SB61,10,22 5. Whether the person completed or attempted to complete the offense.
SB61,10,33 6. The fair market value of the property.
SB61,10,54 7. The value of the property to the person, including the hardship to the person
5if the property is forfeited.
SB61,10,66 8. The hardship to the person's family members if the property is forfeited.
SB61,10,97 (d) In determining whether the forfeiture is grossly disproportional or
8unconstitutionally excessive, the court may not consider the value of the property to
9the state.
SB61,23 10Section 23. 961.555 (5) of the statutes is created to read:
SB61,10,1311 961.555 (5) Return of property. The court shall order the return of any
12property subject to forfeiture under ss. 961.55 to 961.56 within 30 days of acquittal
13or dismissal of charges for the offense which was the basis of the forfeiture action.
SB61,24 14Section 24. 961.555 (6) of the statutes is created to read:
SB61,10,1915 961.555 (6) Attorney fees. A person who prevails in an action to return
16property subject to forfeiture under ss. 961.55 to 961.56 shall be awarded reasonable
17attorney fees by the state. For the purposes of this subsection, a person prevails if
18the claimant recovers more than 50 percent, by value, of the money or other property
19that is claimed.
SB61,25 20Section 25. 973.075 (1) (intro.) of the statutes is amended to read:
SB61,10,2221 973.075 (1) (intro.) The Subject to subs. (1g) and (1m), the following are subject
22to seizure and forfeiture under ss. 973.075 to 973.077:
SB61,26 23Section 26. 973.075 (1) (b) 1m. (intro.) of the statutes is renumbered 973.075
24(1) (b) (intro.) and amended to read:
SB61,11,2
1973.075 (1) (b) (intro.) Except as provided in subd. 2m., all All vehicles, as
2defined in s. 939.22 (44), which are used in any of the following ways:
SB61,27 3Section 27. 973.075 (1) (b) 1m. a. to h. of the statutes are renumbered 973.075
4(1) (b) 1. to 8.
SB61,28 5Section 28. 973.075 (1) (b) 2m. of the statutes is repealed.
SB61,29 6Section 29. 973.075 (1) (bg) of the statutes is amended to read:
SB61,11,127 973.075 (1) (bg) Any property used or to be used in the commission of a crime
8under s. 943.74, 943.75 (2) or (2m), or 948.07, but if the property is encumbered by
9a bona fide perfected security interest that was perfected before the date of the
10commission of the current violation and the holder of the security interest neither
11had knowledge of nor consented to the commission of that violation, the holder of the
12security interest shall be paid from the proceeds of the forfeitur
e.
SB61,30 13Section 30. 973.075 (1) (bm) of the statutes is amended to read:
SB61,11,2014 973.075 (1) (bm) Any property used in the commission of a crime under s.
15813.12 (8), 813.122 (11), 813.123 (10), 813.125 (7), 813.128 (4) or 940.32, but if the
16property is encumbered by a bonafide perfected security interest that was perfected
17before the date of the commission of the current violation and the holder of the
18security interest neither had knowledge of nor consented to the commission of that
19violation, the holder of the security interest shall be paid from the proceeds of the
20forfeiture
.
SB61,31 21Section 31. 973.075 (1) (d) of the statutes is amended to read:
SB61,12,322 973.075 (1) (d) A tank vessel that violates s. 299.62 (2) that is owned by a person
23who, within 5 years before the commission of the current violation, was previously
24convicted of violating s. 299.62 (2), but if the tank vessel is encumbered by a bona fide
25perfected security interest that was perfected before the date of the commission of

1the current violation and the holder of the security interest neither had knowledge
2of nor consented to the commission of that violation, the holder of the security
3interest shall be paid from the proceeds of the forfeiture
.
SB61,32 4Section 32. 973.075 (1) (e) of the statutes is amended to read:
SB61,12,155 973.075 (1) (e) Any recording, as defined in s. 943.206 (5), created, advertised,
6offered for sale or rent, sold, rented, transported or possessed in violation of ss.
7943.207 to 943.209 or s. 943.49 and any electronic, mechanical or other device for
8making a recording or for manufacturing, reproducing, packaging or assembling a
9recording that was used to facilitate a violation of ss. 943.207 to 943.209 or s. 943.49,
10regardless of the knowledge or intent of the person from whom the recording or
11device is seized. If a device subject to forfeiture under this paragraph is encumbered
12by a bona fide perfected security interest that was perfected before the date of the
13commission of the current violation and the holder of the security interest neither
14had knowledge of nor consented to the commission of that violation, the holder of the
15security interest shall be paid from the proceeds of the forfeiture.
SB61,33 16Section 33. 973.075 (1g) of the statutes is created to read:
SB61,12,1917 973.075 (1g) No item is subject to forfeiture under ss. 973.075 to 973.077 unless
18a person is convicted of the criminal offense that was the basis for the seizure of the
19item or that is related to the action for forfeiture.
SB61,34 20Section 34. 973.075 (1k) of the statutes is created to read:
SB61,12,2521 973.075 (1k) (a) A person who has been subject to a seizure of property has a
22right to a pretrial hearing to determine the validity of the seizure. He or she may
23claim the right to possession of seized property at any time prior to 60 days before
24trial for the crime that gave rise to the seizure by motion to the court establishing
25the validity of the alleged interest in the property.
SB61,13,2
1(b) The state shall file an answer to the motion filed under par. (a) showing
2probable cause for the seizure at least 10 days before the hearing of the motion.
SB61,13,43 (c) The court shall hear the motion filed under par. (a) no more than 30 days
4after the motion is filed.
SB61,13,75 (d) Either party may, by agreement or for good cause, move the court for one
6extension of no more than 10 days. Any such motion may be supported by affidavits
7or other submissions.
SB61,13,108 (e) Following hearing of the motion under par. (a), the court shall order the
9seized property to be returned to a person under this subsection if it finds any of the
10following:
SB61,13,1311 1. It is likely that the final judgement will be that the state must return the
12property to the claimant, and the property is not reasonably required to be held for
13investigatory reasons.
SB61,13,1814 2. The property is the only reasonable means for a defendant to pay for legal
15representation in the forfeiture or criminal proceeding, and the property is not
16reasonably required to be held for investigatory reasons. If the court makes this
17finding, it may order the return of funds or property sufficient to obtain legal counsel
18but less than the total amount seized, and require an accounting.
SB61,13,2219 (f) If a court orders property returned under this subsection, the court shall
20order the person not to sell, transfer, assign, or otherwise encumber the property
21until the court orders the property either returned under sub. (5) or forfeited under
22s. 973.076.
SB61,13,2523 (g) If the person is subsequently convicted of or found to have committed the
24offense, the court shall order the person to surrender the returned property for
25proceedings under s. 973.076.
SB61,35
1Section 35. 973.075 (1m) of the statutes is created to read:
SB61,14,22 973.075 (1m) (a) The property of an innocent owner may not be forfeited.
SB61,14,73 (b) A person who has an ownership interest in property subject to forfeiture
4that exists at the occurrence of the illegal conduct giving rise to the forfeiture who
5claims to be an innocent owner has the burden of proving by clear and convincing
6evidence that he or she has a legal right, title, or interest in the property seized under
7this chapter.
SB61,14,118 (c) If the requisite showing under par. (b) has been made, in order to proceed
9with a forfeiture action against the property, the state has the burden of proving by
10clear and convincing evidence that the person had actual or constructive knowledge
11of the underlying crime giving rise to the forfeiture.
SB61,14,1612 (d) A person who has an ownership interest in property subject to forfeiture
13that he or she acquired after the occurrence of the conduct giving rise to the forfeiture
14who claims to be an innocent owner has the burden of proving by clear and convincing
15evidence that he or she has a legal right, title, or interest in the property seized under
16this chapter.
SB61,14,2117 (e) If the requisite showing under par. (d) has been made, in order to proceed
18with a forfeiture action against the property, the state has the burden of proving by
19clear and convincing evidence that the person had actual or constructive knowledge
20that the property was subject to forfeiture or that the person was not a bona fide
21purchaser without notice of any defect in title and for valuable consideration.
SB61,14,2522 (f) If the state does not meet the burden under par. (c) or (e) as to any property,
23the court shall find that the property is the property of an innocent owner and not
24subject to forfeiture under ss. 973.075 to 973.077 and shall order the state to
25relinquish all claims of title to the property.
SB61,15,4
1(g) The defendant or convicted offender may invoke the right against
2self-incrimination or the marital privilege during the forfeiture-related stage of the
3prosecution. The trier of fact at the hearing may draw an adverse inference from the
4invocation of the right or privilege.
SB61,36 5Section 36. 973.075 (1r) of the statutes is created to read:
SB61,15,116 973.075 (1r) (a) No law enforcement officer or agency or state or local employee
7or agency may enter into an agreement to transfer property to a federal agency
8directly, indirectly, by adoption, through an intergovernmental joint task force, or by
9other means, for the purposes of forfeiture litigation unless the seized property
10includes more than $50,000 of U.S. currency or the property may be forfeited only
11under federal law.
SB61,15,1812 (b) All law enforcement agencies shall refer seized property to the appropriate
13state prosecuting attorney for forfeiture under ss. 973.075 to 973.077 unless the
14seized property includes more than $50,000 of U.S. currency or the property may only
15be forfeited under federal law. If the seized property includes more than $50,000 of
16U.S. currency, the law enforcement agency may, but is not required to, refer or
17transfer the seized property to a federal agency for forfeiture litigation under federal
18law.
SB61,15,2219 (c) Nothing in this subsection shall be construed to restrict a law enforcement
20officer or agency from collaborating with a federal agency to seize contraband or
21property that the law enforcement agency has probable cause to believe is subject to
22forfeiture through an intergovernmental joint task force.
SB61,37 23Section 37. 973.075 (4) of the statutes is amended to read:
SB61,16,824 973.075 (4) When property is forfeited under ss. 973.075 to 973.077, the agency
25seizing the property may sell the property that is not required by law to be destroyed

1or transferred to another agency. The agency may retain any vehicle for official use
2or sell the vehicle. The agency seizing the property may deduct 50 percent of the
3amount received for administrative expenses of seizure, maintenance of custody,
4advertising and court costs and the costs of investigation and prosecution reasonably
5incurred.
The remainder shall be deposited in the school fund as the agency shall
6deposit all
proceeds of the forfeiture in the school fund. If the property forfeited
7under ss. 973.075 to 973.077 is money, all the money shall be deposited in the school
8fund.
SB61,38 9Section 38. 973.075 (5) (intro.) of the statutes is amended to read:
SB61,16,1910 973.075 (5) (intro.) All forfeitures under ss. 973.075 to 973.077 shall be made
11with due provision for the rights of innocent persons under sub. (1) (b) 2m., (bg), (bm),
12(d) and (e)
subs. (1g), (1k), and (1m). Except as provided in sub. (5m) (5r), any
13property seized but not forfeited shall be returned to its rightful owner. Any person
14claiming the right to possession of property seized may apply for its return to the
15circuit court for the county in which the property was seized. The court shall order
16such notice as it deems adequate to be given the district attorney and all persons who
17have or may have an interest in the property and shall hold a hearing to hear all
18claims to its true ownership. If the right to possession is proved to the court's
19satisfaction, it shall order the property returned as soon as practically possible if:
SB61,39 20Section 39. 973.075 (5m) of the statutes is repealed.
SB61,40 21Section 40. 973.075 (5r) of the statutes is created to read:
SB61,16,2522 973.075 (5r) If a recording involved in a violation of ss. 943.207 to 943.209 is
23forfeited, the sheriff of the county in which the recording was seized shall destroy it
24after the completion of all proceedings in which the recording might be required as
25evidence.
SB61,41
1Section 41. 973.076 (1) (a) of the statutes is amended to read:
SB61,17,82 973.076 (1) (a) Type of action; where brought. In an action brought to cause the
3forfeiture of any property specified in s. 342.30 (4) (a) or s. 973.075 (1), the court may
4render a judgment in rem or against a party personally, or both. The circuit court
5for the county in which the property was seized shall have jurisdiction over any
6proceedings regarding the property when the action is commenced in state court.
7Any Subject to s. 973.075 (1r), any property seized may be the subject of a federal
8forfeiture action.
SB61,42 9Section 42. 973.076 (1) (b) 1. of the statutes is amended to read:
SB61,17,2110 973.076 (1) (b) 1. The district attorney of the county within which the property
11was seized or in which the defendant is convicted shall commence the forfeiture
12action within 30 days after the seizure of the property or the date of conviction,
13whichever is earlier, except that the defendant may request that and the forfeiture
14proceedings shall be adjourned until after adjudication the defendant is convicted of
15any charge concerning a crime which was the basis for the seizure of the property.
16The request shall be granted. The forfeiture action shall be commenced by filing a
17summons, complaint and affidavit of the person who seized the property with the
18clerk of circuit court, provided service of authenticated copies of those papers is made
19in accordance with ch. 801 within 90 days after filing upon the person from whom
20the property was seized and upon any person known to have a bona fide perfected
21security interest in the property.
SB61,43 22Section 43. 973.076 (1) (b) 1m. of the statutes is created to read:
SB61,17,2523 973.076 (1) (b) 1m. Upon motion by the prosecuting attorney, the court may
24waive the conviction requirement under subd. 1. if the prosecuting attorney shows
25by clear and convincing evidence that any of the following applies:
SB61,18,1
1a. The defendant has died.
SB61,18,22 b. The defendant was deported by the U.S. government.
SB61,18,43 c. The defendant has been granted immunity in exchange for testifying or
4otherwise assisting a law enforcement investigation or prosecution.
SB61,18,65 d. The defendant fled the jurisdiction after being arrested, charged with a crime
6that includes the forfeiture of property, and released on bail.
SB61,44 7Section 44. 973.076 (3) of the statutes is amended to read:
SB61,18,118 973.076 (3) Burden of proof. The state shall have the burden of satisfying or
9proving by clear and convincing to a reasonable certainty by the greater weight of the
10credible
evidence that the property is subject to forfeiture under s. ss. 973.075 to
11973.077.
SB61,45 12Section 45. 973.076 (3m) of the statutes is created to read:
SB61,18,1613 973.076 (3m) Proportionality. (a) The court may not order the forfeiture of
14property if the court finds that the forfeiture is grossly disproportional to the crime
15for which the person whose property was seized was convicted or that the forfeiture
16is unconstitutionally excessive under the state or federal constitution.
SB61,18,2117 (b) A person who is alleging that the forfeiture is grossly disproportional or is
18unconstitutionally excessive under this subsection shall have the burden of
19satisfying or convincing to a reasonable certainty by the greater weight of the
20credible evidence that the forfeiture is grossly disproportional or unconstitutionally
21excessive.
SB61,18,2322 (c) In determining whether the forfeiture is grossly disproportional or
23unconstitutionally excessive, the court shall consider the following:
SB61,18,2524 1. The seriousness of the offense and its impact on the community, including
25the duration of the activity and the harm caused by the person.
SB61,19,1
12. The extent to which the person participated in the offense.
SB61,19,22 3. The extent to which the property was used in committing the offense.
SB61,19,33 4. The sentence imposed on the person for the offense.
SB61,19,44 5. Whether the person completed or attempted to complete the offense.
SB61,19,55 6. The fair market value of the property.
SB61,19,76 7. The value of the property to the person, including the hardship to the person
7if the property is forfeited
SB61,19,88 8. The hardship to the person's family members if the property is forfeited.
SB61,19,119 (d) In determining whether the forfeiture is grossly disproportional or
10unconstitutionally excessive, the court may not consider the value of the property to
11the state.
SB61,46 12Section 46. 973.076 (5) of the statutes is created to read:
SB61,19,1513 973.076 (5) Return of property. The court shall order the return of any
14property subject to forfeiture under ss. 973.075 to 973.077 within 30 days of acquittal
15or dismissal of charges for the offense which was the basis of the forfeiture action.
SB61,47 16Section 47. 973.076 (6) of the statutes is created to read:
SB61,19,2117 973.076 (6) Attorney fees. A person who prevails in an action to return
18property subject to forfeiture under ss. 973.075 to 973.077 shall be awarded
19reasonable attorney fees by the state. For the purposes of this subsection, a claimant
20prevails if the person recovers more than 50 percent, by value, of the money or other
21property that is claimed.
SB61,48 22Section 48. Initial applicability.
SB61,19,2423 (1) This act first applies to property that is seized on the effective date of this
24subsection.
SB61,19,2525 (End)
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