Second Regular Session of the 122nd General Assembly (2022)
PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana
Constitution) is being amended, the text of the existing provision will appear in this style type,
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a new provision to the Indiana Code or the Indiana Constitution.
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between statutes enacted by the 2021 Regular Session of the General Assembly.
SENATE ENROLLED ACT No. 263
AN ACT to amend the Indiana Code concerning criminal law and
procedure.
Be it enacted by the General Assembly of the State of Indiana:
SECTION 1. IC 34-24-1-2, AS AMENDED BY P.L.47-2018,
SECTION 1, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2022]: Sec. 2. (a) Property may be seized under this chapter
by a law enforcement officer only if:
(1) the seizure is incident to a lawful:
(A) arrest;
(B) search; or
(C) administrative inspection;
(2) the property has been the subject of a prior judgment in favor
of the state or unit in a proceeding under this chapter (or
IC 34-4-30.1 before its repeal); or
(3) a court, after making an ex parte determination that there is
probable cause to believe the property is subject to seizure under
this chapter, issues an order for seizure.
(b) If property is seized under subsection (a)(1), the prosecuting
attorney shall file an affidavit of probable cause with a circuit or
superior court in the county in which the seizure occurred not later than
seven (7) days after the date of the seizure. If the court does not find
probable cause to believe the property is subject to seizure under this
chapter, it shall order the property returned to the owner of record.
(c) When property is seized under subsection (a), the law
SEA 263 — Concur 2
enforcement agency making the seizure may, pending final disposition:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(d) If property seized under subsection (a)(1) or (a)(3) is real
property or a vehicle operated or possessed at the time of its seizure by
a person who is not an owner of the real property or vehicle, the owner
of the real property or vehicle may file a verified petition for
provisional release pending final forfeiture determination, requesting
the court to grant the owner possession of the real property or vehicle
while the forfeiture action is pending.
(e) A petition for provisional release under this section must:
(1) be in writing;
(2) be verified by the petitioner;
(3) state the grounds for relief;
(4) be filed in a circuit or superior court in the county in which the
seizure occurred; and
(5) be served on the prosecuting attorney.
(f) At the hearing on the petition for provisional release under this
section, the petitioner must establish that the:
(1) petitioner is an owner of record;
(2) petitioner or the petitioner's family benefits from the use of the
vehicle or the real property;
(3) petitioner has insured the property against loss from accident
and casualty; and
(4) petitioner had no reason to believe that the vehicle or real
property would be used for illegal activity.
(g) At the hearing on the petition for provisional release under this
section, the prosecuting attorney may present evidence that returning
the property to the owner would likely result in:
(1) damage to the property or diminution of the value of the
property beyond ordinary wear and tear; or
(2) continued use of the property in connection with illegal
activity.
(h) If the court grants the petition for provisional release under this
section, the court shall require the owner to:
(1) maintain the property; and
(2) refrain from selling or otherwise conveying the property
without the permission of the prosecuting attorney.
(i) If the court grants the petition for provisional release under this
section, it may place reasonable restrictions on the use of the property,
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including one (1) or more of the following:
(1) Requiring the owner to post a cash bond.
(2) Placing mileage limitations on the use of a vehicle.
(3) Imposing reasonable limits on the use of the property.
(4) Prohibiting certain persons from the possession, occupation,
or use of the property.
(5) Requiring payment of all taxes, registration, and other fees, if
applicable.
(6) Maintaining property, casualty, and accident insurance.
(j) A court may not grant a petition for provisional release under this
section if the prosecuting attorney has filed a motion under section 9 of
this chapter or IC 35-33-5-5(j). IC 35-33-5-5(k).
(k) The prosecuting attorney shall notify the owner of record of a
vehicle or real property of the right to file a petition for provisional
release under this section not later than seven (7) days after probable
cause has been determined under subsection (b).
(l) Property that is seized under subsection (a) (or IC 34-4-30.1-2(a)
before its repeal) is not subject to replevin but is considered to be in the
custody of the law enforcement agency making the seizure.
SECTION 2. IC 34-24-1-4.5, AS AMENDED BY P.L.47-2018,
SECTION 4, IS AMENDED TO READ AS FOLLOWS [EFFECTIVE
JULY 1, 2022]: Sec. 4.5. (a) After a prosecuting attorney files a
forfeiture action, the prosecuting attorney shall report the following to
the Indiana prosecuting attorneys council:
(1) The date the property was seized.
(2) Whether the property seized was cash, a vehicle, real property,
or other personal property.
(3) Whether the forfeiture was filed in state court or through
federal adoptive seizure.
This subsection applies even if the prosecuting attorney has retained an
attorney to bring the forfeiture action.
(b) After a court enters a judgment in favor of the state or a unit
under section 4 of this chapter, the prosecuting attorney shall report the
following to the Indiana prosecuting attorneys council:
(1) The amount of money or property that is the subject of the
judgment.
(2) The law enforcement agency to which the money or property
is ordered to be transferred.
(3) Whether the forfeiture was contested.
(4) Whether an innocent owner made a claim to the property.
(5) Whether the final disposition of the property resulted in the
property being returned, destroyed, forfeited, retained, or
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distributed by settlement.
(6) The date of the final disposition.
This subsection applies even if the prosecuting attorney has retained an
attorney to bring an action under this chapter.
(c) After a court, upon motion of the prosecuting attorney under
IC 35-33-5-5(j), IC 35-33-5-5(k), orders property transferred to a
federal authority for disposition under 18 U.S.C. 981(e), 19 U.S.C.
1616a, or 21 U.S.C. 881(e), and any related regulations adopted by the
United States Department of Justice, the prosecuting attorney shall
report to the Indiana prosecuting attorneys council the amount of
money or property transferred. This subsection applies even if the
prosecuting attorney has retained an attorney to bring an action under
this chapter.
(d) A report made to the Indiana prosecuting attorneys council under
this section must be in a format approved by the prosecuting attorneys
council. A prosecuting attorney with no forfeitures to report shall file
a report with the Indiana prosecuting attorneys council.
SECTION 3. IC 34-24-1-9 IS AMENDED TO READ AS
FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 9. (a) Upon motion of
a prosecuting attorney under IC 35-33-5-5(j), IC 35-33-5-5(k),
property seized under this chapter must be transferred, subject to the
perfected liens or other security interests of any person in the property,
to the appropriate federal authority for disposition under 18 U.S.C.
981(e), 19 U.S.C. 1616a, or 21 U.S.C. 881(e) and any related
regulations adopted by the United States Department of Justice.
(b) Money received by a law enforcement agency as a result of a
forfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
881(e) and any related regulations adopted by the United States
Department of Justice must be deposited into a nonreverting fund and
may be expended only with the approval of:
(1) the executive (as defined in IC 36-1-2-5), if the money is
received by a local law enforcement agency; or
(2) the governor, if the money is received by a law enforcement
agency in the executive branch.
The money received under this subsection must be used solely for the
benefit of any agency directly participating in the seizure or forfeiture
for purposes consistent with federal laws and regulations.
SECTION 4. IC 35-33-5-5, AS AMENDED BY P.L.1-2007,
SECTION 225, IS AMENDED TO READ AS FOLLOWS
[EFFECTIVE JULY 1, 2022]: Sec. 5. (a) All items of property seized
by any law enforcement agency as a result of an arrest, search warrant,
or warrantless search, shall be securely held by the law enforcement
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agency under the order of the court trying the cause, except as provided
in this section.
(b) Evidence that consists of property obtained unlawfully from its
owner may be returned by the law enforcement agency to the owner
before trial, in accordance with IC 35-43-4-4(h).
(c) Following the final disposition of the cause at trial level or any
other final disposition the following shall be done:
(1) Property which may be lawfully possessed shall be returned
to its rightful owner, if known. If ownership is unknown, a
reasonable attempt shall be made by the law enforcement agency
holding the property to ascertain ownership of the property. After
ninety (90) days from the time:
(A) the rightful owner has been notified to take possession of
the property; or
(B) a reasonable effort has been made to ascertain ownership
of the property;
the law enforcement agency holding the property shall, at a
convenient time, dispose of this property at a public auction. The
proceeds of this property shall be paid into the county general
fund.
(2) Except as provided in subsection (e), property, the possession
of which is unlawful, shall be destroyed by the law enforcement
agency holding it sixty (60) days after final disposition of the
cause.
(3) A firearm that has been seized from a person who is
dangerous (as defined in IC 35-47-14-1) shall be retained,
returned, or disposed of in accordance with IC 35-47-14.
(d) Except as provided in subsection (g), if any property described
in subsection (c) was admitted into evidence in the cause, the property
shall be disposed of in accordance with an order of the court trying the
cause.
(e) A law enforcement agency may destroy or cause to be destroyed
chemicals, controlled substances, or chemically contaminated
equipment (including drug paraphernalia as described in
IC 35-48-4-8.5) associated with the illegal manufacture of drugs or
controlled substances without a court order if all the following
conditions are met:
(1) The law enforcement agency collects and preserves a
sufficient quantity of the chemicals, controlled substances, or
chemically contaminated equipment to demonstrate that the
chemicals, controlled substances, or chemically contaminated
equipment was associated with the illegal manufacture of drugs
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or controlled substances.
(2) The law enforcement agency takes photographs of the illegal
drug manufacturing site that accurately depict the presence and
quantity of chemicals, controlled substances, and chemically
contaminated equipment.
(3) The law enforcement agency completes a chemical inventory
report that describes the type and quantities of chemicals,
controlled substances, and chemically contaminated equipment
present at the illegal manufacturing site.
The photographs and description of the property shall be admissible
into evidence in place of the actual physical evidence.
(f) For purposes of preserving the record of any conviction on
appeal, a photograph demonstrating the nature of the property, and an
adequate description of the property must be obtained before the
disposition of the property. In the event of a retrial, the photograph and
description of the property shall be admissible into evidence in place
of the actual physical evidence. All other rules of law governing the
admissibility of evidence shall apply to the photographs.
(g) All evidence for a violent offense (as defined in
IC 11-12-3.7-6) in the law enforcement agency's possession or
control that could be subjected to DNA testing and analysis shall
be preserved by the law enforcement agency for the later of the
following:
(1) Twenty (20) years from the date the defendant's conviction
becomes final.
(2) The period of the defendant's incarceration.
In cases where an investigation did not result in a conviction, the
evidence shall be preserved until the expiration of the statute of
limitations for the alleged offense. If the preservation of the
evidence is impracticable, the law enforcement agency shall
remove portions of the material evidence likely to contain
biological evidence related to the offense, in a quantity sufficient to
permit future DNA testing before returning or disposing of the
physical evidence. At subsequent hearings or trials, all records,
notes, identification numbers, photographs, and other
documentation relating to the preservation of biological evidence
shall be admissible into evidence.
(g) (h) The law enforcement agency disposing of property in any
manner provided in subsection (b), (c), or (e), or (g), shall maintain
certified records of any disposition under subsection (b), (c), or (e), or
(g). Disposition by destruction of property shall be witnessed by two
(2) persons who shall also attest to the destruction.
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(h) (i) This section does not affect the procedure for the disposition
of firearms seized by a law enforcement agency.
(i) (j) A law enforcement agency that disposes of property by
auction under this section shall permanently stamp or otherwise
permanently identify the property as property sold by the law
enforcement agency.
(j) (k) Upon motion of the prosecuting attorney, the court shall order
property seized under IC 34-24-1 transferred, subject to the perfected
liens or other security interests of any person in the property, to the
appropriate federal authority for disposition under 18 U.S.C. 981(e), 19
U.S.C. 1616a, or 21 U.S.C. 881(e) and any related regulations adopted
by the United States Department of Justice.
(l) The law enforcement agency responsible for disposing of
property under subsection (g), shall do the following:
(1) Maintain a record of the preserved evidence.
(2) Schedule a disposal date for the preserved evidence.
(3) Provide notice to the last known address of the defendant
and the defendant's attorney:
(A) when the preserved evidence is removed from its
secure location; or
(B) of the date the preserved evidence has been marked for
disposal.
The defendant or the defendant's attorney must provide the most
current address of the defendant or the defendant's attorney to the
law enforcement agency responsible for disposing of property in
order to effectively receive proper notice. If the law enforcement
agency responsible for disposing of property does not have the
defendant's or the defendant's attorney's most current address on
file, then the notice requirement is deemed waived.
(m) Failure of a law enforcement agency to follow the
procedures described in this section may constitute contempt of
court. However, failure to follow the procedures described in this
section shall not be grounds for reversal of a conviction unless the
defendant proves a violation of the defendant's due process rights.
(n) Nothing in subsection (g) shall preclude a law enforcement
agency from submitting biological evidence to forensic DNA testing
or analysis, at its own initiative or at the request of a prosecuting
attorney, if such testing will not consume the remainder of the
evidence. If such testing would consume the remainder of the
evidence, the prosecuting attorney may seek a court order allowing
such testing under IC 35-38-7-17.
SECTION 5. IC 35-38-7-14 IS AMENDED TO READ AS
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FOLLOWS [EFFECTIVE JULY 1, 2022]: Sec. 14. (a) If a petition for
DNA testing and analysis is filed under this chapter:
(1) except as provided in IC 35-33-5-5(g), the court shall order
the state to preserve during the pendency of the proceeding all
evidence in the state's possession or control that could be
subjected to DNA testing and analysis for the later of:
(A) twenty (20) years from the date of the defendant's
conviction; or
(B) the period of the defendant's incarceration.
(2) the state shall:
(A) prepare an inventory of the evidence in the possession or
control of the state that could be subjected to DNA testing and
analysis; and
(B) submit a copy of the inventory to defense counsel and the
court; and
(3) if evidence is intentionally destroyed after the court orders its
preservation, the court may impose appropriate sanctions.
(b) In the event that DNA testing and analysis required under
this chapter results in a vacated conviction, all biological evidence
shall continue to be preserved in accordance with IC 35-33-5-5(g),
and for the latest of the following:
(1) Twenty (20) years from the date the conviction was
vacated.
(2) The period of time the defendant is incarcerated for a
subsequent conviction.
(3) The remainder of the statute of limitations for the offense.
However, the obligation to preserve biological evidence does not
apply to a DNA sample taken from the defendant whose conviction
was vacated.
SEA 263 — Concur President of the Senate
President Pro Tempore
Speaker of the House of Representatives
Governor of the State of Indiana
Date: Time:
SEA 263 — Concur