SB61: Bill Text

SB61,9,14 961.555 (3m) Proportionality. (a) The court may not order the forfeiture of property if the court finds that the forfeiture is grossly disproportional to the crime for which the person whose property was seized was convicted or that the forfeiture is unconstitutionally excessive under the state or federal constitution.

SB61,9,19 (b) A person who is alleging that the forfeiture is grossly disproportional or is unconstitutionally excessive under this subsection shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the forfeiture is grossly disproportional or unconstitutionally excessive.

SB61,9,21 (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

SB61,9,23 1. The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused by the person.

SB61,9,24 2. The extent to which the person participated in the offense.

SB61,9,25 3. The extent to which the property was used in committing the offense.

SB61,10,1 4. The sentence imposed on the person for the offense.

SB61,10,2 5. Whether the person completed or attempted to complete the offense.

SB61,10,3 6. The fair market value of the property.

SB61,10,5 7. The value of the property to the person, including the hardship to the person if the property is forfeited.

SB61,10,6 8. The hardship to the person's family members if the property is forfeited.

SB61,10,9 (d) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court may not consider the value of the property to the state.

SB61,23 Section 23. 961.555 (5) of the statutes is created to read:

SB61,10,13 961.555 (5) Return of property. The court shall order the return of any property subject to forfeiture under ss. 961.55 to 961.56 within 30 days of acquittal or dismissal of charges for the offense which was the basis of the forfeiture action.

SB61,24 Section 24. 961.555 (6) of the statutes is created to read:

SB61,10,19 961.555 (6) Attorney fees. A person who prevails in an action to return property subject to forfeiture under ss. 961.55 to 961.56 shall be awarded reasonable attorney fees by the state. For the purposes of this subsection, a person prevails if the claimant recovers more than 50 percent, by value, of the money or other property that is claimed.

SB61,25 Section 25. 973.075 (1) (intro.) of the statutes is amended to read:

SB61,10,22 973.075 (1) (intro.) The Subject to subs. (1g) and (1m), the following are subject to seizure and forfeiture under ss. 973.075 to 973.077:

SB61,26 Section 26. 973.075 (1) (b) 1m. (intro.) of the statutes is renumbered 973.075 (1) (b) (intro.) and amended to read:

SB61,11,2 973.075 (1) (b) (intro.) Except as provided in subd. 2m., all All vehicles, as defined in s. 939.22 (44), which are used in any of the following ways:

SB61,27 Section 27. 973.075 (1) (b) 1m. a. to h. of the statutes are renumbered 973.075 (1) (b) 1. to 8.

SB61,28 Section 28. 973.075 (1) (b) 2m. of the statutes is repealed.

SB61,29 Section 29. 973.075 (1) (bg) of the statutes is amended to read:

SB61,11,12 973.075 (1) (bg) Any property used or to be used in the commission of a crime under s. 943.74, 943.75 (2) or (2m), or 948.07, but if the property is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

SB61,30 Section 30. 973.075 (1) (bm) of the statutes is amended to read:

SB61,11,20 973.075 (1) (bm) Any property used in the commission of a crime under s. 813.12 (8), 813.122 (11), 813.123 (10), 813.125 (7), 813.128 (4) or 940.32, but if the property is encumbered by a bonafide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

SB61,31 Section 31. 973.075 (1) (d) of the statutes is amended to read:

SB61,12,3 973.075 (1) (d) A tank vessel that violates s. 299.62 (2) that is owned by a person who, within 5 years before the commission of the current violation, was previously convicted of violating s. 299.62 (2), but if the tank vessel is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

SB61,32 Section 32. 973.075 (1) (e) of the statutes is amended to read:

SB61,12,15 973.075 (1) (e) Any recording, as defined in s. 943.206 (5), created, advertised, offered for sale or rent, sold, rented, transported or possessed in violation of ss. 943.207 to 943.209 or s. 943.49 and any electronic, mechanical or other device for making a recording or for manufacturing, reproducing, packaging or assembling a recording that was used to facilitate a violation of ss. 943.207 to 943.209 or s. 943.49, regardless of the knowledge or intent of the person from whom the recording or device is seized. If a device subject to forfeiture under this paragraph is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

SB61,33 Section 33. 973.075 (1g) of the statutes is created to read:

SB61,12,19 973.075 (1g) No item is subject to forfeiture under ss. 973.075 to 973.077 unless a person is convicted of the criminal offense that was the basis for the seizure of the item or that is related to the action for forfeiture.

SB61,34 Section 34. 973.075 (1k) of the statutes is created to read:

SB61,12,25 973.075 (1k) (a) A person who has been subject to a seizure of property has a right to a pretrial hearing to determine the validity of the seizure. He or she may claim the right to possession of seized property at any time prior to 60 days before trial for the crime that gave rise to the seizure by motion to the court establishing the validity of the alleged interest in the property.

SB61,13,2 (b) The state shall file an answer to the motion filed under par. (a) showing probable cause for the seizure at least 10 days before the hearing of the motion.

SB61,13,4 (c) The court shall hear the motion filed under par. (a) no more than 30 days after the motion is filed.

SB61,13,7 (d) Either party may, by agreement or for good cause, move the court for one extension of no more than 10 days. Any such motion may be supported by affidavits or other submissions.

SB61,13,10 (e) Following hearing of the motion under par. (a), the court shall order the seized property to be returned to a person under this subsection if it finds any of the following:

SB61,13,13 1. It is likely that the final judgement will be that the state must return the property to the claimant, and the property is not reasonably required to be held for investigatory reasons.

SB61,13,18 2. The property is the only reasonable means for a defendant to pay for legal representation in the forfeiture or criminal proceeding, and the property is not reasonably required to be held for investigatory reasons. If the court makes this finding, it may order the return of funds or property sufficient to obtain legal counsel but less than the total amount seized, and require an accounting.

SB61,13,22 (f) If a court orders property returned under this subsection, the court shall order the person not to sell, transfer, assign, or otherwise encumber the property until the court orders the property either returned under sub. (5) or forfeited under s. 973.076.

SB61,13,25 (g) If the person is subsequently convicted of or found to have committed the offense, the court shall order the person to surrender the returned property for proceedings under s. 973.076.

SB61,35 Section 35. 973.075 (1m) of the statutes is created to read:

SB61,14,2 973.075 (1m) (a) The property of an innocent owner may not be forfeited.

SB61,14,7 (b) A person who has an ownership interest in property subject to forfeiture that exists at the occurrence of the illegal conduct giving rise to the forfeiture who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

SB61,14,11 (c) If the requisite showing under par. (b) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.

SB61,14,16 (d) A person who has an ownership interest in property subject to forfeiture that he or she acquired after the occurrence of the conduct giving rise to the forfeiture who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

SB61,14,21 (e) If the requisite showing under par. (d) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge that the property was subject to forfeiture or that the person was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

SB61,14,25 (f) If the state does not meet the burden under par. (c) or (e) as to any property, the court shall find that the property is the property of an innocent owner and not subject to forfeiture under ss. 973.075 to 973.077 and shall order the state to relinquish all claims of title to the property.

SB61,15,4 (g) The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.

SB61,36 Section 36. 973.075 (1r) of the statutes is created to read:

SB61,15,11 973.075 (1r) (a) No law enforcement officer or agency or state or local employee or agency may enter into an agreement to transfer property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint task force, or by other means, for the purposes of forfeiture litigation unless the seized property includes more than $50,000 of U.S. currency or the property may be forfeited only under federal law.

SB61,15,18 (b) All law enforcement agencies shall refer seized property to the appropriate state prosecuting attorney for forfeiture under ss. 973.075 to 973.077 unless the seized property includes more than $50,000 of U.S. currency or the property may only be forfeited under federal law. If the seized property includes more than $50,000 of U.S. currency, the law enforcement agency may, but is not required to, refer or transfer the seized property to a federal agency for forfeiture litigation under federal law.

SB61,15,22 (c) Nothing in this subsection shall be construed to restrict a law enforcement officer or agency from collaborating with a federal agency to seize contraband or property that the law enforcement agency has probable cause to believe is subject to forfeiture through an intergovernmental joint task force.

SB61,37 Section 37. 973.075 (4) of the statutes is amended to read:

SB61,16,8 973.075 (4) When property is forfeited under ss. 973.075 to 973.077, the agency seizing the property may sell the property that is not required by law to be destroyed or transferred to another agency. The agency may retain any vehicle for official use or sell the vehicle. The agency seizing the property may deduct 50 percent of the amount received for administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred. The remainder shall be deposited in the school fund as the agency shall deposit all proceeds of the forfeiture in the school fund. If the property forfeited under ss. 973.075 to 973.077 is money, all the money shall be deposited in the school fund.

SB61,38 Section 38. 973.075 (5) (intro.) of the statutes is amended to read:

SB61,16,19 973.075 (5) (intro.) All forfeitures under ss. 973.075 to 973.077 shall be made with due provision for the rights of innocent persons under sub. (1) (b) 2m., (bg), (bm), (d) and (e) subs. (1g), (1k), and (1m). Except as provided in sub. (5m) (5r), any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned as soon as practically possible if:

SB61,39 Section 39. 973.075 (5m) of the statutes is repealed.

SB61,40 Section 40. 973.075 (5r) of the statutes is created to read:

SB61,16,25 973.075 (5r) If a recording involved in a violation of ss. 943.207 to 943.209 is forfeited, the sheriff of the county in which the recording was seized shall destroy it after the completion of all proceedings in which the recording might be required as evidence.

SB61,41 Section 41. 973.076 (1) (a) of the statutes is amended to read:

SB61,17,8 973.076 (1) (a) Type of action; where brought. In an action brought to cause the forfeiture of any property specified in s. 342.30 (4) (a) or s. 973.075 (1), the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Any Subject to s. 973.075 (1r), any property seized may be the subject of a federal forfeiture action.

SB61,42 Section 42. 973.076 (1) (b) 1. of the statutes is amended to read:

SB61,17,21 973.076 (1) (b) 1. The district attorney of the county within which the property was seized or in which the defendant is convicted shall commence the forfeiture action within 30 days after the seizure of the property or the date of conviction, whichever is earlier, except that the defendant may request that and the forfeiture proceedings shall be adjourned until after adjudication the defendant is convicted of any charge concerning a crime which was the basis for the seizure of the property. The request shall be granted. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

SB61,43 Section 43. 973.076 (1) (b) 1m. of the statutes is created to read:

SB61,17,25 973.076 (1) (b) 1m. Upon motion by the prosecuting attorney, the court may waive the conviction requirement under subd. 1. if the prosecuting attorney shows by clear and convincing evidence that any of the following applies:

SB61,18,1 a. The defendant has died.

SB61,18,2 b. The defendant was deported by the U.S. government.

SB61,18,4 c. The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

SB61,18,6 d. The defendant fled the jurisdiction after being arrested, charged with a crime that includes the forfeiture of property, and released on bail.

SB61,44 Section 44. 973.076 (3) of the statutes is amended to read:

SB61,18,11 973.076 (3) Burden of proof. The state shall have the burden of satisfying or proving by clear and convincing to a reasonable certainty by the greater weight of the credible evidence that the property is subject to forfeiture under s. ss. 973.075 to 973.077.

SB61,45 Section 45. 973.076 (3m) of the statutes is created to read:

SB61,18,16 973.076 (3m) Proportionality. (a) The court may not order the forfeiture of property if the court finds that the forfeiture is grossly disproportional to the crime for which the person whose property was seized was convicted or that the forfeiture is unconstitutionally excessive under the state or federal constitution.

SB61,18,21 (b) A person who is alleging that the forfeiture is grossly disproportional or is unconstitutionally excessive under this subsection shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the forfeiture is grossly disproportional or unconstitutionally excessive.

SB61,18,23 (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

SB61,18,25 1. The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused by the person.

SB61,19,1 2. The extent to which the person participated in the offense.

SB61,19,2 3. The extent to which the property was used in committing the offense.

SB61,19,3 4. The sentence imposed on the person for the offense.

SB61,19,4 5. Whether the person completed or attempted to complete the offense.

SB61,19,5 6. The fair market value of the property.

SB61,19,7 7. The value of the property to the person, including the hardship to the person if the property is forfeited

SB61,19,8 8. The hardship to the person's family members if the property is forfeited.

SB61,19,11 (d) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court may not consider the value of the property to the state.

SB61,46 Section 46. 973.076 (5) of the statutes is created to read:

SB61,19,15 973.076 (5) Return of property. The court shall order the return of any property subject to forfeiture under ss. 973.075 to 973.077 within 30 days of acquittal or dismissal of charges for the offense which was the basis of the forfeiture action.

SB61,47 Section 47. 973.076 (6) of the statutes is created to read: