13-4310

13-4310. Judicial forfeiture proceedings;
general

A. In any proceeding pursuant to this chapter, the court, on application of the
state, may enter any restraining order or injunction, require the execution of
satisfactory performance bonds, create receiverships, appoint conservators, appraisers,
accountants or trustees or take any other action to seize, secure, maintain or preserve
the availability of property subject to forfeiture under this title, including a warrant
for its seizure, whether prior or subsequent to the filing of a notice of pending
forfeiture, complaint, indictment or information.

B. If property is seized for forfeiture without a prior judicial determination of
probable cause, an order of forfeiture or a hearing pursuant to section 13-4312,
subsection D, the court, on an application filed by an owner of or interest holder in the
property within fifteen days after notice of its seizure for forfeiture or actual
knowledge of it, whichever is earlier, and complying with the requirements for claims in
section 13-4311, subsections E and F, may issue an order to show cause to the seizing
agency for a hearing on the sole issue of whether probable cause for forfeiture of the
property then exists. Notice of the order to show cause hearing must be served upon the
attorney for the state at least five working days before the hearing is held. If the
court finds that no probable cause for forfeiture of the property then exists or if the
state elects not to contest the issue, the property seized for forfeiture from the
applicant shall be released to the custody of the applicant pending the outcome of a
judicial proceeding pursuant to this chapter. If the court finds that probable cause for
the forfeiture of the property then exists, the court shall not order the property
released, except as provided in section 13-4306, subsection G.

C. A defendant convicted in any criminal proceeding shall be precluded from
subsequently denying the essential allegations of the criminal offense of which he was
convicted in any proceeding pursuant to this chapter. For the purposes of this chapter,
a conviction may result from a verdict or plea including a no contest plea.

D. In any judicial forfeiture hearing, determination or other proceeding pursuant
to this chapter, the applicant, petitioner or claimant must establish by a preponderance
of the evidence that he is an owner of or interest holder in the property seized for
forfeiture before other evidence is taken. The burden of proving the standing of the
claimant and the existence of the exemption is on the claimant or party raising
the claim, and it is not necessary to negate the standing of any claimant or the
existence of any exemption in any notice, application, complaint, information or
indictment.

E. In hearings and determinations pursuant to this chapter:

1. The law of evidence relating to civil actions applies equally to all parties,
including the state, an applicant, a petitioner, a claimant and a defendant, on all
issues required to be established by a preponderance of the evidence.

2. The court shall receive and consider, in making any determination of probable
cause or reasonable cause, all evidence and information that would be permissible in
determining probable cause at a preliminary hearing, at a grand jury or by a magistrate
pursuant to section 13-3913, together with inferences from the evidence and information.

3. No evidence may be suppressed in any hearing pursuant to this chapter on the
ground that its acquisition by search or seizure violated constitutional protections
applicable in criminal cases relating to unreasonable searches or seizures.

F. All property, including all interests in such property, declared forfeited under
this title vests in this state on the commission of the act or omission giving rise to
forfeiture under this title together with the proceeds of the property after such
time. Any such property or proceeds subsequently transferred to any person are subject
to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and
establishes in a hearing pursuant to this chapter the showings set out in section
13-4304.

G. On the motion of a party and after notice to any persons who are known to have
an interest in the property and an opportunity to be heard, the court may order property
that has been seized for forfeiture sold, leased, rented or operated to satisfy an
interest of any interest holder who has timely filed a proper claim or to preserve the
interests of any party. The court may order a sale or any other disposition of the
property if the property may perish, waste, be foreclosed on or otherwise be
significantly reduced in value or if the expenses of maintaining the property are or will
become greater than its fair market value. If the court orders a sale, the court shall
designate a third party or state property manager to dispose of the property by public
sale or other commercially reasonable method and shall distribute the proceeds in the
following order of priority:

1. Payment of reasonable expenses incurred in connection with the sale.

2. Satisfaction of exempt interests in the order of their priority.

3. Preservation of the balance, if any, in the actual or constructive custody of
the court in an interest bearing account, subject to further proceedings under this
chapter.

H. If the property is disposed of pursuant to subsection G of this section, a
successful claimant may apply to the court for actual monetary damages suffered, if any,
as a result of the disposal of the property, but the state, a political subdivision of
the state, or an officer, employee or agent of any of them shall not in any event be
liable under this chapter for incidental or consequential damages or for damages either:

1. That could have been avoided if the claimant had made full and immediate
disclosure to the attorney for the state of facts or evidence known or available to the
claimant.

2. In excess of the fair market value of the property seized for forfeiture at the
time of its seizure plus interest from the time of its seizure for forfeiture.

I. If an indictment or information is filed alleging the same conduct as the
conduct giving rise to forfeiture in a civil forfeiture proceeding, the court in the
civil proceeding may stay civil discovery against the criminal defendant and against the
state in the civil proceeding until the defendant's criminal trial is completed. Before
staying civil discovery, the court shall make adequate provision to prevent any loss or
expense to any victim or party resulting from the delay, including loss or expense due to
maintenance, management, insurance, storage or preservation of the availability of the
property or due to depreciation in the value of the property.

J. No person claiming to be an owner of or interest holder in property seized for
forfeiture under this chapter may commence or maintain any action against the state
concerning the validity of the alleged interest other than as provided in this chapter.