58-37-13. Property subject to forfeiture -- Seizure -- Procedure

I. The following are subject to forfeiture and no property right exists in them:

A. all controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this chapter;

B. all raw materials, products, and equipment of any kind used, or intended for use, in manufacturing, compounding, processing,delivering, importing, or exporting any controlled substance in violation of this chapter;

C. all property used or intended for use as a container for property described in Subsections (1)(a) and (1)(b);

D. all hypodermic needles, syringes, and other paraphernalia, not including capsules used with health food supplements and herbs, used or intended for use to administer controlled substances in violation of this chapter;

E. all conveyances including aircraft, vehicles, or vessels used or intended for use, to transport, or in any manner facilitate the transportation, sale, receipt, simple possession, or concealment of property described in Subsections (1)(a) and (1)(b), except that:

1. a conveyance used by any person as a common carrier in the transaction of business as a common carrier may not be forfeited under this section unless it appears that the owner or other person in charge of the conveyance was a consenting party or privy to violation of this chapter;

2. a conveyance may not be forfeited under this section by reason of any act or omission committed or omitted without the owner's knowledge or consent; and

3. any forfeiture of a conveyance subject to a bona fide security interest is subject to the interest of a secured party who could not have known in the exercise of reasonable diligence that a violation would or did take place in the use of the conveyance;

F. all books, records, and research, including formulas, microfilm, tapes, and data used or intended for use in violation of this chapter;

G. everything of value furnished or intended to be furnished in exchange for a controlled substance in violation of this chapter, all proceeds traceable to any violation of this chapter, and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of this chapter; but:

1. an interest in property may not be forfeited under this subsection if the holder of the interest did not know of the act which made the property subject to forfeiture, or did not willingly consent to the act; and

2. there is a rebuttable presumption that all, money, coins, and currency found in proximity to forfeitable controlled substances, drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture, or distribution of controlled substances are forfeitable under this section; the burden of proof is upon claimants of the property to rebut this presumption;

H. all imitation controlled substances as defined in Section 58-37b-1, Imitation Controlled Substances Act;

I. all warehousing, housing, and storage facilities, or interest in real property of any kind used, or intended for use, in producing, cultivating, warehousing, storing, protecting, or manufacturing any controlled substances in violation of this chapter, except that:

1. any forfeiture of a housing, warehousing, or storage facility or interest in real property is subject to the bona fide security interest of a party who could not have known in the exercise of reasonable diligence that a violation would take place on the property;

2. an interest in property may not be forfeited under this subsection if the holder of the interest did not know of the act which made the property subject to forfeiture, or did not willingly consent to the act; and

3. unless the premises are used in producing, cultivating, or manufacturing controlled substances, a housing, warehousing, or storage facility or interest in real property may not be forfeited under this section unless cumulative sales of controlled substances on the property within a two-month period total or exceed $1,000, or the street value of any controlled substances found on the premises at any given time totals or exceeds $1,000. A narcotics officer experienced in controlled substances law enforcement may testify to establish the street value of the controlled substances for purposes of this subsection; and

J. any firearm, weapon, or ammunition carried or used during or in relation to a violation of the Utah Controlled Substances Act, the Utah Drug Paraphernalia Act, or the Utah Controlled Substances Precursor Act or any firearm, weapon, or ammunition kept or located within the proximity of controlled substances or other property subject to forfeiture under any of those acts.

A. the seizure is incident to an arrest or search under a search warrant or an inspection under an administrative inspection warrant;

B. the property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding under this chapter;

C. the peace officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

D. the peace officer has probable cause to believe that the property has been used or intended to be used in violation of this chapter.

IV. Property taken or detained under this section is not repleviable but is in custody of the law enforcement agency making the seizure, subject only to the orders and decrees of the court or the official having jurisdiction. When property is seized under this chapter, the appropriate person or agency may:

A. place the property under seal;

B. remove the property to a place designated by it or the warrant under which it was seized; or

C. take custody of the property and remove it to an appropriate location for disposition in accordance with law.

VI. All species of plants from which controlled substances in Schedules I and II are derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or are wild growths, may be seized and summarily forfeited to the state.

VII. Failure, upon demand by the department or its authorized agent, of any person in occupancy or in control of land or premises upon which species of plants are growing or being stored, to produce an appropriate license or proof that he is the holder of a license, is authority for the seizure and forfeiture of the plants.

VIII. When any property is forfeited under this chapter by a finding of the court that no person is entitled to recover the property, it shall be deposited in the custody of the Division of Finance. Disposition of all property is as follows:

A. The state may include in its complaint seeking forfeiture, a request that the seizing agency be awarded the property. Upon a finding that the seizing agency is able to use the forfeited property in the enforcement of controlled substances laws, the court having Jurisdiction over the case shall award the property to the seizing agency. The seizing agency shall pay to the prosecuting agency the legal costs incurred in filing and pursuing the forfeiture action. Property forfeited under this section may not be applied by the court to costs or fines assessed against any defendant in the case.

B. The seizing agency, or if it makes no application, any state agency, bureau, county, or municipality, which demonstrates a need for specific property or classes of property subject to forfeiture shall be given the property for use in enforcement of controlled substances laws upon the payment of costs to the county attorney or, if within a prosecution district, the district attorney for legal costs for filing and pursuing the forfeiture and upon application for the property to the director of the Division of Finance. The application shall clearly set forth the need for the property and the use to which the property will be put.

C. The director of the Division of Finance shall review all applications for property submitted under Subsection (8)(b) and, if the seizing agency makes no application, make a determination based on necessity and advisability as to final disposition and shall notify the designated applicant or seizing agency, where no application is made, who may obtain the property upon payment of all costs to the appropriate department. The Division of Finance shall in turn reimburse the prosecuting agency or agencies for costs of filing and pursuing the forfeiture action, not to exceed the amount of the net proceeds received for the sale of the property. Any proceeds remaining after payment shall be returned to the seizing agency or agencies.

D. If no disposition is made upon an application under Subsection (8)(a) or (b), the director of the Division of Finance shall dispose of the property by public bidding or as considered appropriate, by destruction. Proof of destruction shall be upon oath of two officers or employees of the department having charge of the property, and verified by the director of the department or his designated agent.

A. A complaint verified on oath or affirmation shall be prepared by the county attorney, or if within a prosecution district, the district attorney where the property was seized or is to be seized. The complaint shall be filed in the circuit or district court if the property is not real property and the value is less than $10,000. The complaint shall be filed in the district court if the value of property other than real property is $10,000 or more or the property is real property. If the complaint includes property under the jurisdiction of the circuit court and also property under the exclusive jurisdiction of the district court, the complaint shall be filed in the district court. The complaint shall describe with reasonable particularity:

1. the property which is the subject matter of the proceeding;

2. the date and place of seizure, if known; and

3. the allegations which constitute a basis for forfeiture.

B. Upon filing the complaint, the clerk of the court shall forthwith issue a warrant for seizure of the property which is the subject matter of the action and deliver it to the sheriff for service, unless the property has previously been seized without a warrant under Subsection58-37-13(2).

C. Notice of the seizure and intended forfeiture shall be filed with the county clerk, and served together with a copy of the complaint, upon all persons known to the county attorney or district attorney to have a claim in the property by one of the following methods:

1. upon each claimant whose name and address is known, at the last-known address of the claimant, or upon each owner whose right, title,or interest is of record in the Division of Motor Vehicles, by mailing a copy of the notice and complaint by certified mail to the address given upon therecords of the division, which service is considered complete even though the mail is refused or cannot be forwarded; and

2. upon all other claimants whose addresses are unknown, but who are believed to have an interest in the property, by one publication in a newspaper of general circulation in the county where the seizure was made.

D. Except under Subsection (8)(c), any claimant or interested party shall file with the court a verified answer to the complaint within 20 days after service has been obtained.

E. When property is seized under this chapter, any interested person or claimant of the property, prior to being served with a complaint under this section, may file a petition in the court having jurisdiction for release of his interest in the property. The petition shall specify the claimant's interest in the property and his right to have it released. A copy shall be served upon the county attorney or, if within a prosecution district, the district attorney in the county of the seizure, who shall answer the petition within 20 days. A petitioner need not answer a complaint of forfeiture.

F. After 20 days following service of a complaint or petition for release, the court shall examine the record and if no answer is on file, the court shall allow the complainant or petitioner an opportunity to present evidence in support of his claim and order forfeiture or release of the property as the court determines. If the county attorney or district attorney has not filed an answer to a petition for release and the court determines from the evidence that the petitioner is not entitled to recovery of the property, it shall enter an order directing the county attorney or district attorney to answer the petition within ten days. If no answer is filed within that period, the court shall order the release of the property to the petitioner entitled to receive it.

G. When an answer to a complaint or petition appears of record at the end of 20 days, the court shall set the matter for hearing within 20 days. At this hearing all interested parties may present evidence of their rights of release of the property following the state's evidence for forfeiture. The court shall determine by a preponderance of the evidence the issues in the case and order forfeiture or release of the property as it determines.

H. Proceedings of this section are independent of any other proceedings, whether civil or criminal, under this chapter or the laws of this state.

I. When the court determines that claimants have no right in the property in whole or in part, it shall declare the property to be forfeited and direct it to be delivered to the custody of the Division of Finance. The division shall dispose of the property under Subsection (8).

J. When the court determines that property, in whole or in part,is not subject to forfeiture, it shall order release of the property to the proper claimant. If the court determines that the property is subject to forfeiture and release in part, it shall order partial release and partial forfeiture. When the property cannot be divided for partial forfeiture and release, the court shall order it sold and the proceeds distributed:

1. first, proportionally among the legitimate claimants;

2. second, to defray the costs of the action, including seizure, storage of the property, legal costs of filing and pursuing the forfeiture, and costs of sale; and

3. third, to the Division of Finance for the General Fund.

K. In a proceeding under this section where forfeiture is declared,in whole or in part, the court shall assess all costs of the forfeiture proceeding, including seizure and storage of the property, against the individual or individuals whose conduct was the basis of the forfeiture, and may assess costs against any other claimant or claimants to the property as appropriate.

(1) Any store, shop, warehouse, dwelling house, building, vehicle, boat, aircraft, or other place to which users or possessors of any controlled sub-stances, listed in schedules I through V, resort or where use or possession of any substances violates this act, or which is used for illegal keeping, storing, or selling any substances listed as controlled substances in schedules I through V shall be deemed a common nuisance. No person shall open, keep, or maintain any such place.

(2) The district court has the power to make any order necessary or reasonable to suppress any nuisance and to enjoin any person or persons from doing any act calculated to cause, or permit the continuation of a nuisance.

(1) It is not necessary for the state to negate any exemption or exception set forth in this act in any complaint, information, indictment or other pleading or trial, hearing, or other proceeding under this act, and the burden of proof of any exemption or exception is upon the person claiming its benefit.

(2) In absence of proof that a person is the duly authorized holder of an appropriate license, registration, order form, or prescription issued under this act, he shall be presumed not to be the holder of a license, registration, order form, or prescription, and the burden of proof is upon him to rebut the presumption.

(3) No liability shall be imposed upon any duly authorized state or federal officer engaged in the enforcement of this act who is engaged in the enforcement of any law, municipal ordinance, or regulation relating to controlled substances.

If the prosecuting attorney or attorney general of the state of Utah deter-mines that the testimony of any witness or the production of any book, paper, or other evidence by any witness before a grand jury or court of the state of Utah involving any violation of this chapter is necessary, he shall make application to the court that the witness be instructed to testify or produce evidence subject to the provisions of this section and upon order of the court the witness shall not be excused from testifying or producing books, papers, or other evidence on the ground that the testimony or evidence may tend to incriminate him or subject him to forfeiture. No witness shall be prosecuted or subjected to any penalty or forfeiture on account of any transaction, matter, or thing concerning which he is compelled to testify after having claimed his privilege against self-incrimination or produce evidence nor shall any such evidence be used in any criminal proceeding against him in any court except prosecutions described in this section. No witness is exempt under this section from prosecution for perjury or contempt committed while giving testimony or producing evidence under compulsion.

58-37-17. Judicial review.

(1) Any person aggrieved by a department's final order may obtain judicial review.

(2) Venue for judicial review of informal adjudicative proceedings is in the district court of Salt Lake County.

(1)

(a) Prosecution for violation of any law or offense occurring prior to the effective date of this act shall not be affected by this act; provided, that sentences imposed after the effective date of this act may not exceed the maximum terms specified and the judge has discretion to impose any minimum sentence.

(b) Civil seizures, forfeitures, and injunctive proceedings commenced prior to the effective date of this act shall not be affected by this act.

(c) All administrative proceedings pending before any agency or court on the effective date of this act shall be continued and brought to final determination in accordance with laws and regulations in effect prior to the effective date of this act. Drugs placed under control prior to enactment of this act which are not listed within schedules I through V shall be automatically controlled and listed in the appropriate schedule without further proceedings.

(2) This act does not affect rights and duties that mature, penalties that are incurred, and proceedings that are begun before its effective date.

(3) This act shall be construed to effectuate its general purpose to make uniform the law of those states which enact it where laws are similar to this act.

58-37-20. Drug Forfeiture Account created -- Revenue sources -- Use of account designated.

(1)

(a) There is created in the General Fund a restricted account called the"Drug Forfeiture Account."

(b) All monies forfeited or seized to the state through the state or federal court process as a result of activity involving a controlled substance violation as prohibited under Title 58, Chapter 37, 37a, 37b, 37c, or 37d, or prohibited under federal law, shall be deposited into the Drug Forfeiture

(2) The Department of Public Safety may expend amounts as appropriated by the Legislature from the Drug Forfeiture Account to aid in enforcement efforts to combat drug trafficking.

(3) That portion of funds forfeited or seized that are required to be disbursed to other governmental entities under existing contractual agreements are exempt from this section.

(4) Funds forfeited or seized as a result of the Salt Lake Airport Drug Program, not to exceed the Department of Public Safety's expenditure to that program, are exempt from this section.

(5) The Department of Public Safety as part of the annual budget hearings shall provide the Appropriations Subcommittee for Transportation and Public Safety with a complete accounting of expenditures and revenues from the funds under this section.

(6) The Legislature may annually provide, in the Appropriations Act, legislative direction for anticipated expenditures of the monies received under this section.