LRBs0011/1
CMH&MLJ:kjf/wlj/amn
2017 - 2018 LEGISLATURE
SENATE SUBSTITUTE AMENDMENT 1,
TO SENATE BILL 61
May 24, 2017 - Offered by Senator
Craig.
SB61-SSA1,2,2
1An Act to repeal 961.55 (1) (d) 1., 961.55 (1) (d) 2., 961.55 (1) (d) 3., 961.55 (1)
2(d) 4., 961.55 (5) (e) 1., 961.55 (5) (e) 2., 973.075 (1) (b) 2m. and 973.075 (5m);
3to renumber 973.075 (1) (b) 1m. a. to h.;
to renumber and amend 961.55 (1)
4(d) (intro.), 961.55 (5) (e) (intro.), 973.075 (1) (b) 1m. (intro.) and 973.075 (4);
to
5amend 29.934 (1) (d), 961.55 (1) (intro.), 961.55 (3) (intro.), 961.55 (5) (a),
6961.55 (5) (b), 961.555 (1), 961.555 (2) (a), 961.555 (3), 968.20 (1), 968.20 (1g)
7(intro.) and (a), 973.075 (1) (intro.), 973.075 (1) (bg), 973.075 (1) (bm), 973.075
8(1) (d), 973.075 (1) (e), 973.075 (5) (intro.), 973.076 (1) (a), 973.076 (1) (b) 1.,
9973.076 (2m) (a) and 973.076 (3); and
to create 961.55 (1g), 961.55 (1k), 961.55
10(1m), 961.55 (1r), 961.555 (2) (am), 961.555 (2m), 961.555 (3g), 961.555 (3m),
11961.555 (5), 961.555 (6), 961.555 (7), 968.20 (1g) (am), 968.20 (1h), 973.075 (1g),
12973.075 (1k), 973.075 (1m), 973.075 (1r), 973.075 (4) (a), 973.075 (5r), 973.076
1(1) (b) 1m., 973.076 (3g), 973.076 (3m), 973.076 (5), 973.076 (6) and 973.076 (7)
2of the statutes;
relating to: forfeiture of property seized in relation to a crime.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB61-SSA1,1
3Section
1. 29.934 (1) (d) of the statutes is amended to read:
SB61-SSA1,2,54
29.934
(1) (d) The provisions of s. 973.075
(1) (b) 2m. and (5) (1m) apply to boats
5and vehicles, other than motor vehicles, under this subsection.
SB61-SSA1,2
6Section
2. 961.55 (1) (intro.) of the statutes is amended to read:
SB61-SSA1,2,87
961.55
(1) (intro.)
The Subject to subs. (1g) and (1m), the following are subject
8to forfeiture:
SB61-SSA1,3
9Section
3. 961.55 (1) (d) (intro.) of the statutes is renumbered 961.55 (1) (d)
10and amended to read:
SB61-SSA1,2,1611
961.55
(1) (d) All vehicles which are used, or intended for use, to transport, or
12in any manner to facilitate the transportation, for the purpose of sale or receipt of
13property described in pars. (a) and (b) or for the purpose of transporting any property
14or weapon used or to be used or received in the commission of any felony under this
15chapter,
but: except that a vehicle is not subject to forfeiture for a violation of s.
16961.41 (3g) (b) to (g).
SB61-SSA1,4
17Section
4. 961.55 (1) (d) 1. of the statutes is repealed.
SB61-SSA1,5
18Section
5. 961.55 (1) (d) 2. of the statutes is repealed.
SB61-SSA1,6
19Section
6. 961.55 (1) (d) 3. of the statutes is repealed.
SB61-SSA1,7
20Section
7. 961.55 (1) (d) 4. of the statutes is repealed.
SB61-SSA1,8
21Section
8. 961.55 (1g) of the statutes is created to read:
SB61-SSA1,3,3
1961.55
(1g) A judgment of forfeiture may not be entered under this chapter
2unless a person is convicted of the criminal offense that was the basis for the seizure
3of the item or that is related to the action for forfeiture.
SB61-SSA1,9
4Section
9. 961.55 (1k) of the statutes is created to read:
SB61-SSA1,3,65
961.55
(1k) A person who has been subject to a seizure of property has a right
6to a pretrial hearing under s. 968.20.
SB61-SSA1,10
7Section
10. 961.55 (1m) of the statutes is created to read:
SB61-SSA1,3,98
961.55
(1m) The property of an innocent owner may not be forfeited. A person
9who claims to be an innocent owner may follow the procedures under s. 961.555 (5).
SB61-SSA1,11
10Section 11
. 961.55 (1r) of the statutes is created to read:
SB61-SSA1,3,1911
961.55
(1r) If a law enforcement officer or agency or state or local employee or
12agency refers seized property to a federal agency directly, indirectly, by adoption,
13through an intergovernmental joint task force, or by other means, for the purposes
14of forfeiture litigation, the agency shall produce an itemized report of actual
15forfeiture expenses, as defined in sub. (5) (b), and submit the report to the
16department of administration to make it available on the department's website. If
17there is a federal criminal conviction for the crime that was the basis for the seizure,
18the agency may accept all proceeds. If there is no federal criminal conviction, the
19agency may not accept any proceeds.
SB61-SSA1,12
20Section
12. 961.55 (3) (intro.) of the statutes is amended to read:
SB61-SSA1,4,621
961.55
(3) (intro.) In the event of seizure under sub. (2), proceedings under sub.
22(4) shall be instituted promptly. All dispositions and forfeitures under this section
23and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent
24persons under
sub. (1) (d) 1., 2. and 4. subs. (1g), (1k), and (1m). Any property seized
25but not forfeited shall be returned to its rightful owner. Any person claiming the
1right to possession of property seized may apply for its return to the circuit court for
2the county in which the property was seized. The court shall order such notice as it
3deems adequate to be given the district attorney and all persons who have or may
4have an interest in the property and shall hold a hearing to hear all claims to its true
5ownership. If the right to possession is proved to the court's satisfaction, it shall
6order the property returned if:
SB61-SSA1,13
7Section 13
. 961.55 (5) (a) of the statutes is amended to read:
SB61-SSA1,4,138
961.55
(5) (a)
Retain If the property is a vehicle, retain it for official use
, after
9depositing 30 percent of the value of the vehicle, as determined by the department
10of revenue, in the school fund as proceeds of the forfeiture. If the agency sells the
11vehicle at a later time and receives as proceeds from the sale an amount in excess of
12the amount previously deposited in the school fund, the agency shall deposit the
13excess in the school fund.
SB61-SSA1,14
14Section 14
. 961.55 (5) (b) of the statutes is amended to read:
SB61-SSA1,4,2415
961.55
(5) (b) Sell that which is not required to be destroyed by law and which
16is not harmful to the public. The agency may use
a portion, not to exceed 50 percent
, 17of the amount received for payment of forfeiture expenses
if the agency produces an
18itemized report of actual forfeiture expenses and submits the report to the
19department of administration to make it available on the department's website. The
20remainder shall be deposited in the school fund as proceeds of the forfeiture. In this
21paragraph, “forfeiture expenses" include all proper expenses of the proceedings for
22forfeiture and sale, including expenses of seizure, maintenance of custody,
23advertising, and court costs and the costs of investigation and prosecution
24reasonably incurred.
SB61-SSA1,15
1Section
15. 961.55 (5) (e) (intro.) of the statutes is renumbered 961.55 (5) (e)
2and amended to read:
SB61-SSA1,5,83
961.55
(5) (e) If the property forfeited is money, retain
the sum of all of the
4following a portion, not to exceed 50 percent, of the amount received for payment of
5forfeiture expenses, as defined in par. (b),
if the agency produces an itemized report
6of actual forfeiture expenses and submits the report to the department of
7administration to make it available on the department's website and deposit the
8remainder money in the school fund
:.
SB61-SSA1,16
9Section
16. 961.55 (5) (e) 1. of the statutes is repealed.
SB61-SSA1,17
10Section
17. 961.55 (5) (e) 2. of the statutes is repealed.
SB61-SSA1,18
11Section 18
. 961.555 (1) of the statutes is amended to read:
SB61-SSA1,5,1712
961.555
(1) Type of action; where brought. In an action brought to cause the
13forfeiture of any property seized under s. 961.55, the court may render a judgment
14in rem or against a party personally, or both. The circuit court for the county in which
15the property was seized shall have jurisdiction over any proceedings regarding the
16property when the action is commenced in state court.
Any Subject to s. 961.55 (1r),
17any property seized may be the subject of a federal forfeiture action.
SB61-SSA1,19
18Section
19. 961.555 (2) (a) of the statutes is amended to read:
SB61-SSA1,6,919
961.555
(2) (a) The district attorney of the county within which the property
20was seized shall commence the forfeiture action within 30 days after the seizure of
21the property,
except that the defendant may request that and the forfeiture
22proceedings
shall be adjourned until after
adjudication the defendant is convicted of
23any charge concerning a crime which was the basis for the seizure of the property.
24The request shall be granted If property is seized, a charge shall be issued within 6
25months after the seizure, except that an unlimited number of 6-month extensions
1may be granted if, for each extension, a judge determines probable cause is shown
2and the additional time is warranted. If no charge is issued within 6 months after
3the seizure, or a 6-month extension is not granted, the seized property shall be
4returned to the owner. The forfeiture action shall be commenced by filing a
5summons, complaint and affidavit of the person who seized the property with the
6clerk of circuit court, provided service of authenticated copies of those papers is made
7in accordance with ch. 801 within 90 days after filing upon the person from whom
8the property was seized and upon any person known to have a bona fide perfected
9security interest in the property.
SB61-SSA1,20
10Section
20. 961.555 (2) (am) of the statutes is created to read:
SB61-SSA1,6,1311
961.555
(2) (am) Upon motion by the prosecuting attorney, the court may waive
12the conviction requirement under par. (a) if the prosecuting attorney shows by clear
13and convincing evidence that any of the following applies:
SB61-SSA1,6,1414
1. The defendant has died.
SB61-SSA1,6,1515
2. The defendant was deported by the U.S. government.
SB61-SSA1,6,1716
3. The defendant has been granted immunity in exchange for testifying or
17otherwise assisting a law enforcement investigation or prosecution.
SB61-SSA1,6,1918
4. The defendant fled the jurisdiction after an arrest warrant had been issued
19for a crime that includes the forfeiture of property.
SB61-SSA1,6,2120
5. The defendant fled the jurisdiction after being arrested, charged with a crime
21that includes the forfeiture of property, and released on bail.
SB61-SSA1,6,2222
6. The property has been unclaimed for a period of at least 2 years.
SB61-SSA1,6,2423
7. The property is contraband that is subject to forfeiture under s. 961.55 (6),
24(6m), or (7).
SB61-SSA1,21
25Section 21
. 961.555 (2m) of the statutes is created to read:
SB61-SSA1,7,4
1961.555
(2m) Criminal forfeitures. (a) In addition to any penalties under this
2chapter, the court shall, with due provision for the rights of innocent persons in
3accordance with sub. (5), order forfeiture of any property specified in s. 961.55 (1) in
4accordance with pars. (b), (c), and (d).
SB61-SSA1,7,105
(b) A criminal complaint must allege the extent of property subject to forfeiture
6under this subsection. At trial, the court or the jury shall return a special verdict
7determining the extent of property, if any, that is subject to forfeiture under this
8subsection. When a special verdict contains a finding of property subject to a
9forfeiture under this subsection, a judgment of criminal forfeiture shall be entered
10along with the judgment of conviction under s. 972.13.
SB61-SSA1,7,1711
(c) An injured person has a right or claim to forfeited property or the proceeds
12derived from forfeited property under this subsection that is superior to any right or
13claim the state has in the property or proceeds. This paragraph does not grant the
14injured person priority over state claims or rights by reason of a tax lien or other basis
15not covered by this section or by s. 961.55 or 961.56. All rights, titles, and interest
16in property specified in s. 961.55 (1) vest in the state upon the commission of the act
17giving rise to forfeiture under this subsection.
SB61-SSA1,8,218
(d) An injured or innocent person may petition the court for relief from the
19judgment of criminal forfeiture entered under par. (b) within 30 days after it is
20entered. The person filing the petition has the burden of satisfying or convincing to
21a reasonable certainty by the greater weight of the evidence that the person has a
22bona fide perfected security interest in the property subject to forfeiture in s. 961.55
23(1) or any other property subject to forfeiture in sub. (4). The court may order that
24a person with a bona fide perfected security interest be paid from the proceeds of the
1forfeiture or any other equitable relief necessary so as to do substantial justice to the
2person.
SB61-SSA1,22
3Section 22
. 961.555 (3) of the statutes is amended to read:
SB61-SSA1,8,64
961.555
(3) Burden of proof. The state shall have the burden of
satisfying or 5proving by clear and convincing
to a reasonable certainty by the greater weight of the
6credible evidence that the property is subject to forfeiture under s. 961.55.
SB61-SSA1,23
7Section 23
. 961.555 (3g) of the statutes is created to read:
SB61-SSA1,8,118
961.555
(3g) Privileges. The defendant or convicted offender may invoke the
9right against self-incrimination or the marital privilege during the
10forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw
11an adverse inference from the invocation of the right or privilege.
SB61-SSA1,24
12Section
24. 961.555 (3m) of the statutes is created to read:
SB61-SSA1,8,1613
961.555
(3m) Proportionality. (a) The court may not order the forfeiture of
14property if the court finds that the forfeiture is grossly disproportional to the crime
15for which the person whose property was seized was convicted or that the forfeiture
16is unconstitutionally excessive under the state or federal constitution.
SB61-SSA1,8,2117
(b) A person who is alleging that the forfeiture is grossly disproportional or is
18unconstitutionally excessive under this subsection shall have the burden of
19satisfying or convincing to a reasonable certainty by the greater weight of the
20credible evidence that the forfeiture is grossly disproportional or unconstitutionally
21excessive.
SB61-SSA1,8,2322
(c) In determining whether the forfeiture is grossly disproportional or
23unconstitutionally excessive, the court shall consider the following:
SB61-SSA1,8,2424
1. The seriousness of the offense.