October 12, 2017 - Offered by Representative Tauchen.
AB122-ASA2,2,2 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) (a), 961.55 (5) (e) (intro.), 973.075 (1) (b) 1m. (intro.) and
5973.075 (4); to amend 29.934 (1) (d), 961.55 (1) (intro.), 961.55 (3) (intro.),
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), 961.55 (5) (a) 1., 961.55 (5) (a) 2., 961.555 (2) (am), 961.555
11(2m), 961.555 (3g), 961.555 (3m), 961.555 (5), 961.555 (6), 961.555 (7), 968.20
12(1g) (am), 968.20 (1h), 973.075 (1g), 973.075 (1k), 973.075 (1m), 973.075 (1r),
13973.075 (4) (a), 973.075 (5r), 973.076 (1) (b) 1m., 973.076 (3g), 973.076 (3m),

1973.076 (5), 973.076 (6) and 973.076 (7) of the statutes; relating to: forfeiture
2of property seized in relation to a crime.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB122-ASA2,1 3Section 1. 29.934 (1) (d) of the statutes is amended to read:
AB122-ASA2,2,54 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.
AB122-ASA2,2 6Section 2. 961.55 (1) (intro.) of the statutes is amended to read:
AB122-ASA2,2,87 961.55 (1) (intro.) The Subject to subs. (1g) and (1m), the following are subject
8to forfeiture:
AB122-ASA2,3 9Section 3. 961.55 (1) (d) (intro.) of the statutes is renumbered 961.55 (1) (d)
10and amended to read:
AB122-ASA2,2,1611 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).
AB122-ASA2,4 17Section 4. 961.55 (1) (d) 1. of the statutes is repealed.
AB122-ASA2,5 18Section 5. 961.55 (1) (d) 2. of the statutes is repealed.
AB122-ASA2,6 19Section 6. 961.55 (1) (d) 3. of the statutes is repealed.
AB122-ASA2,7 20Section 7. 961.55 (1) (d) 4. of the statutes is repealed.
AB122-ASA2,8 21Section 8. 961.55 (1g) of the statutes is created to read:
AB122-ASA2,3,3
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.
AB122-ASA2,9 4Section 9. 961.55 (1k) of the statutes is created to read:
AB122-ASA2,3,65 961.55 (1k) A person who has been subject to a seizure of property has a right
6to a pretrial hearing under s. 968.20.
AB122-ASA2,10 7Section 10. 961.55 (1m) of the statutes is created to read:
AB122-ASA2,3,98 961.55 (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).
AB122-ASA2,11 10Section 11 . 961.55 (1r) of the statutes is created to read:
AB122-ASA2,3,2111 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 or state criminal conviction for the crime that was the basis for the
18seizure, the agency may accept all proceeds. If there is no federal or state criminal
19conviction, the agency may not accept any proceeds, except that the agency may
20accept all proceeds if one of the following circumstances applies and is explained in
21the report submitted under this subsection:
AB122-ASA2,3,2222 (a) The defendant has died.
AB122-ASA2,3,2323 (b) The defendant was deported by the U.S. government.
AB122-ASA2,3,2524 (c) The defendant has been granted immunity in exchange for testifying or
25otherwise assisting a law enforcement investigation or prosecution.
AB122-ASA2,4,1
1(d) The defendant fled the jurisdiction.
AB122-ASA2,4,22 (e) The property has been unclaimed for a period of at least 9 months.
AB122-ASA2,12 3Section 12. 961.55 (3) (intro.) of the statutes is amended to read:
AB122-ASA2,4,144 961.55 (3) (intro.) In the event of seizure under sub. (2), proceedings under sub.
5(4) shall be instituted promptly. All dispositions and forfeitures under this section
6and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent
7persons under sub. (1) (d) 1., 2. and 4. subs. (1g), (1k), and (1m). Any property seized
8but not forfeited shall be returned to its rightful owner. Any person claiming the
9right to possession of property seized may apply for its return to the circuit court for
10the county in which the property was seized. The court shall order such notice as it
11deems adequate to be given the district attorney and all persons who have or may
12have an interest in the property and shall hold a hearing to hear all claims to its true
13ownership. If the right to possession is proved to the court's satisfaction, it shall
14order the property returned if:
AB122-ASA2,13 15Section 13. 961.55 (5) (a) of the statutes is renumbered 961.55 (5) (a) (intro.)
16and amended to read:
AB122-ASA2,4,1917 961.55 (5) (a) (intro.) Retain If the property is a vehicle, retain it for official use.
18for a period of up to one year. Before the end of that period, the agency shall do one
19of the following:
AB122-ASA2,14 20Section 14. 961.55 (5) (a) 1. of the statutes is created to read:
AB122-ASA2,4,2521 961.55 (5) (a) 1. Sell the property and use a portion, not to exceed 50 percent,
22of the amount received for payment of forfeiture expenses if the agency produces an
23itemized report of actual forfeiture expenses and submits the report to the
24department of administration to make it available on the department's website. The
25remainder shall be deposited in the school fund as proceeds of the forfeiture.
AB122-ASA2,15
1Section 15. 961.55 (5) (a) 2. of the statutes is created to read:
AB122-ASA2,5,72 961.55 (5) (a) 2. Continue to retain the property, if the agency deposits 30
3percent of the value of the vehicle, as determined by the department of revenue, in
4the school fund as proceeds of the forfeiture. If the agency sells the vehicle at a later
5time and receives as proceeds from the sale an amount in excess of the amount
6previously deposited in the school fund, the agency shall deposit the excess in the
7school fund.
AB122-ASA2,16 8Section 16 . 961.55 (5) (b) of the statutes is amended to read:
AB122-ASA2,5,189 961.55 (5) (b) Sell that which is not required to be destroyed by law and which
10is not harmful to the public. The agency may use a portion, not to exceed 50 percent,
11of the amount received for payment of forfeiture expenses if the agency produces an
12itemized report of actual forfeiture expenses and submits the report to the
13department of administration to make it available on the department's website
. The
14remainder shall be deposited in the school fund as proceeds of the forfeiture. In this
15paragraph subsection, “forfeiture expenses" include all proper expenses of the
16proceedings for forfeiture and sale, including expenses of seizure, maintenance of
17custody, advertising, and court costs and the costs of investigation and prosecution
18reasonably incurred.
AB122-ASA2,17 19Section 17. 961.55 (5) (e) (intro.) of the statutes is renumbered 961.55 (5) (e)
20and amended to read:
AB122-ASA2,6,221 961.55 (5) (e) If the property forfeited is money, retain the sum of all of the
22following
a portion, not to exceed 50 percent, of the amount received for payment of
23forfeiture expenses, as defined in par. (b), if the agency produces an itemized report
24of actual forfeiture expenses and submits the report to the department of

1administration to make it available on the department's website
and deposit the
2remainder money in the school fund:.
AB122-ASA2,18 3Section 18. 961.55 (5) (e) 1. of the statutes is repealed.
AB122-ASA2,19 4Section 19. 961.55 (5) (e) 2. of the statutes is repealed.
AB122-ASA2,20 5Section 20 . 961.555 (1) of the statutes is amended to read:
AB122-ASA2,6,116 961.555 (1) Type of action; where brought. In an action brought to cause the
7forfeiture of any property seized under s. 961.55, the court may render a judgment
8in rem or against a party personally, or both. The circuit court for the county in which
9the property was seized shall have jurisdiction over any proceedings regarding the
10property when the action is commenced in state court. Any Subject to s. 961.55 (1r),
11any
property seized may be the subject of a federal forfeiture action.
AB122-ASA2,21 12Section 21. 961.555 (2) (a) of the statutes is amended to read:
AB122-ASA2,7,313 961.555 (2) (a) The district attorney of the county within which the property
14was seized shall commence the forfeiture action within 30 days after the seizure of
15the property, except that the defendant may request that and the forfeiture
16proceedings shall be adjourned until after adjudication the defendant is convicted of
17any charge concerning a crime which was the basis for the seizure of the property.
18The request shall be granted If property is seized, a charge shall be issued within 6
19months after the seizure, except that an unlimited number of 6-month extensions
20may be granted if, for each extension, a judge determines probable cause is shown
21and the additional time is warranted. If no charge is issued within 6 months after
22the seizure, or a 6-month extension is not granted, the seized property shall be
23returned to the owner
. The forfeiture action shall be commenced by filing a
24summons, complaint and affidavit of the person who seized the property with the
25clerk of circuit court, provided service of authenticated copies of those papers is made

1in accordance with ch. 801 within 90 days after filing upon the person from whom
2the property was seized and upon any person known to have a bona fide perfected
3security interest in the property.
AB122-ASA2,22 4Section 22. 961.555 (2) (am) of the statutes is created to read:
AB122-ASA2,7,75 961.555 (2) (am) Upon motion by the prosecuting attorney, the court may waive
6the conviction requirement under par. (a) if the prosecuting attorney shows by clear
7and convincing evidence that any of the following applies:
AB122-ASA2,7,88 1. The defendant has died.
AB122-ASA2,7,99 2. The defendant was deported by the U.S. government.
AB122-ASA2,7,1110 3. The defendant has been granted immunity in exchange for testifying or
11otherwise assisting a law enforcement investigation or prosecution.
AB122-ASA2,7,1212 4. The defendant fled the jurisdiction.
AB122-ASA2,7,1313 5. The property has been unclaimed for a period of at least 9 months.
AB122-ASA2,7,1514 6. The property is contraband that is subject to forfeiture under s. 961.55 (6),
15(6m), or (7).
AB122-ASA2,23 16Section 23 . 961.555 (2m) of the statutes is created to read:
AB122-ASA2,7,2017 961.555 (2m) Criminal forfeitures. (a) In addition to any penalties under this
18chapter, the court shall, with due provision for the rights of innocent persons in
19accordance with sub. (5), order forfeiture of any property specified in s. 961.55 (1) in
20accordance with pars. (b), (c), and (d).
AB122-ASA2,8,221 (b) A criminal complaint must allege the extent of property subject to forfeiture
22under this subsection. At trial, the court or the jury shall return a special verdict
23determining the extent of property, if any, that is subject to forfeiture under this
24subsection. When a special verdict contains a finding of property subject to a

1forfeiture under this subsection, a judgment of criminal forfeiture shall be entered
2along with the judgment of conviction under s. 972.13.
AB122-ASA2,8,93 (c) An injured person has a right or claim to forfeited property or the proceeds
4derived from forfeited property under this subsection that is superior to any right or
5claim the state has in the property or proceeds. This paragraph does not grant the
6injured person priority over state claims or rights by reason of a tax lien or other basis
7not covered by this section or by s. 961.55 or 961.56. All rights, titles, and interest
8in property specified in s. 961.55 (1) vest in the state upon the commission of the act
9giving rise to forfeiture under this subsection.
AB122-ASA2,8,1810 (d) An injured or innocent person may petition the court for relief from the
11judgment of criminal forfeiture entered under par. (b) within 30 days after it is
12entered. The person filing the petition has the burden of satisfying or convincing to
13a reasonable certainty by the greater weight of the evidence that the person has a
14bona fide perfected security interest in the property subject to forfeiture in s. 961.55
15(1) or any other property subject to forfeiture in sub. (4). The court may order that
16a person with a bona fide perfected security interest be paid from the proceeds of the
17forfeiture or any other equitable relief necessary so as to do substantial justice to the
18person.
AB122-ASA2,24 19Section 24 . 961.555 (3) of the statutes is amended to read:
AB122-ASA2,8,2220 961.555 (3) Burden of proof. The state shall have the burden of satisfying or
21proving by clear and convincing to a reasonable certainty by the greater weight of the
22credible
evidence that the property is subject to forfeiture under s. 961.55.
AB122-ASA2,25 23Section 25 . 961.555 (3g) of the statutes is created to read:
AB122-ASA2,9,224 961.555 (3g) Privileges. The defendant or convicted offender may invoke the
25right against self-incrimination or the marital privilege during the

1forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw
2an adverse inference from the invocation of the right or privilege.
AB122-ASA2,26 3Section 26. 961.555 (3m) of the statutes is created to read:
AB122-ASA2,9,74 961.555 (3m) Proportionality. (a) The court may not order the forfeiture of
5property if the court finds that the forfeiture is grossly disproportional to the crime
6for which the person whose property was seized was convicted or that the forfeiture
7is unconstitutionally excessive under the state or federal constitution.
AB122-ASA2,9,128 (b) A person who is alleging that the forfeiture is grossly disproportional or is
9unconstitutionally excessive under this subsection shall have the burden of
10satisfying or convincing to a reasonable certainty by the greater weight of the
11credible evidence that the forfeiture is grossly disproportional or unconstitutionally
12excessive.
AB122-ASA2,9,1413 (c) In determining whether the forfeiture is grossly disproportional or
14unconstitutionally excessive, the court shall consider the following:
AB122-ASA2,9,1515 1. The seriousness of the offense.
AB122-ASA2,9,1616 2. The purpose of the statute authorizing the forfeiture.
AB122-ASA2,9,1717 3. The maximum fine for the offense.
AB122-ASA2,9,1818 4. The harm that actually resulted from the defendant's conduct.
AB122-ASA2,9,2119 (d) In determining whether the forfeiture is grossly disproportional or
20unconstitutionally excessive, the court may not consider the value of the property to
21the state.
AB122-ASA2,27 22Section 27 . 961.555 (5) of the statutes is created to read:
AB122-ASA2,9,2523 961.555 (5) Innocent owners. (a) Notwithstanding sub. (2) (a), a person who
24claims to have an ownership interest in property subject to forfeiture as an innocent
25owner may petition the court for the return of his or her seized property at any time.
AB122-ASA2,10,5
1(b) A person who has an ownership interest in property subject to forfeiture
2that exists at the occurrence of the illegal conduct giving rise to the forfeiture and
3who claims to be an innocent owner has the burden of proving by clear and convincing
4evidence that he or she has a legal right, title, or interest in the property seized under
5this chapter.
AB122-ASA2,10,96 (c) If the requisite showing under par. (b) has been made, in order to proceed
7with a forfeiture action against the property, the state has the burden of proving by
8clear and convincing evidence that the person had actual or constructive knowledge
9of the underlying crime giving rise to the forfeiture.
AB122-ASA2,10,1410 (d) A person who has an ownership interest in property subject to forfeiture
11that he or she acquired after the occurrence of the conduct giving rise to the forfeiture
12and who claims to be an innocent owner has the burden of proving by clear and
13convincing evidence that he or she has a legal right, title, or interest in the property
14seized under this chapter.
AB122-ASA2,10,1915 (e) If the requisite showing under par. (d) has been made, in order to proceed
16with a forfeiture action against the property, the state has the burden of proving by
17clear and convincing evidence that the person had actual or constructive knowledge
18that the property was subject to forfeiture or that the person was not a bona fide
19purchaser without notice of any defect in title and for valuable consideration.
AB122-ASA2,10,2320 (f) If the state does not meet the burden under par. (c) or (e) as to any property,
21the court shall find that the property is the property of an innocent owner and not
22subject to forfeiture under this chapter and shall order the state to relinquish all
23claims of title to the property.
AB122-ASA2,28 24Section 28 . 961.555 (6) of the statutes is created to read:
AB122-ASA2,11,9
1961.555 (6) Return of property. The court shall order the return of any
2property subject to forfeiture under ss. 961.55 to 961.56 within 30 days of acquittal
3or dismissal of charges for the offense which was the basis of the forfeiture action,
4or 6 months after a seizure which was the basis of the forfeiture action if no charges
5have been issued and no extension has been granted. If the property is co-owned by
62 or more defendants in a criminal action, and one or more defendant co-owners are
7acquitted or the charges against him or her are dismissed, the judge shall have
8discretion to the dispose of the co-owned property in accordance with the
9proportionality guidelines in sub. (3m) as he or she deems appropriate.
AB122-ASA2,29 10Section 29 . 961.555 (7) of the statutes is created to read:
AB122-ASA2,11,1511 961.555 (7) Attorney fees. A person who prevails in an action to return
12property subject to forfeiture under ss. 961.55 to 961.56 shall be awarded reasonable
13attorney fees by the state. For the purposes of this subsection, a person prevails if
14the claimant recovers more than 50 percent, by value, of the money or other property
15that is claimed.
AB122-ASA2,30 16Section 30 . 968.20 (1) of the statutes is amended to read:
AB122-ASA2,11,2417 968.20 (1) Any person claiming the right to possession of property seized
18pursuant to a search warrant or seized without a search warrant, except for an
19animal taken into custody under s. 173.13 (1) or withheld from its owner under s.
20173.21 (1) (a), may apply for its return to the circuit court for the county in which the
21property was seized or where the search warrant was returned, except that a court
22may commence a hearing, on its own initiative, to return property seized under s.
23968.26. If an initial appearance under s. 970.01 is scheduled, the application for the
24return of the property shall be filed within 120 days of the initial appearance.
AB122-ASA2,31 25Section 31 . 968.20 (1g) (intro.) and (a) of the statutes are amended to read:
AB122-ASA2,12,10
1968.20 (1g) (intro.) The court shall order such notice as it deems adequate to
2be given the district attorney and, unless notice was provided under s. 968.26 (7), to
3all persons who have or may have an interest in the property. The court shall hold
4a hearing to hear all claims to its true ownership. Except for a hearing commenced
5by the court, the hearing shall occur no more than 30 days after a motion is filed
6except that either party may, by agreement or for good cause, move the court for one
7extension of no more than 10 days. Any motion may be supported by affidavits or
8other submissions.
If the right to possession is proved to the court's satisfaction, it
9shall order the property, other than contraband or property covered under sub. (1m)
10or (1r) or s. 173.21 (4) or 968.205, returned if the court finds any of the following:
AB122-ASA2,12,1411 (a) The It is likely that the final judgment will be that the state must return
12the property to the claimant and the
property is not reasonably needed as evidence
13or for other investigatory reasons or, if needed, satisfactory arrangements can be
14made for its return for subsequent use as evidence; or.
AB122-ASA2,32 15Section 32 . 968.20 (1g) (am) of the statutes is created to read:
AB122-ASA2,12,2216 968.20 (1g) (am) The property is the only reasonable means for a defendant to
17pay for legal representation in the forfeiture or criminal proceeding, the property is
18not likely to be needed for payment of victim compensation, restitution, or fines, and
19the property is not reasonably needed as evidence or for other investigatory reasons.
20If the court makes this finding, it may order the return of funds or property sufficient
21to obtain legal counsel but less than the total amount seized and require an
22accounting.
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