AB537: Bill Text

AB537,23 Section 23. 973.075 (title) of the statutes is amended to read:

AB537,10,2 973.075 (title) Forfeiture of property derived from crime and certain vehicles; transfers to federal government.

AB537,24 Section 24. 973.075 (1) (intro.) of the statutes is amended to read:

AB537,10,5 973.075 (1) (intro.) The Subject to subs. (1g), (1m), and (1r), the following are subject to seizure and forfeiture under ss. 973.075 to 973.077:

AB537,25 Section 25. 973.075 (1) (b) 1m. (intro.) of the statutes is renumbered 973.075 (1) (b) (intro.) and amended to read:

AB537,10,9 973.075 (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:

AB537,26 Section 26. 973.075 (1) (b) 2m. of the statutes is repealed.

AB537,27 Section 27. 973.075 (1) (bg) of the statutes is amended to read:

AB537,10,17 973.075 (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.

AB537,28 Section 28. 973.075 (1) (bm) of the statutes is amended to read:

AB537,10,25 973.075 (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 (2) 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.

AB537,29 Section 29. 973.075 (1) (d) of the statutes is amended to read:

AB537,11,8 973.075 (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.

AB537,30 Section 30. 973.075 (1) (e) of the statutes is amended to read:

AB537,11,20 973.075 (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.

AB537,31 Section 31. 973.075 (1g) of the statutes is created to read:

AB537,11,24 973.075 (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.

AB537,32 Section 32. 973.075 (1k) of the statutes is created to read:

AB537,12,4 973.075 (1k) (a) A person who is charged with a crime or subject to a forfeiture proceeding that gave rise to the seizure of property and who claims an ownership interest in the seized property may, at any time before the property is subject to forfeiture, petition the court to return the property to him or her.

AB537,12,6 (b) In determining whether to return seized property to a person under this subsection, the court shall consider all of the following:

AB537,12,8 1. The seriousness of the alleged offense and its impact on the community, including the duration of the activity and the harm allegedly caused by the person.

AB537,12,9 2. The extent to which the person is alleged to have participated in the offense.

AB537,12,11 3. The extent to which the property was allegedly used in committing the offense.

AB537,12,12 4. The sentence or amount of forfeiture for the offense.

AB537,12,14 5. Whether the person is alleged to have completed or attempted to complete the offense.

AB537,12,15 6. The fair market value of the property.

AB537,12,17 7. The value of the property to the person, including the hardship to the person if the property is not returned.

AB537,12,18 8. The hardship to the person's family members if the property is not returned.

AB537,12,22 (c) 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 either orders the property returned under sub. (5) or forfeited under s. 973.076.

AB537,12,25 (d) If the person is subsequently convicted of or found to have committed the offense, the court shall order the person to surrender the property for proceedings under s. 973.076.

AB537,33 Section 33. 973.075 (1m) of the statutes is created to read:

AB537,13,6 973.075 (1m) (a) A person who is not the person charged with or convicted of a crime that gave rise to the seizure of the property or the forfeiture proceeding and who claims an ownership interest in seized property has the burden of production to show that he or she has a legal right, title, or interest in the property and that one of the following is true:

AB537,13,8 1. He or she had the ownership interest at the time of the conduct that gave rise to the seizure of the property or the forfeiture proceeding.

AB537,13,10 2. He or she acquired the ownership interest after the time of the conduct that gave rise to the seizure of the property or the forfeiture proceeding.

AB537,13,13 (b) 1. If a person meets the burden under par. (a) 1., the state shall prove by a preponderance of the evidence that the person had actual or constructive knowledge of the conduct that gave rise to the forfeiture.

AB537,13,15 2. If a person meets the burden under par. (a) 2., the state shall prove by a preponderance of the evidence that one of the following is true:

AB537,13,17 a. The person had actual or constructive knowledge that the property was subject to forfeiture when he or she acquired an ownership interest in the property.

AB537,13,18 b. The person was not a bona fide purchaser of the property.

AB537,13,21 (c) If the state does not meet the burden under par. (b) 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.

AB537,34 Section 34. 973.075 (1r) of the statutes is created to read:

AB537,14,2 973.075 (1r) No law enforcement officer or agency or state or local employee or agency may transfer property that may otherwise be seized and forfeited under ss. 973.075 to 973.077 to a federal law enforcement authority or other federal agency unless one of the following applies:

AB537,14,4 (a) The value of the seized property exceeds $50,000, excluding the potential value of the sale of contraband.

AB537,14,5 (b) The seized property may only be forfeited under federal law.

AB537,35 Section 35. 973.075 (4) of the statutes is amended to read:

AB537,14,15 973.075 (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% 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.

AB537,36 Section 36. 973.075 (5) (intro.) of the statutes is amended to read:

AB537,15,2 973.075 (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:

AB537,37 Section 37. 973.075 (5m) of the statutes is repealed.

AB537,38 Section 38. 973.075 (5r) of the statutes is created to read:

AB537,15,8 973.075 (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.

AB537,39 Section 39. 973.076 (1) (a) of the statutes is amended to read:

AB537,15,16 973.076 (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 973.075 (1r), any property seized may be the subject of a federal forfeiture action.

AB537,40 Section 40. 973.076 (1) (b) 1. of the statutes is amended to read:

AB537,16,4 973.076 (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 the forfeiture proceedings be adjourned until after adjudication of any charge concerning a crime which that 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.

AB537,41 Section 41. 973.076 (3m) of the statutes is created to read:

AB537,16,9 973.076 (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.

AB537,16,14 (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.

AB537,16,16 (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

AB537,16,18 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.

AB537,16,19 2. The extent to which the person participated in the offense.

AB537,16,20 3. The extend to which the property was used in committing the offense.

AB537,16,21 4. The sentence imposed on the person for the offense.

AB537,16,22 5. Whether the person completed or attempted to complete the offense.

AB537,16,23 6. The fair market value of the property.

AB537,16,25 7. The value of the property to the person, including the hardship to the person if the property is forfeited.

AB537,17,1 8. The hardship to the person's family members if the property is forfeited.

AB537,17,4 (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.

AB537,42 Section 42. 973.076 (5) of the statutes is created to read:

AB537,17,11 973.076 (5) Reports. (a) Each law enforcement agency shall prepare an annual report on its seizure and forfeiture activity. A law enforcement agency that seized no property or that did not pursue a forfeiture of property under this section or under federal law shall state that in its report. Each law enforcement agency that seized or pursued forfeiture of any property under this section or under federal law shall include all of the following in its report:

AB537,17,13 1. The total number of seizures of currency and the total amount of currency seized in each seizure.

AB537,17,15 2. The total number of seizures of property and the number and types of items seized in each seizure.

AB537,17,16 3. The market value of each item of property seized.

AB537,17,18 4. The total number of occurrences of each category of crime that resulted in the agency's seizure of property.

AB537,17,20 5. The total amount of money or other property that the law enforcement agency received from its seizure or forfeiture activity.

AB537,17,24 (b) Each law enforcement agency that prepares a report under par. (a) shall make the report available to the public and shall submit the report to the district attorney for the county where the law enforcement agency is located and to the department of justice.

AB537,18,4 (c) The department of justice shall compile the reports submitted by each law enforcement agency and shall annually create an aggregate report of all seizures and forfeitures in the state under this section, s. 961.555, or federal law. The department of justice shall make the report available for public view on its Internet site.

AB537,43 Section 43. Initial applicability.

AB537,18,7 (1) This act first applies to property that is seized on the effective date of this subsection.

AB537,18,8 (End)