” means the State of Oregon or a political subdivision thereof that has accepted for civil forfeiture property seized by a seizing agency or that is processing a civil forfeiture case.

[(6)] (5) “Forfeiture counsel” means an attorney designated to represent a forfeiting agency in civil forfeiture actions or proceedings.

(6) “Instrumentalities” means any property that is instrumental in committing prohibited conduct or facilitating prohibited conduct.

(7) “Law enforcement agency” means any agency which employs police officers or prosecutes criminal cases.

[(8) “Official law enforcement use” or “official law enforcement activity” means uses or activities which may reasonably be expected to result in the identification, apprehension or conviction of criminal offenders.]

[(9)] (8) “Police officer” has the meaning given that term in ORS 133.525.

[(10)] (9) “Proceeds of prohibited conduct” means property derived directly or indirectly from, maintained by or realized through an act or omission, and includes any benefit, interest or property of any kind without reduction for expenses of acquiring or maintaining it or incurred for any other reason.

[(11)] (10) “Prohibited conduct” [includes] means:

(a) Violation of, solicitation to violate, attempt to violate or conspiracy to violate any provisions of ORS 475.005 to 475.285 and 475.805 to 475.999 when the conduct constitutes [either a felony or misdemeanor as those terms are defined in ORS 161.525 and 161.545] the commission of a crime as described in ORS 161.515; and

(b) Other conduct that constitutes the commission of a crime as described in ORS 161.515 that provides for civil forfeiture of proceeds or instrumentalities of the conduct and that is made subject to the provisions of this chapter under ORS 475A.010 (4) or other law.

[(12)] (11) “Property” means any interest in anything of value, including the whole of any lot or tract of land and tangible and intangible personal property, including currency, instruments or securities or any other kind of privilege, interest, claim or right whether due or to become due.

[(13)] (12) “Seizing agency” means a law enforcement agency that has seized property for civil forfeiture.

[(14)] (13) “Weapon” means any instrument of offensive or defensive combat or anything used, or designed to be used, in destroying, defeating or injuring a person.

SECTION 1a. ORS 475A.005, as amended by section 1 of this 2001 Act, is amended to read:

475A.005. [As used in this chapter, unless the context requires otherwise:]

[(1) “All persons known to have an interest” means:]

[(a) Any person who has, prior to the time the property is seized for civil forfeiture, filed notice of interest with any public office as may be required or permitted by law to be filed with respect to the property which has been seized for civil forfeiture;]

[(b) Any person from whose custody the property was seized; or]

[(c) Any person who has an interest in the property, including all owners and occupants of the property, whose identity and address is known or is ascertainable upon diligent inquiry and whose rights and interest in the property may be affected by the action.]

[(2) “Attorney fees” has the meaning given that term in ORCP 68 A.]

[(3) “Financial institution” means any person lawfully conducting business as:]

[(a) A financial institution or trust company, as those terms are defined in ORS 706.008;]

[(b) A consumer finance company subject to the provisions of ORS chapter 725;]

[(c) A mortgage banker or a mortgage broker as those terms are defined in ORS 59.840, a mortgage servicing company or other mortgage company;]

[(d) An officer, agency, department or instrumentality of the federal government, including but not limited to:]

[(A) The Secretary of Housing and Urban Development;]

[(B) The Federal Housing Administration;]

[(C) The Veterans Administration;]

[(D) The Farmers Home Administration;]

[(E) The Federal National Mortgage Association;]

[(F) The Government National Mortgage Administration;]

[(G) The Federal Home Loan Mortgage Association;]

[(H) The Federal Agricultural Mortgage Corporation; and]

[(I) The Small Business Administration;]

[(e) An agency, department or instrumentality of the state, including but not limited to:]

[(A) The Housing Agency;]

[(B) Any entity established by the Director of Veterans’ Affairs to carry out the provisions of ORS chapter 407; and]

[(C) The Public Employees Retirement System;]

[(f) An agency, department or instrumentality of any municipality in the state, including but not limited to such agencies as the Portland Development Commission;]

[(g) An insurer as defined in ORS 731.106;]

[(h) A private mortgage insurance company;]

[(i) A pension plan or fund or other retirement plan; and]

[(j) A broker-dealer or investment adviser as defined in ORS 59.015.]

[(4) “Forfeiting agency” means the State of Oregon or a political subdivision thereof that has accepted for civil forfeiture property seized by a seizing agency or that is processing a civil forfeiture case.]

[(5) “Forfeiture counsel” means an attorney designated to represent a forfeiting agency in civil forfeiture actions or proceedings.]

[(6) “Instrumentalities” means any property that is instrumental in committing prohibited conduct or facilitating prohibited conduct.]

[(7) “Law enforcement agency” means any agency which employs police officers or prosecutes criminal cases.]

[(8) “Police officer” has the meaning given that term in ORS 133.525.]

[(9) “Proceeds of prohibited conduct” means property derived directly or indirectly from, maintained by or realized through an act or omission, and includes any benefit, interest or property of any kind without reduction for expenses of acquiring or maintaining it or incurred for any other reason.]

[(10) “Prohibited conduct” means:]

[(a) Violation of, solicitation to violate, attempt to violate or conspiracy to violate any provisions of ORS 475.005 to 475.285 and 475.805 to 475.999 when the conduct constitutes the commission of a crime as described in ORS 161.515; and]

[(b) Other conduct that constitutes the commission of a crime as described in ORS 161.515 that provides for civil forfeiture of proceeds or instrumentalities of the conduct and that is made subject to the provisions of this chapter under ORS 475A.010 (4) or other law.]

[(11) “Property” means any interest in anything of value, including the whole of any lot or tract of land and tangible and intangible personal property, including currency, instruments or securities or any other kind of privilege, interest, claim or right whether due or to become due.]

[(12) “Seizing agency” means a law enforcement agency that has seized property for civil forfeiture.]

[(13) “Weapon” means any instrument of offensive or defensive combat or anything used, or designed to be used, in destroying, defeating or injuring a person.] As used in this chapter, unless the context requires otherwise:

(1) “All persons known to have an interest” means:

(a) Any person who has, prior to the time the property is seized for forfeiture, filed notice of interest with any public office as may be required or permitted by law to be filed with respect to the property which has been seized for forfeiture;

(b) Any person from whose custody the property was seized; or

(2) “Attorney fees” has the meaning given that term in ORCP 68 A.

(3) “Costs and disbursements” are those expenditures set forth in ORCP 68 A.

(4) “Financial institution” means any person lawfully conducting business as:

(a) A financial institution or trust company, as those terms are defined in ORS 706.008;

(b) A consumer finance company subject to the provisions of ORS chapter 725;

(c) A mortgage banker or a mortgage broker as those terms are defined in ORS 59.840, a mortgage servicing company or other mortgage company;

(d) An officer, agency, department or instrumentality of the federal government, including but not limited to:

(A) The Secretary of Housing and Urban Development;

(B) The Federal Housing Administration;

(C) The Veterans Administration;

(D) The Farmers Home Administration;

(E) The Federal National Mortgage Association;

(F) The Government National Mortgage Administration;

(G) The Federal Home Loan Mortgage Association;

(H) The Federal Agricultural Mortgage Corporation; and

(I) The Small Business Administration;

(e) An agency, department or instrumentality of the state, including but not limited to:

(A) The Housing Agency;

(B) Any entity established by the Director of Veterans’ Affairs to carry out the provisions of ORS chapter 407; and

(C) The Public Employees Retirement System;

(f) An agency, department or instrumentality of any municipality in the state, including but not limited to such agencies as the Portland Development Commission;

(g) An insurer as defined in ORS 731.106;

(h) A private mortgage insurance company;

(i) A pension plan or fund or other retirement plan; and

(j) A broker-dealer or investment adviser as defined in ORS 59.015.

(5) “Forfeiting agency” means the State of Oregon or a political subdivision thereof that has accepted for forfeiture property seized by a seizing agency or that is processing a forfeiture case.

(6) “Forfeiture counsel” means an attorney designated to represent a forfeiting agency in forfeiture actions or proceedings.

(7) “Law enforcement agency” means any agency which employs police officers or prosecutes criminal cases.

(8) “Official law enforcement use” or “official law enforcement activity” means uses or activities which may reasonably be expected to result in the identification, apprehension or conviction of criminal offenders.

(9) “Police officer” has the meaning given that term in ORS 133.525.

(10) “Proceeds of prohibited conduct” means property derived directly or indirectly from, maintained by or realized through an act or omission, and includes any benefit, interest or property of any kind without reduction for expenses of acquiring or maintaining it or incurred for any other reason.

(11) “Prohibited conduct” includes violation of, solicitation to violate, attempt to violate or conspiracy to violate any provisions of ORS 475.005 to 475.285 and 475.805 to 475.999 when the conduct constitutes either a felony or misdemeanor as those terms are defined in ORS 161.525 and 161.545.

(12) “Property” means any interest in anything of value, including the whole of any lot or tract of land and tangible and intangible personal property, including currency, instruments or securities or any other kind of privilege, interest, claim or right whether due or to become due.

(13) “Seizing agency” means a law enforcement agency that has seized property for forfeiture.

(14) “Weapon” means any instrument of offensive or defensive combat or anything used, or designed to be used, in destroying, defeating or injuring a person.

SECTION 1b. The amendments to ORS 475A.005 by section 1a of this 2001 Act become operative on July 31, 2005.

SECTION 2. ORS 475A.010 is amended to read:

475A.010. (1) The Legislative Assembly finds that:

(a) The prohibited conduct defined in this chapter is undertaken in the course of [profitable] criminal activities [which] that result in, and are facilitated by, the acquisition, possession or transfer of property subject to civil forfeiture under this chapter;

(b) Transactions involving property subject to civil forfeiture under this chapter escape taxation;

(d) There is a need to provide for the civil forfeiture of certain property subject to civil forfeiture under this chapter, to provide for the protection of the rights and interests of affected persons, and to provide for uniformity throughout the state with respect to the laws of this state which pertain to the civil forfeiture of real and personal property based upon prohibited conduct as defined in this chapter.

(2) Therefore, the Legislative Assembly adopts the provisions of this chapter as the sole and exclusive law of the state pertaining to the civil forfeiture of real and personal property based upon the prohibited conduct, thereby replacing all charter provisions, ordinances, regulations and other enactments adopted by cities and counties pertaining to [such] civil forfeitures. [After July 24, 1989, no actions for forfeiture shall be initiated except those in compliance with the provisions of this chapter.] All civil forfeitures under the provisions of this chapter are subject to the limitations of section 10, Article XV of the Oregon Constitution.

(3) This chapter is applicable throughout this state and in all cities and counties. The electors or the governing body of a city or county shall not enact and the governing body shall not enforce any charter provision, ordinance, resolution or other regulation that is inconsistent with this section.

(4) This chapter does not impair the right of any city or county to enact ordinances providing for the civil forfeiture of property [based upon conduct that is other than prohibited conduct as defined in this chapter] if:

(a) The prohibited conduct constitutes the commission of a crime as described in ORS 161.515;

[(a)] (b) The property [was used to commit the conduct described in the ordinances, or is] constitutes instrumentalities or proceeds of the conduct; and

[(b)] (c) The civil forfeiture is subject to procedures and limitations set forth in this chapter.

(5) Nothing in this chapter shall be construed to limit or impair any right or remedy that any person or entity may have under ORS 166.715 to 166.735. The application of any remedy under this chapter is intended to be remedial and not punitive and shall not preclude or be precluded by the application of any previous or subsequent civil or criminal remedy under any other provision of law. Civil remedies under this chapter are supplemental and not mutually exclusive.

SECTION 2a. ORS 475A.010, as amended by section 2 of this 2001 Act, is amended to read:

475A.010. [(1) The Legislative Assembly finds that:]

[(a) The prohibited conduct defined in this chapter is undertaken in the course of criminal activities that result in, and are facilitated by, the acquisition, possession or transfer of property subject to civil forfeiture under this chapter;]

[(b) Transactions involving property subject to civil forfeiture under this chapter escape taxation;]

[(c) Governments attempting to respond to prohibited conduct require additional resources to meet their needs; and]

[(d) There is a need to provide for the civil forfeiture of certain property subject to civil forfeiture under this chapter, to provide for the protection of the rights and interests of affected persons, and to provide for uniformity throughout the state with respect to the laws of this state which pertain to the civil forfeiture of real and personal property based upon prohibited conduct as defined in this chapter.]

[(2) Therefore, the Legislative Assembly adopts the provisions of this chapter as the sole and exclusive law of the state pertaining to the civil forfeiture of real and personal property based upon the prohibited conduct, thereby replacing all charter provisions, ordinances, regulations and other enactments adopted by cities and counties pertaining to civil forfeitures. All civil forfeitures under the provisions of this chapter are subject to the limitations of section 10, Article XV of the Oregon Constitution.]

[(3) This chapter is applicable throughout this state and in all cities and counties. The electors or the governing body of a city or county shall not enact and the governing body shall not enforce any charter provision, ordinance, resolution or other regulation that is inconsistent with this section.]

[(4) This chapter does not impair the right of any city or county to enact ordinances providing for the civil forfeiture of property if:]

[(a) The prohibited conduct constitutes the commission of a crime as described in ORS 161.515;]

[(b) The property constitutes instrumentalities or proceeds of the conduct; and]

[(c) The civil forfeiture is subject to procedures and limitations set forth in this chapter.]

[(5) Nothing in this chapter shall be construed to limit or impair any right or remedy that any person or entity may have under ORS 166.715 to 166.735. The application of any remedy under this chapter is intended to be remedial and not punitive and shall not preclude or be precluded by the application of any previous or subsequent civil or criminal remedy under any other provision of law. Civil remedies under this chapter are supplemental and not mutually exclusive.]

(1) The Legislative Assembly finds that:

(a) The prohibited conduct defined in this chapter is undertaken in the course of profitable activities which result in, and are facilitated by, the acquisition, possession or transfer of property subject to forfeiture under this chapter;

(b) Transactions involving property subject to forfeiture under this chapter escape taxation;

(c) Governments attempting to respond to prohibited conduct require additional resources to meet their needs; and

(d) There is a need to provide for the forfeiture of certain property subject to forfeiture under this chapter, to provide for the protection of the rights and interests of affected persons, and to provide for uniformity throughout the state with respect to the laws of this state which pertain to the forfeiture of real and personal property based upon prohibited conduct as defined in this chapter.

(2) Therefore, the Legislative Assembly adopts the provisions of this chapter as the sole and exclusive law of the state pertaining to the forfeiture of real and personal property based upon the prohibited conduct, thereby replacing all charter provisions, ordinances, regulations and other enactments adopted by cities and counties pertaining to such forfeitures. After July 24, 1989, no actions for forfeiture shall be initiated except those in compliance with the provisions of this chapter.

(4) This chapter does not impair the right of any city or county to enact ordinances providing for the forfeiture of property based upon conduct that is other than prohibited conduct as defined in this chapter if:

(a) The property was used to commit the conduct described in the ordinances, or is proceeds of the conduct; and

(b) The forfeiture is subject to procedures and limitations set forth in this chapter.

SECTION 2b. The amendments to ORS 475A.010 by section 2a of this 2001 Act become operative on July 31, 2005.

SECTION 3. ORS 475A.020 is amended to read:

475A.020. The following will be subject to civil in rem forfeiture:

(1) All controlled substances [which] that have been manufactured, distributed, dispensed, possessed or acquired in the course of prohibited conduct;

(2) All raw materials, products and equipment of any kind [which] that are used[, or intended for use,] in providing, manufacturing, compounding, processing, delivering, importing or exporting any service or substance in the course of prohibited conduct;

(3) All property [which] that is used[, or intended for use,] as a container for property described in subsection (1) or (2) of this section;

(4) All conveyances, including aircraft, vehicles or vessels, [which] that are used[, or are intended for use,] to transport or in any manner facilitate the transportation, sale, receipt, possession or concealment of property described in subsection (1) or (2) of this section, and all conveyances, including aircraft, vehicles or vessels, [which] that are used [or intended for use] in prohibited conduct or that are used to facilitate prohibited conduct in any manner[, except that:];

[(a) No conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this section unless the owner or other person in charge of such conveyance was a consenting party or knew of and acquiesced in the prohibited conduct; and]

[(b) No conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States or of any state;]

(5) All books, records, computers and research, including formulae, microfilm, tapes and data [which] that are used [or intended for use] to facilitate prohibited conduct in any manner;

(6) All moneys, negotiable instruments, balances in deposit or other accounts, securities or other things of value furnished [or intended to be furnished] by any person in the course of prohibited conduct, all proceeds of or from prohibited conduct, and all moneys, negotiable instruments, balances in deposit and other accounts and securities used [or intended to be used] to facilitate any prohibited conduct;

(7) 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] that is used[, or intended to be used,] in any manner or part[,] to commit or facilitate in any manner the commission of prohibited conduct; [and]

(8) All weapons possessed, used or available for use in any manner to facilitate conduct giving rise to civil forfeiture[.]; and

(9) Any property described in this section that was intended for use in committing or facilitating an attempt to commit a crime as described in ORS 161.405, a solicitation as described in ORS 161.435 or a conspiracy as described in ORS 161.450.

SECTION 3a. ORS 475A.020, as amended by section 3 of this 2001 Act, is amended to read:

475A.020. [The following will be subject to civil in rem forfeiture:]

[(1) All controlled substances that have been manufactured, distributed, dispensed, possessed or acquired in the course of prohibited conduct;]

[(2) All raw materials, products and equipment of any kind that are used in providing, manufacturing, compounding, processing, delivering, importing or exporting any service or substance in the course of prohibited conduct;]

[(3) All property that is used as a container for property described in subsection (1) or (2) of this section;]

[(4) All conveyances, including aircraft, vehicles or vessels, that are used to transport or in any manner facilitate the transportation, sale, receipt, possession or concealment of property described in subsection (1) or (2) of this section, and all conveyances, including aircraft, vehicles or vessels, that are used in prohibited conduct or that are used to facilitate prohibited conduct in any manner;]

[(5) All books, records, computers and research, including formulae, microfilm, tapes and data that are used to facilitate prohibited conduct in any manner;]

[(6) All moneys, negotiable instruments, balances in deposit or other accounts, securities or other things of value furnished by any person in the course of prohibited conduct, all proceeds of or from prohibited conduct, and all moneys, negotiable instruments, balances in deposit and other accounts and securities used to facilitate any prohibited conduct;]

[(7) All real property, including any right, title and interest in the whole of any lot or tract of land and any appurtenances or improvements, that is used in any manner or part to commit or facilitate in any manner the commission of prohibited conduct;]

[(8) All weapons possessed, used or available for use in any manner to facilitate conduct giving rise to civil forfeiture; and]

[(9) Any property described in this section that was intended for use in committing or facilitating an attempt to commit a crime as described in ORS 161.405, a solicitation as described in ORS 161.435 or a conspiracy as described in ORS 161.450.] The following will be subject to civil in rem forfeiture:

(1) All controlled substances which have been manufactured, distributed, dispensed, possessed or acquired in the course of prohibited conduct;

(2) All raw materials, products and equipment of any kind which are used, or intended for use, in providing, manufacturing, compounding, processing, delivering, importing or exporting any service or substance in the course of prohibited conduct;

(3) All property which is used, or intended for use, as a container for property described in subsection (1) or (2) of this section;

(4) All conveyances, including aircraft, vehicles or vessels, which are used, or are intended for use, to transport or in any manner facilitate the transportation, sale, receipt, possession or concealment of property described in subsection (1) or (2) of this section, and all conveyances, including aircraft, vehicles or vessels, which are used or intended for use in prohibited conduct or to facilitate prohibited conduct in any manner, except that:

(a) No conveyance used by any person as a common carrier in the transaction of business as a common carrier shall be forfeited under the provisions of this section unless the owner or other person in charge of such conveyance was a consenting party or knew of and acquiesced in the prohibited conduct; and

(b) No conveyance shall be forfeited under the provisions of this section by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States or of any state;

(5) All books, records, computers and research, including formulae, microfilm, tapes and data which are used or intended for use to facilitate prohibited conduct in any manner;

(6) All moneys, negotiable instruments, balances in deposit or other accounts, securities or other things of value furnished or intended to be furnished by any person in the course of prohibited conduct, all proceeds of or from prohibited conduct, and all moneys, negotiable instruments, balances in deposit and other accounts and securities used or intended to be used to facilitate any prohibited conduct;

(7) 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 is used, or intended to be used, in any manner or part, to commit or facilitate in any manner the commission of prohibited conduct; and

(8) All weapons possessed, used or available for use in any manner to facilitate conduct giving rise to forfeiture.

SECTION 3b. The amendments to ORS 475A.020 by section 3a of this 2001 Act become operative on July 31, 2005.

SECTION 4. ORS 475A.030 is amended to read:

475A.030. Notwithstanding any other provision of this chapter, United States currency in an amount less than $15,000 is not subject to seizure [or forfeiture] solely on the basis that the money is in the form of cash rather than some other form.

SECTION 4a. ORS 475A.030, as amended by section 4 of this 2001 Act, is amended to read:

475A.030. [Notwithstanding any other provision of this chapter, United States currency in an amount less than $15,000 is not subject to seizure solely on the basis that the money is in the form of cash rather than some other form.] Notwithstanding any other provision of this chapter, United States currency in an amount less than $15,000 is not subject to seizure or forfeiture solely on the basis that the money is in the form of cash rather than some other form.

SECTION 4b. The amendments to ORS 475A.030 by section 4a of this 2001 Act become operative on July 31, 2005.

SECTION 5. ORS 475A.035 is amended to read:

475A.035. Property may be seized for civil forfeiture as provided in this section.

(1) Any person who delivers property in obedience to an order or direction to deliver the property under this section shall not be liable:

(a) To any person on account of obedience to the order or direction; or

(b) For any costs incurred on account of any contamination of the delivered property. This includes, but is not limited to, any disposal costs for any property forfeited under ORS 475A.020, any hazardous waste or material, any contraband or any other contamination contained in property seized under this section.

(2) Property may be seized for civil forfeiture by any police officer without a court order if:

(a) The property has been the subject of an earlier judgment in favor of any forfeiting agency in an earlier civil in rem proceeding under this chapter;

(b) There is probable cause to believe that property is subject to [forfeiture] seizure, provided that the property may constitutionally be seized without a warrant;

(c) The seizure is in the course of a constitutionally valid criminal investigative stop, arrest or search, and there is probable cause to believe that the property is subject to [forfeiture] seizure;

(d) The property is directly or indirectly dangerous to the health or safety of any person; or

(e) An owner consents to the seizure.

(3)(a) For the purposes of subsection (2) of this section, a police officer has probable cause to believe that property is subject to seizure if the police officer has a substantial objective basis for believing that more likely than not a crime has been committed and that the property seized constitutes proceeds or instrumentalities of a crime.

(b) In determining probable cause for seizure under this section, evidence that cash, weapons or negotiable instruments were found in close proximity to controlled substances or to instrumentalities of prohibited conduct gives rise to an inference that the cash, weapons or negotiable instruments are subject to seizure.

[(3)] (4) Except as provided in ORS 475A.045, with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the person having control or custody of the property shall deliver the same over to the police officer.

[(4)(a)] (5)(a) Property may be seized by any police officer pursuant to an order of the court. Forfeiture counsel or a seizing agency may apply for an ex parte order directing seizure of specified property.

(b) Application shall be made to any judge as defined in ORS 133.525. The application shall be supported by one or more affidavits setting forth the facts and circumstances tending to show where the objects of the seizure are to be found. The court shall issue the order upon a finding of probable cause to believe that the described property is subject to civil forfeiture. The order may be set out on the face of a search warrant.

(c) Except as provided in ORS 475A.045, with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the order shall direct any person having control or custody of the property to deliver the same over to the seizing agency or to the court to abide judgment.

[(5)] (6) Property may be constructively seized by posting notice of seizure for civil forfeiture on it or by filing notice of seizure for civil forfeiture or notice of pending civil forfeiture in the public records that impart constructive notice of matters relating to such property. A notice which is filed must include a description of the property that is the subject of the seizure. Real property, including interests arising out of land sale contracts, shall be seized only upon recording notice of seizure containing a legal description of the property in the mortgage records of the county in which the real property is located.

[(6)] (7) Property which has been unconstitutionally seized may be subject to civil forfeiture if the basis for civil forfeiture under this chapter is sustained by evidence which is not the fruit of the unconstitutional seizure.

[(7)] (8) Promptly upon seizure, the officer who seized the property shall make an inventory of the property seized and shall deliver a receipt embodying the inventory to the person from whose possession they are taken or to the person in apparent control of the property at the time it is seized. The officer may, in addition, provide an estimate of the value of the property seized and information on the right to file a claim under ORS 475A.055 (2), and the deadline for filing that claim. If the property is unoccupied or there is no one present in apparent control, the officer shall leave the receipt suitably affixed to the property. If the property is physically removed from the location of seizure and it is unoccupied or there is no one present in apparent control, then the officer shall promptly file the receipt in the public records of the forfeiting agency. Every receipt prepared under this subsection shall contain, in addition to an inventory of the property seized, the following information:

(a) The identity of the seizing agency; and

(b) The address and telephone number of the office or other place where the person may obtain further information concerning the civil forfeiture.

[(8) In determining probable cause or reasonable suspicion for seizure, evidence that cash, weapons or negotiable instruments were found in close proximity to controlled substances or to instrumentalities of prohibited conduct gives rise to an inference that the cash, weapons or negotiable instruments are subject to forfeiture. This inference is sufficient in itself to carry the forfeiting agency’s initial burden under ORS 475A.080.]

(9) In the event that property is seized from the possession of a person who asserts a possessory lien over such property pursuant to applicable law, notwithstanding any other provision of law, any lien of the person from whom the property was seized shall remain in effect and shall be enforceable as fully as though the person had retained possession of the property.

SECTION 5a. ORS 475A.035, as amended by section 5 of this 2001 Act, is amended to read:

475A.035. [Property may be seized for civil forfeiture as provided in this section.]

[(1) Any person who delivers property in obedience to an order or direction to deliver the property under this section shall not be liable:]

[(a) To any person on account of obedience to the order or direction; or]

[(b) For any costs incurred on account of any contamination of the delivered property. This includes, but is not limited to, any disposal costs for any property forfeited under ORS 475A.020, any hazardous waste or material, any contraband or any other contamination contained in property seized under this section.]

[(2) Property may be seized for civil forfeiture by any police officer without a court order if:]

[(a) The property has been the subject of an earlier judgment in favor of any forfeiting agency in an earlier civil in rem proceeding under this chapter;]

[(b) There is probable cause to believe that property is subject to seizure, provided that the property may constitutionally be seized without a warrant;]

[(c) The seizure is in the course of a constitutionally valid criminal investigative stop, arrest or search, and there is probable cause to believe that the property is subject to seizure;]

[(d) The property is directly or indirectly dangerous to the health or safety of any person; or]

[(e) An owner consents to the seizure.]

[(3)(a) For the purposes of subsection (2) of this section, a police officer has probable cause to believe that property is subject to seizure if the police officer has a substantial objective basis for believing that more likely than not a crime has been committed and that the property seized constitutes proceeds or instrumentalities of a crime.]

[(b) In determining probable cause for seizure under this section, evidence that cash, weapons or negotiable instruments were found in close proximity to controlled substances or to instrumentalities of prohibited conduct gives rise to an inference that the cash, weapons or negotiable instruments are subject to seizure.]

[(4) Except as provided in ORS 475A.045, with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the person having control or custody of the property shall deliver the same over to the police officer.]

[(5)(a) Property may be seized by any police officer pursuant to an order of the court. Forfeiture counsel or a seizing agency may apply for an ex parte order directing seizure of specified property.]

[(b) Application shall be made to any judge as defined in ORS 133.525. The application shall be supported by one or more affidavits setting forth the facts and circumstances tending to show where the objects of the seizure are to be found. The court shall issue the order upon a finding of probable cause to believe that the described property is subject to civil forfeiture. The order may be set out on the face of a search warrant.]

[(c) Except as provided in ORS 475A.045, with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the order shall direct any person having control or custody of the property to deliver the same over to the seizing agency or to the court to abide judgment.]

[(6) Property may be constructively seized by posting notice of seizure for civil forfeiture on it or by filing notice of seizure for civil forfeiture or notice of pending civil forfeiture in the public records that impart constructive notice of matters relating to such property. A notice which is filed must include a description of the property that is the subject of the seizure. Real property, including interests arising out of land sale contracts, shall be seized only upon recording notice of seizure containing a legal description of the property in the mortgage records of the county in which the real property is located.]

[(7) Property which has been unconstitutionally seized may be subject to civil forfeiture if the basis for civil forfeiture under this chapter is sustained by evidence which is not the fruit of the unconstitutional seizure.]

[(8) Promptly upon seizure, the officer who seized the property shall make an inventory of the property seized and shall deliver a receipt embodying the inventory to the person from whose possession they are taken or to the person in apparent control of the property at the time it is seized. The officer may, in addition, provide an estimate of the value of the property seized and information on the right to file a claim under ORS 475A.055 (2), and the deadline for filing that claim. If the property is unoccupied or there is no one present in apparent control, the officer shall leave the receipt suitably affixed to the property. If the property is physically removed from the location of seizure and it is unoccupied or there is no one present in apparent control, then the officer shall promptly file the receipt in the public records of the forfeiting agency. Every receipt prepared under this subsection shall contain, in addition to an inventory of the property seized, the following information:]

[(a) The identity of the seizing agency; and]

[(b) The address and telephone number of the office or other place where the person may obtain further information concerning the civil forfeiture.]

[(9) In the event that property is seized from the possession of a person who asserts a possessory lien over such property pursuant to applicable law, notwithstanding any other provision of law, any lien of the person from whom the property was seized shall remain in effect and shall be enforceable as fully as though the person had retained possession of the property.] Property may be seized for forfeiture as provided in this section.

(1) Any person who delivers property in obedience to an order or direction to deliver the property under this section shall not be liable:

(a) To any person on account of obedience to the order or direction; or

(2) Property may be seized by any police officer without a court order if:

(a) The property has been the subject of an earlier judgment in favor of any forfeiting agency in an earlier civil in rem proceeding under this chapter;

(b) There is probable cause to believe that property is subject to forfeiture, provided that the property may constitutionally be seized without a warrant;

(c) The seizure is in the course of a constitutionally valid criminal investigative stop, arrest or search, and there is probable cause to believe that the property is subject to forfeiture;

(d) The property is directly or indirectly dangerous to the health or safety of any person; or

(e) An owner consents to the seizure.

(3) Except as provided in ORS 475A.045, with regard to cash or other assets which at the time of seizure are held in any form of account in a financial institution, if the property is in whole or in part intangible, the person having control or custody of the property shall deliver the same over to the police officer.

(4)(a) Property may be seized by any police officer pursuant to an order of the court. Forfeiture counsel or a seizing agency may apply for an ex parte order directing seizure of specified property.

(b) Application shall be made to any judge as defined in ORS 133.525. The application shall be supported by one or more affidavits setting forth the facts and circumstances tending to show where the objects of the seizure are to be found. The court shall issue the order upon a finding of probable cause to believe that the described property is subject to forfeiture. The order may be set out on the face of a search warrant.

(5) Property may be constructively seized by posting notice of seizure for forfeiture on it or by filing notice of seizure for forfeiture or notice of pending forfeiture in the public records that impart constructive notice of matters relating to such property. A notice which is filed must include a description of the property that is the subject of the seizure. Real property, including interests arising out of land sale contracts, shall be seized only upon recording notice of seizure containing a legal description of the property in the mortgage records of the county in which the real property is located.

(6) Property which has been unconstitutionally seized may be subject to forfeiture if the basis for forfeiture under this chapter is sustained by evidence which is not the fruit of the unconstitutional seizure.

(7) Promptly upon seizure, the officer who seized the property shall make an inventory of the property seized and shall deliver a receipt embodying the inventory to the person from whose possession they are taken or to the person in apparent control of the property at the time it is seized. The officer may, in addition, provide an estimate of the value of the property seized and information on the right to file a claim under ORS 475A.055 (2), and the deadline for filing that claim. If the property is unoccupied or there is no one present in apparent control, the officer shall leave the receipt suitably affixed to the property. If the property is physically removed from the location of seizure and it is unoccupied or there is no one present in apparent control, then the officer shall promptly file the receipt in the public records of the forfeiting agency. Every receipt prepared under this subsection shall contain, in addition to an inventory of the property seized, the following information:

(a) The identity of the seizing agency; and

(b) The address and telephone number of the office or other place where the person may obtain further information concerning the forfeiture.

(8) In determining probable cause or reasonable suspicion for seizure, evidence that cash, weapons or negotiable instruments were found in close proximity to controlled substances or to instrumentalities of prohibited conduct gives rise to an inference that the cash, weapons or negotiable instruments are subject to forfeiture. This inference is sufficient in itself to carry the forfeiting agency’s initial burden under ORS 475A.080.

SECTION 5b. The amendments to ORS 475A.035 by section 5a of this 2001 Act become operative on July 31, 2005.

SECTION 5c. (1) A police officer who takes possession of property that may be subject to subsequent forfeiture proceedings may provide a written statement in the form provided under this section to the person from whose possession the property is taken or to the person in apparent control of the property at the time the property is taken.

(2) A written statement under this section must be in the following form:

____________________________________________________________________________

The property that has been taken from you may be subject to forfeiture if you are convicted of a crime. If forfeiture proceedings are commenced and you do not file a claim for the property, the property may be forfeited even though you are not convicted of any crime. It is very important that you provide a current address to the seizing agency named in this statement so that you can receive additional information on any forfeiture proceeding that might be commenced. If you move, you should promptly notify the office named in this statement of your new address. If forfeiture proceedings are commenced, you must file a claim for the property within twenty-one (21) days after you receive a notice of seizure for forfeiture. The claim must be a sworn statement and must show your true name, an address to which information can be mailed to you and a statement that you have an interest in the property.

____________________________________________________________________________

(3) The statement provided under this section must clearly identify the seizing agency and give the address and telephone number of the office where the person receiving the statement may acquire additional information on the property.

(4) A forfeiture proceeding is not commenced by reason of delivering a statement in the form provided under this section.

(5) If a statement in the form provided under this section is not provided to the person from whose possession the property is taken or to the person in apparent control of the property at the time the property is taken, any subsequent forfeiture proceeding must be conducted under the provisions of ORS 475A.075.

SECTION 6. ORS 475A.045 is amended to read:

475A.045. (1)(a) Except as otherwise provided in this chapter, property seized for civil forfeiture is not subject to replevin, conveyance, sequestration or attachment, nor is it subject to a motion or order to return under ORS chapter 133. The seizure of property or the commencement of a civil forfeiture proceeding pursuant to this chapter shall not abate, impede or in any way delay the initiation or prosecution of a suit or action by a financial institution for the possession of seized property in which the financial institution has or purports to have a lien or security interest or for the foreclosure of such lien or security interest. A financial institution may proceed with any suit or action involving property in which it has a lien or security interest even though a seizure has occurred and civil forfeiture proceedings have been or will be commenced. Any such suit or action may be consolidated with the civil forfeiture proceeding for the purpose of trial. If property which may be subject to civil forfeiture is sold prior to the conclusion of the civil forfeiture proceedings, the sheriff, trustee or other person conducting the sale and who has actual notice of the civil forfeiture proceedings shall distribute the sale proceeds as follows:

(A) To the expenses of the sale;

(B) To the payment of the obligations owed to the foreclosing financial institution that are secured by the property and to any other person whose lien or security interest in the property has been foreclosed in the suit or action in the order determined by the court; and

(C) The surplus, if any, shall be distributed to the seizing or forfeiting agency, or to the court in which the civil forfeiture proceedings are pending.

(b) The sheriff, trustee or other person who distributes the sale proceeds as provided shall not be liable to any person who has or asserts an interest in the property.

(2) Within 30 days following seizure of property for civil forfeiture, the seizing agency, in consultation with the district attorney of the county in which the property was seized for civil forfeiture, shall determine whether it will seek the civil forfeiture of the property. If the seizing agency elects not to seek civil forfeiture, it shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens arising under ORS 87.152 to 87.162 that have attached to the property since its seizure and release the property. The property may be released to a person other than the person from whose custody or control the property was taken if the seizing agency, forfeiting agency or forfeiture counsel first mails to the last-known addresses of all persons known to have an interest in the property a notice of intent to release the property. The notice shall specify the person to whom the property is to be released and shall detail the time and place of the release. An agency that complies with the provisions of this subsection by paying costs and expenses of towing and storage, discharging possessory liens, mailing any required notices and releasing the property shall not be liable for its actions under this subsection or for any consequences thereof.

(3) A forfeiting agency shall, pending civil forfeiture and final disposition and subject to the need to retain it in any criminal proceeding, provide that property in the physical custody of the seizing or forfeiting agency be serviced or maintained as may be reasonably appropriate to preserve the value of the property.

(4) A forfeiting agency may, pending civil forfeiture and final disposition and subject to the need to retain seized property in any criminal proceeding:

(a) Provide that the seized property be transferred for forfeiture to any city, county, state or federal agency with forfeiture authority, [provided that no such] unless the transfer [shall have the effect of diminishing or reducing] diminishes or reduces the rights of any third party under this chapter or constitutes a violation of section 10 (9), Article XV of the Oregon Constitution.

(b) Apply to the court for an order providing that the seized property may be sold, leased, rented or operated in the manner and on the terms that may be specified in the court’s order. The court shall deny any application unless the sale, lease, rental or operation of the property will be conducted in a commercially reasonable manner and shall not result in a material reduction of the property’s value. An order shall only be entered:

(A) After notice and opportunity to be heard is provided to all persons known to have or to claim an interest in the property; and

(B) With the consent of all persons holding security interests of record in the property.

(5) Unless otherwise ordered by the court, the proceeds of the sale, leasing, renting or operation under subsection (4) of this section shall be held by the forfeiting agency, and the rights of holders of security interests of record in the property shall attach to the proceeds of the sale, leasing, renting or operation in the same order of priority as interests attached to the property.

(6)(a) Except as provided in paragraph (b) of this subsection and except for currency with apparent or known intrinsic collector value, all cash seized for civil forfeiture, together with all cash received from the sale, leasing, renting or operation of the property, shall be immediately deposited in an insured interest-bearing forfeiture trust account or accounts maintained by the seizing or forfeiting agency exclusively for this purpose. Cash may be retained as evidence in a criminal proceeding but shall be deposited immediately when the need to retain it as evidence is discharged.

(b) Notwithstanding paragraph (a) of this subsection, all cash seized for civil forfeiture which at the time of seizure is deposited in any form of account in a financial institution may remain in the account in the financial institution. From the time of seizure until the civil forfeiture proceeding is abandoned, or until a court ultimately enters or fails to enter a judgment of forfeiture, all deposits except the deposit of interest by the financial institution, withdrawals or other transactions involving the account are prohibited, unless approved by the court.

(c) Subject to any court order, interest earned upon cash deposited in a forfeiture trust account or held in an account in a financial institution under this subsection shall be disbursed as follows:

(A) If the civil forfeiture proceeding is abandoned, or if the court ultimately fails to enter a judgment of forfeiture or foreclosure, any interest earned, together with the cash deposited in the forfeiture trust account in connection with the seizure in question, shall be paid by the seizing or forfeiting agency to the person from whom it was seized and any interest earned, together with the cash deposited in an account in a financial institution shall be released by the seizing or forfeiting agency to the person from whom it was seized.

(B) If a judgment of forfeiture is entered, but parties other than the forfeiting agency establish rights to portions of the amount deposited in the forfeiture trust account or the account held in a financial institution which are in the aggregate larger than or equal to the cash on deposit plus interest earned thereon, the interest, together with the cash on deposit, shall be disbursed by the forfeiting agency to the parties in the order of their priority.

(C) If a judgment of forfeiture is entered, and the total amount arising out of the seizure which is on deposit in the forfeiture trust account or in an account in a financial institution, including interest earned on moneys deposited, is greater than the aggregate amount needed to satisfy the established interests of security interest holders, lienholders and other claimants, then the balance remaining after payment by the forfeiting agency to parties shall be retained by the forfeiting agency for distribution as required by ORS 475A.120.

(7) If the property seized for civil forfeiture consists of stocks, bonds, promissory notes, or other security or evidence of indebtedness, and the property is held in some form of account in a financial institution, the property may remain in the account pending a final decision in the civil forfeiture proceedings. Unless otherwise allowed by order of the court, no transactions involving the account shall be permitted other than the deposit or reinvestment of dividends or other normally recurring payments on the property. Any accrual to the value of the property during the pendency of civil forfeiture proceedings shall be disbursed in the manner provided for the disbursement of interest under subsection (6) of this section.

(8) If property is seized for civil forfeiture or if a notice of civil forfeiture is filed without a prior judicial determination of probable cause, a court, on application filed by an owner of or interest holder in the property within 15 days after notice of its seizure for civil forfeiture, or actual knowledge of it, whichever is earlier, may, after five days’ written notice to the forfeiture counsel, issue an order to show cause to the forfeiting agency, for a hearing on the sole issue of whether probable cause, as described in ORS 475A.035 (3), for [forfeiture] seizure of the property [then] exists as of the time of the hearing. If the court finds that there is no probable cause for [forfeiture] seizure of the property, the property seized for civil forfeiture from the applicant or subjected to the notice of civil forfeiture shall be released from its seizure for civil forfeiture or lien pending the outcome of a judicial proceeding under ORS 475A.075.

SECTION 6a. ORS 475A.045, as amended by section 6 of this 2001 Act, is amended to read:

475A.045. [(1)(a) Except as otherwise provided in this chapter, property seized for civil forfeiture is not subject to replevin, conveyance, sequestration or attachment, nor is it subject to a motion or order to return under ORS chapter 133. The seizure of property or the commencement of a civil forfeiture proceeding pursuant to this chapter shall not abate, impede or in any way delay the initiation or prosecution of a suit or action by a financial institution for the possession of seized property in which the financial institution has or purports to have a lien or security interest or for the foreclosure of such lien or security interest. A financial institution may proceed with any suit or action involving property in which it has a lien or security interest even though a seizure has occurred and civil forfeiture proceedings have been or will be commenced. Any such suit or action may be consolidated with the civil forfeiture proceeding for the purpose of trial. If property which may be subject to civil forfeiture is sold prior to the conclusion of the civil forfeiture proceedings, the sheriff, trustee or other person conducting the sale and who has actual notice of the civil forfeiture proceedings shall distribute the sale proceeds as follows:]

[(A) To the expenses of the sale;]

[(B) To the payment of the obligations owed to the foreclosing financial institution that are secured by the property and to any other person whose lien or security interest in the property has been foreclosed in the suit or action in the order determined by the court; and]

[(C) The surplus, if any, shall be distributed to the seizing or forfeiting agency, or to the court in which the civil forfeiture proceedings are pending.]

[(b) The sheriff, trustee or other person who distributes the sale proceeds as provided shall not be liable to any person who has or asserts an interest in the property.]

[(2) Within 30 days following seizure of property for civil forfeiture, the seizing agency, in consultation with the district attorney of the county in which the property was seized for civil forfeiture, shall determine whether it will seek the civil forfeiture of the property. If the seizing agency elects not to seek civil forfeiture, it shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens arising under ORS 87.152 to 87.162 that have attached to the property since its seizure and release the property. The property may be released to a person other than the person from whose custody or control the property was taken if the seizing agency, forfeiting agency or forfeiture counsel first mails to the last-known addresses of all persons known to have an interest in the property a notice of intent to release the property. The notice shall specify the person to whom the property is to be released and shall detail the time and place of the release. An agency that complies with the provisions of this subsection by paying costs and expenses of towing and storage, discharging possessory liens, mailing any required notices and releasing the property shall not be liable for its actions under this subsection or for any consequences thereof.]

[(3) A forfeiting agency shall, pending civil forfeiture and final disposition and subject to the need to retain it in any criminal proceeding, provide that property in the physical custody of the seizing or forfeiting agency be serviced or maintained as may be reasonably appropriate to preserve the value of the property.]

[(4) A forfeiting agency may, pending civil forfeiture and final disposition and subject to the need to retain seized property in any criminal proceeding:]

[(a) Provide that the seized property be transferred for forfeiture to any city, county, state or federal agency with forfeiture authority, unless the transfer diminishes or reduces the rights of any third party under this chapter or constitutes a violation of section 10 (9), Article XV of the Oregon Constitution.]

[(b) Apply to the court for an order providing that the seized property may be sold, leased, rented or operated in the manner and on the terms that may be specified in the court’s order. The court shall deny any application unless the sale, lease, rental or operation of the property will be conducted in a commercially reasonable manner and shall not result in a material reduction of the property’s value. An order shall only be entered:]

[(A) After notice and opportunity to be heard is provided to all persons known to have or to claim an interest in the property; and]

[(B) With the consent of all persons holding security interests of record in the property.]

[(c) Provide that the seized property be removed to a storage area for safekeeping.]

[(5) Unless otherwise ordered by the court, the proceeds of the sale, leasing, renting or operation under subsection (4) of this section shall be held by the forfeiting agency, and the rights of holders of security interests of record in the property shall attach to the proceeds of the sale, leasing, renting or operation in the same order of priority as interests attached to the property.]

[(6)(a) Except as provided in paragraph (b) of this subsection and except for currency with apparent or known intrinsic collector value, all cash seized for civil forfeiture, together with all cash received from the sale, leasing, renting or operation of the property, shall be immediately deposited in an insured interest-bearing forfeiture trust account or accounts maintained by the seizing or forfeiting agency exclusively for this purpose. Cash may be retained as evidence in a criminal proceeding but shall be deposited immediately when the need to retain it as evidence is discharged.]

[(b) Notwithstanding paragraph (a) of this subsection, all cash seized for civil forfeiture which at the time of seizure is deposited in any form of account in a financial institution may remain in the account in the financial institution. From the time of seizure until the civil forfeiture proceeding is abandoned, or until a court ultimately enters or fails to enter a judgment of forfeiture, all deposits except the deposit of interest by the financial institution, withdrawals or other transactions involving the account are prohibited, unless approved by the court.]

[(c) Subject to any court order, interest earned upon cash deposited in a forfeiture trust account or held in an account in a financial institution under this subsection shall be disbursed as follows:]

[(A) If the civil forfeiture proceeding is abandoned, or if the court ultimately fails to enter a judgment of forfeiture or foreclosure, any interest earned, together with the cash deposited in the forfeiture trust account in connection with the seizure in question, shall be paid by the seizing or forfeiting agency to the person from whom it was seized and any interest earned, together with the cash deposited in an account in a financial institution shall be released by the seizing or forfeiting agency to the person from whom it was seized.]

[(B) If a judgment of forfeiture is entered, but parties other than the forfeiting agency establish rights to portions of the amount deposited in the forfeiture trust account or the account held in a financial institution which are in the aggregate larger than or equal to the cash on deposit plus interest earned thereon, the interest, together with the cash on deposit, shall be disbursed by the forfeiting agency to the parties in the order of their priority.]

[(C) If a judgment of forfeiture is entered, and the total amount arising out of the seizure which is on deposit in the forfeiture trust account or in an account in a financial institution, including interest earned on moneys deposited, is greater than the aggregate amount needed to satisfy the established interests of security interest holders, lienholders and other claimants, then the balance remaining after payment by the forfeiting agency to parties shall be retained by the forfeiting agency for distribution as required by ORS 475A.120.]

[(7) If the property seized for civil forfeiture consists of stocks, bonds, promissory notes, or other security or evidence of indebtedness, and the property is held in some form of account in a financial institution, the property may remain in the account pending a final decision in the civil forfeiture proceedings. Unless otherwise allowed by order of the court, no transactions involving the account shall be permitted other than the deposit or reinvestment of dividends or other normally recurring payments on the property. Any accrual to the value of the property during the pendency of civil forfeiture proceedings shall be disbursed in the manner provided for the disbursement of interest under subsection (6) of this section.]

[(8) If property is seized for civil forfeiture or if a notice of civil forfeiture is filed without a prior judicial determination of probable cause, a court, on application filed by an owner of or interest holder in the property within 15 days after notice of its seizure for civil forfeiture, or actual knowledge of it, whichever is earlier, may, after five days’ written notice to the forfeiture counsel, issue an order to show cause to the forfeiting agency, for a hearing on the sole issue of whether probable cause, as described in ORS 475A.035 (3), for seizure of the property exists as of the time of the hearing. If the court finds that there is no probable cause for seizure of the property, the property seized for civil forfeiture from the applicant or subjected to the notice of civil forfeiture shall be released from its seizure for civil forfeiture or lien pending the outcome of a judicial proceeding under ORS 475A.075.]

(1)(a) Except as otherwise provided in this chapter, property seized for forfeiture is not subject to replevin, conveyance, sequestration or attachment, nor is it subject to a motion or order to return under ORS chapter 133. The seizure of property or the commencement of a forfeiture proceeding pursuant to this chapter shall not abate, impede or in any way delay the initiation or prosecution of a suit or action by a financial institution for the possession of seized property in which the financial institution has or purports to have a lien or security interest or for the foreclosure of such lien or security interest. A financial institution may proceed with any suit or action involving property in which it has a lien or security interest even though a seizure has occurred and forfeiture proceedings have been or will be commenced. Any such suit or action may be consolidated with the forfeiture proceeding for the purpose of trial. If property which may be subject to forfeiture is sold prior to the conclusion of the forfeiture proceedings, the sheriff, trustee or other person conducting the sale and who has actual notice of the forfeiture proceedings shall distribute the sale proceeds as follows:

(A) To the expenses of the sale;

(C) The surplus, if any, shall be distributed to the seizing or forfeiting agency, or to the court in which the forfeiture proceedings are pending.

(b) The sheriff, trustee or other person who distributes the sale proceeds as provided shall not be liable to any person who has or asserts an interest in the property.

(2) Within 30 days following seizure of property for forfeiture, the seizing agency, in consultation with the district attorney of the county in which the property was seized for forfeiture, shall determine whether it will seek the forfeiture of the property. If the seizing agency elects not to seek forfeiture, it shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens arising under ORS 87.152 to 87.162 that have attached to the property since its seizure and release the property. The property may be released to a person other than the person from whose custody or control the property was taken if the seizing agency, forfeiting agency or forfeiture counsel first mails to the last-known addresses of all persons known to have an interest in the property a notice of intent to release the property. The notice shall specify the person to whom the property is to be released and shall detail the time and place of the release. An agency that complies with the provisions of this subsection by paying costs and expenses of towing and storage, discharging possessory liens, mailing any required notices and releasing the property shall not be liable for its actions under this subsection or for any consequences thereof.

(3) A forfeiting agency shall, pending forfeiture and final disposition and subject to the need to retain it in any criminal proceeding, provide that property in the physical custody of the seizing or forfeiting agency be serviced or maintained as may be reasonably appropriate to preserve the value of the property.

(4) A forfeiting agency may, pending forfeiture and final disposition and subject to the need to retain seized property in any criminal proceeding:

(a) Provide that the seized property be transferred for forfeiture to any city, county, state or federal agency with forfeiture authority, provided that no such transfer shall have the effect of diminishing or reducing the rights of any third party under this chapter.

(A) After notice and opportunity to be heard is provided to all persons known to have or to claim an interest in the property; and

(B) With the consent of all persons holding security interests of record in the property.

(c) Provide that the seized property be removed to a storage area for safekeeping.

(6)(a) Except as provided in paragraph (b) of this subsection and except for currency with apparent or known intrinsic collector value, all cash seized for forfeiture, together with all cash received from the sale, leasing, renting or operation of the property, shall be immediately deposited in an insured interest-bearing forfeiture trust account or accounts maintained by the seizing or forfeiting agency exclusively for this purpose. Cash may be retained as evidence in a criminal proceeding but shall be deposited immediately when the need to retain it as evidence is discharged.

(b) Notwithstanding paragraph (a) of this subsection, all cash seized for forfeiture which at the time of seizure is deposited in any form of account in a financial institution may remain in the account in the financial institution. From the time of seizure until the forfeiture proceeding is abandoned, or until a court ultimately enters or fails to enter a judgment of forfeiture, all deposits except the deposit of interest by the financial institution, withdrawals or other transactions involving the account are prohibited, unless approved by the court.

(c) Subject to any court order, interest earned upon cash deposited in a forfeiture trust account or held in an account in a financial institution under this subsection shall be disbursed as follows:

(A) If the forfeiture proceeding is abandoned, or if the court ultimately fails to enter a judgment of forfeiture or foreclosure, any interest earned, together with the cash deposited in the forfeiture trust account in connection with the seizure in question, shall be paid by the seizing or forfeiting agency to the person from whom it was seized and any interest earned, together with the cash deposited in an account in a financial institution shall be released by the seizing or forfeiting agency to the person from whom it was seized.

(7) If the property seized for forfeiture consists of stocks, bonds, promissory notes, or other security or evidence of indebtedness, and the property is held in some form of account in a financial institution, the property may remain in the account pending a final decision in the forfeiture proceedings. Unless otherwise allowed by order of the court, no transactions involving the account shall be permitted other than the deposit or reinvestment of dividends or other normally recurring payments on the property. Any accrual to the value of the property during the pendency of forfeiture proceedings shall be disbursed in the manner provided for the disbursement of interest under subsection (6) of this section.

(8) If property is seized for forfeiture or if a notice of forfeiture is filed without a prior judicial determination of probable cause, a court, on application filed by an owner of or interest holder in the property within 15 days after notice of its seizure for forfeiture, or actual knowledge of it, whichever is earlier, may, after five days’ written notice to the forfeiture counsel, issue an order to show cause to the forfeiting agency, for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists. If the court finds that there is no probable cause for forfeiture of the property, the property seized for forfeiture from the applicant or subjected to the notice of forfeiture shall be released from its seizure for forfeiture or lien pending the outcome of a judicial proceeding under ORS 475A.075.

SECTION 6b. The amendments to ORS 475A.045 by section 6a of this 2001 Act become operative on July 31, 2005.

SECTION 7. ORS 475A.055 is amended to read:

475A.055. Personal property which is not subject to an interest in favor of any person known to have an interest, other than a person who is believed by the forfeiting agency to have engaged in prohibited conduct, may be forfeited by the forfeiting agency in the manner provided in this section.

(1) As soon as practicable after seizure for civil forfeiture, the seizing agency shall review the inventory prepared by the officer under ORS 475A.035 [(7) and estimate the value of the property seized. The forfeiting agency shall amend the inventory to supply an estimate of value of the property seized if no estimate was made by the officer under ORS 475A.035 (7)]. The forfeiting agency shall[, in addition,] amend the inventory to supply a correct listing of the property seized [or estimate of the value of that property if either the listing or any estimate of value made by the officer] if the listing is substantially incorrect. Within 15 days after seizure for civil forfeiture, the forfeiting agency shall prepare a notice of seizure for civil forfeiture containing a copy of the inventory prepared pursuant to this section and ORS 475A.035, the identity of the person from whom the property was seized, the name, address and telephone number of the seizing agency and the address and telephone number of the office or other place where further information concerning the seizure and forfeiture may be obtained, and shall make reasonable efforts to serve the notice of seizure for civil forfeiture on all persons known to have an interest in the seized property. A person may be served as provided in ORCP 7 D except that the notice shall also include information regarding the right to file a claim under subsection (3) of this section, if applicable, and the deadline for filing the claim. If the property is cash in the amount of $1,000 or less, or if the fair market value of the property is $1,000 or less, the forfeiting agency may publish notice of seizure for civil forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). In all other cases, the forfeiting agency shall publish notice of seizure for civil forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). A copy of the notice[,] and inventory [and estimate of value] shall be provided to the forfeiting agency’s forfeiture counsel.

(2)(a) The notice of seizure for civil forfeiture provided for in this section need not be served on a person who has received the receipt provided for in ORS 475A.035 [(7)] (8) if:

(A) The receipt contains an estimate of the value of the property seized and the seizing agency has not amended the listing of property [or estimate of the value] in reviewing the inventory under subsection (1) of this section; and

(B) The receipt contains information regarding the right to file a claim under subsection (3) of this section and the deadline for filing the claim.

(b) Any person who has received the receipt provided for in ORS 475A.035 [(7)] (8), who must be served with the notice of seizure for civil forfeiture solely by reason of an amendment to the listing of property [or estimate of value] under subsection (1) of this section, need only be served by mailing a true copy of the notice of seizure for civil forfeiture by certified mail, return receipt requested.

(3) Any person claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after notice of seizure for civil forfeiture if notice is given in a manner other than by publication. All other persons claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after the last publication date if notice is published. No extension for the filing of any claim shall be granted. The claim shall be signed by the claimant under penalty of perjury and shall set forth all of the following:

(a) The true name of the claimant;

(b) The address at which the claimant will accept future mailings from the court or forfeiture counsel; and

(4) If no timely claim is filed, the property shall, upon application and affidavit of the forfeiting agency, be declared forfeited to the forfeiting agency for distribution as required by ORS 475A.120. The affidavit shall set forth proof of service or, if no service was accomplished, facts demonstrating the forfeiting agency’s efforts to accomplish service, together with proof of publication of notice. The application and affidavit shall be filed in the circuit court designated in ORS 475A.075. The judgment declaring the property forfeited shall be as provided in ORS 475A.110. A judgment may not be entered under this section unless the statement provided for in section 5c of this 2001 Act was given to the person from whose possession the property was taken or to the person in apparent control of the property at the time the property was taken.

(5) If a timely claim is filed, or if the statement provided for in section 5c of this 2001 Act was not given to the person from whose possession the property was taken or to the person in apparent control of the property at the time the property was taken, a judicial civil forfeiture proceeding may be commenced as provided in ORS 475A.075.

(6) Notwithstanding ORS 8.720 or any other provision of law, but subject to the provisions of ORS 180.060, a district attorney may act as forfeiture counsel in any civil forfeiture proceeding.

(7) In any civil forfeiture proceeding where there are or may be related criminal proceedings, a prosecuting attorney or forfeiture counsel may participate in settlement negotiations initiated by the defendant or claimant or by the attorney representing the defendant or claimant.

(8) If a forfeiting agency publishes notice of seizure for civil forfeiture in a newspaper in the manner provided by subsection (1) of this section, the agency may include in a single publication as many notices of civil forfeiture as the agency considers convenient. The publication may contain a single statement of matters from the notices of civil forfeiture that are common to all of the notices and which would otherwise result in needless repetition. The publication must contain for each notice of civil forfeiture a separate copy of the inventory prepared pursuant to this section and ORS 475A.035 and a separate statement of the identity of the person from whose custody the property was seized. [The published inventory need not contain estimates of value for the property seized.]

SECTION 7a. ORS 475A.055, as amended by section 7 of this 2001 Act, is amended to read:

475A.055. [Personal property which is not subject to an interest in favor of any person known to have an interest, other than a person who is believed by the forfeiting agency to have engaged in prohibited conduct, may be forfeited by the forfeiting agency in the manner provided in this section.]

[(1) As soon as practicable after seizure for civil forfeiture, the seizing agency shall review the inventory prepared by the officer under ORS 475A.035. The forfeiting agency shall amend the inventory to supply a correct listing of the property seized if the listing is substantially incorrect. Within 15 days after seizure for civil forfeiture, the forfeiting agency shall prepare a notice of seizure for civil forfeiture containing a copy of the inventory prepared pursuant to this section and ORS 475A.035, the identity of the person from whom the property was seized, the name, address and telephone number of the seizing agency and the address and telephone number of the office or other place where further information concerning the seizure and forfeiture may be obtained, and shall make reasonable efforts to serve the notice of seizure for civil forfeiture on all persons known to have an interest in the seized property. A person may be served as provided in ORCP 7 D except that the notice shall also include information regarding the right to file a claim under subsection (3) of this section, if applicable, and the deadline for filing the claim. If the property is cash in the amount of $1,000 or less, or if the fair market value of the property is $1,000 or less, the forfeiting agency may publish notice of seizure for civil forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). In all other cases, the forfeiting agency shall publish notice of seizure for civil forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). A copy of the notice and inventory shall be provided to the forfeiting agency’s forfeiture counsel.]

[(2)(a) The notice of seizure for civil forfeiture provided for in this section need not be served on a person who has received the receipt provided for in ORS 475A.035 (8) if:]

[(A) The receipt contains an estimate of the value of the property seized and the seizing agency has not amended the listing of property in reviewing the inventory under subsection (1) of this section; and]

[(B) The receipt contains information regarding the right to file a claim under subsection (3) of this section and the deadline for filing the claim.]

[(b) Any person who has received the receipt provided for in ORS 475A.035 (8), who must be served with the notice of seizure for civil forfeiture solely by reason of an amendment to the listing of property under subsection (1) of this section, need only be served by mailing a true copy of the notice of seizure for civil forfeiture by certified mail, return receipt requested.]

[(3) Any person claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after notice of seizure for civil forfeiture if notice is given in a manner other than by publication. All other persons claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after the last publication date if notice is published. No extension for the filing of any claim shall be granted. The claim shall be signed by the claimant under penalty of perjury and shall set forth all of the following:]

[(a) The true name of the claimant;]

[(b) The address at which the claimant will accept future mailings from the court or forfeiture counsel; and]

[(c) A statement that the claimant has an interest in the seized property.]

[(4) If no timely claim is filed, the property shall, upon application and affidavit of the forfeiting agency, be declared forfeited to the forfeiting agency for distribution as required by ORS 475A.120. The affidavit shall set forth proof of service or, if no service was accomplished, facts demonstrating the forfeiting agency’s efforts to accomplish service, together with proof of publication of notice. The application and affidavit shall be filed in the circuit court designated in ORS 475A.075. The judgment declaring the property forfeited shall be as provided in ORS 475A.110. A judgment may not be entered under this section unless the statement provided for in section 5c of this 2001 Act was given to the person from whose possession the property was taken or to the person in apparent control of the property at the time the property was taken.]

[(5) If a timely claim is filed, or if the statement provided for in section 5c of this 2001 Act was not given to the person from whose possession the property was taken or to the person in apparent control of the property at the time the property was taken, a judicial civil forfeiture proceeding may be commenced as provided in ORS 475A.075.]

[(6) Notwithstanding ORS 8.720 or any other provision of law, but subject to the provisions of ORS 180.060, a district attorney may act as forfeiture counsel in any civil forfeiture proceeding.]

[(7) In any civil forfeiture proceeding where there are or may be related criminal proceedings, a prosecuting attorney or forfeiture counsel may participate in settlement negotiations initiated by the defendant or claimant or by the attorney representing the defendant or claimant.]

[(8) If a forfeiting agency publishes notice of seizure for civil forfeiture in a newspaper in the manner provided by subsection (1) of this section, the agency may include in a single publication as many notices of civil forfeiture as the agency considers convenient. The publication may contain a single statement of matters from the notices of civil forfeiture that are common to all of the notices and which would otherwise result in needless repetition. The publication must contain for each notice of civil forfeiture a separate copy of the inventory prepared pursuant to this section and ORS 475A.035 and a separate statement of the identity of the person from whose custody the property was seized.] Personal property which is not subject to an interest in favor of any person known to have an interest, other than a person who engaged in prohibited conduct, may be forfeited by the forfeiting agency in the manner provided in this section.

(1) As soon as practicable after seizure for forfeiture, the seizing agency shall review the inventory prepared by the officer under ORS 475A.035 (7) and estimate the value of the property seized. The forfeiting agency shall amend the inventory to supply an estimate of value of the property seized if no estimate was made by the officer under ORS 475A.035 (7). The forfeiting agency shall, in addition, amend the inventory to supply a correct listing of the property seized or estimate of the value of that property if either the listing or any estimate of value made by the officer is substantially incorrect. Within 15 days after seizure for forfeiture, the forfeiting agency shall prepare a notice of seizure for forfeiture containing a copy of the inventory prepared pursuant to this section and ORS 475A.035, the identity of the person from whom the property was seized, the name, address and telephone number of the seizing agency and the address and telephone number of the office or other place where further information concerning the seizure and forfeiture may be obtained, and shall make reasonable efforts to serve the notice of seizure for forfeiture on all persons known to have an interest in the seized property. A person may be served as provided in ORCP 7 D except that the notice shall also include information regarding the right to file a claim under subsection (3) of this section, if applicable, and the deadline for filing the claim. If the property is cash in the amount of $1,000 or less, or if the fair market value of the property is $1,000 or less, the forfeiting agency may publish notice of seizure for forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). In all other cases, the forfeiting agency shall publish notice of seizure for forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). A copy of the notice, inventory and estimate of value shall be provided to the forfeiting agency’s forfeiture counsel.

(2)(a) The notice of seizure for forfeiture provided for in this section need not be served on a person who has received the receipt provided for in ORS 475A.035 (7) if:

(A) The receipt contains an estimate of the value of the property seized and the seizing agency has not amended the listing of property or estimate of the value in reviewing the inventory under subsection (1) of this section; and

(B) The receipt contains information regarding the right to file a claim under subsection (3) of this section and the deadline for filing the claim.

(b) Any person who has received the receipt provided for in ORS 475A.035 (7), who must be served with the notice of seizure for forfeiture solely by reason of an amendment to the listing of property or estimate of value under subsection (1) of this section, need only be served by mailing a true copy of the notice of seizure for forfeiture by certified mail, return receipt requested.

(3) Any person claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after notice of seizure for forfeiture if notice is given in a manner other than by publication. All other persons claiming an interest in the property shall file a claim with the forfeiting agency’s forfeiture counsel within 21 days after the last publication date if notice is published. No extension for the filing of any claim shall be granted. The claim shall be signed by the claimant under penalty of perjury and shall set forth all of the following:

(a) The true name of the claimant;

(b) The address at which the claimant will accept future mailings from the court or forfeiture counsel; and

(c) A statement that the claimant has an interest in the seized property.

(4) If no timely claim is filed, the property shall, upon application and affidavit of the forfeiting agency, be declared forfeited to the forfeiting agency. The affidavit shall set forth proof of service or, if no service was accomplished, facts demonstrating the forfeiting agency’s efforts to accomplish service, together with proof of publication of notice. The application and affidavit shall be filed in the circuit court designated in ORS 475A.075. The judgment declaring the property forfeited shall be as provided in ORS 475A.110.

(5) If a timely claim is filed, a judicial forfeiture proceeding may be commenced as provided in ORS 475A.075.

(6) Notwithstanding ORS 8.720 or any other provision of law, but subject to the provisions of ORS 180.060, a district attorney may act as forfeiture counsel in any civil forfeiture proceeding.

(8) If a forfeiting agency publishes notice of seizure for forfeiture in a newspaper in the manner provided by subsection (1) of this section, the agency may include in a single publication as many notices of forfeiture as the agency considers convenient. The publication may contain a single statement of matters from the notices of forfeiture that are common to all of the notices and which would otherwise result in needless repetition. The publication must contain for each notice of forfeiture a separate copy of the inventory prepared pursuant to this section and ORS 475A.035 and a separate statement of the identity of the person from whose custody the property was seized. The published inventory need not contain estimates of value for the property seized.

SECTION 7b. The amendments to ORS 475A.055 by section 7a of this 2001 Act become operative on July 31, 2005.

SECTION 8. ORS 475A.075 is amended to read:

475A.075. A civil action in rem may be brought as provided in this section in any case in which civil forfeiture is sought. A civil action in rem must be brought if the property is real property, the property is in whole or part a manufactured dwelling as defined in ORS 446.003, the property is a floating home as defined in ORS 830.700 or if the property is subject to an interest in favor of any person known to have an interest, other than a person who is believed by the forfeiting agency to have engaged in prohibited conduct.

(1) If a forfeiting agency has commenced proceedings under ORS 475A.055, then an action shall be commenced by forfeiture counsel, within 15 days of receipt of a claim. If no proceedings have been commenced under ORS 475A.055, then the action shall be commenced by forfeiture counsel within 30 days of seizure. The property may be released by forfeiture counsel as provided in ORS 475A.045 (2).

(2) An action is commenced by filing a complaint. The complaint need only allege that there is probable cause for seizure of the property, as described in ORS 475A.035 (3), and need not allege that any claimant has been convicted of a crime. A complaint under this section may be amended at any time to allege that a claimant has been convicted of a crime. Responses to a complaint shall conform to the following procedure:

(a) A person claiming an interest in the property shall respond as provided in the Oregon Rules of Civil Procedure and, if a claim has not previously been filed, by filing a claim in the form set forth in ORS 475A.055 (3) with the court. [and posting a bond with the court. The bond shall be a cash bond in an amount equal to 10 percent of the value of the interest claimed by the person in the property. Upon good cause shown by motion and affidavit filed with the initial appearance, the court may waive or reduce the bond. Failure to file an appearance, claim and bond shall constitute a default. The bond shall be returned to the claimant upon the entry of a final determination on the claim.]

(b) Notwithstanding the provisions of paragraph (a) of this subsection, a financial institution holding an interest in the seized property [shall] may respond to a complaint with an affidavit establishing [that] the financial institution’s interest in the property. [was acquired:]

[(A) In the regular course of business as a financial institution;]

[(B) For valuable consideration;]

[(C) Without knowledge of the prohibited conduct;]

[(D) In good faith and without intent to defeat the interest of any potential forfeiting agency; and]

[(E) With respect to personal property, prior to the seizure of the property, or with respect to real property, recorded prior to the recording of notice of the seizure of the real property in the mortgage records of the county in which the real property is located. Failure to file an affidavit shall constitute a default. The affidavit shall be filed within 30 days from the date of service.]

(c) Notwithstanding the provisions of paragraph (a) of this subsection, any person, other than a financial institution, who transfers or conveys an interest in real property pursuant to a contract for transfer or conveyance of an interest in real property as defined in ORS 93.905 and who retains an interest in the real property, or any successor in interest, may respond to a complaint with an affidavit establishing that the person:

[(A) Received the interest in return for valuable consideration or by way of devise or intestate succession;]

[(B)] (A) Had no knowledge at the time of transfer or conveyance of the prohibited conduct;

[(C)] (B) Acted in good faith and without intent to defeat the interest of any potential forfeiting agency; and

[(D)] (C) Recorded the interest in the mortgage records of the county in which the real property is located prior to the recording of any notice of intent to seize or notice of seizure[; and]

[(E) Continued to hold the interest without acquiescing in the prohibited conduct].

[(d) For the purposes of paragraph (c) of this subsection, a person shall be considered to have acquiesced in prohibited conduct if the person knew of the prohibited conduct and knowingly failed to take reasonable action under the circumstances to terminate or avoid use of the property in the course of prohibited conduct. For purposes of this section, “reasonable action under the circumstances” includes, but is not limited to:]

[(A) Reporting the prohibited conduct to a police agency;]

[(B) Commencing action that will assert the rights of the affiant as to the property interest;]

[(C) Terminating a rental agreement; or]

[(D) Seeking an abatement order under the provisions of ORS 105.505 to 105.520, or under the provisions of ORS 105.550 to 105.600, or under any ordinance or regulation allowing abatement of nuisances.]

[(e)] (d) The [affidavit] affidavits permitted by [paragraph] paragraphs (b) and (c) of this subsection [shall] must be filed within 30 days from the date of service of the summons and complaint. Failure to file an affidavit or to respond as set forth in paragraph (a) of this subsection shall constitute a default.

[(f)] (e) In response to an affidavit filed pursuant to paragraph (b) or (c) of this subsection, the forfeiting agency may controvert any or all of the assertions made in the affidavit. The affidavit of the forfeiting agency shall be filed within 20 days of the filing of [the] an affidavit [filed] under paragraph (b) or(c) of this subsection. The financial institution, transferor, conveyor or successor in interest may respond, within five days of the filing of the affidavit of the forfeiting agency, with a supplemental affidavit limited to the matters stated in the affidavit of the forfeiting agency. If the forfeiting agency does not file an affidavit within the time allowed, [the] a transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter, and the interest of the financial institution, transferor, conveyor or successor in interest shall be conclusively established for all purposes under this chapter.

[(g)(A)] (f)(A) If the forfeiting agency files an affidavit under paragraph [(f)] (e) of this subsection, the court shall determine from the affidavits whether there is a genuine issue of material fact with respect to the assertions of the financial institution, transferor, conveyor or successor in interest.

(B) If the court determines that there is no genuine issue of material fact as to the truth of the assertions in the affidavit filed under paragraph [(f)] (e) of this subsection, [the] a transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter, and the interest of the financial institution, transferor, conveyor or successor in interest shall be conclusively established for all purposes under this chapter. The court shall order the forfeiting agency to pay the costs and disbursements, [including] as described in ORCP 68 A, and the attorney fees[,] of the prevailing financial institution, transferor, conveyor or successor in interest if the forfeiting agency does not prevail.

(C) If the court determines that there is a genuine issue of material fact as to the truth of the assertions in the affidavit filed pursuant to paragraph [(f)] (e) of this subsection, the financial institution, transferor, conveyor or successor in interest shall, within 15 days, respond as provided in paragraph (a) of this subsection. The court may order the financial institution, transferor, conveyor or successor in interest to pay the attorney fees of the forfeiting agency that were incurred in contesting the affidavit of the financial institution, transferor, conveyor or successor in interest if the court determines that the affidavit of the financial institution, transferor, conveyor or successor in interest was frivolous.

(3) All persons known to have an interest in the property, including any claimant, shall be served with a true copy of the inventory of the property prepared pursuant to ORS 475A.035 and 475A.055, the summons and the complaint as provided in ORCP 5 and 7 D. Notice of the action shall be published as provided in ORCP 7 D(6)(b) to (d) unless notice has previously been published in accordance with ORS 475A.055 (1). In the event that a civil forfeiture involves a vehicle, and the notices required by this statute have been given, and substitute service on the claimant is required because personal service cannot be reasonably accomplished, service as authorized by ORCP 7 D(4) shall be sufficient to establish jurisdiction over a registered owner or operator of a vehicle. If the property is in whole or part a manufactured dwelling as defined in ORS 446.003 or a floating home as defined in ORS 830.700, the forfeiting agency shall, in addition to serving all persons known to have an interest in the property, record a notice of seizure containing a description of the manufactured dwelling or floating home in all public offices maintaining records that impart constructive notice of matters relating to manufactured dwellings or floating homes.

(4)(a) If a claim is not made under the provisions of this section or ORS 475A.055 for an interest in property seized for civil forfeiture, or a claim is made but the claimant is found to be in default in the proceedings, the court shall enter a judgment finding that the claimant has abandoned the property and providing for the forfeiture of the claimant’s interest without hearing if the forfeiting agency files an affidavit with the court showing that there was probable cause for seizure of the property.

(b) In addition to any other grounds for entry of a default judgment against a claimant, a forfeiting agency may move the court at any time after a response is made as provided in subsection (2)(a) of this section for an order finding that the claimant is a fugitive and in default. The court shall enter an order finding the claimant in default under this paragraph, and enter judgment as provided in paragraph (a) of this subsection, if:

(A) The claimant is a defendant in a criminal proceeding on which the forfeiture is based;

(B) The claimant has failed to make a required appearance in the criminal proceeding; and

(C) The court finds from affidavits filed by the forfeiting agency that the forfeiting agency or other public bodies have made a good faith effort to locate the claimant, and the claimant cannot be found.

[(4)] (5) All judicial proceedings under this chapter shall be governed by the Oregon Rules of Civil Procedure to the extent that they do not conflict with specific provisions of this chapter. A complaint filed under this section is not subject to a motion to strike, a motion for summary judgment or any other pretrial motion for dismissal that is based solely on the lack of a criminal conviction in support of the civil forfeiture. Nothing in this subsection affects the ability of a claimant to file a motion to strike or for summary judgment by reason of an acquittal of the claimant of all criminal charges on which the civil forfeiture is based.

[(5)(a)] (6)(a) The filing of criminal charges related to any civil proceeding for forfeiture may, upon motion of forfeiture counsel or the district attorney or upon motion on behalf of defendant in a related criminal proceeding, stay the civil forfeiture proceeding until the trial, plea or dismissal of the related criminal proceeding. A motion for stay on behalf of the defendant in a related criminal proceeding shall constitute a waiver of double jeopardy by the defendant as to the civil forfeiture proceeding and any related criminal proceeding. Pursuant to subsection [(6)] (7) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(b) The court may stay the civil forfeiture proceeding upon motion of a party and good cause shown. Good cause may include a reasonable fear on the part of a claimant that the claimant could be prosecuted for conduct arising out of the same factual situation which gave rise to the seizure of property. Good cause for a motion made by forfeiture counsel may include the need for additional time to commence or complete a criminal proceeding related to the civil forfeiture proceeding. Pursuant to subsection [(6)] (7) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(c) Any party may file a motion with the court at any time to lift a stay granted under this subsection if good cause no longer exists for the stay.

[(6)] (7) Notwithstanding any stay entered pursuant to subsection [(5)(a)] (6)(a) or (b) of this section, an action pursuant to this section may be consolidated with any other action pursuant to this section relating to the same property or parties on motion by any party in any related action. Upon motion by the state or a political subdivision of the state, or any criminal defendant who is also a claimant, a civil forfeiture proceeding under this section may be consolidated for trial or other resolution with any related criminal proceeding. Trial or other resolution of the civil forfeiture action shall immediately follow the related criminal trial or other resolution, shall be part of the same proceeding and shall be heard by the same trier of fact. Any objection by the defendant to the consolidation or any motion by the defendant to sever the related criminal case from the civil proceeding for forfeiture shall constitute a waiver of double jeopardy as to any related criminal action and the civil forfeiture proceeding.

(8)(a) Any claimant who is alleged to have engaged in prohibited conduct, and who has responded in the manner required by subsection (2)(a) of this section, may file a special motion for the release of all or part of the property subject to the civil forfeiture action if a criminal action alleging the commission of a crime, as described in ORS 161.515, is not brought against any owner of the property within 90 days after the property is seized. The court shall grant the motion except upon good cause shown by the forfeiting agency. The release of the property does not affect the ability of the forfeiting agency to continue the action for the purpose of seeking civil forfeiture of the released property.

(b) A motion under this subsection may not be made for the release of any property that is held as evidence or for protective purposes.

(9) Any claimant who is alleged to have engaged in prohibited conduct, and who has responded in the manner required by subsection (2)(a) of this section, may offer in the manner provided by ORCP 54 E to allow judgment to be given against all or part of the defendant property for a specified sum or specified property, or to a specified effect. An offer under this subsection shall have the effect specified in ORCP 54 E.

[(7)] (10) The action shall be commenced and tried:

(a) In the case of real property, in the circuit court in a county in which the property is situated; or

(b) In all other cases, in the circuit court of the county in which the property was seized or the county in which any part of the prohibited conduct took place.

SECTION 8a. ORS 475A.075, as amended by section 8 of this 2001 Act, is amended to read:

475A.075. [A civil action in rem may be brought as provided in this section in any case in which civil forfeiture is sought. A civil action in rem must be brought if the property is real property, the property is in whole or part a manufactured dwelling as defined in ORS 446.003, the property is a floating home as defined in ORS 830.700 or if the property is subject to an interest in favor of any person known to have an interest, other than a person who is believed by the forfeiting agency to have engaged in prohibited conduct.]

[(1) If a forfeiting agency has commenced proceedings under ORS 475A.055, then an action shall be commenced by forfeiture counsel, within 15 days of receipt of a claim. If no proceedings have been commenced under ORS 475A.055, then the action shall be commenced by forfeiture counsel within 30 days of seizure. The property may be released by forfeiture counsel as provided in ORS 475A.045 (2).]

[(2) An action is commenced by filing a complaint. The complaint need only allege that there is probable cause for seizure of the property, as described in ORS 475A.035 (3), and need not allege that any claimant has been convicted of a crime. A complaint under this section may be amended at any time to allege that a claimant has been convicted of a crime. Responses to a complaint shall conform to the following procedure:]

[(a) A person claiming an interest in the property shall respond as provided in the Oregon Rules of Civil Procedure and, if a claim has not previously been filed, by filing a claim in the form set forth in ORS 475A.055 (3) with the court.]

[(b) Notwithstanding the provisions of paragraph (a) of this subsection, a financial institution holding an interest in the seized property may respond to a complaint with an affidavit establishing the financial institution’s interest in the property.]

[(c) Notwithstanding the provisions of paragraph (a) of this subsection, any person, other than a financial institution, who transfers or conveys an interest in real property pursuant to a contract for transfer or conveyance of an interest in real property as defined in ORS 93.905 and who retains an interest in the real property, or any successor in interest, may respond to a complaint with an affidavit establishing that the person:]

[(A) Had no knowledge at the time of transfer or conveyance of the prohibited conduct;]

[(B) Acted in good faith and without intent to defeat the interest of any potential forfeiting agency; and]

[(C) Recorded the interest in the mortgage records of the county in which the real property is located prior to the recording of any notice of intent to seize or notice of seizure.]

[(d) The affidavits permitted by paragraphs (b) and (c) of this subsection must be filed within 30 days from the date of service of the summons and complaint. Failure to file an affidavit or to respond as set forth in paragraph (a) of this subsection shall constitute a default.]

[(e) In response to an affidavit filed pursuant to paragraph (b) or (c) of this subsection, the forfeiting agency may controvert any or all of the assertions made in the affidavit. The affidavit of the forfeiting agency shall be filed within 20 days of the filing of an affidavit under paragraph (b) or (c) of this subsection. The financial institution, transferor, conveyor or successor in interest may respond, within five days of the filing of the affidavit of the forfeiting agency, with a supplemental affidavit limited to the matters stated in the affidavit of the forfeiting agency. If the forfeiting agency does not file an affidavit within the time allowed, a transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter, and the interest of the financial institution, transferor, conveyor or successor in interest shall be conclusively established for all purposes under this chapter.]

[(f)(A) If the forfeiting agency files an affidavit under paragraph (e) of this subsection, the court shall determine from the affidavits whether there is a genuine issue of material fact with respect to the assertions of the financial institution, transferor, conveyor or successor in interest.]

[(B) If the court determines that there is no genuine issue of material fact as to the truth of the assertions in the affidavit filed under paragraph (e) of this subsection, a transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter, and the interest of the financial institution, transferor, conveyor or successor in interest shall be conclusively established for all purposes under this chapter. The court shall order the forfeiting agency to pay the costs and disbursements, as described in ORCP 68 A, and the attorney fees of the prevailing financial institution, transferor, conveyor or successor in interest if the forfeiting agency does not prevail.]

[(C) If the court determines that there is a genuine issue of material fact as to the truth of the assertions in the affidavit filed pursuant to paragraph (e) of this subsection, the financial institution, transferor, conveyor or successor in interest shall, within 15 days, respond as provided in paragraph (a) of this subsection. The court may order the financial institution, transferor, conveyor or successor in interest to pay the attorney fees of the forfeiting agency that were incurred in contesting the affidavit of the financial institution, transferor, conveyor or successor in interest if the court determines that the affidavit of the financial institution, transferor, conveyor or successor in interest was frivolous.]

[(3) All persons known to have an interest in the property, including any claimant, shall be served with a true copy of the inventory of the property prepared pursuant to ORS 475A.035 and 475A.055, the summons and the complaint as provided in ORCP 5 and 7 D. Notice of the action shall be published as provided in ORCP 7 D(6)(b) to (d) unless notice has previously been published in accordance with ORS 475A.055 (1). In the event that a civil forfeiture involves a vehicle, and the notices required by this statute have been given, and substitute service on the claimant is required because personal service cannot be reasonably accomplished, service as authorized by ORCP 7 D(4) shall be sufficient to establish jurisdiction over a registered owner or operator of a vehicle. If the property is in whole or part a manufactured dwelling as defined in ORS 446.003 or a floating home as defined in ORS 830.700, the forfeiting agency shall, in addition to serving all persons known to have an interest in the property, record a notice of seizure containing a description of the manufactured dwelling or floating home in all public offices maintaining records that impart constructive notice of matters relating to manufactured dwellings or floating homes.]

[(4)(a) If a claim is not made under the provisions of this section or ORS 475A.055 for an interest in property seized for civil forfeiture, or a claim is made but the claimant is found to be in default in the proceedings, the court shall enter a judgment finding that the claimant has abandoned the property and providing for the forfeiture of the claimant’s interest without hearing if the forfeiting agency files an affidavit with the court showing that there was probable cause for seizure of the property.]

[(b) In addition to any other grounds for entry of a default judgment against a claimant, a forfeiting agency may move the court at any time after a response is made as provided in subsection (2)(a) of this section for an order finding that the claimant is a fugitive and in default. The court shall enter an order finding the claimant in default under this paragraph, and enter judgment as provided in paragraph (a) of this subsection, if:]

[(A) The claimant is a defendant in a criminal proceeding on which the forfeiture is based;]

[(B) The claimant has failed to make a required appearance in the criminal proceeding; and]

[(C) The court finds from affidavits filed by the forfeiting agency that the forfeiting agency or other public bodies have made a good faith effort to locate the claimant, and the claimant cannot be found.]

[(5) All judicial proceedings under this chapter shall be governed by the Oregon Rules of Civil Procedure to the extent that they do not conflict with specific provisions of this chapter. A complaint filed under this section is not subject to a motion to strike, a motion for summary judgment or any other pretrial motion for dismissal that is based solely on the lack of a criminal conviction in support of the civil forfeiture. Nothing in this subsection affects the ability of a claimant to file a motion to strike or for summary judgment by reason of an acquittal of the claimant of all criminal charges on which the civil forfeiture is based.]

[(6)(a) The filing of criminal charges related to any civil proceeding for forfeiture may, upon motion of forfeiture counsel or the district attorney or upon motion on behalf of defendant in a related criminal proceeding, stay the civil forfeiture proceeding until the trial, plea or dismissal of the related criminal proceeding. A motion for stay on behalf of the defendant in a related criminal proceeding shall constitute a waiver of double jeopardy by the defendant as to the civil forfeiture proceeding and any related criminal proceeding. Pursuant to subsection (7) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.]

[(b) The court may stay the civil forfeiture proceeding upon motion of a party and good cause shown. Good cause may include a reasonable fear on the part of a claimant that the claimant could be prosecuted for conduct arising out of the same factual situation which gave rise to the seizure of property. Good cause for a motion made by forfeiture counsel may include the need for additional time to commence or complete a criminal proceeding related to the civil forfeiture proceeding. Pursuant to subsection (7) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.]

[(c) Any party may file a motion with the court at any time to lift a stay granted under this subsection if good cause no longer exists for the stay.]

[(7) Notwithstanding any stay entered pursuant to subsection (6)(a) or (b) of this section, an action pursuant to this section may be consolidated with any other action pursuant to this section relating to the same property or parties on motion by any party in any related action. Upon motion by the state or a political subdivision of the state, or any criminal defendant who is also a claimant, a civil forfeiture proceeding under this section may be consolidated for trial or other resolution with any related criminal proceeding. Trial or other resolution of the civil forfeiture action shall immediately follow the related criminal trial or other resolution, shall be part of the same proceeding and shall be heard by the same trier of fact. Any objection by the defendant to the consolidation or any motion by the defendant to sever the related criminal case from the civil proceeding for forfeiture shall constitute a waiver of double jeopardy as to any related criminal action and the civil forfeiture proceeding.]

[(8)(a) Any claimant who is alleged to have engaged in prohibited conduct, and who has responded in the manner required by subsection (2)(a) of this section, may file a special motion for the release of all or part of the property subject to the civil forfeiture action if a criminal action alleging the commission of a crime, as described in ORS 161.515, is not brought against any owner of the property within 90 days after the property is seized. The court shall grant the motion except upon good cause shown by the forfeiting agency. The release of the property does not affect the ability of the forfeiting agency to continue the action for the purpose of seeking civil forfeiture of the released property.]

[(b) A motion under this subsection may not be made for the release of any property that is held as evidence or for protective purposes.]

[(9) Any claimant who is alleged to have engaged in prohibited conduct, and who has responded in the manner required by subsection (2)(a) of this section, may offer in the manner provided by ORCP 54 E to allow judgment to be given against all or part of the defendant property for a specified sum or specified property, or to a specified effect. An offer under this subsection shall have the effect specified in ORCP 54 E.]

[(10) The action shall be commenced and tried:]

[(a) In the case of real property, in the circuit court in a county in which the property is situated; or]

[(b) In all other cases, in the circuit court of the county in which the property was seized or the county in which any part of the prohibited conduct took place.] A civil action in rem may be brought as provided in this section in any case in which forfeiture is sought. A civil action in rem must be brought if the property is real property, the property is in whole or part a manufactured dwelling as defined in ORS 446.003, the property is a floating home as defined in ORS 830.700 or if the property is subject to an interest in favor of any person known to have an interest, other than a person who engaged in prohibited conduct.

(2) An action is commenced by filing a complaint. Responses to a complaint shall conform to the following procedure:

(a) A person claiming an interest in the property shall respond as provided in the Oregon Rules of Civil Procedure and, if a claim has not previously been filed, by filing a claim in the form set forth in ORS 475A.055 (3) with the court and posting a bond with the court. The bond shall be a cash bond in an amount equal to 10 percent of the value of the interest claimed by the person in the property. Upon good cause shown by motion and affidavit filed with the initial appearance, the court may waive or reduce the bond. Failure to file an appearance, claim and bond shall constitute a default. The bond shall be returned to the claimant upon the entry of a final determination on the claim.

(b) Notwithstanding the provisions of paragraph (a) of this subsection, a financial institution holding an interest in the seized property shall respond to a complaint with an affidavit establishing that the financial institution’s interest in the property was acquired:

(A) In the regular course of business as a financial institution;

(B) For valuable consideration;

(C) Without knowledge of the prohibited conduct;

(D) In good faith and without intent to defeat the interest of any potential forfeiting agency; and

(E) With respect to personal property, prior to the seizure of the property, or with respect to real property, recorded prior to the recording of notice of the seizure of the real property in the mortgage records of the county in which the real property is located. Failure to file an affidavit shall constitute a default. The affidavit shall be filed within 30 days from the date of service.

(A) Received the interest in return for valuable consideration or by way of devise or intestate succession;

(B) Had no knowledge at the time of transfer or conveyance of the prohibited conduct;

(C) Acted in good faith and without intent to defeat the interest of any potential forfeiting agency;

(D) Recorded the interest in the mortgage records of the county in which the real property is located prior to the recording of any notice of intent to seize or notice of seizure; and

(E) Continued to hold the interest without acquiescing in the prohibited conduct.

(d) For the purposes of paragraph (c) of this subsection, a person shall be considered to have acquiesced in prohibited conduct if the person knew of the prohibited conduct and knowingly failed to take reasonable action under the circumstances to terminate or avoid use of the property in the course of prohibited conduct. For purposes of this section, “reasonable action under the circumstances” includes, but is not limited to:

(A) Reporting the prohibited conduct to a police agency;

(B) Commencing action that will assert the rights of the affiant as to the property interest;

(C) Terminating a rental agreement; or

(D) Seeking an abatement order under the provisions of ORS 105.505 to 105.520, or under the provisions of ORS 105.550 to 105.600, or under any ordinance or regulation allowing abatement of nuisances.

(e) The affidavit permitted by paragraph (c) of this subsection shall be filed within 30 days from the date of service of the summons and complaint. Failure to file an affidavit or to respond as set forth in paragraph (a) of this subsection shall constitute a default.

(f) In response to an affidavit filed pursuant to paragraph (c) of this subsection, the forfeiting agency may controvert any or all of the assertions made in the affidavit. The affidavit of the forfeiting agency shall be filed within 20 days of the filing of the affidavit filed under paragraph (c) of this subsection. The transferor, conveyor or successor in interest may respond, within five days of the filing of the affidavit of the forfeiting agency, with a supplemental affidavit limited to the matters stated in the affidavit of the forfeiting agency. If the forfeiting agency does not file an affidavit within the time allowed, the transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter.

(g)(A) If the forfeiting agency files an affidavit under paragraph (f) of this subsection, the court shall determine from the affidavits whether there is a genuine issue of material fact with respect to the assertions of the transferor, conveyor or successor in interest.

(B) If the court determines that there is no genuine issue of material fact as to the truth of the assertions in the affidavit filed under paragraph (f) of this subsection, the transferor, conveyor or successor in interest shall be considered a financial institution for all purposes under this chapter. The court shall order the forfeiting agency to pay the costs and disbursements, including attorney fees, of the prevailing transferor, conveyor or successor in interest if the forfeiting agency does not prevail.

(C) If the court determines that there is a genuine issue of material fact as to the truth of the assertions in the affidavit filed pursuant to paragraph (f) of this subsection, the transferor, conveyor or successor in interest shall, within 15 days, respond as provided in paragraph (a) of this subsection. The court may order the transferor, conveyor or successor in interest to pay the attorney fees of the forfeiting agency that were incurred in contesting the affidavit of the transferor, conveyor or successor in interest if the court determines that the affidavit of the transferor, conveyor or successor in interest was frivolous.

(3) All persons known to have an interest in the property, including any claimant, shall be served with a true copy of the inventory of the property prepared pursuant to ORS 475A.035 and 475A.055, the summons and the complaint as provided in ORCP 5 and 7 D. Notice of the action shall be published as provided in ORCP 7 D(6)(b) to (d) unless notice has previously been published in accordance with ORS 475A.055 (1). In the event that a forfeiture involves a vehicle, and the notices required by this statute have been given, and substitute service on the claimant is required because personal service cannot be reasonably accomplished, service as authorized by ORCP 7 D(4) shall be sufficient to establish jurisdiction over a registered owner or operator of a vehicle. If the property is in whole or part a manufactured dwelling as defined in ORS 446.003 or a floating home as defined in ORS 830.700, the forfeiting agency shall, in addition to serving all persons known to have an interest in the property, record a notice of seizure containing a description of the manufactured dwelling or floating home in all public offices maintaining records that impart constructive notice of matters relating to manufactured dwellings or floating homes.

(4) All judicial proceedings under this chapter shall be governed by the Oregon Rules of Civil Procedure to the extent that they do not conflict with specific provisions of this chapter.

(5)(a) The filing of criminal charges related to any civil proceeding for forfeiture may, upon motion of forfeiture counsel or the district attorney or upon motion on behalf of defendant in a related criminal proceeding, stay the civil forfeiture proceeding until the trial, plea or dismissal of the related criminal proceeding. A motion for stay on behalf of the defendant in a related criminal proceeding shall constitute a waiver of double jeopardy by the defendant as to the civil forfeiture proceeding and any related criminal proceeding. Pursuant to subsection (6) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(b) The court may stay the civil forfeiture proceeding upon motion of a party and good cause shown. Good cause may include a reasonable fear on the part of a claimant that the claimant could be prosecuted for conduct arising out of the same factual situation which gave rise to the seizure of property. Pursuant to subsection (6) of this section, a civil forfeiture proceeding stayed under this paragraph may be consolidated for trial or other resolution with any related criminal proceeding.

(6) Notwithstanding any stay entered pursuant to subsection (5)(a) or (b) of this section, an action pursuant to this section may be consolidated with any other action pursuant to this section relating to the same property or parties on motion by any party in any related action. Upon motion by the state or a political subdivision of the state, or any criminal defendant who is also a claimant, a civil forfeiture proceeding under this section may be consolidated for trial or other resolution with any related criminal proceeding. Trial or other resolution of the civil forfeiture action shall immediately follow the related criminal trial or other resolution, shall be part of the same proceeding and shall be heard by the same trier of fact. Any objection by the defendant to the consolidation or any motion by the defendant to sever the related criminal case from the civil proceeding for forfeiture shall constitute a waiver of double jeopardy as to any related criminal action and the civil forfeiture proceeding.

(7) The action shall be commenced and tried:

(a) In the case of real property, in the circuit court in a county in which the property is situated; or

(b) In all other cases, in the circuit court of the county in which the property was seized or the county in which any part of the prohibited conduct took place.

SECTION 8b. The amendments to ORS 475A.075 by section 8a of this 2001 Act become operative on July 31, 2005.

SECTION 9. ORS 475A.080 is amended to read:

475A.080. (1) In all actions brought under this chapter for civil forfeiture of property that is owned by a person who is convicted of a crime, the burden of persuasion [shall lie upon the claimant, provided that probable cause to believe that the property is subject to forfeiture shall first be shown by the forfeiting agency] is on the forfeiting agency:

(a) To show that the owner of the property has been convicted of a crime in this state or in another jurisdiction; and

(b) To show by clear and convincing evidence that the property to be forfeited constitutes proceeds of the crime that the owner was convicted of, or that the property was instrumental in committing or facilitating the crime.

(2) In all actions brought under this chapter for civil forfeiture of property that is owned by a person who has not been convicted of a crime, the burden of persuasion is on the forfeiting agency to show by clear and convincing evidence that the person took the property with the intent to defeat forfeiture of the property.

SECTION 9a. ORS 475A.080, as amended by section 9 of this 2001 Act, is amended to read:

475A.080. [(1) In all actions brought under this chapter for civil forfeiture of property that is owned by a person who is convicted of a crime, the burden of persuasion is on the forfeiting agency:]

[(a) To show that the owner of the property has been convicted of a crime in this state or in another jurisdiction; and]

[(b) To show by clear and convincing evidence that the property to be forfeited constitutes proceeds of the crime that the owner was convicted of, or that the property was instrumental in committing or facilitating the crime.]

[(2) In all actions brought under this chapter for civil forfeiture of property that is owned by a person who has not been convicted of a crime, the burden of persuasion is on the forfeiting agency to show by clear and convincing evidence that the person took the property with the intent to defeat forfeiture of the property.] In all actions brought for forfeiture, the burden of persuasion shall lie upon the claimant, provided that probable cause to believe that the property is subject to forfeiture shall first be shown by the forfeiting agency.

SECTION 9b. The amendments to ORS 475A.080 by section 9a of this 2001 Act become operative on July 31, 2005.

SECTION 10. ORS 475A.085 is amended to read:

475A.085. [(1) A claimant may plead as an affirmative defense that the claimant took the property or the interest which the claimant holds therein:]

[(a)(A) Before it was seized for forfeiture;]

[(B) In good faith and without intent to defeat the interest of any forfeiting agency; and]

[(C) Continued to hold the property or interest without acquiescing in the prohibited conduct; or]

[(b) By coownership or cotenancy taken in good faith, without intent to defeat the interest of any forfeiting agency and continued to hold the property or interest without acquiescing in the prohibited conduct.]

[(2)] (1) A claimant may plead as an affirmative defense that the property was seized in violation of ORS 475A.025.

[(3)] (2) In any action brought against property subject to civil forfeiture under ORS 475A.020 (7), a claimant may plead as an affirmative defense that the controlled substance was solely for personal use.

[(4)] (3) If, by a preponderance of the evidence, the claimant proves a defense under this section, then judgment shall be entered for the claimant as provided in ORS 475A.110 (6).

[(5) This defense may not be asserted by a financial institution which holds a security interest in the property.]

[(6) For the purposes of subsection (1) of this section, a person shall be considered to have acquiesced in prohibited conduct if the person knew of the prohibited conduct and knowingly failed to take reasonable action under the circumstances to terminate or avoid use of the property in the course of prohibited conduct.]

SECTION 10a. ORS 475A.085, as amended by section 10 of this 2001 Act, is amended to read:

475A.085. [(1) A claimant may plead as an affirmative defense that the property was seized in violation of ORS 475A.025.]

[(2) In any action brought against property subject to civil forfeiture under ORS 475A.020 (7), a claimant may plead as an affirmative defense that the controlled substance was solely for personal use.]

[(3) If, by a preponderance of the evidence, the claimant proves a defense under this section, then judgment shall be entered for the claimant as provided in ORS 475A.110 (6).]

(1) A claimant may plead as an affirmative defense that the claimant took the property or the interest which the claimant holds therein:

(a)(A) Before it was seized for forfeiture;

(B) In good faith and without intent to defeat the interest of any forfeiting agency; and

(C) Continued to hold the property or interest without acquiescing in the prohibited conduct; or

(b) By coownership or cotenancy taken in good faith, without intent to defeat the interest of any forfeiting agency and continued to hold the property or interest without acquiescing in the prohibited conduct.

(2) A claimant may plead as an affirmative defense that the property was seized in violation of ORS 475A.025.

(3) In any action brought against property subject to forfeiture under ORS 475A.020 (7), a claimant may plead as an affirmative defense that the controlled substance was solely for personal use.

(4) If, by a preponderance of the evidence, the claimant proves a defense under this section, then judgment shall be entered for the claimant as provided in ORS 475A.110 (6).

(5) This defense may not be asserted by a financial institution which holds a security interest in the property.

(6) For the purposes of subsection (1) of this section, a person shall be considered to have acquiesced in prohibited conduct if the person knew of the prohibited conduct and knowingly failed to take reasonable action under the circumstances to terminate or avoid use of the property in the course of prohibited conduct.

SECTION 10b. The amendments to ORS 475A.085 by section 10a of this 2001 Act become operative on July 31, 2005.

SECTION 11. ORS 475A.100 is amended to read:

475A.100. (1) The form of verdict in a civil forfeiture proceeding must clearly designate the property found by the trier of fact to be proceeds and the property found by the trier of fact to be instrumentalities. The court shall enter judgment for the forfeiting agency for all proceeds of the crime. The court shall then determine whether forfeiture of all instrumentalities of the crime would be excessive or not substantially proportional to the specific conduct for which the owner of the property has been convicted. The court shall allow introduction of additional relevant evidence in making the determinations required under this subsection.

(2) The court shall consider the following factors in determining whether any portion of the proposed [judgment of] forfeiture of instrumentalities of a crime is excessive or not substantially proportional to the specific conduct for which the owner of the property has been convicted:

[(1) The court shall enter judgment to the extent that the defendant property is derived directly or indirectly from past prohibited conduct.]

[(2) With respect to defendant property that is not derived directly or indirectly from past prohibited conduct, the court shall consider:]

(a) Whether the defendant property constitutes the claimant’s lawful livelihood or means of earning a living.

(b) Whether the defendant property is the claimant’s residence.

(c) The degree of relationship between the defendant property and the prohibited conduct, including the extent to which the defendant property facilitated the prohibited conduct [or could facilitate future prohibited conduct].

(d) The monetary value of the defendant property in relation to the risk of injury to the public from the prohibited conduct.

(e) The monetary value of the defendant property in relation to the actual injury to the public from the prohibited conduct.

(f) Any prior use of the defendant property, or of similar property, by the claimant for the specific type of conduct for which the claimant is convicted.

[(f)] (g) The monetary value of the defendant property in relation to objective measures of the potential or actual criminal culpability of the person or persons engaging in the prohibited conduct, including:

(A) The inherent gravity of the prohibited conduct;

(B) The potential sentence for similar prohibited conduct under Oregon law; and

[(C) The claimant’s prior criminal history; and]

[(D)] (C) The sentence actually imposed on the claimant.

[(g)] (h) Any additional relevant evidence.

SECTION 11a. ORS 475A.100, as amended by section 11 of this 2001 Act, is amended to read:

475A.100. [(1) The form of verdict in a civil forfeiture proceeding must clearly designate the property found by the trier of fact to be proceeds and the property found by the trier of fact to be instrumentalities. The court shall enter judgment for the forfeiting agency for all proceeds of the crime. The court shall then determine whether forfeiture of all instrumentalities of the crime would be excessive or not substantially proportional to the specific conduct for which the owner of the property has been convicted. The court shall allow introduction of additional relevant evidence in making the determinations required under this subsection.]

[(2) The court shall consider the following factors in determining whether any portion of the proposed forfeiture of instrumentalities of a crime is excessive or not substantially proportional to the specific conduct for which the owner of the property has been convicted:]

[(a) Whether the defendant property constitutes the claimant’s lawful livelihood or means of earning a living.]

[(b) Whether the defendant property is the claimant’s residence.]

[(c) The degree of relationship between the defendant property and the prohibited conduct, including the extent to which the defendant property facilitated the prohibited conduct.]

[(d) The monetary value of the defendant property in relation to the risk of injury to the public from the prohibited conduct.]

[(e) The monetary value of the defendant property in relation to the actual injury to the public from the prohibited conduct.]

[(f) Any prior use of the defendant property, or of similar property, by the claimant for the specific type of conduct for which the claimant is convicted.]

[(g) The monetary value of the defendant property in relation to objective measures of the potential or actual criminal culpability of the person or persons engaging in the prohibited conduct, including:]

[(A) The inherent gravity of the prohibited conduct;]

[(B) The potential sentence for similar prohibited conduct under Oregon law; and]

[(C) The sentence actually imposed on the claimant.]

[(h) Any additional relevant evidence.] The court shall consider the following factors in determining whether any portion of the proposed judgment of forfeiture is excessive:

(1) The court shall enter judgment to the extent that the defendant property is derived directly or indirectly from past prohibited conduct.

(2) With respect to defendant property that is not derived directly or indirectly from past prohibited conduct, the court shall consider:

(a) Whether the defendant property constitutes the claimant’s lawful livelihood or means of earning a living.

(b) Whether the defendant property is the claimant’s residence.

(d) The monetary value of the defendant property in relation to the risk of injury to the public from the prohibited conduct.

(e) The monetary value of the defendant property in relation to the actual injury to the public from the prohibited conduct.

(f) The monetary value of the defendant property in relation to objective measures of the potential or actual criminal culpability of the person or persons engaging in the prohibited conduct, including:

(A) The inherent gravity of the prohibited conduct;

(B) The potential sentence for similar prohibited conduct under Oregon law;

(C) The claimant’s prior criminal history; and

(D) The sentence actually imposed on the claimant.

(g) Any additional relevant evidence.

SECTION 11b. The amendments to ORS 475A.100 by section 11a of this 2001 Act become operative on July 31, 2005.

SECTION 12. ORS 475A.110 is amended to read:

475A.110. A judgment of forfeiture shall recite the basis for the judgment.

(1) If no financial institutions have filed the affidavit described in ORS 475A.075 (2)(b), and if the court has failed to uphold the claim or affidavit of any other claimant, the effect of the judgment shall be that:

(a) Title to the property shall pass to the forfeiting agency free of any interest or encumbrance thereon in favor of any person who has been given notice;

(b) The forfeiting agency may transfer good and sufficient title to any subsequent purchaser or transferee, and the title shall be recognized by all courts, by the state, by the departments and agencies of the state, and by any political subdivision. In the case of real property, the forfeiting agency shall warrant the title against constitutional defect. A warranty under this section is limited to the purchase price of the real property; and

(c) Any department, agency or officer of the state or any political subdivision whose official functions include the issuance of certificates or other evidence of title shall be immune from civil or criminal liability when such issuance is pursuant to a judgment of forfeiture.

(2) If any affidavits are filed by financial institutions as provided in ORS 475A.075 (2)(b), or if any claimants file an appearance[,] and claim [and bond] as provided in ORS 475A.075 (2)(a) or an affidavit as provided in ORS 475A.075 (2)(c):

(a) The court shall foreclose all security interests, liens and vendor’s interests of financial institutions and claimants as to which the court determines that there is a legal or equitable basis for foreclosure; and

(b) All other interests applicable to the property, which are not foreclosed or otherwise eliminated through a judgment and decree of foreclosure, shall, if and to the extent that they are valid and subsisting, remain in effect, and the property shall remain subject to [them] those interests upon completion of the civil forfeiture proceeding.

(3) Notwithstanding the provisions of this chapter or other law, if a financial institution or other person has filed an affidavit described in ORS 475A.075, or if the court has upheld the claim of any claimant, then as to each item of property seized:

(a) If the court has determined that the property should not be forfeited and has not foreclosed the security interests, liens or other interests covering the property, the court shall render judgment in favor of the owner of the property, the property shall be returned to the owner and all security interests, liens and other interests applicable to the property shall remain in effect as though the property had never been seized. Upon the return of the property to the owner, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure.

(b) If the court has determined that the property should not be forfeited and has foreclosed one or more interests covering the property, including security interests or liens covering the property or contracts for the transfer or conveyance of the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court within such time as may be prescribed by the court following entry of the judgment. If any interests covering the property have not been foreclosed, including any liens or security interests of a claimant whose claim has been upheld, or of a financial institution that has filed the affidavit described in ORS 475A.075, the property shall be sold subject to those interests. The judgment shall also order the proceeds of such sale applied in the following order:

(A) To the payment of the costs of the sale;

(B) To the satisfaction of the foreclosed liens, security interests and contracts in order of their priority; and

(c) If the court has determined that the property should be forfeited and has foreclosed one or more security interests, liens, contracts or other interests covering the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold [pursuant to] in a commercially reasonable manner at a sheriff’s sale or other sale authorized by the court. If any interest in the property was claimed by a financial institution or other claimant and the interest was upheld but not foreclosed, the property shall be sold subject to the interest. The sale of the property shall be held within such time as may be prescribed by the court following entry of the judgment. The judgment shall also order the proceeds of such sale to be first applied to the satisfaction of the foreclosed liens, security interests and contracts in the order of their priority and the excess, if any, to be awarded to the forfeiting agency for distribution as required by ORS 475A.120.[in the following order:]

[(A) To the payment of the costs of the sale;]

[(B) To the satisfaction of the foreclosed liens, security interests and contracts in the order of their priority; and]

[(C) The excess, if any, to the forfeiting agency to be disposed of as provided in ORS 475A.120.]

(d) If the court has determined that the property should be forfeited and has not foreclosed the interests of any party in the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure, and the court shall enter a judgment awarding the property to the forfeiting agency, subject to the interests of any claimants whose claims or affidavits were upheld by the court, and subject to the interests of any financial institutions that filed affidavits under ORS 475A.075 (2)(b), which shall remain in full force and effect.

(4) The forfeiting agency shall not be liable to any person as a consequence of obedience to a judgment directing conveyance to a financial institution.

(5) A copy of the judgment, including any judgment entered under the provisions of ORS 475A.055 (4), shall be sent by forfeiture counsel to the Asset Forfeiture Oversight Advisory Committee.

(6)[(a)] On entry of judgment for a claimant in any proceeding to forfeit property under this chapter, unless the court has foreclosed one or more security interests, liens or other interests covering the property, such property or interest in property shall be returned or conveyed immediately to the claimant designated by the court. The court, in the manner provided by ORCP 68, shall award costs, disbursements and attorney fees to the prevailing claimants and financial institutions, to be paid by the forfeiting agency.

[(b) If it appears that there was reasonable suspicion that the property was subject to forfeiture, the court shall cause a finding to be entered, and no claimant or financial institution shall be entitled to damages, nor is the person who made the seizure, the seizing or forfeiting agency or forfeiture counsel liable to suit or judgment on account of such seizure or action. An order directing seizure issued under ORS 475A.035 (4) shall constitute a finding of reasonable suspicion that the property was subject to forfeiture.]

(7) Nothing contained in this section shall prevent a claimant or financial institution from obtaining any deficiency to which such claimant or financial institution would otherwise be entitled.

(8) Nothing in this section or in ORS 475A.045 shall prevent a seizing agency from entering into an agreement with a claimant or other person for the reimbursement of the seizing agency for the costs and expenses relating to towing and storage of property or the cost of discharging any possessory chattel lien on the property arising under ORS 87.152 to 87.162 that attached to the property between seizure of the property and release or civil forfeiture of the property.

SECTION 12a. ORS 475A.110, as amended by section 12 of this 2001 Act, is amended to read:

475A.110. [A judgment of forfeiture shall recite the basis for the judgment.]

[(1) If no financial institutions have filed the affidavit described in ORS 475A.075 (2)(b), and if the court has failed to uphold the claim or affidavit of any other claimant, the effect of the judgment shall be that:]

[(a) Title to the property shall pass to the forfeiting agency free of any interest or encumbrance thereon in favor of any person who has been given notice;]

[(b) The forfeiting agency may transfer good and sufficient title to any subsequent purchaser or transferee, and the title shall be recognized by all courts, by the state, by the departments and agencies of the state, and by any political subdivision. In the case of real property, the forfeiting agency shall warrant the title against constitutional defect. A warranty under this section is limited to the purchase price of the real property; and]

[(c) Any department, agency or officer of the state or any political subdivision whose official functions include the issuance of certificates or other evidence of title shall be immune from civil or criminal liability when such issuance is pursuant to a judgment of forfeiture.]

[(2) If any affidavits are filed by financial institutions as provided in ORS 475A.075 (2)(b), or if any claimants file an appearance and claim as provided in ORS 475A.075 (2)(a) or an affidavit as provided in ORS 475A.075 (2)(c):]

[(a) The court shall foreclose all security interests, liens and vendor’s interests of financial institutions and claimants as to which the court determines that there is a legal or equitable basis for foreclosure; and]

[(b) All other interests applicable to the property, which are not foreclosed or otherwise eliminated through a judgment and decree of foreclosure, shall, if and to the extent that they are valid and subsisting, remain in effect, and the property shall remain subject to those interests upon completion of the civil forfeiture proceeding.]

[(3) Notwithstanding the provisions of this chapter or other law, if a financial institution or other person has filed an affidavit described in ORS 475A.075, or if the court has upheld the claim of any claimant, then as to each item of property seized:]

[(a) If the court has determined that the property should not be forfeited and has not foreclosed the security interests, liens or other interests covering the property, the court shall render judgment in favor of the owner of the property, the property shall be returned to the owner and all security interests, liens and other interests applicable to the property shall remain in effect as though the property had never been seized. Upon the return of the property to the owner, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure.]

[(b) If the court has determined that the property should not be forfeited and has foreclosed one or more interests covering the property, including security interests or liens covering the property or contracts for the transfer or conveyance of the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court within such time as may be prescribed by the court following entry of the judgment. If any interests covering the property have not been foreclosed, including any liens or security interests of a claimant whose claim has been upheld, or of a financial institution that has filed the affidavit described in ORS 475A.075, the property shall be sold subject to those interests. The judgment shall also order the proceeds of such sale applied in the following order:]

[(A) To the payment of the costs of the sale;]

[(B) To the satisfaction of the foreclosed liens, security interests and contracts in order of their priority; and]

[(C) The excess, if any, to the owner of the property.]

[(c) If the court has determined that the property should be forfeited and has foreclosed one or more security interests, liens, contracts or other interests covering the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold in a commercially reasonable manner at a sheriff’s sale or other sale authorized by the court. If any interest in the property was claimed by a financial institution or other claimant and the interest was upheld but not foreclosed, the property shall be sold subject to the interest. The sale of the property shall be held within such time as may be prescribed by the court following entry of the judgment. The judgment shall also order the proceeds of such sale to be first applied to the satisfaction of the foreclosed liens, security interests and contracts in the order of their priority and the excess, if any, to be awarded to the forfeiting agency for distribution as required by ORS 475A.120.]

[(d) If the court has determined that the property should be forfeited and has not foreclosed the interests of any party in the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure, and the court shall enter a judgment awarding the property to the forfeiting agency, subject to the interests of any claimants whose claims or affidavits were upheld by the court, and subject to the interests of any financial institutions that filed affidavits under ORS 475A.075 (2)(b), which shall remain in full force and effect.]

[(4) The forfeiting agency shall not be liable to any person as a consequence of obedience to a judgment directing conveyance to a financial institution.]

[(5) A copy of the judgment, including any judgment entered under the provisions of ORS 475A.055 (4), shall be sent by forfeiture counsel to the Asset Forfeiture Oversight Advisory Committee.]

[(6) On entry of judgment for a claimant in any proceeding to forfeit property under this chapter, unless the court has foreclosed one or more security interests, liens or other interests covering the property, such property or interest in property shall be returned or conveyed immediately to the claimant designated by the court. The court, in the manner provided by ORCP 68, shall award costs, disbursements and attorney fees to the prevailing claimants and financial institutions, to be paid by the forfeiting agency.]

[(7) Nothing contained in this section shall prevent a claimant or financial institution from obtaining any deficiency to which such claimant or financial institution would otherwise be entitled.]

[(8) Nothing in this section or in ORS 475A.045 shall prevent a seizing agency from entering into an agreement with a claimant or other person for the reimbursement of the seizing agency for the costs and expenses relating to towing and storage of property or the cost of discharging any possessory chattel lien on the property arising under ORS 87.152 to 87.162 that attached to the property between seizure of the property and release or civil forfeiture of the property.] A judgment of forfeiture shall recite the basis for the judgment.

(a) Title to the property shall pass to the forfeiting agency free of any interest or encumbrance thereon in favor of any person who has been given notice;

(2) If any affidavits are filed by financial institutions as provided in ORS 475A.075 (2)(b), or if any claimants file an appearance, claim and bond as provided in ORS 475A.075 (2)(a) or an affidavit as provided in ORS 475A.075 (2)(c):

(A) To the payment of the costs of the sale;

(B) To the satisfaction of the foreclosed liens, security interests and contracts in order of their priority; and

(C) The excess, if any, to the owner of the property.

(c) If the court has determined that the property should be forfeited and has foreclosed one or more security interests, liens, contracts or other interests covering the property, the seizing agency shall pay all costs and expenses relating to towing and storage of the property, and shall cause to be discharged any possessory chattel liens on the property arising under ORS 87.152 to 87.162 that have attached to the property since the seizure and the court shall order the property sold pursuant to a sheriff’s sale or other sale authorized by the court. If any interest in the property was claimed by a financial institution or other claimant and the interest was upheld but not foreclosed, the property shall be sold subject to the interest. The sale of the property shall be held within such time as may be prescribed by the court following entry of the judgment. The judgment shall also order the proceeds of such sale applied in the following order:

(A) To the payment of the costs of the sale;

(B) To the satisfaction of the foreclosed liens, security interests and contracts in the order of their priority; and

(C) The excess, if any, to the forfeiting agency to be disposed of as provided in ORS 475A.120.

(4) The forfeiting agency shall not be liable to any person as a consequence of obedience to a judgment directing conveyance to a financial institution.

(5) A copy of the judgment, including any judgment entered under the provisions of ORS 475A.055 (4), shall be sent by forfeiture counsel to the Asset Forfeiture Oversight Advisory Committee.

(6)(a) On entry of judgment for a claimant in any proceeding to forfeit property under this chapter, unless the court has foreclosed one or more security interests, liens or other interests covering the property, such property or interest in property shall be returned or conveyed immediately to the claimant designated by the court. The court, in the manner provided by ORCP 68, shall award costs, disbursements and attorney fees to the prevailing claimants and financial institutions, to be paid by the forfeiting agency.

(b) If it appears that there was reasonable suspicion that the property was subject to forfeiture, the court shall cause a finding to be entered, and no claimant or financial institution shall be entitled to damages, nor is the person who made the seizure, the seizing or forfeiting agency or forfeiture counsel liable to suit or judgment on account of such seizure or action. An order directing seizure issued under ORS 475A.035 (4) shall constitute a finding of reasonable suspicion that the property was subject to forfeiture.

(7) Nothing contained in this section shall prevent a claimant or financial institution from obtaining any deficiency to which such claimant or financial institution would otherwise be entitled.

SECTION 12b. The amendments to ORS 475A.110 by section 12a of this 2001 Act become operative on July 31, 2005.

SECTION 13. ORS 475A.115 is amended to read:

475A.115. Distribution of property or proceeds in accordance with this chapter shall be made equitably and may be pursuant to intergovernmental agreement under ORS chapter 190. Intergovernmental agreements providing for such distributions and in effect July 24, 1989, shall remain valid unless changed by the parties. An intergovernmental agreement providing for the distribution of forfeited property may not provide for a distribution that violates section 10, Article XV of the Oregon Constitution.

SECTION 13a. ORS 475A.115, as amended by section 13 of this 2001 Act, is amended to read:

475A.115. [Distribution of property or proceeds in accordance with this chapter shall be made equitably and may be pursuant to intergovernmental agreement under ORS chapter 190. Intergovernmental agreements providing for such distributions and in effect July 24, 1989, shall remain valid unless changed by the parties. An intergovernmental agreement providing for the distribution of forfeited property may not provide for a distribution that violates section 10, Article XV of the Oregon Constitution.] Distribution of property or proceeds in accordance with this chapter shall be made equitably and may be pursuant to intergovernmental agreement under ORS chapter 190. Intergovernmental agreements providing for such distributions and in effect July 24, 1989, shall remain valid unless changed by the parties.

SECTION 13b. The amendments to ORS 475A.115 by section 13a of this 2001 Act become operative on July 31, 2005.

SECTION 14. ORS 475A.120 is amended to read:

475A.120. [(1) After the forfeiture counsel distributes property under ORS 475A.110, the forfeiture counsel shall dispose of and distribute property when the forfeiting agency is not the state as follows:]

[(a) Costs shall first be paid from the property or, if the property is sold, from its proceeds. “Costs” as used in this section includes costs, disbursements and attorney fees as defined in ORCP 68 A and those special expenses, including hourly investigative costs and the provision of lawful currency, incurred by any seizing or forfeiting agency in investigating and prosecuting a specific case. “Costs” as used in this section also includes any expenses of servicing or maintaining the seized property under the provisions of ORS 475A.045 (3). These costs shall not include the expenditures made in connection with the ordinary maintenance and operation of the seizing or forfeiting agency.]

[(b) The balance of the property shall be credited to the general fund of the political jurisdiction that operates the forfeiting agency.]

[(c) Forfeiture proceeds received by a political subdivision, including amounts received under an intergovernmental agreement pursuant to the provisions of ORS 475A.125 (3), shall be used for enforcement of laws relating to the unlawful delivery, distribution, manufacture or possession of controlled substances, including but not limited to use of the proceeds for controlled substance crime prevention, drug intervention, drug treatment and drug education programs. Except as specifically provided by this paragraph, forfeiture proceeds under this paragraph may not be used for payment of the wages of peace officers, as defined in ORS 161.015, the purchase, construction, expansion, remodeling or maintenance of buildings, or the funding of all or part of any position that was in existence before August 23, 1993, and that was previously funded out of revenues other than forfeiture proceeds. Forfeiture proceeds may be used for the following:]

[(A) Payment of that portion of the wages of personnel other than peace officers who administer the forfeiture laws.]

[(B) Payment of the wages of peace officers performing supervisory duties for interagency drug enforcement task forces created by intergovernmental agreement.]

[(C) Payments to counties in the manner specified in paragraph (d) of this subsection.]

[(D) Payment of overtime wages of peace officers arising out of drug enforcement duties.]

[(d) If the political subdivision is not a county, the political subdivision shall enter into an agreement with the county pursuant to ORS chapter 190 to provide a portion for prosecution from these funds. Any intergovernmental agreements or ordinances providing for the distribution of forfeiture proceeds in effect on July 24, 1989, shall remain valid unless changed by the parties.]

[(e) Except as otherwise provided by intergovernmental agreement, the forfeiting agency may:]

[(A) Sell, lease, lend or transfer the property or proceeds to any federal, state or local law enforcement agency or district attorney.]

[(B) Sell the forfeited property by public or other commercially reasonable sale and pay from the proceeds the expenses of keeping and selling the property.]

[(C) Retain the property.]

[(D) With written authorization from the district attorney for the forfeiting agency’s jurisdiction, destroy any firearms or controlled substances.]

[(f) Notwithstanding paragraphs (c) and (d) of this subsection, before any distribution of funds under paragraph (d) of this subsection or use of funds in the manner specified by paragraph (c) of this subsection, the political subdivision shall deduct an amount equal to five percent of the proceeds credited to the general fund of the political subdivision under paragraph (b) of this subsection and deposit that amount in the Illegal Drug Cleanup Fund established by ORS 475.495 for the purposes specified in ORS 475.495 (5). The political subdivision shall sell as much property as may be needed to meet the requirements of this paragraph. Deposits to the Illegal Drug Cleanup Fund under this paragraph shall be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this paragraph.]

[(g) Notwithstanding paragraphs (c) and (d) of this subsection, before any distribution of funds under paragraph (d) of this subsection or use of funds in the manner specified by paragraph (c) of this subsection, the political subdivision shall deduct an amount equal to 2.5 percent of the proceeds credited to the general fund of the political subdivision under paragraph (b) of this subsection and deposit that amount in the Asset Forfeiture Oversight Account established by ORS 475A.160. The political subdivision shall sell as much property as may be needed to meet the requirements of this paragraph. Deposits to the Asset Forfeiture Oversight Account under this paragraph shall be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this paragraph.]

[(h) Notwithstanding paragraphs (c) and (d) of this subsection, growing equipment and laboratory equipment seized by a forfeiting agency that was used, or intended for use, in manufacturing of controlled substances, may be donated to a public school, community college or institution of higher education.]

[(2) The forfeiting agency, and any agency which receives forfeited property or proceeds from the sale of forfeited property, shall maintain written documentation of each sale, decision to retain, transfer or other disposition.]

[(3) Forfeiture counsel shall report each forfeiture to the Asset Forfeiture Oversight Advisory Committee as soon as reasonably possible after the conclusion of forfeiture proceedings, whether or not the forfeiture results in an entry of judgment under ORS 475A.110. The committee shall develop and make available forms for the purpose of reporting forfeitures.]

[(4) Law enforcement agencies shall supply to forfeiture counsel all information requested by forfeiture counsel necessary for the preparation of the report required by subsection (3) of this section.]

[(5) Political subdivisions of the state who receive forfeiture proceeds under this section shall submit a report to the Asset Forfeiture Oversight Advisory Committee for any year in which those proceeds are received. The committee shall develop and make available forms for the purpose of those reports. The forms shall require the political subdivision to report on how proceeds received by the political subdivision have been or will be used, and such other information as may be requested by the committee. Reports shall be submitted each December 15 for the last ending fiscal year of the political subdivision.]

[(6) This section applies only to forfeiture proceeds arising out of prohibited conduct as defined by ORS 475A.005 (11), and does not apply to proceeds from forfeiture based on other conduct.]

(1) Except as otherwise provided by intergovernmental agreement, the forfeiting agency may retain or sell any property awarded to the agency under ORS 475A.110. Amounts realized from any sale of forfeited property must be distributed as provided in this section. The forfeiting agency may destroy forfeited firearms or controlled substances if the district attorney for the forfeiting agency’s jurisdiction gives written authorization for destruction of the property.

(2) Property awarded to a forfeiting agency under ORS 475A.110 may not be used for law enforcement purposes. The property must be applied first to the actual and reasonable expenses incurred by the forfeiting agency in the forfeiture proceeding, including attorney fees, storage, maintenance, management and disposition of the forfeited property incurred in connection with the sale of the property. The amount applied under this subsection may not exceed 25 percent of the total proceeds in any single forfeiture.

(3) After application of the amounts required under subsection (2) of this section, the balance of the property awarded to the forfeiting agency under ORS 475A.110 must be distributed by the forfeiting agency in the manner provided by any intergovernmental agreement that applies to the property. After distribution of property under intergovernmental agreements, any property held by the forfeiting agency that is in the form of money must be deposited:

(a) In the Forfeiture Account established under ORS 475A.130, to be expended for the purposes specified in this section and ORS 475A.130, if the forfeiting agency to which the property is awarded is the state; and

(b) In a local forfeiture account established under section 25 of this 2001 Act, to be expended for the purposes specified in this section and section 25 of this 2001 Act, if the forfeiting agency to which the property is awarded is not the state.

(4)(a) Upon deposit of moneys in the Forfeiture Account under the provisions of subsection (3)(a) of this section, the state must deduct an amount equal to three percent of the value of all property received by the state, not to exceed $50,000 in any biennium, and deposit that amount, in the manner provided by subsection (8) of this section, in the Asset Forfeiture Oversight Account established by ORS 475A.160.

(b) Upon deposit of moneys in a local forfeiture account under the provisions of subsection (3)(b) of this section, the forfeiting agency must deduct an amount equal to 2.5 percent of the value of all property received by the forfeiting agency and deposit that amount, in the manner provided by subsection (8) of this section, in the Asset Forfeiture Oversight Account established by ORS 475A.160.

(5)(a) The deductions required by this subsection must be made from all moneys deposited in the Forfeiture Account or local forfeiture account that are attributable to forfeitures based on violation of, solicitation to violate, attempt to violate or conspiracy to violate any provisions of ORS 475.005 to 475.285 or 475.805 to 475.999.

(b) When the forfeiting agency is not the state, upon deposit of moneys described in paragraph (a) of this subsection, the forfeiting agency must deduct an amount equal to five percent of the value of all property received by the forfeiting agency from forfeitures described in paragraph (a) of this subsection and deposit that amount, in the manner provided by subsection (8) of this section, in the Illegal Drug Cleanup Fund established by ORS 475.495, to be used for the purposes specified in ORS 475.495 (5).

(c) When the state is the forfeiting agency, upon deposit of moneys described in paragraph (a) of this subsection, the state must deduct an amount equal to 10 percent of the value of all property received by the state from forfeitures described in paragraph (a) of this subsection, not to exceed $250,000 in any biennium, and deposit that amount, in the manner provided by subsection (8) of this section, in the Illegal Drug Cleanup Fund established by ORS 475.495, to be used for the purposes specified in ORS 475.495 (5).

(6) Notwithstanding subsection (1) of this section, a forfeiting agency must sell as much property as may be needed to fund the requirements of subsections (4) and (5) of this section.

(7) Notwithstanding any other provision of this section, growing equipment and laboratory equipment awarded to a forfeiting agency that was used in the manufacturing of controlled substances may be donated to a public school, community college or institution of higher education.

(8) Deposits in the Illegal Drug Cleanup Fund and the Asset Forfeiture Oversight Account under subsections (4) and (5) of this section must be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this subsection.

SECTION 14a. ORS 475A.120, as amended by section 14 of this 2001 Act, is amended to read:

475A.120. [(1) Except as otherwise provided by intergovernmental agreement, the forfeiting agency may retain or sell any property awarded to the agency under ORS 475A.110. Amounts realized from any sale of forfeited property must be distributed as provided in this section. The forfeiting agency may destroy forfeited firearms or controlled substances if the district attorney for the forfeiting agency’s jurisdiction gives written authorization for destruction of the property.]

[(2) Property awarded to a forfeiting agency under ORS 475A.110 may not be used for law enforcement purposes. The property must be applied first to the actual and reasonable expenses incurred by the forfeiting agency in the forfeiture proceeding, including attorney fees, storage, maintenance, management and disposition of the forfeited property incurred in connection with the sale of the property. The amount applied under this subsection may not exceed 25 percent of the total proceeds in any single forfeiture.]

[(3) After application of the amounts required under subsection (2) of this section, the balance of the property awarded to the forfeiting agency under ORS 475A.110 must be distributed by the forfeiting agency in the manner provided by any intergovernmental agreement that applies to the property. After distribution of property under intergovernmental agreements, any property held by the forfeiting agency that is in the form of money must be deposited:]

[(a) In the Forfeiture Account established under ORS 475A.130, to be expended for the purposes specified in this section and ORS 475A.130, if the forfeiting agency to which the property is awarded is the state; and]

[(b) In a local forfeiture account established under section 25 of this 2001 Act, to be expended for the purposes specified in this section and section 25 of this 2001 Act, if the forfeiting agency to which the property is awarded is not the state.]

[(4)(a) Upon deposit of moneys in the Forfeiture Account under the provisions of subsection (3)(a) of this section, the state must deduct an amount equal to three percent of the value of all property received by the state, not to exceed $50,000 in any biennium, and deposit that amount, in the manner provided by subsection (8) of this section, in the Asset Forfeiture Oversight Account established by ORS 475A.160.]

[(b) Upon deposit of moneys in a local forfeiture account under the provisions of subsection (3)(b) of this section, the forfeiting agency must deduct an amount equal to 2.5 percent of the value of all property received by the forfeiting agency and deposit that amount, in the manner provided by subsection (8) of this section, in the Asset Forfeiture Oversight Account established by ORS 475A.160.]

[(5)(a) The deductions required by this subsection must be made from all moneys deposited in the Forfeiture Account or local forfeiture account that are attributable to forfeitures based on violation of, solicitation to violate, attempt to violate or conspiracy to violate any provisions of ORS 475.005 to 475.285 or 475.805 to 475.999.]

[(b) When the forfeiting agency is not the state, upon deposit of moneys described in paragraph (a) of this subsection, the forfeiting agency must deduct an amount equal to five percent of the value of all property received by the forfeiting agency from forfeitures described in paragraph (a) of this subsection and deposit that amount, in the manner provided by subsection (8) of this section, in the Illegal Drug Cleanup Fund established by ORS 475.495, to be used for the purposes specified in ORS 475.495 (5).]

[(c) When the state is the forfeiting agency, upon deposit of moneys described in paragraph (a) of this subsection, the state must deduct an amount equal to 10 percent of the value of all property received by the state from forfeitures described in paragraph (a) of this subsection, not to exceed $250,000 in any biennium, and deposit that amount, in the manner provided by subsection (8) of this section, in the Illegal Drug Cleanup Fund established by ORS 475.495, to be used for the purposes specified in ORS 475.495 (5).]

[(6) Notwithstanding subsection (1) of this section, a forfeiting agency must sell as much property as may be needed to fund the requirements of subsections (4) and (5) of this section.]

[(7) Notwithstanding any other provision of this section, growing equipment and laboratory equipment awarded to a forfeiting agency that was used in the manufacturing of controlled substances may be donated to a public school, community college or institution of higher education.]

[(8) Deposits in the Illegal Drug Cleanup Fund and the Asset Forfeiture Oversight Account under subsections (4) and (5) of this section must be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this subsection.]

(1) After the forfeiture counsel distributes property under ORS 475A.110, the forfeiture counsel shall dispose of and distribute property when the forfeiting agency is not the state as follows:

(a) Costs shall first be paid from the property or, if the property is sold, from its proceeds. “Costs” as used in this section includes costs, disbursements and attorney fees as defined in ORCP 68 A and those special expenses, including hourly investigative costs and the provision of lawful currency, incurred by any seizing or forfeiting agency in investigating and prosecuting a specific case. “Costs” as used in this section also includes any expenses of servicing or maintaining the seized property under the provisions of ORS 475A.045 (3). These costs shall not include the expenditures made in connection with the ordinary maintenance and operation of the seizing or forfeiting agency.

(b) The balance of the property shall be credited to the general fund of the political jurisdiction that operates the forfeiting agency.

(c) Forfeiture proceeds received by a political subdivision, including amounts received under an intergovernmental agreement pursuant to the provisions of section 38 (3) of this 2001 Act, shall be used for enforcement of laws relating to the unlawful delivery, distribution, manufacture or possession of controlled substances, including but not limited to use of the proceeds for controlled substance crime prevention, drug intervention, drug treatment and drug education programs. Except as specifically provided by this paragraph, forfeiture proceeds under this paragraph may not be used for payment of the wages of peace officers, as defined in ORS 161.015, the purchase, construction, expansion, remodeling or maintenance of buildings, or the funding of all or part of any position that was in existence before August 23, 1993, and that was previously funded out of revenues other than forfeiture proceeds. Forfeiture proceeds may be used for the following:

(A) Payment of that portion of the wages of personnel other than peace officers who administer the forfeiture laws.

(B) Payment of the wages of peace officers performing supervisory duties for interagency drug enforcement task forces created by intergovernmental agreement.

(C) Payments to counties in the manner specified in paragraph (d) of this subsection.

(D) Payment of overtime wages of peace officers arising out of drug enforcement duties.

(d) If the political subdivision is not a county, the political subdivision shall enter into an agreement with the county pursuant to ORS chapter 190 to provide a portion for prosecution from these funds. Any intergovernmental agreements or ordinances providing for the distribution of forfeiture proceeds in effect on July 24, 1989, shall remain valid unless changed by the parties.

(e) Except as otherwise provided by intergovernmental agreement, the forfeiting agency may:

(A) Sell, lease, lend or transfer the property or proceeds to any federal, state or local law enforcement agency or district attorney.

(B) Sell the forfeited property by public or other commercially reasonable sale and pay from the proceeds the expenses of keeping and selling the property.

(C) Retain the property.

(D) With written authorization from the district attorney for the forfeiting agency’s jurisdiction, destroy any firearms or controlled substances.

(f) Notwithstanding paragraphs (c) and (d) of this subsection, before any distribution of funds under paragraph (d) of this subsection or use of funds in the manner specified by paragraph (c) of this subsection, the political subdivision shall deduct an amount equal to five percent of the proceeds credited to the general fund of the political subdivision under paragraph (b) of this subsection and deposit that amount in the Illegal Drug Cleanup Fund established by ORS 475.495 for the purposes specified in ORS 475.495 (5). The political subdivision shall sell as much property as may be needed to meet the requirements of this paragraph. Deposits to the Illegal Drug Cleanup Fund under this paragraph shall be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this paragraph.

(g) Notwithstanding paragraphs (c) and (d) of this subsection, before any distribution of funds under paragraph (d) of this subsection or use of funds in the manner specified by paragraph (c) of this subsection, the political subdivision shall deduct an amount equal to 2.5 percent of the proceeds credited to the general fund of the political subdivision under paragraph (b) of this subsection and deposit that amount in the Asset Forfeiture Oversight Account established by ORS 475A.160. The political subdivision shall sell as much property as may be needed to meet the requirements of this paragraph. Deposits to the Asset Forfeiture Oversight Account under this paragraph shall be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this paragraph.

(h) Notwithstanding paragraphs (c) and (d) of this subsection, growing equipment and laboratory equipment seized by a forfeiting agency that was used, or intended for use, in manufacturing of controlled substances, may be donated to a public school, community college or institution of higher education.

(2) The forfeiting agency, and any agency which receives forfeited property or proceeds from the sale of forfeited property, shall maintain written documentation of each sale, decision to retain, transfer or other disposition.

(3) Forfeiture counsel shall report each forfeiture to the Asset Forfeiture Oversight Advisory Committee as soon as reasonably possible after the conclusion of forfeiture proceedings, whether or not the forfeiture results in an entry of judgment under ORS 475A.110. The committee shall develop and make available forms for the purpose of reporting forfeitures.

(4) Law enforcement agencies shall supply to forfeiture counsel all information requested by forfeiture counsel necessary for the preparation of the report required by subsection (3) of this section.

(5) Political subdivisions of the state who receive forfeiture proceeds under this section shall submit a report to the Asset Forfeiture Oversight Advisory Committee for any year in which those proceeds are received. The committee shall develop and make available forms for the purpose of those reports. The forms shall require the political subdivision to report on how proceeds received by the political subdivision have been or will be used, and such other information as may be requested by the committee. Reports shall be submitted each December 15 for the last ending fiscal year of the political subdivision.

(6) This section applies only to forfeiture proceeds arising out of prohibited conduct as defined by ORS 475A.005 (11), and does not apply to proceeds from forfeiture based on other conduct.

SECTION 14b. The amendments to ORS 475A.120 by section 14a of this 2001 Act become operative on July 31, 2005.

SECTION 15. ORS 475A.130 is amended to read:

475A.130. (1) The [Special Crime and] Forfeiture Account is established in the General Fund of the State Treasury. The account shall consist of all forfeiture proceeds received or retained by agencies of the state by reason of civil forfeitures conducted under this chapter, except as otherwise provided by ORS [475A.125] 475A.120. [All moneys in the account are continuously appropriated and shall be used for enforcement of laws relating to the unlawful delivery, distribution, manufacture or possession of controlled substances, including but not limited to use of the proceeds for controlled substance crime prevention, drug intervention, drug treatment and drug education programs. Except as specifically provided by this section, forfeiture proceeds in the Special Crime and Forfeiture Account may not be used for payment of the wages of peace officers, as defined in ORS 161.015, the purchase, construction, expansion, remodeling or maintenance of buildings, or the funding of all or part of any position that was in existence before August 23, 1993, and that was previously funded out of revenues other than forfeiture proceeds. Forfeiture proceeds may be used for the following:]

[(1) Payment of that portion of the wages of personnel other than peace officers who administer the forfeiture laws.]

[(2) Payment of the wages of peace officers performing supervisory duties for interagency drug enforcement task forces created by intergovernmental agreement.]

[(3) Payment of overtime wages of peace officers arising out of drug enforcement duties.]

(2) Before expenditure of any moneys from the Forfeiture Account, the state must deduct from the Forfeiture Account all amounts required by ORS 475A.120 (4)(a) and (5)(b). Moneys in the account may not be used for law enforcement purposes, and must be used for drug treatment unless another use is specifically provided by law.

SECTION 15a. ORS 475A.130, as amended by section 15 of this 2001 Act, is amended to read:

475A.130. [(1) The Forfeiture Account is established in the General Fund of the State Treasury. The account shall consist of all forfeiture proceeds received or retained by agencies of the state by reason of civil forfeitures conducted under this chapter, except as otherwise provided by ORS 475A.120.]

[(2) Before expenditure of any moneys from the Forfeiture Account, the state must deduct from the Forfeiture Account all amounts required by ORS 475A.120 (4)(a) and (5)(b). Moneys in the account may not be used for law enforcement purposes, and must be used for drug treatment unless another use is specifically provided by law.] The Special Crime and Forfeiture Account is established in the General Fund of the State Treasury. The account shall consist of all forfeiture proceeds received or retained by agencies of the state under this chapter, except as otherwise provided by section 38 of this 2001 Act. All moneys in the account are continuously appropriated and shall be used for enforcement of laws relating to the unlawful delivery, distribution, manufacture or possession of controlled substances, including but not limited to use of the proceeds for controlled substance crime prevention, drug intervention, drug treatment and drug education programs. Except as specifically provided by this section, forfeiture proceeds in the Special Crime and Forfeiture Account may not be used for payment of the wages of peace officers, as defined in ORS 161.015, the purchase, construction, expansion, remodeling or maintenance of buildings, or the funding of all or part of any position that was in existence before August 23, 1993, and that was previously funded out of revenues other than forfeiture proceeds. Forfeiture proceeds may be used for the following:

(1) Payment of that portion of the wages of personnel other than peace officers who administer the forfeiture laws.

(2) Payment of the wages of peace officers performing supervisory duties for interagency drug enforcement task forces created by intergovernmental agreement.

(3) Payment of overtime wages of peace officers arising out of drug enforcement duties.

SECTION 15b. The amendments to ORS 475A.130 by section 15a of this 2001 Act become operative on July 31, 2005.

SECTION 16. ORS 475A.160 is amended to read:

475A.160. (1) The Asset Forfeiture Oversight Account is established in the State Treasury separate and distinct from the General Fund.

(2) The following moneys shall be deposited into the State Treasury and credited to the Asset Forfeiture Oversight Account:

(a) Moneys received from a state agency or political subdivision under the provisions of ORS 475A.120 [and 475A.125]; and

(b) Any other moneys appropriated to the Asset Forfeiture Oversight Account.

(3) The State Treasurer may invest and reinvest moneys in the Asset Forfeiture Oversight Account in the manner provided by law. Interest earned by the account shall be credited to the account.

(4) The moneys in the Asset Forfeiture Oversight Account are continuously appropriated to the Oregon Criminal Justice Commission to be used for the purposes specified in ORS 475A.155.

(5) If at the end of a biennium the Asset Forfeiture Oversight Account has received amounts under the provisions of ORS 475A.120 [(1)(g) and 475A.125 (6)] that are in excess of 115 percent of the biennial expenditure limitation established for expenditures from the account, the Oregon Criminal Justice Commission shall refund to each state agency or political subdivision that made payment into the account during the biennium a pro rata share of the amounts that are in excess of 115 percent of the expenditure limitation for the account, based on the amount of forfeiture proceeds paid into the account by the state agency or political subdivision. The commission is not required to issue any refund under this subsection if the amount of the refund is less than $25.

SECTION 16a. ORS 475A.160, as amended by section 16 of this 2001 Act, is amended to read:

475A.160. [(1) The Asset Forfeiture Oversight Account is established in the State Treasury separate and distinct from the General Fund.]

[(2) The following moneys shall be deposited into the State Treasury and credited to the Asset Forfeiture Oversight Account:]

[(a) Moneys received from a state agency or political subdivision under the provisions of ORS 475A.120; and]

[(b) Any other moneys appropriated to the Asset Forfeiture Oversight Account.]

[(3) The State Treasurer may invest and reinvest moneys in the Asset Forfeiture Oversight Account in the manner provided by law. Interest earned by the account shall be credited to the account.]

[(4) The moneys in the Asset Forfeiture Oversight Account are continuously appropriated to the Oregon Criminal Justice Commission to be used for the purposes specified in ORS 475A.155.]

[(5) If at the end of a biennium the Asset Forfeiture Oversight Account has received amounts under the provisions of ORS 475A.120 that are in excess of 115 percent of the biennial expenditure limitation established for expenditures from the account, the Oregon Criminal Justice Commission shall refund to each state agency or political subdivision that made payment into the account during the biennium a pro rata share of the amounts that are in excess of 115 percent of the expenditure limitation for the account, based on the amount of forfeiture proceeds paid into the account by the state agency or political subdivision. The commission is not required to issue any refund under this subsection if the amount of the refund is less than $25.]

(1) The Asset Forfeiture Oversight Account is established in the State Treasury separate and distinct from the General Fund.

(2) The following moneys shall be deposited into the State Treasury and credited to the Asset Forfeiture Oversight Account:

(a) Moneys received from a state agency or political subdivision under the provisions of ORS 475A.120 and section 38 of this 2001 Act; and

(b) Any other moneys appropriated to the Asset Forfeiture Oversight Account.

(3) The State Treasurer may invest and reinvest moneys in the Asset Forfeiture Oversight Account in the manner provided by law. Interest earned by the account shall be credited to the account.

(4) The moneys in the Asset Forfeiture Oversight Account are continuously appropriated to the Oregon Criminal Justice Commission to be used for the purposes specified in ORS 475A.155.

(5) If at the end of a biennium the Asset Forfeiture Oversight Account has received amounts under the provisions of ORS 475A.120 (1)(g) and section 38 (6) of this 2001 Act that are in excess of 115 percent of the biennial expenditure limitation established for expenditures from the account, the Oregon Criminal Justice Commission shall refund to each state agency or political subdivision that made payment into the account during the biennium a pro rata share of the amounts that are in excess of 115 percent of the expenditure limitation for the account, based on the amount of forfeiture proceeds paid into the account by the state agency or political subdivision. The commission is not required to issue any refund under this subsection if the amount of the refund is less than $25.

SECTION 16b. The amendments to ORS 475A.160 by section 16a of this 2001 Act become operative on July 31, 2005.

SECTION 17. ORS 647.155 is amended to read:

647.155. [(1) The following are subject to seizure and forfeiture in the same manner as the proceeds of prohibited conduct under ORS chapter 475A:]

[(a) All raw materials and equipment that are used, or intended for use, in providing, manufacturing and delivering items bearing a counterfeit mark or services identified by a counterfeit mark;]

[(b) All conveyances that are used, or intended for use, to transport items bearing a counterfeit mark;]

[(c) All books, records, computers and data that are used or intended for use in the production, manufacture, sale or delivery of items bearing a counterfeit mark or services identified by a counterfeit mark; and]

[(d) All moneys, negotiable instruments, balances in deposit or other accounts, securities or other things of value furnished or intended to be furnished by any person in the course of activity constituting a violation of ORS 647.140, 647.145 or 647.150.]

(1) Violation of ORS 647.140, 647.145 or 647.150 is prohibited conduct for the purposes of ORS chapter 475A, and any proceeds or instrumentalities of a violation of ORS 647.140, 647.145 or 647.150 may be seized for civil forfeiture in the manner provided by ORS chapter 475A.

(2) Items bearing a counterfeit mark are subject to seizure and disposition as provided in ORS 133.525 to 133.703. However, if the registrant so requests, the agency holding the seized items shall release the seized items to the registrant or make such other disposition as the registrant directs. If the registrant does not direct disposition of the seized items, the agency shall destroy the items.

SECTION 17a. ORS 647.155, as amended by section 17 of this 2001 Act, is amended to read:

647.155. [(1) Violation of ORS 647.140, 647.145 or 647.150 is prohibited conduct for the purposes of ORS chapter 475A, and any proceeds or instrumentalities of a violation of ORS 647.140, 647.145 or 647.150 may be seized for civil forfeiture in the manner provided by ORS chapter 475A.]

[(2) Items bearing a counterfeit mark are subject to seizure and disposition as provided in ORS 133.525 to 133.703. However, if the registrant so requests, the agency holding the seized items shall release the seized items to the registrant or make such other disposition as the registrant directs. If the registrant does not direct disposition of the seized items, the agency shall destroy the items.]

(1) The following are subject to seizure and forfeiture in the same manner as the proceeds of prohibited conduct under ORS chapter 475A:

(a) All raw materials and equipment that are used, or intended for use, in providing, manufacturing and delivering items bearing a counterfeit mark or services identified by a counterfeit mark;

(b) All conveyances that are used, or intended for use, to transport items bearing a counterfeit mark;

(c) All books, records, computers and data that are used or intended for use in the production, manufacture, sale or delivery of items bearing a counterfeit mark or services identified by a counterfeit mark; and

(d) All moneys, negotiable instruments, balances in deposit or other accounts, securities or other things of value furnished or intended to be furnished by any person in the course of activity constituting a violation of ORS 647.140, 647.145 or 647.150.

SECTION 17b. The amendments to ORS 647.155 by section 17a of this 2001 Act become operative on July 31, 2005.

SECTION 18. ORS 809.730 is amended to read:

809.730. (1) A motor vehicle may be seized [and forfeited] for civil forfeiture if the person operating the vehicle is arrested or issued a citation for driving while under the influence of intoxicants in violation of ORS 813.010 and the person, within three years prior to the arrest or issuance of the citation, has been convicted of or forfeited bail or security for:

(a) Driving while under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction; or

(b) Murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle in this state or in another jurisdiction.

(2) All seizure and civil forfeiture proceedings under this section shall be conducted in accordance with ORS chapter 475A.

SECTION 18a. ORS 809.730, as amended by section 18 of this 2001 Act, is amended to read:

809.730. [(1) A motor vehicle may be seized for civil forfeiture if the person operating the vehicle is arrested or issued a citation for driving while under the influence of intoxicants in violation of ORS 813.010 and the person, within three years prior to the arrest or issuance of the citation, has been convicted of or forfeited bail or security for:]

[(a) Driving while under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction; or]

[(b) Murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle in this state or in another jurisdiction.]

[(2) All seizure and civil forfeiture proceedings under this section shall be conducted in accordance with ORS chapter 475A.]

(1) A motor vehicle may be seized and forfeited if the person operating the vehicle is arrested or issued a citation for driving while under the influence of intoxicants in violation of ORS 813.010 and the person, within three years prior to the arrest or issuance of the citation, has been convicted of:

(a) Driving while under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction; or

(b) Murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle in this state or in another jurisdiction.

(2) All seizure and forfeiture proceedings under this section shall be conducted in accordance with ORS chapter 475A.

SECTION 18b. The amendments to ORS 809.730 by section 18a of this 2001 Act become operative on July 31, 2005.

SECTION 19. ORS 475.495 is amended to read:

475.495. (1) The Illegal Drug Cleanup Fund is established separate and distinct from the General Fund in the State Treasury.

(2) The following moneys shall be deposited into the State Treasury and credited to the Illegal Drug Cleanup Fund:

(a) Moneys recovered or otherwise received from responsible parties for cleanup costs;

(b) Moneys received from a state agency, local government unit or any agency of a local government unit for cleanup of illegal drug manufacturing sites, including moneys received from forfeiture proceeds under the provisions of ORS 475A.120 [and 475A.125];

(d) Any penalty, fine or punitive damages recovered under ORS 475.435, 475.455 or 475.485.

(3) The State Treasurer may invest and reinvest moneys in the Illegal Drug Cleanup Fund in the manner provided by law. Interest earned by the fund shall be credited to the fund.

(4) The moneys in the Illegal Drug Cleanup Fund are appropriated continuously to the Department of Environmental Quality to be used as provided for in subsection (5) of this section.

(5) Moneys in the Illegal Drug Cleanup Fund may be used for the following purposes:

(a) Payment of the state’s cleanup costs; and

(b) Funding any action or activity authorized by ORS 475.415 to 475.455, 475.475 and 475.485.

(6) The department may not expend more than $250,000 in each biennium of the forfeiture proceeds that are paid into the Illegal Drug Cleanup Fund by political subdivisions under the provisions of ORS 475A.120. If at the end of a biennium more than $250,000 has been paid into the Illegal Drug Cleanup Fund under the provisions of ORS 475A.120, the department shall refund to each political subdivision that made payments into the fund a pro rata share of the excess amount, based on the amount of forfeiture proceeds paid into the fund by the political subdivision.

SECTION 19a. ORS 475.495, as amended by section 19 of this 2001 Act, is amended to read:

475.495. [(1) The Illegal Drug Cleanup Fund is established separate and distinct from the General Fund in the State Treasury.]

[(2) The following moneys shall be deposited into the State Treasury and credited to the Illegal Drug Cleanup Fund:]

[(a) Moneys recovered or otherwise received from responsible parties for cleanup costs;]

[(b) Moneys received from a state agency, local government unit or any agency of a local government unit for cleanup of illegal drug manufacturing sites, including moneys received from forfeiture proceeds under the provisions of ORS 475A.120;]

[(c) Moneys received from the federal government for cleanup of illegal drug manufacturing sites; and]

[(d) Any penalty, fine or punitive damages recovered under ORS 475.435, 475.455 or 475.485.]

[(3) The State Treasurer may invest and reinvest moneys in the Illegal Drug Cleanup Fund in the manner provided by law. Interest earned by the fund shall be credited to the fund.]

[(4) The moneys in the Illegal Drug Cleanup Fund are appropriated continuously to the Department of Environmental Quality to be used as provided for in subsection (5) of this section.]

[(5) Moneys in the Illegal Drug Cleanup Fund may be used for the following purposes:]

[(a) Payment of the state’s cleanup costs; and]

[(b) Funding any action or activity authorized by ORS 475.415 to 475.455, 475.475 and 475.485.]

[(6) The department may not expend more than $250,000 in each biennium of the forfeiture proceeds that are paid into the Illegal Drug Cleanup Fund by political subdivisions under the provisions of ORS 475A.120. If at the end of a biennium more than $250,000 has been paid into the Illegal Drug Cleanup Fund under the provisions of ORS 475A.120, the department shall refund to each political subdivision that made payments into the fund a pro rata share of the excess amount, based on the amount of forfeiture proceeds paid into the fund by the political subdivision.]

(1) The Illegal Drug Cleanup Fund is established separate and distinct from the General Fund in the State Treasury.

(2) The following moneys shall be deposited into the State Treasury and credited to the Illegal Drug Cleanup Fund:

(a) Moneys recovered or otherwise received from responsible parties for cleanup costs;

(c) Moneys received from the federal government for cleanup of illegal drug manufacturing sites; and

(d) Any penalty, fine or punitive damages recovered under ORS 475.435, 475.455 or 475.485.

(3) The State Treasurer may invest and reinvest moneys in the Illegal Drug Cleanup Fund in the manner provided by law. Interest earned by the fund shall be credited to the fund.

(4) The moneys in the Illegal Drug Cleanup Fund are appropriated continuously to the Department of Environmental Quality to be used as provided for in subsection (5) of this section.

(5) Moneys in the Illegal Drug Cleanup Fund may be used for the following purposes:

(a) Payment of the state’s cleanup costs; and

(b) Funding any action or activity authorized by ORS 475.415 to 475.455, 475.475 and 475.485.

SECTION 19b. The amendments to ORS 475.495 by section 19a of this 2001 Act become operative on July 31, 2005.

SECTION 20. ORS 475A.040 is amended to read:

475A.040. If, prior to the commencement of civil forfeiture proceedings under ORS 475A.075, it is determined that the inventory prepared pursuant to ORS 475A.035 and 475A.055 is substantially incorrect, the seizing agency shall cause the inventory to be amended. The substance of the amendment shall be clearly noted on the face of the inventory. The amended inventory shall be served with any summons and complaint served under ORS 475A.075. If the amendment occurs after the commencement of civil forfeiture proceedings, the amended inventory shall be served on all persons previously served with summons and complaint under ORS 475A.075.

SECTION 20a. ORS 475A.040, as amended by section 20 of this 2001 Act, is amended to read:

475A.040. [If, prior to the commencement of civil forfeiture proceedings under ORS 475A.075, it is determined that the inventory prepared pursuant to ORS 475A.035 and 475A.055 is substantially incorrect, the seizing agency shall cause the inventory to be amended. The substance of the amendment shall be clearly noted on the face of the inventory. The amended inventory shall be served with any summons and complaint served under ORS 475A.075. If the amendment occurs after the commencement of civil forfeiture proceedings, the amended inventory shall be served on all persons previously served with summons and complaint under ORS 475A.075.] If, prior to the commencement of forfeiture proceedings under ORS 475A.075, it is determined that the inventory prepared pursuant to ORS 475A.035 and 475A.055 is substantially incorrect, the seizing agency shall cause the inventory to be amended. The substance of the amendment shall be clearly noted on the face of the inventory. The amended inventory shall be served with any summons and complaint served under ORS 475A.075. If the amendment occurs after the commencement of forfeiture proceedings, the amended inventory shall be served on all persons previously served with summons and complaint under ORS 475A.075.

SECTION 20b. The amendments to ORS 475A.040 by section 20a of this 2001 Act become operative on July 31, 2005.

SECTION 21. ORS 475A.050 is amended to read:

475A.050. (1) Whenever the state or a political subdivision intends to forfeit any real property, the state or political subdivision may have recorded by the county clerk or other recorder of deeds of every county in which any part of the premises or real property lies a notice of intent to forfeit real property under ORS 205.246. The notice shall contain the legal description of the real property, the common address if any and the attorney responsible for the forfeiture action. From the time of recording the notice, and from that time only, the intent to forfeit is notice to purchasers and encumbrances of the rights and equities in the premises of the party filing the notice. The notice shall be recorded in the same book and in the same manner in which mortgages are recorded and may be discharged in like manner as mortgages are discharged, either by such party or the attorney signing the notice.

(2) Unless otherwise prescribed by law, a party recording a notice of intent to forfeit shall use substantially the following form:

______________________________________________________________________________

NOTICE OF INTENT

TO FORFEIT

Pursuant to ORS 475A.050, the undersigned states:

That I, ______________ do declare that it is my intent to initiate civil forfeiture proceedings on the following described real property:

1. The description of the real property to be affected is:

_________________________________________

2. The common address, if any, is:

_________________________________________

Dated this ____ day of ________ ,____.

This notice of intent to file civil forfeiture will expire on ___ day of________, ____ absent future filings.

Name of agency seeking forfeiture

______________________________

Name of Attorney

______________________________

Address

______________________________

Phone Number

______________________________

State of Oregon )

) ss.

County of_______ )

The foregoing instrument was acknowledged before me this __ day of ________, ____.

________________________

Notary Public for Oregon

My commission expires ________.

______________________________________________________________________________

(3) The notice of intent to forfeit property shall expire 30 days after the date of filing absent future filings to perfect.

SECTION 21a. ORS 475A.050, as amended by section 21 of this 2001 Act, is amended to read:

475A.050. [(1) Whenever the state or a political subdivision intends to forfeit any real property, the state or political subdivision may have recorded by the county clerk or other recorder of deeds of every county in which any part of the premises or real property lies a notice of intent to forfeit real property under ORS 205.246. The notice shall contain the legal description of the real property, the common address if any and the attorney responsible for the forfeiture action. From the time of recording the notice, and from that time only, the intent to forfeit is notice to purchasers and encumbrances of the rights and equities in the premises of the party filing the notice. The notice shall be recorded in the same book and in the same manner in which mortgages are recorded and may be discharged in like manner as mortgages are discharged, either by such party or the attorney signing the notice.]

[(2) Unless otherwise prescribed by law, a party recording a notice of intent to forfeit shall use substantially the following form:]

[____________________________________________________________________________]

NOTICE OF INTENT

TO FORFEIT

Pursuant to ORS 475A.050, the undersigned states:

That I, ______________ do declare that it is my intent to initiate civil forfeiture proceedings on the following described real property:

1. The description of the real property to be affected is:

__________________________________________

2. The common address, if any, is:

__________________________________________

Dated this ____ day of ________, ____.

This notice of intent to file civil forfeiture will expire on ___ day of ________, ____ absent future filings.

Name of agency seeking forfeiture

_____________________________

Name of Attorney

_____________________________

Address

_____________________________

Phone Number

_____________________________

State of Oregon )

) ss.

County of_______ )

The foregoing instrument was acknowledged before me this ___ day of ________, ____.

__________________

Notary Public for Oregon

My commission expires _______.

[____________________________________________________________________________]

[(3) The notice of intent to forfeit property shall expire 30 days after the date of filing absent future filings to perfect.]

(1) Whenever the state or a political subdivision intends to forfeit any real property, the state or political subdivision may have recorded by the county clerk or other recorder of deeds of every county in which any part of the premises or real property lies a notice of intent to forfeit real property under ORS 205.246. The notice shall contain the legal description of the real property, the common address if any and the attorney responsible for the forfeiture action. From the time of recording the notice, and from that time only, the intent to forfeit is notice to purchasers and encumbrances of the rights and equities in the premises of the party filing the notice. The notice shall be recorded in the same book and in the same manner in which mortgages are recorded and may be discharged in like manner as mortgages are discharged, either by such party or the attorney signing the notice.

(2) Unless otherwise prescribed by law, a party recording a notice of intent to forfeit shall use substantially the following form:

____________________________________________________________________________

NOTICE OF INTENT

TO FORFEIT

Pursuant to ORS 475A.050, the undersigned states:

That I, _____________ do declare that it is my intent to initiate forfeiture proceedings on the following described real property:

1. The description of the real property to be affected is:

____________________________________________

2. The common address, if any, is:

____________________________________________

Dated this _____ day of ________, ____.

This notice of intent to file forfeiture will expire on ___ day of ________, ____ absent future filings.

Name of agency seeking forfeiture

______________________________

Name of Attorney

______________________________

Address

______________________________

Phone Number

______________________________

State of Oregon )

) ss.

County of_______ )

The foregoing instrument was acknowledged before me this ___ day of ________, ____.

________________

Notary Public for Oregon

My commission expires_______.

____________________________________________________________________________

(3) The notice of intent to forfeit property shall expire 30 days after the date of filing absent future filings to perfect.

SECTION 21b. The amendments to ORS 475A.050 by section 21a of this 2001 Act become operative on July 31, 2005.

SECTION 22. ORS 475A.060 is amended to read:

475A.060. (1) A person claiming an interest in property seized pursuant to this chapter may file a petition for an expedited hearing within 15 days after notice of seizure for civil forfeiture or within such further time as the court may allow for good cause shown.

(2) A petition for an expedited hearing shall contain a claim if no claim has previously been filed. The petition shall reflect whether the petitioner seeks one or more of the following:

(a) A determination at the hearing of any of the affirmative defenses provided for in ORS 475A.085.

(b) An order restoring custody of seized property to the petitioner during the pendency of the proceedings if the court finds, by a preponderance of the evidence, that it is probable that the property will remain available for civil forfeiture at the completion of the proceedings and that there is a reasonable possibility that the petitioner will ultimately prevail in the proceeding.

(3) A person filing a petition under this section shall serve a copy of the petition on all persons known to have an interest. Service shall be accomplished as provided in ORCP 7D. Service by publication shall not be required prior to an expedited hearing.

(4) A hearing shall be held within 15 days after service of all persons known to have an interest or at such later time as the court may allow for good cause shown. The hearing shall be limited to:

(a) Deciding whether claimant can prove an affirmative defense provided for in ORS 475A.085 if the petitioner asserts one of those defenses;

(b) Determining whether an order should be entered directing the return of the seized property to the claimant during the pendency of the hearing; and

(c) Determining whether an order should be entered directing the appointment of a receiver to manage property seized pursuant to this chapter pending a final determination as to the disposition of the property, if the petitioner or the forfeiting agency requests that order.

(5) If the petition is denied, and evidence that was not previously available to the petitioner is discovered, the petitioner may file a new petition under this section at any time prior to a trial under ORS 475A.075. The new petition shall be served as provided under subsection (3) of this section. A hearing on the petition shall be conducted as provided in ORS 475A.065.

(6) The parties to a proceeding under ORS 475A.075 may at any time stipulate to the entry of an order restoring custody of seized property to a petitioner who claims an interest in the property. The order shall comply with the requirements of ORS 475A.070 (1).

SECTION 22a. ORS 475A.060, as amended by section 22 of this 2001 Act, is amended to read:

475A.060. [(1) A person claiming an interest in property seized pursuant to this chapter may file a petition for an expedited hearing within 15 days after notice of seizure for civil forfeiture or within such further time as the court may allow for good cause shown.]

[(2) A petition for an expedited hearing shall contain a claim if no claim has previously been filed. The petition shall reflect whether the petitioner seeks one or more of the following:]

[(a) A determination at the hearing of any of the affirmative defenses provided for in ORS 475A.085.]

[(b) An order restoring custody of seized property to the petitioner during the pendency of the proceedings if the court finds, by a preponderance of the evidence, that it is probable that the property will remain available for civil forfeiture at the completion of the proceedings and that there is a reasonable possibility that the petitioner will ultimately prevail in the proceeding.]

[(c) Appointment of a receiver.]

[(3) A person filing a petition under this section shall serve a copy of the petition on all persons known to have an interest. Service shall be accomplished as provided in ORCP 7D. Service by publication shall not be required prior to an expedited hearing.]

[(4) A hearing shall be held within 15 days after service of all persons known to have an interest or at such later time as the court may allow for good cause shown. The hearing shall be limited to:]

[(a) Deciding whether claimant can prove an affirmative defense provided for in ORS 475A.085 if the petitioner asserts one of those defenses;]

[(b) Determining whether an order should be entered directing the return of the seized property to the claimant during the pendency of the hearing; and]

[(c) Determining whether an order should be entered directing the appointment of a receiver to manage property seized pursuant to this chapter pending a final determination as to the disposition of the property, if the petitioner or the forfeiting agency requests that order.]

[(5) If the petition is denied, and evidence that was not previously available to the petitioner is discovered, the petitioner may file a new petition under this section at any time prior to a trial under ORS 475A.075. The new petition shall be served as provided under subsection (3) of this section. A hearing on the petition shall be conducted as provided in ORS 475A.065.]

[(6) The parties to a proceeding under ORS 475A.075 may at any time stipulate to the entry of an order restoring custody of seized property to a petitioner who claims an interest in the property. The order shall comply with the requirements of ORS 475A.070 (1).]

(1) A person claiming an interest in property seized pursuant to this chapter may file a petition for an expedited hearing within 15 days after notice of seizure for forfeiture or within such further time as the court may allow for good cause shown.

(2) A petition for an expedited hearing shall contain a claim if no claim has previously been filed. The petition shall reflect whether the petitioner seeks one or more of the following:

(a) A determination at the hearing of any of the affirmative defenses provided for in ORS 475A.085.

(b) An order restoring custody of seized property to the petitioner during the pendency of the proceedings if the court finds, by a preponderance of the evidence, that it is probable that the property will remain available for forfeiture at the completion of the proceedings and that there is a reasonable possibility that the petitioner will ultimately prevail in the proceeding.

(c) Appointment of a receiver.

(4) A hearing shall be held within 15 days after service of all persons known to have an interest or at such later time as the court may allow for good cause shown. The hearing shall be limited to:

(a) Deciding whether claimant can prove an affirmative defense provided for in ORS 475A.085 if the petitioner asserts one of those defenses;

(b) Determining whether an order should be entered directing the return of the seized property to the claimant during the pendency of the hearing; and

SECTION 22b. The amendments to ORS 475A.060 by section 22a of this 2001 Act become operative on July 31, 2005.

SECTION 23. ORS 475A.155 is amended to read:

475A.155. (1) The Asset Forfeiture Oversight Advisory Committee is created. The committee consists of 12 members to be appointed as follows:

(a) The President of the Senate and the Speaker of the House of Representatives shall appoint six legislators to the committee. Three shall be Senators appointed by the President. Three shall be Representatives appointed by the Speaker.

(b) The Governor shall appoint three members to the committee.

(2) The term of a legislative member of the committee shall be two years. The term of all other members shall be four years. Members of the committee may be reappointed. If a vacancy occurs on the committee for any reason during the term of membership, the official who appointed the member to the vacant position shall appoint a new member to serve the remainder of the term. A member of the committee may be removed from the committee at any time by the official who appointed the member.

(3)(a) The members of the committee shall select from among themselves a chairperson and vice chairperson.

(b) The committee shall meet at such times and places as determined by the chairperson.

(4) Legislative members shall be entitled to payment of compensation and expense reimbursement under ORS 171.072, payable from funds appropriated to the Legislative Assembly.

(5) The committee shall:

(a) Prepare reports detailing the number and nature of civil forfeitures carried out under this chapter, including the disposition and use of the proceeds from the forfeitures. The reports shall be submitted on or before March 31 of each year to the Speaker of the House of Representatives, President of the Senate, Attorney General and Governor.

(b) In consultation with forfeiture counsel, review and, if necessary, modify the reports required from forfeiture counsel and political subdivisions to ensure that information necessary for oversight is being obtained and is gathered in an efficient and effective manner.

(c) Make any recommendations it deems necessary to increase the effectiveness, fairness and efficiency of forfeiture actions brought under this chapter.

(d) Make any recommendations for additional legislation governing forfeiture actions brought under this chapter.

(e) Conduct studies or other activities as necessary to accomplish the purposes of this subsection.

(6) The Executive Director of the Oregon Criminal Justice Commission shall provide the committee with staff, subject to funds available for that purpose.

SECTION 23a. ORS 475A.155, as amended by section 23 of this 2001 Act, is amended to read:

475A.155. [(1) The Asset Forfeiture Oversight Advisory Committee is created. The committee consists of 12 members to be appointed as follows:]

[(a) The President of the Senate and the Speaker of the House of Representatives shall appoint six legislators to the committee. Three shall be Senators appointed by the President. Three shall be Representatives appointed by the Speaker.]

[(b) The Governor shall appoint three members to the committee.]

[(c) The Attorney General shall appoint three members to the committee.]

[(2) The term of a legislative member of the committee shall be two years. The term of all other members shall be four years. Members of the committee may be reappointed. If a vacancy occurs on the committee for any reason during the term of membership, the official who appointed the member to the vacant position shall appoint a new member to serve the remainder of the term. A member of the committee may be removed from the committee at any time by the official who appointed the member.]

[(3)(a) The members of the committee shall select from among themselves a chairperson and vice chairperson.]

[(b) The committee shall meet at such times and places as determined by the chairperson.]

[(4) Legislative members shall be entitled to payment of compensation and expense reimbursement under ORS 171.072, payable from funds appropriated to the Legislative Assembly.]

[(5) The committee shall:]

[(a) Prepare reports detailing the number and nature of civil forfeitures carried out under this chapter, including the disposition and use of the proceeds from the forfeitures. The reports shall be submitted on or before March 31 of each year to the Speaker of the House of Representatives, President of the Senate, Attorney General and Governor.]

[(b) In consultation with forfeiture counsel, review and, if necessary, modify the reports required from forfeiture counsel and political subdivisions to ensure that information necessary for oversight is being obtained and is gathered in an efficient and effective manner.]

[(c) Make any recommendations it deems necessary to increase the effectiveness, fairness and efficiency of forfeiture actions brought under this chapter.]

[(d) Make any recommendations for additional legislation governing forfeiture actions brought under this chapter.]

[(e) Conduct studies or other activities as necessary to accomplish the purposes of this subsection.]

[(6) The Executive Director of the Oregon Criminal Justice Commission shall provide the committee with staff, subject to funds available for that purpose.]

(1) The Asset Forfeiture Oversight Advisory Committee is created. The committee consists of 12 members to be appointed as follows:

(b) The Governor shall appoint three members to the committee.

(c) The Attorney General shall appoint three members to the committee.

(3)(a) The members of the committee shall select from among themselves a chairperson and vice chairperson.

(b) The committee shall meet at such times and places as determined by the chairperson.

(4) Legislative members shall be entitled to payment of compensation and expense reimbursement under ORS 171.072, payable from funds appropriated to the Legislative Assembly.

(5) The committee shall:

(a) Prepare reports detailing the number and nature of forfeitures carried out under this chapter, including the disposition and use of the proceeds from the forfeitures. The reports shall be submitted on or before March 31 of each year to the Speaker of the House of Representatives, President of the Senate, Attorney General and Governor.

(c) Make any recommendations it deems necessary to increase the effectiveness, fairness and efficiency of forfeiture actions brought under this chapter.

(d) Make any recommendations for additional legislation governing forfeiture actions brought under this chapter.

(e) Conduct studies or other activities as necessary to accomplish the purposes of this subsection.

(6) The Executive Director of the Oregon Criminal Justice Commission shall provide the committee with staff, subject to funds available for that purpose.

SECTION 23b. The amendments to ORS 475A.155 by section 23a of this 2001 Act become operative on July 31, 2005.

SECTION 23c. If House Bill 3642 becomes law, sections 23 (amending ORS 475A.155), 23a (amending ORS 475A.155) and 23b of this 2001 Act are repealed.

SECTION 24. Sections 25 to 29 of this 2001 Act are added to and made a part of ORS chapter 475A.

SECTION 25. (1) Every forfeiting agency other than the state shall establish a local forfeiture account in the general fund of the forfeiting agency. The account shall consist of all forfeited property received or retained by a forfeiting agency by reason of civil forfeitures conducted under this chapter, except as otherwise provided by ORS 475A.120 (1).

(2) Before expenditure of any moneys from the local forfeiture account, the forfeiting agency must deduct from the local forfeiture account all amounts required by ORS 475A.120 (4)(b) and (5)(c). Moneys in the account may not be used for law enforcement purposes, and must be used for drug treatment unless another use is specifically provided by ordinance or other law.

SECTION 26. (1) Seizing agencies, forfeiting agencies and forfeiture counsel are not civilly or criminally liable for any acts in seizing or forfeiting property under the provisions of this chapter if there was reasonable suspicion that the property was subject to seizure or civil forfeiture. An order directing seizure issued under ORS 475A.035 (5) shall constitute a finding of reasonable suspicion that the property was subject to forfeiture. The immunity provided by this section extends to all officers, employees and agents of seizing agencies, forfeiting agencies and forfeiture counsel.

(2) Nothing in this section affects any liability that may be imposed under the provisions of section 10 (10), Article XV of the Oregon Constitution.

SECTION 27. The state and all its subdivisions shall take all necessary steps to obtain shared property or proceeds from the United States Department of Justice resulting from a civil forfeiture. Any property or proceeds received from the United States Department of Justice by the state or any of its political subdivisions must be applied as required by ORS 475A.120.

SECTION 28. (1) Neither the state nor any political subdivision of the state may transfer civil forfeiture proceedings to the federal government unless a state court has affirmatively found by a preponderance of the evidence that:

(a) The activity giving rise to the forfeiture is interstate in nature and sufficiently complex to justify the transfer;

(b) The seized property may be forfeited only under federal law; or

(c) Pursuing civil forfeiture under state law would unduly burden the state forfeiting agencies.

(2) A forfeiture proceeding shall be deemed commenced for the purposes of this section upon service of a notice of seizure for civil forfeiture under ORS 475A.055 (1).

SECTION 29. (1) All forfeiting agencies shall maintain written documentation of each seizure for forfeiture made under the provisions of this chapter, sale of seized or forfeited property under this chapter, decision to retain property forfeited under the provisions of this chapter, transfer of property forfeited under this chapter and other dispositions of property seized for forfeiture or forfeited under the provisions of this chapter.

(2) Forfeiture counsel shall report each seizure for forfeiture and each civil forfeiture under the provisions of this chapter to the Asset Forfeiture Oversight Advisory Committee as soon as reasonably possible after the conclusion of forfeiture proceedings, whether or not the forfeiture results in an entry of judgment under ORS 475A.110. The committee shall develop and make available forms for the purpose of reporting forfeitures.

(3) Law enforcement agencies shall supply to forfeiture counsel all information requested by forfeiture counsel necessary for the preparation of the report required by subsection (2) of this section.

(4) Political subdivisions of the state that receive civil forfeiture proceeds under ORS 475A.120 shall submit a report to the Asset Forfeiture Oversight Advisory Committee for any year in which those proceeds are received. The committee shall develop and make available forms for the purpose of those reports. The forms shall require the political subdivision to report on how proceeds received by the political subdivision have been or will be used, and such other information as may be requested by the committee. Reports shall be submitted each December 15 for the preceding fiscal year of the political subdivision.

SECTION 30. (1) The amendments to statutes by sections 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22 and 23 of this 2001 Act, sections 5c and 25 to 29 of this 2001 Act and the repeal of statutes by section 32 of this 2001 Act:

(a) Do not affect any judgment of forfeiture entered before the effective date of this 2001 Act; and

(b) Do not affect any forfeiture proceeding commenced before the effective date of this 2001 Act.

(2) ORS 475A.035 (3), as set forth in the amendments to ORS 475A.035 by section 5 of this 2001 Act, applies to all seizures of property for the purpose of civil forfeiture, whether occurring before, on or after the effective date of this 2001 Act.

(3) Any civil forfeiture proceeding subject to the provisions of ORS chapter 475A (1999 Edition) that was commenced before the effective date of this 2001 Act shall continue to be governed by the provisions of ORS chapter 475A (1999 Edition) to the extent that those provisions are consistent with the requirements of section 10, Article XV of the Oregon Constitution.

SECTION 31. (1) Unless the claim arises out of malfeasance in office or willful or wanton neglect of duty, a public body as defined in ORS 30.260 may defend, save harmless and indemnify any officer, employee or agent of the public body against whom a claim is made under section 10 (10), Article XV of the Oregon Constitution.

(2) Any amount recovered as a civil penalty in a claim made under section 10 (10), Article XV of the Oregon Constitution, shall be paid into the Criminal Injuries Compensation Account of the Department of Justice Crime Victims’ Assistance Section to be used for the purposes set forth in ORS chapter 147.

SECTION 32. ORS 475A.090, 475A.095, 475A.105, 475A.125 and 475A.135 are repealed.

SECTION 33. Sections 5c, 25, 26, 27, 28, 29, 30 and 31 of this 2001 Act are repealed July 31, 2005.

SECTION 34. Sections 35 to 39 of this 2001 Act are added to and made a part of ORS chapter 475A.

SECTION 35. (1) If it has been determined in an action brought under the provisions of ORS 475A.075 that the plaintiff has prevailed as to some or all of the defendant property, the plaintiff shall serve on the claimant a proposed judgment of forfeiture and a statement of costs as defined in ORS 475A.120 (1)(a) and 475A.125 (1)(a).

(2) A claimant who has filed a claim to seized property, appeared in the action, and part or all of whose interest in the claimed property is forfeited under the terms of the proposed judgment may file a motion for a mitigation hearing:

(a) A motion under this section must list all evidence not previously received that is relevant to the determination to be made by the court under ORS 475A.100. Every argument that the claimant wishes to raise in mitigation must be set out in specific detail in the motion.

(b) Before filing a motion for mitigation, the claimant and the plaintiff must make a good faith effort to confer with one another concerning any issues in dispute. The claimant must file a certificate of compliance with the requirements of this paragraph before the time set for hearing on the motion. The certificate is sufficient if the certificate states that the parties conferred or the certificate contains facts showing good cause for not conferring.

(c) A motion under this section may only be filed after the service of a proposed judgment on the claimants. If a motion for a mitigation hearing is not filed with the court within 14 days after the date the plaintiff serves the proposed judgment on the claimant, the court shall enter judgment.

(3) If a motion for a mitigation hearing is filed, the court shall determine whether any portion of the proposed judgment is excessive in the manner provided by ORS 475A.100.

(4) A hearing under the provisions of this section is subject to the Oregon Rules of Evidence.

(5) The court may make such orders, as may be necessary to insure that the forfeiture is not excessive, including but not limited to the following orders:

(a) An order directing that the defendant property, or part of it, be sold and the proceeds of sale distributed between the litigants.

(b) An order directing that the claimant make available to the court other assets, not named as defendants in the forfeiture action, for the purpose of fashioning a final judgment that is not excessive.

(6) The court shall make written findings of fact and shall enter written conclusions of law in proceedings under the provisions of this section.

SECTION 36. (1) Subject to subsection (2) of this section, the court shall forfeit to the forfeiting agency at least so much of the defendant property as may be required to pay the forfeiting agency’s costs as defined in ORS 475A.120 (1)(a) and 475A.125 (1)(a).

(2) At least 10 days before a trial under ORS 475A.075, a claimant may serve upon the forfeiting agency an offer to allow judgment to be given against all or part of the defendant property for a specified sum, specified property, or to a specified effect. If the forfeiting agency accepts the offer, the forfeiting agency must file a written acceptance with the clerk of the court within three days after the date on which the offer was served upon the forfeiting agency. If an acceptance is filed with the court, judgment shall be entered based on the acceptance as a stipulated judgment. Unless otherwise agreed by the parties, costs and disbursements as defined in ORCP 68 shall be entered as part of the judgment pursuant to the procedure provided by Rule 68. If an acceptance is not filed with the court within three days after the time the offer was served upon the forfeiting agency, the offer shall be considered withdrawn, and shall not be given in evidence on the trial. If the forfeiting agency fails to obtain a judgment after trial that is more favorable than the offer made by the claimant, the court shall award to the claimant costs and disbursements as defined in ORCP 68, and the court may enter a judgment that forfeits to the forfeiting agency less of the defendant property than may be required to pay the forfeiting agency’s costs as defined in ORS 475A.120 (1)(a) and 475A.125 (1)(a).

SECTION 37. (1) In any appeal from a judgment of forfeiture, review of any mitigation ordered by the trial court shall be limited to the following:

(a) Whether the findings of fact are supported by the evidence in the record.

(b) Whether the ultimate conclusion modifying or declining to modify the judgment submitted by the plaintiff was an abuse of discretion by the trial court.

(c) Whether the final judgment complies with applicable constitutional limitations.

(2) An appellate court may reverse, affirm, modify or remand the provisions of a judgment of forfeiture relating to mitigation. But the appellate court may not consider arguments for mitigation of a judgment of forfeiture unless those arguments were timely raised by the motion provided for in ORS 475A.090.

SECTION 38. After the forfeiture counsel distributes payments under ORS 475A.110, the forfeiture counsel shall disburse and distribute payment as follows when the forfeiting agency is the state or when the state is the recipient of property forfeited under this chapter:

(1)(a) Costs shall first be paid from the property or, if the property is sold, from its proceeds. As used in this section, “costs” includes attorney fees, costs and disbursements, and those special expenses, including hourly investigative costs and including the provision of lawful currency, incurred by any seizing agency or other agency of the state in investigating and prosecuting a specific case. “Costs” as used in this section also includes any expenses of servicing or maintaining the seized property under the provisions of ORS 475A.045 (3). These costs shall not otherwise include the expenditures made in connection with the ordinary maintenance and operation of the seizing agency.

(b) Any amount paid to or retained by the Department of Justice under this subsection shall be deposited in the Criminal Justice Revolving Account in the State Treasury.

(c) Any amount paid to or retained by the Oregon State Police under this subsection shall be deposited in the State Police Account.

(2) The state may:

(a) With written authorization from the district attorney for the jurisdiction in which the property was seized, destroy any firearms or controlled substances.

(b) Sell the forfeited property by public or other commercially reasonable sale and pay from the proceeds the expenses of keeping and selling the property.

(c) Retain any vehicles, firearms or other equipment usable for law enforcement purposes, for official law enforcement use directly by the state.

(d) Lend or transfer any vehicles, firearms or other equipment usable for law enforcement purposes, to any federal, state or local law enforcement agency or district attorney for official law enforcement use directly by the transferee entity.

(3) When the state has entered into an intergovernmental agreement with one or more political subdivisions under ORS 475A.115, or when a law enforcement agency of the state has entered into an agreement with another law enforcement agency of the state, an equitable portion of the forfeited property shall be distributed to each agency participating in the seizure or forfeiture as provided by the agreement.

(4) The balance of the property, including the balance of any proceeds received by the state under an intergovernmental agreement or under an agreement between state law enforcement agencies, shall be divided as follows:

(a) When no law enforcement agency other than the Department of Justice participated in the seizure or forfeiture, or when the Department of Justice has entered into an agreement under subsection (3) of this section, the property shall be divided between the Criminal Justice Revolving Account and the Special Crime and Forfeiture Account created in ORS 475A.130, according to the following schedule:

(A) One hundred percent of the first $200,000 accumulated shall be deposited in the Criminal Justice Revolving Account.

(B) Seventy-five percent of the next $200,000 shall be deposited in the Criminal Justice Revolving Account and the balance in the Special Crime and Forfeiture Account.

(C) Fifty percent of the next $200,000 shall be deposited in the Criminal Justice Revolving Account and the balance in the Special Crime and Forfeiture Account.

(D) Twenty-five percent of the next $200,000 shall be deposited in the Criminal Justice Revolving Account and the balance in the Special Crime and Forfeiture Account.

(E) One hundred percent of all additional sums shall be deposited in the Special Crime and Forfeiture Account.

(b) When no law enforcement agency other than the Department of State Police participated in the seizure or forfeiture, or when the Department of State Police has entered into an agreement under subsection (3) of this section, the property shall be divided between the State Police Account and the Special Crime and Forfeiture Account according to the following schedule:

(A) One hundred percent of the first $600,000 accumulated shall be deposited in the State Police Account.

(B) Seventy-five percent of the next $300,000 shall be deposited in the State Police Account and the balance in the Special Crime and Forfeiture Account.

(C) Fifty percent of the next $200,000 shall be deposited in the State Police Account and the balance in the Special Crime and Forfeiture Account.

(D) Twenty-five percent of the next $200,000 shall be deposited in the State Police Account and the balance in the Special Crime and Forfeiture Account.

(E) One hundred percent of all additional sums shall be deposited in the Special Crime and Forfeiture Account.

(5) Notwithstanding subsections (3) and (4) of this section, before any distribution under subsection (3) of this section or any division and disbursement of proceeds under subsection (4) of this section, the state shall deduct an amount equal to 10 percent of the proceeds from the property, but not to exceed $250,000 in any biennium, and deposit that amount in the Illegal Drug Cleanup Fund established by ORS 475.495 for the purposes specified in ORS 475.495 (5). The state shall sell as much property as may be needed to meet the requirements of this section. Deposits to the Illegal Drug Cleanup Fund under this subsection shall be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this subsection.

(6) Notwithstanding subsections (3) and (4) of this section, before any distribution under subsection (3) of this section or any division and disbursement of proceeds under subsection (4) of this section, the state shall deduct an amount equal to three percent of the proceeds from the property, but not to exceed $50,000 in any biennium, and deposit that amount in the Asset Forfeiture Oversight Account established by ORS 475A.160 for the purposes specified in ORS 475A.155. The state shall sell as much property as may be needed to meet the requirements of this section. Deposits to the Asset Forfeiture Oversight Account under this subsection shall be made once every three months and are due within 20 days of the end of each quarter. No interest shall accrue on amounts that are paid within the period specified by this subsection.

(7) Forfeiture proceeds received by the Department of Justice and the Department of State Police shall be used for enforcement of laws relating to the unlawful delivery, distribution, manufacture or possession of controlled substances, including but not limited to use of the proceeds for controlled substance crime prevention, drug intervention, drug treatment and drug education programs. Except as specifically provided by this subsection, forfeiture proceeds under this subsection may not be used for payment of the wages of peace officers, as defined in ORS 161.015, the purchase, construction, expansion, remodeling or maintenance of buildings, or the funding of all or part of any position that was in existence before August 23, 1993, and that was previously funded out of revenues other than forfeiture proceeds. Forfeiture proceeds may be used for the following:

(a) Payment of that portion of the wages of personnel other than peace officers who administer the forfeiture laws.

(b) Payment of the wages of peace officers performing supervisory duties for interagency drug enforcement task forces created by intergovernmental agreement.

(c) Payment of overtime wages of peace officers arising out of drug enforcement duties.

(8) The forfeiting agency, and any agency that receives forfeited property or proceeds from the sale of forfeited property, shall maintain written documentation of each sale, decision to retain, transfer or other disposition of the property or proceeds.

(9) Forfeiture counsel shall report each forfeiture to the Asset Forfeiture Oversight Advisory Committee as soon as reasonably possible after the conclusion of forfeiture proceedings, whether or not the forfeiture results in an entry of judgment under ORS 475A.110. The committee shall develop and make available forms for the purpose of reporting forfeitures.

(10) Law enforcement agencies shall supply to forfeiture counsel all information requested by forfeiture counsel necessary for the preparation of the report required by subsection (9) of this section.

SECTION 39. If any section, portion, clause or phrase of this chapter is held to be invalid or unconstitutional, the remaining sections, portions, clauses and phrases shall not be affected but shall remain in full force and effect.

SECTION 40. Sections 35, 36, 37, 38 and 39 of this 2001 Act become operative on July 31, 2005.

SECTION 41. This 2001 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2001 Act takes effect on its passage.

Approved by the Governor July 17, 2001

Filed in the office of Secretary of State July 18, 2001

Effective date July 17, 2001

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