Senate Bill 0168e1

CODING: Words stricken are deletions; words underlined are additions.







    SB 168                                   First Engrossed (ntc)



  1                      A bill to be entitled

  2         An act relating to driving under the influence

  3         of alcohol or drugs; amending s. 322.34, F.S.;

  4         providing that a motor vehicle is subject to

  5         forfeiture under the Florida Contraband Act if

  6         the motor vehicle is driven by a person under

  7         the influence of alcohol or drugs and the

  8         person's license is suspended as a result of a

  9         prior conviction for driving under the

10         influence; requiring that notification of the

11         impoundment or seizure be sent to the

12         Department of Highway Safety and Motor

13         Vehicles; amending s. 932.701, F.S., relating

14         to definitions with respect to the Florida

15         Contraband Act; redefining the term "contraband

16         article" to conform to changes made by the act;

17         reenacting s. 932.703, F.S., relating to

18         forfeiture of contraband articles, to

19         incorporate the amendment to s. 932.701, F.S.,

20         in references; providing an effective date.

21

22  Be It Enacted by the Legislature of the State of Florida:

23

24         Section 1.  Subsection (9) is added to section 322.34,

25  Florida Statutes, 1998 Supplement, to read:

26         322.34  Driving while license suspended, revoked,

27  canceled, or disqualified.--

28         (9)(a)  A motor vehicle that is driven by a person

29  under the influence of alcohol or drugs in violation of s.

30  316.193 is subject to seizure and forfeiture under ss.

31  932.701-932.707 and is subject to liens for recovering,


                                  1

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1  towing, or storing vehicles under s. 713.78 if, at the time of

  2  the offense, the person's driver's license is suspended,

  3  revoked, or canceled as a result of a prior conviction for

  4  driving under the influence.

  5         (b)  The law enforcement officer shall notify the

  6  Department of Highway Safety and Motor Vehicles of any

  7  impoundment or seizure for violation of paragraph (a) in

  8  accordance with procedures established by the department.

  9         (c)  Notwithstanding s. 932.703(1)(c) or s. 932.7055,

10  when the seizing agency obtains a final judgment granting

11  forfeiture of the motor vehicle under this section, 30 percent

12  of the net proceeds from the sale of the motor vehicle shall

13  be retained by the seizing law enforcement agency and 70

14  percent shall be deposited in the General Revenue Fund for use

15  by local WAGES coalitions in providing transportation services

16  for participants of the WAGES program. In a forfeiture

17  proceeding under this section, the court may consider the

18  extent that the family of the owner has other public or

19  private means of transportation.

20         Section 2.  Paragraph (a) of subsection (2) of section

21  932.701, Florida Statutes, is amended to read:

22         932.701  Short title; definitions.--

23         (2)  As used in the Florida Contraband Forfeiture Act:

24         (a)  "Contraband article" means:

25         1.  Any controlled substance as defined in chapter 893

26  or any substance, device, paraphernalia, or currency or other

27  means of exchange that was used, was attempted to be used, or

28  was intended to be used in violation of any provision of

29  chapter 893, if the totality of the facts presented by the

30  state is clearly sufficient to meet the state's burden of

31  establishing probable cause to believe that a nexus exists


                                  2

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1  between the article seized and the narcotics activity, whether

  2  or not the use of the contraband article can be traced to a

  3  specific narcotics transaction.

  4         2.  Any gambling paraphernalia, lottery tickets, money,

  5  currency, or other means of exchange which was used, was

  6  attempted, or intended to be used in violation of the gambling

  7  laws of the state.

  8         3.  Any equipment, liquid or solid, which was being

  9  used, is being used, was attempted to be used, or intended to

10  be used in violation of the beverage or tobacco laws of the

11  state.

12         4.  Any motor fuel upon which the motor fuel tax has

13  not been paid as required by law.

14         5.  Any personal property, including, but not limited

15  to, any vessel, aircraft, item, object, tool, substance,

16  device, weapon, machine, vehicle of any kind, money,

17  securities, books, records, research, negotiable instruments,

18  or currency, which was used or was attempted to be used as an

19  instrumentality in the commission of, or in aiding or abetting

20  in the commission of, any felony, whether or not comprising an

21  element of the felony, or which is acquired by proceeds

22  obtained as a result of a violation of the Florida Contraband

23  Forfeiture Act.

24         6.  Any real property, including any right, title,

25  leasehold, or other interest in the whole of any lot or tract

26  of land, which was used, is being used, or was attempted to be

27  used as an instrumentality in the commission of, or in aiding

28  or abetting in the commission of, any felony, or which is

29  acquired by proceeds obtained as a result of a violation of

30  the Florida Contraband Forfeiture Act.

31


                                  3

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1         7.  Any personal property, including, but not limited

  2  to, equipment, money, securities, books, records, research,

  3  negotiable instruments, currency, or any vessel, aircraft,

  4  item, object, tool, substance, device, weapon, machine, or

  5  vehicle of any kind in the possession of or belonging to any

  6  person who takes aquaculture products in violation of s.

  7  812.014(2)(c).

  8         8.  Any motor vehicle used during the course of

  9  committing an offense in violation of s. 322.34(9)(a).

10         Section 3.  For purposes of incorporating the amendment

11  to section 932.701, Florida Statutes, in references thereto,

12  section 932.703, Florida Statutes, is reenacted to read:

13         932.703  Forfeiture of contraband article;

14  exceptions.--

15         (1)(a)  Any contraband article, vessel, motor vehicle,

16  aircraft, other personal property, or real property used in

17  violation of any provision of the Florida Contraband

18  Forfeiture Act, or in, upon, or by means of which any

19  violation of the Florida Contraband Forfeiture Act has taken

20  or is taking place, may be seized and shall be forfeited

21  subject to the provisions of the Florida Contraband Forfeiture

22  Act.

23         (b)  Notwithstanding any other provision of the Florida

24  Contraband Forfeiture Act, except the provisions of paragraph

25  (a), contraband articles set forth in s. 932.701(2)(a)7. used

26  in violation of any provision of the Florida Contraband

27  Forfeiture Act, or in, upon, or by means of which any

28  violation of the Florida Contraband Forfeiture Act has taken

29  or is taking place, shall be seized and shall be forfeited

30  subject to the provisions of the Florida Contraband Forfeiture

31  Act.


                                  4

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1         (c)  All rights to, interest in, and title to

  2  contraband articles used in violation of s. 932.702 shall

  3  immediately vest in the seizing law enforcement agency upon

  4  seizure.

  5         (d)  The seizing agency may not use the seized property

  6  for any purpose until the rights to, interest in, and title to

  7  the seized property are perfected in accordance with the

  8  Florida Contraband Forfeiture Act.  This section does not

  9  prohibit use or operation necessary for reasonable maintenance

10  of seized property. Reasonable efforts shall be made to

11  maintain seized property in such a manner as to minimize loss

12  of value.

13         (2)(a)  Personal property may be seized at the time of

14  the violation or subsequent to the violation, if the person

15  entitled to notice is notified at the time of the seizure or

16  by certified mail, return receipt requested, that there is a

17  right to an adversarial preliminary hearing after the seizure

18  to determine whether probable cause exists to believe that

19  such property has been or is being used in violation of the

20  Florida Contraband Forfeiture Act. Seizing agencies shall make

21  a diligent effort to notify the person entitled to notice of

22  the seizure. Notice provided by certified mail must be mailed

23  within 5 working days after the seizure and must state that a

24  person entitled to notice may request an adversarial

25  preliminary hearing within 15 days after receiving such

26  notice.  When a postseizure, adversarial preliminary hearing

27  as provided in this section is desired, a request must be made

28  in writing by certified mail, return receipt requested, to the

29  seizing agency.  The seizing agency shall set and notice the

30  hearing, which must be held within 10 days after the request

31  is received or as soon as practicable thereafter.


                                  5

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1         (b)  Real property may not be seized or restrained,

  2  other than by lis pendens, subsequent to a violation of the

  3  Florida Contraband Forfeiture Act until the persons entitled

  4  to notice are afforded the opportunity to attend the

  5  preseizure adversarial preliminary hearing.  A lis pendens may

  6  be obtained by any method authorized by law.  Notice of the

  7  adversarial preliminary hearing shall be by certified mail,

  8  return receipt requested.  The purpose of the adversarial

  9  preliminary hearing is to determine whether probable cause

10  exists to believe that such property has been used in

11  violation of the Florida Contraband Forfeiture Act.  The

12  seizing agency shall make a diligent effort to notify any

13  person entitled to notice of the seizure.  The preseizure

14  adversarial preliminary hearing provided herein shall be held

15  within 10 days of the filing of the lis pendens or as soon as

16  practicable.

17         (c)  When an adversarial preliminary hearing is held,

18  the court shall review the verified affidavit and any other

19  supporting documents and take any testimony to determine

20  whether there is probable cause to believe that the property

21  was used, is being used, was attempted to be used, or was

22  intended to be used in violation of the Florida Contraband

23  Forfeiture Act.  If probable cause is established, the court

24  shall authorize the seizure or continued seizure of the

25  subject contraband.  A copy of the findings of the court shall

26  be provided to any person entitled to notice.

27         (d)  If the court determines that probable cause exists

28  to believe that such property was used in violation of the

29  Florida Contraband Forfeiture Act, the court shall order the

30  property restrained by the least restrictive means to protect

31  against disposal, waste, or continued illegal use of such


                                  6

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1  property pending disposition of the forfeiture proceeding.

  2  The court may order the claimant to post a bond or other

  3  adequate security equivalent to the value of the property.

  4         (3)  Neither replevin nor any other action to recover

  5  any interest in such property shall be maintained in any

  6  court, except as provided in this act; however, such action

  7  may be maintained if forfeiture proceedings are not initiated

  8  within 45 days after the date of seizure.  However, if good

  9  cause is shown, the court may extend the aforementioned

10  prohibition to 60 days.

11         (4)  In any incident in which possession of any

12  contraband article defined in s. 932.701(2)(a) constitutes a

13  felony, the vessel, motor vehicle, aircraft, other personal

14  property, or real property in or on which such contraband

15  article is located at the time of seizure shall be contraband

16  subject to forfeiture.  It shall be presumed in the manner

17  provided in s. 90.302(2) that the vessel, motor vehicle,

18  aircraft, other personal property, or real property in which

19  or on which such contraband article is located at the time of

20  seizure is being used or was attempted or intended to be used

21  in a manner to facilitate the transportation, carriage,

22  conveyance, concealment, receipt, possession, purchase, sale,

23  barter, exchange, or giving away of a contraband article

24  defined in s. 932.701(2).

25         (5)  The court shall order the forfeiture of any other

26  property of a claimant, excluding lienholders, up to the value

27  of any property subject to forfeiture under this section if

28  any of the property described in this section:

29         (a)  Cannot be located;

30         (b)  Has been transferred to, sold to, or deposited

31  with, a third party;


                                  7

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1         (c)  Has been placed beyond the jurisdiction of the

  2  court;

  3         (d)  Has been substantially diminished in value by any

  4  act or omission of the person in possession of the property;

  5  or

  6         (e)  Has been commingled with any property which cannot

  7  be divided without difficulty.

  8         (6)(a)  Property may not be forfeited under the Florida

  9  Contraband Forfeiture Act unless the seizing agency

10  establishes by a preponderance of the evidence that the owner

11  either knew, or should have known after a reasonable inquiry,

12  that the property was being employed or was likely to be

13  employed in criminal activity.

14         (b)  A bona fide lienholder's interest that has been

15  perfected in the manner prescribed by law prior to the seizure

16  may not be forfeited under the Florida Contraband Forfeiture

17  Act unless the seizing agency establishes by a preponderance

18  of the evidence that the lienholder had actual knowledge, at

19  the time the lien was made, that the property was being

20  employed or was likely to be employed in criminal activity.

21  If a lienholder's interest is not subject to forfeiture under

22  the requirements of this section, such interest shall be

23  preserved by the court by ordering the lienholder's interest

24  to be paid as provided in s. 932.7055.

25         (c)  Property titled or registered between husband and

26  wife jointly by the use of the conjunctives "and," "and/or,"

27  or "or," in the manner prescribed by law prior to the seizure,

28  may not be forfeited under the Florida Contraband Forfeiture

29  Act unless the seizing agency establishes by a preponderance

30  of the evidence that the coowner either knew or had reason to

31


                                  8

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1  know, after reasonable inquiry, that such property was

  2  employed or was likely to be employed in criminal activity.

  3         (d)  A vehicle that is rented or leased from a company

  4  engaged in the business of renting or leasing vehicles, which

  5  vehicle was rented or leased in the manner prescribed by law

  6  prior to the seizure, may not be forfeited under the Florida

  7  Contraband Forfeiture Act unless the seizing agency

  8  establishes by preponderance of the evidence that the renter

  9  or lessor had actual knowledge, at the time the vehicle was

10  rented or leased, that the vehicle was being employed or was

11  likely to be employed in criminal activity.  When a vehicle

12  that is rented or leased from a company engaged in the

13  business of renting or leasing vehicles is seized under the

14  Florida Contraband Forfeiture Act, upon learning the address

15  or phone number of the company, the seizing law enforcement

16  agency shall, as soon as practicable, inform the company that

17  the vehicle has been seized and is available for the company

18  to take possession.

19         (7)  Any interest in, title to, or right to property

20  titled or registered jointly by the use of the conjunctives

21  "and," "and/or," or "or" held by a coowner, other than

22  property held jointly between husband and wife, may not be

23  forfeited unless the seizing agency establishes by a

24  preponderance of the evidence that the coowner either knew, or

25  had reason to know, after reasonable inquiry, that the

26  property was employed or was likely to be employed in criminal

27  activity.  When the interests of each culpable coowner are

28  forfeited, any remaining coowners shall be afforded the

29  opportunity to purchase the forfeited interest in, title to,

30  or right to the property from the seizing law enforcement

31  agency.  If any remaining coowner does not purchase such


                                  9

CODING: Words stricken are deletions; words underlined are additions.






    SB 168                                   First Engrossed (ntc)



  1  interest, the seizing agency may hold the property in

  2  coownership, sell its interest in the property, liquidate its

  3  interest in the property, or dispose of its interest in the

  4  property in any other reasonable manner.

  5         (8)  It is an affirmative defense to a forfeiture

  6  proceeding that the nexus between the property sought to be

  7  forfeited and the commission of any underlying violation was

  8  incidental or entirely accidental.  The value of the property

  9  sought to be forfeited in proportion to any other factors must

10  not be considered in any determination as to this affirmative

11  defense.

12         Section 4.  This act shall take effect October 1, 1999.

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

29

30

31


                                  10