IN
Indiana Senate Bill SB0263

Indiana 2022 Regular Session

Indiana Senate Bill SB0263 Compare Versions

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1+*ES0263.2*
2+Reprinted
3+February 15, 2022
4+ENGROSSED
5+SENATE BILL No. 263
6+_____
7+DIGEST OF SB 263 (Updated February 14, 2022 2:32 pm - DI 92)
8+Citations Affected: IC 34-24; IC 35-33; IC 35-38.
9+Synopsis: Evidence preservation requirements. Establishes additional
10+requirements for the disposition of property held as evidence that may
11+contain biological evidence related to an offense, including matters
12+involving postconviction DNA testing and analysis.
13+Effective: July 1, 2022.
14+Doriot, Koch, Bohacek, Sandlin,
15+Pol Jr., Randolph Lonnie M
16+(HOUSE SPONSORS — STEUERWALD, SCHAIBLEY, DVORAK)
17+January 10, 2022, read first time and referred to Committee on Corrections and Criminal
18+Law.
19+January 27, 2022, amended, reported favorably — Do Pass.
20+January 31, 2022, read second time, amended, ordered engrossed.
21+February 1, 2022, engrossed. Read third time, passed. Yeas 49, nays 0.
22+HOUSE ACTION
23+February 7, 2022, read first time and referred to Committee on Courts and Criminal Code.
24+February 10, 2022, reported — Do Pass.
25+February 14, 2022, read second time, amended, ordered engrossed.
26+ES 263—LS 6984/DI 131 Reprinted
27+February 15, 2022
128 Second Regular Session of the 122nd General Assembly (2022)
229 PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
330 Constitution) is being amended, the text of the existing provision will appear in this style type,
431 additions will appear in this style type, and deletions will appear in this style type.
532 Additions: Whenever a new statutory provision is being enacted (or a new constitutional
633 provision adopted), the text of the new provision will appear in this style type. Also, the
734 word NEW will appear in that style type in the introductory clause of each SECTION that adds
835 a new provision to the Indiana Code or the Indiana Constitution.
936 Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts
1037 between statutes enacted by the 2021 Regular Session of the General Assembly.
11-SENATE ENROLLED ACT No. 263
12-AN ACT to amend the Indiana Code concerning criminal law and
13-procedure.
38+ENGROSSED
39+SENATE BILL No. 263
40+A BILL FOR AN ACT to amend the Indiana Code concerning
41+criminal law and procedure.
1442 Be it enacted by the General Assembly of the State of Indiana:
15-SECTION 1. IC 34-24-1-2, AS AMENDED BY P.L.47-2018,
43+1 SECTION 1. IC 34-24-1-2, AS AMENDED BY P.L.47-2018,
44+2 SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
45+3 JULY 1, 2022]: Sec. 2. (a) Property may be seized under this chapter
46+4 by a law enforcement officer only if:
47+5 (1) the seizure is incident to a lawful:
48+6 (A) arrest;
49+7 (B) search; or
50+8 (C) administrative inspection;
51+9 (2) the property has been the subject of a prior judgment in favor
52+10 of the state or unit in a proceeding under this chapter (or
53+11 IC 34-4-30.1 before its repeal); or
54+12 (3) a court, after making an ex parte determination that there is
55+13 probable cause to believe the property is subject to seizure under
56+14 this chapter, issues an order for seizure.
57+15 (b) If property is seized under subsection (a)(1), the prosecuting
58+16 attorney shall file an affidavit of probable cause with a circuit or
59+17 superior court in the county in which the seizure occurred not later than
60+ES 263—LS 6984/DI 131 2
61+1 seven (7) days after the date of the seizure. If the court does not find
62+2 probable cause to believe the property is subject to seizure under this
63+3 chapter, it shall order the property returned to the owner of record.
64+4 (c) When property is seized under subsection (a), the law
65+5 enforcement agency making the seizure may, pending final disposition:
66+6 (1) place the property under seal;
67+7 (2) remove the property to a place designated by the court; or
68+8 (3) require another agency authorized by law to take custody of
69+9 the property and remove it to an appropriate location.
70+10 (d) If property seized under subsection (a)(1) or (a)(3) is real
71+11 property or a vehicle operated or possessed at the time of its seizure by
72+12 a person who is not an owner of the real property or vehicle, the owner
73+13 of the real property or vehicle may file a verified petition for
74+14 provisional release pending final forfeiture determination, requesting
75+15 the court to grant the owner possession of the real property or vehicle
76+16 while the forfeiture action is pending.
77+17 (e) A petition for provisional release under this section must:
78+18 (1) be in writing;
79+19 (2) be verified by the petitioner;
80+20 (3) state the grounds for relief;
81+21 (4) be filed in a circuit or superior court in the county in which the
82+22 seizure occurred; and
83+23 (5) be served on the prosecuting attorney.
84+24 (f) At the hearing on the petition for provisional release under this
85+25 section, the petitioner must establish that the:
86+26 (1) petitioner is an owner of record;
87+27 (2) petitioner or the petitioner's family benefits from the use of the
88+28 vehicle or the real property;
89+29 (3) petitioner has insured the property against loss from accident
90+30 and casualty; and
91+31 (4) petitioner had no reason to believe that the vehicle or real
92+32 property would be used for illegal activity.
93+33 (g) At the hearing on the petition for provisional release under this
94+34 section, the prosecuting attorney may present evidence that returning
95+35 the property to the owner would likely result in:
96+36 (1) damage to the property or diminution of the value of the
97+37 property beyond ordinary wear and tear; or
98+38 (2) continued use of the property in connection with illegal
99+39 activity.
100+40 (h) If the court grants the petition for provisional release under this
101+41 section, the court shall require the owner to:
102+42 (1) maintain the property; and
103+ES 263—LS 6984/DI 131 3
104+1 (2) refrain from selling or otherwise conveying the property
105+2 without the permission of the prosecuting attorney.
106+3 (i) If the court grants the petition for provisional release under this
107+4 section, it may place reasonable restrictions on the use of the property,
108+5 including one (1) or more of the following:
109+6 (1) Requiring the owner to post a cash bond.
110+7 (2) Placing mileage limitations on the use of a vehicle.
111+8 (3) Imposing reasonable limits on the use of the property.
112+9 (4) Prohibiting certain persons from the possession, occupation,
113+10 or use of the property.
114+11 (5) Requiring payment of all taxes, registration, and other fees, if
115+12 applicable.
116+13 (6) Maintaining property, casualty, and accident insurance.
117+14 (j) A court may not grant a petition for provisional release under this
118+15 section if the prosecuting attorney has filed a motion under section 9 of
119+16 this chapter or IC 35-33-5-5(j). IC 35-33-5-5(k).
120+17 (k) The prosecuting attorney shall notify the owner of record of a
121+18 vehicle or real property of the right to file a petition for provisional
122+19 release under this section not later than seven (7) days after probable
123+20 cause has been determined under subsection (b).
124+21 (l) Property that is seized under subsection (a) (or IC 34-4-30.1-2(a)
125+22 before its repeal) is not subject to replevin but is considered to be in the
126+23 custody of the law enforcement agency making the seizure.
127+24 SECTION 2. IC 34-24-1-4.5, AS AMENDED BY P.L.47-2018,
128+25 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
129+26 JULY 1, 2022]: Sec. 4.5. (a) After a prosecuting attorney files a
130+27 forfeiture action, the prosecuting attorney shall report the following to
131+28 the Indiana prosecuting attorneys council:
132+29 (1) The date the property was seized.
133+30 (2) Whether the property seized was cash, a vehicle, real property,
134+31 or other personal property.
135+32 (3) Whether the forfeiture was filed in state court or through
136+33 federal adoptive seizure.
137+34 This subsection applies even if the prosecuting attorney has retained an
138+35 attorney to bring the forfeiture action.
139+36 (b) After a court enters a judgment in favor of the state or a unit
140+37 under section 4 of this chapter, the prosecuting attorney shall report the
141+38 following to the Indiana prosecuting attorneys council:
142+39 (1) The amount of money or property that is the subject of the
143+40 judgment.
144+41 (2) The law enforcement agency to which the money or property
145+42 is ordered to be transferred.
146+ES 263—LS 6984/DI 131 4
147+1 (3) Whether the forfeiture was contested.
148+2 (4) Whether an innocent owner made a claim to the property.
149+3 (5) Whether the final disposition of the property resulted in the
150+4 property being returned, destroyed, forfeited, retained, or
151+5 distributed by settlement.
152+6 (6) The date of the final disposition.
153+7 This subsection applies even if the prosecuting attorney has retained an
154+8 attorney to bring an action under this chapter.
155+9 (c) After a court, upon motion of the prosecuting attorney under
156+10 IC 35-33-5-5(j), IC 35-33-5-5(k), orders property transferred to a
157+11 federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C.
158+12 1616a, or 21 U.S.C. 881(e), and any related regulations adopted by the
159+13 United States Department of Justice, the prosecuting attorney shall
160+14 report to the Indiana prosecuting attorneys council the amount of
161+15 money or property transferred. This subsection applies even if the
162+16 prosecuting attorney has retained an attorney to bring an action under
163+17 this chapter.
164+18 (d) A report made to the Indiana prosecuting attorneys council under
165+19 this section must be in a format approved by the prosecuting attorneys
166+20 council. A prosecuting attorney with no forfeitures to report shall file
167+21 a report with the Indiana prosecuting attorneys council.
168+22 SECTION 3. IC 34-24-1-9 IS AMENDED TO READ AS
169+23 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 9. (a) Upon motion of
170+24 a prosecuting attorney under IC 35-33-5-5(j), IC 35-33-5-5(k),
171+25 property seized under this chapter must be transferred, subject to the
172+26 perfected liens or other security interests of any person in the property,
173+27 to the appropriate federal authority for disposition under 18 U.S.C.
174+28 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related
175+29 regulations adopted by the United States Department of Justice.
176+30 (b) Money received by a law enforcement agency as a result of a
177+31 forfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
178+32 881(e) and any related regulations adopted by the United States
179+33 Department of Justice must be deposited into a nonreverting fund and
180+34 may be expended only with the approval of:
181+35 (1) the executive (as defined in IC 36-1-2-5), if the money is
182+36 received by a local law enforcement agency; or
183+37 (2) the governor, if the money is received by a law enforcement
184+38 agency in the executive branch.
185+39 The money received under this subsection must be used solely for the
186+40 benefit of any agency directly participating in the seizure or forfeiture
187+41 for purposes consistent with federal laws and regulations.
188+42 SECTION 4. IC 35-33-5-5, AS AMENDED BY P.L.1-2007,
189+ES 263—LS 6984/DI 131 5
190+1 SECTION 225, IS AMENDED TO READ AS FOLLOWS
191+2 [EFFECTIVE JULY 1, 2022]: Sec. 5. (a) All items of property seized
192+3 by any law enforcement agency as a result of an arrest, search warrant,
193+4 or warrantless search, shall be securely held by the law enforcement
194+5 agency under the order of the court trying the cause, except as provided
195+6 in this section.
196+7 (b) Evidence that consists of property obtained unlawfully from its
197+8 owner may be returned by the law enforcement agency to the owner
198+9 before trial, in accordance with IC 35-43-4-4(h).
199+10 (c) Following the final disposition of the cause at trial level or any
200+11 other final disposition the following shall be done:
201+12 (1) Property which may be lawfully possessed shall be returned
202+13 to its rightful owner, if known. If ownership is unknown, a
203+14 reasonable attempt shall be made by the law enforcement agency
204+15 holding the property to ascertain ownership of the property. After
205+16 ninety (90) days from the time:
206+17 (A) the rightful owner has been notified to take possession of
207+18 the property; or
208+19 (B) a reasonable effort has been made to ascertain ownership
209+20 of the property;
210+21 the law enforcement agency holding the property shall, at a
211+22 convenient time, dispose of this property at a public auction. The
212+23 proceeds of this property shall be paid into the county general
213+24 fund.
214+25 (2) Except as provided in subsection (e), property, the possession
215+26 of which is unlawful, shall be destroyed by the law enforcement
216+27 agency holding it sixty (60) days after final disposition of the
217+28 cause.
218+29 (3) A firearm that has been seized from a person who is
219+30 dangerous (as defined in IC 35-47-14-1) shall be retained,
220+31 returned, or disposed of in accordance with IC 35-47-14.
221+32 (d) Except as provided in subsection (g), if any property described
222+33 in subsection (c) was admitted into evidence in the cause, the property
223+34 shall be disposed of in accordance with an order of the court trying the
224+35 cause.
225+36 (e) A law enforcement agency may destroy or cause to be destroyed
226+37 chemicals, controlled substances, or chemically contaminated
227+38 equipment (including drug paraphernalia as described in
228+39 IC 35-48-4-8.5) associated with the illegal manufacture of drugs or
229+40 controlled substances without a court order if all the following
230+41 conditions are met:
231+42 (1) The law enforcement agency collects and preserves a
232+ES 263—LS 6984/DI 131 6
233+1 sufficient quantity of the chemicals, controlled substances, or
234+2 chemically contaminated equipment to demonstrate that the
235+3 chemicals, controlled substances, or chemically contaminated
236+4 equipment was associated with the illegal manufacture of drugs
237+5 or controlled substances.
238+6 (2) The law enforcement agency takes photographs of the illegal
239+7 drug manufacturing site that accurately depict the presence and
240+8 quantity of chemicals, controlled substances, and chemically
241+9 contaminated equipment.
242+10 (3) The law enforcement agency completes a chemical inventory
243+11 report that describes the type and quantities of chemicals,
244+12 controlled substances, and chemically contaminated equipment
245+13 present at the illegal manufacturing site.
246+14 The photographs and description of the property shall be admissible
247+15 into evidence in place of the actual physical evidence.
248+16 (f) For purposes of preserving the record of any conviction on
249+17 appeal, a photograph demonstrating the nature of the property, and an
250+18 adequate description of the property must be obtained before the
251+19 disposition of the property. In the event of a retrial, the photograph and
252+20 description of the property shall be admissible into evidence in place
253+21 of the actual physical evidence. All other rules of law governing the
254+22 admissibility of evidence shall apply to the photographs.
255+23 (g) All evidence for a violent offense (as defined in
256+24 IC 11-12-3.7-6) in the law enforcement agency's possession or
257+25 control that could be subjected to DNA testing and analysis shall
258+26 be preserved by the law enforcement agency for the later of the
259+27 following:
260+28 (1) Twenty (20) years from the date the defendant's conviction
261+29 becomes final.
262+30 (2) The period of the defendant's incarceration.
263+31 In cases where an investigation did not result in a conviction, the
264+32 evidence shall be preserved until the expiration of the statute of
265+33 limitations for the alleged offense. If the preservation of the
266+34 evidence is impracticable, the law enforcement agency shall
267+35 remove portions of the material evidence likely to contain
268+36 biological evidence related to the offense, in a quantity sufficient to
269+37 permit future DNA testing before returning or disposing of the
270+38 physical evidence. At subsequent hearings or trials, all records,
271+39 notes, identification numbers, photographs, and other
272+40 documentation relating to the preservation of biological evidence
273+41 shall be admissible into evidence.
274+42 (g) (h) The law enforcement agency disposing of property in any
275+ES 263—LS 6984/DI 131 7
276+1 manner provided in subsection (b), (c), or (e), or (g), shall maintain
277+2 certified records of any disposition under subsection (b), (c), or (e), or
278+3 (g). Disposition by destruction of property shall be witnessed by two
279+4 (2) persons who shall also attest to the destruction.
280+5 (h) (i) This section does not affect the procedure for the disposition
281+6 of firearms seized by a law enforcement agency.
282+7 (i) (j) A law enforcement agency that disposes of property by
283+8 auction under this section shall permanently stamp or otherwise
284+9 permanently identify the property as property sold by the law
285+10 enforcement agency.
286+11 (j) (k) Upon motion of the prosecuting attorney, the court shall order
287+12 property seized under IC 34-24-1 transferred, subject to the perfected
288+13 liens or other security interests of any person in the property, to the
289+14 appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
290+15 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
291+16 by the United States Department of Justice.
292+17 (l) The law enforcement agency responsible for disposing of
293+18 property under subsection (g), shall do the following:
294+19 (1) Maintain a record of the preserved evidence.
295+20 (2) Schedule a disposal date for the preserved evidence.
296+21 (3) Provide notice to the last known address of the defendant
297+22 and the defendant's attorney:
298+23 (A) when the preserved evidence is removed from its
299+24 secure location; or
300+25 (B) of the date the preserved evidence has been marked for
301+26 disposal.
302+27 The defendant or the defendant's attorney must provide the most
303+28 current address of the defendant or the defendant's attorney to the
304+29 law enforcement agency responsible for disposing of property in
305+30 order to effectively receive proper notice. If the law enforcement
306+31 agency responsible for disposing of property does not have the
307+32 defendant's or the defendant's attorney's most current address on
308+33 file, then the notice requirement is deemed waived.
309+34 (m) Failure of a law enforcement agency to follow the
310+35 procedures described in this section may constitute contempt of
311+36 court. However, failure to follow the procedures described in this
312+37 section shall not be grounds for reversal of a conviction unless the
313+38 defendant proves a violation of the defendant's due process rights.
314+39 (n) Nothing in subsection (g) shall preclude a law enforcement
315+40 agency from submitting biological evidence to forensic DNA testing
316+41 or analysis, at its own initiative or at the request of a prosecuting
317+42 attorney, if such testing will not consume the remainder of the
318+ES 263—LS 6984/DI 131 8
319+1 evidence. If such testing would consume the remainder of the
320+2 evidence, the prosecuting attorney may seek a court order allowing
321+3 such testing under IC 35-38-7-17.
322+4 SECTION 5. IC 35-38-7-14 IS AMENDED TO READ AS
323+5 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 14. (a) If a petition for
324+6 DNA testing and analysis is filed under this chapter:
325+7 (1) except as provided in IC 35-33-5-5(g), the court shall order
326+8 the state to preserve during the pendency of the proceeding all
327+9 evidence in the state's possession or control that could be
328+10 subjected to DNA testing and analysis for the later of:
329+11 (A) twenty (20) years from the date of the defendant's
330+12 conviction; or
331+13 (B) the period of the defendant's incarceration.
332+14 (2) the state shall:
333+15 (A) prepare an inventory of the evidence in the possession or
334+16 control of the state that could be subjected to DNA testing and
335+17 analysis; and
336+18 (B) submit a copy of the inventory to defense counsel and the
337+19 court; and
338+20 (3) if evidence is intentionally destroyed after the court orders its
339+21 preservation, the court may impose appropriate sanctions.
340+22 (b) In the event that DNA testing and analysis required under
341+23 this chapter results in a vacated conviction, all biological evidence
342+24 shall continue to be preserved in accordance with IC 35-33-5-5(g),
343+25 and for the latest of the following:
344+26 (1) Twenty (20) years from the date the conviction was
345+27 vacated.
346+28 (2) The period of time the defendant is incarcerated for a
347+29 subsequent conviction.
348+30 (3) The remainder of the statute of limitations for the offense.
349+31 However, the obligation to preserve biological evidence does not
350+32 apply to a DNA sample taken from the defendant whose conviction
351+33 was vacated.
352+ES 263—LS 6984/DI 131 9
353+COMMITTEE REPORT
354+Madam President: The Senate Committee on Corrections and
355+Criminal Law, to which was referred Senate Bill No. 263, has had the
356+same under consideration and begs leave to report the same back to the
357+Senate with the recommendation that said bill be AMENDED as
358+follows:
359+Page 1, delete lines 1 through 17, begin a new paragraph and insert:
360+"SECTION 1. IC 34-24-1-2, AS AMENDED BY P.L.47-2018,
16361 SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
17362 JULY 1, 2022]: Sec. 2. (a) Property may be seized under this chapter
18363 by a law enforcement officer only if:
19364 (1) the seizure is incident to a lawful:
20365 (A) arrest;
21366 (B) search; or
22367 (C) administrative inspection;
23368 (2) the property has been the subject of a prior judgment in favor
24369 of the state or unit in a proceeding under this chapter (or
25370 IC 34-4-30.1 before its repeal); or
26371 (3) a court, after making an ex parte determination that there is
27372 probable cause to believe the property is subject to seizure under
28373 this chapter, issues an order for seizure.
29374 (b) If property is seized under subsection (a)(1), the prosecuting
30375 attorney shall file an affidavit of probable cause with a circuit or
31376 superior court in the county in which the seizure occurred not later than
32377 seven (7) days after the date of the seizure. If the court does not find
33378 probable cause to believe the property is subject to seizure under this
34379 chapter, it shall order the property returned to the owner of record.
35380 (c) When property is seized under subsection (a), the law
36-SEA 263 — Concur 2
37381 enforcement agency making the seizure may, pending final disposition:
38382 (1) place the property under seal;
39383 (2) remove the property to a place designated by the court; or
40384 (3) require another agency authorized by law to take custody of
41385 the property and remove it to an appropriate location.
42386 (d) If property seized under subsection (a)(1) or (a)(3) is real
43387 property or a vehicle operated or possessed at the time of its seizure by
44388 a person who is not an owner of the real property or vehicle, the owner
45389 of the real property or vehicle may file a verified petition for
46390 provisional release pending final forfeiture determination, requesting
47391 the court to grant the owner possession of the real property or vehicle
48392 while the forfeiture action is pending.
49393 (e) A petition for provisional release under this section must:
394+ES 263—LS 6984/DI 131 10
50395 (1) be in writing;
51396 (2) be verified by the petitioner;
52397 (3) state the grounds for relief;
53398 (4) be filed in a circuit or superior court in the county in which the
54399 seizure occurred; and
55400 (5) be served on the prosecuting attorney.
56401 (f) At the hearing on the petition for provisional release under this
57402 section, the petitioner must establish that the:
58403 (1) petitioner is an owner of record;
59404 (2) petitioner or the petitioner's family benefits from the use of the
60405 vehicle or the real property;
61406 (3) petitioner has insured the property against loss from accident
62407 and casualty; and
63408 (4) petitioner had no reason to believe that the vehicle or real
64409 property would be used for illegal activity.
65410 (g) At the hearing on the petition for provisional release under this
66411 section, the prosecuting attorney may present evidence that returning
67412 the property to the owner would likely result in:
68413 (1) damage to the property or diminution of the value of the
69414 property beyond ordinary wear and tear; or
70415 (2) continued use of the property in connection with illegal
71416 activity.
72417 (h) If the court grants the petition for provisional release under this
73418 section, the court shall require the owner to:
74419 (1) maintain the property; and
75420 (2) refrain from selling or otherwise conveying the property
76421 without the permission of the prosecuting attorney.
77422 (i) If the court grants the petition for provisional release under this
78423 section, it may place reasonable restrictions on the use of the property,
79-SEA 263 — Concur 3
80424 including one (1) or more of the following:
81425 (1) Requiring the owner to post a cash bond.
82426 (2) Placing mileage limitations on the use of a vehicle.
83427 (3) Imposing reasonable limits on the use of the property.
84428 (4) Prohibiting certain persons from the possession, occupation,
85429 or use of the property.
86430 (5) Requiring payment of all taxes, registration, and other fees, if
87431 applicable.
88432 (6) Maintaining property, casualty, and accident insurance.
89433 (j) A court may not grant a petition for provisional release under this
90434 section if the prosecuting attorney has filed a motion under section 9 of
91435 this chapter or IC 35-33-5-5(j). IC 35-33-5-5(k).
92436 (k) The prosecuting attorney shall notify the owner of record of a
437+ES 263—LS 6984/DI 131 11
93438 vehicle or real property of the right to file a petition for provisional
94439 release under this section not later than seven (7) days after probable
95440 cause has been determined under subsection (b).
96441 (l) Property that is seized under subsection (a) (or IC 34-4-30.1-2(a)
97442 before its repeal) is not subject to replevin but is considered to be in the
98443 custody of the law enforcement agency making the seizure.
99444 SECTION 2. IC 34-24-1-4.5, AS AMENDED BY P.L.47-2018,
100445 SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
101446 JULY 1, 2022]: Sec. 4.5. (a) After a prosecuting attorney files a
102447 forfeiture action, the prosecuting attorney shall report the following to
103448 the Indiana prosecuting attorneys council:
104449 (1) The date the property was seized.
105450 (2) Whether the property seized was cash, a vehicle, real property,
106451 or other personal property.
107452 (3) Whether the forfeiture was filed in state court or through
108453 federal adoptive seizure.
109454 This subsection applies even if the prosecuting attorney has retained an
110455 attorney to bring the forfeiture action.
111456 (b) After a court enters a judgment in favor of the state or a unit
112457 under section 4 of this chapter, the prosecuting attorney shall report the
113458 following to the Indiana prosecuting attorneys council:
114459 (1) The amount of money or property that is the subject of the
115460 judgment.
116461 (2) The law enforcement agency to which the money or property
117462 is ordered to be transferred.
118463 (3) Whether the forfeiture was contested.
119464 (4) Whether an innocent owner made a claim to the property.
120465 (5) Whether the final disposition of the property resulted in the
121466 property being returned, destroyed, forfeited, retained, or
122-SEA 263 — Concur 4
123467 distributed by settlement.
124468 (6) The date of the final disposition.
125469 This subsection applies even if the prosecuting attorney has retained an
126470 attorney to bring an action under this chapter.
127471 (c) After a court, upon motion of the prosecuting attorney under
128472 IC 35-33-5-5(j), IC 35-33-5-5(k), orders property transferred to a
129473 federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C.
130474 1616a, or 21 U.S.C. 881(e), and any related regulations adopted by the
131475 United States Department of Justice, the prosecuting attorney shall
132476 report to the Indiana prosecuting attorneys council the amount of
133477 money or property transferred. This subsection applies even if the
134478 prosecuting attorney has retained an attorney to bring an action under
135479 this chapter.
480+ES 263—LS 6984/DI 131 12
136481 (d) A report made to the Indiana prosecuting attorneys council under
137482 this section must be in a format approved by the prosecuting attorneys
138483 council. A prosecuting attorney with no forfeitures to report shall file
139484 a report with the Indiana prosecuting attorneys council.
140485 SECTION 3. IC 34-24-1-9 IS AMENDED TO READ AS
141486 FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 9. (a) Upon motion of
142487 a prosecuting attorney under IC 35-33-5-5(j), IC 35-33-5-5(k),
143488 property seized under this chapter must be transferred, subject to the
144489 perfected liens or other security interests of any person in the property,
145490 to the appropriate federal authority for disposition under 18 U.S.C.
146491 981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related
147492 regulations adopted by the United States Department of Justice.
148493 (b) Money received by a law enforcement agency as a result of a
149494 forfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
150495 881(e) and any related regulations adopted by the United States
151496 Department of Justice must be deposited into a nonreverting fund and
152497 may be expended only with the approval of:
153498 (1) the executive (as defined in IC 36-1-2-5), if the money is
154499 received by a local law enforcement agency; or
155500 (2) the governor, if the money is received by a law enforcement
156501 agency in the executive branch.
157502 The money received under this subsection must be used solely for the
158503 benefit of any agency directly participating in the seizure or forfeiture
159504 for purposes consistent with federal laws and regulations.
160505 SECTION 4. IC 35-33-5-5, AS AMENDED BY P.L.1-2007,
161506 SECTION 225, IS AMENDED TO READ AS FOLLOWS
162507 [EFFECTIVE JULY 1, 2022]: Sec. 5. (a) All items of property seized
163508 by any law enforcement agency as a result of an arrest, search warrant,
164509 or warrantless search, shall be securely held by the law enforcement
165-SEA 263 — Concur 5
166510 agency under the order of the court trying the cause, except as provided
167511 in this section.
168512 (b) Evidence that consists of property obtained unlawfully from its
169513 owner may be returned by the law enforcement agency to the owner
170514 before trial, in accordance with IC 35-43-4-4(h).
171515 (c) Following the final disposition of the cause at trial level or any
172516 other final disposition the following shall be done:
173517 (1) Property which may be lawfully possessed shall be returned
174518 to its rightful owner, if known. If ownership is unknown, a
175519 reasonable attempt shall be made by the law enforcement agency
176520 holding the property to ascertain ownership of the property. After
177521 ninety (90) days from the time:
178522 (A) the rightful owner has been notified to take possession of
523+ES 263—LS 6984/DI 131 13
179524 the property; or
180525 (B) a reasonable effort has been made to ascertain ownership
181526 of the property;
182527 the law enforcement agency holding the property shall, at a
183528 convenient time, dispose of this property at a public auction. The
184529 proceeds of this property shall be paid into the county general
185530 fund.
186531 (2) Except as provided in subsection (e), property, the possession
187532 of which is unlawful, shall be destroyed by the law enforcement
188533 agency holding it sixty (60) days after final disposition of the
189534 cause.
190535 (3) A firearm that has been seized from a person who is
191536 dangerous (as defined in IC 35-47-14-1) shall be retained,
192537 returned, or disposed of in accordance with IC 35-47-14.
193538 (d) Except as provided in subsection (g), if any property described
194539 in subsection (c) was admitted into evidence in the cause, the property
195540 shall be disposed of in accordance with an order of the court trying the
196541 cause.
197542 (e) A law enforcement agency may destroy or cause to be destroyed
198543 chemicals, controlled substances, or chemically contaminated
199544 equipment (including drug paraphernalia as described in
200545 IC 35-48-4-8.5) associated with the illegal manufacture of drugs or
201546 controlled substances without a court order if all the following
202547 conditions are met:
203548 (1) The law enforcement agency collects and preserves a
204549 sufficient quantity of the chemicals, controlled substances, or
205550 chemically contaminated equipment to demonstrate that the
206551 chemicals, controlled substances, or chemically contaminated
207552 equipment was associated with the illegal manufacture of drugs
208-SEA 263 — Concur 6
209553 or controlled substances.
210554 (2) The law enforcement agency takes photographs of the illegal
211555 drug manufacturing site that accurately depict the presence and
212556 quantity of chemicals, controlled substances, and chemically
213557 contaminated equipment.
214558 (3) The law enforcement agency completes a chemical inventory
215559 report that describes the type and quantities of chemicals,
216560 controlled substances, and chemically contaminated equipment
217561 present at the illegal manufacturing site.
218562 The photographs and description of the property shall be admissible
219563 into evidence in place of the actual physical evidence.
220564 (f) For purposes of preserving the record of any conviction on
221565 appeal, a photograph demonstrating the nature of the property, and an
566+ES 263—LS 6984/DI 131 14
222567 adequate description of the property must be obtained before the
223568 disposition of the property. In the event of a retrial, the photograph and
224569 description of the property shall be admissible into evidence in place
225570 of the actual physical evidence. All other rules of law governing the
226571 admissibility of evidence shall apply to the photographs.
227572 (g) All evidence for a violent offense (as defined in
228573 IC 11-12-3.7-6) in the law enforcement agency's possession or
229574 control that could be subjected to DNA testing and analysis shall
230-be preserved by the law enforcement agency for the later of the
231-following:
232-(1) Twenty (20) years from the date the defendant's conviction
233-becomes final.
234-(2) The period of the defendant's incarceration.
235-In cases where an investigation did not result in a conviction, the
236-evidence shall be preserved until the expiration of the statute of
237-limitations for the alleged offense. If the preservation of the
238-evidence is impracticable, the law enforcement agency shall
239-remove portions of the material evidence likely to contain
240-biological evidence related to the offense, in a quantity sufficient to
241-permit future DNA testing before returning or disposing of the
242-physical evidence. At subsequent hearings or trials, all records,
243-notes, identification numbers, photographs, and other
244-documentation relating to the preservation of biological evidence
245-shall be admissible into evidence.
575+be preserved by the law enforcement agency for twenty (20) years
576+from the date the defendant's conviction becomes final. In cases
577+where an investigation did not result in a conviction, the evidence
578+shall be preserved until the expiration of the statute of limitations
579+for the alleged offense. If the preservation of the evidence is
580+impracticable, the law enforcement agency shall remove portions
581+of the material evidence likely to contain biological evidence
582+related to the offense, in a quantity sufficient to permit future DNA
583+testing before returning or disposing of the physical evidence. At
584+subsequent hearings or trials, all records, notes, identification
585+numbers, photographs, and other documentation relating to the
586+preservation of biological evidence shall be admissible into
587+evidence.
246588 (g) (h) The law enforcement agency disposing of property in any
247589 manner provided in subsection (b), (c), or (e), or (g), shall maintain
248590 certified records of any disposition under subsection (b), (c), or (e), or
249591 (g). Disposition by destruction of property shall be witnessed by two
250592 (2) persons who shall also attest to the destruction.
251-SEA 263 — Concur 7
252593 (h) (i) This section does not affect the procedure for the disposition
253594 of firearms seized by a law enforcement agency.
254595 (i) (j) A law enforcement agency that disposes of property by
255596 auction under this section shall permanently stamp or otherwise
256597 permanently identify the property as property sold by the law
257598 enforcement agency.
258599 (j) (k) Upon motion of the prosecuting attorney, the court shall order
259600 property seized under IC 34-24-1 transferred, subject to the perfected
260601 liens or other security interests of any person in the property, to the
261602 appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
262603 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
263604 by the United States Department of Justice.
264605 (l) The law enforcement agency responsible for disposing of
265606 property under subsection (g), shall do the following:
266607 (1) Maintain a record of the preserved evidence.
267608 (2) Schedule a disposal date for the preserved evidence.
609+ES 263—LS 6984/DI 131 15
268610 (3) Provide notice to the last known address of the defendant
269-and the defendant's attorney:
270-(A) when the preserved evidence is removed from its
271-secure location; or
272-(B) of the date the preserved evidence has been marked for
611+or the defendant's attorney when:
612+(A) the preserved evidence is removed from its secure
613+location; or
614+(B) the date the preserved evidence has been marked for
273615 disposal.
274616 The defendant or the defendant's attorney must provide the most
275617 current address of the defendant or the defendant's attorney to the
276618 law enforcement agency responsible for disposing of property in
277619 order to effectively receive proper notice. If the law enforcement
278620 agency responsible for disposing of property does not have the
279621 defendant's or the defendant's attorney's most current address on
280622 file, then the notice requirement is deemed waived.
281623 (m) Failure of a law enforcement agency to follow the
282624 procedures described in this section may constitute contempt of
283625 court. However, failure to follow the procedures described in this
284626 section shall not be grounds for reversal of a conviction unless the
285627 defendant proves a violation of the defendant's due process rights.
286628 (n) Nothing in subsection (g) shall preclude a law enforcement
287629 agency from submitting biological evidence to forensic DNA testing
288630 or analysis, at its own initiative or at the request of a prosecuting
289631 attorney, if such testing will not consume the remainder of the
290632 evidence. If such testing would consume the remainder of the
291633 evidence, the prosecuting attorney may seek a court order allowing
292-such testing under IC 35-38-7-17.
293-SECTION 5. IC 35-38-7-14 IS AMENDED TO READ AS
294-SEA 263 — Concur 8
295-FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 14. (a) If a petition for
296-DNA testing and analysis is filed under this chapter:
297-(1) except as provided in IC 35-33-5-5(g), the court shall order
298-the state to preserve during the pendency of the proceeding all
299-evidence in the state's possession or control that could be
300-subjected to DNA testing and analysis for the later of:
634+such testing under IC 35-38-7-17.".
635+Delete pages 2 through 3.
636+Page 4, delete lines 1 through 23.
637+Page 4, line 27, delete "IC 35-33-5-5(f)," and insert
638+"IC 35-33-5-5(g),".
639+Page 4, delete lines 40 through 42, begin a new paragraph and
640+insert:
641+"(b) In the event that DNA testing and analysis required under
642+this chapter results in a vacated conviction, all biological evidence
643+shall continue to be preserved in accordance with IC 35-33-5-5(g),
644+and for an additional twenty (20) years from the date a subsequent
645+conviction of any person becomes final, or if there is no subsequent
646+conviction, then for the remainder of the statute of limitations for
647+the offense.".
648+Delete page 5.
649+Renumber all SECTIONS consecutively.
650+and when so amended that said bill do pass.
651+ES 263—LS 6984/DI 131 16
652+(Reference is to SB 263 as introduced.)
653+YOUNG M, Chairperson
654+Committee Vote: Yeas 9, Nays 0.
655+_____
656+SENATE MOTION
657+Madam President: I move that Senate Bill 263 be amended to read
658+as follows:
659+Page 3, line 16, after "or" strike "IC".
660+Page 4, line 10, before "35-33-5-5(j)," strike "IC".
661+Page 4, line 24, after "under" strike "IC".
662+Page 6, line 26, delete "twenty (20) years" and insert "the later of
663+the following:
664+(1) Twenty (20) years from the date the defendant's conviction
665+becomes final.
666+(2) The period of the defendant's incarceration.".
667+Page 6, line 27, delete "from the date the defendant's conviction
668+becomes final.".
669+Page 6, line 27, beginning with "In" begin a new line blocked left.
670+Page 7, line 19, delete "or" and insert "and".
671+Page 7, line 19, delete "attorney when:" and insert "attorney:".
672+Page 7, line 20, delete "(A)" and insert "(A) when".
673+Page 7, line 22, delete "(B)" and insert "(B) of".
674+Page 8, line 7, delete "for an additional twenty" and insert "for the
675+later of:
301676 (A) twenty (20) years from the date of the defendant's
302677 conviction; or
303-(B) the period of the defendant's incarceration.
304-(2) the state shall:
305-(A) prepare an inventory of the evidence in the possession or
306-control of the state that could be subjected to DNA testing and
307-analysis; and
308-(B) submit a copy of the inventory to defense counsel and the
309-court; and
310-(3) if evidence is intentionally destroyed after the court orders its
311-preservation, the court may impose appropriate sanctions.
312-(b) In the event that DNA testing and analysis required under
313-this chapter results in a vacated conviction, all biological evidence
314-shall continue to be preserved in accordance with IC 35-33-5-5(g),
315-and for the latest of the following:
678+(B) the period of the defendant's incarceration.".
679+Page 8, delete line 8.
680+Page 8, line 20, delete "an additional twenty (20) years from the date
681+a subsequent" and insert "the later of the following:
316682 (1) Twenty (20) years from the date the conviction was
317683 vacated.
318684 (2) The period of time the defendant is incarcerated for a
319685 subsequent conviction.
320686 (3) The remainder of the statute of limitations for the offense.
321687 However, the obligation to preserve biological evidence does not
322688 apply to a DNA sample taken from the defendant whose conviction
323-was vacated.
324-SEA 263 — Concur President of the Senate
325-President Pro Tempore
326-Speaker of the House of Representatives
327-Governor of the State of Indiana
328-Date: Time:
329-SEA 263 — Concur
689+ES 263—LS 6984/DI 131 17
690+was vacated.".
691+Page 8, delete lines 21 through 23.
692+(Reference is to SB 263 as printed January 28, 2022.)
693+DORIOT
694+_____
695+COMMITTEE REPORT
696+Mr. Speaker: Your Committee on Courts and Criminal Code, to
697+which was referred Senate Bill 263, has had the same under
698+consideration and begs leave to report the same back to the House with
699+the recommendation that said bill do pass.
700+(Reference is to SB 263 as reprinted February 1, 2022.)
701+MCNAMARA
702+Committee Vote: Yeas 13, Nays 0
703+_____
704+HOUSE MOTION
705+Mr. Speaker: I move that Engrossed Senate Bill 263 be amended to
706+read as follows:
707+Page 8, line 25, delete "later" and insert "latest".
708+(Reference is to ESB 263 as printed February 10, 2022.)
709+SCHAIBLEY
710+ES 263—LS 6984/DI 131