§712A-10 - Administrative forfeiture.

§712A-10 Administrative forfeiture.
The prosecuting attorney may initiate administrative forfeiture of property
other than real property, the estimated value of which is less than $100,000,
or of any vehicle or conveyance, regardless of value. Administrative
forfeiture shall be processed in the following manner:

(1) The prosecuting attorney shall file a petition
with the attorney general, pursuant to rules adopted by the attorney general.

(2) The prosecuting attorney shall give notice of
pending forfeiture by making reasonable efforts to serve a copy of the petition
in a manner provided in section 712A-8(a) or 712A-8(b) on all persons known to
have an interest in the property, together with instructions for filing a claim
and cost or in pauperis bond, or a petition for remission or mitigation.

(3) The attorney general shall give notice of
intention to forfeit the property administratively by publication in the manner
provided in section 712A-8(c). Notice by publication shall include:

(a) A description of the property;

(b) The estimated value of the property;

(d) The offense for which the property is
subject to forfeiture;

(e) Instructions for filing a claim and cost
or in pauperis bond, or a petition for remission or mitigation; and

(f) Notice that the property will be forfeited
to the State if a claim and cost or in pauperis bond or petition for remission
or mitigation is not filed in substantial compliance with this section.

(4) Persons claiming an interest in the property may
file either a petition for remission or mitigation of forfeiture, or a claim
and cost or in pauperis bond, but not both, with the attorney general, within
thirty days of notice by publication or receipt of written notice, whichever is
earlier. Notwithstanding section 1-29, the thirty-day time period prescribed
herein is computed by excluding the first day and including the last day,
unless the last day is a Saturday, Sunday, or holiday and then it is also
excluded, and the thirty-day time period runs until the end of the next day
which is not a Saturday, Sunday, or a holiday. "Holiday" includes
any day designated as a holiday pursuant to section 8-1.

(5) Any person claiming seized property may seek
remission or mitigation of the forfeiture by timely filing a petition with the
attorney general. A petition for remission or mitigation shall not be used to
challenge the sufficiency of the evidence to support the forfeiture or the
actions of any government official but shall presume a valid forfeiture and ask
the attorney general to invoke the executive power to pardon the property, in
whole or in part. The petition shall be signed by the petitioner and sworn on
oath before a notary public and shall contain the following:

(a) A reasonably complete description of the
property;

(b) A statement of the interest of the
petitioner in the property, as owner or interest-holder which may be supported
by bills of sale, contracts, or mortgages, or other documentary evidence; and

(i) Owns or holds an interest in the seized
property as defined by section 712A-1;

(ii) Had any knowledge that the property was or
would be involved in any violation of the law;

(iii) Had any knowledge of the particular
violation which subjected the property to seizure and forfeiture;

(iv) Had any knowledge that the user of the
property had any record, including arrests, except when the person was
acquitted or the charges dismissed due to lack of evidence, for the violation
which subjected the property to seizure and forfeiture or for any crime which
is similar in nature.

Any subsequent pleadings or written
communications alleging matters pertaining to [subparagraph] (b) or (c) of this
[paragraph] must also be signed by the petitioner and sworn on oath before a
notary public.

(6) If the attorney general, with sole discretion,
determines that remission is not warranted, the attorney general may
discretionarily mitigate the forfeiture where the petitioner has not met the
minimum requirements for remission but where there are present other
extenuating circumstances indicating that some relief should be granted to
avoid extreme hardship. Mitigation may also be granted where the minimum requirements
for remission have been met but the overall circumstances are such that the
attorney general determines that complete relief is not warranted. Mitigation
shall take the form of a money penalty imposed upon the petitioner which shall
be deposited into the criminal forfeiture fund established under section
712A-16. Extenuating circumstances include:

(a) Language or culture barrier;

(b) Humanitarian factors such as youth or
extreme age;

(d) Limited or peripheral criminal
culpability;

(e) Cooperation with the seizing agency or the
prosecuting attorney; and

(f) Any contributory error on the part of
government officials.

(7) It shall be the duty of the attorney general to inquire
into the facts and circumstances alleged in a petition for remission or
mitigation of forfeiture. However, no petitioner is entitled to a hearing on
the petition for remission or mitigation. Hearings, if any, shall be held at
the discretion of the attorney general.

(8) The attorney general shall provide the seizing
agency and the petitioner a written decision on each petition for remission or
mitigation within sixty days of receipt of the petition unless the
circumstances of the case require additional time, in which case the attorney
general shall notify the petitioner in writing and with specificity within the
sixty-day period that the circumstances of the case require additional time and
further notify the petitioner of the expected decision date.

(9) Any person claiming seized property may seek
judicial review of the seizure and proposed forfeiture by timely filing with
the attorney general a claim and bond to the State in the amount of ten per
cent of the estimated value of the property or in the sum of $2,500, whichever
is greater, with sureties to be approved by the attorney general, upon
condition that if the claimant fails to prove that claimant's interest is
exempt from forfeiture under section 712A-5, the claimant shall pay the State's
costs and expenses, including reasonable attorneys fees incurred in connection
with a judicial proceeding. In lieu of a cost bond, a claimant may file an in
pauperis bond sworn on oath before a notary public. An in pauperis bond shall
be in the form set out in the appendix to the rules of penal procedure. The
claim shall be signed by the claimant and sworn on oath before a notary public
and shall comply with the requirements of section 712A-12(5). Upon receipt of
the claim and bond, the attorney general shall notify the prosecuting attorney
who may discretionarily continue to seek forfeiture by petitioning the circuit
court for forfeiture of the property within forty-five days of receipt of
notice that a proper claim and bond has been filed. The prosecuting attorney
may also elect to honor the claim in which case the prosecuting attorney shall
notify the seizing agency and authorize the release of the seizure for
forfeiture on the property or on any specified interest in it.

(10) If a judicial forfeiture proceeding is instituted
subsequent to notice of administrative forfeiture pursuant to paragraph (9), no
duplicate or repetitive notice shall be required. The judicial proceeding, if
any, shall adjudicate all timely filed claims. At the judicial proceeding, the
claimant may testify, present evidence and witnesses on the claimant's behalf,
and cross-examine witnesses who appear at the hearing. The State may present
evidence and witnesses in rebuttal and in defense of its claim to the property
and cross-examine witnesses who appear at the hearing. The State has the
initial burden of showing by a preponderance of the evidence that the
claimant's interest in the property is subject to forfeiture. On such a
showing by the State, the claimant has the burden of showing by a preponderance
of the evidence that the claimant's interest in the property is not subject to
forfeiture.

(11) In the event a claim and bond has not been filed
in substantial compliance with this section, or if the attorney general, with
sole discretion, determines that remission or mitigation is not warranted, the
attorney general shall order forfeited all property seized for forfeiture. In
the event the attorney general, with sole discretion, determines that remission
or mitigation is warranted, the attorney general shall notify the seizing
agency and the prosecuting attorney and order the release of the seizure for
forfeiture on the property or on any specified interest in it. There shall be
no appeal from the attorney general's decision or order of forfeiture or
remission or mitigation.

(12) Administrative proceedings and the adoption of
rules under this section are exempt from the requirements of chapter 91, the
Hawaii administrative procedure act, and are adjudicatory functions for the
purposes of applicable sections of the Hawaii Revised Statutes. [L 1988, c 260,
pt of §1; am L 1991, c 166, §5; am L 1994, c 178, §4; am L 1996, c 104, §3]

COMMENTARY ON §712A-10

Act 178, Session Laws 1994, amended this section to clarify
how the thirty-day time period for filing a petition for remission or
mitigation of forfeiture is computed, and to require that subsequent pleadings
or written communications alleging certain matters regarding a petition for
remission or mitigation be signed by the petitioner and sworn on oath before a
notary public. The legislature recognized the importance of complying with
federal case law pertaining to due process and of ensuring that the statutes
are as clear as possible on the circumstances and procedures surrounding
forfeiture. Conference Committee Report No. 27.

Act 104, Session Laws 1996, amended this section to allow
both the State and the defendant to present evidence and witnesses, and to
cross-examine witnesses, in a forfeiture proceeding. Act 104 also repealed the
sunset provision of the Hawaii omnibus criminal forfeiture act to make the law
permanent. The purpose of Act 104 was to make the omnibus criminal forfeiture
act permanent and to ensure that it was fair to persons claiming an interest in
the property subject to forfeiture. Conference Committee Report No. 122.

Case Notes

Administrative and judicial in rem forfeitures under this
section and §712A‑12 respectively, are remedial civil sanctions, rather
than criminal punishments. 83 H. 141, 925 P.2d 311.

Jeopardy did not attach where defendant failed to file a
timely claim for forfeited property pursuant to paragraph (4). 83 H. 141, 925
P.2d 311.