LRB-0698/1
CMH:bjk:jf
2009 - 2010 LEGISLATURE
February 12, 2009 - Introduced by Senators Leibham and Olsen, cosponsored by
Representatives Van Akkeren, Kerkman, Townsend, Spanbauer, Gunderson,
Suder, Staskunas, Bies and LeMahieu. Referred to Committee on Judiciary,
Corrections, Insurance, Campaign Finance Reform, and Housing.
SB59,1,8
1An Act to repeal 973.075 (1) (b) 2m. c.;
to renumber and amend 961.55 (1) (d)
24. and 973.075 (4);
to amend 961.55 (1) (d) (intro.), 961.55 (1) (d) 3., 961.55 (3)
3(intro.), 961.55 (5) (intro.), 968.20 (1) (intro.), 968.20 (3) (a), 968.20 (3) (b),
4973.075 (1) (b) 1m. (intro.), 973.075 (1) (bg), 973.075 (1) (bj), 973.075 (1) (bm),
5973.075 (1) (d), 973.075 (1) (e) and 973.075 (5) (intro.); and
to create 961.55 (1)
6(h), 961.55 (5b), 961.55 (5r), 973.075 (1) (f), 973.075 (1p), 973.075 (4) (a) 1. and
72. and 973.075 (5r) of the statutes;
relating to: seizure of a computer used to
8commit a crime and providing a penalty.
Analysis by the Legislative Reference Bureau
Under current law, the state or a local law enforcement agency may acquire
certain property involved in the commission of crime through a forfeiture proceeding,
which is generally initiated after the end of the criminal case to which it relates. The
forfeiture law applies to all property directly or indirectly derived from the
commission of a crime. It also covers certain other property related to the
commission of a crime, including: 1) an illegal controlled substance and equipment
used in committing a crime relating to a controlled substance; 2) a vehicle used to
transport property used or received in committing a felony; 3) a vehicle used in
committing a crime relating to prostitution; 4) property used in committing a
stalking offense or a criminal violation of a domestic abuse, child abuse, or
harassment restraining order or injunction; and 5) pirated, bootlegged, and
counterfeit recordings and any equipment used to make them. Current law also
permits the state or a local law enforcement agency to retain contraband that it has
seized, which includes machines or materials (including computers) that are used to
create other contraband items.
Under this bill, a computer that is used, with the knowledge and consent of its
owner, in the commission of a crime is subject to forfeiture, regardless of whether it
is contraband. If a computer is forfeited under the bill, the law enforcement agency
that seized it may retain it for its own use, donate it to a nonprofit organization or
another government agency, or sell it and, in general, retain 50 percent of the
proceeds of the sale (with the remainder being deposited in the school fund).
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB59, s. 1
1Section
1. 961.55 (1) (d) (intro.) of the statutes is amended to read:
SB59,2,62
961.55
(1) (d) (intro.)
All Subject to sub. (1p), all vehicles which are used, or
3intended for use, to transport, or in any manner to facilitate the transportation, for
4the purpose of sale or receipt of property described in pars. (a) and (b) or for the
5purpose of transporting any property or weapon used or to be used or received in the
6commission of any felony under this chapter, but:
SB59, s. 2
7Section
2. 961.55 (1) (d) 3. of the statutes is amended to read:
SB59,2,98
961.55
(1) (d) 3. A vehicle is not subject to forfeiture for a violation of s. 961.41
9(3g) (b) to (g)
; and.
SB59, s. 3
10Section
3. 961.55 (1) (d) 4. of the statutes is renumbered 961.55 (1p) and
11amended to read:
SB59,3,312
961.55
(1p) If forfeiture of
a vehicle property encumbered by a bona fide
13perfected security interest occurs
under sub. (1) (d) or (h), the holder of the security
14interest shall be paid from the proceeds of the forfeiture if the security interest was
1perfected prior to the date of the commission of the felony which forms the basis for
2the forfeiture and he or she neither had knowledge of nor consented to the act or
3omission.
SB59, s. 4
4Section
4. 961.55 (1) (h) of the statutes is created to read:
SB59,3,75
961.55
(1) (h) Subject to sub. (1p), any computer, as defined in s. 943.70 (1) (am),
6used with the knowledge and consent of its owner, in the commission of a crime under
7this chapter.
SB59, s. 5
8Section
5. 961.55 (3) (intro.) of the statutes is amended to read:
SB59,3,199
961.55
(3) (intro.) In the event of seizure under sub. (2), proceedings under sub.
10(4) shall be instituted promptly. All dispositions and forfeitures under this section
11and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent
12persons under
sub. subs. (1) (d) 1.
, and 2. and
4. Any (1p). Subject to sub. (5r), any 13property seized but not forfeited shall be returned to its rightful owner. Any person
14claiming the right to possession of property seized may apply for its return to the
15circuit court for the county in which the property was seized. The court shall order
16such notice as it deems adequate to be given the district attorney and all persons who
17have or may have an interest in the property and shall hold a hearing to hear all
18claims to its true ownership. If the right to possession is proved to the court's
19satisfaction, it shall order the property returned
, subject to sub. (5r), if:
SB59, s. 6
20Section
6. 961.55 (5) (intro.) of the statutes is amended to read:
SB59,3,2321
961.55
(5) (intro.) When property
other than a computer is forfeited under this
22chapter, the agency whose officer or employee seized the property shall do one of the
23following:
SB59, s. 7
24Section
7. 961.55 (5b) of the statutes is created to read:
SB59,4,2
1961.55
(5b) If a computer is forfeited under sub. (1) (h), the agency whose officer
2or employee seized the property shall, subject to sub. (5r), do one of the following:
SB59,4,103
(a) If the computer is one described in sub. (1p), sell that which is not required
4to be destroyed by law and which is not harmful to the public. If, after the conditions
5of sub. (1p) are satisfied, proceeds remain, the agency may use 50 percent of the
6remainder for payment of forfeiture expenses. Then, any remainder shall be
7deposited in the school fund as proceeds of the forfeiture. In this paragraph,
8"forfeiture expenses" include all proper expenses of the proceedings for forfeiture and
9sale, including expenses of seizure, maintenance of custody, advertising, and court
10costs and the costs of investigation and prosecution reasonably incurred.
SB59,4,1211
(b) If the computer is not one described in sub. (1p), donate it to a nonprofit
12organization or a unit of state or local government.
SB59, s. 8
13Section
8. 961.55 (5r) of the statutes is created to read:
SB59,4,1914
961.55
(5r) Before selling or donating a computer seized under sub. (1) (h) or
15before returning it to its rightful owner, the law enforcement agency that seized it
16shall purge all data from the computer that are or represent contraband or that were
17used in the commission of a crime and may purge any other data or computer
18programs from the computer if the data or programs are maintained or designed
19primarily to facilitate the commission of a crime.
SB59, s. 9
20Section
9. 968.20 (1) (intro.) of the statutes is amended to read:
SB59,5,521
968.20
(1) (intro.) Any person claiming the right to possession of property
22seized pursuant to a search warrant or seized without a search warrant may apply
23for its return to the circuit court for the county in which the property was seized or
24where the search warrant was returned. The court shall order such notice as it
25deems adequate to be given the district attorney and all persons who have or may
1have an interest in the property and shall hold a hearing to hear all claims to its true
2ownership. If the right to possession is proved to the court's satisfaction, it shall
3order the property, other than contraband or property covered under sub. (1m) or (1r)
4or s. 173.12, 173.21 (4), or 968.205, returned
, subject to ss. 961.55 (5r) and 973.075
5(5r), if:
SB59, s. 10
6Section
10. 968.20 (3) (a) of the statutes is amended to read:
SB59,6,67
968.20
(3) (a) First class cities shall dispose of dangerous weapons or
8ammunition seized 12 months after taking possession of them if the owner,
9authorized under sub. (1m), has not requested their return and if the dangerous
10weapon or ammunition is not required for evidence or use in further investigation
11and has not been disposed of pursuant to a court order at the completion of a criminal
12action or proceeding. Disposition procedures shall be established by ordinance or
13resolution and may include provisions authorizing an attempt to return to the
14rightful owner any dangerous weapons or ammunition which appear to be stolen or
15are reported stolen. If enacted, any such provision shall include a presumption that
16if the dangerous weapons or ammunition appear to be or are reported stolen an
17attempt will be made to return the dangerous weapons or ammunition to the
18authorized rightful owner. If the return of a seized dangerous weapon other than a
19firearm is not requested by its rightful owner under sub. (1) and is not returned by
20the officer under sub. (2), the city shall safely dispose of the dangerous weapon or,
21if the dangerous weapon is a motor vehicle, as defined in s. 340.01 (35), sell the motor
22vehicle following the procedure under s. 973.075 (4)
(b) or authorize a law
23enforcement agency to retain and use the motor vehicle. If the return of a seized
24firearm or ammunition is not requested by its authorized rightful owner under sub.
25(1) and is not returned by the officer under sub. (2), the seized firearm or ammunition
1shall be shipped to and become property of the state crime laboratories. A person
2designated by the department of justice may destroy any material for which the
3laboratory has no use or arrange for the exchange of material with other public
4agencies. In lieu of destruction, shoulder weapons for which the laboratories have
5no use shall be turned over to the department of natural resources for sale and
6distribution of proceeds under s. 29.934 or for use under s. 29.938.
SB59, s. 11
7Section
11. 968.20 (3) (b) of the statutes is amended to read:
SB59,7,68
968.20
(3) (b) Except as provided in par. (a) or sub. (1m) or (4), a city, village,
9town or county or other custodian of a seized dangerous weapon or ammunition, if
10the dangerous weapon or ammunition is not required for evidence or use in further
11investigation and has not been disposed of pursuant to a court order at the
12completion of a criminal action or proceeding, shall make reasonable efforts to notify
13all persons who have or may have an authorized rightful interest in the dangerous
14weapon or ammunition of the application requirements under sub. (1). If, within 30
15days after the notice, an application under sub. (1) is not made and the seized
16dangerous weapon or ammunition is not returned by the officer under sub. (2), the
17city, village, town or county or other custodian may retain the dangerous weapon or
18ammunition and authorize its use by a law enforcement agency, except that a
19dangerous weapon used in the commission of a homicide or a handgun, as defined
20in s. 175.35 (1) (b), may not be retained. If a dangerous weapon other than a firearm
21is not so retained, the city, village, town or county or other custodian shall safely
22dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as
23defined in s. 340.01 (35), sell the motor vehicle following the procedure under s.
24973.075 (4)
(b). If a firearm or ammunition is not so retained, the city, village, town
25or county or other custodian shall ship it to the state crime laboratories and it is then
1the property of the laboratories. A person designated by the department of justice
2may destroy any material for which the laboratories have no use or arrange for the
3exchange of material with other public agencies. In lieu of destruction, shoulder
4weapons for which the laboratory has no use shall be turned over to the department
5of natural resources for sale and distribution of proceeds under s. 29.934 or for use
6under s. 29.938.
SB59, s. 12
7Section
12. 973.075 (1) (b) 1m. (intro.) of the statutes is amended to read:
SB59,7,108
973.075
(1) (b) 1m. (intro.)
Except
Subject to sub. (1p) and except as provided
9in subd. 2m., all vehicles, as defined in s. 939.22 (44), which are used in any of the
10following ways:
SB59, s. 13
11Section
13. 973.075 (1) (b) 2m. c. of the statutes is repealed.
SB59, s. 14
12Section
14. 973.075 (1) (bg) of the statutes is amended to read:
SB59,7,1813
973.075
(1) (bg)
Any Subject to sub. (1p), any property used or to be used in the
14commission of a crime under s. 943.75 (2) or (2m)
, but if the property is encumbered
15by a bona fide perfected security interest that was perfected before the date of the
16commission of the current violation and the holder of the security interest neither
17had knowledge of nor consented to the commission of that violation, the holder of the
18security interest shall be paid from the proceeds of the forfeiture.
SB59, s. 15
19Section
15. 973.075 (1) (bj) of the statutes is amended to read:
SB59,7,2520
973.075
(1) (bj)
Any Subject to sub. (1p), any property used or to be used in the
21commission of a crime under s. 943.74
, but if the property is encumbered by a bona
22fide perfected security interest that was perfected before the date of the commission
23of the current violation and the holder of the security interest neither had knowledge
24of nor consented to the commission of that violation, the holder of the security
25interest shall be paid from the proceeds of the forfeiture.
SB59, s. 16
1Section
16. 973.075 (1) (bm) of the statutes is amended to read:
SB59,8,82
973.075
(1) (bm)
Any Subject to sub. (1p), any property used in the commission
3of a crime under s. 813.12 (8), 813.122 (11), 813.123 (10), 813.125 (7), 813.128 (2) or
4940.32
, but if the property is encumbered by a bonafide perfected security interest
5that was perfected before the date of the commission of the current violation and the
6holder of the security interest neither had knowledge of nor consented to the
7commission of that violation, the holder of the security interest shall be paid from the
8proceeds of the forfeiture.
SB59, s. 17
9Section
17. 973.075 (1) (d) of the statutes is amended to read:
SB59,8,1610
973.075
(1) (d)
A Subject to sub. (1p), a tank vessel that violates s. 299.62 (2)
11that is owned by a person who, within 5 years before the commission of the current
12violation, was previously convicted of violating s. 299.62 (2)
, but if the tank vessel is
13encumbered by a bona fide perfected security interest that was perfected before the
14date of the commission of the current violation and the holder of the security interest
15neither had knowledge of nor consented to the commission of that violation, the
16holder of the security interest shall be paid from the proceeds of the forfeiture.
SB59, s. 18
17Section
18. 973.075 (1) (e) of the statutes is amended to read:
SB59,9,318
973.075
(1) (e) Any recording, as defined in s. 943.206 (5), created, advertised,
19offered for sale or rent, sold, rented, transported or possessed in violation of ss.
20943.207 to 943.209 or s. 943.49 and
, subject to sub. (1p), any electronic, mechanical
21or other device for making a recording or for manufacturing, reproducing, packaging
22or assembling a recording that was used to facilitate a violation of ss. 943.207 to
23943.209 or s. 943.49, regardless of the knowledge or intent of the person from whom
24the recording or device is seized.
If a device subject to forfeiture under this paragraph
25is encumbered by a bona fide perfected security interest that was perfected before the
1date of the commission of the current violation and the holder of the security interest
2neither had knowledge of nor consented to the commission of that violation, the
3holder of the security interest shall be paid from the proceeds of the forfeiture.
SB59, s. 19
4Section
19. 973.075 (1) (f) of the statutes is created to read:
SB59,9,75
973.075
(1) (f) Subject to sub. (1p), any computer, as defined in s. 943.70 (1)
6(am), used, with the knowledge and consent of its owner, in the commission of a
7crime.
SB59, s. 20
8Section
20. 973.075 (1p) of the statutes is created to read:
SB59,9,149
973.075
(1p) If any property under sub. (1) (b), (bg), (bj), (bm), (d), or (f) or any
10device under sub. (1) (e) is encumbered by a bona fide perfected security interest that
11was perfected before the date of the commission of the current violation and the
12holder of the security interest neither had knowledge of nor consented to the
13commission of that violation, the holder of the security interest shall be paid from the
14proceeds of the forfeiture.
SB59, s. 21
15Section
21. 973.075 (4) of the statutes is renumbered 973.075 (4) (a) 3. and
16amended to read:
SB59,9,2117
973.075
(4) (a) 3. When property
, other than property specified in subd. 1. or
182., is forfeited under ss. 973.075 to 973.077, the agency seizing the property may sell
19the property
that is not required by unless the law
requires it to be destroyed or
20transferred to another agency.
The agency may retain any vehicle for official use or
21sell the vehicle. The
SB59,9,25
22(b) When an agency
seizing the
sells property
under par. (a), it shall satisfy the
23conditions of sub. (1p). If proceeds remain, it may deduct 50% of the amount received
24for administrative expenses of seizure, maintenance of custody, advertising and
25court costs and the costs of investigation and prosecution reasonably incurred.
The
1Then, any remainder shall be deposited in the school fund as the proceeds of the
2forfeiture. If the property forfeited under ss. 973.075 to 973.077 is money, all the
3money shall be deposited in the school fund.
SB59, s. 22
4Section
22. 973.075 (4) (a) 1. and 2. of the statutes are created to read:
SB59,10,85
973.075
(4) (a) 1. Subject to sub. (5r), when a computer is forfeited under sub.
6(1) (f), the agency seizing it shall sell it if sub. (1p) applies but may otherwise retain
7it for its own use or donate it to a nonprofit organization or a unit of state or local
8government.