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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
HOUSE BILL 3752 By: Fetgatter
AS INTRODUCED
An Act relating to crimes and punishments; making
certain acts unlawful; providing penalties; ame nding
21 O.S. 2021, Section 1738, which relates to the
seizure and forfeiture of property used in crimes;
providing for the se izure and forfeiture of real
property under certain circu mstances; providing for
codification; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 1793 of Title 21, unless there
is created a duplication in numbering, reads as follows:
A. It shall be unlawful for the owner of real property which
has been used for the purpose of growing and harvesting marijuana
crops to willfully desert or abandon the real property without first
restoring the land to its previous condition.
B. Any person who violates the provisions of this section
shall, upon conviction, be guilty of a misdemeanor punishable by
imprisonment in the co unty jail for a term of one (1) year, or by a
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fine of One Thousand Dollars ($1,000.00), or by both such fine and
imprisonment.
SECTION 2. AMENDATORY 21 O.S. 2021, Section 1738, is
amended to read as follows:
Section 1738. A. 1. Any commissioned peace officer of this
state is authorized to seize any equipment, vehicle, airplane,
vessel or any other conveyance that is used in the commission of any
armed robbery offense defined in Section 801 of this title, used to
facilitate the intentional discharge of any kind of firearm in
violation of Section 652 of this title, used in violation of the
Trademark Anti-Counterfeiting Act, us ed in the attempt or commiss ion
of any act of burglary in the first or second degree, motor vehicle
theft, unauthorized use of a vehicle, obliteration of distinguishing
numbers on vehicles or criminal possession of vehicles with altered,
removed or obliterated numbers as defined by S ections 1431, 1435,
1716, 1719 and 1720 of this title or Sections 4 -104 and 4-107 of
Title 47 of the Oklahoma Statutes, used in the commission of any
arson offense defined in Section 1401, 1402, 1403, 1404 or 1405 of
this title, used in any manner to facil itate or participate in the
commission of any human trafficking offense in violation of Section
748 of this title, or used by any defendant when such vehicle or
other conveyance is used in any ma nner by a prostitute, pimp or
panderer to facilitate or parti cipate in the commission of any
prostitution offense in violation of Sections Section 1028, 1029 or
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1030 of this title; provided, however, that the vehicle or
conveyance of a customer or anyone merely pr ocuring the services of
a prostitute shall not be included.
2. No conveyance used by a person as a common carrier in the
transaction of business as a common carrier shall be forfeited under
the provisions of this section unless it shall appear that the owner
or other person in ch arge of such conveyance was a cons enting party
or privy to the unlawful use of the conveyance in violation of this
section.
3. No conveyance shall be forfeited under the provisions of
this section by reason of any act or omissio n established by the
owner thereof to have been committed or omitted without the
knowledge or consent of such owner, and if the act is committed by
any person other than such owner, the owner shall establish further
that the conveyance was unlawfully in th e possession of a person
other than the owner in violation of the criminal laws of the United
States or of any state.
B. In addition to the property described in subsection A of
this section, the following property is also subject to forfeiture
pursuant to this section:
1. Property used in the commission of theft of livestock or in
any manner to facilitate the theft of livestock;
2. The proceeds gained from the commission of theft of
livestock;
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3. Personal property acquired with proceeds gained from the
commission of theft of liv estock;
4. All conveyances, inclu ding aircraft, vehicles or vessels,
and horses or dogs which are used to transport or in any manner to
facilitate the transportation for the purpose of the commission of
theft of livestock;
5. Any items having a counterfe it mark and all property that is
owned by or registered to the defendant that is employed or used in
connection with any violation of the Trademark Anti -Counterfeiting
Act;
6. Any weapon possessed, used or available for use in a ny
manner during the commis sion of a felony within the State of
Oklahoma, or any firearm that is possessed by a convicted felon;
7. Any police scanner used in violation of Section 1214 of this
title;
8. Any computer and its components and peripherals, in cluding
but not limited to the central processing unit, monit or, keyboard,
printers, scanners, software, and hardware, when it is used in the
commission of any crime in this state;
9. All property used in the commission of, or in any manner to
facilitate, a violation of Section 104 0.12a of this title;
10. All conveyances, including aircraft, vehicles or vessels,
monies, coins and currency, or other instrumentality used or
intended to be used, in any manner or part, to commit a violation of
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paragraph 1 of subsection A of Section 102 1 of this title, where the
victim of the crime is a minor child, subsection B of Section 1021
of this title, Section 1021.2 of this title, paragraph 1 of
subsection A of Section 1111 of this title, or paragraphs 2 and 3 of
subsection A of Section 1123 of t his title;
11. All conveyances, i ncluding aircraft, vehicles or vessels,
monies, coins and currency, or other instrumentality used in any
manner or part, to commit any violation of the provisions set forth
in Section 748 of this title;
12. Any and all property used in any manner or part to
facilitate, participate or further the commission of a human
trafficking offense in violation of Section 748 of this title, and
all property, including monies, real estate, or any other tangi ble
assets or property of or derived from or used by a prosti tute, pimp
or panderer in any manner or part to facilitate, participate or
further the commission of any prostitution offense in violation of
Sections Section 1028, 1029 or 1030 of this title; provided,
however, any monies, real estate or any other tangible asset or
property of a customer or anyone merely procuring the services of a
prostitute shall not be included; and
13. Any vehicle, airplane, vessel, or parts of a vehicle whose
numbers have been remo ved, altered or obli terated so as to prevent
determination of the true identity or ownership of said property and
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parts of vehicles which probable cause indicates are stolen but
whose true ownership cannot be determined ; and
14. Any real property used in any manner or part to commit any
violation of the provisio ns set forth in Section 1 of this act.
C. Property described in subsectio n A or B of this section may
be held as evidence until a forfeiture has been declared or a
release ordered. Forfeiture actions under this secti on may be
brought by the district attorn ey in the proper county of venue as
petitioner; provided, in the event t he district attorney elects not
to file such action, or fails to file such action within ninety (90)
days of the date of the seizure of such equ ipment, the property
shall be returned to the owner.
D. Notice of seizure and intended forfeiture proceeding sh all
be filed in the office of the clerk of the district court for the
county wherein such property is seized and shall be given all owners
and parties in interest.
E. Notice shall be given according to one of the following
methods:
1. Upon each owner or party in interest whose right, title, or
interest is of record in the Oklahoma Tax Commission or with the
county clerk for filings under the Un iform Commercial Code, served
in the manner of service of process in civil cases prescribed by
Section 2004 of Title 12 of the Oklahoma Statutes;
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2. Upon each owner or party in interest whose name and address
is known, served in the manner of service of p rocess in civil cases
prescribed by Section 2004 of Title 12 of the Oklahoma Statutes; or
3. Upon all other own ers, whose addresses are unknown, but who
are believed to have an interest in the property by one publication
in a newspaper of general circulat ion in the county where the
seizure was made.
F. Within sixty (60) days after the mailing or publication of
the notice, the owner of the property and any other party in
interest or claimant may file a verified answer and claim to the
property described in the notice of seizure and of the intend ed
forfeiture proceeding.
G. If at the end of sixty (60) days after the notice has been
mailed or published there is no verified answer on file, the court
shall hear evidence upon the fact of the unlawful use and ma y order
the property forfeited to the st ate, if such fact is proven.
H. If a verified answer is filed, the forf eiture proceeding
shall be set for hearing.
I. At the hearing the petitioner shall prove by clear and
convincing evidence that property was use d in the attempt or
commission of an act specified in subsection A of this section or is
property described in s ubsection B of this section with knowledge by
the owner of the property.
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J. The claimant of any right, title, or interest in the
property may prove the lien, mortgage, or conditional sales contract
to be bona fide and that the right, title, or interest cr eated by
the document was created without any knowledge or reason to believe
that the property was being, or was to be, used for the purpose
charged.
K. In the event of such proof, th e court may order the property
released to the bona fide or innocent own er, lien holder, mortgagee,
or vendor if the amount due such person is equal to, or in excess
of, the value of the property as of the date of th e seizure, it
being the intention of thi s section to forfeit only the right,
title, or interest of the purchaser , except for items bearing a
counterfeit mark or used exclusively to manufacture a counterfeit
mark.
L. If the amount due to such person is les s than the value of
the property, or if no bona fide claim is established, the property
may be forfeited to the state and may be sold pursuant to judgment
of the court, as on sale upon execution, and as provided in Section
2-508 of Title 63 of the Oklahoma Statutes, except as otherwise
provided for by law and for property bearing a counterfeit mark
which shall be destroyed.
M. Property taken or detained pursuant to this section shall
not be repleviable, but shall be deemed to be in the custody of the
petitioner or in the custody of the law enfor cement agency as
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provided in the Trademark Anti -Counterfeiting Act. Exc ept for
property required to be destroyed pursuant to the Trademark Anti -
Counterfeiting Act, the petitioner shall release said property to
the owner of the property if it is determined that the owner had no
knowledge of the illegal use of the property or i f there is
insufficient evidence to sustain the burden of showing illegal use
of such property. If the owner of the property stipulates to the
forfeiture and waives the hearing, the p etitioner may determine if
the value of the property is equal to or less than the outstanding
lien. If such lien exceeds the value of the property, the property
may be released to the lien holder. Property which ha s not been
released by the petitioner sh all be subject to the orders and
decrees of the court or the official ha ving jurisdiction thereof.
N. The petitioner, or the law enforcement agency holding
property pursuant to the Trademark Anti -Counterfeiting Act, shall
not be held civilly liable for ha ving custody of the seized property
or proceeding with a forfeiture acti on as provided for in this
section.
O. Attorney fees shall not be assessed against the state or the
petitioner for any actions or proceeding pu rsuant to Section 1701 et
seq. of this title.
P. The proceeds of the sale of any property shall be
distributed as follows, in the order indicated:
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1. To the bona fide or innocent purchaser, conditional sales
vendor, or mortgagee of the property, if any, up to the amount of
such person's interest in the property, when the court declaring the
forfeiture orders a dis tribution to such person;
2. To the payment of the actual reasonable expenses of
preserving the property;
3. To the victim of the crime to com pensate said victim for any
loss incurred as a result of the act for which such property was
forfeited; and
4. The balance to a revolving fund in the office of the county
treasurer of the county wherein the property was seized, to be
distributed as follow s: one-third (1/3) to the investigating law
enforcement agency; one -third (1/3) of said fund to be used and
maintained as a revolving fund by the district attorney to be used
to defray any lawful expenses of the office of the district
attorney; and one-third (1/3) to go to the jail maintenance f und,
with a yearly accounting to the board of county commissioners in
whose county the fund is established. If the petitioner is not the
district attorney, then the one -third (1/3) which would have been
designated to that office shall be distributed to th e petitioner.
Monies distributed to the jail maintenance fund shall be used to pay
costs for the storage of such property if such property is ordered
released to a bona fide or innocent owner, lien holder, mortgagee ,
or vendor and if such funds are availa ble in said fund.
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Q. If the court finds that the property was not used in the
attempt or commission of an act specified in subsection A of this
section and was not property subject to forfeiture pursuant to
subsection B of this section and is not property bearing a
counterfeit mark, the court shall order the property released to the
owner as the right, title, or interest appears on record in the Tax
Commission as of the seizure.
R. No vehicle, airplane, or vessel us ed by a person as a common
carrier in the transaction of business as a common carrier shall be
forfeited pursuant to the provisions of this section unless it shall
be proven that the owner or other person in charge of such
conveyance was a consenting party or privy to the attempt or
commission of an act specified in subsection A or B of this section.
No property shall be forfeited pursuant to the provisions of this
section by reason of any act or omission established by the owner
thereof to have been commi tted or omitted without the knowledge or
consent of such owner, and by any person other than such owner while
such property was unlawfully in the possession of a person other
than the owner in violation of the criminal laws of the United
States or of any state.
S. Whenever any property is forfe ited pursuant to this section,
the district court having jurisdiction of the proceeding may order
that the forfeited property may be retained for its official use by
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the state, county, or municipal law enforcement ag ency which seized
the property.
SECTION 3. This act shall become effective November 1, 2022.
58-2-8525 GRS 01/04/22