STATE OF OKLAHOMA

2nd Session of the 54th Legislature (2014)

HOUSE BILL 2379	By:	DeWitt

AS INTRODUCED

An Act relating to asset forfeitures; amending 63 O.S. 2011, Sections 2-506 and 2-508, as amended by Section 16, Chapter 283, O.S.L. 2012 (63 O.S. Supp. 2013, Section 2-508), which relate to forfeiture proceedings for seized property; clarifying certain forteiture procedures; authorizing sale of property through online auctions; and providing an effective date.

BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1.     AMENDATORY     63 O.S. 2011, Section 2-506, is amended to read as follows:
Section 2-506.  A.  Any peace officer of this state shall seize the following property:
1.  Any property described in subsection A of Section 2-503 of this title.  Such property shall be held as evidence until a forfeiture has been declared or release ordered, except for property described in paragraphs 1, 2 and 3 of subsection A of Section 2-503 of this title, or in the case of money, coins, and currency, deposited as provided in subsection E of Section 2-503 of this title; provided, any money, coins and currency taken or detained pursuant to this section may be deposited in an interest-bearing account by or at the direction of the district attorney in the office of the county treasurer if the district attorney determines the currency is not to be held as evidence.  All interest earned on such monies shall be returned to the claimant or forfeited with the money, coins and currency which was taken or detained as provided by law;
2.  Any property described in subsection B of Section 2-503 of this title; or
3.  Any property described in subsection C of Section 2-503 of this title.
B.  Notice of seizure and intended forfeiture proceeding shall be filed in the office of the clerk of the district court for the county wherein such property is seized and shall be given all owners and parties in interest.  Notwithstanding any other provision of law, no filing fees shall be assessed by the court clerk for the filing of any forfeiture action.
C.  Notice shall be given by the agency seeking forfeiture according to one of the following methods:
1.  Upon each owner or party in interest whose right, title or interest is of record in the Tax Commission, by mailing a copy of the notice by certified mail to the address as given upon the records of the Tax Commission;
2.  Upon each owner or party in interest whose name and address is known to the attorney in the office of the agency prosecuting the action to recover unpaid fines, by mailing a copy of the notice by registered mail to the last-known address; or
3.  Upon all other owners or interested parties, whose addresses are unknown, but who are believed to have an interest in the property, by one publication in a newspaper of general circulation in the county where the seizure was made.
D.  Within forty-five (45) days after the mailing or publication of the notice, the owner of the property and any other party in interest or claimant may file a verified answer and claim to the property described in the notice of seizure and of the intended forfeiture proceeding.
E.  If at the end of forty-five (45) days after the notice has been mailed or published there is no verified answer on file, the court shall hear evidence upon the fact of the unlawful use and shall order the property forfeited to the state, if such fact is proved.  Except as otherwise provided for in Section 2-503 of this title, any such property shall be forfeited to the state and sold under judgment of the court pursuant to the provisions of Section 2-508 of this title. 
F.  If a verified answer is filed, the forfeiture proceeding shall be set for hearing.
G.  At a hearing in a proceeding against property described in paragraphs 3 through 9 of subsection A or subsections B and C of Section 2-503 of this title, the requirements set forth in said paragraph or subsection, respectively, shall be satisfied by the state by a preponderance of the evidence.
H.  The claimant of any right, title, or interest in the property may prove a lien, mortgage, or conditional sales contract to be a bona fide or innocent ownership interest and that such right, title, or interest was created without any knowledge or reason to believe that the property was being, or was to be, used for the purpose charged.
I.  In the event of such proof, the court shall order the property released to the bona fide or innocent owner, lien holder, mortgagee or vendor if the amount due him is equal to, or in excess of, the value of the property as of the date of the seizure, it being the intention of this section to forfeit only the right, title or interest of the purchaser.
J.  If the amount due to such person is less than the value of the property, or if no bona fide claim is established or if no answer to the forfeiture petition is filed, the property shall be forfeited to the state and sold under judgment of the court, as on sale upon execution, and as provided for in Section 2-508 of this title, except as otherwise provided for in Section 2-503 of this title.
K.  Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the office of the district attorney of the county wherein the property was seized, subject only to the orders and decrees of the court or the official having jurisdiction thereof; said official shall maintain a true and accurate inventory and record of all such property seized under the provisions of this section.  The provisions of this subsection shall not apply to property taken or detained by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections or the Office of the Attorney General.  Property taken or detained by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections or the Office of the Attorney General shall be subject to the provisions of subsections E and F of Section 2-503 of this title.
L.  The proceeds of the sale of any property not taken or detained by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections or the Office of the Attorney General shall be distributed as follows, in the order indicated:
1.  To the bona fide or innocent purchaser, conditional sales vendor or mortgagee of the property, if any, up to the amount of his or her interest in the property, when the court declaring the forfeiture orders a distribution to such person;
2.  To the payment of the actual expenses of preserving the property and legitimate costs related to the civil forfeiture proceedings.  For purposes of this paragraph, the term “legitimate costs” shall not include court costs associated with any civil forfeiture proceeding; and
3.  The balance to a revolving fund in the office of the county treasurer of the county wherein the property was seized, said fund to be used as a revolving fund solely for enforcement of controlled dangerous substances laws, drug abuse prevention and drug abuse education, and maintained by the district attorney in his or her discretion for those purposes with a yearly accounting to the board of county commissioners in whose county the fund is established and to the District Attorneys Council; provided, one hundred percent (100%) of the balance of the proceeds of such sale of property forfeited due to nonpayment of a fine imposed pursuant to the provisions of Section 2-415 of this title shall be apportioned as provided in Section 2-416 of this title.  The revolving fund shall be audited by the State Auditor and Inspector at least every two (2) years in the manner provided in Section 171 of Title 19 of the Oklahoma Statutes.  Said audit shall include, but not be limited to, a compliance audit.  A district attorney may enter into agreements with municipal, tribal, county or state agencies to return to such an agency a percentage of proceeds of the sale of any property seized by the agency and forfeited under the provisions of this section.  The District Attorneys Council shall adopt guidelines which ensure that such agencies receive a reasonable percentage of such proceeds, considering the relative contribution of each agency to the drug enforcement and prosecution operations relating to the seizure.  In formulating said guidelines, the District Attorneys Council shall examine federal guidelines on asset distribution and use said guidelines as a basis for establishing guidelines for this state.  The Attorney General is hereby authorized to mediate disputes between district attorneys and such agencies concerning the application of said guidelines in particular instances.  Any agency that receives proceeds from an asset distribution shall maintain a true and accurate record of all such assets.
M.  Whenever any vehicle, airplane or vessel is forfeited under the Uniform Controlled Dangerous Substances Act, the district court of jurisdiction may order that the vehicle, airplane or vessel seized may be retained by the state, county or city law enforcement agency which seized the vehicle, airplane or vessel for its official use.
N.  If the court finds that the state failed to satisfy the required showing provided for in subsection G of this section, the court shall order the property released to the owner or owners.
O.  Except as provided for in subsection Q of this section, a bona fide or innocent owner, lien holder, mortgagee or vendor that recovers property pursuant to this section shall not be liable for storage fees.
P.  Except as provided for in subsection Q of this section, storage fees shall be paid by the agency which is processing the seizure and forfeiture from funds generated by seizure and forfeiture actions.
Q.  The bona fide or innocent owner, lien holder, mortgagee or vendor shall reclaim subject seized property within thirty (30) days of written notice from the seizing agency.  If such person fails to reclaim the property within the thirty-day time period, then storage fees may be assessed against their secured interest.
R.  1.  At any hearing held relevant to this section, a report of the findings of the laboratory of the Oklahoma State Bureau of Investigation, the medical examiner’s report of investigation or autopsy report, or a laboratory report from a forensic laboratory operated by the State of Oklahoma or any political subdivision thereof, which has been made available to the accused by the office of the district attorney or other party to the forfeiture at least five (5) days prior to the hearing, with reference to all or part of the evidence submitted, when certified as correct by the persons making the report shall be received as evidence of the facts and findings stated, if relevant and otherwise admissible in evidence.  If such report is deemed relevant by the forfeiture applicant or the respondent, the court shall admit such report without the testimony of the person making the report, unless the court, pursuant to this subsection, orders such person to appear.
2.  When any alleged controlled dangerous substance has been submitted to the laboratory of the OSBI for analysis, and such analysis shows that the submitted material is a controlled dangerous substance, the distribution of which constitutes a felony under the laws of this state, no portion of such substance shall be released to any other person or laboratory except to the criminal justice agency originally submitting the substance to the OSBI for analysis, absent an order of a district court.  The defendant shall additionally be required to submit to the court a procedure for transfer and analysis of the subject material to ensure the integrity of the sample and to prevent the material from being used in any illegal manner.
3.  The court, upon motion of either party, shall order the attendance of any person preparing a report submitted as evidence in the hearing when it appears there is a substantial likelihood that material evidence not contained in said report may be produced by the testimony of any person having prepared a report.  The hearing shall be held and, if sustained, an order issued not less than five (5) days prior to the time when the testimony shall be required.
4.  If within five (5) days prior to the hearing or during a hearing, a motion is made pursuant to this section requiring a person having prepared a report to testify, the court may hear a report or other evidence but shall continue the hearing until such time notice of the motion and hearing is given to the person making the report, the motion is heard, and, if sustained, the testimony ordered can be given.
SECTION 2.     AMENDATORY     63 O.S. 2011, Section 2-508, as amended by Section 16, Chapter 283, O.S.L. 2012 (63 O.S. Supp. 2013, Section 2-508), is amended to read as follows:
Section 2-508.  A.  Except as otherwise provided, all property described in paragraphs 1 and 2 of subsection A of Section 2-503 of this title which is seized or surrendered pursuant to the provisions of the Uniform Controlled Dangerous Substances Act shall be destroyed.  The destruction shall be done by or at the direction of the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control (OSBNDD), who shall have the discretion prior to destruction to preserve samples of the substance for testing.  In any county with a population of four hundred thousand (400,000) or more according to the latest Federal Decennial Census, there shall be a located site, approved by the OSBNDD, for the destruction of the property.  Any such property submitted to the OSBNDD which it deems to be of use for investigative training, educational, or analytical purposes may be retained by the OSBNDD in lieu of destruction.
B.  1.  With respect to controlled dangerous substances seized or surrendered pursuant to the provisions of the Uniform Controlled Dangerous Substances Act, municipal police departments, sheriffs, the Oklahoma Bureau of Narcotics and Dangerous Drugs Control Commission, the Oklahoma Highway Patrol, and the Oklahoma State Bureau of Investigation shall have the authority to destroy seized controlled dangerous substances when the amount seized in a single incident exceeds ten (10) pounds.  The destroying agency shall:
a.	photograph the seized substance with identifying case numbers or other means of identification,
b.	prepare a report describing the seized substance prior to the destruction,
c.	retain at least one (1) pound of the substance randomly selected from the seized substance for the purpose of evidence, and
d.	obtain and retain samples of the substance from enough containers, bales, bricks, or other units of substance seized to establish the presence of a weight of the substance necessary to establish a violation of the Trafficking in Illegal Drugs Act pursuant to subsection C of Section 2-415 of this title, if such a weight is present.  If such weight is not present, samples of the substance from each container, bale, brick or other unit of substance seized shall be taken.  Each sample taken pursuant to this section shall be large enough for the destroying agency and the defendant or suspect to have an independent test performed on the substance for purposes of identification.
2.  If a defendant or suspect is known to the destroying agency, the destroying agency shall give at least seven (7) days' written notice to the defendant, suspect or counsel for the defendant or suspect of:
a.	the date, the time, and the place where the photographing will take place and notice of the right to attend the photographing, and
b.	the right to obtain samples of the controlled dangerous substance for independent testing and use as evidence.
3.  The written notice shall also inform the defendant, suspect or counsel for the defendant or suspect that the destroying agency must be notified in writing within seven (7) days from receipt of the notice of the intent of the suspect or defendant to obtain random samples and make arrangements for the taking of samples.  The samples for the defendant or suspect must be taken by a person licensed by the Drug Enforcement Administration.  If the defendant or counsel for the defendant fails to notify the destroying agency in writing of an intent to obtain samples and fails to make arrangements for the taking of samples, a sample taken pursuant to subparagraph d of paragraph 1 of this subsection shall be made available upon request of the defendant or suspect.
The representative samples, the photographs, the reports, and the records made under this section and properly identified shall be admissible in any court or administrative proceeding for any purposes for which the seized substance itself would have been admissible.
C.  All other property not otherwise provided for in the Uniform Controlled Dangerous Substances Act which has come into the possession of the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections, the Office of the Attorney General, or a district attorney may be disposed of by order of the district court when no longer needed in connection with any litigation.  If the owner of the property is unknown to the agency or district attorney, the agency or district attorney shall hold the property for at least six (6) months prior to filing a petition for disposal with the district court except for laboratory equipment which may be forfeited when no longer needed in connection with litigation, unless the property is perishable.  The Director or Commissioner of the agency, the Attorney General, or district attorney shall file a petition in the district court of Oklahoma County or in the case of a district attorney, the petition shall be filed in a county within the jurisdiction of the district attorney requesting the authority to:
1.  Conduct a sale of the property at a public auction or use an Internet auction, which may include online bidding; or
2.  Convert title of the property to the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections, the Office of the Attorney General, or to the district attorney's office for the purposes provided for in subsection J, K or L of this section.
The Director, Commissioner, Attorney General or district attorney shall attach to the petition:
a.	a list describing the property, including all identifying numbers and marks, if any,
b.	the date the property came into the possession of the agency or district attorney, and
c.	the name and address of the owner, if known.
For any item having an apparent value in excess of One Hundred Dollars ($100.00), but less than Five Hundred Dollars ($500.00), the notice of the hearing of the petition for the sale of the property, except laboratory equipment used in the processing, manufacturing or compounding of controlled dangerous substances in violation of the provisions of the Uniform Controlled Dangerous Substances Act, shall be given to every known owner, as set forth in the petition, by first-class mail to the last-known address of the owner at least ten (10) days prior to the date of the hearing.  An affidavit of notice being sent shall be filed with the court by a representative of the agency, the Director or Commissioner of the agency, the Attorney General or district attorney.  For items in excess of Five Hundred Dollars ($500.00), a notice of the hearing of the petition for the sale of said property shall be delivered to every known owner as set forth in the petition by certified mail.  Notice of a hearing on a petition for forfeiture or sale of laboratory equipment used in the processing, manufacturing or compounding of controlled dangerous substances in violation of the Uniform Controlled Dangerous Substances Act shall not be required.
The notice shall contain a brief description of the property, and the location and date of the hearing.  In addition, notice of the hearing shall be posted in three public places in the county, one such place being the county courthouse at the regular place assigned for the posting of legal notices.  At the hearing, if no owner appears and establishes ownership of the property, the court may enter an order authorizing the Director, Commissioner, Attorney General, or district attorney to donate the property pursuant to subsection J, K or L of this section, to sell the property at a public auction, including an Internet auction, which may include online bidding, to the highest bidder, or to convert title of the property to the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Oklahoma State Bureau of Investigation, the Alcoholic Beverage Laws Enforcement Commission, the Department of Corrections, or the Office of the Attorney General for the purposes provided for in subsection J, K or L of this section after at least ten (10) days of notice has been given by publication in one issue of a legal newspaper of the county.  If the property is offered for sale at public auction, including an Internet auction, and no bid is received that exceeds fifty percent (50%) of the value of the property, such value to be announced prior to the sale, the Director, Commissioner, Attorney General, or district attorney may refuse to sell the item pursuant to any bid received.  The Director, Commissioner, Attorney General, or district attorney shall make a return of the sale and, when confirmed by the court, the order confirming the sale shall vest in the purchaser title to the property so purchased.
D.  The money received from the sale of property by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control shall be used for general drug enforcement purposes.  These funds shall be transferred to the Bureau of Narcotics Revolving Fund established pursuant to Section 2-107 of this title or in the case of a district attorney, the revolving fund provided for in paragraph 3 of subsection L of Section 2-506 of this title.
E.  At the request of the Department of Public Safety, the district attorney or a designee of the district attorney may conduct any forfeiture proceedings as described in Section 2-503 of this title on any property subject to forfeiture as described in subsection A, B or C of Section 2-503 of this title.  The money received from the sale of property by the Department of Public Safety shall be deposited in the Department of Public Safety Restricted Revolving Fund and shall be expended for law enforcement purposes.
F.  The money received from the sale of property by the Alcoholic Beverage Laws Enforcement Commission shall be deposited in the General Revenue Fund of the state.
G.  The money received from the sale of property from the Oklahoma State Bureau of Investigation shall be deposited in the OSBI Revolving Fund and shall be expended for law enforcement purposes.
H.  The Director of the Oklahoma Department of Corrections shall make a return of the sale and when confirmed by the court, the order confirming the sale shall vest in the purchaser title to the property so purchased.  Twenty-five percent (25%) of the money received from the sale shall be disbursed to a revolving fund in the office of the county treasurer of the county wherein the property was seized, said fund to be used as a revolving fund solely for enforcement of controlled dangerous substances laws, drug abuse prevention and drug abuse education.  The remaining seventy-five percent (75%) shall be deposited in the Department of Corrections Revolving Fund to be expended for equipment for probation and parole officers and correctional officers.
I.  The money received from the sale of property from the Office of the Attorney General shall be deposited in the Attorney General Law Enforcement Revolving Fund and shall be expended for law enforcement purposes.  The Office of the Attorney General may enter into agreements with municipal, county or state agencies to return to such an agency a percentage of proceeds of the sale of any property seized by the agency and forfeited under the provisions of this section.
J.  Any property, including but not limited to uncontaminated laboratory equipment used in the processing, manufacturing or compounding of controlled dangerous substances in violation of the provisions of the Uniform Controlled Dangerous Substances Act, upon a court order, may be donated for classroom or laboratory use by the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, Oklahoma Department of Public Safety, district attorney, the Alcoholic Beverage Laws Enforcement Commission, the Oklahoma Department of Corrections, or the Office of the Attorney General to any public secondary school or technology center school in this state or any institution of higher education within The Oklahoma State System of Higher Education.
K.  Any vehicle or firearm which has come into the possession and title vested in the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Oklahoma Department of Public Safety, the Oklahoma State Bureau of Investigation, or the Office of the Attorney General or a district attorney, may be transferred, donated or offered for lease to any sheriff's office, tribal law enforcement agency, campus police department pursuant to the provisions of the Oklahoma Campus Security Act, or police department in this state on an annual basis to assist with the enforcement of the provisions of the Uniform Controlled Dangerous Substances Act.  Each agency shall promulgate rules, regulations and procedures for leasing vehicles and firearms.  No fully automatic weapons will be subject to the leasing agreement.  All firearms leased may be utilized only by C.L.E.E.T.-certified officers who have received training in the type and class of weapon leased.  Every lessee shall be required to submit an annual report to the leasing agency stating the condition of all leased property.  A lease agreement may be renewed annually at the option of the leasing agency.  Upon termination of a lease agreement, the property shall be returned to the leasing agency for sale or other disposition.  All funds derived from lease agreements or other disposition of property no longer useful to law enforcement shall be deposited in the agency's revolving fund, or in the case of the Department of Public Safety, the Department of Public Safety Restricted Revolving Fund, and shall be expended for law enforcement purposes.
L.  Before disposing of any property pursuant to subsections C through I of this section, the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control, the Department of Public Safety, the Alcoholic Beverage Laws Enforcement Commission, the Oklahoma State Bureau of Investigation, the Department of Corrections, the Office of the Attorney General, or a district attorney may transfer or donate the property to another state agency, tribal law enforcement agency, or school district for use upon request.  In addition to the provisions of this section, the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control may transfer or donate property for any purpose pursuant to Section 2-106.2 of this title.  The agencies and any district attorney that are parties to any transfer of property pursuant to this subsection shall enter into written agreements to carry out any such transfer of property.  Any such agreement may also provide for the granting of title to any property being transferred as the parties deem appropriate.  If the transfer of property is to a school district, a written agreement shall be entered into with the superintendent of the school district.  No weapons may be transferred to a school district except as provided for in subsection K of this section.

SECTION 3.  This act shall become effective November 1, 2014.

54-2-8305	GRS	12/30/13