Amendment ASA1-AB122

LRBs0073/1

CMH&MLJ:kjf/wlj/amn

2017 - 2018 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO ASSEMBLY BILL 122

May 25, 2017 - Offered by Representative Tauchen.

AB122-ASA1,2,2 An Act to repeal 961.55 (1) (d) 1., 961.55 (1) (d) 2., 961.55 (1) (d) 3., 961.55 (1) (d) 4., 961.55 (5) (e) 1., 961.55 (5) (e) 2., 973.075 (1) (b) 2m. and 973.075 (5m); to renumber 973.075 (1) (b) 1m. a. to h.; to renumber and amend 961.55 (1) (d) (intro.), 961.55 (5) (e) (intro.), 973.075 (1) (b) 1m. (intro.) and 973.075 (4); to amend 29.934 (1) (d), 961.55 (1) (intro.), 961.55 (3) (intro.), 961.55 (5) (a), 961.55 (5) (b), 961.555 (1), 961.555 (2) (a), 961.555 (3), 968.20 (1), 968.20 (1g) (intro.) and (a), 973.075 (1) (intro.), 973.075 (1) (bg), 973.075 (1) (bm), 973.075 (1) (d), 973.075 (1) (e), 973.075 (5) (intro.), 973.076 (1) (a), 973.076 (1) (b) 1., 973.076 (2m) (a) and 973.076 (3); and to create 961.55 (1g), 961.55 (1k), 961.55 (1m), 961.55 (1r), 961.555 (2) (am), 961.555 (2m), 961.555 (3g), 961.555 (3m), 961.555 (5), 961.555 (6), 961.555 (7), 968.20 (1g) (am), 968.20 (1h), 973.075 (1g), 973.075 (1k), 973.075 (1m), 973.075 (1r), 973.075 (4) (a), 973.075 (5r), 973.076 (1) (b) 1m., 973.076 (3g), 973.076 (3m), 973.076 (5), 973.076 (6) and 973.076 (7) of 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:

AB122-ASA1,1 Section 1. 29.934 (1) (d) of the statutes is amended to read:

AB122-ASA1,2,5 29.934 (1) (d) The provisions of s. 973.075 (1) (b) 2m. and (5) (1m) apply to boats and vehicles, other than motor vehicles, under this subsection.

AB122-ASA1,2 Section 2. 961.55 (1) (intro.) of the statutes is amended to read:

AB122-ASA1,2,8 961.55 (1) (intro.) The Subject to subs. (1g) and (1m), the following are subject to forfeiture:

AB122-ASA1,3 Section 3. 961.55 (1) (d) (intro.) of the statutes is renumbered 961.55 (1) (d) and amended to read:

AB122-ASA1,2,16 961.55 (1) (d) All vehicles which are used, or intended for use, to transport, or in any manner to facilitate the transportation, for the purpose of sale or receipt of property described in pars. (a) and (b) or for the purpose of transporting any property or weapon used or to be used or received in the commission of any felony under this chapter, but: except that a vehicle is not subject to forfeiture for a violation of s. 961.41 (3g) (b) to (g).

AB122-ASA1,4 Section 4. 961.55 (1) (d) 1. of the statutes is repealed.

AB122-ASA1,5 Section 5. 961.55 (1) (d) 2. of the statutes is repealed.

AB122-ASA1,6 Section 6. 961.55 (1) (d) 3. of the statutes is repealed.

AB122-ASA1,7 Section 7. 961.55 (1) (d) 4. of the statutes is repealed.

AB122-ASA1,8 Section 8. 961.55 (1g) of the statutes is created to read:

AB122-ASA1,3,3 961.55 (1g) A judgment of forfeiture may not be entered under this chapter 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.

AB122-ASA1,9 Section 9. 961.55 (1k) of the statutes is created to read:

AB122-ASA1,3,6 961.55 (1k) A person who has been subject to a seizure of property has a right to a pretrial hearing under s. 968.20.

AB122-ASA1,10 Section 10. 961.55 (1m) of the statutes is created to read:

AB122-ASA1,3,9 961.55 (1m) The property of an innocent owner may not be forfeited. A person who claims to be an innocent owner may follow the procedures under s. 961.555 (5).

AB122-ASA1,11 Section 11 . 961.55 (1r) of the statutes is created to read:

AB122-ASA1,3,19 961.55 (1r) If a law enforcement officer or agency or state or local employee or agency refers seized 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, the agency shall produce an itemized report of actual forfeiture expenses, as defined in sub. (5) (b), and submit the report to the department of administration to make it available on the department's website. If there is a federal criminal conviction for the crime that was the basis for the seizure, the agency may accept all proceeds. If there is no federal criminal conviction, the agency may not accept any proceeds.

AB122-ASA1,12 Section 12. 961.55 (3) (intro.) of the statutes is amended to read:

AB122-ASA1,4,6 961.55 (3) (intro.) In the event of seizure under sub. (2), proceedings under sub. (4) shall be instituted promptly. All dispositions and forfeitures under this section and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent persons under sub. (1) (d) 1., 2. and 4. subs. (1g), (1k), and (1m). 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 if:

AB122-ASA1,13 Section 13 . 961.55 (5) (a) of the statutes is amended to read:

AB122-ASA1,4,13 961.55 (5) (a) Retain If the property is a vehicle, retain it for official use, after depositing 30 percent of the value of the vehicle, as determined by the department of revenue, in the school fund as proceeds of the forfeiture. If the agency sells the vehicle at a later time and receives as proceeds from the sale an amount in excess of the amount previously deposited in the school fund, the agency shall deposit the excess in the school fund.

AB122-ASA1,14 Section 14 . 961.55 (5) (b) of the statutes is amended to read:

AB122-ASA1,4,24 961.55 (5) (b) Sell that which is not required to be destroyed by law and which is not harmful to the public. The agency may use a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department's website. The remainder shall be deposited in the school fund as proceeds of the forfeiture. In this paragraph, “forfeiture expenses" include all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred.

AB122-ASA1,15 Section 15. 961.55 (5) (e) (intro.) of the statutes is renumbered 961.55 (5) (e) and amended to read:

AB122-ASA1,5,8 961.55 (5) (e) If the property forfeited is money, retain the sum of all of the following a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses, as defined in par. (b), if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department's website and deposit the remainder money in the school fund:.

AB122-ASA1,16 Section 16. 961.55 (5) (e) 1. of the statutes is repealed.

AB122-ASA1,17 Section 17. 961.55 (5) (e) 2. of the statutes is repealed.

AB122-ASA1,18 Section 18 . 961.555 (1) of the statutes is amended to read:

AB122-ASA1,5,17 961.555 (1) Type of action; where brought. In an action brought to cause the forfeiture of any property seized under s. 961.55, 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. 961.55 (1r), any property seized may be the subject of a federal forfeiture action.

AB122-ASA1,19 Section 19. 961.555 (2) (a) of the statutes is amended to read:

AB122-ASA1,6,9 961.555 (2) (a) The district attorney of the county within which the property was seized shall commence the forfeiture action within 30 days after the seizure of the property, 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 If property is seized, a charge shall be issued within 6 months after the seizure, except that an unlimited number of 6-month extensions may be granted if, for each extension, a judge determines probable cause is shown and the additional time is warranted. If no charge is issued within 6 months after the seizure, or a 6-month extension is not granted, the seized property shall be returned to the owner. 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.

AB122-ASA1,20 Section 20. 961.555 (2) (am) of the statutes is created to read:

AB122-ASA1,6,13 961.555 (2) (am) Upon motion by the prosecuting attorney, the court may waive the conviction requirement under par. (a) if the prosecuting attorney shows by clear and convincing evidence that any of the following applies:

AB122-ASA1,6,14 1. The defendant has died.

AB122-ASA1,6,15 2. The defendant was deported by the U.S. government.

AB122-ASA1,6,17 3. The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

AB122-ASA1,6,19 4. The defendant fled the jurisdiction after an arrest warrant had been issued for a crime that includes the forfeiture of property.

AB122-ASA1,6,21 5. The defendant fled the jurisdiction after being arrested, charged with a crime that includes the forfeiture of property, and released on bail.

AB122-ASA1,6,22 6. The property has been unclaimed for a period of at least 2 years.

AB122-ASA1,6,24 7. The property is contraband that is subject to forfeiture under s. 961.55 (6), (6m), or (7).

AB122-ASA1,21 Section 21 . 961.555 (2m) of the statutes is created to read:

AB122-ASA1,7,4 961.555 (2m) Criminal forfeitures. (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. 961.55 (1) in accordance with pars. (b), (c), and (d).

AB122-ASA1,7,10 (b) A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s. 972.13.