71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 2061
(To Resolve Conflicts)
B-Engrossed
House Bill 2429
Ordered by the Senate June 19
Including House Amendments dated April 2 and Senate Amendments
dated June 19 to resolve conflicts
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Representative Lane
Shetterly)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Revises laws governing civil forfeitures for purposes of
compliance with limitations imposed on civil forfeiture by Oregon
Constitution.
Sunsets July 31, 2005.
Declares emergency, effective on passage.
A BILL FOR AN ACT
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;
(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) - } { + (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
(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) '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;
(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 { - 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.
(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 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.
(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 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
(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 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.
(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) 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.
(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 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.
(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
{ - 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;
(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 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.
(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 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.
(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.
(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
(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. { - 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.
(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
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.
(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. 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.
(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) 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.
(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) 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) 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 - } { + 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.
(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, 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 upon completion of the 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
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.
(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
forfeiture of the property. + }
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.
(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 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 - } ;
(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.
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;
(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
section 38 of this 2001 Act;
(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. + }
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
________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
State of Oreg)n
) ss.
County of ___
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
The foregoing instrument was acknowledged before me this __ day
of ________, ____.
__________
Notary Public for Oregon
My commission expires _____.
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(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: - }
]µ ____________________________________________________________ º
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
________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
State of Oreg)n
) ss.
County of ___
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
The foregoing instrument was acknowledged before me this __ day
of ________, ____.
{ - __________
- }
{ - Notary Public for Oregon - }
{ - My commission expires _____.
- }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
]µ ____________________________________________________________ º
{ - (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
________________
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
State of Oreg)n
) ss.
County of ___
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
The foregoing instrument was acknowledged before me this __ day
of ________, ____.
{ + __________
+ }
{ + Notary Public for Oregon + }
{ + My commission expires _____.
+ }
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
{ + (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.
(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).
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.
(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 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.
(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.
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:
(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
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 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. + }
----------