§712A-13  Judicial in personam
forfeiture proceedings.  (1)  If a forfeiture is authorized by law, it
shall be ordered by a court on a petition for forfeiture filed by the
prosecuting attorney in an in personam civil or criminal action.  In any civil
in personam action brought under this section, the owner or interest-holder may
testify, present evidence and witnesses on the owner or interest-holder'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 owner
or interest-holder's interest in the property is subject to forfeiture.  On
such a showing by the State, the owner or interest-holder has the burden of
showing by a preponderance of the evidence that the owner or interest-holder's
interest in the property is not subject to forfeiture.



(2)  In any proceeding pursuant to this
section, the court, on application of the prosecuting attorney, may enter any
order authorized by section 712A-11 or take any other action to seize, secure,
maintain or preserve the availability of property subject to forfeiture under
this chapter, including a warrant for its seizure, whether before or after the
filing of a petition for forfeiture, complaint, or indictment.



(3)  A temporary restraining order under this
section may be entered on petition of the State without notice or an
opportunity for a hearing if the State demonstrates that:



(a) There is probable cause to believe that the
property with respect to which the order is sought would, in the event of final
judgment or conviction, be subject to forfeiture; and



(b) Provision of notice will jeopardize the
availability of the property subject to forfeiture.



A temporary restraining order expires within ten
days after the date on which it is entered unless the party against whom it is
entered consents to an extension for a longer period or unless after commencing
a hearing the court enters or is considering a preliminary injunction.



(4)  Notice of the issuance of the temporary
restraining order and an opportunity for a hearing shall be afforded to persons
known to have an interest in the property.  The hearing, however, is limited to
the issues required to be demonstrated in subsection 3(a) and (b) of this
section.



(5)  A hearing requested by any owner or
interest-holder concerning a temporary restraining order entered under this
section shall be held at the earliest practicable time and before the
expiration of a temporary order.



(6)  On a determination of liability or the
conviction of a person for conduct giving rise to forfeiture under this title,
the court shall enter a judgment of forfeiture of the property described in the
petition for forfeiture, and shall also authorize the prosecuting attorney or
attorney general, their agents or any other law enforcement officer to seize
all property ordered forfeited that was not previously seized or is not then
under seizure.  Following the entry of an order declaring the property
forfeited, the court, on application of the State, may enter any order
authorized by section 712A-11 or take any other action to protect the interest
of the State or a political subdivision in the property ordered forfeited.  The
filing of the order of forfeiture in the appropriate public records perfects
the interest of the State in the property described in the order as of the date
that a notice of pending forfeiture or racketeering lien was first filed in the
records, which entitles the State to all rights of a secured party as to that
property in addition to any other rights or remedies of the State in relation
to the property.  Any income accruing to, or derived from, an enterprise or any
interest in an enterprise or other property interest that is forfeited under
this chapter is also forfeited from the time of the conduct giving rise to
forfeiture.  Such income may be used pending procedures subsequent to a verdict
or finding of liability to offset ordinary and necessary expenses of the
enterprise or property as required by law or that are necessary to protect the
interests of the State or a political subdivision.



(7)  Procedures subsequent to the verdict or
finding of liability and order of forfeiture shall be as follows:



(a) Following the entry of an order of forfeiture,
the clerk of the court shall give notice of pending forfeiture to owners and
interest-holders who have not previously been given notice, if any, in the
manner provided in section 712A-8;



(b) Any owner or interest-holder, other than a party
or a defendant in the underlying in personam action, asserting an interest in
property that has been ordered forfeited pursuant to such action, within thirty
days after initial notice of pending forfeiture or after notice under paragraph
(a) of this subsection, whichever is earlier, may file a claim as described in
section 712A-12(5), in the court for a hearing to adjudicate the validity of
the person's claimed interest in the property;



(c) The hearing on the claim, to the extent
practicable and consistent with the interest of justice, shall be held within
sixty days after the order of forfeiture.  The court may consolidate the
hearing on the claim with a hearing on any other claim filed by a person other
than a party or defendant in the underlying action and concerning the same
property;



(d) The hearing shall be conducted in the manner
provided for in rem judicial forfeiture actions including the provisions of
section 712A-12(7) and (8).  In addition to testimony and evidence presented at
the hearing, the court shall consider the relevant portions of the record of
the underlying civil or criminal action that resulted in the order of
forfeiture; and



(e) In accordance with its findings at the hearing,
the court may amend the order of forfeiture if it determines that any claimant
has established by a preponderance of the evidence that the claimant has a
legal interest in the property, and the claimant's interest is property
designated as not subject to forfeiture by section 712A-5.



(8)  Except as provided in section 712A-11(2)
and subsection (7)(b) of this section, a person claiming an interest in
property subject to forfeiture under this section may not:



(a) Intervene in a trial or an appeal of a criminal
or in personam civil case involving the forfeiture of such property; or



(b) Commence or maintain any action against the State
concerning the validity of the alleged interest other than as provided in this
chapter.



(9)  In order to facilitate the identification
or location of property declared forfeited and to facilitate the disposition of
filed or subsequent claims pursuant to this section the court, on application
of the State, may order that the testimony of any witness relating to the
property forfeited or alleged to be subject to forfeiture be taken by
deposition and that any designated book, paper, document, record, recording,
electronic or otherwise, or other material which is not privileged be produced
at the same time and place and in the same manner as that provided for the
taking of depositions under the rules of civil procedure. [L 1988, c 260, pt of
§1; am L 1996, c 104, §5]



 



Revision Note



 



  Throughout this section, "section" or
"subsection" substituted for "§" or "paragraph".



 



COMMENTARY ON §712A-13



 



  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.