T37CH28
Title 37 > T37CH28
Sections (15)
37-2801
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2801. Property subject to criminal forfeiture. Any person who is found guilty of, who enters a plea of guilty, or who is convicted of a violation of the uniform controlled substances act, chapter 27, title 37 , Idaho Code, punishable by imprisonment for more than one (1) year, no matter the form of the judgment or order withholding judgment, shall forfeit to the state of Idaho: (1) Any property constituting, or derived from, any proceeds the person obtained, directly or indirectly, as the result of such violation; and (2) Any of the person’s property used, or intended to be used, in any manner or part, to commit, or to facilitate the commission of such violation. The court, in imposing sentence on such person, shall order, in addition to any other sentence imposed pursuant to chapter 27, title 37 , Idaho Code, that the person forfeit to the state of Idaho all property described in this section. The provisions of this chapter shall not be construed or interpreted in any manner to prevent the state of Idaho, attorney general or the appropriate prosecuting attorney from requesting restitution pursuant to section 37-2732 (k), Idaho Code; or, if appropriate, from pursuing civil forfeiture pursuant to section 37-2744 and/or section 37-2744A , Idaho Code. Nor shall an order of forfeiture pursuant to this chapter be used as an offset against, or in any manner be used to diminish the amount of, a restitution order under section 37-2732 (k), Idaho Code. The issue of criminal forfeiture shall be for the court alone, without submission to a jury, as a part of the sentencing procedure within the criminal action. History: [37-2801, added 1996, ch. 230, sec. 1, p. 750.]
37-2802
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2802. Property subject to forfeiture. Property subject to criminal forfeiture under this chapter includes: (1) Real property, including things growing on, affixed to, or found on the land; and (2) Tangible and intangible personal property, including rights, privileges, interests, claims and securities. History: [37-2802, added 1996, ch. 230, sec. 1, p. 750.]
37-2803
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2803. Inventory. Any peace officer of this state seizing property subject to forfeiture under the provisions of this chapter shall cause a written inventory to be made and maintain custody of the same until all legal actions have been exhausted. A copy of the inventory shall be sent, within five (5) days of the seizure, to the director of the Idaho state police. Upon completion of the forfeiture action pursuant to this chapter, a final inventory shall be made which indicates the disposition of the seized property, and a copy of that inventory shall also be sent to the director of the Idaho state police. History: [37-2803, added 1996, ch. 230, sec. 1, p. 750; am. 2000, ch. 469, sec. 91, p. 1544.]
37-2804
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2804. Forfeiture request — Rebuttable presumption. Property subject to criminal forfeiture under this chapter shall not be ordered forfeited unless the attorney general or the appropriate prosecuting attorney has filed a separate allegation within the criminal proceeding seeking forfeiture of specific property as described in section 37-2801 , Idaho Code. The attorney general or appropriate prosecuting attorney shall file, within fourteen (14) days of the filing of the criminal information or indictment, a separate part II forfeiture request and notice with the trial court. There is a rebuttable presumption that any property of a person subject to the provisions of section 37-2801 , Idaho Code, is subject to forfeiture under this chapter if the state of Idaho establishes by a preponderance of the evidence that: (1) The property was acquired by a person during the period of the violation of chapter 27, title 37 , Idaho Code, or within a reasonable time after such violation; and (2) There was no likely source for such property other than the violation of chapter 27, title 37 , Idaho Code. History: [37-2804, added 1996, ch. 230, sec. 1, p. 750.]
37-2805
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2805. Preservation of property — Warrant of seizure — Protective orders. (1) Upon application of the state of Idaho, the court may enter a restraining order or injunction, require the execution of a satisfactory performance bond, or take any other action to preserve the availability of property described in section 37-2801 , Idaho Code, for forfeiture under this chapter upon the filing of an indictment or information charging a violation of the uniform controlled substance act for which criminal forfeiture may be ordered and alleging that the property with respect to which the order is sought would, in the event of conviction, be subject to forfeiture under this chapter. (2) The state may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this chapter in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (1) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property by the appropriate law enforcement agency upon such terms and conditions as the court shall deem proper. (3) The court may, upon application of the state of Idaho, enter such appropriate restraining orders or injunctions, require the execution of satisfactory performance bonds, appoint receivers, conservators, appraisers, accountants, or trustees, or take any other action to protect the interest of the state of Idaho in the property subject to forfeiture. Any income accruing to or derived from property subject to forfeiture under this chapter may be used to offset ordinary and necessary expenses to the property which are required by law, or which are necessary to protect the interests of the state of Idaho or third parties. History: [37-2805, added 1996, ch. 230, sec. 1, p. 751.]
37-2806
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2806. Institution of proceedings — Third parties. Upon the filing of a part II forfeiture request pursuant to section 37-2804 , Idaho Code, or in the event of seizure pursuant to a warrant of seizure, or upon entry of an order of forfeiture pursuant to section 37-2801 , Idaho Code, the attorney general or appropriate prosecuting attorney shall, if appropriate, institute proceedings pursuant to sections 37-2807 or 37-2808 , Idaho Code, or both, within five (5) days of such event. History: [37-2806, added 1996, ch. 230, sec. 1, p. 751.]
37-2807
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2807. Personal property — Rights of third parties. (1) Within five (5) days of any of the events specified in section 37-2806 , Idaho Code, notice, including a copy of the request for forfeiture, shall be given to each co-owner or party in interest who has or claims any right, title or interest in any of such personal property according to one (1) of the following methods: (a) Upon each co-owner of or party in interest in a titled motor vehicle, aircraft or other conveyance, by mailing notice by certified mail to the address of each co-owner and party in interest as given upon the records of the appropriate department of state or federal government where records relating to such conveyances are maintained. (b) Upon each secured party and assignee designated as such in any UCC-1 financing statement on file in an appropriate filing office covering any personal property sought to be forfeited, by mailing notice by certified mail to the secured party and the assignee, if any, at their respective addresses as shown on such financing statement. (c) Upon each co-owner or party in interest whose name and address is known, by mailing notice by registered mail to the last known address of such person. (2) Within twenty (20) days after the mailing of the notice, the co-owner or party in interest may file a verified answer and claim to the property described in the notice. (3) If a verified answer is filed within twenty (20) days after mailing of the notice, the forfeiture proceeding against all co-owners and parties in interest who have filed verified answers shall be set for hearing before the court without a jury on a day not less than sixty (60) days after the mailing of the notice; and the proceeding shall have priority over other civil cases. (a) At the hearing, any co-owner or party in interest who has a verified answer on file may show by competent evidence that his interest in the titled motor vehicle, aircraft or other conveyance is not subject to forfeiture because he could not have known in the exercise of reasonable diligence that the titled motor vehicle, aircraft or other conveyance was being used, had been used or was intended to be used for the purposes described in section 37-2801 , Idaho Code. (b) A co-owner, or claimant of any right, title, or interest in the property may prove that his right, title or interest, whether under a lien, mortgage, security agreement, conditional sales contract or otherwise, was created without any knowledge or reason to believe that the property was being used, had been used or was intended to be used for the purpose alleged; (i) In the event of such proof, the court shall order that portion of the property or interest released to the bona fide or innocent co-owner, purchaser, lienholder, mortgagee, secured party or conditional sales vendor. (ii) If the amount due to such person is less than the value of the property, the property may be sold at
37-2808
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2808. Real property — Rights of third parties. (1) Real property subject to forfeiture under the provisions of this chapter may be seized by the attorney general or appropriate prosecuting attorney upon determining that a parcel of property is subject to forfeiture, by filing a notice of seizure with the recorder of the county in which the property or any part thereof is situated. The notice must contain a legal description of the property sought to be forfeited; provided however, that in the event the property sought to be forfeited is part of a greater parcel, the attorney general or appropriate prosecuting attorney may, for the purposes of this notice, use the legal description of the greater parcel. The attorney general or appropriate prosecuting attorney shall also send by certified mail a copy of the notice of seizure to any persons holding a recorded interest or of whose interest the attorney general or appropriate prosecuting attorney has actual knowledge. The attorney general or appropriate prosecuting attorney shall post a similar copy of the notice conspicuously upon the property and publish a copy thereof once a week for three (3) consecutive weeks immediately following the seizure in a newspaper published in the county. The co-owner or party in lawful possession of the property sought to be forfeited may retain possession and use thereof and may collect and keep income from the property while the forfeiture proceedings are pending. (2) In the event of a seizure pursuant to subsection (1) of this section, a request for forfeiture shall be filed with the trial court within the time limit imposed by section 37-2804 , Idaho Code. The request shall be served in the same manner as complaints subject to the Idaho rules of civil procedure on all persons having an interest in the real property sought to be forfeited. (3) Notwithstanding any other provision of this section, upon being satisfied that the interest of a co-owner or claimant should not be subject to forfeiture because they neither knew nor should have known that the real property was being used or had been used for the purposes alleged, or that due to preexisting security interests in such property there is no equity which may be forfeited, the attorney general or appropriate prosecuting attorney may release the property to the co-owner, holder of the security interest, or other claimant. (4) Within twenty (20) days of the mailing of the notice, the co-owner or party in interest may file a verified answer and claim to the property described in the notice. (5) If a verified answer is filed within twenty (20) days after mailing of the notice, the forfeiture proceeding against all co-owners and parties in interest who have filed verified answers shall be set for hearing before the court without a jury on a day not less than sixty (60) days after the mailing of the notice; and the proceeding shall have priority over othe
37-2809
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2809. Proportionality. In issuing any order under the provisions of this chapter, the court shall make a determination that the property, or a portion thereof in the case of real property, was actually used in violation of the provisions of this chapter. The size of the property forfeited shall not be unfairly disproportionate to the size of the property actually used in violation of the provisions of this chapter. History: [37-2809, added 1996, ch. 230, sec. 1, p. 755.]
37-2810
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2810. Authority of the attorney general. With respect to property ordered forfeited under this chapter, the attorney general or appropriate prosecuting attorney is authorized to: (1) Restore forfeited property to victims of a violation of this chapter, or take any other action to protect the rights of innocent persons which is in the interest of justice and which is not inconsistent with the provisions of this chapter; (2) Compromise claims arising under this chapter; (3) Award compensation to persons providing information resulting in a forfeiture under this chapter; and (4) Take appropriate measures necessary to safeguard and maintain property ordered forfeited under this chapter pending its disposition. History: [37-2810, added 1996, ch. 230, sec. 1, p. 755.]
37-2811
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2811. Bar on intervention. Except as provided in sections 37-2807 and 37-2808 , Idaho Code, no party claiming an interest in property subject to forfeiture under this section may: (1) Intervene in a trial or appeal of a criminal case involving the forfeiture of such property under this chapter; or (2) Commence an action at law or equity against the state of Idaho concerning the validity of his alleged interest in the property subsequent to the filing of an indictment or information alleging that the property is subject to forfeiture under this chapter. History: [37-2811, added 1996, ch. 230, sec. 1, p. 756.]
37-2812
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2812. Jurisdiction — Depositions. The district courts of the state of Idaho shall have jurisdiction over: (1) Property for which forfeiture is sought that is within the state at the time the action is filed; or (2) The interest of a co-owner or interest holder in the property if the co-owner or interest holder is subject to personal jurisdiction in this state. In order to facilitate the identification and location of property declared forfeited after the entry of an order declaring property forfeited to the state of Idaho, the court may, upon application of the state of Idaho, order that the testimony of any witness relating to the property forfeited be taken by deposition and that any designated book, paper, document, record, recording or other material not privileged be produced at the same time and place, in the same manner as provided for the taking of depositions under rule 26 of the Idaho rules of civil procedure. History: [37-2812, added 1996, ch. 230, sec. 1, p. 756.]
37-2813
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2813. Disposition of property. On the motion of a party and after notice to any persons who are known to have an interest in the property and an opportunity to be heard, the court may order property that has been seized for forfeiture sold, leased, rented or operated to satisfy an interest of any interest holder who has timely filed a proper claim or to preserve the interests of any party. The court may order a sale or any other disposition of the property if the property may perish, waste, be foreclosed on or otherwise be significantly reduced in value or if the expenses of maintaining the property are or will become greater than its fair market value. If the court orders a sale, the court shall designate a third party or state property manager to dispose of the property by public sale or other commercially reasonable method and shall distribute the proceeds in the following order of priority: (1) Payment of reasonable expenses incurred in connection with the sale. (2) Satisfaction of exempt interests in the order of their priority. (3) Preservation of the balance, if any, in the actual or constructive custody of the court in an interest-bearing account, subject to further proceedings under this chapter. When property is forfeited under this chapter, the attorney general or appropriate prosecuting attorney, may: (1) Retain it for official use; and/or (2) Sell that which is not required to be destroyed by law and which is not harmful to the public, pursuant to section 37-2807 or 37-2808 , Idaho Code. History: [37-2813, added 1996, ch. 230, sec. 1, p. 756.]
37-2814
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2814. Forfeiture of substitute property. If any of the property described in section 37-2801 , Idaho Code, as a result of any act or omission of the defendant: (1) Cannot be located upon the exercise of due diligence; (2) Has been transferred or sold to, or deposited with, a third party; (3) Has been placed beyond the jurisdiction of the court; (4) Has been substantially diminished in value; or (5) Has been commingled with other property which cannot be divided without difficulty; the court shall order the forfeiture of any other property of the defendant up to the value of any property described in section 37-2801 , Idaho Code. History: [37-2814, added 1996, ch. 230, sec. 1, p. 757.]
37-2815
TITLE 37 FOOD, DRUGS, AND OIL CHAPTER 28 CRIMINAL FORFEITURES 37-2815. Construction. The provisions of this section shall be liberally construed to effectuate its remedial purposes. History: [37-2815, added 1996, ch. 230, sec. 1, p. 757.]