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House Bill 3159

Florida House of Representatives - 1998 HB 3159 By Representative Crow 1 A bill to be entitled 2 An act relating to domestic violence; amending 3 s. 741.31, F.S., relating to violation of 4 injunction for protection against domestic 5 violence or of specified foreign protection 6 order; providing for court revocation for a 7 specified period of the driver's license of a 8 person who has used a motor vehicle in the 9 course of violating the injunction or order; 10 providing for forfeiture as contraband of such 11 motor vehicle; providing for vehicle booting or 12 immobilization for a specified period; 13 providing for forfeiture of personal property 14 used in the course of the violation; amending 15 s. 784.047, F.S., relating to penalties for 16 violating protective injunction against repeat 17 violence or specified foreign protection order; 18 providing for court revocation for a specified 19 period of the driver's license of a person who 20 has used a motor vehicle in the course of 21 violating the injunction or order; providing 22 for forfeiture as contraband of such motor 23 vehicle; providing for booting or 24 immobilization of the vehicle for a specified 25 period; providing for forfeiture of personal 26 property used in the course of the violation; 27 amending s. 784.048, F.S., relating to stalking 28 and aggravated stalking offenses; providing for 29 court revocation for a specified period of the 30 driver's license of a person who has used a 31 motor vehicle in the course of committing 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 stalking or aggravated stalking; providing for 2 forfeiture as contraband of such motor vehicle; 3 providing for booting or immobilization of the 4 vehicle for a specified period; providing for 5 forfeiture of personal property used in the 6 course of committing the stalking or aggravated 7 stalking; amending s. 932.701, F.S., relating 8 to definitions with respect to the Florida 9 Contraband Forfeiture Act; redefining the term 10 "contraband article," to conform to changes 11 made by the act; reenacting s. 932.703, F.S., 12 relating to forfeiture of contraband articles, 13 to incorporate the amendment to s. 932.701, 14 F.S., in references; providing an effective 15 date. 16 17 Be It Enacted by the Legislature of the State of Florida: 18 19 Section 1. Subsection (4) of section 741.31, Florida 20 Statutes, is amended to read: 21 741.31 Violation of an injunction for protection 22 against domestic violence.-- 23 (4) A person who willfully violates an injunction for 24 protection against domestic violence issued pursuant to s. 25 741.30, or a foreign protection order accorded full faith and 26 credit pursuant to s. 741.315, by: 27 (a) Refusing to vacate the dwelling that the parties 28 share; 29 (b) Going to the petitioner's residence, school, place 30 of employment, or a specified place frequented regularly by 31 the petitioner and any named family or household member; 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 (c) Committing an act of domestic violence against the 2 petitioner; 3 (d) Committing any other violation of the injunction 4 through an intentional unlawful threat, word, or act to do 5 violence to the petitioner; or 6 (e) Telephoning, contacting, or otherwise 7 communicating with the petitioner directly or indirectly, 8 unless the injunction specifically allows indirect contact 9 through a third party 10 11 commits is guilty of a misdemeanor of the first degree, 12 punishable as provided in s. 775.082 or s. 775.083. If during 13 the course of committing an offense in violation of this 14 section a person is found by the court or a jury to have used 15 a motor vehicle, the court shall revoke the offender's 16 driver's license for 1 year. Upon a finding by the court that 17 the defendant committed an offense in violation of this 18 section and used any personal property, including, but not 19 limited to, any vessel, aircraft, item, object, tool, 20 substance, device, weapon, machine, vehicle of any kind, 21 money, securities, books, records, research, negotiable 22 instruments, or currency during the course of the violation, 23 such property may be forfeited pursuant to ss. 24 932.701-932.707. In lieu of forfeiture, the court may order 25 that the motor vehicle be booted or immobilized for a 30-day 26 period. 27 (5) Whether or not there is a criminal prosecution 28 under subsection (4), the court shall order the respondent to 29 attend a batterers' intervention program if it finds a willful 30 violation of a domestic violence injunction, unless the court 31 makes written factual findings in its judgment or order which 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 are based on substantial evidence, stating why a batterers' 2 intervention program would be inappropriate. 3 Section 2. Section 784.047, Florida Statutes, is 4 amended to read: 5 784.047 Penalties for violating protective injunction 6 against repeat violators.--A person who willfully violates an 7 injunction for protection against repeat violence, issued 8 pursuant to s. 784.046, or a foreign protection order accorded 9 full faith and credit pursuant to s. 741.315 by: 10 (1) Refusing to vacate the dwelling that the parties 11 share; 12 (2) Going to the petitioner's residence, school, place 13 of employment, or a specified place frequented regularly by 14 the petitioner and any named family or household member; 15 (3) Committing an act of repeat violence against the 16 petitioner; 17 (4) Committing any other violation of the injunction 18 through an intentional unlawful threat, word, or act to do 19 violence to the petitioner; or 20 (5) Telephoning, contacting, or otherwise 21 communicating with the petitioner directly or indirectly, 22 unless the injunction specifically allows indirect contact 23 through a third party; 24 25 commits a misdemeanor of the first degree, punishable as 26 provided in s. 775.082 or s. 775.083. If during the course of 27 committing an offense in violation of this section a person is 28 found by the court or a jury to have used a motor vehicle, the 29 court shall revoke the offender's driver's license for 1 year. 30 Upon a finding by the court that the defendant committed an 31 offense in violation of this section and used any personal 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 property, including, but not limited to, any vessel, aircraft, 2 item, object, tool, substance, device, weapon, machine, 3 vehicle of any kind, money, securities, books, records, 4 research, negotiable instruments, or currency, during the 5 course of the violation, such property may be forfeited 6 pursuant to ss. 932.701-932.707. In lieu of forfeiture, the 7 court may order that the motor vehicle be booted or 8 immobilized for a 30-day period. 9 Section 3. Section 784.048, Florida Statutes, is 10 amended to read: 11 784.048 Stalking; definitions; penalties.-- 12 (1) As used in this section, the term: 13 (a) "Harass" means to engage in a course of conduct 14 directed at a specific person that causes substantial 15 emotional distress in such person and serves no legitimate 16 purpose. 17 (b) "Course of conduct" means a pattern of conduct 18 composed of a series of acts over a period of time, however 19 short, evidencing a continuity of purpose. Constitutionally 20 protected activity is not included within the meaning of 21 "course of conduct." Such constitutionally protected activity 22 includes picketing or other organized protests. 23 (c) "Credible threat" means a threat made with the 24 intent to cause the person who is the target of the threat to 25 reasonably fear for his or her safety. The threat must be 26 against the life of, or a threat to cause bodily injury to, a 27 person. 28 (2) Any person who willfully, maliciously, and 29 repeatedly follows or harasses another person commits the 30 offense of stalking, a misdemeanor of the first degree, 31 punishable as provided in s. 775.082 or s. 775.083. 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 (3) Any person who willfully, maliciously, and 2 repeatedly follows or harasses another person, and makes a 3 credible threat with the intent to place that person in 4 reasonable fear of death or bodily injury, commits the offense 5 of aggravated stalking, a felony of the third degree, 6 punishable as provided in s. 775.082, s. 775.083, or s. 7 775.084. 8 (4) Any person who, after an injunction for protection 9 against repeat violence pursuant to s. 784.046, or an 10 injunction for protection against domestic violence pursuant 11 to s. 741.30, or after any other court-imposed prohibition of 12 conduct toward the subject person or that person's property, 13 knowingly, willfully, maliciously, and repeatedly follows or 14 harasses another person commits the offense of aggravated 15 stalking, a felony of the third degree, punishable as provided 16 in s. 775.082, s. 775.083, or s. 775.084. 17 (5) Any person who willfully, maliciously, and 18 repeatedly follows or harasses a minor under 16 years of age 19 commits the offense of aggravated stalking, a felony of the 20 third degree, punishable as provided in s. 775.082, s. 21 775.083, or s. 775.084. 22 (6) If during the course of committing an offense in 23 violation of this section a person is found by the court or a 24 jury to have used a motor vehicle, the court shall revoke the 25 offender's driver's license for 1 year. Upon a finding by the 26 court that the defendant committed an offense in violation of 27 this section and used any personal property, including, but 28 not limited to, any vessel, aircraft, item, object, tool, 29 substance, device, weapon, machine, vehicle of any kind, 30 money, securities, books, records, research, negotiable 31 instruments, or currency, during the course of the violation, 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 such property may be forfeited pursuant to ss. 2 932.701-932.707. In lieu of forfeiture, the court may order 3 that the motor vehicle be booted or immobilized for a 30-day 4 period. 5 (7)(6) Any law enforcement officer may arrest, without 6 a warrant, any person he or she has probable cause to believe 7 has violated the provisions of this section. 8 Section 4. Paragraph (a) of subsection (2) of section 9 932.701, Florida Statutes, is amended to read: 10 932.701 Short title; definitions.-- 11 (2) As used in the Florida Contraband Forfeiture Act: 12 (a) "Contraband article" means: 13 1. Any controlled substance as defined in chapter 893 14 or any substance, device, paraphernalia, or currency or other 15 means of exchange that was used, was attempted to be used, or 16 was intended to be used in violation of any provision of 17 chapter 893, if the totality of the facts presented by the 18 state is clearly sufficient to meet the state's burden of 19 establishing probable cause to believe that a nexus exists 20 between the article seized and the narcotics activity, whether 21 or not the use of the contraband article can be traced to a 22 specific narcotics transaction. 23 2. Any gambling paraphernalia, lottery tickets, money, 24 currency, or other means of exchange which was used, was 25 attempted, or intended to be used in violation of the gambling 26 laws of the state. 27 3. Any equipment, liquid or solid, which was being 28 used, is being used, was attempted to be used, or intended to 29 be used in violation of the beverage or tobacco laws of the 30 state. 31 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 4. Any motor fuel upon which the motor fuel tax has 2 not been paid as required by law. 3 5. Any personal property, including, but not limited 4 to, any vessel, aircraft, item, object, tool, substance, 5 device, weapon, machine, vehicle of any kind, money, 6 securities, books, records, research, negotiable instruments, 7 or currency, which was used or was attempted to be used as an 8 instrumentality in the commission of, or in aiding or abetting 9 in the commission of, any felony, whether or not comprising an 10 element of the felony, or which is acquired by proceeds 11 obtained as a result of a violation of the Florida Contraband 12 Forfeiture Act. 13 6. Any real property, including any right, title, 14 leasehold, or other interest in the whole of any lot or tract 15 of land, which was used, is being used, or was attempted to be 16 used as an instrumentality in the commission of, or in aiding 17 or abetting in the commission of, any felony, or which is 18 acquired by proceeds obtained as a result of a violation of 19 the Florida Contraband Forfeiture Act. 20 7. Any personal property, including, but not limited 21 to, equipment, money, securities, books, records, research, 22 negotiable instruments, currency, or any vessel, aircraft, 23 item, object, tool, substance, device, weapon, machine, or 24 vehicle of any kind in the possession of or belonging to any 25 person who takes aquaculture products in violation of s. 26 812.014(2)(c). 27 8. Any personal property, including, but not limited 28 to, any vessel, aircraft, item, object, tool, substance, 29 device, weapon, machine, vehicle of any kind, money, 30 securities, books, records, research, negotiable instruments, 31 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 or currency, used during the course of committing an offense 2 in violation of s. 741.31(4), s. 784.047, or s. 784.048. 3 Section 5. For the purpose of incorporating the 4 amendment to s. 932.701, Florida Statutes, in references 5 thereto, section 932.703, Florida Statutes, is reenacted to 6 read: 7 932.703 Forfeiture of contraband article; 8 exceptions.-- 9 (1)(a) Any contraband article, vessel, motor vehicle, 10 aircraft, other personal property, or real property used in 11 violation of any provision of the Florida Contraband 12 Forfeiture Act, or in, upon, or by means of which any 13 violation of the Florida Contraband Forfeiture Act has taken 14 or is taking place, may be seized and shall be forfeited 15 subject to the provisions of the Florida Contraband Forfeiture 16 Act. 17 (b) Notwithstanding any other provision of the Florida 18 Contraband Forfeiture Act, except the provisions of paragraph 19 (a), contraband articles set forth in s. 932.701(2)(a)7. used 20 in violation of any provision of the Florida Contraband 21 Forfeiture Act, or in, upon, or by means of which any 22 violation of the Florida Contraband Forfeiture Act has taken 23 or is taking place, shall be seized and shall be forfeited 24 subject to the provisions of the Florida Contraband Forfeiture 25 Act. 26 (c) All rights to, interest in, and title to 27 contraband articles used in violation of s. 932.702 shall 28 immediately vest in the seizing law enforcement agency upon 29 seizure. 30 (d) The seizing agency may not use the seized property 31 for any purpose until the rights to, interest in, and title to 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 the seized property are perfected in accordance with the 2 Florida Contraband Forfeiture Act. This section does not 3 prohibit use or operation necessary for reasonable maintenance 4 of seized property. Reasonable efforts shall be made to 5 maintain seized property in such a manner as to minimize loss 6 of value. 7 (2)(a) Personal property may be seized at the time of 8 the violation or subsequent to the violation, if the person 9 entitled to notice is notified at the time of the seizure or 10 by certified mail, return receipt requested, that there is a 11 right to an adversarial preliminary hearing after the seizure 12 to determine whether probable cause exists to believe that 13 such property has been or is being used in violation of the 14 Florida Contraband Forfeiture Act. Seizing agencies shall make 15 a diligent effort to notify the person entitled to notice of 16 the seizure. Notice provided by certified mail must be mailed 17 within 5 working days after the seizure and must state that a 18 person entitled to notice may request an adversarial 19 preliminary hearing within 15 days after receiving such 20 notice. When a postseizure, adversarial preliminary hearing 21 as provided in this section is desired, a request must be made 22 in writing by certified mail, return receipt requested, to the 23 seizing agency. The seizing agency shall set and notice the 24 hearing, which must be held within 10 days after the request 25 is received or as soon as practicable thereafter. 26 (b) Real property may not be seized or restrained, 27 other than by lis pendens, subsequent to a violation of the 28 Florida Contraband Forfeiture Act until the persons entitled 29 to notice are afforded the opportunity to attend the 30 preseizure adversarial preliminary hearing. A lis pendens may 31 be obtained by any method authorized by law. Notice of the 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 adversarial preliminary hearing shall be by certified mail, 2 return receipt requested. The purpose of the adversarial 3 preliminary hearing is to determine whether probable cause 4 exists to believe that such property has been used in 5 violation of the Florida Contraband Forfeiture Act. The 6 seizing agency shall make a diligent effort to notify any 7 person entitled to notice of the seizure. The preseizure 8 adversarial preliminary hearing provided herein shall be held 9 within 10 days of the filing of the lis pendens or as soon as 10 practicable. 11 (c) When an adversarial preliminary hearing is held, 12 the court shall review the verified affidavit and any other 13 supporting documents and take any testimony to determine 14 whether there is probable cause to believe that the property 15 was used, is being used, was attempted to be used, or was 16 intended to be used in violation of the Florida Contraband 17 Forfeiture Act. If probable cause is established, the court 18 shall authorize the seizure or continued seizure of the 19 subject contraband. A copy of the findings of the court shall 20 be provided to any person entitled to notice. 21 (d) If the court determines that probable cause exists 22 to believe that such property was used in violation of the 23 Florida Contraband Forfeiture Act, the court shall order the 24 property restrained by the least restrictive means to protect 25 against disposal, waste, or continued illegal use of such 26 property pending disposition of the forfeiture proceeding. 27 The court may order the claimant to post a bond or other 28 adequate security equivalent to the value of the property. 29 (3) Neither replevin nor any other action to recover 30 any interest in such property shall be maintained in any 31 court, except as provided in this act; however, such action 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 may be maintained if forfeiture proceedings are not initiated 2 within 45 days after the date of seizure. However, if good 3 cause is shown, the court may extend the aforementioned 4 prohibition to 60 days. 5 (4) In any incident in which possession of any 6 contraband article defined in s. 932.701(2)(a) constitutes a 7 felony, the vessel, motor vehicle, aircraft, other personal 8 property, or real property in or on which such contraband 9 article is located at the time of seizure shall be contraband 10 subject to forfeiture. It shall be presumed in the manner 11 provided in s. 90.302(2) that the vessel, motor vehicle, 12 aircraft, other personal property, or real property in which 13 or on which such contraband article is located at the time of 14 seizure is being used or was attempted or intended to be used 15 in a manner to facilitate the transportation, carriage, 16 conveyance, concealment, receipt, possession, purchase, sale, 17 barter, exchange, or giving away of a contraband article 18 defined in s. 932.701(2). 19 (5) The court shall order the forfeiture of any other 20 property of a claimant, excluding lienholders, up to the value 21 of any property subject to forfeiture under this section if 22 any of the property described in this section: 23 (a) Cannot be located; 24 (b) Has been transferred to, sold to, or deposited 25 with, a third party; 26 (c) Has been placed beyond the jurisdiction of the 27 court; 28 (d) Has been substantially diminished in value by any 29 act or omission of the person in possession of the property; 30 or 31 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 (e) Has been commingled with any property which cannot 2 be divided without difficulty. 3 (6)(a) Property may not be forfeited under the Florida 4 Contraband Forfeiture Act unless the seizing agency 5 establishes by a preponderance of the evidence that the owner 6 either knew, or should have known after a reasonable inquiry, 7 that the property was being employed or was likely to be 8 employed in criminal activity. 9 (b) A bona fide lienholder's interest that has been 10 perfected in the manner prescribed by law prior to the seizure 11 may not be forfeited under the Florida Contraband Forfeiture 12 Act unless the seizing agency establishes by a preponderance 13 of the evidence that the lienholder had actual knowledge, at 14 the time the lien was made, that the property was being 15 employed or was likely to be employed in criminal activity. 16 If a lienholder's interest is not subject to forfeiture under 17 the requirements of this section, such interest shall be 18 preserved by the court by ordering the lienholder's interest 19 to be paid as provided in s. 932.7055. 20 (c) Property titled or registered between husband and 21 wife jointly by the use of the conjunctives "and," "and/or," 22 or "or," in the manner prescribed by law prior to the seizure, 23 may not be forfeited under the Florida Contraband Forfeiture 24 Act unless the seizing agency establishes by a preponderance 25 of the evidence that the coowner either knew or had reason to 26 know, after reasonable inquiry, that such property was 27 employed or was likely to be employed in criminal activity. 28 (d) A vehicle that is rented or leased from a company 29 engaged in the business of renting or leasing vehicles, which 30 vehicle was rented or leased in the manner prescribed by law 31 prior to the seizure, may not be forfeited under the Florida 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 Contraband Forfeiture Act unless the seizing agency 2 establishes by preponderance of the evidence that the renter 3 or lessor had actual knowledge, at the time the vehicle was 4 rented or leased, that the vehicle was being employed or was 5 likely to be employed in criminal activity. When a vehicle 6 that is rented or leased from a company engaged in the 7 business of renting or leasing vehicles is seized under the 8 Florida Contraband Forfeiture Act, upon learning the address 9 or phone number of the company, the seizing law enforcement 10 agency shall, as soon as practicable, inform the company that 11 the vehicle has been seized and is available for the company 12 to take possession. 13 (7) Any interest in, title to, or right to property 14 titled or registered jointly by the use of the conjunctives 15 "and," "and/or," or "or" held by a coowner, other than 16 property held jointly between husband and wife, may not be 17 forfeited unless the seizing agency establishes by a 18 preponderance of the evidence that the coowner either knew, or 19 had reason to know, after reasonable inquiry, that the 20 property was employed or was likely to be employed in criminal 21 activity. When the interests of each culpable coowner are 22 forfeited, any remaining coowners shall be afforded the 23 opportunity to purchase the forfeited interest in, title to, 24 or right to the property from the seizing law enforcement 25 agency. If any remaining coowner does not purchase such 26 interest, the seizing agency may hold the property in 27 coownership, sell its interest in the property, liquidate its 28 interest in the property, or dispose of its interest in the 29 property in any other reasonable manner. 30 (8) It is an affirmative defense to a forfeiture 31 proceeding that the nexus between the property sought to be 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3159 568-133-98 1 forfeited and the commission of any underlying violation was 2 incidental or entirely accidental. The value of the property 3 sought to be forfeited in proportion to any other factors must 4 not be considered in any determination as to this affirmative 5 defense. 6 Section 6. This act shall take effect October 1 of the 7 year in which enacted. 8 9 ***************************************** 10 HOUSE SUMMARY 11 Provides for court revocation for a specified period of 12 the driver's license of a person who has used a motor vehicle in the course of committing stalking or 13 aggravated stalking or violating an injunction for protection against domestic violence or repeat violence 14 or specified foreign protection order. Provides for forfeiture as contraband of such motor vehicle. Provides 15 for booting or immobilization of the vehicle for a specified period. Provides for forfeiture of personal 16 property used in the course of the violation. Redefines the term "contraband article" with respect to the Florida 17 Contraband Forfeiture Act to conform to changes made by the act. 18 19 20 21 22 23 24 25 26 27 28 29 30 31 15