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:
a. The defendant has died.
b. The defendant was deported by the U.S. government.
c. The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.
d. The defendant fled the jurisdiction.
e. The property has been unclaimed for a period of at least 9 months.
f. The property is contraband that is subject to forfeiture under s. 961.55 (6), (6m), or (7).
211,54
Section
54. 973.076 (2m) (a) of the statutes is amended to read:
973.076 (2m) (a) In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons in accordance with sub. (5), order forfeiture of any property specified in s. 973.075 (1) in accordance with pars. (b), (c), and (d).
211,55
Section
55. 973.076 (3) of the statutes is amended to read:
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.
211,56
Section
56. 973.076 (3g) of the statutes is created to read:
973.076 (3g) Privileges. 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.
211,57
Section
57. 973.076 (3m) of the statutes is created to read:
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.
(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.
(c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:
1. The seriousness of the offense.
2. The purpose of the statute authorizing the forfeiture.
3. The maximum fine for the offense.
4. The harm that actually resulted from the defendant's conduct.
(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.
211,58
Section
58. 973.076 (5) of the statutes is created to read:
973.076 (5) Innocent owners. (a) Notwithstanding sub. (1) (b) 1., a person who claims to have an ownership interest in property subject to forfeiture as an innocent owner may petition the court for the return of his or her seized property at any time.
(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 and 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.
(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.
(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 and 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.
(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.
(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 this chapter and shall order the state to relinquish all claims of title to the property.
211,59
Section
59. 973.076 (6) of the statutes is created to read:
973.076 (6) 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, or 6 months after a seizure which was the basis of the forfeiture action if no charges have been issued and no extension has been granted. If the property is co-owned by 2 or more defendants in a criminal action, and one or more defendant co-owners are acquitted or the charges against him or her are dismissed, the court shall have discretion to dispose of the co-owned property in accordance with the proportionality guidelines in sub. (3m) as he or she deems appropriate.
211,60
Section
60. 973.076 (7) of the statutes is created to read:
973.076 (7) Attorney fees. A person who prevails in an action to return property subject to forfeiture under ss. 973.075 to 973.077 may be awarded reasonable attorney fees by the state if the court finds that the forfeiting agency or prosecuting attorney has arbitrarily and capriciously pursued the forfeiture action.
211,61
Section
61.
Initial applicability.
(1) This act first applies to property that is seized on the effective date of this subsection.
