AB280: Bill Text

2009 Assembly BILL 280

May 21, 2009 - Introduced by Representatives Van Akkeren, Kerkman, Staskunas, Townsend, Spanbauer, Gunderson, Suder, Bies and LeMahieu, cosponsored by Senators Leibham and Olsen. Referred to Committee on Criminal Justice.

AB280,1,8 An Act to repeal 973.075 (1) (b) 2m. c.; to renumber and amend 961.55 (1) (d) 4. and 973.075 (4); to amend 961.55 (1) (d) (intro.), 961.55 (1) (d) 3., 961.55 (3) (intro.), 961.55 (5) (intro.), 968.20 (1) (intro.), 968.20 (3) (a), 968.20 (3) (b), 973.075 (1) (b) 1m. (intro.), 973.075 (1) (bg), 973.075 (1) (bj), 973.075 (1) (bm), 973.075 (1) (d), 973.075 (1) (e) and 973.075 (5) (intro.); and to create 961.55 (1) (h), 961.55 (5b), 961.55 (5r), 973.075 (1) (f), 973.075 (1p), 973.075 (4) (a) 1. and 2. and 973.075 (5r) of the statutes; relating to: seizure of a computer used to commit a crime and providing a penalty.

Analysis by the Legislative Reference Bureau

Under current law, the state or a local law enforcement agency may acquire certain property involved in the commission of crime through a forfeiture proceeding, which is generally initiated after the end of the criminal case to which it relates. The forfeiture law applies to all property directly or indirectly derived from the commission of a crime. It also covers certain other property related to the commission of a crime, including: 1) an illegal controlled substance and equipment used in committing a crime relating to a controlled substance; 2) a vehicle used to transport property used or received in committing a felony; 3) a vehicle used in committing a crime relating to prostitution; 4) property used in committing a stalking offense or a criminal violation of a domestic abuse, child abuse, or harassment restraining order or injunction; and 5) pirated, bootlegged, and counterfeit recordings and any equipment used to make them. Current law also permits the state or a local law enforcement agency to retain contraband that it has seized, which includes machines or materials (including computers) that are used to create other contraband items.

Under this bill, a computer that is used, with the knowledge and consent of its owner, in the commission of a crime is subject to forfeiture, regardless of whether it is contraband. If a computer is forfeited under the bill, the law enforcement agency that seized it may retain it for its own use, donate it to a nonprofit organization or another government agency, or sell it and, in general, retain 50 percent of the proceeds of the sale (with the remainder being deposited in the school fund).

For further information see the state and local fiscal estimate, which will be printed as an appendix to this bill.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB280, s. 1 Section 1. 961.55 (1) (d) (intro.) of the statutes is amended to read:

AB280,2,6 961.55 (1) (d) (intro.) All Subject to sub. (1p), 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:

AB280, s. 2 Section 2. 961.55 (1) (d) 3. of the statutes is amended to read:

AB280,2,9 961.55 (1) (d) 3. A vehicle is not subject to forfeiture for a violation of s. 961.41 (3g) (b) to (g); and.

AB280, s. 3 Section 3. 961.55 (1) (d) 4. of the statutes is renumbered 961.55 (1p) and amended to read:

AB280,3,3 961.55 (1p) If forfeiture of a vehicle property encumbered by a bona fide perfected security interest occurs under sub. (1) (d) or (h), the holder of the security interest shall be paid from the proceeds of the forfeiture if the security interest was perfected prior to the date of the commission of the felony which forms the basis for the forfeiture and he or she neither had knowledge of nor consented to the act or omission.

AB280, s. 4 Section 4. 961.55 (1) (h) of the statutes is created to read:

AB280,3,7 961.55 (1) (h) Subject to sub. (1p), any computer, as defined in s. 943.70 (1) (am), used with the knowledge and consent of its owner, in the commission of a crime under this chapter.

AB280, s. 5 Section 5. 961.55 (3) (intro.) of the statutes is amended to read:

AB280,3,19 961.55 (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. subs. (1) (d) 1., and 2. and 4. Any (1p). Subject to sub. (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, subject to sub. (5r), if:

AB280, s. 6 Section 6. 961.55 (5) (intro.) of the statutes is amended to read:

AB280,3,23 961.55 (5) (intro.) When property other than a computer is forfeited under this chapter, the agency whose officer or employee seized the property shall do one of the following:

AB280, s. 7 Section 7. 961.55 (5b) of the statutes is created to read:

AB280,4,2 961.55 (5b) If a computer is forfeited under sub. (1) (h), the agency whose officer or employee seized the property shall, subject to sub. (5r), do one of the following:

AB280,4,10 (a) If the computer is one described in sub. (1p), sell that which is not required to be destroyed by law and which is not harmful to the public. If, after the conditions of sub. (1p) are satisfied, proceeds remain, the agency may use 50 percent of the remainder for payment of forfeiture expenses. Then, any 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.

AB280,4,12 (b) If the computer is not one described in sub. (1p), donate it to a nonprofit organization or a unit of state or local government.

AB280, s. 8 Section 8. 961.55 (5r) of the statutes is created to read:

AB280,4,19 961.55 (5r) Before selling or donating a computer seized under sub. (1) (h) or before returning it to its rightful owner, the law enforcement agency that seized it shall purge all data from the computer that are or represent contraband or that were used in the commission of a crime and may purge any other data or computer programs from the computer if the data or programs are maintained or designed primarily to facilitate the commission of a crime.

AB280, s. 9 Section 9. 968.20 (1) (intro.) of the statutes is amended to read:

AB280,5,5 968.20 (1) (intro.) Any person claiming the right to possession of property seized pursuant to a search warrant or seized without a search warrant may apply for its return to the circuit court for the county in which the property was seized or where the search warrant was returned. 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, other than contraband or property covered under sub. (1m) or (1r) or s. 173.12, 173.21 (4), or 968.205, returned, subject to ss. 961.55 (5r) and 973.075 (5r), if:

AB280, s. 10 Section 10. 968.20 (3) (a) of the statutes is amended to read:

AB280,6,6 968.20 (3) (a) First class cities shall dispose of dangerous weapons or ammunition seized 12 months after taking possession of them if the owner, authorized under sub. (1m), has not requested their return and if the dangerous weapon or ammunition is not required for evidence or use in further investigation and has not been disposed of pursuant to a court order at the completion of a criminal action or proceeding. Disposition procedures shall be established by ordinance or resolution and may include provisions authorizing an attempt to return to the rightful owner any dangerous weapons or ammunition which appear to be stolen or are reported stolen. If enacted, any such provision shall include a presumption that if the dangerous weapons or ammunition appear to be or are reported stolen an attempt will be made to return the dangerous weapons or ammunition to the authorized rightful owner. If the return of a seized dangerous weapon other than a firearm is not requested by its rightful owner under sub. (1) and is not returned by the officer under sub. (2), the city shall safely dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as defined in s. 340.01 (35), sell the motor vehicle following the procedure under s. 973.075 (4) (b) or authorize a law enforcement agency to retain and use the motor vehicle. If the return of a seized firearm or ammunition is not requested by its authorized rightful owner under sub. (1) and is not returned by the officer under sub. (2), the seized firearm or ammunition shall be shipped to and become property of the state crime laboratories. A person designated by the department of justice may destroy any material for which the laboratory has no use or arrange for the exchange of material with other public agencies. In lieu of destruction, shoulder weapons for which the laboratories have no use shall be turned over to the department of natural resources for sale and distribution of proceeds under s. 29.934 or for use under s. 29.938.

AB280, s. 11 Section 11. 968.20 (3) (b) of the statutes is amended to read:

AB280,7,6 968.20 (3) (b) Except as provided in par. (a) or sub. (1m) or (4), a city, village, town or county or other custodian of a seized dangerous weapon or ammunition, if the dangerous weapon or ammunition is not required for evidence or use in further investigation and has not been disposed of pursuant to a court order at the completion of a criminal action or proceeding, shall make reasonable efforts to notify all persons who have or may have an authorized rightful interest in the dangerous weapon or ammunition of the application requirements under sub. (1). If, within 30 days after the notice, an application under sub. (1) is not made and the seized dangerous weapon or ammunition is not returned by the officer under sub. (2), the city, village, town or county or other custodian may retain the dangerous weapon or ammunition and authorize its use by a law enforcement agency, except that a dangerous weapon used in the commission of a homicide or a handgun, as defined in s. 175.35 (1) (b), may not be retained. If a dangerous weapon other than a firearm is not so retained, the city, village, town or county or other custodian shall safely dispose of the dangerous weapon or, if the dangerous weapon is a motor vehicle, as defined in s. 340.01 (35), sell the motor vehicle following the procedure under s. 973.075 (4) (b). If a firearm or ammunition is not so retained, the city, village, town or county or other custodian shall ship it to the state crime laboratories and it is then the property of the laboratories. A person designated by the department of justice may destroy any material for which the laboratories have no use or arrange for the exchange of material with other public agencies. In lieu of destruction, shoulder weapons for which the laboratory has no use shall be turned over to the department of natural resources for sale and distribution of proceeds under s. 29.934 or for use under s. 29.938.

AB280, s. 12 Section 12. 973.075 (1) (b) 1m. (intro.) of the statutes is amended to read:

AB280,7,10 973.075 (1) (b) 1m. (intro.) Except Subject to sub. (1p) and except as provided in subd. 2m., all vehicles, as defined in s. 939.22 (44), which are used in any of the following ways:

AB280, s. 13 Section 13. 973.075 (1) (b) 2m. c. of the statutes is repealed.

AB280, s. 14 Section 14. 973.075 (1) (bg) of the statutes is amended to read:

AB280,7,18 973.075 (1) (bg) Any Subject to sub. (1p), any property used or to be used in the commission of a crime under s. 943.75 (2) or (2m), 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.

AB280, s. 15 Section 15. 973.075 (1) (bj) of the statutes is amended to read:

AB280,7,25 973.075 (1) (bj) Any Subject to sub. (1p), any property used or to be used in the commission of a crime under s. 943.74, 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.

AB280, s. 16 Section 16. 973.075 (1) (bm) of the statutes is amended to read:

AB280,8,8 973.075 (1) (bm) Any Subject to sub. (1p), 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.

AB280, s. 17 Section 17. 973.075 (1) (d) of the statutes is amended to read:

AB280,8,16 973.075 (1) (d) A Subject to sub. (1p), 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.

AB280, s. 18 Section 18. 973.075 (1) (e) of the statutes is amended to read:

AB280,9,3 973.075 (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, subject to sub. (1p), 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.

AB280, s. 19 Section 19. 973.075 (1) (f) of the statutes is created to read:

AB280,9,7 973.075 (1) (f) Subject to sub. (1p), any computer, as defined in s. 943.70 (1) (am), used, with the knowledge and consent of its owner, in the commission of a crime.

AB280, s. 20 Section 20. 973.075 (1p) of the statutes is created to read:

AB280,9,14 973.075 (1p) If any property under sub. (1) (b), (bg), (bj), (bm), (d), or (f) or any device under sub. (1) (e) 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.

AB280, s. 21 Section 21. 973.075 (4) of the statutes is renumbered 973.075 (4) (a) 3. and amended to read:

AB280,9,21 973.075 (4) (a) 3. When property, other than property specified in subd. 1. or 2., is forfeited under ss. 973.075 to 973.077, the agency seizing the property may sell the property that is not required by unless the law requires it to be destroyed or transferred to another agency. The agency may retain any vehicle for official use or sell the vehicle. The

AB280,9,25 (b) When an agency seizing the sells property under par. (a), it shall satisfy the conditions of sub. (1p). If proceeds remain, it 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 Then, any remainder shall be deposited in the school fund as the proceeds of the forfeiture. If the property forfeited under ss. 973.075 to 973.077 is money, all the money shall be deposited in the school fund.

AB280, s. 22 Section 22. 973.075 (4) (a) 1. and 2. of the statutes are created to read:

AB280,10,8 973.075 (4) (a) 1. Subject to sub. (5r), when a computer is forfeited under sub. (1) (f), the agency seizing it shall sell it if sub. (1p) applies but may otherwise retain it for its own use or donate it to a nonprofit organization or a unit of state or local government.

AB280,10,10 2. If a vehicle is forfeited under ss. 973.075 to 973.077, the agency may retain it for official use or sell it.

AB280, s. 23 Section 23. 973.075 (5) (intro.) of the statutes is amended to read:

AB280,10,21 973.075 (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. subs. (1) (b) 2m., (bg), (bm), (d) and (e) (1p). Except as provided in sub. (5m) and subject to sub. (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, subject to sub. (5r), if:

AB280, s. 24 Section 24. 973.075 (5r) of the statutes is created to read:

AB280,11,3 973.075 (5r) Before selling or donating a computer seized under sub. (1) (f) or before returning it to its rightful owner, the law enforcement agency that seized it shall purge all data from the computer that are or represent contraband or that were used in the commission of a crime and may purge any other data or computer programs from the computer if the data or programs are maintained or designed primarily to facilitate the commission of a crime.

AB280, s. 25 Section 25. Initial applicability.

AB280,11,6 (1) This act first applies to crimes committed on the effective date of this subsection.

AB280,11,7 (End)