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| Home > Statutes > Usa Arizona |
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USA Statutes : arizona
Title : Criminal Code
Chapter : FORFEITURE
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13-4301 Definitions
In this chapter, unless the context otherwise requires:
1. "Attorney for the state" means an attorney designated by the attorney general,
by a county attorney or by a city attorney to investigate, commence and prosecute an
action under this chapter.
2. "Commercially reasonable" means a sale or disposal that would be commercially
reasonable under title 47, chapter 9, article 6.
3. "Injured person" means a person who has sustained economic loss, including
medical loss, as a result of injury to his person, business or property by the conduct
giving rise to the forfeiture of property, and who is not an owner of or an interest
holder in the property. Injured person does not include a person who is responsible for
the conduct giving rise to forfeiture or a person whose interest would not be exempt from
forfeiture if the person were an owner of or interest holder in the property.
4. "Interest holder" means a person in whose favor there is a security interest or
who is the beneficiary of a perfected encumbrance pertaining to an interest in property.
5. "Owner" means a person who is not a secured party within the meaning of section
47-9102 and who has an interest in property, whether legal or equitable. A person who
holds property for the benefit of or as agent or nominee for another is not an owner. A
purported interest which is not in compliance with any statute requiring its recordation
or reflection in public records in order to perfect the interest against a bona fide
purchaser for value shall not be recognized as an interest against this state in an
action pursuant to this chapter. An owner with power to convey property binds other
owners, and a spouse binds his spouse, by his act or omission.
6. "Person known to have an interest" means a person whose interest in property is
reflected in the public records in which his interest is required by law to be recorded
or reflected in order to perfect his interest. If a person's interest in property is not
required by law to be reflected in public records in order to perfect his interest in the
property, a person shall be known to have an interest only if his interest can be readily
ascertained at the time of the commencement of the forfeiture action pursuant to this
chapter.
7. "Personal property" includes all interests in property, as defined in section
13-105, in whatever form, except real property and fixtures as defined in section
47-9102.
8. "Seizing agency" means any department or agency of this state or its political
subdivisions which regularly employs peace officers, and which employs the peace officer
who seizes property for forfeiture, or such other agency as the seizing agency may
designate in a particular case by its chief executive officer or his designee.
9. "Seizure for forfeiture" means seizure of property by a peace officer coupled
with an assertion by the seizing agency or by an attorney for the state that the property
is subject to forfeiture.
13-4302 Jurisdiction
The state may commence a proceeding in the superior court if the property for which
forfeiture is sought is within this state at the time of the filing of the action or if
the courts of this state have in personam jurisdiction of an owner of or interest holder
in the property.
13-4303 Venue
A. A civil action brought pursuant to this chapter may be brought in the county in
which the property is seized or in any county in which an owner or interest holder could
be civilly or criminally complained against for the conduct alleged to give rise to the
forfeiture of the property.
B. A claimant or defendant may obtain a change of venue only under the same
circumstances under which a defendant may obtain a change of venue in a criminal case.
13-4304 Property subject to forfeiture; exemptions
All property, including all interests in such property, described in a statute
providing for its forfeiture is subject to forfeiture. However:
1. No vehicle used by any person as a common carrier in the transaction of business
as a common carrier may be forfeited under the provisions of this chapter unless it
appears that the owner or other person in charge of the vehicle was a consenting party or
privy to the act or omission giving rise to forfeiture or knew or had reason to know of
it.
2. No vehicle may be forfeited under the provisions of this chapter for any act or
omission established by the owner to have been committed or omitted by a person other
than the owner while the vehicle was unlawfully in the possession of a person other than
the owner in violation of the criminal laws of this state or of the United States.
3. No property may be forfeited pursuant to section 13-3413, subsection A,
paragraph 1 or 3 if the conduct giving rise to the forfeiture both:
(a) Did not involve an amount of unlawful substance greater than the statutory
threshold amount as defined in section 13-3401.
(b) Was not committed for financial gain.
4. No owner's or interest holder's interest may be forfeited under this chapter if
the owner or interest holder establishes all of the following:
(a) He acquired the interest before or during the conduct giving rise to
forfeiture.
(b) He did not empower any person whose act or omission gives rise to forfeiture
with legal or equitable power to convey the interest, as to a bona fide purchaser for
value, and he was not married to any such person or if married to such person, held the
property as separate property.
(c) He did not know and could not reasonably have known of the act or omission or
that it was likely to occur.
5. No owner's or interest holder's interest may be forfeited under this chapter if
the owner or interest holder establishes all of the following:
(a) He acquired the interest after the conduct giving rise to forfeiture.
(b) He is a bona fide purchaser for value not knowingly taking part in an illegal
transaction.
(c) He was at the time of purchase and at all times after the purchase and before
the filing of a racketeering lien notice or the provision of notice of pending forfeiture
or the filing and notice of a civil or criminal proceeding under this title relating to
the property, whichever is earlier, reasonably without notice of the act or omission
giving rise to forfeiture and reasonably without cause to believe that the property was
subject to forfeiture.
13-4305 Seizure of property
A. Property subject to forfeiture under this chapter may be seized for forfeiture
by a peace officer:
1. On process issued pursuant to the rules of civil procedure or the provisions of
this title including a seizure warrant.
2. By making a seizure for forfeiture on property seized on process issued pursuant
to law, including sections 13-3911 through 13-3915.
3. By making a seizure for forfeiture without court process if any of the following
is true:
(a) The seizure for forfeiture is of property seized incident to an arrest or
search.
(b) The property subject to seizure for forfeiture has been the subject of a prior
judgment in favor of this state or any other state or the federal government in a
forfeiture proceeding.
(c) The peace officer has probable cause to believe that the property is subject
to forfeiture.
B. Property subject to forfeiture under this chapter may be seized for forfeiture
by placing the property under constructive seizure. Constructive seizure may be made by
posting notice of seizure for forfeiture on the property or by filing notice of seizure
for forfeiture or notice of pending forfeiture in any appropriate public record relating
to the property.
C. The court shall determine probable cause for seizure before real property may be
seized for forfeiture, unless the seizure is pursuant to a constructive seizure or the
filing of a racketeering lien or lis pendens. The court may make its determination ex
parte if the state demonstrates that notice and an opportunity to appear would create a
risk of harm to the public safety or welfare, including the risk of physical injury or
the likelihood of property damage or financial loss.
D. The court shall determine probable cause for seizure before property may be
seized for forfeiture as a substitute asset pursuant to section 13-2314, subsection D, E
or G, or pursuant to section 13-4313, subsection A, unless the seizure is pursuant to a
constructive seizure or the filing of a racketeering lien or lis pendens. The court may
issue a seizure warrant for such property if it determines that there is probable cause
to believe that the property is subject to forfeiture and is not available for seizure
for forfeiture for any reason described in section 13-4313, subsection A. The
determinations shall be made ex parte unless real property is to be seized and subsection
C of this section requires notice and an opportunity to appear.
E. In establishing a preponderance of the evidence and in determining probable
cause for seizure and for forfeiture, a rebuttable presumption exists that the property
of any person is subject to forfeiture if the state establishes all of the following by
the standard of proof applicable to that proceeding:
1. Conduct giving rise to forfeiture occurred.
2. The person acquired the property during the period of the conduct giving rise to
forfeiture or within a reasonable time after that period.
3. There is no likely source for the property other than the conduct giving rise to
forfeiture.
F. In establishing a preponderance of the evidence and in determining probable
cause for seizure and for forfeiture, the fact that money or any negotiable instrument
was found in proximity to contraband or to instrumentalities of an offense gives rise to
an inference that the money or instrument was the proceeds of contraband or was used or
intended to be used to facilitate commission of the offense.
13-4306 Powers and duties of peace officers and agencies
A. In the event of a seizure for forfeiture under section 13-4305, the property is
not subject to replevin, conveyance, sequestration or attachment but is deemed to be in
the custody of the law enforcement agency making the seizure for forfeiture. The seizing
agency or the attorney for the state may authorize the release of the seizure for
forfeiture of the property if forfeiture or retention is unnecessary, may transfer the
property to any other state or federal agency or may transfer the action to another
attorney for the state by discontinuing forfeiture proceedings in favor of forfeiture
proceedings initiated by the other agency or attorney. An action pursuant to this
chapter shall be consolidated with any other action or proceeding pursuant to this title
relating to the same property on motion by the attorney for the state in either action.
B. If property is seized for forfeiture under section 13-4305, pending forfeiture
and final disposition, the seizing agency may do any of the following:
1. Remove the property to a storage area for safekeeping or, if the property is a
negotiable instrument or money, deposit it in an interest bearing account.
2. Remove the property to a place designated by the court.
3. Provide for another custodian or agency to take custody of the property and
remove it to an appropriate location within the jurisdiction of the court.
C. As soon as practicable after seizure for forfeiture, the seizing agency shall
conduct an inventory and estimate the value of the property seized. Within twenty days
the seizing agency or the attorney for the state shall make reasonable efforts to provide
notice of seizure for forfeiture to all persons known to have an interest in the seized
property.
D. A person who acts in good faith and in a reasonable manner to comply with an
order of the court or a request of a peace officer is not liable to any person for acts
done in compliance with the order or request.
E. A possessory lien of a person from whose possession property is seized is not
affected by the seizure.
F. In the event of a seizure for forfeiture under section 13-4305, the seizing
agency shall send to an attorney for the state a written request for forfeiture within
twenty days, which shall include a statement of facts and circumstances of the seizure
including the names of witnesses then known, the appraised or estimated value of the
property and a summary of the facts relied on for forfeiture.
G. An owner of property seized for forfeiture may obtain the release of the seized
property by posting with the attorney for the state a surety bond or cash in an amount
equal to the full fair market value of the property as determined by the attorney for the
state. The state may refuse to release the property if any of the following applies:
1. The bond or cash tendered is inadequate.
2. The property is retained as contraband or evidence.
3. The property is particularly altered or designed for use in conduct giving rise
to forfeiture.
H. If an owner of property posts a surety bond or cash and the property is
forfeited the court shall forfeit the surety bond or cash in lieu of the property.
13-4307 Notice of pending forfeiture
Whenever notice of pending forfeiture is required under this chapter it shall be
given or provided in one of the following ways and is effective at the time of personal
service, publication or the mailing of written notice, whichever is earlier:
1. If the owner's or interest holder's name and current address are known by
either:
(a) Personal service.
(b) Mailing a copy of the notice by certified mail to the address.
2. If the owner's or interest holder's interest is required by law to be on record
with a county recorder's office, the secretary of state, the department of transportation
motor vehicle division, the game and fish department, or another state or federal
licensing agency in order to perfect an interest in the property, but his current address
is not known, by mailing a copy of the notice by certified mail to any address on the
record.
3. If the owner's or interest holder's address is not known, and is not on record
as provided in paragraph 2, or if his interest is not known, by publication in one issue
of a newspaper of general circulation in the county in which the seizure occurs.
13-4308 Commencement of proceedings
A. The attorney for the state shall determine whether it is probable that the
property is subject to forfeiture and, if so, may cause the initiation of uncontested or
judicial proceedings against the property. If, on inquiry and examination, the attorney
determines that the proceedings probably cannot be sustained or that justice does not
require the institution of such proceedings, he shall notify the seizing agency and
immediately authorize the release of the seizure for forfeiture on the property or on any
specified interest in it.
B. If the state fails to initiate forfeiture proceedings against property seized
for forfeiture by notice of pending forfeiture within sixty days after its seizure for
forfeiture, or fails to pursue forfeiture of such property on which a timely claim has
been properly filed by filing a complaint, information or indictment pursuant to section
13-4311 or 13-4312 within sixty days after notice of pending forfeiture or, if
uncontested forfeiture has been made available, within sixty days after a declaration of
forfeiture, whichever is later, such property shall be released from its seizure for
forfeiture on the request of an owner or interest holder, pending further proceedings
pursuant to this chapter, which shall be commenced within seven years after actual
discovery of the last act giving rise to forfeiture.
C. If the property sought to be forfeited is real property, including fixtures, the
attorney for the state may file a lis pendens or a notice of pending forfeiture with
respect to the property with the county recorder of the county in which the property is
located, in addition to any lien provided by section 13-2314.02, without a filing fee or
other charge.
13-4309 Uncontested forfeiture
If a forfeiture is authorized by law, the attorney for the state may make
uncontested civil forfeiture available to owners of and interest holders in personal
property in the following manner:
1. If the attorney for the state in his discretion makes uncontested forfeiture
available, he shall provide notice of pending forfeiture by giving notice within thirty
days after seizure for forfeiture as provided in section 13-4307 to all persons known to
have an interest who have not previously received the notice.
2. An owner of or interest holder in the property may elect to file either a claim
with the court within thirty days after the notice or a petition for remission or
mitigation of forfeiture with the attorney for the state within thirty days after the
notice and not after a complaint has been filed, but may not file both. The claim or
petition shall comply with the requirements for claims in section 13-4311, subsections E
and F.
3. The following apply if one or more owners or interest holders timely file a
petition for remission or mitigation:
(a) The attorney for the state shall inquire into whether the property is subject
to forfeiture and the facts and circumstances surrounding petitions for remission or
mitigation of forfeiture.
(b) The attorney for the state shall provide the seizing agency and the petitioner
with a written declaration of forfeiture, remission or mitigation of any or all interest
in the property in response to each petition within ninety days after the effective date
of the notice of pending forfeiture unless one or more petitioners request an extension
of time in writing or unless the circumstances of the case require additional time, in
which case the attorney for the state shall notify the petitioner in writing and with
specificity within the ninety day period that the circumstances of the case require
additional time and further notify the petitioner of the expected decision date. In no
event shall the mailing of the declaration be more than one hundred twenty days after the
date of the state's notice of pending forfeiture.
(c) An owner or interest holder in any property declared forfeited may file a claim
as described in section 13-4311, subsections E and F in the superior court in the county
in which the uncontested forfeiture was declared within thirty days after the mailing of
the declaration of forfeiture.
(d) If a declaration of forfeiture pursuant to this section is followed by a timely
claim, or at any other time, the attorney for the state may elect to proceed as provided
for judicial forfeitures.
(e) If no petitioner files a claim in the court within thirty days after the
mailing of the declaration of forfeiture, the declaration becomes final and the attorney
for the state shall proceed as provided in sections 13-4314 and 13-4315.
4. If no petitions for remission or mitigation or claims are timely filed, the
attorney for the state shall proceed as provided in sections 13-4314 and 13-4315.
5. If one or more petitions for remission or mitigation and one or more claims are
timely filed, no complaint for forfeiture need be filed by the state until sixty days
after an uncontested declaration of forfeiture.
6. If a judicial forfeiture proceeding follows a notice of pending forfeiture
making uncontested civil forfeiture available:
(a) No duplicate or repetitive notice or claim is required. The judicial
proceedings shall adjudicate all timely filed claims. If a claim has been timely filed
pursuant to paragraph 2 or 3 of this section it shall be determined in a judicial
forfeiture proceeding after the commencement of such a proceeding pursuant to section
13-4311, subsection A or section 13-4312, subsection A.
(b) The declarations of forfeiture, remission or mitigation responsive to all
petitioners who subsequently filed claims are void and shall be regarded as rejected
offers to compromise.
13-4310 Judicial forfeiture proceedings; general
A. In any proceeding pursuant to this chapter, the court, on application of the
state, may enter any restraining order or injunction, require the execution of
satisfactory performance bonds, create receiverships, appoint conservators, appraisers,
accountants or trustees or take any other action to seize, secure, maintain or preserve
the availability of property subject to forfeiture under this title, including a warrant
for its seizure, whether prior or subsequent to the filing of a notice of pending
forfeiture, complaint, indictment or information.
B. If property is seized for forfeiture without a prior judicial determination of
probable cause, an order of forfeiture or a hearing pursuant to section 13-4312,
subsection D, the court, on an application filed by an owner of or interest holder in the
property within fifteen days after notice of its seizure for forfeiture or actual
knowledge of it, whichever is earlier, and complying with the requirements for claims in
section 13-4311, subsections E and F, may issue an order to show cause to the seizing
agency for a hearing on the sole issue of whether probable cause for forfeiture of the
property then exists. Notice of the order to show cause hearing must be served upon the
attorney for the state at least five working days before the hearing is held. If the
court finds that no probable cause for forfeiture of the property then exists or if the
state elects not to contest the issue, the property seized for forfeiture from the
applicant shall be released to the custody of the applicant pending the outcome of a
judicial proceeding pursuant to this chapter. If the court finds that probable cause for
the forfeiture of the property then exists, the court shall not order the property
released, except as provided in section 13-4306, subsection G.
C. A defendant convicted in any criminal proceeding shall be precluded from
subsequently denying the essential allegations of the criminal offense of which he was
convicted in any proceeding pursuant to this chapter. For the purposes of this chapter,
a conviction may result from a verdict or plea including a no contest plea.
D. In any judicial forfeiture hearing, determination or other proceeding pursuant
to this chapter, the applicant, petitioner or claimant must establish by a preponderance
of the evidence that he is an owner of or interest holder in the property seized for
forfeiture before other evidence is taken. The burden of proving the standing of the
claimant and the existence of the exemption is on the claimant or party raising
the claim, and it is not necessary to negate the standing of any claimant or the
existence of any exemption in any notice, application, complaint, information or
indictment.
E. In hearings and determinations pursuant to this chapter:
1. The law of evidence relating to civil actions applies equally to all parties,
including the state, an applicant, a petitioner, a claimant and a defendant, on all
issues required to be established by a preponderance of the evidence.
2. The court shall receive and consider, in making any determination of probable
cause or reasonable cause, all evidence and information that would be permissible in
determining probable cause at a preliminary hearing, at a grand jury or by a magistrate
pursuant to section 13-3913, together with inferences from the evidence and information.
3. No evidence may be suppressed in any hearing pursuant to this chapter on the
ground that its acquisition by search or seizure violated constitutional protections
applicable in criminal cases relating to unreasonable searches or seizures.
F. All property, including all interests in such property, declared forfeited under
this title vests in this state on the commission of the act or omission giving rise to
forfeiture under this title together with the proceeds of the property after such
time. Any such property or proceeds subsequently transferred to any person are subject
to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and
establishes in a hearing pursuant to this chapter the showings set out in section
13-4304.
G. 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.
H. If the property is disposed of pursuant to subsection G of this section, a
successful claimant may apply to the court for actual monetary damages suffered, if any,
as a result of the disposal of the property, but the state, a political subdivision of
the state, or an officer, employee or agent of any of them shall not in any event be
liable under this chapter for incidental or consequential damages or for damages either:
1. That could have been avoided if the claimant had made full and immediate
disclosure to the attorney for the state of facts or evidence known or available to the
claimant.
2. In excess of the fair market value of the property seized for forfeiture at the
time of its seizure plus interest from the time of its seizure for forfeiture.
I. If an indictment or information is filed alleging the same conduct as the
conduct giving rise to forfeiture in a civil forfeiture proceeding, the court in the
civil proceeding may stay civil discovery against the criminal defendant and against the
state in the civil proceeding until the defendant's criminal trial is completed. Before
staying civil discovery, the court shall make adequate provision to prevent any loss or
expense to any victim or party resulting from the delay, including loss or expense due to
maintenance, management, insurance, storage or preservation of the availability of the
property or due to depreciation in the value of the property.
J. No person claiming to be an owner of or interest holder in property seized for
forfeiture under this chapter may commence or maintain any action against the state
concerning the validity of the alleged interest other than as provided in this chapter.
13-4311 Judicial in rem forfeiture proceedings
A. If a forfeiture is authorized by law, it shall be ordered by a court on an
action in rem brought by the state pursuant to a notice of pending forfeiture or a
verified complaint for forfeiture. The state may serve the complaint in the manner
provided by section 13-4307 or by the ARIZONA rules of civil procedure.
B. A civil in rem action may be brought by the state in addition to or in lieu of
the civil and criminal in personam forfeiture procedures set forth in sections 13-4312
and 13-4313 or the uncontested civil forfeiture procedures set forth in section
13-4309. Judicial in rem forfeiture proceedings are in the nature of an action in rem
and are governed by the ARIZONA rules of civil procedure unless a different procedure is
provided by law.
C. On the filing of a civil in rem action by the state in superior court the clerk
of the court in which the action is filed shall provide, and the attorney for the state
may provide, the notice of pending forfeiture required by section 13-4307 unless the
files of the clerk of the court reflect that such notice has previously been made.
D. An owner of or interest holder in the property may file a claim against the
property, within thirty days after the notice, for a hearing to adjudicate the validity
of his claimed interest in the property. The hearing shall be held by the court without
a jury.
E. The claim shall be signed by the claimant under penalty of perjury and shall set
forth all of the following:
1. The caption of the proceeding as set forth on the notice of pending forfeiture
or complaint and the name of the claimant.
2. The address at which the claimant will accept future mailings from the court or
attorney for the state.
3. The nature and extent of the claimant's interest in the property.
4. The date, the identity of the transferor and the circumstances of the claimant's
acquisition of the interest in the property.
5. The specific provisions of this chapter relied on in asserting that the
property is not subject to forfeiture.
6. All facts supporting each such assertion.
7. Any additional facts supporting the claimant's claim.
8. The precise relief sought.
F. Copies of the claim shall be mailed to the seizing agency and to the attorney
for the state. No extension of time for the filing of a claim may be granted.
G. Within twenty days after service of the complaint, the claimant shall file and
serve the answer to the complaint and the answers to interrogatories and requests for
admission if any were served with the complaint. The answer shall be signed by the
owner or interest holder under penalty of perjury, shall comply with the ARIZONA rules of
civil procedure relating to answers and shall comply with all of the requirements for
claims. If no proper answer is timely filed, the attorney for the state shall proceed as
provided in sections 13-4314 and 13-4315 with ten days' notice to any person who has
timely filed a claim that has not been stricken by the court.
H. At the time of filing its pleadings or at any other time not less than thirty
days before the hearing, the state and any claimant who has timely answered the complaint
may serve discovery requests on any other party, the answers or response to which shall
be due in twenty days, and may take the deposition of any person at any time after the
expiration of fifteen days after the filing and service of the complaint. Any party may
move for summary judgment at any time after an answer or responsive pleading is served
and not less than thirty days before the hearing. The state, as the party defending
against the claim, may make offers of judgment at any time more than ten days before the
hearing begins.
I. An injured person may submit a request for compensation from forfeited property
to the court at any time before the earlier of the entry of a final judgment or an
application for an order of the forfeiture of the property, or if a hearing pursuant to
subsections K, L and M of this section is held, not less than thirty days before the
hearing. The request shall be signed by the requestor under penalty of perjury and shall
set forth all of the following:
1. The caption of the proceeding as set forth on the notice of pending forfeiture
or complaint and the name of the requestor.
2. The address at which the requestor will accept future mailings from the court or
parties to the action.
3. The property subject to forfeiture from which the requestor seeks compensation.
4. The nature of the economic loss sustained by the requestor.
5. All facts supporting each such assertion.
6. Any additional facts supporting the request.
7. The amount of economic loss for which the requestor seeks compensation.
J. If a proper request for compensation from forfeited property is timely filed,
the court shall hold a hearing to establish whether there is a factual basis for the
request. The requestor has the burden of establishing by a preponderance of the evidence
that the requestor is an injured person who sustained economic loss.
K. The hearing on the claim, to the extent practicable and consistent with the
interest of justice, shall be held sixty days after all parties have complied with the
disclosure required by rule 26.1 of the ARIZONA rules of civil procedure. The court may
consolidate the hearing on the claim with a hearing on any other claim concerning the
same property.
L. At the hearing, the claimant may testify, present evidence and witnesses on the
claimant's own behalf and cross-examine witnesses who appear at the hearing. The state
may present evidence and witnesses and cross-examine witnesses who appear at the hearing.
M. At the hearing, the state has the burden of establishing by a preponderance of
the evidence that the property is subject to forfeiture under section 13-4304. Any
claimant who has previously established by a preponderance of the evidence that the
claimant is an owner of or interest holder in the property has the burden of establishing
by a preponderance of the evidence that the claimant's interest in the property is exempt
from forfeiture under section 13-4304.
N. In accordance with its findings at the hearing:
1. The court shall order an interest in property returned or conveyed to a
claimant, if any, who has established by a preponderance of the evidence that the
claimant is an owner of or interest holder in the property if either of the following
applies:
(a) The state has failed to establish by a preponderance of the evidence that the
interest is subject to forfeiture under section 13-4304.
(b) The claimant has established by a preponderance of the evidence that the
interest is exempt from forfeiture under section 13-4304.
2. The court shall order all other property, including all interests in the
property, forfeited to this state and proceed pursuant to sections 13-4314 and 13-4315.
3. If the court finds that a requestor is an injured person the court shall
determine the amount of the injured person's economic loss caused by the conduct giving
rise to the forfeiture of the designated property and shall require the following:
(a) If the designated property is not contraband and is not altered or designed for
use in conduct giving rise to forfeiture, the attorney for the state shall sell the
property as provided in section 13-4315, subsection A, paragraph 2, and shall apply the
resulting balance to compensate the injured person's economic loss in the amount found by
the court.
(b) If the balance is insufficient to compensate the economic loss of all injured
persons the attorney for the state shall distribute the balance among the injured persons
according to a method determined by the court.
(c) After compensation of all injured persons, the attorney for the state shall
transmit ten per cent of the remaining balance, if any, to the ARIZONA criminal justice
commission for deposit in the victim compensation and assistance fund established by
section 41-2407.
(d) The attorney for the state shall deposit the remainder of the balance, if any,
in an appropriate anti-racketeering revolving fund established by section 13-2314.01 or
13-2314.03.
13-4312 Judicial in personam forfeiture proceedings
A. If a forfeiture is authorized by law, it shall be ordered by a court on
proceedings by the state in an in personam civil or criminal action pursuant to section
13-2313 or 13-2314 or any other law providing for a forfeiture.
B. Any complaint, information or indictment alleging or charging one or more
offenses included in section 13-2301, subsection D, paragraph 4 or a violation of section
13-2312, or any other offense giving rise to forfeiture under this title, shall set forth
with reasonable particularity property that the state seeks to forfeit pursuant to this
section in that action, if any. The court shall allow the allegation that particular new
or different or differently described property is subject to forfeiture in an in personam
criminal or civil case to be made at any time prior to the date the case is actually
tried unless the allegation is filed fewer than twenty days before the case is actually
tried, and the court finds on the record that the defendant was in fact prejudiced by the
untimely filing and states reasons for these findings, provided that when the allegation
is filed, the state must make available to the defendant a copy of any material
information concerning the allegation.
C. In any proceeding pursuant to this section, the court, on application of the
state, may enter any order authorized by section 13-4310, subsection A or take any other
action to seize, secure, maintain or preserve the availability of property subject to
forfeiture under this title, including a warrant for its seizure, whether before or after
the filing of a complaint, indictment or information.
D. Notwithstanding subsection E of this section, a temporary restraining order
under this section may be entered on application of the state without notice or an
opportunity for a hearing if the state demonstrates both that:
1. There is probable cause to believe that the property with respect to which the
order is sought would, in the event of final judgment or conviction, be subject to
forfeiture under this title.
2. Provision of notice will jeopardize the availability of the property for
forfeiture. A temporary restraining order expires within ten days after the date on which
it is entered unless the party against whom it is entered consents to an extension for a
longer period or unless after commencing a hearing the court enters or is considering a
preliminary injunction.
E. Notice of the entry of the restraining order and an opportunity for a hearing
shall be afforded to persons known to have an interest in the property, whether or not a
temporary restraining order is entered without notice. The hearing, however, is limited
to the issues of whether both:
1. There is a probability that the state will prevail on the issue of forfeiture
and that failure to enter the order will result in the property being destroyed,
conveyed, encumbered or further encumbered, removed from the jurisdiction of the court,
concealed or otherwise made unavailable for forfeiture.
2. The need to preserve the availability of property through the entry of the
requested order outweighs the hardship on any owner, interest holder or defendant against
whom the order is to be entered.
F. A hearing requested by any owner or interest holder concerning an order entered
under this section shall be held at the earliest possible time and before the expiration
of a temporary order.
G. On a determination of liability or the conviction of a person for conduct giving
rise to forfeiture under this title, the court shall enter a judgment of forfeiture of
the property described in the forfeiture statute alleged and set out in the complaint,
information or indictment, as amended, and shall also authorize the county attorney or
attorney general, their agents or any peace officer to seize all property ordered
forfeited that was not previously seized or is not then under seizure. Following the
entry of an order declaring the property forfeited, the court, on application of the
state, may enter any order authorized by section 13-4310, subsection A or take any other
action to protect the interest of this state or a political subdivision in the property
ordered forfeited. The filing of the order of forfeiture in the appropriate public
records perfects the interest of the state in the property described in the order as of
the earlier of the date of the act or omission giving rise to forfeiture or the date that
a notice of seizure for forfeiture or notice of pending forfeiture or racketeering lien
was first filed in the records, which entitles the state to all rights of a secured party
as to that property in addition to any other rights or remedies of the state in relation
to the property. Any income accruing to, or derived from, an enterprise or any interest
in an enterprise or other property interest that is forfeited under this chapter is also
forfeited from the time of the conduct giving rise to forfeiture. It may be used pending
procedures subsequent to a verdict or finding of liability to offset ordinary and
necessary expenses of the enterprise or property as required by law or that are necessary
to protect the interests of this state or a political subdivision.
H. Procedures subsequent to the verdict or finding of liability and order of
forfeiture shall be as follows:
1. Following the entry of an order of forfeiture under this subsection the clerk of
the court shall, and the attorney for the state may, give notice of pending forfeiture to
all owners and interest holders who have not previously been given notice, if any, in the
manner provided in section 13-4307.
2. An owner of or interest holder in property that has been ordered forfeited
pursuant to such action whose claim is not precluded may file a claim as described in
section 13-4311, subsections E and F in the court for a hearing to adjudicate the
validity of his claimed interest in the property within thirty days after initial notice
of pending forfeiture or after notice under paragraph 1 of this subsection, whichever is
earlier.
3. The hearing on the claim, to the extent practicable and consistent with the
interest of justice, shall be held within sixty days after the order of forfeiture. The
court may consolidate the hearing on the claim with a hearing on any other claim filed by
a person other than a party or defendant in the underlying action and concerning the same
property.
4. The hearing shall be held by the court without a jury and conducted in the
manner provided for in rem judicial forfeiture actions including the provisions of
section 13-4311, subsections J and K. In addition to testimony and evidence presented at
the hearing, the court shall consider the relevant portions of the record of the
underlying civil or criminal action that resulted in the order of forfeiture.
5. In accordance with its findings at the hearing, the court may amend the order of
forfeiture if it determines that any claimant has established by a preponderance of the
evidence that the claimant is an owner of or interest holder in the property if either of
the following applies:
(a) The state has failed to establish by a preponderance of the evidence that the
interest is subject to forfeiture under section 13-4304.
(b) The claimant has established by a preponderance of the evidence that the
interest is exempt from forfeiture under section 13-4304.
I. In order to facilitate the identification or location of property declared
forfeited and to facilitate the disposition of filed or subsequent claims pursuant to
subsection H, paragraph 2 of this section, the court, on application of the state, may
order that the testimony of any witness relating to the property forfeited or alleged to
be subject to forfeiture be taken by deposition and that any designated book, paper,
document, record, recording, electronic or otherwise, or other material which is not
privileged be produced at the same time and place and in the same manner as that provided
for the taking of depositions under the rules of civil procedure.
13-4313 Supplemental remedies
A. The court shall order the forfeiture of any other property of a claimant or an
in personam civil or criminal defendant up to the value of the claimant's or defendant's
property that the court finds is subject to forfeiture if any of the following
circumstances apply to the property:
1. It cannot be located.
2. It has been transferred or conveyed to, sold to or deposited with a third party.
3. It has been placed beyond the jurisdiction of the court.
4. It has been substantially diminished in value by any act or omission of the
defendant.
5. It has been commingled with other property which cannot be divided without
difficulty.
6. It is subject to any interest that is exempt from forfeiture.
B. In addition to any other remedy provided for by law, if property subject to
forfeiture is conveyed, alienated, encumbered, disposed of, received, removed from the
jurisdiction of the court, concealed or otherwise rendered unavailable for forfeiture
after the filing of a racketeering lien notice or provision of notice of pending
forfeiture or after the filing and notice of a civil proceeding or criminal proceeding
alleging forfeiture under this chapter, whichever is earlier, the state may institute an
action in superior court against the person named in the racketeering lien or notice of
pending forfeiture or the defendant in the civil proceeding or criminal proceeding, and
the court shall enter final judgment against the person named in the racketeering lien or
notice of pending forfeiture or the defendant in the civil proceeding or criminal
proceeding in an amount equal to the fair market value of the property, together with
reasonable investigative expenses and attorney fees. If a civil proceeding under this
chapter is pending, the action shall be filed only in the court where the civil
proceeding is pending.
C. This section does not limit the right of the state to obtain any order or
injunction, receivership, writ, attachment, garnishment or other remedy authorized under
this title or appropriate to protect the interests of the state or available under other
applicable law, including title 44, chapter 8, article 1.
13-4314 Disposition by court
A. If no petitions for remission or mitigation or claims are timely filed or if no
petitioner files a claim in the court within thirty days after the mailing of a
declaration of forfeiture, the attorney for the state shall apply to the court for an
order of forfeiture and allocation of forfeited property pursuant to section 13-4315. On
the state's written application showing jurisdiction, notice and facts sufficient to
demonstrate probable cause for forfeiture, and in cases brought pursuant to section
13-3413, subsection A, paragraph 1 or 3, probable cause to believe that the conduct
giving rise to forfeiture involved an amount of unlawful substance greater than the
statutory threshold amount as defined in section 13-3401 or was committed for financial
gain, the court shall order the property forfeited to the state.
B. After the court's disposition of all claims timely filed under this chapter, the
state has clear title to the forfeited property and the court shall so order. Title to
the forfeited property and its proceeds is deemed to have vested in the state on the
commission of the act or omission giving rise to the forfeiture under this title.
C. If, in his discretion, the attorney for the state has entered into a stipulation
with an interest holder that the interest holder has an interest that is exempted from
forfeiture, the court, on application of the attorney for the state, may release or
convey forfeited personal property to the interest holder if all of the following are
true:
1. The interest holder has an interest which was acquired in the regular course of
business as a financial institution within section 13-2301, subsection D, paragraph 3.
2. The amount of the interest holder's encumbrance is readily determinable and it
has been reasonably established by proof made available by the attorney for the state to
the court.
3. The encumbrance held by the interest holder seeking possession is the only
interest exempted from forfeiture and the order forfeiting the property to the state
transferred all of the rights of the owner prior to forfeiture, including rights to
redemption, to the state.
4. After the court's release or conveyance, the interest holder shall dispose of
the property by a commercially reasonable public sale, and within ten days of disposition
shall tender to the state the amount received at disposition less the amount of the
interest holder's encumbrance and reasonable expense incurred by the interest holder in
connection with the sale or disposal.
D. On order of the court forfeiting the subject property, the attorney for the
state may transfer good and sufficient title to any subsequent purchaser or transferee,
and the title shall be recognized by all courts, by this state and by all departments and
agencies of this state and any political subdivision.
E. On entry of judgment for a claimant or claimants in any proceeding to forfeit
property under this chapter such property or interest in property shall be returned or
conveyed immediately to the claimant or claimants designated by the court. If it appears
that there was reasonable cause for the seizure for forfeiture or for the filing of the
notice of pending forfeiture, complaint, information or indictment, the court shall cause
a finding to be entered, and the claimant is not, in such case, entitled to costs or
damages, nor is the person or seizing agency that made the seizure, nor is the attorney
for the state liable to suit or judgment on account of such seizure, suit or prosecution.
F. The court shall order any claimant who fails to establish that his entire
interest is exempt from forfeiture under section 13-4304 to pay the costs of any claimant
who establishes that his entire interest is exempt from forfeiture under section 13-4304
and the state's costs and expenses of the investigation and prosecution of the matter,
including reasonable attorney fees.
13-4315 Allocation of forfeited property
A. Any property, including all interests in property, forfeited to the state under
this title shall be transferred as requested by the attorney for the state to the seizing
agency or to the agency or political subdivision employing the attorney for the state,
which may do any of the following:
1. Sell, lease, lend or transfer the property to any local or state government
entity or agency or political subdivision, law enforcement agency or prosecutorial agency
or any federal law enforcement agency which operates within this state for official
federal, state or political subdivision use within this state, with expenses for keeping
and transferring such property to be paid by the recipient. Property may not be
allocated for official use if the fair market value of the property substantially exceeds
the agency's probable cost of purchasing other property equally suited for the intended
official use. Property that is allocated for official use may not be assigned for use by
any person who supervised or exercised discretion in its forfeiture unless the use is
approved in writing by the head of the agency.
2. Sell forfeited property by public or otherwise commercially reasonable sale with
expenses of keeping and selling the property and the amount of all valid interests
established by claimants paid out of the proceeds of the sale with the balance paid into
the anti-racketeering fund of the state or of the county in which the political
subdivision seizing the property or prosecuting the action is located. A sale of
forfeited property may not be made to any employee of the seizing agency, any person who
participated in the forfeiture, any employee of a contractor selling the property on
behalf of the seizing agency or any member of the immediate family of any of these
employees or persons.
3. Destroy or use for investigative purposes any illegal or controlled substances
or other contraband at any time more than twenty days after seizure, on written approval
of the attorney for the state, preserving only such material as may be necessary for
evidence.
4. Sell, use or destroy all raw materials, products and equipment of any kind used
or intended for use in manufacturing, compounding or processing a controlled substance.
5. Compromise and pay claims against property forfeited pursuant to any provision
of this section.
6. Make any other disposition of forfeited property authorized by law for the
disposition of property of the state, government entity, agency or political subdivision.
B. Notwithstanding subsection A of this section or any other provision of law to
the contrary:
1. If the property forfeited is money, and a law enforcement agency can
specifically identify monies as being from its investigative funds or as being exchanged
for property from its investigative property, the monies shall be remitted to the
investigative fund. If there are additional forfeited monies or monies tendered on
satisfaction by an interest holder which cannot be specifically identified, the court
shall order the monies returned to each law enforcement agency that makes a showing of
costs or expenses which it incurred in connection with the investigation and prosecution
of the matter and shall order all excess monies remaining after such returns deposited in
the anti-racketeering fund of this state or of the county in which the political
subdivision seizing the monies or prosecuting the action is located, established pursuant
to section 13-2314.01 or 13-2314.03.
2. If the property declared forfeited is an interest in a vehicle, the court shall
order it forfeited to the local, state or other law enforcement agency seizing the
vehicle for forfeiture or to the seizing agency.
C. Monies in any anti-racketeering fund established pursuant to this title may be
used, in addition to any other lawful use, for:
1. The payment of any expenses necessary to seize, detain, appraise, inventory,
protect, maintain, preserve the availability of, advertise or sell property that is
subject to forfeiture and that is seized, detained or forfeited pursuant to this title or
of any other necessary expenses incident to the seizure, detention, preservation or
forfeiture of the property. The payments may include payments for contract services and
payments to reimburse any federal, state or local agency for any expenditures made to
perform the functions of the seizing agency.
2. The payment of awards for information or assistance leading to a civil or
criminal proceeding under this title.
3. The payment of compensation from forfeited property to injured persons as
provided in section 13-4311, subsection N, paragraph 3.
D. Each attorney for the state shall submit a copy of each forfeiture judgment,
including each order of forfeiture, to the ARIZONA criminal justice commission within
sixty days after the forfeiture judgment becomes final or after the conclusion of
appellate review, if any.
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