Bill Analysis
Legislative Service Commission
Sub.
H.B. 241
126th General Assembly
(As Passed by the General Assembly)
Reps. Latta, McGregor, C. Evans. D. Evans, Hughes, Perry, Blessing, Combs, Domenick, Faber, Schneider, Seitz, Taylor, Wagoner, Willamowski, Yuko
Effective date: March 30, 2007; Sections 1, 2, and 3 effective July 1, 2007
ACT SUMMARY
· Creates a new Revised Code Chapter 2981., which applies to and governs both criminal and civil asset forfeitures relating to offenses, other than forfeitures under the Motor Vehicle Law (for purposes of the new Chapter, "offense" means any act or omission that could be charged as a criminal offense or a delinquent act, whether or not a formal prosecution or delinquency proceeding began when a forfeiture is initiated).
· Repeals many of the criminal and civil forfeiture provisions contained in prior law regarding corrupt activity, criminal gang activity, felony drug abuse offenses, contraband, and Medicaid fraud in favor of the new provisions in new R.C. Chapter 2981.
· In addition to generally subjecting delinquent acts to new R.C. Chapter 2981. by including such acts within the scope of the definition of "offense," explicitly states that the new Chapter applies to children adjudicated delinquent for violating R.C. 2923.32 (corrupt activity) or 2923.42 (criminal gangs) or for committing a felony drug abuse offense.
·
Specifies that the purpose of forfeiture under new R.C.
Chapter 2981. is to (1) provide economic disincentives and remedies to deter
and offset the economic effect of offenses by seizing and forfeiting
contraband, proceeds, and certain instrumentalities, (2) ensure that seizures
and forfeitures of instrumentalities are proportionate to the offense
committed, (3) protect third parties from wrongful forfeiture of their
property, and (4) prioritize restitution for victims of offenses.
· Specifies that "contraband," "proceeds," and "instrumentalities" are subject to criminal or civil forfeiture under the new R.C. Chapter 2981., revises the definition of "contraband" that applies throughout the Revised Code, including new R.C. Chapter 2981., and defines "proceeds" and "instrumentalities" for purposes of new R.C. Chapter 2981.
· Provides that property may not be forfeited as an "instrumentality" to the extent that the amount or value of the property is disproportionate to the severity of the offense and that the owner of the property has the burden of going forward with the evidence and the burden to prove by a preponderance of the evidence that the amount or value of the property subject to forfeiture is disproportionate to the severity of the offense ("contraband" and "proceeds" from an offense are not subject to proportionality review).
· Grants the state or a political subdivision provisional title to property subject to forfeiture under new R.C. Chapter 2981. upon a person's commission of an offense giving rise to forfeiture, subject to third party claims and a final adjudication of criminal or civil forfeiture.
· Allows a person aggrieved by an alleged unlawful seizure of property to seek relief from the seizure and allows a person with an interest in property that is subject to forfeiture and that is seized to seek conditional release of the property.
· Clarifies that in a criminal forfeiture case, the defendant has the right to trial by jury and that in a civil forfeiture case the defendant, the state or political subdivision, and third party claimants have the right to trial by jury.
· Permits any person, other than the offender or delinquent child whose conviction, plea of guilty, or delinquent child adjudication is the basis of a criminal forfeiture order, who asserts a legal interest in the forfeited property to petition the court that issued the order for a hearing to adjudicate the validity of the person's alleged interest in the property.
· Allows a secured party or other lienholder of record that asserts a legal interest in property that is subject to a criminal forfeiture order, including, but not limited to, a mortgage, security interest, or other type of lien, to file an affidavit to establish the validity of the alleged right, title, or interest in the forfeited property (instead of filing a petition as described in the preceding dot point).
· Permits a person with an interest in property that is subject to civil forfeiture to petition the court to release the property under the act's conditional release provisions or to file a claim for the release of the property under the Rules of Civil Procedure.
· States that, after the court disposes of all petitions or affidavits filed by a third party in a civil or criminal forfeiture proceeding in favor of the state or political subdivision, the state or political subdivision has clear title to all property that is the subject of a forfeiture order, to the extent that other parties' lawful interests in the property are not infringed, and may warrant good title to any subsequent purchaser or other transferee.
· Provides procedures (generally relocated from prior law) for the disposition of property, other than specified types of exempt property, that has been lost, abandoned, stolen, or lawfully seized or forfeited, that is in the custody of a law enforcement agency, and that is unclaimed or forfeited.
· Provides procedures for the disposition of property ordered forfeited under new R.C. Chapter 2981. as contraband, proceeds, or instrumentalities.
· Creates the offense of "interference with or diminishing forfeitable property."
· States that nothing in new R.C. Chapter 2981. precludes the head of a law enforcement agency that seizes property from seeking forfeiture under federal law, but that if property is forfeitable under the new Chapter and federal forfeiture is not sought, the property is subject only to the new Chapter.
· Gives any person who prevails in a civil action brought under the Corrupt Activity Law for an injury sustained because a person violated the prohibition against engaging in a pattern of corrupt activity to have a right to any property, or the proceeds of any property, criminally forfeited to the state, or against which any fine or civil penalty may be imposed.
· Makes other forfeiture law-related changes recommended by the Criminal Sentencing Commission.
· Specifies that its provisions take effect July 1, 2007, and that, if a criminal or civil forfeiture action relating to misconduct under the Criminal Code was or is commenced before July 1, 2007, and is still pending on that date, the court in which the case is pending must, to the extent practical, apply the provisions of new R.C. Chapter 2981. in the case.
TABLE OF CONTENTS
Reorganization, consolidation, and relocation
Purposes by which forfeitures are to be governed
Property subject to forfeiture
Proportionality review regarding possible forfeiture of instrumentality
Protection of forfeitable property
Provisional title to the state or political subdivision
Seizure of forfeitable property
Court order to preserve the reachability of the property
Rights of parties with an interest in forfeitable property
Rights applicable in either a civil or criminal proceeding
Rights specific in a civil forfeiture case
Criminal forfeiture v. civil forfeiture
Property that may be forfeited
Additional court orders applicable in criminal and civil forfeiture proceedings
Forfeiture order regarding unreachable property
Actions requested by the prosecutor
Rights of parties with an interest in the forfeited property
Rights specific to a criminal forfeiture
Rights specific to a civil forfeiture
No rights for the offender of delinquent child
Clear title to the state or a political subdivision
Property, forfeited and otherwise, in the custody of a law enforcement
agency
Definitions regarding R.C. 2981.11 to 2981.13
Cumulative reports and internal control policy records are public
Locating persons entitled to possession of the property
Disposal of unclaimed or forfeited property
Disposal of property other than excluded property
Disposal of contraband, proceeds, and instrumentalities
Prosecutor's record-keeping duties with respect to a criminal or civil
forfeiture
Interference with or diminishing forfeitable property
Right to property in a civil action brought in a corrupt activity case
Technical and conforming changes
CONTENT AND OPERATION
Reorganization, consolidation, and relocation
Prior law contained criminal and civil asset forfeiture provisions with respect to corrupt activity (R.C. 2923.31 to 2923.36), criminal gang activity (R.C. 2923.41 to 2923.47), felony drug abuse offenses (R.C. 2925.41 to 2925.45), contraband (R.C. 2933.41 to 2933.44), and Medicaid fraud (R.C. 2933.71 to 2933.75). The forfeiture provisions were similar in some regards but different in many others. Instead of these separate forfeiture provisions, the act, based on recommendations of the Ohio Criminal Sentencing Commission, reorganizes, consolidates, and relocates most of the prior provisions in a new chapter, R.C. Chapter 2981., that applies to asset forfeitures relating to offenses,[1] except that, pursuant to the act's R.C. 2981.02(C), the new chapter does not apply to or limit forfeitures under the Motor Vehicle Law, including forfeitures relating to R.C. 2903.06 or 2903.08 (the vehicular homicide and assault offenses).
Prior law generally applied the criminal forfeiture provisions with respect to corrupt activity, felony drug abuse offenses, and corrupt activity to juveniles adjudicated delinquent children for acts within the scope of those provisions. The act removes the language that explicitly addressed the application to delinquent children of the corrupt activity and felony drug abuse offense provisions to delinquent children (it does not remove the language explicitly addressing the application of the criminal gang activity provisions). Instead, in addition to generally subjecting delinquent acts to new R.C. Chapter 2981. by including such acts within the scope of the definition of "offense" (see the preceding paragraph and footnote 1), the act explicitly states that the provisions of the new R.C. Chapter 2981. apply to children who are adjudicated delinquent children for violating R.C. 2923.32 (corrupt activity) or 2923.42 (criminal gangs) or for committing an act that, if committed by an adult, would be a felony drug abuse offense. (R.C. 2152.20(B).)
Purposes by which forfeitures are to be governed
The act creates a new "purpose clause" for forfeitures under the act's R.C. Chapter 2981. that states that forfeitures under its provisions are to be governed by all of the following purposes (R.C. 2981.01(A)):
(1) To provide economic disincentives and remedies to deter and offset the economic effect of "offenses" by seizing and forfeiting contraband, proceeds, and certain instrumentalities;
(2) To ensure that seizures and forfeitures of instrumentalities are proportionate to the offense committed;
(3) To protect third parties from wrongful forfeiture of their "property";[2]
(4) To
prioritize restitution for victims of offenses.
Property subject to forfeiture
Under the act, the following property (hereafter termed "forfeitable property") is subject to forfeiture to the state or a political subdivision in either a criminal or delinquency process described below in "Criminal forfeiture" or a civil process described below in "Civil forfeiture" (R.C. 2981.02(A)):
(1) "Contraband" involved in an offense (see "Contraband," below);
(2) "Proceeds" (see "Proceeds," below) derived from or acquired through the commission of an offense;
(3) An "instrumentality" (see "Instrumentalities," below) that is used in or intended to be used in the commission or facilitation of a felony, a misdemeanor when forfeiture is specifically authorized by a state law or a municipal ordinance that creates the misdemeanor or sets forth its penalties, or an attempt to commit, complicity in committing, or a conspiracy to commit a felony or one of these misdemeanors, when the use or intended use, consistent with R.C. 2981.02(B) as described below in "Instrumentalities," is sufficient to warrant forfeiture under the act's R.C. Chapter 2981. procedures and limitations.
Contraband
Definition under former law. Formerly, as used throughout the Revised Code, "contraband" meant any property described in the following categories (R.C. 2901.01(A)(13)):
(1) Property that in and of itself was unlawful for a person to acquire or possess;
(2) Property that was not in and of itself unlawful for a person to acquire or possess, but that had been determined by an Ohio court, in accordance with law, to be contraband because of its use in an unlawful activity or manner, of its nature, or of the circumstances of the person who acquired or possessed it, including, but not limited to, goods and personal property described in R.C. 2913.34(D), which is property involved in the offense of "trademark counterfeiting";
(3) Property that was specifically stated to be contraband by a section of the Revised Code or by an ordinance, regulation, or resolution;
(4) Property that was forfeitable pursuant to a section of the Revised Code, or an ordinance, regulation, or resolution, including, but not limited to, forfeitable firearms, dangerous ordnance, obscene materials, and goods and personal property described in R.C. 2913.34(D);
(5) Any controlled substance, as defined in R.C. 3719.01, or any device, paraphernalia, money as defined in R.C. 1301.01, or other means of exchange that had been, was being, or was intended to be used in an attempt or conspiracy to violate, or in a violation of, R.C. Chapter 2925. (Drug Offense Law) or 3719. (Controlled Substance Law);
(6) Any gambling device, paraphernalia, money as defined in R.C. 1301.01, or other means of exchange that had been, was being, or was intended to be used in an attempt or conspiracy to violate, or in the violation of, R.C. Chapter 2915. (Gambling Law);
(7) Any equipment, machine, device, apparatus, vehicle, vessel, container, liquid, or substance that had been, was being, or was intended to be used in an attempt or conspiracy to violate, or in the violation of, any Ohio law relating to alcohol or tobacco;
(8) Any personal property that had been, was being, or was intended to be used in an attempt or conspiracy to commit, or in the commission of, any offense or in the transportation of the fruits of any offense;
(9) Any property that was acquired through the sale or other transfer of contraband or through the proceeds of contraband, other than by a court or a law enforcement agency acting within the scope of its duties;
(10) Any computer, computer system, computer network, computer software, or other telecommunications device that was used in a conspiracy to commit, an attempt to commit, or the commission of any offense, if the owner of the computer, computer system, computer network, computer software, or other telecommunications device was convicted of or pleaded guilty to the offense in which it was used;
(11) Any property that was material support or resources and that had been, was being, or was intended to be used in an attempt or conspiracy to violate, or in the violation of, R.C. 2909.22, 2909.23, or 2909.24 (terrorism-related offenses), or R.C. 2921.32 ("obstructing justice") when the offense or act committed by the person aided or to be aided as described in that section was an act of terrorism.
Definition under the act. The act revises the definition of "contraband" so that it means any property that is illegal for a person to acquire or possess under a statute, ordinance, or rule, or that a trier of fact lawfully determines to be illegal to possess by reason of the property's involvement in an offense. "Contraband" includes, but is not limited to, all of the following (R.C. 2901.01(A)(13); as under former law, the definition applies throughout the Revised Code):
(1) Any controlled substance, as defined in R.C. 3719.01, or any device or paraphernalia;
(2) Any unlawful gambling device or paraphernalia;
(3) Any dangerous ordnance or obscene material.
Prohibition against possessing contraband. Related to the former definition of contraband, under prior law, R.C. 2933.42 prohibited a person from possessing, concealing, transporting, receiving, purchasing, selling, leasing, renting, or otherwise transferring any contraband. There was no penalty associated with this prohibition other than criminal forfeiture under prior law contained in R.C. 2933.43. R.C. 2933.43 also classified a vessel used to transport contraband as contraband.
The act repeals R.C. 2933.42 and 2933.43 (Section 2 of the act).
Proceeds
The act defines "proceeds," for purposes of the act's R.C. Chapter 2981., as meaning both of the following (R.C. 2981.01(B)(11), (undefined in preexisting law)):
(1) In cases involving unlawful goods, services, or activities, "proceeds" means any property derived directly or indirectly from an offense. "Proceeds" may include, but is not limited to, money or any other means of exchange. "Proceeds" is not limited to the net gain or profit realized from the offense.
(2) In cases involving lawful goods or services that are sold or provided in an unlawful manner, "proceeds" means the amount of money or other means of exchange acquired through the illegal transactions resulting in the forfeiture, less the direct costs lawfully incurred in providing the goods or services. The lawful costs deduction does not include any part of the overhead expenses of, or income taxes paid by, the entity providing the goods or services. The alleged offender or delinquent child has the burden to prove that any costs are lawfully incurred.
Instrumentalities
Prior law stated that any property used in an offense was subject to forfeiture as contraband (R.C. 2933.41(C)(1), repealed by the act in Section 2). The act designates this type of property when otherwise lawful to possess as an "instrumentality" and defines that term, for purposes of the act's R.C. Chapter 2981., as meaning property otherwise lawful to possess that is used in or intended to be used in an offense. An "instrumentality" may include, but is not limited to, a firearm, a "mobile instrumentality," a computer, a computer network, a computer system, computer software, a telecommunications device, money, and any other means of exchange. "Mobile instrumentality" means an instrumentality that is inherently mobile and used in the routine transport of persons, including, but not limited to, any vehicle, any watercraft, and any aircraft. (R.C. 2981.01(B)(6) and (8).)
Under the act, in
determining whether an alleged instrumentality was used in or was intended to
be used in the commission or facilitation of an offense or an attempt,
complicity, or conspiracy to commit an offense in a manner sufficient to
warrant its forfeiture, the trier of fact must consider the following factors
the trier of fact determines are relevant (R.C. 2981.02(B)):
(1) Whether the offense could not have been committed or attempted but for the presence of the instrumentality;
(2) Whether the primary purpose in using the instrumentality was to commit or attempt to commit the offense;
(3) The extent to which the instrumentality furthered the commission of, or attempt to commit, the offense.
Proportionality review regarding possible forfeiture of instrumentality
The act provides that property may not be forfeited as an instrumentality under its provisions to the extent that the amount or value of the property is disproportionate to the severity of the offense. The owner of the property has the burden of going forward with the evidence and the burden to prove by a preponderance of the evidence that the amount or value of the property subject to forfeiture is disproportionate to the severity of the offense. Contraband and any proceeds obtained from the offense are not subject to proportionality review under the provision. (R.C. 2981.09(A) and (B).)
In determining the
severity of the offense for purposes of forfeiture of an instrumentality, the
court must consider all relevant factors including, but not limited to, the
following (R.C. 2981.09(C)):
(1) The seriousness of the offense and its impact on the community, including the duration of the activity and the harm caused or intended by the person whose property is subject to forfeiture;
(2) The extent to which the person whose property is subject to forfeiture participated in the offense;
(3) Whether the offense was completed or attempted.
In determining the value of the property that is an instrumentality and that is subject to forfeiture, the court must consider relevant factors including, but not limited to, the following (R.C. 2981.09(D)):
(1) The fair market value of the property;
(2) The value of the property to the person whose property is subject to forfeiture, including hardship to the person or to "innocent persons"[3] if the property were forfeited.
Protection of forfeitable property
Provisional title to the state or political subdivision
The act provides that the state or political subdivision acquires provisional title to property subject to forfeiture under the act's R.C. Chapter 2981. upon a person's commission of an offense giving rise to forfeiture, subject to third party claims and a final adjudication of criminal or civil forfeiture under the act's provisions, described below in "Criminal forfeiture" and "Civil forfeiture." Provisional title authorizes the state or political subdivision to seize and hold the property, and to act to protect the property, before any forfeiture proceeding under R.C. Chapter 2981. Title to the property vests with the state or political subdivision when the trier of fact renders a final forfeiture verdict or order under the act's provisions, but that title is subject to third party claims adjudicated under the act's provisions regarding final forfeiture verdicts and orders. (R.C. 2981.03(A)(1).)
In any criminal or civil forfeiture action under the act, if a property owner or third party claims lawful interest in the subject property alleged to be proceeds, the state or political subdivision has provisional title and a right to hold property if it proves both of the following by a preponderance of the evidence (R.C. 2981.03(A)(5)(a)):
(1) The interest in the property was acquired by the alleged offender or delinquent child during the commission of the offense or within a reasonable time after that period.
(2) There is no likely source for the interest in the property other than as proceeds derived from or acquired through the commission of the offense.
The act provides that the alleged offender or delinquent child has the burden to prove the amount of any direct costs lawfully incurred (R.C. 2981.03(A)(5)(b)).
Seizure of forfeitable property
Under the act, a law enforcement officer may seize property that the officer has probable cause to believe is property subject to forfeiture. If a law enforcement officer seizes property that is titled or registered under law, the officer or the law enforcement agency that employs the officer must notify the property owner of the seizure. The agency must give notice to the property owner at the owner's last known address as soon as practical after the seizure and may give the notice by certified mail or orally by any means, including telephone. If the officer or agency is unable to provide the notice despite reasonable, good faith efforts, those efforts constitute fulfillment of the notice requirement. (R.C. 2981.03(A)(2).)
Court order to preserve the reachability of the property
The act provides that, upon application by the prosecutor who prosecutes or brings an action that allows forfeiture under R.C. Chapter 2981. (see "Criminal forfeiture" and "Civil forfeiture," below), the court in which the action is prosecuted or filed may issue an order taking any reasonable action necessary to preserve the reachability of the property including, but not limited to, a restraining order or injunction, an order requiring execution of a satisfactory bond or insurance policy, an order to inspect, photograph, or inventory the property, an order placing a lien or lis pendens against the property, or an order appointing a receiver or trustee. The court may issue an order of this nature at any of the following times (R.C. 2981.03(B)(1)):
(1) Upon the filing of a complaint, indictment, or information alleging the property to be forfeitable property;
(2) Prior to the filing of a complaint, an indictment, or information alleging the property to be forfeitable property, if, after giving notice to all persons known to have an interest in the property and giving those persons an opportunity to be heard, the court determines that all of the following apply:
(a) There is a substantial probability the state or political subdivision will prevail on the forfeiture issue.
(b) There is a substantial probability that failure to enter the order will result in the property being destroyed, being removed from the court's jurisdiction, or otherwise being made unavailable for forfeiture.
(c) The need to preserve the availability of the property outweighs the hardship on the person against whom the order is to be entered.
(3) As a condition of releasing the property based on a determination of substantial hardship, as described below in "Conditional release."
Except as described in the next paragraph, if the court issues an order to preserve the reachability of the property prior to the filing of a complaint, an indictment, or information alleging the property to be forfeitable property, as described in (2), above, the court must make the order effective for not more than 90 days, but the court may extend the order if the prosecutor demonstrates that the need to preserve the reachability of the property still exists or for other good cause shown and must extend the order if an indictment, information, or a complaint is filed alleging that the property is subject to forfeiture (R.C. 2981.03(B)(2)).
A court may issue an order under this provision to preserve the reachability of property without giving notice or a hearing to a person known to have an interest in the property if the prosecutor demonstrates that the property is subject to forfeiture and that giving notice and a hearing will jeopardize the availability of the property for forfeiture. Notwithstanding the 90-day limit described in the preceding paragraph, the court must make this type of an order effective for not more than ten days, but the court may extend the order if the prosecutor again demonstrates that the property is subject to forfeiture and that a hearing will jeopardize the availability of the property or for other good cause shown or if the person subject to the order consents to a longer period. If a party requests a hearing on the order, the court must hold the hearing at the earliest possible time before the order expires. (R.C. 2981.03(B)(3).)
At any hearing under this provision to preserve the reachability of property, the court may receive and consider evidence and information that is inadmissible under the Rules of Evidence. The court must cause the hearing to be recorded and a transcript to be made. If property is to be seized as a result of the hearing, the recording and transcript are not public records for purposes of the state's Public Records Law (R.C. 149.43, not in the act) until the property is seized. The act specifies that the Revised Code section containing this provision does not authorize making available for inspection any confidential law enforcement investigatory record or trial preparation record, as defined in the state's Public Records Law. (R.C. 2901.03(B)(4).)
This statutory mechanism to preserve the reachability of property replaces the former provisions in the Corrupt Activity Forfeiture Law and the Medicaid Fraud Forfeiture Law (R.C. 2923.33 and 2933.72, repealed by the act in Section 2); under the act, it applies to all property forfeitable under the act.
Rights of parties with an interest in forfeitable property
Rights applicable in either a civil or criminal proceeding
Unlawful seizure. Under the act, a person aggrieved by an alleged unlawful seizure of property may seek relief from the seizure by filing a motion in the appropriate court that shows the person's interest in the property, states why the seizure was unlawful, and requests the property's return. If the motion is filed before an indictment, information, or a complaint seeking forfeiture of the property is filed, the court must promptly schedule a hearing on the motion. At the hearing, the person must demonstrate by a preponderance of the evidence that the seizure was unlawful and that the person is entitled to the property. If the motion is filed by a defendant after an indictment, information, or a complaint seeking forfeiture of the property is filed, the court must treat the motion as a motion to suppress evidence. If the motion is filed by a third party after an indictment, information, or complaint seeking forfeiture of the property has been filed, the court must treat the motion as a petition of a person with an alleged interest in the subject property, as discussed below in "Rights of parties with an interest in the forfeited property." (R.C. 2981.03(A)(4), simplifying former R.C. 2923.47 and 2925.45 from the Criminal Gang Activity Forfeiture Law and the Felony Drug Abuse Offense Forfeiture Law, repealed by the act in Section 2.)
Conditional release. A person with an interest in property that is subject to forfeiture and that is seized under the act's R.C. Chapter 2981. may seek conditional release of the property by requesting possession from the person with custody of the property. The request must demonstrate how the person meets the following requirements (R.C. 2981.03(D)(1) and (3)):
(1) A possessory interest in the property;
(2) Sufficient ties to the community to provide assurance that the property will be available at the time of trial;
(3) That failure to conditionally release the property will cause a "substantial hardship" (see below) to the claimant.
If the person with custody of the property does not release it within 15 days after a person makes a request for conditional release, or within 7 days after a person makes the request if the property was seized as a mobile instrumentality or if the request is to copy records, the person who made the request may file a petition for conditional release with the court in which the complaint, indictment, or information is filed or, if no complaint, indictment, or information is filed, the court that issued the seizure warrant for the property. The petition must demonstrate how the person meets the requirements specified in clauses (1), (2), and (3) of the preceding paragraph and the steps the person has taken to secure release of the property from the official. Unless extended for good cause shown, the petition must be filed either within 30 days of the filing of a complaint, an indictment, or information in the forfeiture action or, if no complaint, indictment, or information is filed, within 30 days of the issuance of the seizure warrant of the property.
Except when there is probable cause that the property is contraband, property that must be held for a reasonable time as evidence related to an offense, or property that is likely to be used in additional offenses, or except when the property is property alleged to be proceeds for which the state or political subdivision has met the burden described above in "Provisional title to the state or political subdivision," a court may conditionally release property subject to forfeiture to a person who demonstrates all of the requirements described in clauses (1), (2), and (3) of the second preceding paragraph.
In determining whether a "substantial hardship" exists, the court must weigh the claimant's likely hardship from the state's or political subdivision's continued possession of the property against the risk that the property will be destroyed, damaged, lost, concealed, or transferred if returned to the claimant. The court must consider in favor of release the possibility that withholding the property would prevent a legitimate business from functioning, prevent the claimant or an innocent person from maintaining employment, or leave the claimant or an innocent person homeless.
If the court finds that the person meets the three criteria specified above in the introductory paragraphs, the court must order the property's conditional return to the person pending completion of the forfeiture action. In issuing this order, the court must notify the person of the prohibitions against interfering with or diminishing property, as described below in "Interference with or diminishing forfeitable property," and may make any order necessary to ensure that the value of the property is maintained.
If personal, business, or governmental records are seized, including those contained in computer files, a person may petition the court for a prompt opportunity to copy, at the person's expense, any records that are not contraband. The court may grant the petition if the person demonstrates a possessory interest in the property and that failure to conditionally release the property will cause a substantial hardship to the claimant. The court must order a competent person to supervise the copying.
If the state or political subdivision shows that the claimant's petition is frivolous, the court must deny the petition. Otherwise, the state or political subdivision may respond to the petition by submitting evidence ex parte to avoid disclosing any matter that may adversely affect an ongoing criminal investigation or pending trial.
The court must decide on the petition not more than 30 days after it is filed. If the property seized is alleged to be a mobile instrumentality, the court must decide on the petition as soon as practicable within the 30-day period. If personal, business, or governmental records were seized and a person files a petition to copy the records, the court must decide on the petition as soon as practicable. In any case, the court may extend the time for deciding on the petition by consent of the parties or for good cause shown. (R.C. 2981.03(D).)
Rights of a financial institution. The act states that nothing in its R.C. 2981.03 (that section contains the procedures discussed above in "Protection of forfeitable property" and "Rights of parties with an interest in forfeitable property") precludes a financial institution that has or purports to have a security interest in or lien on forfeitable property from filing an action in connection with the property, prior to its disposition under the act's R.C. Chapter 2981., to obtain possession of the property in order to foreclose or otherwise enforce the security interest or lien (R.C. 2981.03(E)). However, if a financial institution commences a civil action or takes any other appropriate legal action to sell the property prior to its seizure or prior to its disposition under the act's R.C. Chapter 2981., if the person who is responsible for conducting the sale has actual knowledge of the commencement of either a criminal or civil forfeiture action under the act's provisions, and if the property is sold, then the person must dispose of the proceeds of the sale in the following order (R.C. 2981.03(E)):
(1) First, to the payment of the costs of the sale, excluding any associated attorney's fees, and to the payment of the costs incurred by law enforcement agencies and financial institutions in connection with the seizure, storage, and maintenance of, and provision of security for, the property;
(2) Second, in the order of priority of the security interests and liens, to the payment of valid security interests and liens pertaining to the property that, at the time at which the state or political subdivision gains provisional title, are held by known secured parties and lienholders;
(3) Third, to the court that has or would have jurisdiction in a criminal or civil forfeiture case or proceeding for disposition under the act's R.C. Chapter 2981.
Rights specific in a civil forfeiture case
In a civil forfeiture case under the act's R.C. Chapter 2981. in which the state or political subdivision seeks to seize real property, the property owner may request a hearing before the seizure, and in the hearing the state or political subdivision must show probable cause that the real property is subject to forfeiture. If a timely petition for pretrial hardship release is not filed, or if a petition is filed but not granted, the person also may file a claim for the release of the property under the Rules of Civil Procedure. (R.C. 2981.03(A)(3) and 2981.05(C).)
Criminal forfeiture v. civil forfeiture
Of the forfeiture laws contained in prior law, only the Criminal Gang Activity Forfeiture Law and the Felony Drug Abuse Offense Forfeiture Law provisions explicitly differentiated between criminal and civil forfeiture (R.C. 2923.44, 2923.45, 2925.42, and 2925.43).[4] Medicaid Fraud Forfeiture Law had no criminal forfeiture, only civil (R.C. 2933.73 repealed by the act in Section 2). The act creates distinct criminal and civil forfeiture procedures (discussed below in "Criminal forfeiture" and "Civil forfeiture") that are applicable to all criminal offenses, except that they do not apply to or limit forfeitures under the Motor Vehicle Law, including forfeitures relating to R.C. 2903.06 and 2903.08 (the vehicular homicide and assault offenses). To the extent they do not conflict with the act's R.C. Chapter 2981., the penalties and procedures under R.C. Chapter 2923., 2925., and 2933. remain in effect. (R.C. 2981.01(C) and 2981.02(C).)
Under the act, a prosecutor may file a criminal forfeiture action, a civil forfeiture action, or both. If property is seized under the provisions described above in "Protection of forfeitable property" and a criminal forfeiture has not begun under the act's provisions, the prosecutor of the county in which the seizure occurred must commence a civil action to forfeit that property under the act's provisions. (R.C. 2981.03(F).)
A prosecutor may file an appropriate charging instrument to seek a criminal forfeiture after a civil forfeiture action begins. Filing a charging instrument for an offense that is also the basis of a civil forfeiture action stays the civil action. (R.C. 2981.03(F), carrying over a similar provision in current Felony Drug Abuse Offense Forfeiture Law at R.C. 2925.43(D)(1), repealed by the act.)
Also, generally, any replevin, conversion, or other civil action brought concerning property subject to a criminal or civil forfeiture action under the act's R.C. Chapter 2981. must be stayed until the forfeiture action is resolved (R.C. 2981.03(C)).
Criminal forfeiture
The act provides that, in a criminal forfeiture case under its provisions, the defendant has the right to trial by jury (R.C. 2981.08(A)).
Property that may be forfeited
Under the act,
forfeitable property may be criminally forfeited under its provisions only if
the complaint, indictment, or information charging the offense or municipal
violation, or the complaint charging the delinquent act, contains a specification
that sets forth all of the following to the extent it is reasonably known at
the time of the filing (R.C. 2981.04(A)(1) and 2941.1417):
(1) The nature and extent of the alleged offender's or delinquent child's interest in the property;
(2) A description of the property;
(3) If the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense.
This specification must be stated at the end of the body of the indictment, count, or information, must be in substantially the form specified in statute, and may be used in a delinquent child specification. Under the act, the trier of fact determines whether the property is subject to forfeiture. (R.C. 2941.1417.)
If any property is not reasonably foreseen to be subject to forfeiture at the time of filing the indictment, information, or complaint, the trier of fact still may return a verdict of forfeiture concerning that property in the hearing described below in "Forfeiture hearing" if the prosecutor, upon discovering the property to be subject to forfeiture, gave prompt notice of this fact to the alleged offender or delinquent child under Criminal Rule 7(E) or Juvenile Rule 10(B). (R.C. 2981.04(A)(2).)
These provisions regarding property that may be forfeited are similar to provisions in the prior Corrupt Activity Forfeiture Law, Felony Drug Abuse Offense Forfeiture Law, and Medicaid Fraud Forfeiture Law at R.C. 2923.44(B)(1), 2925.42(B)(1), and 2933.73(B), all of which are repealed by the act (R.C. 2923.44 and 2925.42, and repeal of R.C. 2933.73 in Section 2).
Forfeiture hearing
The act specifies that, if a person pleads guilty to or is convicted of an offense or is adjudicated a delinquent child for committing a delinquent act and the complaint, indictment, or information charging the offense or act contains a specification covering forfeitable property, the trier of fact must determine whether the person's property is to be forfeited. If the state or political subdivision proves by a preponderance of the evidence that the property is in whole or part forfeitable property, after a proportionality review if relevant (see "Proportionality review regarding possible forfeiture of instrumentality," above), the trier of fact must return a verdict of forfeiture that specifically describes the extent of the property subject to forfeiture. If the trier of fact is a jury, on the offender's or delinquent child's motion, the court must make the determination of whether the property is to be forfeited. (R.C. 2981.04(B).)
For good cause shown, the court may consider issues of the guilt of the alleged offender or the delinquency of the alleged delinquent child separate from whether property specified as subject to forfeiture should be forfeited (R.C. 2981.04(A)(3)).
If the court enters a verdict of criminal forfeiture, the court imposing sentence or disposition, in addition to any other sentence authorized by R.C. Chapter 2929. (the Criminal Sentencing Law) or any disposition authorized by R.C. Chapter 2152. (the Delinquent Child Law), must order that the offender or delinquent child forfeit to the state or political subdivision the offender's or delinquent child's interest in the property. The property vests with the state or political subdivision subject to the claims of third parties. The court may issue any additional order to affect the forfeiture, including, but not limited to, those orders described below in "Additional court orders applicable in criminal and civil forfeiture proceedings." (R.C. 2981.04(C).)
These criminal forfeiture procedures are generally similar to procedures in the prior Criminal Gang Activity Forfeiture Law and Felony Drug Abuse Offense Forfeiture Law at R.C. 2923.44(B)(3) and (5) and 2925.42(B)(3) and (5), all of which are repealed by the act (repeal of R.C. 2923.44 and 2925.42 in Section 2).
Civil forfeiture
The act allows the prosecutor of the political subdivision in which forfeitable property is located to commence a civil forfeiture action by filing in the court of common pleas of the county in which the property is located a complaint requesting an order that forfeits the property to the state or a political subdivision. A civil action to obtain civil forfeiture may be commenced regardless of whether the adult or juvenile offender has pleaded guilty to, been convicted of, or been adjudicated a delinquent child for the act that is the basis of the order. If the property seized, as discussed above in "Protection of forfeitable property," includes property alleged to be a mobile instrumentality or includes personal, business, or governmental records, the civil forfeiture action must be brought within 30 days of seizure. Otherwise, the action must be brought within 60 days of seizure. In either case, the period within which the action must be brought may be extended by agreement of the parties or by the court for good cause shown. In a civil forfeiture action, the defendant, the state or political subdivision, and third party claimants have the right to trial by jury. (R.C. 2981.03(F), 2981.05(A), and 2981.08(B).)
The act specifies that, prior to or upon the commencement of a civil forfeiture action, the prosecutor must attempt to identify any person with an interest in the property subject to forfeiture by searching appropriate public records and making reasonably diligent inquiries. The prosecutor must give notice of the commencement of the civil action, together with a copy of the complaint, to each person who is reasonably known to have any interest in the property, by certified mail, return receipt requested, or by personal service. The prosecutor must cause a similar notice to be published once each week for two consecutive weeks in a newspaper of general circulation in the county in which the property is located. (R.C. 2981.05(B).)
The act requires the court to issue a civil forfeiture order if it determines that the prosecutor has proved by a preponderance of the evidence that the property is forfeitable property, and, after a proportionality review when relevant (see "Proportionality review regarding possible forfeiture of instrumentality," above), the trier of fact specifically describes the extent of the property to be forfeited. A civil forfeiture order must state that all interest in the property in question of the adult or juvenile who committed the act that is the basis of the order is forfeited to the state or political subdivision and make due provision for the interest in that property of any other person, when appropriate. The court may issue any additional order to affect the forfeiture, including, but not limited to, those orders described below in "Additional court orders applicable in criminal and civil forfeiture proceedings." (R.C. 2981.05(D).)
This civil forfeiture provision consolidates, streamlines, and modifies the civil forfeiture provisions contained in the prior Criminal Gang Activity Forfeiture Law (R.C. 2923.45), the Contraband Forfeiture Law (R.C. 2933.43), the Felony Drug Abuse Offense Forfeiture Law (R.C. 2925.43), and the Medicaid Fraud Forfeiture Law (R.C. 2933.73), all of which are repealed by the act.
Additional court orders applicable in criminal and civil forfeiture proceedings
Seizure order
When a civil or criminal forfeiture order is entered under the act, the court, if necessary, must order an appropriate law enforcement officer to seize the forfeited property on conditions that the court considers proper. Also, if necessary, the court must order the person in possession of the property to deliver the property by a specific date to the law enforcement agency involved in the initial seizure of the property. The court must deliver the order by personal service or certified mail. (R.C. 2981.06(A).)
Forfeiture order regarding unreachable property
The act requires a court that issues a civil or criminal forfeiture order under its provisions to order forfeiture of any other property of the offender up to the value of the unreachable property if any of the following circumstances describe any property subject to the forfeiture order (R.C. 2981.06(D)):
(1) It cannot be located through due diligence.
(2) It has been transferred, sold, 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 or has been commingled with other property and cannot be divided without difficulty or undue injury to innocent persons.
Actions requested by the prosecutor
The act also allows a court that issues a criminal or civil forfeiture order under its provisions, upon the petition of the prosecutor who prosecuted the underlying offense or act or brought the civil forfeiture action, to do any of the following with respect to property that is the subject of the forfeiture order (R.C. 2981.06(B)):
(1) Enter
any appropriate restraining orders or injunctions; require execution of
satisfactory performance bonds; appoint receivers, conservators, appraisers,
accountants, or trustees; or take any other action necessary to safeguard and
maintain the forfeited property;
(2) Authorize the payment of rewards to persons who provide information resulting in forfeiture of the property under the act's R.C. Chapter 2981. from funds provided under the citizen's reward program (see "Deposit of any moneys acquired from a sale" under "Disposal of unclaimed or forfeited property," below);
(3) Authorize the prosecutor to settle claims;
(4) Restore forfeited property to victims and grant petitions for mitigation or remission of forfeiture;
(5) Authorize a stay of the forfeiture order pending appeal or resolution of any claim to the property if requested by a person other than the defendant or a person acting in concert with, or on behalf of, the defendant.
The court, consistent with the Civil Rules and upon application by the prosecutor, may order that the testimony of any witness relating to the forfeited property be taken by deposition and that any designated material that is not privileged be produced at the same time and place as the testimony. The purpose of this order is to facilitate the identification and location of property that is the subject of a forfeiture order and to facilitate the disposition of petitions for remission or mitigation. (R.C. 2981.06(C).)
Rights of parties with an interest in the forfeited property
Rights specific to a criminal forfeiture
After the entry of a criminal forfeiture order under the act's provisions, the prosecutor must attempt to identify any person with an interest in the property subject to forfeiture by searching appropriate public records and making reasonably diligent inquiries. The prosecutor must give notice of the forfeiture that remains subject to the claims of third parties and proposed disposal of the forfeited property to any person known to have an interest in the property. The prosecutor also must publish notice of the forfeiture that remains subject to the claims of third parties and proposed disposal of the forfeited property once each week for two consecutive weeks in a newspaper of general circulation in the county in which the property was seized. (R.C. 2981.04(D).)
Any person, other than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the criminal forfeiture order, who asserts a legal interest in the forfeited property may petition the court that issued the criminal forfeiture order for a hearing to adjudicate the validity of the person's alleged interest in the property. The petition must be filed within 30 days after the final publication of notice or the person's receipt of notice, be signed by the petitioner under the penalties for falsification specified in preexisting R.C. 2921.13 (not in the act), and describe the nature and extent of the petitioner's interest in the property, the time and circumstances of the petitioner's acquisition of that interest, any additional facts supporting the petitioner's claim, and the relief sought. (R.C. 2981.04(E)(1).)
Instead of filing a petition as described in the preceding paragraph, if a person described in that paragraph is a secured party or other lienholder of record that asserts a legal interest in the property, including, but not limited to, a mortgage, security interest, or other type of lien, the person may file an affidavit to establish the validity of the alleged right, title, or interest in the forfeited property. The affidavit must contain averments that the secured party or other lienholder acquired its alleged right, title, or interest in the property in the regular course of its business, for a specified valuable consideration, without actual knowledge of any facts pertaining to the offense that was the basis of the forfeiture order, in good faith, and without the intent to prevent or otherwise impede the state or political subdivision from seizing or obtaining a forfeiture of the property. The person must file the affidavit within 30 days after the earlier of the final publication of notice or the receipt of notice as described in the second preceding paragraph.
Generally, an affidavit filed as described in the preceding paragraph constitutes prima-facie evidence of the validity of the affiant's alleged interest in the property. The affidavit constitutes conclusive evidence of the validity of the affiant's interest in the property, unless the prosecutor files a motion challenging the affidavit within ten days after its filing and unless the prosecutor establishes by a preponderance of the evidence at the hearing described below that the affiant does not possess the alleged interest in the property or that the affiant had actual knowledge of facts pertaining to the offense or delinquent act that was the basis of the forfeiture order.
The act provides that any subsequent purchaser or other transferee of property pursuant to forfeiture under its criminal forfeiture provisions takes the property subject to the continued validity of the interest of the affiant. (R.C. 2981.04(E)(2).)
Upon receipt of a petition or affidavit under the act's provisions described above, the court is required to hold a hearing to determine the validity of the petitioner's interest in the property that is the subject of the criminal forfeiture order or, if the affidavit was challenged, to determine the validity of the affiant's interest in the property. To the extent practicable and consistent with the interests of justice, the court must hold the hearing within 30 days after the filing of the petition or within 30 days after the prosecutor files the motion challenging the affidavit. The court may consolidate the hearing with a hearing on any other petition or affidavit that is filed by an interested party and that relates to the property that is the subject of the forfeiture order.
At the hearing described in the preceding paragraph, the petitioner or affiant may testify, present evidence and witnesses on the petitioner's or affiant's behalf, and cross-examine witnesses for the state or political subdivision. Regarding a petition, the state or political subdivision may present evidence and witnesses in rebuttal and in defense of its claim to the property and may cross-examine witnesses for the petitioner. Regarding an affidavit, the prosecutor may present evidence and witnesses and cross-examine witnesses for the affiant. In addition to the evidence and testimony presented at the hearing, the court also must consider the relevant portions of the record in the criminal or delinquent child case that resulted in the forfeiture order. (R.C. 2981.04(E)(3).)
If the hearing described above involves a petition, the court must amend its forfeiture order if it determines at the hearing that the petitioner has established either of the following by a preponderance of the evidence (R.C. 2981.04(F)(1)):
(1) The petitioner has a legal interest in the property that is subject to the forfeiture order that renders the order completely or partially invalid because the legal interest in the property was vested in the petitioner, rather than the offender or delinquent child whose conviction or plea of guilty or delinquency adjudication is the basis of the order, or was superior to any interest of that offender or delinquent child, at the time of the commission of the offense or delinquent act that is the basis of the order.
(2) The petitioner is a bona fide purchaser for value of the interest in the property that is subject to the forfeiture order and was, at the time of the purchase, reasonably without cause to believe that it was subject to forfeiture.
The court also must amend its forfeiture order to reflect any interest of a secured party or other lienholder of record in the property subject to forfeiture who prevails at a hearing on the petition or affidavit (R.C. 2981.04(F)(2)).
Rights specific to a civil forfeiture
The act provides that a person with an interest in the property subject to civil forfeiture under its provisions may petition the court to release the property, and the court must consider the petition, as described above in "Conditional release" under "Rights of parties with an interest in forfeitable property." If a timely petition for pretrial hardship release is not filed, or if a petition is filed but not granted, the person may file a claim for the release of the property under the Rules of Civil Procedure. The court has responsibility for disposing of any petitions that are timely filed under this provision. (R.C. 2981.05(C).)
No rights for the offender or delinquent child
Under the act, any interest in property not exercisable by, or transferable for value to, the state or political subdivision expires and does not revert to the offender or delinquent child who forfeited the property. The offender or delinquent child is not eligible to purchase the property at a sale under the act's R.C. Chapter 2981. (R.C. 2981.06(F).)
Clear title to the state or a political subdivision
The act provides that, if the court disposes of all petitions or affidavits timely filed by a third party in a civil or criminal forfeiture proceeding under the act's provisions in favor of the state or political subdivision, the state or political subdivision has clear title to the property that is the subject of a civil or criminal forfeiture order, but only to the extent that other parties' lawful interests in the property are not infringed. To the extent that the state or political subdivision has clear title to the property, the state or political subdivision may warrant good title to any subsequent purchaser or other transferee. After this grant of clear title, the prosecutor must direct disposition of the property under the act's R.C. Chapter 2981., making due provisions for the rights of innocent persons. (R.C. 2981.04(G), 2981.05(E), and 2981.06(E).)
Any income accruing to or derived from forfeited property may be used to offset ordinary and necessary expenses related to the property that are required by law or necessary to protect the interest of the state, political subdivision, or third parties (R.C. 2981.06(G)).
Property, forfeited and otherwise, in the custody of a law enforcement agency
In general
The act enacts R.C. 2981.11 (which largely contains provisions of law formerly codified at R.C. 2933.41, repealed by the act in Section 2) to specify that any property that has been lost, abandoned, stolen, seized pursuant to a search warrant, or otherwise lawfully seized or forfeited and that is in the custody of a law enforcement agency must be kept safely by the agency, pending the time that it no longer is needed as evidence or for another lawful purpose and must be disposed of pursuant to the provisions described below in "Disposal of unclaimed or forfeited property" (R.C. 2981.11(A)(1)). However, the act's R.C. Chapter 2981., including the custody provisions of R.C. 2981.11 and the disposition provisions described below, do not apply to any of the following (R.C. 2981.11(A)(2)):
(1) Vehicles subject to forfeiture under the Motor Vehicle Law, except as described below in paragraphs (6) and (7) of "Disposal of property other than excluded property" under "Disposal of unclaimed or forfeited property";
(2) Abandoned junk motor vehicles or other property of negligible value;
(3) Property held by a Department of Rehabilitation and Correction institution that is unclaimed, that does not have an identified owner, that the owner agrees to dispose of, or that is identified by the Department as having little value;
(4) Animals taken, and devices used in unlawfully taking animals, under preexisting R.C. 1531.20, not in the act;
(5) Controlled substances sold by a peace officer in the performance of the officer's official duties under preexisting R.C. 3719.141, not in the act;
(6) Property recovered by a township law enforcement agency under preexisting R.C. 505.105 to 505.109, not in the act;
(7) Property held and disposed of under an ordinance of the municipal corporation or under preexisting R.C. 737.29 to 737.33, not in the act, except that a municipal corporation that has received notice of a citizens' reward program and disposes of property under an ordinance must pay 25% of any moneys acquired from any sale or auction to the citizens' reward program.
Definitions regarding R.C. 2981.11 to 2981.13
Property that has been lost, abandoned, stolen, seized, or forfeited as described above in "In general" and that is not in any of the categories described in paragraphs (1) to (7) of that part of this final analysis is referred to in subsequent parts of this final analysis as "property that is subject to or covered by R.C. 2981.11."
The act defines the following terms for purposes of R.C. 2981.11 to 2981.13 (R.C. 2981.11(D)): (1) "citizens' reward program" has the same meaning as in R.C. 9.92 (included in the act only to make a conforming change), (2) "law enforcement agency" includes correctional institutions, and (3) "township law enforcement agency" means an organized police department of a township, a township police district, a joint township police district, or the office of a township constable.
Internal control policy
Under the act, each
law enforcement agency that has custody of any property that is subject to or
covered by R.C. 2981.11 must adopt and comply with a written internal control
policy that does all of the following (R.C. 2981.11(B)(1)):
(1) Provides for keeping detailed records as to the amount of property acquired by the agency and the date property was acquired;
(2) Provides for keeping detailed records of the disposition of the property. The records must include, but are not limited to, both of the following:
(a) The manner in which it was disposed, the date of disposition, detailed financial records concerning any property sold, and the name of any person who received the property (the record cannot identify or enable identification of the individual officer who seized any item of property);
(b) The general types of expenditures made with amounts that are gained from the sale of the property and that are retained by the agency, including the specific amount expended on each general type of expenditure, except that the policy cannot provide for or permit the identification of any specific expenditure that is made in an ongoing investigation.
(3) Complies with the internal control policy requirements related to a law enforcement trust fund or similar fund described below in "Required reports" under "Disposal of contraband, proceeds, and instrumentalities," if the agency has such a fund.
Cumulative report
The act requires each law enforcement agency that during any calendar year has in its custody any seized or forfeited property that is subject to or covered by R.C. 2981.11, including amounts distributed under R.C. 2981.13 (see "Disposal of contraband, proceeds, and instrumentalities," below) to its law enforcement trust fund or a similar fund created for the State Highway Patrol, Department of Public Safety, or State Board of Pharmacy, to prepare a report covering the calendar year that cumulates all of the information contained in all of the public records kept by the agency pursuant to its internal control policy for that calendar year. The agency must send a copy of the cumulative report to the Attorney General not later than March 1 in the calendar year following the calendar year covered by the report. (R.C. 2981.11(B)(2).)
Not later than April 15 in each calendar year in which cumulative reports are sent to the Attorney General under the provision described in the preceding paragraph, the Attorney General must send to the Senate President and the Speaker of the House of Representatives a written notice that indicates that the Attorney General received reports that cover the previous calendar year, that the reports are open for inspection under the state's Public Records Law (R.C. 149.43, not in the act), and that the Attorney General will provide a copy of any or all of the reports to the President or the Speaker upon request (R.C. 2981.11(B)(4)).
Cumulative reports and internal control policy records are public
The act specifies that the records kept under the internal control policy it requires must be open to public inspection during the agency's regular business hours. Also, it requires the internal control policy and each report received by the Attorney General to be a public record open for inspection under the state's Public Records Law (R.C. 149.43, not in the act). (R.C. 2981.11(B)(3).)
Locating persons entitled to possession of the property
The act requires a law enforcement agency with custody of property that is subject to or covered by R.C. 2981.11 to make a reasonable effort to locate persons entitled to possession of the property, to notify them of when and where it may be claimed, and to return the property to them at the earliest possible time. In the absence of evidence identifying persons entitled to possession, it is sufficient notice to advertise in a newspaper of general circulation in the county and to briefly describe the nature of the property in custody and invite persons to view and establish their right to it. (R.C. 2981.11(C).)
Disposal of unclaimed or forfeited property
Disposal of property other than excluded property
In general. Under the act, any unclaimed or forfeited property in the custody of a law enforcement agency, other than property in any of the categories of excluded property described above in paragraphs (1) to (7) of "In general" under "Property, forfeited and otherwise, in the custody of a law enforcement agency," must be disposed of by order of any court of record with territorial jurisdiction over the political subdivision that employs the law enforcement agency as follows (R.C. 2981.12(A); these provisions are substantially the same as former R.C. 2923.46 and 2933.41 and replace former R.C. 2933.74, all of which are repealed by the act in Section 2):
(1) Drugs
must be disposed of pursuant to existing R.C. 3719.11, which is not in the act
(generally destroyed or delivered to the Department of Health), or placed in
the custody of the U.S. Secretary of the Treasury for disposal or use for
medical or scientific purposes under applicable federal law.
(2) Firearms and dangerous ordnance suitable for police work may be given to a law enforcement agency for that purpose. Firearms suitable for sporting use or as museum pieces or collectors' items may be sold at public auction (see below). The agency must destroy other firearms and dangerous ordnance or send them to the Bureau of Criminal Identification and Investigation for destruction by the Bureau.
(3) Obscene materials must be destroyed.
(4) Beer, intoxicating liquor, or alcohol seized or forfeited under the Liquor Law must be sold by the Division of Liquor Control if the Division determines that it is fit for sale or must be placed in the custody of the Investigations Unit in the Department of Public Safety and be used for training relating to law enforcement activities (see "Deposit of any moneys acquired from a sale," below). The Department, with the assistance of the Division, must adopt rules to provide for the distribution to state or local law enforcement agencies upon their request. Any beer, intoxicating liquor, or alcohol that the Division determines to be unfit for sale must be destroyed.
(5) Money received by an inmate of a correctional institution from an unauthorized source or in an unauthorized manner must be returned to the sender, if known, or deposited in the inmates' industrial and entertainment fund of the institution if the sender is not known (see "Deposit of any moneys acquired from a sale," below).
(6) Any forfeited mobile instrumentality forfeited under the act's R.C. Chapter 2981. may be given to the law enforcement agency that initially seized the mobile instrumentality for use in performing its duties, if the agency wants the mobile instrumentality. The agency takes the mobile instrumentality subject to any security interest or lien on the mobile instrumentality.
(7) Vehicles and vehicle parts forfeited under R.C. 4549.61 to 4549.63 (relating to tampering with vehicle identification numbers and included in the act only to make conforming changes) may be given to a law enforcement agency for use in performing its duties. Those parts may be incorporated into any other official vehicle. Parts that do not bear vehicle identification numbers or derivatives of them may be sold or disposed of as provided by rules of the Director of Public Safety. Parts from which a vehicle identification number or derivative of it has been removed, defaced, covered, altered, or destroyed and that are not suitable for police work or incorporation into an official vehicle must be destroyed and sold as junk or scrap.
(8) Computers, computer networks, computer systems, and computer software suitable for police work may be given to a law enforcement agency for that purpose or disposed of as described in the next paragraph.
All unclaimed or forfeited property that is not described in paragraphs (1) to (8) above or in paragraphs (1) to (7) of "In general" under "Property, forfeited and otherwise, in the custody of a law enforcement agency" may be used by the law enforcement agency in possession of it, with court approval. If the property is not used by the agency, it may be sold without appraisal at a public auction to the highest bidder for cash or disposed of in another manner that the court considers appropriate. (R.C. 2981.12(B).)
If property ordered forfeited as contraband, proceeds, or an instrumentality is to be sold as provided in this part of the final analysis, the prosecutor must cause notice of the proposed sale to be given in accordance with law (R.C. 2981.13(A)).
Deposit of any moneys acquired from a sale. Under the act, with respect to beer, intoxicating liquor, or alcohol that is sold, if any tax imposed under the Liquor Law has not been paid in relation to the beer, intoxicating liquor, or alcohol, any moneys acquired from the sale must first be used to pay the tax. All other money collected by a sale is to be paid into the state treasury. (R.C. 2981.12(A)(4).)
As described above, if money received by an inmate of a correctional institution from an unauthorized source or in an unauthorized manner is not returned to the sender, the money must be deposited in the inmates' industrial and entertainment fund of the institution (R.C. 2981.12(A)(5)).
If property that is sold was in the possession of the law enforcement agency in relation to a delinquent child proceeding in a juvenile court, 10% of any moneys acquired from the sale must be applied to one or more alcohol and drug addiction treatment programs certified by the Department of Alcohol and Drug Addiction Services. A juvenile court cannot specify a program unless the program is in the same county as the court or in a contiguous county. However, if no certified program is located in any of those counties, the juvenile court may specify a certified program anywhere in Ohio. The remaining 90% of the proceeds or cash must be disposed of as provided in the second succeeding paragraph. (R.C. 2981.12(D).)
If a law
enforcement agency is notified by a board of county commissioners that the
board has recognized a citizens' reward program under R.C. 9.92 (included in
the act only to make a conforming change), the agency must pay 25% of any
forfeited proceeds or cash derived from each sale of disposed property to the
citizens' reward program for the exclusive use of paying rewards. The act includes provisions requiring the
giving of notices of that nature. No
part of the funds may be used to pay expenses associated with the program. If a citizens' reward program that operates
in more than one county or in another state in addition to Ohio receives such
funds, the funds may only be used to pay rewards for tips and information to
law enforcement agencies concerning offenses committed in the county from which
the funds were received. The act
specifies that receiving funds under this provision or the act's R.C. 2981.11
does not make the citizens' reward program a governmental unit or public office
for purposes of the state's Public Records Law (R.C. 149.43, not in the
act). (R.C. 2981.12(F).)
If the moneys acquired from a sale are not subject to one of the above disposition provisions, the moneys acquired from the sale must be placed in the General Revenue Fund of the state, or the general fund of the county, the township, or the municipal corporation of which the law enforcement agency involved is an agency (R.C. 2981.12(C)).
No property forfeited under the act's R.C. Chapter 2981. can be used to pay any fine imposed upon a person who is convicted of or pleads guilty to an underlying criminal offense or a different offense arising out of the same facts and circumstances (R.C. 2981.12(G)).
Reports from treatment programs that receive money. The act requires each alcohol and drug addiction treatment program that receives in any calendar year forfeited money under its provisions to file an annual report for that year with the Attorney General and with the court of common pleas and board of county commissioners of the county in which the program is located and of any other county from which the program received forfeited money. The program must file the report on or before March 1 in the calendar year following the calendar year in which the program received the money. The report must include statistics on the number of persons the program served, identify the types of treatment services it provided to them, and include a specific accounting of the purposes for which it used the money so received. No information contained in the report can identify, or enable a person to determine the identity of, any person served by the program. (R.C. 2981.12(D).)
Additionally, each certified alcohol and drug addiction treatment program that receives in any calendar year money as the result of a juvenile forfeiture order[5] under the act must file an annual report for that calendar year with the Attorney General and with the court of common pleas and board of county commissioners of the county in which the program is located and of any other county from which the program received the money. The program must file the report on or before March 1 in the calendar year following the year in which the program received the money. The report must include statistics on the number of persons served with the money, identify the types of treatment services provided, and specifically account for how the money was used. No information in the report can identify or enable a person to determine the identity of anyone served by the program. (R.C. 2981.12(E), relocated from former R.C. 2933.44, which is repealed by the act in Section 2.)
Disposal of contraband, proceeds, and instrumentalities
In general. Generally, the act provides that property ordered forfeited as contraband, proceeds, or instrumentalities under the act's R.C. Chapter 2981. is to be disposed of, used, or sold as described above in "Disposal of property other than excluded property" (R.C. 2981.13(A)). However, the act specifies the following distribution order for the moneys realized from the sale of any forfeited contraband or instrumentality and for forfeited proceeds (R.C. 2981.13(B), which generally follows former R.C. 2933.43(D)(1) and replaces the disposal provisions in former R.C. 2923.35 and 2925.44, all of which are repealed by the act in Section 2):
(1) First,
to pay costs incurred in the seizure, storage, maintenance, security, and sale
of the property and in the forfeiture proceeding;
(2) Second, in a criminal forfeiture case, to satisfy any restitution ordered to the victim of the offense or, in a civil forfeiture case, to satisfy any recovery ordered for the person harmed, unless paid from other assets;
(3) Third, to pay the balance due on any security interest preserved under the act's R.C. Chapter 2981.;
(4) Fourth, the remaining amounts must be applied as follows:
(a) If the forfeiture was ordered by a juvenile court, 10% to one or more certified alcohol and drug addiction treatment programs as described above in "Deposit of any moneys acquired from a sale";
(b) If the forfeiture was ordered in a juvenile court, 90%, and if the forfeiture was ordered in a court other than a juvenile court, 100% to the law enforcement trust fund of the prosecutor and to the following fund supporting the law enforcement agency that substantially conducted the investigation: the law enforcement trust fund of the county sheriff, municipal corporation, township, or park district; the State Highway Patrol Contraband, Forfeiture, and Other Fund; the Department of Public Safety Investigative Unit Contraband, Forfeiture, and Other Fund; the Board of Pharmacy Drug Law Enforcement Fund; the Medicaid Fraud Investigation and Prosecution Fund; or the Treasurer of State for deposit into the Peace Officer Training Commission Fund[6] if any other state law enforcement agency substantially conducted the investigation. In the case of property forfeited for Medicaid fraud, any remaining amount must be used by the Attorney General to investigate and prosecute Medicaid fraud offenses. If the prosecutor declines to accept any of the remaining amounts, the amounts must be applied to the fund of the agency that substantially conducted the investigation.
(c) If more than one law enforcement agency is substantially involved in the seizure of forfeited property, the court ordering the forfeiture must equitably divide the amounts, after calculating any distribution to the law enforcement trust fund of the prosecutor, among the entities that the court determines were substantially involved in the seizure.
Restrictions
on the use of moneys acquired from a sale distributed to the various funds. The act places multiple restrictions
on the use of funds distributed from the sale of contraband, proceeds, and
instrumentalities (relocated from former R.C. 2933.43(D)(1), which is repealed
by the act in Section 2). First, the
act specifies that amounts distributed to any municipal corporation, township,
or park district law enforcement trust fund must be allocated from the fund by
the legislative authority only to the police department of the municipal corporation,
by the board of township trustees only to the township police department,
township police district police force, or office of the constable, and by the
board of park commissioners only to the park district police force or law
enforcement department (R.C. 2981.13(C)(1).)
Second, the act prohibits the allocation of any amounts to a fund created under the act or used by an agency unless the agency has adopted a written internal control policy that addresses the use of moneys received from the appropriate fund. The appropriate fund may be expended only in accordance with that policy and, unless another provision applies, only for the following purposes (R.C. 2981.13(C)(2)(a)):
(1) To pay the costs of protracted or complex investigations or prosecutions;
(2) To provide reasonable technical training or expertise;
(3) To provide matching funds to obtain federal grants to aid law enforcement, in the support of DARE programs, or other programs designed to educate adults or children with respect to the dangers associated with the use of drugs of abuse;
(4) To pay the costs of emergency action taken under preexisting R.C. 3745.13, not in the act, relative to the operation of an illegal methamphetamine laboratory if the forfeited property or money involved was that of a person responsible for the operation of the laboratory;
(5) For other law enforcement purposes that the Superintendent of the State Highway Patrol, Department of Public Safety, prosecutor, county sheriff, legislative authority, board of township trustees, or board of park commissioners determines to be appropriate.
Third, with respect to the Board of Pharmacy Drug Law Enforcement Fund, the Fund may be expended only in accordance with the written internal control policy adopted by the Board and only in accordance with preexisting R.C. 4729.65, except that it also may be expended to pay the costs of emergency action taken under preexisting R.C. 3745.13 relative to the operation of an illegal methamphetamine laboratory if the forfeited property or money involved was that of a person responsible for the operation of the laboratory (R.C. 2981.13(C)(2)(b); R.C. 3745.13 and 4729.65 are included in the act only to make conforming changes).
Fourth, the act prohibits the State Highway Patrol Contraband, Forfeiture, and Other Fund, the Department of Public Safety Investigative Unit Contraband, Forfeiture, and Other Fund, the Board of Pharmacy Drug Law Enforcement Fund, and a law enforcement trust fund from being used to meet the operating costs of the State Highway Patrol, the Investigative Unit of the Department of Public Safety, the State Board of Pharmacy, any political subdivision, or any office of a prosecutor or county sheriff that are unrelated to law enforcement (R.C. 2981.13(C)(2)(c)).
Fifth, the act requires that forfeited moneys paid into the state treasury be deposited into the Peace Officer Training Commission Fund to be used by the Commission only to pay the costs of peace officer training (R.C. 2981.13(C)(2)(d)).
Required
reports. The act requires that
any of the following offices or agencies that receive amounts as described
above during any calendar year from the sale of contraband, proceeds, or
instrumentalities must file a report with the specified entity, not later than
January 31 of the next calendar year, verifying that the moneys were expended
only for the authorized purposes and specifying the amounts expended for each
authorized purpose (R.C. 2981.13(C)(3), relocated from former R.C.
2933.43(D)(1), which is repealed by the act in Section 2):
(1) Any sheriff or prosecutor must file the report with the county auditor.
(2) Any municipal corporation police department must file it with the legislative authority of the municipal corporation.
(3) Any township police department, township police district police force, or office of the constable must file it with the board of township trustees of the township.
(4) Any park district police force or law enforcement department must file it with the board of park commissioners of the park district.
(5) The Superintendent of the State Highway Patrol must file it with the Attorney General.
(6) The Executive Director of the State Board of Pharmacy must file it with the Attorney General, verifying that cash and forfeited proceeds paid into the Board of Pharmacy Drug Law Enforcement Fund were used only in accordance with R.C. 4729.65 (included in the act only to make conforming changes).
(7) The Peace Officer Training Commission must file it with the Attorney General, verifying that cash and forfeited proceeds paid into the Peace Officer Training Commission Fund during the prior calendar year were used by the Commission during the prior calendar year only to pay the costs of peace officer training.
Additionally, the written internal control policy of a county sheriff, prosecutor, municipal corporation police department, township police department, township police district police force, office of the constable, or park district police force or law enforcement department must provide that at least 10% of the first $100,000 of amounts deposited during each calendar year in the agency's law enforcement trust fund, and at least 20% of the amounts exceeding $100,000 that are so deposited, must be used in connection with community preventive education programs. The manner of use is to be determined by the sheriff, prosecutor, department, police force, or office of the constable after receiving and considering advice on appropriate community preventive education programs from the county's board of alcohol, drug addiction, and mental health services, from the county's alcohol and drug addiction services board, or through appropriate community dialogue.
The financial records kept under the internal control policy must specify the amount deposited during each calendar year in the portion of that amount that was used as provided in the preceding paragraph, and the programs in connection with which the portion of that amount was so used. (R.C. 2981.13(D), relocated from former R.C. 2933.43(D)(3), which is repealed by the act in Section 2.)
No effect on the validity of the seizure. The act states that any failure of a law enforcement officer or agency, prosecutor, court, or the Attorney General to comply with the provisions described above regarding disposal of contraband, proceeds, or instrumentalities in relation to any property seized does not affect the validity of the seizure and is not to be considered the basis for suppressing any evidence resulting from the seizure, provided the seizure itself was lawful (R.C. 2981.13(F), relocated from former R.C. 2933.43(G), which the act repeals in Section 2).
Certificate of title
The act provides that upon the sale, under the act's R.C. 2981.12 or 2981.13, of any property that is required by law to be titled or registered, the state must issue an appropriate certificate of title or registration to the purchaser. If the state is vested with title and elects to retain property that is required to be titled or registered under law, the state must issue an appropriate certificate of title or registration. (R.C. 2981.13(E), relocated from former R.C. 2933.43(E), which the act repeals in Section 2.)
Prosecutor's record-keeping duties with respect to a criminal or civil forfeiture
The act requires the prosecutor to maintain an accurate record of each item disposed of pursuant to a criminal or civil forfeiture action under the act's provisions. The record may not identify or enable the identification of the officer who seized the property. The record is a public record open for inspection under the state's Public Records Law (R.C. 149.43, not in the act). (R.C. 2981.03(G).)
Interference with or diminishing forfeitable property
The act creates a
new criminal offense named "interference with or diminishing forfeitable
property." A person commits
"interference with or diminishing forfeitable property" when the
person destroys, damages, removes, or transfers property that is subject to
forfeiture or otherwise takes any action in regard to property that is subject
to forfeiture with purpose to do any of the following (R.C. 2981.07(A)):
(1) Prevent or impair the state's or political subdivision's lawful authority to take the property into its custody or control under the act's R.C. Chapter 2981. or to continue holding the property under its lawful custody or control;
(2) Impair or defeat the court's continuing jurisdiction over the person and property;
(3) Devalue property that the person knows, or has reasonable cause to believe, is subject to forfeiture proceedings under the act's R.C. Chapter 2981.
Generally, "interference with or diminishing forfeitable property" is a misdemeanor of the first degree. However, if the value of the property is $500 or more but less than $5,000, the offense is a felony of the fifth degree, if the value of the property is $5,000 or more but less than $100,000, the offense is a felony of the fourth degree, and if the value of the property is $100,000 or more, the offense is a felony of the third degree. (R.C. 2981.07.)
Federal forfeiture
The act states that
nothing in its R.C. Chapter 2981. precludes the head of a law enforcement
agency that seizes property from seeking forfeiture under federal law. However, if the property is forfeitable
under R.C. Chapter 2981. and federal forfeiture is not sought, the property is
subject only to R.C. Chapter 2981.
It also specifies that any law enforcement agency that receives moneys from a sale of forfeited property under federal law must deposit, use, and account for the amounts, including any interest derived, in accordance with applicable federal law. If the State Highway Patrol or the Investigative Unit of the Department of Public Safety receives federal forfeiture moneys, the appropriate official must deposit all interest or other earnings derived from the investment of the moneys into the Contraband, Forfeiture, and Other Fund of the Highway Patrol or the Department, whichever is appropriate. (R.C. 2981.14, incorporating portions of former R.C. 2933.43(D)(4) and 2923.45(B)(3), repealed by the act.)
Right to property in a civil action brought in a corrupt activity case
Preexisting provisions of the Corrupt Activity Law, unchanged by the act, allows certain persons who are injured or threatened with injury by the offense of "engaging in a pattern of corrupt activity" to institute a civil proceeding in an appropriate court seeking relief from any person whose conduct violated or allegedly violated the offense. If such a plaintiff proves the violation by a preponderance of the evidence, the court, after making due provision for the rights of innocent persons, may grant relief by entering any appropriate orders to ensure that the violation will not continue or be repeated. The orders may include, but are not limited to, orders that (R.C. 2923.34(B) to (D), redesignated by the act as R.C. 2923.34(A) to (C)):
(1) Require the divestiture of the defendant's interest in any enterprise or in any real property;
(2) Impose reasonable restrictions upon the future activities or investments of any defendant in the action, including, but not limited to, restrictions that prohibit the defendant from engaging in the same type of endeavor as the enterprise in which the defendant was engaged in when the offense occurred;
(3) Order the dissolution or reorganization of any enterprise, if the Attorney General intervenes;
(4) Order the suspension or revocation of a license, permit, or prior approval granted to any enterprise by any department or agency of the state, if the Attorney General intervenes;
(5) If the Attorney General intervenes, order the dissolution of a corporation organized under the laws of this state, or the revocation of the authorization of a foreign corporation to conduct business within this state, upon a finding that the board of directors or an agent acting on behalf of the corporation, in conducting the affairs of the corporation, has authorized or engaged in conduct in violation of the offense of engaging in a pattern of corrupt activity, and that, for the prevention of future criminal conduct, the public interest requires the corporation to be dissolved or its license revoked.
The plaintiff also has a cause of action for
triple the actual damages the person sustained (R.C. 2923.34(E), redesignated
by the act as R.C. 2923.34(D)).
Operation of the act
In addition to the orders that may be entered and damages that may be awarded under preexisting law, the act also allows any person who prevails in a civil action brought under the Corrupt Activity Law provisions to have a right to any property, or the proceeds of any property, criminally forfeited to the state, as described above in "Criminal forfeiture," or against which any fine or civil penalty may be imposed. Under the act, the right of any person who prevails in this type of civil action, other than a prosecuting attorney performing official duties under "that section" (apparently, the section pertaining to criminal forfeiture), to forfeited property, property against which fines and civil penalties may be imposed, and the proceeds of that property is superior to any right of the state, a municipal corporation, or a county to the property or the proceeds of the property, if the civil action is brought within 180 days after the entry of a sentence of forfeiture, a fine, or civil penalty. The right is limited to the total value of the treble damages, civil penalties, attorney's fees, and costs awarded to the prevailing party, less any restitution received by the person. (R.C. 2923.34(M)(1).)
If the aggregate amount of claims of persons who have prevailed in a civil action brought under the Corrupt Activity Law provisions against any one defendant is greater than the total value of the treble fines, civil penalties, and forfeited property paid by the person against whom the actions were brought, all of the persons who brought their actions within 180 days after the entry of a sentence or disposition of forfeiture, fine, or the entry of a civil penalty, first receive a pro rata share of the total amount of the fines, civil penalties, and forfeited property. After the persons who brought their actions within the specified 180-day period have satisfied their claims out of the fines, civil penalties, and forfeited property, all other persons who prevailed in civil actions pursuant to the Corrupt Activity Law provisions receive a pro rata share of the total amount of the fines, civil penalties, and forfeited property that remains in the custody of the law enforcement agency or in the corrupt activity investigation and prosecution fund. (R.C. 2923.34(M)(2).)
Effective date
The act states that its provisions described above take effect on July 1, 2007. The act also provides that, if a criminal or civil forfeiture action relating to misconduct under the Criminal Code was or is commenced before July 1, 2007, and is still pending on that date, the court in which the case is pending must, to the extent practical, apply the provisions of the act's R.C. Chapter 2981. in the case. (Section 4.)
Technical and conforming changes
Because the act repeals many provisions of prior law and amends many provisions of preexisting law that dealt with or deal with forfeitures, the following sections of the Revised Code are included in the act to change references to various forfeiture laws: R.C. 9.92, 109.85, 309.08 (in the portion of this section that pertains to funding sources that a prosecuting attorney may use to pay rewards, the act also changes a reference to "fines imposed under R.C. 2929.18(B)(5)" that are paid to the prosecuting attorney to a reference to "fines imposed under R.C. 2929.18(A)" that are so paid), 311.07, 1506.35, 2909.08, 2913.34, 2913.421, 2923.01, 2923.31, 2923.34, 2923.36, 2923.41, 2923.42, 2925.03, 2925.14, 2927.02, 2929.18, 2930.11, 2933.75, 2935.03, 2945.44, 3719.11, 3719.141, 3719.21, 3729.13, 3743.68, 3745.13, 4301.29, 4301.45, 4301.53, 4305.13, 4503.233, 4503.234, 4510.41, 4511.195, 4549.62, 4549.63, 4728.04, 4729.65, 5735.121, 5739.15, 5743.082, and 5743.112.
Also, the act amends many provisions of preexisting law that deal with forfeitures to conform them to the act's forfeiture provisions enacted in its R.C. Chapter 2981. These provisions, many of which are discussed in earlier parts of this final analysis, are: R.C. 2152.20(B), 2923.32, 2923.34(A), 2923.41(G) to (K), 2923.44, and 2925.42.
Summary of repeals
The act repeals the following Revised Code sections (most are discussed in earlier parts of this final analysis):
· R.C. 2923.33 (regarding a motion and order to preserve the reachability of property in a corrupt activity case);
· R.C. 2923.35 (disposition of property forfeited in a corrupt activity case);
· R.C. 2923.45 (property subject to civil forfeiture in a criminal gang activity forfeiture action);
· R.C. 2923.46 (disposition of property in a criminal gang activity forfeiture action);
· R.C. 2923.47 (motion for return of seized property in a criminal gang activity forfeiture action);
· R.C. 2925.41 (definitions applicable in a felony drug abuse offense forfeiture action);
· R.C. 2925.43 (civil felony drug abuse offense forfeiture action);
· R.C. 2925.44 (disposition of property forfeited in a felony drug abuse offense action);
· R.C. 2925.45 (motion alleging seizure was unlawful in a felony drug abuse offense forfeiture action);
· R.C. 2933.41 (disposition of lost, abandoned, stolen, seized, or forfeited property held by law enforcement);
· R.C. 2933.42 (offenses involving contraband);
· R.C. 2933.43 (seizure and forfeiture of contraband);
· R.C. 2933.44 (annual report by an alcohol and drug treatment program receiving money as a result of a juvenile-related forfeiture order);
· R.C. 2933.71 (definitions applicable to a Medicaid fraud forfeiture);
· R.C. 2933.72 (order to preserve the reachability of property in a Medicaid fraud forfeiture action);
· R.C. 2933.73 (Medicaid fraud forfeiture action);
· R.C. 2933.74 (disposal of property and protection of rights in a Medicaid fraud forfeiture action).
HISTORY
|
ACTION |
DATE |
|
|
|
|
Introduced |
05-04-05 |
|
Reported, H. Criminal Justice |
06-16-05 |
|
Passed House (95-4) |
06-21-05 |
|
Reported, S. Judiciary--Criminal Justice |
12-13-06 |
|
Passed Senate (31-2) |
12-19-06 |
|
House concurred in Senate amendments (87-0) |
12-20-06 |
06-hb241-126.doc/jc
[1] The act defines "offense," for purposes of R.C. Chapter
2981., as meaning any act or omission that could be charged as a criminal
offense or a delinquent act, whether or not a formal criminal prosecution or
delinquent child proceeding began at the time the forfeiture is initiated. Except as otherwise specified, an offense
for which property may be forfeited includes any felony and any
misdemeanor. The commission of an
"offense" includes the commission of a delinquent act. (R.C. 2981.01(B)(10).)
The act also defines "contraband,"
"proceeds," and "instrumentality," as described in
subsequent parts of this Final Analysis.
[2] The act defines "property," for purposes of R.C. Chapter
2981., as meaning "property" as defined in R.C. 2901.01 and any
benefit, privilege, claim, position, interest in an enterprise, or right
derived, directly or indirectly, from the offense (R.C. 2981.01(B)(12)).
[3] The act defines "innocent person," for purposes of R.C.
Chapter 2981., as including any bona fide purchaser of property that is subject
to forfeiture, including any person who establishes a valid claim to or
interest in the property in accordance with R.C. 2923.04, and any victim of an
alleged offense (R.C. 2981.01(B)(5)).
[4] The provisions of R.C. 2925.42 that dealt with criminal forfeiture are repealed by the act, but the provisions in R.C. 2923.44 and those sections that allowed a court to impose a fine of not more than twice the gross profits or other proceeds derived from profits or other proceeds from the felony drug abuse offense or act are retained by the act without change (R.C. 2925.42(A), (B), and (C)). R.C. 2923.45 and 2925.43 are repealed by the act in Section 2.
[5] "Juvenile-related forfeiture order" means any forfeiture order issued by a juvenile court under the act's R.C. 2981.04 or 2981.05 and any disposal of property ordered by a court under the act's R.C. 2981.11 regarding property that was in the possession of a law enforcement agency in relation to a delinquent child proceeding in a juvenile court (R.C. 2981.12(E)).
[6] With the exception of the Board of Pharmacy Drug Law Enforcement Fund created by preexisting R.C. 4729.65 (included in the act only to make conforming changes), each of these funds is created by, or pursuant to a mandate contained in, 2933.43(D)(1)(c)(ii), which the act repeals in Section 2. The act relocates the former R.C. 2933.431(D)(1)(c)(ii) provisions to 2981.13(C)(1).