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| 4 | 4 | | |
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| 5 | 5 | | 2025 -- H 5363 |
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| 6 | 6 | | ======== |
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| 7 | 7 | | LC000838 |
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| 8 | 8 | | ======== |
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| 9 | 9 | | S T A T E O F R H O D E I S L A N D |
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| 10 | 10 | | IN GENERAL ASSEMBLY |
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| 11 | 11 | | JANUARY SESSION, A.D. 2025 |
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| 12 | 12 | | ____________ |
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| 13 | 13 | | |
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| 14 | 14 | | A N A C T |
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| 15 | 15 | | RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCE S ACT-- |
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| 16 | 16 | | POWERS OF ENFORCEMEN T PERSONNEL -- CIVIL FORFEITURE PROCEDUR E |
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| 17 | 17 | | Introduced By: Representatives Place, Felix, J. Lombardi, and Cruz |
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| 18 | 18 | | Date Introduced: February 07, 2025 |
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| 19 | 19 | | Referred To: House Judiciary |
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| 20 | 20 | | |
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| 21 | 21 | | |
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| 22 | 22 | | It is enacted by the General Assembly as follows: |
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| 23 | 23 | | SECTION 1. Section 21-28-5.04.2 of the General Laws in Chapter 21-28 entitled "Uniform 1 |
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| 24 | 24 | | Controlled Substances Act" is hereby amended to read as follows: 2 |
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| 25 | 25 | | 21-28-5.04.2. Civil forfeiture procedure. 3 |
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| 26 | 26 | | (a) In addition to or in lieu of Except for the criminal forfeiture procedures of this chapter, 4 |
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| 27 | 27 | | as provided in § 21-28-5.04-1, any property described in § 21-28-5.04 except as designated in 5 |
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| 28 | 28 | | subsection (b) of this section, is shall not be subject to civil forfeiture to the state. Civil forfeiture 6 |
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| 29 | 29 | | proceedings shall be in the nature of an action in rem and shall be governed by the civil rules for in 7 |
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| 30 | 30 | | rem proceedings. 8 |
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| 31 | 31 | | (b) All property described in § 21-28-5.04 is shall not be subject to civil forfeiture but shall 9 |
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| 32 | 32 | | be subject to criminal forfeiture, except that: 10 |
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| 33 | 33 | | (1) No conveyances used by any person as a common carrier in the transaction of business 11 |
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| 34 | 34 | | as a common carrier shall be forfeited under the provisions of this section unless it appears that the 12 |
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| 35 | 35 | | owner or other person in charge of the conveyance was a consenting party or privy to the covered 13 |
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| 36 | 36 | | offense charged and a criminal conviction has been obtained; 14 |
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| 37 | 37 | | (2) No conveyance shall be forfeited under the provisions of this section by reason of any 15 |
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| 38 | 38 | | act or omission established by the owner of it to have been committed or omitted by any person 16 |
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| 39 | 39 | | other than the owner while the conveyance was unlawfully in the possession of a person other than 17 |
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| 40 | 40 | | the owner in violation of the criminal laws of this state or of the United States; and 18 |
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| 41 | 41 | | |
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| 42 | 42 | | |
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| 43 | 43 | | LC000838 - Page 2 of 7 |
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| 44 | 44 | | (3) No property shall be forfeited under this section, to the extent of the interest of an 1 |
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| 45 | 45 | | owner, by reason of any act or omission established by that owner to have been committed or 2 |
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| 46 | 46 | | omitted without knowledge or consent of that owner, unless a criminal conviction has been 3 |
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| 47 | 47 | | obtained. 4 |
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| 48 | 48 | | (c) Property subject to forfeiture under this section may be seized by a law enforcement 5 |
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| 49 | 49 | | officer: 6 |
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| 50 | 50 | | (1) Upon process issued pursuant to the Rules of Civil Procedure applicable to in rem 7 |
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| 51 | 51 | | proceedings; 8 |
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| 52 | 52 | | (2) Upon process issued pursuant to a legally authorized search warrant; or 9 |
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| 53 | 53 | | (3) Without court process when: 10 |
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| 54 | 54 | | (i) The seizure is incident to a lawful arrest or search; 11 |
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| 55 | 55 | | (ii) The property subject to seizure has been the subject of a prior judgment in favor of the 12 |
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| 56 | 56 | | state in a controlled substance act; 13 |
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| 57 | 57 | | (iii) The law enforcement officer has probable cause to believe that the property is directly 14 |
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| 58 | 58 | | or indirectly dangerous to health or safety; or 15 |
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| 59 | 59 | | (iv) The law enforcement officer has probable cause to believe that the property is 16 |
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| 60 | 60 | | forfeitable under § 21-28-5.04. 17 |
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| 61 | 61 | | (d) In the event of a seizure under § 21-28-5.04 the property shall not be subject to 18 |
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| 62 | 62 | | sequestration or attachment but is deemed to be in the custody of the law enforcement agency 19 |
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| 63 | 63 | | making the seizure, subject only to the order of the court. When property is seized under this 20 |
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| 64 | 64 | | section, pending forfeiture and final disposition, the law enforcement agency making the seizure 21 |
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| 65 | 65 | | may: 22 |
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| 66 | 66 | | (1) Place the property under seal; 23 |
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| 67 | 67 | | (2) Remove the property to a storage area for safekeeping; 24 |
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| 68 | 68 | | (3) Remove the property to a place designated by the court; or 25 |
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| 69 | 69 | | (4) Request another agency authorized by law to take custody of the property and remove 26 |
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| 70 | 70 | | it to an appropriate location within the jurisdiction of the court. 27 |
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| 71 | 71 | | (e) As soon as practicable after seizure, the seizing agency shall conduct an inventory upon 28 |
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| 72 | 72 | | and cause the appraisal of the property seized. 29 |
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| 73 | 73 | | (f) In the event of a seizure under this section, the seizing agency shall within thirty (30) 30 |
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| 74 | 74 | | days send to the attorney general a written request for forfeiture, which shall include a statement of 31 |
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| 75 | 75 | | all facts and circumstances including the names of all witnesses then known, the appraised value 32 |
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| 76 | 76 | | of the property and the statutory provision relied upon for forfeiture. 33 |
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| 77 | 77 | | (g) The attorney general shall immediately examine the facts and applicable law of the 34 |
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| 78 | 78 | | |
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| 79 | 79 | | |
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| 80 | 80 | | LC000838 - Page 3 of 7 |
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| 81 | 81 | | cases referred to him or her pursuant to this section, and if it is probable that the property is subject 1 |
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| 82 | 82 | | to forfeiture shall immediately cause the initiation of administrative or judicial proceedings against 2 |
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| 83 | 83 | | the property. If, upon inquiry and examination, the attorney general determines that those 3 |
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| 84 | 84 | | proceedings probably cannot be sustained or that justice does not require the institution of the 4 |
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| 85 | 85 | | proceedings, he or she shall make a written report of those findings, transmit a copy to the seizing 5 |
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| 86 | 86 | | agency, and immediately authorize the release of the property. 6 |
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| 87 | 87 | | (h) If the value of any personal property seized does not exceed twenty thousand dollars 7 |
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| 88 | 88 | | ($20,000), the attorney general may forfeit the property administratively in the following manner: 8 |
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| 89 | 89 | | (1) The attorney general shall provide notice of intention to forfeit property 9 |
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| 90 | 90 | | administratively by publication in a local newspaper of general circulation, one day per week for 10 |
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| 91 | 91 | | three (3) consecutive weeks. 11 |
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| 92 | 92 | | (2) In addition, to the extent practicable, the attorney general shall provide notice by 12 |
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| 93 | 93 | | registered mail of intent to forfeit the property administratively to all known interested parties and 13 |
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| 94 | 94 | | all parties whose identity is reasonably subject to discovery who may have an interest in the 14 |
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| 95 | 95 | | property seized. 15 |
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| 96 | 96 | | (3) Notice by publication and by mail shall include: 16 |
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| 97 | 97 | | (i) A description of the property; 17 |
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| 98 | 98 | | (ii) The appraised value of the property; 18 |
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| 99 | 99 | | (iii) The date and place of seizure; 19 |
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| 100 | 100 | | (iv) The violation of law alleged against the subject property; 20 |
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| 101 | 101 | | (v) The instructions for filing claim and cost bond or a petition for remission or mitigation; 21 |
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| 102 | 102 | | and 22 |
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| 103 | 103 | | (vi) A notice that the property will be forfeited to the state if a petition for remission or 23 |
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| 104 | 104 | | mitigation or a claim and cost bond has not been timely filed. 24 |
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| 105 | 105 | | (4) Persons claiming an interest in the property may file petitions for remission or 25 |
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| 106 | 106 | | mitigation of forfeiture or a claim and cost bond with the attorney general within thirty (30) days 26 |
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| 107 | 107 | | of the final notice by publication or receipt of written notice, whichever is earlier. 27 |
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| 108 | 108 | | (5) The attorney general shall inquire into the facts and circumstances surrounding petitions 28 |
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| 109 | 109 | | for remission or mitigation of forfeiture. 29 |
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| 110 | 110 | | (6) The attorney general shall provide the seizing agency and the petitioner a written 30 |
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| 111 | 111 | | decision on each petition for remission or mitigation within sixty (60) days of receipt of the petition 31 |
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| 112 | 112 | | unless the circumstances of the case require additional time, in which case the attorney general 32 |
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| 113 | 113 | | shall notify the petitioner in writing and with specificity within the sixty (60) day period that the 33 |
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| 114 | 114 | | circumstances of the case require additional time and further notify the petitioner of the expected 34 |
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| 115 | 115 | | |
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| 116 | 116 | | |
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| 117 | 117 | | LC000838 - Page 4 of 7 |
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| 118 | 118 | | decision date. 1 |
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| 119 | 119 | | (7) Any person claiming seized property under this subsection may institute de novo 2 |
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| 120 | 120 | | judicial review of the seizure and proposed forfeiture by timely filing with the attorney general a 3 |
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| 121 | 121 | | claim and bond to the state in the amount of ten percent (10%) of the appraised value of the property 4 |
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| 122 | 122 | | or in the penal sum of two hundred fifty dollars ($250), whichever is greater, with sureties to be 5 |
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| 123 | 123 | | approved by the attorney general, upon condition that in the case of forfeiture the claimant shall 6 |
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| 124 | 124 | | pay all costs and expenses of the proceedings at the discretion of the court. Upon receipt of the 7 |
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| 125 | 125 | | claim and bond, or if he or she elects, the attorney general shall file with the court a complaint in 8 |
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| 126 | 126 | | rem in accordance with the procedures set forth in this section. Any funds received by the attorney 9 |
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| 127 | 127 | | general as cost bonds shall be placed in an escrow account pending final disposition of the case. 10 |
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| 128 | 128 | | (8) If no petitions or claims with bonds are timely filed, the attorney general shall prepare 11 |
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| 129 | 129 | | a written declaration of forfeiture of the subject property to the state and dispose of the property in 12 |
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| 130 | 130 | | accordance with this chapter. 13 |
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| 131 | 131 | | (9) If the petition is denied, the attorney general shall prepare a written declaration of 14 |
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| 132 | 132 | | forfeiture to the state and dispose of the property in accordance with this chapter and the attorney 15 |
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| 133 | 133 | | general’s regulations, if any, pursuant to this chapter. 16 |
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| 134 | 134 | | (10) A written declaration of forfeiture signed by the attorney general pursuant to this 17 |
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| 135 | 135 | | chapter shall be deemed to provide good and sufficient title to the forfeited property. 18 |
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| 136 | 136 | | (i) If the value of any personal property seized exceeds twenty thousand dollars ($20,000), 19 |
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| 137 | 137 | | the attorney general shall file a complaint in rem against the property within twenty (20) days of 20 |
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| 138 | 138 | | the receipt of the report referred to in subsection (f) of this section and after this provide notice of 21 |
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| 139 | 139 | | intention to forfeit by publication in a local newspaper of general circulation for a period of at least 22 |
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| 140 | 140 | | once per week for three (3) consecutive weeks. The notice shall include: 23 |
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| 141 | 141 | | (1) A description of the property; 24 |
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| 142 | 142 | | (2) The appraised value of the property; 25 |
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| 143 | 143 | | (3) The date and place of seizure; 26 |
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| 144 | 144 | | (4) The violation of law alleged against the subject property. 27 |
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| 145 | 145 | | (j)(1) The case may be tried by a jury, if in the superior court, upon the request of either 28 |
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| 146 | 146 | | party, otherwise by the court, and the cause of forfeiture alleged being proved, the court which shall 29 |
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| 147 | 147 | | try the case shall enter upon judgment for the forfeiture and disposition of the property according 30 |
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| 148 | 148 | | to law. 31 |
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| 149 | 149 | | (2) An appeal may be claimed by either party from any judgment of forfeiture rendered by 32 |
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| 150 | 150 | | the district court, to be taken in like manner as by defendants in criminal cases within the 33 |
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| 151 | 151 | | jurisdiction of the district court to try and determine, to the superior court for the same county in 34 |
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| 152 | 152 | | |
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| 153 | 153 | | |
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| 154 | 154 | | LC000838 - Page 5 of 7 |
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| 155 | 155 | | which the division of the district court rendering judgment is situated and like proceedings may be 1 |
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| 156 | 156 | | had therein as in cases of informations for forfeitures originally filed in that court. 2 |
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| 157 | 157 | | (3) The judgment of the superior court shall be final in all cases of the forfeitures, whether 3 |
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| 158 | 158 | | originally commenced in that court or brought there by appeal, unless a new trial is ordered, for 4 |
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| 159 | 159 | | cause shown by the supreme court. 5 |
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| 160 | 160 | | (k) The in rem action shall be brought in the district court if the value of the property seized 6 |
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| 161 | 161 | | is less than two hundred fifty thousand dollars ($250,000), otherwise the in rem action shall be 7 |
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| 162 | 162 | | brought in the superior court. The attorney general shall also, to the extent practicable, provide 8 |
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| 163 | 163 | | written notice of the action in rem to all known interested parties and all persons whose identity is 9 |
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| 164 | 164 | | reasonably subject to discovery who may have an interest in the property. 10 |
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| 165 | 165 | | (l) Persons claiming an interest in the property may file claims against the property within 11 |
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| 166 | 166 | | thirty (30) days of the final notice by publication or receipt of written notice, whichever is earlier. 12 |
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| 167 | 167 | | The claims shall be filed and adjudicated in the manner set forth for petitions in criminal 13 |
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| 168 | 168 | | proceedings in § 21-28-5.04.1(f). 14 |
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| 169 | 169 | | (m) If the property sought to be forfeited is real property, the attorney general shall file a 15 |
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| 170 | 170 | | complaint in rem in the superior court against the property. In addition to providing notice as 16 |
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| 171 | 171 | | required by this chapter, the attorney general shall file a lis pendens with respect to the property 17 |
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| 172 | 172 | | with the recorder of deeds in the city or town in which the property is located. 18 |
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| 173 | 173 | | (n) Upon order of the court forfeiting the subject property to the state, the state shall have 19 |
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| 174 | 174 | | clear title to the forfeited property, and the attorney general may transfer good and sufficient title 20 |
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| 175 | 175 | | to any subsequent purchaser or transferee. Title to the forfeited property shall be deemed to have 21 |
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| 176 | 176 | | vested in the state upon the commission of the act giving rise to the forfeiture under this chapter. 22 |
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| 177 | 177 | | (o) Upon entry of judgment for the claimant in any proceeding to forfeit property under 23 |
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| 178 | 178 | | this chapter, the property shall immediately be returned to the claimant. If it appears that there was 24 |
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| 179 | 179 | | reasonable cause for the seizure or the filing of the complaint, the court shall cause a proper 25 |
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| 180 | 180 | | certificate of that to be entered, and the claimant shall not, in that case, be entitled to costs or 26 |
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| 181 | 181 | | damages, nor shall the person or agency who made the seizure, nor the attorney general nor the 27 |
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| 182 | 182 | | prosecutor, be liable to suit or judgment on account of the seizure, suit, or prosecution. 28 |
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| 183 | 183 | | (p) In any action brought under this section, the state shall have the initial burden of 29 |
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| 184 | 184 | | showing the existence of probable cause for seizure or arrest of the property. Upon that showing 30 |
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| 185 | 185 | | by the state, the claimant shall have the burden of showing by a preponderance of evidence that the 31 |
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| 186 | 186 | | property was not subject to forfeiture under this section. 32 |
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| 187 | 187 | | |
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| 188 | 188 | | |
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| 189 | 189 | | LC000838 - Page 6 of 7 |
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| 190 | 190 | | SECTION 2. This act shall take effect upon passage. 1 |
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| 191 | 191 | | ======== |
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| 192 | 192 | | LC000838 |
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| 193 | 193 | | ======== |
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| 194 | 194 | | |
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| 195 | 195 | | |
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| 196 | 196 | | LC000838 - Page 7 of 7 |
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| 197 | 197 | | EXPLANATION |
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| 198 | 198 | | BY THE LEGISLATIVE COUNCIL |
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| 199 | 199 | | OF |
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| 200 | 200 | | A N A C T |
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| 201 | 201 | | RELATING TO FOOD AND DRUGS -- UNIFORM CONTROLLED SUBSTANCES ACT-- |
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| 202 | 202 | | POWERS OF ENFORCEMEN T PERSONNEL -- CIVIL FORFEITURE PROCEDUR E |
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| 203 | 203 | | *** |
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| 204 | 204 | | This act would prohibit civil asset forfeiture regarding violations of the controlled 1 |
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| 205 | 205 | | substances laws until a criminal conviction is obtained. 2 |
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| 206 | 206 | | This act would take effect upon passage. 3 |
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| 207 | 207 | | ======== |
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| 208 | 208 | | LC000838 |
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| 209 | 209 | | ======== |
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