75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
Senate Bill 356
Sponsored by COMMITTEE ON JUDICIARY
CHAPTER ................
AN ACT
Relating to civil forfeiture; creating new provisions; amending
ORS 30.315, 131.594, 131.597, 137.662, 163.707, 167.164,
358.925, 475.495, 647.155, 809.730 and 809.735; repealing ORS
475A.005, 475A.010, 475A.015, 475A.020, 475A.025, 475A.030,
475A.035, 475A.040, 475A.045, 475A.050, 475A.055, 475A.060,
475A.065, 475A.070, 475A.075, 475A.080, 475A.085, 475A.091,
475A.096, 475A.100, 475A.110, 475A.111, 475A.115, 475A.120,
475A.126, 475A.130, 475A.155 and 475A.160; appropriating money;
and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ +
DEFINITIONS + }
SECTION 1. { + Definitions. As used in sections 1 to 51 of
this 2009 Act:
(1) 'All persons known to have an interest' means:
(a) Any person who filed a notice of interest for seized
property with any public office, in the manner required or
permitted by law, before the property was seized for forfeiture;
(b) Any person from whose custody property is seized for
forfeiture; and
(c) Any person who has an interest in property seized for
forfeiture, 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;
Enrolled Senate Bill 356 (SB 356-A) Page 1
(C) The United States Department of Veterans Affairs;
(D) Rural Development and the Farm Service Agency of the United
States Department of Agriculture;
(E) The Federal National Mortgage Association;
(F) The Government National Mortgage Administration;
(G) The Federal Home Loan Mortgage Corporation;
(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) The Department of Veterans' Affairs; and
(C) The Public Employees Retirement System;
(f) An agency, department or instrumentality of any local
government, as defined by ORS 174.116 or special government body,
as defined by ORS 174.117, 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 a public body that is seeking
forfeiture of property under sections 1 to 51 of this 2009 Act.
(5) 'Forfeiture counsel' means an attorney designated by a
forfeiting agency to represent the forfeiting agency in
forfeiture proceedings.
(6) 'Forfeiture proceeds' means all property that has been
forfeited in a proceeding under sections 1 to 51 of this 2009
Act, including money, earnings from forfeited property and
amounts realized from the sale of forfeited property.
(7) 'Instrumentality' has the meaning given in ORS 131.550.
(8) 'Law enforcement agency' means any agency that employs
police officers or prosecutes criminal cases.
(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 prohibited conduct, or maintained by
or realized through prohibited conduct. 'Proceeds of prohibited
conduct' includes any benefit, interest or property of any kind,
without reduction for expenses of acquiring or maintaining the
property.
(11) 'Prohibited conduct' means:
(a) Violation of, solicitation to violate, attempt to violate
or conspiracy to violate a provision of ORS 475.005 to 475.285
and 475.805 to 475.980 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 sections 1 to 51 of this 2009 Act
under section 2 (4) of this 2009 Act or other law.
(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) 'Public body' has the meaning given in ORS 174.109.
(14) 'Seizing agency' means a law enforcement agency that has
seized property for forfeiture.
Enrolled Senate Bill 356 (SB 356-A) Page 2
(15) 'Weapon' means any instrument of offensive or defensive
combat or anything used, or designed to be used, in destroying,
defeating or injuring a person. + }
{ +
CIVIL FORFEITURE GENERALLY + }
SECTION 2. { + Legislative findings; preemption of local laws;
remedy not exclusive. (1) The Legislative Assembly finds that:
(a) Prohibited conduct occurs 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 sections 1 to 51 of this 2009 Act.
(b) Transactions involving property subject to civil forfeiture
under sections 1 to 51 of this 2009 Act escape taxation.
(c) Governments attempting to respond to prohibited conduct
require additional resources.
(d) Proceeds and instrumentalities of prohibited conduct should
be forfeited, the rights and interests of affected persons
protected, and the laws of this state relating to civil
forfeiture of property based on prohibited conduct should be
uniform throughout the state.
(2) The Legislative Assembly adopts the provisions of sections
1 to 51 of this 2009 Act as the sole and exclusive law of the
state governing civil forfeiture of real and personal property
based on prohibited conduct. Sections 1 to 51 of this 2009 Act
supersede all charter provisions, ordinances, regulations and
other enactments adopted by cities and counties relating to civil
forfeitures. All forfeitures under the provisions of sections 1
to 51 of this 2009 Act are subject to the limitations of section
10, Article XV of the Oregon Constitution.
(3) Sections 1 to 51 of this 2009 Act are applicable throughout
this state. The electors or the governing body of a city or
county may not enact, and the governing body of a city or county
may not enforce, any charter provision, ordinance, resolution or
other regulation that is inconsistent with this section.
(4) Sections 1 to 51 of this 2009 Act do 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 proceeds or instrumentalities of
the prohibited conduct; and
(c) The civil forfeiture is subject to the procedures and
limitations set forth in sections 1 to 51 of this 2009 Act.
(5) Sections 1 to 51 of this 2009 Act do not 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 sections
1 to 51 of this 2009 Act is remedial and not punitive and does
not affect the application of any other civil or criminal remedy
under any other provision of law. Civil remedies under sections 1
to 51 of this 2009 Act are supplemental and are not mutually
exclusive. + }
SECTION 3. { + Vesting of title to forfeited property. Subject
to sections 1 to 51 of this 2009 Act, all right, title and
interest in property forfeited under sections 1 to 51 of this
2009 Act vests in the forfeiting agency upon the occurrence of
the prohibited conduct on which the forfeiture is based. + }
Enrolled Senate Bill 356 (SB 356-A) Page 3
{ +
PROPERTY SUBJECT TO FORFEITURE + }
SECTION 4. { + Property subject to forfeiture. The following
property is subject to forfeiture under sections 1 to 51 of this
2009 Act:
(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
accounts or other accounts, securities or other things of value
furnished by any person in the course of prohibited conduct, all
proceeds of 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, in whole or part, to
commit or facilitate prohibited conduct.
(8) All weapons possessed, used or available for use in any
manner to facilitate prohibited conduct.
(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 5. { + Consensual search of motor vehicle; required
notice. (1) Notwithstanding any other provision of sections 1 to
51 of this 2009 Act, property that is seized solely on the basis
of a consensual search of a motor vehicle is not subject to
forfeiture unless, before obtaining the consent of a person for
the search, the person is provided with written, multilingual
notice of the right of the person to refuse to consent to the
search. The notice shall include at least the following
information:
(a) Notice that the person has a right to refuse to consent to
a search.
(b) Notice that a refusal to consent to a search cannot be used
against the person for any purpose.
(c) Notice that anything found in the search can be seized as
evidence of a crime or can be seized for forfeiture.
(2) A notice or consent form under this section shall be
considered multilingual if the notice or form provides
information in at least English and Spanish. + }
Enrolled Senate Bill 356 (SB 356-A) Page 4
SECTION 6. { + Seizure of currency. Notwithstanding any other
provision of sections 1 to 51 of this 2009 Act, United States
currency in an amount less than $15,000 may not be seized for
forfeiture solely on the basis that the money is in the form of
cash rather than some other form. + }
{ +
SEIZURE OF PROPERTY FOR FORFEITURE + }
{ +
(Generally) + }
SECTION 7. { + Seizure generally. (1) Property seized for
forfeiture is not subject to replevin, conveyance, sequestration
or attachment, and is not subject to a motion or order to return
under ORS chapter 133.
(2) Property that has been unconstitutionally seized may be
forfeited if the property is determined to be subject to
forfeiture under sections 1 to 51 of this 2009 Act based on
evidence that is not the fruit of the unconstitutional seizure.
(3) Property other than real property may be constructively
seized by affixing a forfeiture notice to the property, or by
recording a forfeiture notice in the public record. Real
property, including equitable interests under land sale
contracts, may be seized only by recording a forfeiture notice in
the form prescribed by section 19 of this 2009 Act.
(4) If property is seized from the possession of a person who
has a possessory lien in the property, the lien remains in effect
after the seizure and is enforceable as though the person had
retained possession of the property. + }
{ +
(Inventory and receipt; written warning) + }
SECTION 8. { + Inventory and receipt. (1) Promptly upon
seizure of property for forfeiture, the police officer who seized
the property shall make an inventory of the seized property. The
inventory may contain an estimate of the value of the seized
property.
(2) If seized property is taken from the possession of a
person, or there is a person who is in apparent control of the
property at the time of the seizure, the officer shall deliver a
receipt to that person when the property is seized. The receipt
prepared under this subsection must contain:
(a) The inventory prepared under subsection (1) of this
section;
(b) The identity of the seizing agency; and
(c) The address and telephone number of the office or other
place where the person may obtain further information concerning
the forfeiture.
(3) A seizing agency shall amend the inventory prepared by a
police officer under this section if the agency determines at any
time before the commencement of a forfeiture action under section
26 of this 2009 Act that the inventory is substantially
incorrect. The changes to the inventory must be clearly
indicated in the amended inventory. A copy of the original
inventory and any amendments made to the original inventory must
be served with any summons and complaint served under section 27
of this 2009 Act. If the amendment occurs after the commencement
of a forfeiture action, the amended inventory must be served on
Enrolled Senate Bill 356 (SB 356-A) Page 5
all persons previously served with summons and complaint in the
proceeding.
(4) If tangible personal property is constructively seized as
described in section 7 (3) of this 2009 Act, the officer shall
affix the receipt to the property. If the property is physically
removed from the place of seizure, and the place is unoccupied or
nobody is present with apparent control over the property, the
officer shall promptly file the receipt in the public records of
the forfeiting agency. + }
{ +
(Manner of seizure) + }
SECTION 9. { + Seizure with court order. (1) 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.
(2) An application for an order directing seizure under
subsection (1) of this section may be made to any judge as
defined in ORS 133.525. The application shall be supported by one
or more affidavits setting forth facts and circumstances that
support a finding that probable cause exists to believe that the
described property is subject to forfeiture. 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
made as part of a search warrant.
(3) An order issued under this section may specify the manner
in which intangible property may be seized for forfeiture.
(4) Except as provided in section 13 (3) of this 2009 Act, an
order under this section shall direct any person having control
or custody of the property, including money and other assets held
in the form of an account in a financial institution, to deliver
the property to the police officer. + }
SECTION 10. { + Seizure without court order. (1) Property may
be seized for forfeiture by a police officer without a court
order if:
(a) There is probable cause to believe that property is subject
to forfeiture, and the property may constitutionally be seized
without a warrant;
(b) 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;
(c) The property is directly or indirectly dangerous to the
health or safety of any person; or
(d) An owner consents to the seizure.
(2) If a police officer finds cash, weapons or negotiable
instruments in close proximity to controlled substances or to
instrumentalities of prohibited conduct, the officer has probable
cause to believe that the property is subject to forfeiture. + }
{ +
(Delivery of property) + }
SECTION 11. { + Delivery by third person. (1) Except as
provided in section 13 (3) of this 2009 Act, a person who has
control or custody of property must deliver the property to a
police officer if the police officer presents a court order
issued under section 9 of this 2009 Act or the police officer has
Enrolled Senate Bill 356 (SB 356-A) Page 6
probable cause to believe that the property is subject to
forfeiture.
(2) Any person who delivers property in obedience to a court
order or pursuant to a direction from a police officer is not
liable to any person by reason of the delivery, and is not liable
for any costs incurred by reason of any contamination of the
delivered property, including but not limited to any disposal
costs for the property, any hazardous waste or material, any
contraband or any other contamination contained in property
seized under this section. + }
{ +
(Effect of seizure on liens and security interests + }
{ +
of financial institutions) + }
SECTION 12. { + Liens and security interests of financial
institutions. (1) Seizure of property for forfeiture and other
proceedings under sections 1 to 51 of this 2009 Act does not
prevent, abate or 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 claims a lien or
security interest, or initiation or prosecution of a suit or
action by a financial institution for the foreclosure of a lien
or security interest claimed by the financial institution. A
financial institution may proceed with any suit or action
involving property in which the institution claims a lien or
security interest even though a seizure has occurred and a
forfeiture action has been commenced or will be commenced. The
financial institution's suit or action may be consolidated with
the forfeiture action for the purpose of trial. If seized
property is sold before the conclusion of the forfeiture action,
the sheriff, trustee or other person who is conducting the sale
and who has actual notice of the forfeiture action shall
distribute the sale proceeds as follows:
(a) To the payment of the expenses of the sale.
(b) After payment of the expenses of the sale, to the payment
of the obligations owed to the foreclosing financial institution
that are secured by the property, and to the payment of the
obligations owed to any other person that has a lien or security
interest in the property that has been foreclosed in the suit or
action. Payment under this paragraph shall be made in the order
determined by the court.
(c) If there is any remaining amount after the payments
required under paragraphs (a) and (b) of this subsection, the
remaining amount shall be distributed to the seizing or
forfeiting agency, or to the court in which the forfeiture action
is pending.
(2) A sheriff, trustee or other person who distributes sale
proceeds as provided in subsection (1) of this section is not
liable to any person who has or asserts an interest in the
property. + }
{ +
(Care and custody of property) + }
SECTION 13. { + Care and custody of seized property generally.
(1) Pending final disposition of seized property, and subject to
the need to retain the property for any criminal proceeding, a
forfeiting agency shall maintain and care for property that is in
Enrolled Senate Bill 356 (SB 356-A) Page 7
the physical custody of the seizing or forfeiting agency in a
manner that is reasonably appropriate for the preservation of the
property's value.
(2) A forfeiting agency may transfer property seized for
forfeiture to any city, county, state or federal agency with
authority to seek forfeiture of the property, unless the transfer
diminishes or reduces the rights of any third party under
sections 1 to 51 of this 2009 Act or constitutes a violation of
section 10 (13), Article XV of the Oregon Constitution.
(3) If property seized for forfeiture consists of money,
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 action. Unless
otherwise allowed by order of the court, transactions involving
the account are not permitted until final disposition of the
property, except for 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 section 15 of this 2009 Act.
(4) Sections 1 to 51 of this 2009 Act do not prevent a seizing
agency from entering into an agreement with a person who claims
seized property, or with any other person, for the reimbursement
of the seizing agency for the costs and expenses relating to
towing and storage of seized property, or for the reimbursement
of the cost of discharging any possessory chattel lien on the
property arising under ORS 87.152 to 87.162 that attaches to the
property after seizure of the property and before release or
forfeiture of the property. + }
SECTION 14. { + Order for sale, lease, rental or operation of
seized property. (1) Pending final disposition of property seized
for forfeiture, and subject to the need to retain the property
for any criminal proceeding, a forfeiting agency may apply to the
court for an order allowing the seized property to be sold,
leased, rented or operated in the manner and on terms that may be
specified in the court's order. Any sale, lease, rental or
operation of seized property under this section must be conducted
in a commercially reasonable manner, and may not result in a
material reduction of the property's value. An order may be
entered under this section only:
(a) After notice and opportunity to be heard is provided to all
persons known to have an interest in the property, or who claim
to have an interest in the property; and
(b) With the consent of all persons holding security interests
of record in the property.
(2) Unless otherwise ordered by the court, the proceeds of the
sale, lease, rental or operation of seized property under this
section shall be held by the forfeiting agency in a forfeiture
trust account established under section 15 of this 2009 Act, and
the rights of holders of security interests of record in the
property attach to the proceeds of the sale, lease, rental or
operation in the order of the priority of their claims. + }
SECTION 15. { + Forfeiture trust accounts. + } { + (1) Except
for currency with collector value, all money seized for
forfeiture, together with all money received from the sale,
lease, rental or operation of seized 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
Enrolled Senate Bill 356 (SB 356-A) Page 8
evidence in a criminal proceeding, but must be deposited in a
trust account or trust accounts immediately after the cash is no
longer needed as evidence.
(2) Subject to any court order, amounts deposited in a
forfeiture trust account, or held in an account in a financial
institution under section 13 (3) of this 2009 Act, including
interest on those amounts, shall be disbursed as follows:
(a) If forfeiture proceedings are abandoned, or if the court
ultimately fails to enter a judgment of forfeiture, the amount of
the account shall be disbursed by the seizing or forfeiting
agency to the person from whom the property 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 account that are in the aggregate equal
to or larger than the amount in the account, the account shall be
disbursed by the forfeiting agency to the parties in the order of
the priority of their claims.
(c) If a judgment of forfeiture is entered, and the total
amount in the account is greater than the amount needed to
satisfy the interests of security interest holders, lienholders
and other claimants, the balance remaining after payment to those
claimants shall be retained by the forfeiting agency for
distribution as required by sections 43 and 44 of this 2009
Act. + }
{ +
HEARING ON PROBABLE CAUSE AND DECISION ON SEEKING FORFEITURE + }
{ +
(Hearing on probable cause) + }
SECTION 16. { + Hearing on probable cause. (1) Any person with
an interest in property that has been seized for forfeiture may
file an application to have an order to show cause order issued
to a forfeiting agency to determine if probable cause exists to
seize the property for forfeiture. The application must be filed
not more than 15 days after forfeiture notice is served under
section 18 of this 2009 Act, or within 15 days after the person
receives actual knowledge of the seizure, whichever is later. A
copy of the application must be served on the forfeiture counsel.
(2) When a hearing is held on a show cause order issued under
this section, the court shall determine if probable cause to
seize the property for forfeiture exists on the date of the
hearing. If the court finds that probable cause for seizure of
the property for forfeiture does not exist, the forfeiting agency
shall release the property. + }
{ +
(Decision on seeking forfeiture) + }
SECTION 17. { + Decision on seeking forfeiture. (1) A seizing
agency, after consultation with the district attorney of the
county in which the property was seized, must decide whether to
seek forfeiture of seized property not more than 30 days after
the property is seized. If the seizing agency elects not to seek
forfeiture, the agency shall pay all costs and expenses relating
to towing and storage of the property, and shall release the
property and cause to be discharged any possessory chattel liens
arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure.
Enrolled Senate Bill 356 (SB 356-A) Page 9
(2) Property may be released under this section to a person
other than the person from whose custody or control the property
was taken if the seizing agency mails notice to the last-known
addresses of all persons known to have an interest in 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. + }
{ +
FORFEITURE NOTICE + }
{ +
(Forfeiture notice) + }
SECTION 18. { + Forfeiture notice. (1) A forfeiture notice
must contain:
(a) A copy of the inventory prepared by the police officer
under section 8 of this 2009 Act, with any amendments made under
section 8 (3) of this 2009 Act;
(b) The name of the person from whom the property was seized;
(c) The name, address and telephone number of the seizing
agency;
(d) The address and telephone number of the office or other
place where further information concerning the seizure may be
obtained; and
(e) A statement in substantially the following form: + }
________________________________________________________________
{ +
NOTICE OF SEIZURE FOR FORFEITURE + }
{ +
Notice to Potential Claimant - Read These Papers Carefully ! !
+ }
{ + If you have any interest in the seized property described
in these papers, you must claim that interest or you will
automatically lose that interest. If you do not file a claim for
the property, the property may be forfeited even if you are not
convicted of any crime. To claim an interest, you must file a
written claim with the forfeiture counsel named below. The
written claim must be signed by you, under penalty of perjury,
and state: (a) Your true name; (b) The address at which you will
accept future mailings from the court and forfeiture counsel; and
(c) A statement that you have an interest in the seized property.
Your deadline for filing the claim document is 21 days from the
day this form is given to you. If you have any questions, you
should see an attorney immediately. + }
________________________________________________________________
{ + (2) A police officer who seizes property for forfeiture
may serve a forfeiture notice on the person from whose possession
the property is taken, or on the person in apparent control of
the property, at the time the property is seized.
(3) If a police officer seizes property for forfeiture and does
not serve a forfeiture notice under subsection (2) of this
section, the forfeiting agency shall issue the forfeiture notice
not more than 15 days after the seizure.
(4) Except as provided in subsections (5) and (6) of this
section, a forfeiting agency shall make reasonable efforts to
serve a forfeiture notice on all persons known to have an
interest in the seized property. A person may be served as
Enrolled Senate Bill 356 (SB 356-A) Page 10
provided in ORCP 7 D except that summons must include information
regarding the right to file a claim as provided by section 21 of
this 2009 Act, 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 and inventory shall be
provided to the forfeiting agency's forfeiture counsel.
(5) If a forfeiting agency publishes forfeiture notice under
subsection (4) of this section, the agency may include in a
single publication as many forfeiture notices as the agency
considers convenient. The publication may contain a single
statement of matters from the forfeiture notices that are common
to all of the notices and that would otherwise result in needless
repetition. The publication must contain for each forfeiture
notice a separate copy of the inventory and a separate statement
of the identity of the person from whose custody the property was
seized.
(6) A forfeiture notice need not be served on a person who has
received a receipt under section 8 of this 2009 Act if:
(a) The receipt contains an estimate of the value of the
property seized;
(b) The seizing agency has not amended the inventory under
section 8 (3) of this 2009 Act; and
(c) The receipt contains information regarding the right to
file a claim as described in section 21 of this 2009 Act and the
deadline for filing the claim.
(7) If a person received a receipt as described in subsection
(6) of this section, but the person must be served with a
forfeiture notice because the seizing agency has amended the
inventory under section 8 (3) of this 2009 Act, the seizing
agency may serve a forfeiture notice on the person by mailing a
true copy of the notice to the person by certified mail, return
receipt requested. + }
SECTION 19. { + Recorded forfeiture notice. (1) If a
forfeiting agency intends to seek forfeiture of real property,
the forfeiting agency may record a forfeiture notice in the form
prescribed in this section in the County Clerk Lien Record. The
notice must contain the legal description of the real property,
any street address for the property, and the name and address of
the forfeiture counsel. From the time of recording the notice,
the recording is notice to purchasers and other transferees of
the rights and equities in the premises of the forfeiting agency.
(2) A forfeiture notice must be in substantially the following
form: + }
________________________________________________________________
{ +
FORFEITURE NOTICE + }
{ + Pursuant to section 19 of this 2009 Act, the undersigned
states:
That ______ (forfeiting agency) intends to initiate a
forfeiture action against the following described real property:
1. The description of the real property to be affected is:
____________
____________
____________
Enrolled Senate Bill 356 (SB 356-A) Page 11
____________
____________
2. The common address, if any, is:
____________
____________
____________
Dated this ___ day of ______, ___.
This forfeiture notice expires on ___ day of ______, ___,
absent future filings.
Name of agency seeking forfeiture
____________
Name of Attorney
____________
Address
____________
____________
____________
Telephone Number
____________ + }
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
{ +
State of Oregon )
) 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 ______. + }
________________________________________________________________
{ + (3) A forfeiture notice recorded under this section
expires 30 days after the date of filing unless another
forfeiture notice is recorded within the 30-day period. If
another forfeiture notice is recorded within the 30-day period,
the notice remains in effect for 30 days after the notice is
recorded. The forfeiting agency may continue to record forfeiture
notices in like manner until final disposition of the real
property. + }
SECTION 20. { + Transfer of proceedings prohibited. After
service of a forfeiture notice under section 18 of this 2009 Act,
or recording of a forfeiture notice under section 19 of this 2009
Act, a forfeiting agency may not transfer the proceedings to the
federal government unless a state court has affirmatively found
by a preponderance of the evidence that:
(1) The activity giving rise to the forfeiture is interstate in
nature and sufficiently complex to justify the transfer;
(2) The seized property may be forfeited only under federal
law; or
Enrolled Senate Bill 356 (SB 356-A) Page 12
(3) Pursuing forfeiture under state law would unduly burden the
forfeiting agency. + }
{ +
CLAIMS + }
{ +
(Generally) + }
SECTION 21. { + Claims. (1) Except as provided in subsection
(2) of this section, a person claiming an interest in property
seized for forfeiture must file a claim with the forfeiting
agency's forfeiture counsel not more than 21 days after service
of a forfeiture notice.
(2) If service of a forfeiture notice is made by publication
under section 18 (4) of this 2009 Act, a person claiming an
interest in the property must file a claim with the forfeiting
agency's forfeiture counsel not more than 21 days after the last
publication date. Extensions for filing claims may not be
granted.
(3) A claim under this section must be signed by the claimant
under penalty of perjury and must include:
(a) The true name of the claimant;
(b) The address at which the claimant will accept future
mailings from the court and forfeiture counsel; and
(c) A statement that the claimant has an interest in the seized
property. + }
{ +
(Expedited hearing) + }
SECTION 22. { + Expedited hearing on claim. (1) A person
claiming an interest in seized property may file a petition for
an expedited hearing within 15 days after service of a forfeiture
notice on the person or within such further time as the court may
allow for good cause shown.
(2) A petition for an expedited hearing must contain a claim as
described in section 21 of this 2009 Act if a claim has not
previously been filed. The petition must indicate 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 section 33 of this 2009 Act.
(b) An order restoring custody of seized property to the
petitioner during the pendency of the proceedings.
(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 in
the property. Service must be made as provided in ORCP 7 D.
Service by publication is not required before an expedited
hearing.
(4) A hearing shall be held within 15 days after service of all
persons known to have an interest in the property, or at such
later time as the court may allow for good cause shown. The
hearing shall be limited to deciding whether to grant the relief
sought in the petition.
(5) The court may enter an order directing the return of the
seized property to the claimant during the pendency of the
hearing 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
Enrolled Senate Bill 356 (SB 356-A) Page 13
a reasonable possibility that the petitioner will ultimately
prevail in the proceeding.
(6) If the petition is denied, and the petitioner subsequently
discovers evidence relevant to the claimed relief, the petitioner
may file a new petition under this section at any time before a
trial in the forfeiture action. The new petition shall be served
as provided in section 27 of this 2009 Act.
(7) The parties in a forfeiture action 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 section 24 (1) of
this 2009 Act. + }
SECTION 23. { + Expedited hearing on affirmative defenses. (1)
In any expedited hearing under section 22 of this 2009 Act in
which a petitioner seeks a determination at the hearing of any of
the affirmative defenses provided for in section 33 of this 2009
Act, the court may consider evidence relating to those
affirmative defenses and shall make a determination as to any of
those defenses that may be asserted by the petitioner.
(2) If the court finds that the petitioner has proven an
affirmative defense provided for in section 33 of this 2009 Act,
the court shall order that custody of the seized property be
returned to the petitioner, to the extent of the petitioner's
interest, pending a final determination as to the disposition of
the property, unless the forfeiting agency can show that the
return of the property will result in prejudice to the agency in
seeking forfeiture of other claimants' interest in the property.
(3) If the court finds that the petitioner has failed to prove
an affirmative defense provided for in section 33 of this 2009
Act, the court shall continue the matter for further proceedings
as a forfeiture action under sections 1 to 51 of this 2009
Act. + }
SECTION 24. { + Order restoring custody of property after
expedited hearing. (1) An order restoring custody of property to
a petitioner under section 22 or 23 of this 2009 Act shall:
(a) Prohibit the petitioner from using the property in unlawful
conduct of any kind, or from allowing the property to be used by
any other person in unlawful conduct;
(b) Require the petitioner to service and maintain the property
as may be reasonably appropriate to preserve the property's
value; and
(c) Require the petitioner to inform the court of the exact
location of the property at the time of any trial in a forfeiture
action and to deliver the property to the forfeiting agency
immediately upon the issuance of a judgment of forfeiture.
(2) An order restoring custody of property to a petitioner
under section 22 or 23 of this 2009 Act may include such other
requirements as the court finds appropriate pending a final
determination as to the disposition of the property.
(3) An order restoring custody of property to a petitioner
under section 22 or 23 of this 2009 Act is enforceable by a
contempt proceeding brought on the relation of forfeiture
counsel, by an order directing the petitioner to deliver the
property to the custody of the forfeiting agency, by an order
awarding to the forfeiting agency its reasonably incurred
attorney fees, costs and investigative expenses, and by such
other remedies or relief as the court may find appropriate. + }
{ +
EX PARTE FORFEITURES + }
Enrolled Senate Bill 356 (SB 356-A) Page 14
SECTION 25. { + Ex parte forfeiture. (1) An ex parte judgment
of forfeiture may be entered under this section only if:
(a) The property is personal property;
(b) The property 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; and
(c) A claim is not filed in the manner provided by section 21
of this 2009 Act within the time allowed.
(2) At any time after the time for filing a claim under section
21 of this 2009 Act has expired, a forfeiting agency may petition
the circuit court specified in section 26 (3) of this 2009 Act
for an ex parte judgment of forfeiture under this section. The
petition must state that the requirements of subsection (1) of
this section have been met. An affidavit must be attached to the
petition that states that forfeiture notice was served on all
persons claiming an interest in the property, or that sets forth
facts demonstrating the forfeiting agency's efforts to accomplish
service, together with proof of any publication of notice.
(3) Upon filing of a petition under this section, the court
shall enter a judgment forfeiting the property identified in the
petition. + }
{ +
FORFEITURE ACTIONS + }
{ +
(Generally) + }
SECTION 26. { + Forfeiture actions generally. (1) A civil
forfeiture action in rem may be brought as provided in this
section in any case in which forfeiture is sought. A civil
forfeiture action must be brought if:
(a) The property is real property;
(b) The property is in whole or part a manufactured dwelling as
defined in ORS 446.003;
(c) The property is a floating home as defined in ORS 830.700;
(d) A claim has been made for the property under section 21 of
this 2009 Act; or
(e) A person, other than a person who is believed by the
forfeiting agency to have engaged in prohibited conduct, is known
to have an interest in the property.
(2) If a claim has been made for seized property under section
21 of this 2009 Act, forfeiture counsel must commence a
forfeiture action not more than 15 days after receipt of the
claim. In all other cases, a forfeiture action must be commenced
by forfeiture counsel within 30 days after seizure of the
property.
(3) If the property to be forfeited is real property, the
forfeiture action must be commenced in the circuit court for a
county in which the property is situated. In all other cases, the
forfeiture action must be commenced in the circuit court for the
county in which the property was seized, or in the circuit court
for the county in which any part of the prohibited conduct took
place.
(4) A forfeiture action is commenced by filing a complaint. A
copy of the inventory prepared under section 8 of this 2009 Act
must be attached to the complaint. The complaint need only allege
that there is probable cause for seizure of the property or that
a court order was issued under section 9 of this 2009 Act, and
Enrolled Senate Bill 356 (SB 356-A) Page 15
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.
(5) A complaint in a forfeiture action 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 forfeiture. This
subsection does not affect the ability of a claimant to file a
motion to strike or a motion for summary judgment based on the
acquittal of the claimant of all criminal charges on which the
forfeiture action is based, or based on dismissal of all criminal
charges on which the forfeiture action is based.
(6) Forfeiture actions are governed by the Oregon Rules of
Civil Procedure except to the extent those rules conflict with
sections 1 to 51 of this 2009 Act. + }
{ +
(Service of complaint) + }
SECTION 27. { + Service. (1) Upon commencement of a forfeiture
action, the forfeiting agency must serve the summons and
complaint on all persons known to have an interest in the
property in the manner provided by ORCP 5 and 7 D. In addition,
notice of the action must be published as provided in ORCP 7
D(6)(b) to (d) unless the forfeiture notice for the property was
previously published in the manner provided in section 18 (4) of
this 2009 Act.
(2) If the property to be forfeited in a forfeiture action is a
vehicle, and substitute service on the claimant is required
because personal service cannot be reasonably accomplished,
service in the manner provided by ORCP 7 D(4) is sufficient to
establish jurisdiction over a registered owner or operator of a
vehicle.
(3) If the property to be forfeited in a forfeiture action 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 must 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. + }
{ +
(Response to complaint) + }
SECTION 28. { + Responsive pleading. Except as provided by
section 29 of this 2009 Act, a person claiming an interest in
property that is the subject of a forfeiture action must file a
responsive pleading as provided in the Oregon Rules of Civil
Procedure. If the person has not previously filed a claim under
section 21 of this 2009 Act, a claim as described in section 21
(3) of this 2009 Act must be attached to the responsive
pleading. + }
SECTION 29. { + Response by affidavit. (1) In lieu of filing a
responsive pleading under section 28 of this 2009 Act, a
financial institution holding an interest in the property may
respond to a complaint with an affidavit establishing the
financial institution's interest in the property.
(2) In lieu of filing a responsive pleading under section 28 of
this 2009 Act, a person who has an interest in the property by
Enrolled Senate Bill 356 (SB 356-A) Page 16
reason of being the transferee or conveyor of an interest in the
property under a contract for transfer or conveyance of an
interest in real property as defined in ORS 93.905 may respond to
a complaint in a forfeiture action by filing an affidavit
establishing that:
(a) The person did not take the property with the intent to
defeat forfeiture of the property;
(b) The person did not know and did not have reason to know
that the property constituted proceeds or an instrumentality of
prohibited conduct; and
(c) The claimant did not acquiesce in the criminal conduct as
described in section 32 (4) of this 2009 Act.
(3) An affidavit under subsection (1) or (2) of this section
must be filed within 30 days after service of the summons and
complaint. The failure to file the affidavit or other responsive
pleading under section 28 of this 2009 Act within the time
allowed constitutes a default.
(4) A forfeiting agency may file objections to any or all of
the assertions made in an affidavit filed under subsection (1) or
(2) of this section. The objections must be filed within 20 days
after the filing of an affidavit under subsection (1) or (2) of
this section. The person filing the affidavit may respond to the
objections by filing a supplemental affidavit limited to the
matters stated in the affidavit of the forfeiting agency. The
responding affidavit must be filed not later than five days after
the forfeiting agency files objections.
(5) If a forfeiting agency does not file objections within the
time allowed by subsection (4) of this section, the interest of
the person filing the affidavit is conclusively established for
all purposes under sections 1 to 51 of this 2009 Act. + }
SECTION 30. { + Hearing on objections to affidavit. (1) If a
forfeiting agency files objections under section 29 of this 2009
Act, 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.
(2) If the court determines that there is no genuine issue of
material fact as to the truth of the assertions in an affidavit
filed under section 29 (2) of this 2009 Act:
(a) The interest of the financial institution, transferor,
conveyor or successor in interest shall be conclusively
established for all purposes under sections 1 to 51 of this 2009
Act;
(b) A transferor, conveyor or successor in interest shall be
considered a financial institution for all purposes under
sections 1 to 51 of this 2009 Act; and
(c) 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.
(3) If the court determines that there is a genuine issue of
material fact as to the truth of the assertions in an affidavit
filed under section 29 of this 2009 Act, the financial
institution, transferor, conveyor or successor in interest shall,
within 15 days, file a responsive pleading as provided by section
28 of this 2009 Act. 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
Enrolled Senate Bill 356 (SB 356-A) Page 17
determines that the affidavit of the financial institution,
transferor, conveyor or successor in interest was frivolous. + }
SECTION 31. { + Foreclosure of security interests, liens and
vendor's interest. (1) If a responsive pleading or affidavit is
filed under section 28 or 29 of this 2009 Act, the court shall
foreclose all security interests, liens and vendor's interests in
the property, including contracts for the transfer or conveyance
of the property, for which the court determines that there is a
legal or equitable basis for foreclosure.
(2) Foreclosure of a security interest, lien or vendor's
interest under this section does not prevent a claimant from
obtaining any deficiency to which the claimant would otherwise be
entitled under the law. + }
{ +
(Standards of proof and defenses) + }
SECTION 32. { + Standards of proof in forfeiture action. (1)
In all forfeiture actions, the forfeiting agency must prove that
a person has been convicted of a crime that constitutes
prohibited conduct, and that the property to be forfeited is:
(a) Proceeds of the crime for which the person has been
convicted;
(b) An instrumentality of the crime for which the person has
been convicted;
(c) Proceeds of one or more other crimes similar to the crime
for which the person was convicted; or
(d) An instrumentality of one or more other crimes similar to
the crime for which the person was convicted.
(2) A forfeiting agency may seek forfeiture of the property of
a claimant who has been convicted of a crime that constitutes
prohibited conduct if the property to be forfeited meets the
requirements of subsection (1) of this section. A forfeiting
agency may seek forfeiture of the property of a claimant who has
not been convicted of a crime if the forfeiting agency proves
that:
(a) Another person has been convicted of a crime that
constitutes prohibited conduct;
(b) The property to be forfeited meets the requirements of
subsection (1) of this section; and
(c) The claimant:
(A) Took the property with the intent to defeat forfeiture of
the property;
(B) Knew or should have known that the property was proceeds of
prohibited conduct; or
(C) Acquiesced in the prohibited conduct.
(3) Except as provided in subsection (5) of this section, if
the property to be forfeited in a forfeiture action is personal
property, the forfeiting agency must prove the elements specified
in subsection (2) of this section by a preponderance of the
evidence. If the property to be forfeited in a forfeiture action
is real property, the forfeiting agency must prove the elements
specified in subsection (2) of this section by clear and
convincing evidence.
(4) For the purposes of subsection (2)(c) of this section, a
claimant shall be considered to have acquiesced in prohibited
conduct if the claimant knew of the prohibited conduct and failed
to take reasonable action under the circumstances to terminate
the prohibited conduct or prevent use of the seized property to
facilitate the prohibited conduct.
Enrolled Senate Bill 356 (SB 356-A) Page 18
(5) If the forfeiting agency establishes in a forfeiture action
that cash, weapons or negotiable instruments were found in close
proximity to controlled substances or to instrumentalities of
prohibited conduct, the burden is on any person claiming the
cash, weapons or negotiable instruments to prove by a
preponderance of the evidence that the cash, weapons or
negotiable instruments are not proceeds of prohibited conduct or
an instrumentality of prohibited conduct. + }
SECTION 33. { + Affirmative defenses in forfeiture action. (1)
A claimant may plead as an affirmative defense that the property
was seized in violation of section 5 of this 2009 Act.
(2) In any forfeiture action brought against real property
claimed to be an instrumentality of prohibited conduct relating
to controlled substances, 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 by a preponderance of the evidence,
the court shall enter judgment for the claimant. + }
{ +
(Stays and consolidation of actions) + }
SECTION 34. { + Stays. (1) The court may stay a forfeiture
action 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 that 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 forfeiture action.
(2) The court may stay a forfeiture action upon the filing of
criminal charges that are related to the prohibited conduct that
is the basis for the action. The stay may be granted upon the
motion of forfeiture counsel, the motion of the district attorney
in the related criminal proceeding, or the motion of the
defendant in the related criminal proceeding. A stay granted
under this section remains in effect until the final resolution
of the related criminal proceeding. A motion for a stay by the
defendant in the related criminal proceeding constitutes a waiver
of double jeopardy by the defendant as to the forfeiture action
and any related criminal proceeding.
(3) A forfeiture action that has been stayed under this section
may be consolidated for trial or other resolution with any
related criminal proceeding as provided in section 35 of this
2009 Act.
(4) Any party may file a motion with the court at any time to
lift a stay granted under this section if good cause no longer
exists for the stay. + }
SECTION 35. { + Consolidation of actions. (1) A forfeiture
action may be consolidated with any other action that relates to
the same property or parties on motion by any party in the
forfeiture action.
(2) Upon motion by the state or other public body, or any
criminal defendant who is also a claimant, a forfeiture action
under this section may be consolidated for trial or other
resolution with any related criminal proceeding. Trial or other
resolution of the forfeiture action shall immediately follow the
resolution of the related criminal proceeding, shall be part of
the other proceeding and shall be heard by the same trier of
Enrolled Senate Bill 356 (SB 356-A) Page 19
fact. Any objection by the defendant to the consolidation, or
any motion by the defendant to sever the related criminal case
from the forfeiture action, constitutes a waiver of double
jeopardy as to the related criminal action and the forfeiture
action. + }
{ +
(Special motion for release of property) + }
SECTION 36. { + Special motion for release of property. (1)
Any claimant who is alleged to have engaged in prohibited
conduct, and who has filed a responsive pleading or affidavit in
the manner required by section 28 or 29 of this 2009 Act, may
file a special motion for the release of all or part of the
property subject to the 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 forfeiture of the released property.
(2) A motion under this section may not be made for the release
of any property that is held as evidence or for protective
purposes. + }
{ +
(Judgment) + }
SECTION 37. { + Judgment forfeiting property generally. (1) A
judgment forfeiting property shall recite the basis for the
judgment.
(2) After entry of a judgment forfeiting property, the
forfeiting agency may transfer good and sufficient title for the
property to purchasers and other transferees, and the title shall
be recognized by all courts and public bodies. Any public body
whose official functions include the issuance of certificates of
title or other evidence of title is immune from civil or criminal
liability if the issuance is pursuant to a judgment of
forfeiture.
(3) If real property is forfeited under a judgment forfeiting
property, the forfeiting agency shall warrant the title of the
property against constitutional defect. A warranty under this
section is limited to the purchase price of the real property.
(4) Forfeiture counsel shall send a copy of each judgment
entered in forfeiture proceedings, including ex parte judgments
entered under section 25 of this 2009 Act, to the Asset
Forfeiture Oversight Advisory Committee.
(5) A forfeiting agency may apply to any circuit court judge
for a writ of assistance directing the sheriff of the county to
assist the forfeiting agency in seizing property identified in a
judgment forfeiting property. + }
SECTION 38. { + Judgment forfeiting property; judgment for
forfeiting agency. (1) If a judgment forfeiting property is
entered, and the judgment finds against all claimants who have
filed a responsive pleading or affidavit under section 28 or 29
of this 2009 Act, title to the forfeited property passes to the
forfeiting agency free of any interest or encumbrance in favor of
a person who has been given notice of the proceedings.
Enrolled Senate Bill 356 (SB 356-A) Page 20
(2) 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
forfeiting the property to the forfeiting agency, subject to the
interests of any claimants for whom judgment was entered.
(3) If a judgment forfeiting property is entered, all valid
interests in the property that are not foreclosed or otherwise
extinguished under the judgment remain in effect. + }
SECTION 39. { + Judgment for claimant. (1) Except as provided
in subsection (2) of this section, if a judgment is entered for a
claimant in a proceeding under sections 1 to 51 of this 2009 Act,
the claimant's property or interest in the property shall be
returned or conveyed immediately to the claimant. 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.
The court shall award costs, disbursements and attorney fees in
the manner provided by ORCP 68 to the prevailing claimant, to be
paid by the forfeiting agency.
(2) If a judgment is entered for a claimant in a proceeding
under sections 1 to 51 of this 2009 Act, but the court has
foreclosed one or more interests in the property under section 31
of this 2009 Act, 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. The judgment shall require that
the property then be sold, pursuant to a sheriff's sale or other
sale authorized by the court, within such time as may be
prescribed by the court. The property shall be sold subject to
any interests in the property that 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 section 29 (1) of this 2009 Act.
The judgment shall require that the proceeds of the sale be
applied as follows:
(a) The proceeds shall first be used to pay the costs of the
sale.
(b) After payment of the costs of the sale, the proceeds shall
be applied to the satisfaction of the foreclosed liens, security
interests and contracts in the order of their priority.
(c) After making the payments required under paragraphs (a) and
(b) of this subsection, any remaining amounts shall be paid to
the claimant. + }
SECTION 40. { + Default judgment. (1) The court shall enter a
judgment finding that a person who claims an interest in property
that is the subject of a forfeiture action is in default, and
provide for the forfeiture of the claimant's interest without
hearing, if:
(a) The person does not make a claim for the property under
section 21 of this 2009 Act or file a responsive pleading under
section 28 of this 2009 Act; or
Enrolled Senate Bill 356 (SB 356-A) Page 21
(b) The person files a responsive pleading under section 28 of
this 2009 Act but is thereafter found to be in default in the
forfeiture action.
(2) A default judgment may be entered under this section only
if the forfeiting agency files an affidavit with the court
showing that there was probable cause for seizure of the
property. + }
{ +
DISPOSITION OF FORFEITED PROPERTY + }
SECTION 41. { + Disposition generally. Except as otherwise
provided by intergovernmental agreement and sections 1 to 51 of
this 2009 Act, a forfeiting agency may:
(1) Sell, lease, lend or transfer forfeited property to any
federal, state or local law enforcement agency or district
attorney.
(2) Sell forfeited property by public or other commercially
reasonable sale and pay from the proceeds the expenses of keeping
and selling the property.
(3) Retain forfeited property.
(4) With written authorization from the district attorney for
the county in which the property was seized, destroy any
forfeited firearms or controlled substances. + }
SECTION 42. { + Distribution generally; intergovernmental
agreements. A forfeiting agency shall distribute forfeiture
proceeds equitably. Distribution of forfeiture proceeds may be
made pursuant to intergovernmental agreement under ORS chapter
190. An intergovernmental agreement providing for the
distribution of forfeiture proceeds may not provide for a
distribution that violates section 10, Article XV of the Oregon
Constitution. + }
SECTION 43. { + Distribution of forfeiture proceeds by local
government. (1) The provisions of this section apply only to a
forfeiting agency other than the state, and apply only to
forfeiture proceeds arising out of prohibited conduct as defined
by section 1 (11)(a) of this 2009 Act.
(2) If the forfeiting agency is not a county, the forfeiting
agency shall enter into an agreement, under ORS chapter 190, with
the county in which the property was seized to provide a portion
of the forfeiture proceeds to the county.
(3) After entry of a judgment of forfeiture, a forfeiting
agency shall first pay from the forfeiture proceeds the costs
incurred by seizing and forfeiting agencies in investigating and
prosecuting the case, including costs, disbursements and attorney
fees as defined in ORCP 68 A, special expenses such as the
provision of currency for undercover law enforcement operations,
and the expenses of maintaining the seized property. The
forfeiting agency may not pay expenditures made in connection
with the ordinary maintenance and operation of a seizing or
forfeiting agency under this subsection.
(4) After payment of costs under subsection (3) of this
section, the forfeiting agency shall:
(a) Deduct an amount equal to five percent of the forfeiture
proceeds and deposit that amount in the Illegal Drug Cleanup Fund
established by ORS 475.495 for the purposes specified in ORS
475.495 (5) and (6);
(b) Deduct an amount equal to 2.5 percent of the forfeiture
proceeds and deposit that amount in the Asset Forfeiture
Oversight Account;
Enrolled Senate Bill 356 (SB 356-A) Page 22
(c) Deduct an amount equal to 20 percent of the forfeiture
proceeds and deposit that amount in the Oregon Criminal Justice
Commission Account established under ORS 137.662 for disbursement
to drug court programs as described in ORS 3.450; and
(d) Deduct an amount equal to 10 percent of the forfeiture
proceeds and deposit that amount in the State Commission on
Children and Families Account established by ORS 417.733 for
disbursement to relief nurseries as described in ORS 417.788.
(5) If the forfeiting agency has entered into an agreement with
a county under subsection (2) of this section, after paying costs
under subsection (3) of this section and making the deductions
required by subsection (4) of this section, the forfeiting agency
shall pay the county the amounts required by the agreement.
(6) After making all payments and deductions required by
subsections (3), (4) and (5) of this section, the forfeiting
agency may use the remaining forfeiture proceeds, including
amounts received by a county under subsection (5) of this section
or by a any other public body under an intergovernmental
agreement entered into under section 42 of this 2009 Act, only
for:
(a) The purchase of equipment necessary for the enforcement of
laws relating to the unlawful delivery, distribution, manufacture
or possession of controlled substances;
(b) Currency for undercover law enforcement operations;
(c) Drug awareness and drug education programs offered in
middle schools and high schools;
(d) The expenses of a forfeiting agency in operating joint
narcotic operations with other forfeiting agencies pursuant to
the terms of an intergovernmental agreement, including paying for
rental space, utilities and office equipment; and
(e) Expenses of a district attorney in criminal prosecutions
for unlawful delivery, distribution, manufacture or possession of
controlled substances, as determined through intergovernmental
agreement between the forfeiting agency and the district
attorney.
(7) Notwithstanding subsection (6) of this section, growing
equipment and laboratory equipment seized by a forfeiting agency
that was used, or intended for use, in the manufacturing of
controlled substances may be donated to a public school,
community college or institution of higher education.
(8) A forfeiting agency shall sell as much property as may be
needed to make the distributions required by this section.
Distributions required under subsection (4) 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 44. { + Distribution of forfeiture proceeds by state.
(1) The provisions of this section apply only when the forfeiting
agency is the state, and apply only to forfeiture proceeds
arising out of prohibited conduct as defined by section 1 (11)(a)
of this 2009 Act.
(2) After entry of a judgment of forfeiture, a forfeiting
agency shall first pay from the forfeiture proceeds the costs
incurred by seizing and forfeiting agencies in investigating and
prosecuting the case, including costs, disbursements and attorney
fees as defined in ORCP 68 A, special expenses such as the
provision of currency for undercover law enforcement operations,
and the expenses of maintaining the seized property. The
forfeiting agency may not pay expenditures made in connection
with the ordinary maintenance and operation of a seizing or
Enrolled Senate Bill 356 (SB 356-A) Page 23
forfeiting agency under this subsection. 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. Any amount paid to or retained by the Oregon
State Police under this subsection shall be deposited in the
State Police Account.
(3) After payment of costs under subsection (2) of this
section, the forfeiting agency shall:
(a) Deduct an amount equal to 10 percent of the forfeiture
proceeds and deposit that amount in the Illegal Drug Cleanup Fund
established by ORS 475.495 for the purposes specified in ORS
475.495 (5) and (6);
(b) Deduct an amount equal to three percent of the forfeiture
proceeds, not to exceed $50,000 in a biennium, and deposit that
amount in the Asset Forfeiture Oversight Account;
(c) Deduct an amount equal to 20 percent of the forfeiture
proceeds and deposit that amount in the Oregon Criminal Justice
Commission Account established under ORS 137.662 for disbursement
to drug court programs as described in ORS 3.450; and
(d) Deduct an amount equal to 10 percent of the forfeiture
proceeds and deposit that amount in the State Commission on
Children and Families Account established by ORS 417.733 for
disbursement to relief nurseries as described in ORS 417.788.
(4) If the forfeiting agency has entered into an
intergovernmental agreement with another public body under
section 42 of this 2009 Act, or has entered into an agreement
with any other law enforcement agency of the state relating to
distribution of forfeiture proceeds, after paying costs under
subsection (2) of this section and making the deductions required
by subsection (3) of this section, the forfeiting agency shall
pay an equitable portion of the forfeiture proceeds to each
agency participating in the seizure or forfeiture as provided by
the agreement.
(5) After making all payments and deductions required by
subsections (2), (3) and (4) of this section, the forfeiting
agency shall distribute the remaining forfeiture proceeds as
follows:
(a) If no law enforcement agency other than the Department of
Justice participated in the seizure or forfeiture, the remaining
forfeiture proceeds, and forfeiture proceeds received by the
Department of Justice under subsection (4) of this section, shall
be divided between the Criminal Justice Revolving Account and the
Special Crime and Forfeiture Account 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) If no law enforcement agency other than the Department of
State Police participated in the seizure or forfeiture, the
remaining proceeds, and proceeds received by the Department of
Enrolled Senate Bill 356 (SB 356-A) Page 24
State Police under subsection (4) of this section, 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.
(6) Forfeiture proceeds distributed under subsection (5) of
this section may be used only for:
(a) The purchase of equipment necessary for the enforcement of
laws relating to the unlawful delivery, distribution, manufacture
or possession of controlled substances;
(b) Currency for undercover law enforcement operations;
(c) Drug awareness and drug education programs offered in
middle schools and high schools; and
(d) The expenses of a forfeiting agency in operating joint
narcotic operations with other forfeiting agencies pursuant to
the terms of an intergovernmental agreement, including paying for
rental space, utilities and office equipment.
(7) A forfeiting agency shall sell as much property as may be
needed to make the distributions required by this section.
Distributions required under subsection (3) 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 45. { + Special Crime and Forfeiture Account. The
Special Crime and Forfeiture Account is established in the
General Fund of the State Treasury. The account shall consist of
all forfeiture proceeds deposited in the account under section 44
of this 2009 Act. All moneys in the account are continuously
appropriated to the Department of Justice and may be used only
for the purposes specified in section 44 (6) of this 2009
Act. + }
{ +
MISCELLANEOUS + }
SECTION 46. { + Prosecuting attorneys and forfeiture counsel.
(1) 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 forfeiture proceeding.
(2) In any forfeiture proceeding for which related criminal
proceedings have been brought or could be brought, 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. + }
SECTION 47. { + Liability of seizing agencies, forfeiting
agencies and forfeiture counsel. (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 sections 1 to 51 of this 2009 Act if there was
Enrolled Senate Bill 356 (SB 356-A) Page 25
reasonable suspicion that the property was subject to seizure or
forfeiture. An order directing seizure issued under section 9 of
this 2009 Act 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 (14), Article XV of
the Oregon Constitution. + }
SECTION 48. { + Indemnification of officers, employees and
agents; payment of civil penalties. (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 (14),
Article XV of the Oregon Constitution.
(2) Any amount recovered as a civil penalty in a claim made
under section 10 (14), 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. + }
{ +
ASSET FORFEITURE OVERSIGHT ADVISORY COMMITTEE + }
SECTION 49. { + Record keeping requirements. (1) All
forfeiting agencies shall maintain written documentation of each
seizure for forfeiture made under the provisions of sections 1 to
51 of this 2009 Act, sale of seized or forfeited property under
sections 1 to 51 of this 2009 Act, decision to retain property
forfeited under the provisions of sections 1 to 51 of this 2009
Act, transfer of property forfeited under sections 1 to 51 of
this 2009 Act and other dispositions of property seized for
forfeiture or forfeited under the provisions of sections 1 to 51
of this 2009 Act.
(2) Forfeiture counsel shall report each seizure for forfeiture
and each forfeiture under the provisions of sections 1 to 51 of
this 2009 Act to the Asset Forfeiture Oversight Advisory
Committee as soon as reasonably possible after the conclusion of
forfeiture proceedings. 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) Public bodies that receive forfeiture proceeds under
sections 43 (2) and 44 (4) of this 2009 Act 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 public body to report on how proceeds
received by the public body 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 public body. + }
SECTION 50. { + Asset Forfeiture Oversight Advisory Committee.
(1) The Asset Forfeiture Oversight Advisory Committee is created.
The committee consists of 12 members to be appointed as follows:
Enrolled Senate Bill 356 (SB 356-A) Page 26
(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 ORS 131.550 to 131.600 and sections
1 to 51 of this 2009 Act, 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 public bodies 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 ORS 131.550 to 131.600 and sections 1 to 51 of this
2009 Act.
(d) Make any recommendations for additional legislation
governing forfeiture actions brought under ORS 131.550 to 131.600
and sections 1 to 51 of this 2009 Act.
(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.
(7) For purposes of this section, 'forfeiture counsel '
includes forfeiture counsel as defined in ORS 131.550. + }
SECTION 51. { + Asset Forfeiture Oversight Account. (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 public body under the provisions of
sections 43 and 44 of this 2009 Act; and
(b) Any other moneys appropriated to the Asset Forfeiture
Oversight Account.
Enrolled Senate Bill 356 (SB 356-A) Page 27
(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 expenses of the Asset Forfeiture
Oversight Advisory Committee.
(5) If, at the end of a biennium, the Asset Forfeiture
Oversight Account has received amounts under the provisions of
sections 43 and 44 of this 2009 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 public body 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 public body. The commission
is not required to issue any refund under this subsection if the
amount of the refund is less than $25. + }
{ +
USE OF FUNDS IN ILLEGAL DRUG CLEANUP FUND + }
SECTION 52. 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.126 - } { + sections 43 and 44 of this 2009 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) In addition to the purposes provided for in
subsection (5) of this section, moneys in the Illegal Drug
Cleanup Fund received from forfeiture proceeds under the
provisions of sections 43 and 44 of this 2009 Act may be
transferred to the Department of Human Services to support the
administration of the illegal drug manufacturing cleanup program
provided for in ORS 453.855 to 453.912. + }
Enrolled Senate Bill 356 (SB 356-A) Page 28
{ - (6) - } { + (7) + } 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 - } { +
section 43 of this 2009 Act + }. 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 - } { + section 43 of
this 2009 Act + }, 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.
{ +
CONFORMING AMENDMENTS + }
SECTION 53. ORS 30.315 is amended to read:
30.315. (1) An incorporated city or any county may maintain
civil proceedings in courts of this state against any person or
property to enforce requirements or prohibitions of its
ordinances or resolutions when it seeks:
(a) To collect a fee or charge;
(b) To enforce a forfeiture;
(c) To require or enjoin the performance of an act affecting
real property;
(d) To enjoin continuance of a violation that has existed for
10 days or more; or
(e) To enjoin further commission of a violation that otherwise
may result in additional violations of the same or related penal
provisions affecting the public morals, health or safety.
(2) The remedies provided by this section are supplementary and
in addition to those described in ORS 30.310.
(3) Nothing in this section shall affect the limitations
imposed on cities and counties by { - ORS 475A.010 (3) and
(4) - } { + section 2 (3) and (4) of this 2009 Act + }.
SECTION 54. ORS 131.594 is amended to read:
131.594. (1) After the seizing agency distributes property
under ORS 131.588, and when the seizing agency is not the state,
the seizing agency shall dispose of and distribute property as
follows:
(a) The seizing agency shall pay costs first from the property
or its proceeds. As used in this subsection, 'costs ' includes
the expenses of publication, service of notices, towing, storage
and servicing or maintaining the seized property under ORS
131.564.
(b) After costs have been paid, the seizing agency shall
distribute to the victim any amount the seizing agency was
ordered to distribute under ORS 131.588 (4).
(c) After costs have been paid and distributions under
paragraph (b) of this subsection have been made, the seizing
agency shall distribute the rest of the property to the general
fund of the political subdivision that operates the seizing
agency.
(2) Of the property distributed under subsection (1)(c) of this
section, the political subdivision shall distribute:
(a) Three percent to the Asset Forfeiture Oversight Account
established in { - ORS 475A.160 - } { + section 51 of this
2009 Act + };
(b) Seven percent to the Illegal Drug Cleanup Fund established
in ORS 475.495 for the purposes specified in ORS 475.495 (5) { +
and (6) + }; and
Enrolled Senate Bill 356 (SB 356-A) Page 29
(c) Ten percent to the state General Fund.
(3) Of the property distributed under subsection (1)(c) of this
section that remains in the general fund of the political
subdivision after the distributions required by subsection (2) of
this section have been made:
(a) Fifty percent must be for official law enforcement use; and
(b) Fifty percent must be used for substance abuse treatment
pursuant to a plan developed under ORS 430.420.
(4) Except as otherwise provided by intergovernmental
agreement, the seizing 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 seizing agency's jurisdiction, destroy any firearms or
controlled substances.
(5) A political subdivision may sell as much property as may be
needed to make the distributions required by subsections (1) and
(2) of this section. A political subdivision shall make
distributions to the Asset Forfeiture Oversight Account, the
Illegal Drug Cleanup Fund and the state General Fund that are
required by subsection (2) of this section once every three
months. The distributions are due within 20 days of the end of
each quarter. Interest does not accrue on amounts that are paid
within the period specified by this subsection.
(6) A seizing agency may donate growing equipment and
laboratory equipment that was used, or intended for use, in
manufacturing of controlled substances to a public school,
community college or state institution of higher education.
(7) This section applies only to criminal forfeiture proceeds
arising out of prohibited conduct.
SECTION 55. ORS 131.597 is amended to read:
131.597. (1) After the seizing agency distributes property
under ORS 131.588, and when the seizing agency is the state or
when the state is the recipient of property forfeited under ORS
131.550 to 131.600, the seizing agency shall dispose of and
distribute property as follows:
(a) The seizing agency shall pay costs first from the property
or its proceeds. As used in this subsection, 'costs ' includes
the expenses of publication, service of notices, towing, storage
and servicing or maintaining the seized property under ORS
131.564.
(b) After costs have been paid, the seizing agency shall
distribute to the victim any amount the seizing agency was
ordered to distribute under ORS 131.588 (4).
(c) Of the property remaining after costs have been paid under
paragraph (a) of this subsection and distributions have been made
under paragraph (b) of this subsection, the seizing agency shall
distribute:
(A) Three percent to the Asset Forfeiture Oversight Account
established in ORS { - 475A.160 - } { + section 51 of this
2009 Act + };
(B) Seven percent to the Illegal Drug Cleanup Fund established
in ORS 475.495 for the purposes specified in ORS 475.495 (5) { +
and (6) + };
(C) Ten percent to the state General Fund;
Enrolled Senate Bill 356 (SB 356-A) Page 30
(D) Subject to subsection (5) of this section, 40 percent to
the Department of State Police or the Department of Justice for
official law enforcement use; and
(E) Forty percent to the Drug Prevention and Education Fund
established in ORS 430.422.
(2)(a) Any amount paid to or retained by the Department of
Justice under subsection (1) of this section must be deposited in
the Criminal Justice Revolving Account in the State Treasury.
(b) Any amount paid to or retained by the Department of State
Police under subsection (1) of this section must be deposited in
the State Police Account.
(3) 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.
(4) When the state has entered into an intergovernmental
agreement with one or more political subdivisions under ORS
131.591, or when a law enforcement agency of this state has
entered into an agreement with another law enforcement agency of
this state, an equitable portion of the forfeited property
distributed under subsection (1)(c)(D) of this section must be
distributed to each agency participating in the seizure or
criminal forfeiture as provided by the agreement.
(5) The property distributed under subsection (1)(c)(D) of this
section, including any proceeds received by the state under an
intergovernmental agreement or under an agreement between state
law enforcement agencies, must 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 (4) of this section, the property must be deposited in
the Criminal Justice Revolving 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 (4) of this section, the property must be
deposited in the State Police Account.
(6) The seizing agency may sell as much property as may be
needed to make the distributions required by subsection (1) of
this section. The seizing agency shall make distributions to the
Asset Forfeiture Oversight Account and the Illegal Drug Cleanup
Fund that are required by subsection (1) of this section once
every three months. The distributions are due within 20 days of
the end of each quarter. Interest does not accrue on amounts that
are paid within the period specified by this subsection.
SECTION 56. ORS 137.662 is amended to read:
137.662. The Oregon Criminal Justice Commission Account is
established separate and distinct from the General Fund. All
moneys received by the Oregon Criminal Justice Commission, other
than appropriations from the General Fund, and except those
Enrolled Senate Bill 356 (SB 356-A) Page 31
moneys described in { - ORS 475A.160 - } { + section 51 of
this 2009 Act + }, shall be deposited into the account and are
continuously appropriated to the commission to carry out the
duties, functions and powers of the commission.
SECTION 57. ORS 163.707 is amended to read:
163.707. (1) A motor vehicle used by the owner in a drive-by
shooting is subject to civil in rem forfeiture.
(2) Seizure and forfeiture proceedings under this section shall
be conducted in accordance with { - ORS chapter 475A - } { +
sections 1 to 51 of this 2009 Act + }.
(3) As used in this section, 'drive-by shooting' means
discharge of a firearm from a motor vehicle while committing or
attempting to commit:
(a) Aggravated murder under ORS 163.095;
(b) Murder under ORS 163.115;
(c) Manslaughter in any degree under ORS 163.118 or 163.125;
(d) Assault in any degree under ORS 163.160, 163.165, 163.175
or 163.185;
(e) Menacing under ORS 163.190;
(f) Recklessly endangering another person under ORS 163.195;
(g) Assaulting a public safety officer under ORS 163.208; or
(h) Intimidation in any degree under ORS 166.155 or 166.165.
SECTION 58. ORS 167.164 is amended to read:
167.164. (1) On and after December 1, 1991, a person commits
the crime of possession of a gray machine if the person
manufactures, sells, leases, transports, places, possesses or
services a gray machine or conducts or negotiates a transaction
affecting or designed to affect the ownership, custody or use of
a gray machine.
(2) Possession of a gray machine is a Class C felony.
(3) Violation of, solicitation to violate, attempt to violate
or conspiracy to violate subsection (1) of this section
constitutes prohibited conduct for purposes of { - ORS chapter
475A - } { + sections 1 to 51 of this 2009 Act + }, and shall
give rise to civil in rem forfeiture as provided in { - ORS
chapter 475A - } { + sections 1 to 51 of this 2009 Act + }. A
judgment providing for forfeiture may direct that the machine be
destroyed.
(4) It is a defense to a charge of possession of a gray machine
if the machine that caused the charge to be brought was
manufactured prior to 1958 and was not operated for purposes of
unlawful gambling.
SECTION 59. ORS 358.925 is amended to read:
358.925. (1) Violation of ORS 358.920 or 390.235 is prohibited
conduct for the purposes of { - ORS chapter 475A - } { +
sections 1 to 51 of this 2009 Act + }. Proceeds and
instrumentalities of a violation of ORS 358.920 or 390.235 may be
seized and forfeited in the manner provided by { - ORS chapter
475A - } { + sections 1 to 51 of this 2009 Act + }. An action
for civil forfeiture under this section may be commenced by the
Attorney General or by the district attorney for the county in
which any of the property is seized.
(2) Property subject to forfeiture under this section may be
seized by a police officer upon court process. Seizure without
process may be made if:
(a) The seizure is incident to a lawful arrest or search or an
inspection under an administrative inspection warrant; or
(b) The property subject to seizure has been the subject of a
prior judgment in favor of the state.
Enrolled Senate Bill 356 (SB 356-A) Page 32
(3) In the event of a seizure under subsection (1) of this
section, a forfeiture proceeding shall be instituted promptly.
Property taken or detained under this section shall not be
subject to replevin, but is deemed to be in the custody of the
police officer making the seizure, subject only to the order of
the court. When property is seized under this section, pending
forfeiture and final disposition, the police officer may:
(a) Place the property under seal;
(b) Remove the property to a place designated by the court; or
(c) Require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(4) In any action brought under this section, the circuit court
shall give priority to the hearing and determination. Pending
final determination, the circuit court may at any time enter such
injunctions, prohibitions or restraining orders, or take such
actions as the court may deem proper.
(5) A judgment rendered in favor of the state in any criminal
proceeding for a violation of ORS 358.920 or 390.235 shall estop
the defendant in any subsequent civil action or proceeding
brought by the state or any other person as to all matters as to
which such judgment would be an estoppel as between the state and
the defendant.
(6) Notwithstanding any provision of { - ORS chapter 475A - }
{ + sections 1 to 51 of this 2009 Act + }, after entry of a
judgment of forfeiture in an action under this section, a
forfeiting agency shall deliver the forfeited property and
proceeds of the forfeited property to the Commission on Indian
Services after making any deductions allowed for costs incurred
by the forfeiting agency. The commission shall deliver the
property and proceeds to the appropriate Indian tribe, as
designated by the commission. If there is no appropriate Indian
tribe, the commission shall use the property and proceeds for
Indian historic preservation.
SECTION 60. 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 - } { + sections 1 to 51
of this 2009 Act + }:
(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 61. ORS 809.730 is amended to read:
Enrolled Senate Bill 356 (SB 356-A) Page 33
809.730. (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:
(A) ORS 813.010; or
(B) The statutory counterpart to ORS 813.010 in another
jurisdiction;
(b) A driving under the influence of intoxicants offense in
another jurisdiction that involved the impaired driving of a
vehicle due to the use of intoxicating liquor, a controlled
substance, an inhalant or any combination thereof;
(c) A driving offense in another jurisdiction that involved
operating a vehicle while having a blood alcohol content above
that jurisdiction's permissible blood alcohol content;
(d) Murder, manslaughter, criminally negligent homicide or
assault that resulted from the operation of a motor vehicle in
this state or in another jurisdiction; or
(e) Aggravated vehicular homicide under ORS 163.149.
(2) For the purposes of subsection (1) of this section, a
conviction for a driving offense in another jurisdiction based
solely on a person under 21 years of age having a blood alcohol
content that is lower than the permissible blood alcohol content
in that jurisdiction for a person 21 years of age or older does
not constitute a prior conviction.
(3) All seizure and forfeiture proceedings under this section
shall be conducted in accordance with { - ORS chapter 475A - }
{ + sections 1 to 51 of this 2009 Act + }.
SECTION 62. ORS 809.735 is amended to read:
809.735. (1) The seizure and forfeiture provisions of ORS
809.730 do not preempt a city or county ordinance enacted and in
effect on June 22, 1999, relating to forfeiture of a motor
vehicle operated by a person described in ORS 809.730.
(2) The seizure and forfeiture provisions of ORS 809.730 do not
preempt a city with a population exceeding 400,000 or a county
with a population exceeding 500,000 from enacting, on or before
January 1, 2000, an ordinance relating to seizure and forfeiture
of a motor vehicle operated by a person described in ORS 809.730.
(3) Notwithstanding subsections (1) and (2) of this section,
seizure and forfeiture procedures in a city or county ordinance
relating to seizure and forfeiture of a motor vehicle operated by
a person described in ORS 809.730 shall be in accordance with
{ - ORS chapter 475A - } { + sections 1 to 51 of this 2009
Act + }.
{ +
CAPTIONS + }
SECTION 63. { + The unit and section captions used in this
2009 Act are provided only for the convenience of the reader and
do not become part of the statutory law of this state or express
any legislative intent in the enactment of this 2009 Act. + }
{ +
REPEALS + }
SECTION 64. { + ORS 475A.005, 475A.010, 475A.015, 475A.020,
475A.025, 475A.030, 475A.035, 475A.040, 475A.045, 475A.050,
Enrolled Senate Bill 356 (SB 356-A) Page 34
475A.055, 475A.060, 475A.065, 475A.070, 475A.075, 475A.080,
475A.085, 475A.091, 475A.096, 475A.100, 475A.110, 475A.111,
475A.115, 475A.120, 475A.126, 475A.130, 475A.155 and 475A.160 are
repealed. + }
SECTION 65. { + The repeal of statutory sections by section 64
of this 2009 Act does not affect any forfeiture proceeding
commenced before the effective date of this 2009 Act by giving a
notice of seizure for forfeiture under ORS 475A.055, as in effect
immediately before the effective date of this 2009 Act, or by
recording a notice of intent to forfeit under ORS 475A.050, as in
effect immediately before the effective date of this 2009 Act.
Any forfeiture proceeding commenced before the effective date of
this 2009 Act as described in this subsection shall continue to
be governed by the provisions of ORS 475A.005, 475A.010,
475A.015, 475A.020, 475A.025, 475A.030, 475A.035, 475A.040,
475A.045, 475A.050, 475A.055, 475A.060, 475A.065, 475A.070,
475A.075, 475A.080, 475A.085, 475A.091, 475A.096, 475A.100,
475A.110, 475A.111, 475A.115, 475A.120, 475A.126, 475A.130,
475A.155 and 475A.160, as in effect immediately before the
effective date of this 2009 Act. + }
{ +
EMERGENCY CLAUSE + }
SECTION 66. { + This 2009 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2009 Act takes effect on
its passage. + }
----------
Passed by Senate March 25, 2009
...........................................................
Secretary of Senate
...........................................................
President of Senate
Passed by House April 16, 2009
...........................................................
Speaker of House
Enrolled Senate Bill 356 (SB 356-A) Page 35
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled Senate Bill 356 (SB 356-A) Page 36