13-4311

13-4311. Judicial in rem forfeiture
proceedings

A. If a forfeiture is authorized by law, it shall be ordered by a court on an
action in rem brought by the state pursuant to a notice of pending forfeiture or a
verified complaint for forfeiture. The state may serve the complaint in the manner
provided by section 13-4307 or by the Arizona rules of civil procedure.

B. A civil in rem action may be brought by the state in addition to or in lieu of
the civil and criminal in personam forfeiture procedures set forth in sections 13-4312
and 13-4313 or the uncontested civil forfeiture procedures set forth in section
13-4309. Judicial in rem forfeiture proceedings are in the nature of an action in rem
and are governed by the Arizona rules of civil procedure unless a different procedure is
provided by law.

C. On the filing of a civil in rem action by the state in superior court the clerk
of the court in which the action is filed shall provide, and the attorney for the state
may provide, the notice of pending forfeiture required by section 13-4307 unless the
files of the clerk of the court reflect that such notice has previously been made.

D. An owner of or interest holder in the property may file a claim against the
property, within thirty days after the notice, for a hearing to adjudicate the validity
of his claimed interest in the property. The hearing shall be held by the court without
a jury.

E. The claim shall be signed by the claimant under penalty of perjury and shall set
forth all of the following:

1. The caption of the proceeding as set forth on the notice of pending forfeiture
or complaint and the name of the claimant.

2. The address at which the claimant will accept future mailings from the court or
attorney for the state.

3. The nature and extent of the claimant's interest in the property.

4. The date, the identity of the transferor and the circumstances of the claimant's
acquisition of the interest in the property.

5. The specific provisions of this chapter relied on in asserting that the
property is not subject to forfeiture.

6. All facts supporting each such assertion.

7. Any additional facts supporting the claimant's claim.

8. The precise relief sought.

F. Copies of the claim shall be mailed to the seizing agency and to the attorney
for the state. No extension of time for the filing of a claim may be granted.

G. Within twenty days after service of the complaint, the claimant shall file and
serve the answer to the complaint and the answers to interrogatories and requests for
admission if any were served with the complaint. The answer shall be signed by the
owner or interest holder under penalty of perjury, shall comply with the Arizona rules of
civil procedure relating to answers and shall comply with all of the requirements for
claims. If no proper answer is timely filed, the attorney for the state shall proceed as
provided in sections 13-4314 and 13-4315 with ten days' notice to any person who has
timely filed a claim that has not been stricken by the court.

H. At the time of filing its pleadings or at any other time not less than thirty
days before the hearing, the state and any claimant who has timely answered the complaint
may serve discovery requests on any other party, the answers or response to which shall
be due in twenty days, and may take the deposition of any person at any time after the
expiration of fifteen days after the filing and service of the complaint. Any party may
move for summary judgment at any time after an answer or responsive pleading is served
and not less than thirty days before the hearing. The state, as the party defending
against the claim, may make offers of judgment at any time more than ten days before the
hearing begins.

I. An injured person may submit a request for compensation from forfeited property
to the court at any time before the earlier of the entry of a final judgment or an
application for an order of the forfeiture of the property, or if a hearing pursuant to
subsections K, L and M of this section is held, not less than thirty days before the
hearing. The request shall be signed by the requestor under penalty of perjury and shall
set forth all of the following:

1. The caption of the proceeding as set forth on the notice of pending forfeiture
or complaint and the name of the requestor.

2. The address at which the requestor will accept future mailings from the court or
parties to the action.

3. The property subject to forfeiture from which the requestor seeks compensation.

4. The nature of the economic loss sustained by the requestor.

5. All facts supporting each such assertion.

6. Any additional facts supporting the request.

7. The amount of economic loss for which the requestor seeks compensation.

J. If a proper request for compensation from forfeited property is timely filed,
the court shall hold a hearing to establish whether there is a factual basis for the
request. The requestor has the burden of establishing by a preponderance of the evidence
that the requestor is an injured person who sustained economic loss.

K. The hearing on the claim, to the extent practicable and consistent with the
interest of justice, shall be held sixty days after all parties have complied with the
disclosure required by rule 26.1 of the Arizona rules of civil procedure. The court may
consolidate the hearing on the claim with a hearing on any other claim concerning the
same property.

L. At the hearing, the claimant may testify, present evidence and witnesses on the
claimant's own behalf and cross-examine witnesses who appear at the hearing. The state
may present evidence and witnesses and cross-examine witnesses who appear at the hearing.

M. At the hearing, the state has the burden of establishing by a preponderance of
the evidence that the property is subject to forfeiture under section 13-4304. Any
claimant who has previously established by a preponderance of the evidence that the
claimant is an owner of or interest holder in the property has the burden of establishing
by a preponderance of the evidence that the claimant's interest in the property is exempt
from forfeiture under section 13-4304.

N. In accordance with its findings at the hearing:

1. The court shall order an interest in property returned or conveyed to a
claimant, if any, who has established by a preponderance of the evidence that the
claimant is an owner of or interest holder in the property if either of the following
applies:

(a) The state has failed to establish by a preponderance of the evidence that the
interest is subject to forfeiture under section 13-4304.

(b) The claimant has established by a preponderance of the evidence that the
interest is exempt from forfeiture under section 13-4304.

2. The court shall order all other property, including all interests in the
property, forfeited to this state and proceed pursuant to sections 13-4314 and 13-4315.

3. If the court finds that a requestor is an injured person the court shall
determine the amount of the injured person's economic loss caused by the conduct giving
rise to the forfeiture of the designated property and shall require the following:

(a) If the designated property is not contraband and is not altered or designed for
use in conduct giving rise to forfeiture, the attorney for the state shall sell the
property as provided in section 13-4315, subsection A, paragraph 2, and shall apply the
resulting balance to compensate the injured person's economic loss in the amount found by
the court.

(b) If the balance is insufficient to compensate the economic loss of all injured
persons the attorney for the state shall distribute the balance among the injured persons
according to a method determined by the court.

(c) After compensation of all injured persons, the attorney for the state shall
transmit ten per cent of the remaining balance, if any, to the Arizona criminal justice
commission for deposit in the victim compensation and assistance fund established by
section 41-2407.

(d) The attorney for the state shall deposit the remainder of the balance, if any,
in an appropriate anti-racketeering revolving fund established by section 13-2314.01 or
13-2314.03.