IC 34-24 ARTICLE 24. CIVIL PROCEEDINGS RELATED TO
CRIMINAL ACTIVITIES
IC 34-24-1
Chapter 1. Forfeiture of Property Used in Violation of Certain
Criminal Statutes
IC 34-24-1-1 Seizure of vehicles and property commonly used as consideration
for controlled substances offenses; seizure of tobacco products and
personal property owned and used to facilitate violation
Sec. 1. (a) The following may be seized:
(1) All vehicles (as defined by IC 35-41-1), if they are used or
are intended for use by the person or persons in possession of
them to transport or in any manner to facilitate the
transportation of the following:
(A) A controlled substance for the purpose of committing,
attempting to commit, or conspiring to commit any of the
following:
(i) Dealing in or manufacturing cocaine or a narcotic drug
(IC 35-48-4-1).
(ii) Dealing in methamphetamine (IC 35-48-4-1.1).
(iii) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(iv) Dealing in a schedule IV controlled substance (IC
35-48-4-3).
(v) Dealing in a schedule V controlled substance (IC
35-48-4-4).
(vi) Dealing in a counterfeit substance (IC 35-48-4-5).
(vii) Possession of cocaine or a narcotic drug (IC
35-48-4-6).
(viii) Possession of methamphetamine (IC 35-48-4-6.1).
(ix) Dealing in paraphernalia (IC 35-48-4-8.5).
(x) Dealing in marijuana, hash oil, or hashish (IC
35-48-4-10).
(B) Any stolen (IC 35-43-4-2) or converted property (IC
35-43-4-3) if the retail or repurchase value of that property
is one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of IC 13-30-10-1.5.
(D) A bomb (as defined in IC 35-41-1-4.3) or weapon of
mass destruction (as defined in IC 35-41-1-29.4) used to
commit, used in an attempt to commit, or used in a
conspiracy to commit an offense under IC 35-47 as part of or
in furtherance of an act of terrorism (as defined by
IC 35-41-1-26.5).
(2) All money, negotiable instruments, securities, weapons,
communications devices, or any property used to commit, used
in an attempt to commit, or used in a conspiracy to commit an
offense under IC 35-47 as part of or in furtherance of an act of
terrorism or commonly used as consideration for a violation of
IC 35-48-4 (other than items subject to forfeiture under
IC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
(A) furnished or intended to be furnished by any person in
exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal
statute.
(3) Any portion of real or personal property purchased with
money that is traceable as a proceed of a violation of a criminal
statute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
(C) escape from the commission of;
murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal
confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child
molesting (IC 35-42-4-3), or child exploitation (IC 35-42-4-4),
or an offense under IC 35-47 as part of or in furtherance of an
act of terrorism.
(5) Real property owned by a person who uses it to commit any
of the following as a Class A felony, a Class B felony, or a
Class C felony:
(A) Dealing in or manufacturing cocaine or a narcotic drug
(IC 35-48-4-1).
(B) Dealing in methamphetamine (IC 35-48-4-1.1).
(C) Dealing in a schedule I, II, or III controlled substance (IC
35-48-4-2).
(D) Dealing in a schedule IV controlled substance (IC
35-48-4-3).
(E) Dealing in marijuana, hash oil, or hashish (IC
35-48-4-10).
(6) Equipment and recordings used by a person to commit fraud
under IC 35-43-5-4(10).
(7) Recordings sold, rented, transported, or possessed by a
person in violation of IC 24-4-10.
(8) Property (as defined by IC 35-41-1-23) or an enterprise (as
defined by IC 35-45-6-1) that is the object of a corrupt business
influence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined in
IC 35-45-13-6) and plans, instructions, or publications used to
commit an offense under IC 35-45-13.
(10) Any equipment, including computer equipment and
cellular telephones, used for or intended for use in preparing,
photographing, recording, videotaping, digitizing, printing,
copying, or disseminating matter in violation of IC 35-42-4.
(11) Destructive devices used, possessed, transported, or sold
in violation of IC 35-47.5.
(12) Tobacco products that are sold in violation of IC 24-3-5,
tobacco products that a person attempts to sell in violation of
IC 24-3-5, and other personal property owned and used by a
person to facilitate a violation of IC 24-3-5.
(13) Property used by a person to commit counterfeiting or
forgery in violation of IC 35-43-5-2.
(14) After December 31, 2005, if a person is convicted of an
offense specified in IC 25-26-14-26(b) or IC 35-43-10, the
following real or personal property:
(A) Property used or intended to be used to commit,
facilitate, or promote the commission of the offense.
(B) Property constituting, derived from, or traceable to the
gross proceeds that the person obtained directly or indirectly
as a result of the offense.
(15) Except as provided in subsection (e), a motor vehicle used
by a person who operates the motor vehicle:
(A) while intoxicated, in violation of IC 9-30-5-1 through
IC 9-30-5-5, if in the previous five (5) years the person has
two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to
IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction; or
(B) on a highway while the person's driver's license is
suspended in violation of IC 9-24-19-2 through
IC 9-24-19-4, if in the previous five (5) years the person has
two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to
IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction.
If a court orders the seizure of a motor vehicle under this
subdivision, the court shall transmit an order to the bureau of
motor vehicles recommending that the bureau not permit a
motor vehicle to be registered in the name of the person whose
motor vehicle was seized until the person possesses a current
driving license (as defined in IC 9-13-2-41).
(16) The following real or personal property:
(A) Property used or intended to be used to commit,
facilitate, or promote the commission of an offense specified
in IC 23-14-48-9, IC 30-2-9-7(b), IC 30-2-10-9(b), or
IC 30-2-13-38(f).
(B) Property constituting, derived from, or traceable to the
gross proceeds that a person obtains directly or indirectly as
a result of an offense specified in IC 23-14-48-9,
IC 30-2-9-7(b), IC 30-2-10-9(b), or IC 30-2-13-38(f).
(b) A vehicle used by any person as a common or contract carrier
in the transaction of business as a common or contract carrier is not
subject to seizure under this section, unless it can be proven by a
preponderance of the evidence that the owner of the vehicle
knowingly permitted the vehicle to be used to engage in conduct that
subjects it to seizure under subsection (a).
(c) Equipment under subsection (a)(10) may not be seized unless
it can be proven by a preponderance of the evidence that the owner
of the equipment knowingly permitted the equipment to be used to
engage in conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of IC 35-48-4 found near or on a person
who is committing, attempting to commit, or conspiring to commit
any of the following offenses shall be admitted into evidence in an
action under this chapter as prima facie evidence that the money,
negotiable instrument, security, or other thing of value is property
that has been used or was to have been used to facilitate the violation
of a criminal statute or is the proceeds of the violation of a criminal
statute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine or a
narcotic drug).
(2) IC 35-48-4-1.1 (dealing in methamphetamine).
(3) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled
substance).
(4) IC 35-48-4-3 (dealing in a schedule IV controlled
substance).
(5) IC 35-48-4-4 (dealing in a schedule V controlled substance)
as a Class B felony.
(6) IC 35-48-4-6 (possession of cocaine or a narcotic drug) as
a Class A felony, Class B felony, or Class C felony.
(7) IC 35-48-4-6.1 (possession of methamphetamine) as a Class
A felony, Class B felony, or Class C felony.
(8) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as
a Class C felony.
(e) A motor vehicle operated by a person who is not:
(1) an owner of the motor vehicle; or
(2) the spouse of the person who owns the motor vehicle;
is not subject to seizure under subsection (a)(15) unless it can be
proven by a preponderance of the evidence that the owner of the
vehicle knowingly permitted the vehicle to be used to engage in
conduct that subjects it to seizure under subsection (a)(15). As added by P.L.1-1998, SEC.19. Amended by P.L.17-2001, SEC.9;
P.L.3-2002, SEC.1; P.L.123-2002, SEC.30; P.L.117-2003, SEC.2;
P.L.253-2003, SEC.2; P.L.45-2005, SEC.1; P.L.160-2005, SEC.17;
P.L.181-2005, SEC.4; P.L.212-2005, SEC.75; P.L.1-2006, SEC.518;
P.L.94-2006, SEC.11; P.L.151-2006, SEC.13; P.L.137-2007,
SEC.34; P.L.114-2008, SEC.27; P.L.119-2008, SEC.13; P.L.1-2009,
SEC.162; P.L.143-2009, SEC.44.
IC 34-24-1-2 Seizure procedure; custody
Sec. 2. (a) Property may be seized under this chapter by a law
enforcement officer only if:
(1) the seizure is incident to a lawful:
(A) arrest;
(B) search; or
(C) administrative inspection;
(2) the property has been the subject of a prior judgment in
favor of the state or unit in a proceeding under this chapter (or
IC 34-4-30.1 before its repeal); or
(3) a court, after making an ex parte determination that there is
probable cause to believe the property is subject to seizure
under this chapter, issues an order for seizure.
(b) When property is seized under subsection (a), the law
enforcement agency making the seizure may, pending final
disposition:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(c) Property that is seized under subsection (a) (or
IC 34-4-30.1-2(a) before its repeal) is not subject to replevin but is
considered to be in the custody of the law enforcement agency
making the seizure. As added by P.L.1-1998, SEC.19.
IC 34-24-1-3 Action for reimbursement of law enforcement costs and forfeiture;
procedure
Sec. 3. (a) The prosecuting attorney for the county in which the
seizure occurs may, within ninety (90) days after receiving written
notice from the owner demanding return of the seized property or
within one hundred eighty (180) days after the property is seized,
whichever occurs first, cause an action for reimbursement of law
enforcement costs and forfeiture to be brought by filing a complaint
in the circuit, superior, or county court in the jurisdiction where the
seizure occurred. The action must be brought:
(1) in the name of the state or the state and the unit that
employed the law enforcement officers who made the seizure
if the state was not the employer; and
(2) within the period that a prosecution may be commenced
under IC 35-41-4-2 for the offense that is the basis for the
seizure.
(b) If the property seized was a vehicle or real property, the
prosecuting attorney shall serve, under the Indiana Rules of Trial
Procedure, a copy of the complaint upon each person whose right,
title, or interest is of record in the bureau of motor vehicles, in the
county recorder's office, or other office authorized to receive or
record vehicle or real property ownership interests.
(c) The owner of the seized property, or any person whose right,
title, or interest is of record may, within twenty (20) days after
service of the complaint under the Indiana Rules of Trial Procedure,
file an answer to the complaint and may appear at the hearing on the
action.
(d) If, at the end of the time allotted for an answer, there is no
answer on file, the court, upon motion, shall enter judgment in favor
of the state and the unit (if appropriate) for reimbursement of law
enforcement costs and shall order the property disposed of in
accordance with section 4 of this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-4 Hearing; burden of proof; disposition of seized property
Sec. 4. (a) At the hearing, the prosecuting attorney must show by
a preponderance of the evidence that the property was within the
definition of property subject to seizure under section 1 of this
chapter. If the property seized was a vehicle, the prosecuting attorney
must also show by a preponderance of the evidence that a person
who has an ownership interest of record in the bureau of motor
vehicles knew or had reason to know that the vehicle was being used
in the commission of the offense.
(b) If the prosecuting attorney fails to meet the burden of proof,
the court shall order the property released to the owner.
(c) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court, subject to section 5 of this
chapter, shall order delivery to the law enforcement agency that
seized the property. The court's order may permit the agency to use
the property for a period not to exceed three (3) years. However, the
order must require that, after the period specified by the court, the
law enforcement agency shall deliver the property to the county
sheriff for public sale.
(d) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court shall, subject to section 5 of this
chapter:
(1) determine the amount of law enforcement costs; and
(2) order that:
(A) the property, if it is not money or real property, be sold
under section 6 of this chapter, by the sheriff of the county
in which the property was seized, and if the property is a
vehicle, this sale must occur after any period of use specified
in subsection (c);
(B) the property, if it is real property, be sold in the same
manner as real property is sold on execution under
IC 34-55-6;
(C) the proceeds of the sale or the money be:
(i) deposited in the general fund of the state, or the unit
that employed the law enforcement officers that seized the
property; or
(ii) deposited in the general fund of a unit if the property
was seized by a local law enforcement agency of the unit
for an offense, an attempted offense, or a conspiracy to
commit an offense under IC 35-47 as part of or in
furtherance of an act of terrorism; and
(D) any excess in value of the proceeds or the money over
the law enforcement costs be forfeited and transferred to the
treasurer of state for deposit in the common school fund.
(e) If property that is seized under this chapter (or IC 34-4-30.1-4
before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section
3 of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (or
IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an
ownership interest of record as a bona fide purchaser for value. A
person is a bona fide purchaser for value under this section if the
person, at the time of the transfer, did not have reasonable cause to
believe that the property was subject to forfeiture under this chapter.
(f) If the property seized was an unlawful telecommunications
device (as defined in IC 35-45-13-6) or plans, instructions, or
publications used to commit an offense under IC 35-45-13, the court
may order the sheriff of the county in which the person was
convicted of an offense under IC 35-45-13 to destroy as contraband
or to otherwise lawfully dispose of the property. As added by P.L.1-1998, SEC.19. Amended by P.L.123-2002,
SEC.31.
IC 34-24-1-5 Determination of secured interest and appraised value; disposition
of property; payment
Sec. 5. (a) If:
(1) the court has entered judgment in favor of the state, and a
unit (if appropriate) concerning property that is subject to
seizure under this chapter; and
(2) a person:
(A) holding a valid lien, mortgage, security interest, or
interest under a conditional sales contract; or
(B) who is a co-owner of the property;
did not know of the illegal use;
the court shall determine whether the secured interest or the
co-owner's interest is equal to or in excess of the appraised value of
the property.
(b) Appraised value is to be determined as of the date of judgment
on a wholesale basis by:
(1) agreement between the secured party or the co-owner and
the prosecuting attorney; or
(2) the inheritance tax appraiser for the county in which the
action is brought.
(c) If the amount:
(1) due to the secured party; or
(2) of the co-owner's interest;
is equal to or greater than the appraised value of the property, the
court shall order the property released to the secured party or the
co-owner.
(d) If the amount:
(1) due the secured party; or
(2) of the co-owner's interest;
is less than the appraised value of the property, the holder of the
interest or the co-owner may pay into the court an amount equal to
the owner's equity, which shall be the difference between the
appraised value and the amount of the lien, mortgage, security
interest, interest under a conditional sales contract, or co-owner's
interest. Upon such payment, the state or unit, or both, shall
relinquish all claims to the property, and the court shall order the
payment deposited as provided in section 4(d) of this chapter.
(e) If the seized property is a vehicle and if the security holder or
the co-owner elects not to make payment as stated in subsection (d),
the vehicle shall be disposed of in accordance with section 4(c) of
this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-6 Public sale of property; publication of notice; proceeds
Sec. 6. (a) Where disposition of property is to be made at a public
sale, notice of sale shall be published in accordance with IC 34-55-6.
(b) When property is sold at a public sale under this chapter, the
proceeds shall be distributed in the following order:
(1) First, to the sheriff of the county for all expenditures made
or incurred in connection with the sale, including storage,
transportation, and necessary repair.
(2) Second, to any person:
(A) holding a valid lien, mortgage, land contract, or interest
under a conditional sales contract or the holder of other such
interest; or
(B) who is a co-owner and has an ownership interest;
up to the amount of that person's interest as determined by the
court.
(3) The remainder, if any, shall be transferred by the sheriff to
the appropriate fund as ordered by the court in section 4(d) of
this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-7 Court order; filing; effect
Sec. 7. (a) If the property seized was a vehicle, a copy of the
court's order under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the department of motor vehicles or other
appropriate agency; and
(2) constitutes authority for the issuance of clear title to that
vehicle in the name of the person or purchaser to whom the
order authorizes delivery.
(b) If the property seized was real property, a copy of the court's
order under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the county recorder; and
(2) constitutes authority for:
(A) the sale of the property in the manner provided under
IC 34-55-6; and
(B) the issuance of clear title to a bona fide purchaser for
value who acquires the real property at the sale. As added by P.L.1-1998, SEC.19.
IC 34-24-1-8 Retention of attorney to bring action
Sec. 8. (a) A prosecuting attorney may retain an attorney to bring
an action under this chapter.
(b) An attorney retained under this section is not required to be a
deputy prosecuting attorney but must be admitted to the practice of
law in Indiana. As added by P.L.1-1998, SEC.19.
IC 34-24-1-9 Disposition of seized property; expenditures of money
Sec. 9. (a) Upon motion of a prosecuting attorney under
IC 35-33-5-5(j), property seized under this chapter must be
transferred, subject to the perfected liens or other security interests
of any person in the property, to the appropriate federal authority for
disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
881(e) and any related regulations adopted by the United States
Department of Justice.
(b) Money received by a law enforcement agency as a result of a
forfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
881(e) and any related regulations adopted by the United States
Department of Justice must be deposited into a nonreverting fund
and may be expended only with the approval of:
(1) the executive (as defined in IC 36-1-2-5), if the money is
received by a local law enforcement agency; or
(2) the governor, if the money is received by a law enforcement
agency in the executive branch.
The money received under this subsection must be used solely for the
benefit of any agency directly participating in the seizure or
forfeiture for purposes consistent with federal laws and regulations. As added by P.L.174-1999, SEC.1. Amended by P.L.97-2004,
SEC.115.
IC 34-24 ARTICLE 24. CIVIL PROCEEDINGS RELATED TO
CRIMINAL ACTIVITIES
IC 34-24-1
Chapter 1. Forfeiture of Property Used in Violation of Certain
Criminal Statutes
IC 34-24-1-1 Seizure of vehicles and property commonly used as consideration
for controlled substances offenses; seizure of tobacco products and
personal property owned and used to facilitate violation
Sec. 1. (a) The following may be seized:
(1) All vehicles (as defined by IC 35-41-1), if they are used or
are intended for use by the person or persons in possession of
them to transport or in any manner to facilitate the
transportation of the following:
(A) A controlled substance for the purpose of committing,
attempting to commit, or conspiring to commit any of the
following:
(i) Dealing in or manufacturing cocaine or a narcotic drug
(IC 35-48-4-1).
(ii) Dealing in methamphetamine (IC 35-48-4-1.1).
(iii) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(iv) Dealing in a schedule IV controlled substance (IC
35-48-4-3).
(v) Dealing in a schedule V controlled substance (IC
35-48-4-4).
(vi) Dealing in a counterfeit substance (IC 35-48-4-5).
(vii) Possession of cocaine or a narcotic drug (IC
35-48-4-6).
(viii) Possession of methamphetamine (IC 35-48-4-6.1).
(ix) Dealing in paraphernalia (IC 35-48-4-8.5).
(x) Dealing in marijuana, hash oil, or hashish (IC
35-48-4-10).
(B) Any stolen (IC 35-43-4-2) or converted property (IC
35-43-4-3) if the retail or repurchase value of that property
is one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of IC 13-30-10-1.5.
(D) A bomb (as defined in IC 35-41-1-4.3) or weapon of
mass destruction (as defined in IC 35-41-1-29.4) used to
commit, used in an attempt to commit, or used in a
conspiracy to commit an offense under IC 35-47 as part of or
in furtherance of an act of terrorism (as defined by
IC 35-41-1-26.5).
(2) All money, negotiable instruments, securities, weapons,
communications devices, or any property used to commit, used
in an attempt to commit, or used in a conspiracy to commit an
offense under IC 35-47 as part of or in furtherance of an act of
terrorism or commonly used as consideration for a violation of
IC 35-48-4 (other than items subject to forfeiture under
IC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
(A) furnished or intended to be furnished by any person in
exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal
statute.
(3) Any portion of real or personal property purchased with
money that is traceable as a proceed of a violation of a criminal
statute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
(C) escape from the commission of;
murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal
confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child
molesting (IC 35-42-4-3), or child exploitation (IC 35-42-4-4),
or an offense under IC 35-47 as part of or in furtherance of an
act of terrorism.
(5) Real property owned by a person who uses it to commit any
of the following as a Class A felony, a Class B felony, or a
Class C felony:
(A) Dealing in or manufacturing cocaine or a narcotic drug
(IC 35-48-4-1).
(B) Dealing in methamphetamine (IC 35-48-4-1.1).
(C) Dealing in a schedule I, II, or III controlled substance (IC
35-48-4-2).
(D) Dealing in a schedule IV controlled substance (IC
35-48-4-3).
(E) Dealing in marijuana, hash oil, or hashish (IC
35-48-4-10).
(6) Equipment and recordings used by a person to commit fraud
under IC 35-43-5-4(10).
(7) Recordings sold, rented, transported, or possessed by a
person in violation of IC 24-4-10.
(8) Property (as defined by IC 35-41-1-23) or an enterprise (as
defined by IC 35-45-6-1) that is the object of a corrupt business
influence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined in
IC 35-45-13-6) and plans, instructions, or publications used to
commit an offense under IC 35-45-13.
(10) Any equipment, including computer equipment and
cellular telephones, used for or intended for use in preparing,
photographing, recording, videotaping, digitizing, printing,
copying, or disseminating matter in violation of IC 35-42-4.
(11) Destructive devices used, possessed, transported, or sold
in violation of IC 35-47.5.
(12) Tobacco products that are sold in violation of IC 24-3-5,
tobacco products that a person attempts to sell in violation of
IC 24-3-5, and other personal property owned and used by a
person to facilitate a violation of IC 24-3-5.
(13) Property used by a person to commit counterfeiting or
forgery in violation of IC 35-43-5-2.
(14) After December 31, 2005, if a person is convicted of an
offense specified in IC 25-26-14-26(b) or IC 35-43-10, the
following real or personal property:
(A) Property used or intended to be used to commit,
facilitate, or promote the commission of the offense.
(B) Property constituting, derived from, or traceable to the
gross proceeds that the person obtained directly or indirectly
as a result of the offense.
(15) Except as provided in subsection (e), a motor vehicle used
by a person who operates the motor vehicle:
(A) while intoxicated, in violation of IC 9-30-5-1 through
IC 9-30-5-5, if in the previous five (5) years the person has
two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to
IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction; or
(B) on a highway while the person's driver's license is
suspended in violation of IC 9-24-19-2 through
IC 9-24-19-4, if in the previous five (5) years the person has
two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to
IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction.
If a court orders the seizure of a motor vehicle under this
subdivision, the court shall transmit an order to the bureau of
motor vehicles recommending that the bureau not permit a
motor vehicle to be registered in the name of the person whose
motor vehicle was seized until the person possesses a current
driving license (as defined in IC 9-13-2-41).
(16) The following real or personal property:
(A) Property used or intended to be used to commit,
facilitate, or promote the commission of an offense specified
in IC 23-14-48-9, IC 30-2-9-7(b), IC 30-2-10-9(b), or
IC 30-2-13-38(f).
(B) Property constituting, derived from, or traceable to the
gross proceeds that a person obtains directly or indirectly as
a result of an offense specified in IC 23-14-48-9,
IC 30-2-9-7(b), IC 30-2-10-9(b), or IC 30-2-13-38(f).
(b) A vehicle used by any person as a common or contract carrier
in the transaction of business as a common or contract carrier is not
subject to seizure under this section, unless it can be proven by a
preponderance of the evidence that the owner of the vehicle
knowingly permitted the vehicle to be used to engage in conduct that
subjects it to seizure under subsection (a).
(c) Equipment under subsection (a)(10) may not be seized unless
it can be proven by a preponderance of the evidence that the owner
of the equipment knowingly permitted the equipment to be used to
engage in conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of IC 35-48-4 found near or on a person
who is committing, attempting to commit, or conspiring to commit
any of the following offenses shall be admitted into evidence in an
action under this chapter as prima facie evidence that the money,
negotiable instrument, security, or other thing of value is property
that has been used or was to have been used to facilitate the violation
of a criminal statute or is the proceeds of the violation of a criminal
statute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine or a
narcotic drug).
(2) IC 35-48-4-1.1 (dealing in methamphetamine).
(3) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled
substance).
(4) IC 35-48-4-3 (dealing in a schedule IV controlled
substance).
(5) IC 35-48-4-4 (dealing in a schedule V controlled substance)
as a Class B felony.
(6) IC 35-48-4-6 (possession of cocaine or a narcotic drug) as
a Class A felony, Class B felony, or Class C felony.
(7) IC 35-48-4-6.1 (possession of methamphetamine) as a Class
A felony, Class B felony, or Class C felony.
(8) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as
a Class C felony.
(e) A motor vehicle operated by a person who is not:
(1) an owner of the motor vehicle; or
(2) the spouse of the person who owns the motor vehicle;
is not subject to seizure under subsection (a)(15) unless it can be
proven by a preponderance of the evidence that the owner of the
vehicle knowingly permitted the vehicle to be used to engage in
conduct that subjects it to seizure under subsection (a)(15). As added by P.L.1-1998, SEC.19. Amended by P.L.17-2001, SEC.9;
P.L.3-2002, SEC.1; P.L.123-2002, SEC.30; P.L.117-2003, SEC.2;
P.L.253-2003, SEC.2; P.L.45-2005, SEC.1; P.L.160-2005, SEC.17;
P.L.181-2005, SEC.4; P.L.212-2005, SEC.75; P.L.1-2006, SEC.518;
P.L.94-2006, SEC.11; P.L.151-2006, SEC.13; P.L.137-2007,
SEC.34; P.L.114-2008, SEC.27; P.L.119-2008, SEC.13; P.L.1-2009,
SEC.162; P.L.143-2009, SEC.44.
IC 34-24-1-2 Seizure procedure; custody
Sec. 2. (a) Property may be seized under this chapter by a law
enforcement officer only if:
(1) the seizure is incident to a lawful:
(A) arrest;
(B) search; or
(C) administrative inspection;
(2) the property has been the subject of a prior judgment in
favor of the state or unit in a proceeding under this chapter (or
IC 34-4-30.1 before its repeal); or
(3) a court, after making an ex parte determination that there is
probable cause to believe the property is subject to seizure
under this chapter, issues an order for seizure.
(b) When property is seized under subsection (a), the law
enforcement agency making the seizure may, pending final
disposition:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(c) Property that is seized under subsection (a) (or
IC 34-4-30.1-2(a) before its repeal) is not subject to replevin but is
considered to be in the custody of the law enforcement agency
making the seizure. As added by P.L.1-1998, SEC.19.
IC 34-24-1-3 Action for reimbursement of law enforcement costs and forfeiture;
procedure
Sec. 3. (a) The prosecuting attorney for the county in which the
seizure occurs may, within ninety (90) days after receiving written
notice from the owner demanding return of the seized property or
within one hundred eighty (180) days after the property is seized,
whichever occurs first, cause an action for reimbursement of law
enforcement costs and forfeiture to be brought by filing a complaint
in the circuit, superior, or county court in the jurisdiction where the
seizure occurred. The action must be brought:
(1) in the name of the state or the state and the unit that
employed the law enforcement officers who made the seizure
if the state was not the employer; and
(2) within the period that a prosecution may be commenced
under IC 35-41-4-2 for the offense that is the basis for the
seizure.
(b) If the property seized was a vehicle or real property, the
prosecuting attorney shall serve, under the Indiana Rules of Trial
Procedure, a copy of the complaint upon each person whose right,
title, or interest is of record in the bureau of motor vehicles, in the
county recorder's office, or other office authorized to receive or
record vehicle or real property ownership interests.
(c) The owner of the seized property, or any person whose right,
title, or interest is of record may, within twenty (20) days after
service of the complaint under the Indiana Rules of Trial Procedure,
file an answer to the complaint and may appear at the hearing on the
action.
(d) If, at the end of the time allotted for an answer, there is no
answer on file, the court, upon motion, shall enter judgment in favor
of the state and the unit (if appropriate) for reimbursement of law
enforcement costs and shall order the property disposed of in
accordance with section 4 of this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-4 Hearing; burden of proof; disposition of seized property
Sec. 4. (a) At the hearing, the prosecuting attorney must show by
a preponderance of the evidence that the property was within the
definition of property subject to seizure under section 1 of this
chapter. If the property seized was a vehicle, the prosecuting attorney
must also show by a preponderance of the evidence that a person
who has an ownership interest of record in the bureau of motor
vehicles knew or had reason to know that the vehicle was being used
in the commission of the offense.
(b) If the prosecuting attorney fails to meet the burden of proof,
the court shall order the property released to the owner.
(c) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court, subject to section 5 of this
chapter, shall order delivery to the law enforcement agency that
seized the property. The court's order may permit the agency to use
the property for a period not to exceed three (3) years. However, the
order must require that, after the period specified by the court, the
law enforcement agency shall deliver the property to the county
sheriff for public sale.
(d) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court shall, subject to section 5 of this
chapter:
(1) determine the amount of law enforcement costs; and
(2) order that:
(A) the property, if it is not money or real property, be sold
under section 6 of this chapter, by the sheriff of the county
in which the property was seized, and if the property is a
vehicle, this sale must occur after any period of use specified
in subsection (c);
(B) the property, if it is real property, be sold in the same
manner as real property is sold on execution under
IC 34-55-6;
(C) the proceeds of the sale or the money be:
(i) deposited in the general fund of the state, or the unit
that employed the law enforcement officers that seized the
property; or
(ii) deposited in the general fund of a unit if the property
was seized by a local law enforcement agency of the unit
for an offense, an attempted offense, or a conspiracy to
commit an offense under IC 35-47 as part of or in
furtherance of an act of terrorism; and
(D) any excess in value of the proceeds or the money over
the law enforcement costs be forfeited and transferred to the
treasurer of state for deposit in the common school fund.
(e) If property that is seized under this chapter (or IC 34-4-30.1-4
before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section
3 of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (or
IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an
ownership interest of record as a bona fide purchaser for value. A
person is a bona fide purchaser for value under this section if the
person, at the time of the transfer, did not have reasonable cause to
believe that the property was subject to forfeiture under this chapter.
(f) If the property seized was an unlawful telecommunications
device (as defined in IC 35-45-13-6) or plans, instructions, or
publications used to commit an offense under IC 35-45-13, the court
may order the sheriff of the county in which the person was
convicted of an offense under IC 35-45-13 to destroy as contraband
or to otherwise lawfully dispose of the property. As added by P.L.1-1998, SEC.19. Amended by P.L.123-2002,
SEC.31.
IC 34-24-1-5 Determination of secured interest and appraised value; disposition
of property; payment
Sec. 5. (a) If:
(1) the court has entered judgment in favor of the state, and a
unit (if appropriate) concerning property that is subject to
seizure under this chapter; and
(2) a person:
(A) holding a valid lien, mortgage, security interest, or
interest under a conditional sales contract; or
(B) who is a co-owner of the property;
did not know of the illegal use;
the court shall determine whether the secured interest or the
co-owner's interest is equal to or in excess of the appraised value of
the property.
(b) Appraised value is to be determined as of the date of judgment
on a wholesale basis by:
(1) agreement between the secured party or the co-owner and
the prosecuting attorney; or
(2) the inheritance tax appraiser for the county in which the
action is brought.
(c) If the amount:
(1) due to the secured party; or
(2) of the co-owner's interest;
is equal to or greater than the appraised value of the property, the
court shall order the property released to the secured party or the
co-owner.
(d) If the amount:
(1) due the secured party; or
(2) of the co-owner's interest;
is less than the appraised value of the property, the holder of the
interest or the co-owner may pay into the court an amount equal to
the owner's equity, which shall be the difference between the
appraised value and the amount of the lien, mortgage, security
interest, interest under a conditional sales contract, or co-owner's
interest. Upon such payment, the state or unit, or both, shall
relinquish all claims to the property, and the court shall order the
payment deposited as provided in section 4(d) of this chapter.
(e) If the seized property is a vehicle and if the security holder or
the co-owner elects not to make payment as stated in subsection (d),
the vehicle shall be disposed of in accordance with section 4(c) of
this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-6 Public sale of property; publication of notice; proceeds
Sec. 6. (a) Where disposition of property is to be made at a public
sale, notice of sale shall be published in accordance with IC 34-55-6.
(b) When property is sold at a public sale under this chapter, the
proceeds shall be distributed in the following order:
(1) First, to the sheriff of the county for all expenditures made
or incurred in connection with the sale, including storage,
transportation, and necessary repair.
(2) Second, to any person:
(A) holding a valid lien, mortgage, land contract, or interest
under a conditional sales contract or the holder of other such
interest; or
(B) who is a co-owner and has an ownership interest;
up to the amount of that person's interest as determined by the
court.
(3) The remainder, if any, shall be transferred by the sheriff to
the appropriate fund as ordered by the court in section 4(d) of
this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-7 Court order; filing; effect
Sec. 7. (a) If the property seized was a vehicle, a copy of the
court's order under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the department of motor vehicles or other
appropriate agency; and
(2) constitutes authority for the issuance of clear title to that
vehicle in the name of the person or purchaser to whom the
order authorizes delivery.
(b) If the property seized was real property, a copy of the court's
order under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the county recorder; and
(2) constitutes authority for:
(A) the sale of the property in the manner provided under
IC 34-55-6; and
(B) the issuance of clear title to a bona fide purchaser for
value who acquires the real property at the sale. As added by P.L.1-1998, SEC.19.
IC 34-24-1-8 Retention of attorney to bring action
Sec. 8. (a) A prosecuting attorney may retain an attorney to bring
an action under this chapter.
(b) An attorney retained under this section is not required to be a
deputy prosecuting attorney but must be admitted to the practice of
law in Indiana. As added by P.L.1-1998, SEC.19.
IC 34-24-1-9 Disposition of seized property; expenditures of money
Sec. 9. (a) Upon motion of a prosecuting attorney under
IC 35-33-5-5(j), property seized under this chapter must be
transferred, subject to the perfected liens or other security interests
of any person in the property, to the appropriate federal authority for
disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
881(e) and any related regulations adopted by the United States
Department of Justice.
(b) Money received by a law enforcement agency as a result of a
forfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
881(e) and any related regulations adopted by the United States
Department of Justice must be deposited into a nonreverting fund
and may be expended only with the approval of:
(1) the executive (as defined in IC 36-1-2-5), if the money is
received by a local law enforcement agency; or
(2) the governor, if the money is received by a law enforcement
agency in the executive branch.
The money received under this subsection must be used solely for the
benefit of any agency directly participating in the seizure or
forfeiture for purposes consistent with federal laws and regulations. As added by P.L.174-1999, SEC.1. Amended by P.L.97-2004,
SEC.115.
IC 34-24 ARTICLE 24. CIVIL PROCEEDINGS RELATED TO
CRIMINAL ACTIVITIES
IC 34-24-1
Chapter 1. Forfeiture of Property Used in Violation of Certain
Criminal Statutes
IC 34-24-1-1 Seizure of vehicles and property commonly used as consideration
for controlled substances offenses; seizure of tobacco products and
personal property owned and used to facilitate violation
Sec. 1. (a) The following may be seized:
(1) All vehicles (as defined by IC 35-41-1), if they are used or
are intended for use by the person or persons in possession of
them to transport or in any manner to facilitate the
transportation of the following:
(A) A controlled substance for the purpose of committing,
attempting to commit, or conspiring to commit any of the
following:
(i) Dealing in or manufacturing cocaine or a narcotic drug
(IC 35-48-4-1).
(ii) Dealing in methamphetamine (IC 35-48-4-1.1).
(iii) Dealing in a schedule I, II, or III controlled substance
(IC 35-48-4-2).
(iv) Dealing in a schedule IV controlled substance (IC
35-48-4-3).
(v) Dealing in a schedule V controlled substance (IC
35-48-4-4).
(vi) Dealing in a counterfeit substance (IC 35-48-4-5).
(vii) Possession of cocaine or a narcotic drug (IC
35-48-4-6).
(viii) Possession of methamphetamine (IC 35-48-4-6.1).
(ix) Dealing in paraphernalia (IC 35-48-4-8.5).
(x) Dealing in marijuana, hash oil, or hashish (IC
35-48-4-10).
(B) Any stolen (IC 35-43-4-2) or converted property (IC
35-43-4-3) if the retail or repurchase value of that property
is one hundred dollars ($100) or more.
(C) Any hazardous waste in violation of IC 13-30-10-1.5.
(D) A bomb (as defined in IC 35-41-1-4.3) or weapon of
mass destruction (as defined in IC 35-41-1-29.4) used to
commit, used in an attempt to commit, or used in a
conspiracy to commit an offense under IC 35-47 as part of or
in furtherance of an act of terrorism (as defined by
IC 35-41-1-26.5).
(2) All money, negotiable instruments, securities, weapons,
communications devices, or any property used to commit, used
in an attempt to commit, or used in a conspiracy to commit an
offense under IC 35-47 as part of or in furtherance of an act of
terrorism or commonly used as consideration for a violation of
IC 35-48-4 (other than items subject to forfeiture under
IC 16-42-20-5 or IC 16-6-8.5-5.1 before its repeal):
(A) furnished or intended to be furnished by any person in
exchange for an act that is in violation of a criminal statute;
(B) used to facilitate any violation of a criminal statute; or
(C) traceable as proceeds of the violation of a criminal
statute.
(3) Any portion of real or personal property purchased with
money that is traceable as a proceed of a violation of a criminal
statute.
(4) A vehicle that is used by a person to:
(A) commit, attempt to commit, or conspire to commit;
(B) facilitate the commission of; or
(C) escape from the commission of;
murder (IC 35-42-1-1), kidnapping (IC 35-42-3-2), criminal
confinement (IC 35-42-3-3), rape (IC 35-42-4-1), child
molesting (IC 35-42-4-3), or child exploitation (IC 35-42-4-4),
or an offense under IC 35-47 as part of or in furtherance of an
act of terrorism.
(5) Real property owned by a person who uses it to commit any
of the following as a Class A felony, a Class B felony, or a
Class C felony:
(A) Dealing in or manufacturing cocaine or a narcotic drug
(IC 35-48-4-1).
(B) Dealing in methamphetamine (IC 35-48-4-1.1).
(C) Dealing in a schedule I, II, or III controlled substance (IC
35-48-4-2).
(D) Dealing in a schedule IV controlled substance (IC
35-48-4-3).
(E) Dealing in marijuana, hash oil, or hashish (IC
35-48-4-10).
(6) Equipment and recordings used by a person to commit fraud
under IC 35-43-5-4(10).
(7) Recordings sold, rented, transported, or possessed by a
person in violation of IC 24-4-10.
(8) Property (as defined by IC 35-41-1-23) or an enterprise (as
defined by IC 35-45-6-1) that is the object of a corrupt business
influence violation (IC 35-45-6-2).
(9) Unlawful telecommunications devices (as defined in
IC 35-45-13-6) and plans, instructions, or publications used to
commit an offense under IC 35-45-13.
(10) Any equipment, including computer equipment and
cellular telephones, used for or intended for use in preparing,
photographing, recording, videotaping, digitizing, printing,
copying, or disseminating matter in violation of IC 35-42-4.
(11) Destructive devices used, possessed, transported, or sold
in violation of IC 35-47.5.
(12) Tobacco products that are sold in violation of IC 24-3-5,
tobacco products that a person attempts to sell in violation of
IC 24-3-5, and other personal property owned and used by a
person to facilitate a violation of IC 24-3-5.
(13) Property used by a person to commit counterfeiting or
forgery in violation of IC 35-43-5-2.
(14) After December 31, 2005, if a person is convicted of an
offense specified in IC 25-26-14-26(b) or IC 35-43-10, the
following real or personal property:
(A) Property used or intended to be used to commit,
facilitate, or promote the commission of the offense.
(B) Property constituting, derived from, or traceable to the
gross proceeds that the person obtained directly or indirectly
as a result of the offense.
(15) Except as provided in subsection (e), a motor vehicle used
by a person who operates the motor vehicle:
(A) while intoxicated, in violation of IC 9-30-5-1 through
IC 9-30-5-5, if in the previous five (5) years the person has
two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to
IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction; or
(B) on a highway while the person's driver's license is
suspended in violation of IC 9-24-19-2 through
IC 9-24-19-4, if in the previous five (5) years the person has
two (2) or more prior unrelated convictions:
(i) for operating a motor vehicle while intoxicated in
violation of IC 9-30-5-1 through IC 9-30-5-5; or
(ii) for an offense that is substantially similar to
IC 9-30-5-1 through IC 9-30-5-5 in another jurisdiction.
If a court orders the seizure of a motor vehicle under this
subdivision, the court shall transmit an order to the bureau of
motor vehicles recommending that the bureau not permit a
motor vehicle to be registered in the name of the person whose
motor vehicle was seized until the person possesses a current
driving license (as defined in IC 9-13-2-41).
(16) The following real or personal property:
(A) Property used or intended to be used to commit,
facilitate, or promote the commission of an offense specified
in IC 23-14-48-9, IC 30-2-9-7(b), IC 30-2-10-9(b), or
IC 30-2-13-38(f).
(B) Property constituting, derived from, or traceable to the
gross proceeds that a person obtains directly or indirectly as
a result of an offense specified in IC 23-14-48-9,
IC 30-2-9-7(b), IC 30-2-10-9(b), or IC 30-2-13-38(f).
(b) A vehicle used by any person as a common or contract carrier
in the transaction of business as a common or contract carrier is not
subject to seizure under this section, unless it can be proven by a
preponderance of the evidence that the owner of the vehicle
knowingly permitted the vehicle to be used to engage in conduct that
subjects it to seizure under subsection (a).
(c) Equipment under subsection (a)(10) may not be seized unless
it can be proven by a preponderance of the evidence that the owner
of the equipment knowingly permitted the equipment to be used to
engage in conduct that subjects it to seizure under subsection (a)(10).
(d) Money, negotiable instruments, securities, weapons,
communications devices, or any property commonly used as
consideration for a violation of IC 35-48-4 found near or on a person
who is committing, attempting to commit, or conspiring to commit
any of the following offenses shall be admitted into evidence in an
action under this chapter as prima facie evidence that the money,
negotiable instrument, security, or other thing of value is property
that has been used or was to have been used to facilitate the violation
of a criminal statute or is the proceeds of the violation of a criminal
statute:
(1) IC 35-48-4-1 (dealing in or manufacturing cocaine or a
narcotic drug).
(2) IC 35-48-4-1.1 (dealing in methamphetamine).
(3) IC 35-48-4-2 (dealing in a schedule I, II, or III controlled
substance).
(4) IC 35-48-4-3 (dealing in a schedule IV controlled
substance).
(5) IC 35-48-4-4 (dealing in a schedule V controlled substance)
as a Class B felony.
(6) IC 35-48-4-6 (possession of cocaine or a narcotic drug) as
a Class A felony, Class B felony, or Class C felony.
(7) IC 35-48-4-6.1 (possession of methamphetamine) as a Class
A felony, Class B felony, or Class C felony.
(8) IC 35-48-4-10 (dealing in marijuana, hash oil, or hashish) as
a Class C felony.
(e) A motor vehicle operated by a person who is not:
(1) an owner of the motor vehicle; or
(2) the spouse of the person who owns the motor vehicle;
is not subject to seizure under subsection (a)(15) unless it can be
proven by a preponderance of the evidence that the owner of the
vehicle knowingly permitted the vehicle to be used to engage in
conduct that subjects it to seizure under subsection (a)(15). As added by P.L.1-1998, SEC.19. Amended by P.L.17-2001, SEC.9;
P.L.3-2002, SEC.1; P.L.123-2002, SEC.30; P.L.117-2003, SEC.2;
P.L.253-2003, SEC.2; P.L.45-2005, SEC.1; P.L.160-2005, SEC.17;
P.L.181-2005, SEC.4; P.L.212-2005, SEC.75; P.L.1-2006, SEC.518;
P.L.94-2006, SEC.11; P.L.151-2006, SEC.13; P.L.137-2007,
SEC.34; P.L.114-2008, SEC.27; P.L.119-2008, SEC.13; P.L.1-2009,
SEC.162; P.L.143-2009, SEC.44.
IC 34-24-1-2 Seizure procedure; custody
Sec. 2. (a) Property may be seized under this chapter by a law
enforcement officer only if:
(1) the seizure is incident to a lawful:
(A) arrest;
(B) search; or
(C) administrative inspection;
(2) the property has been the subject of a prior judgment in
favor of the state or unit in a proceeding under this chapter (or
IC 34-4-30.1 before its repeal); or
(3) a court, after making an ex parte determination that there is
probable cause to believe the property is subject to seizure
under this chapter, issues an order for seizure.
(b) When property is seized under subsection (a), the law
enforcement agency making the seizure may, pending final
disposition:
(1) place the property under seal;
(2) remove the property to a place designated by the court; or
(3) require another agency authorized by law to take custody of
the property and remove it to an appropriate location.
(c) Property that is seized under subsection (a) (or
IC 34-4-30.1-2(a) before its repeal) is not subject to replevin but is
considered to be in the custody of the law enforcement agency
making the seizure. As added by P.L.1-1998, SEC.19.
IC 34-24-1-3 Action for reimbursement of law enforcement costs and forfeiture;
procedure
Sec. 3. (a) The prosecuting attorney for the county in which the
seizure occurs may, within ninety (90) days after receiving written
notice from the owner demanding return of the seized property or
within one hundred eighty (180) days after the property is seized,
whichever occurs first, cause an action for reimbursement of law
enforcement costs and forfeiture to be brought by filing a complaint
in the circuit, superior, or county court in the jurisdiction where the
seizure occurred. The action must be brought:
(1) in the name of the state or the state and the unit that
employed the law enforcement officers who made the seizure
if the state was not the employer; and
(2) within the period that a prosecution may be commenced
under IC 35-41-4-2 for the offense that is the basis for the
seizure.
(b) If the property seized was a vehicle or real property, the
prosecuting attorney shall serve, under the Indiana Rules of Trial
Procedure, a copy of the complaint upon each person whose right,
title, or interest is of record in the bureau of motor vehicles, in the
county recorder's office, or other office authorized to receive or
record vehicle or real property ownership interests.
(c) The owner of the seized property, or any person whose right,
title, or interest is of record may, within twenty (20) days after
service of the complaint under the Indiana Rules of Trial Procedure,
file an answer to the complaint and may appear at the hearing on the
action.
(d) If, at the end of the time allotted for an answer, there is no
answer on file, the court, upon motion, shall enter judgment in favor
of the state and the unit (if appropriate) for reimbursement of law
enforcement costs and shall order the property disposed of in
accordance with section 4 of this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-4 Hearing; burden of proof; disposition of seized property
Sec. 4. (a) At the hearing, the prosecuting attorney must show by
a preponderance of the evidence that the property was within the
definition of property subject to seizure under section 1 of this
chapter. If the property seized was a vehicle, the prosecuting attorney
must also show by a preponderance of the evidence that a person
who has an ownership interest of record in the bureau of motor
vehicles knew or had reason to know that the vehicle was being used
in the commission of the offense.
(b) If the prosecuting attorney fails to meet the burden of proof,
the court shall order the property released to the owner.
(c) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court, subject to section 5 of this
chapter, shall order delivery to the law enforcement agency that
seized the property. The court's order may permit the agency to use
the property for a period not to exceed three (3) years. However, the
order must require that, after the period specified by the court, the
law enforcement agency shall deliver the property to the county
sheriff for public sale.
(d) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court shall, subject to section 5 of this
chapter:
(1) determine the amount of law enforcement costs; and
(2) order that:
(A) the property, if it is not money or real property, be sold
under section 6 of this chapter, by the sheriff of the county
in which the property was seized, and if the property is a
vehicle, this sale must occur after any period of use specified
in subsection (c);
(B) the property, if it is real property, be sold in the same
manner as real property is sold on execution under
IC 34-55-6;
(C) the proceeds of the sale or the money be:
(i) deposited in the general fund of the state, or the unit
that employed the law enforcement officers that seized the
property; or
(ii) deposited in the general fund of a unit if the property
was seized by a local law enforcement agency of the unit
for an offense, an attempted offense, or a conspiracy to
commit an offense under IC 35-47 as part of or in
furtherance of an act of terrorism; and
(D) any excess in value of the proceeds or the money over
the law enforcement costs be forfeited and transferred to the
treasurer of state for deposit in the common school fund.
(e) If property that is seized under this chapter (or IC 34-4-30.1-4
before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section
3 of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (or
IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an
ownership interest of record as a bona fide purchaser for value. A
person is a bona fide purchaser for value under this section if the
person, at the time of the transfer, did not have reasonable cause to
believe that the property was subject to forfeiture under this chapter.
(f) If the property seized was an unlawful telecommunications
device (as defined in IC 35-45-13-6) or plans, instructions, or
publications used to commit an offense under IC 35-45-13, the court
may order the sheriff of the county in which the person was
convicted of an offense under IC 35-45-13 to destroy as contraband
or to otherwise lawfully dispose of the property. As added by P.L.1-1998, SEC.19. Amended by P.L.123-2002,
SEC.31.
IC 34-24-1-5 Determination of secured interest and appraised value; disposition
of property; payment
Sec. 5. (a) If:
(1) the court has entered judgment in favor of the state, and a
unit (if appropriate) concerning property that is subject to
seizure under this chapter; and
(2) a person:
(A) holding a valid lien, mortgage, security interest, or
interest under a conditional sales contract; or
(B) who is a co-owner of the property;
did not know of the illegal use;
the court shall determine whether the secured interest or the
co-owner's interest is equal to or in excess of the appraised value of
the property.
(b) Appraised value is to be determined as of the date of judgment
on a wholesale basis by:
(1) agreement between the secured party or the co-owner and
the prosecuting attorney; or
(2) the inheritance tax appraiser for the county in which the
action is brought.
(c) If the amount:
(1) due to the secured party; or
(2) of the co-owner's interest;
is equal to or greater than the appraised value of the property, the
court shall order the property released to the secured party or the
co-owner.
(d) If the amount:
(1) due the secured party; or
(2) of the co-owner's interest;
is less than the appraised value of the property, the holder of the
interest or the co-owner may pay into the court an amount equal to
the owner's equity, which shall be the difference between the
appraised value and the amount of the lien, mortgage, security
interest, interest under a conditional sales contract, or co-owner's
interest. Upon such payment, the state or unit, or both, shall
relinquish all claims to the property, and the court shall order the
payment deposited as provided in section 4(d) of this chapter.
(e) If the seized property is a vehicle and if the security holder or
the co-owner elects not to make payment as stated in subsection (d),
the vehicle shall be disposed of in accordance with section 4(c) of
this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-6 Public sale of property; publication of notice; proceeds
Sec. 6. (a) Where disposition of property is to be made at a public
sale, notice of sale shall be published in accordance with IC 34-55-6.
(b) When property is sold at a public sale under this chapter, the
proceeds shall be distributed in the following order:
(1) First, to the sheriff of the county for all expenditures made
or incurred in connection with the sale, including storage,
transportation, and necessary repair.
(2) Second, to any person:
(A) holding a valid lien, mortgage, land contract, or interest
under a conditional sales contract or the holder of other such
interest; or
(B) who is a co-owner and has an ownership interest;
up to the amount of that person's interest as determined by the
court.
(3) The remainder, if any, shall be transferred by the sheriff to
the appropriate fund as ordered by the court in section 4(d) of
this chapter. As added by P.L.1-1998, SEC.19.
IC 34-24-1-7 Court order; filing; effect
Sec. 7. (a) If the property seized was a vehicle, a copy of the
court's order under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the department of motor vehicles or other
appropriate agency; and
(2) constitutes authority for the issuance of clear title to that
vehicle in the name of the person or purchaser to whom the
order authorizes delivery.
(b) If the property seized was real property, a copy of the court's
order under this chapter (or IC 34-4-30.1-7 before its repeal):
(1) shall be filed with the county recorder; and
(2) constitutes authority for:
(A) the sale of the property in the manner provided under
IC 34-55-6; and
(B) the issuance of clear title to a bona fide purchaser for
value who acquires the real property at the sale. As added by P.L.1-1998, SEC.19.
IC 34-24-1-8 Retention of attorney to bring action
Sec. 8. (a) A prosecuting attorney may retain an attorney to bring
an action under this chapter.
(b) An attorney retained under this section is not required to be a
deputy prosecuting attorney but must be admitted to the practice of
law in Indiana. As added by P.L.1-1998, SEC.19.
IC 34-24-1-9 Disposition of seized property; expenditures of money
Sec. 9. (a) Upon motion of a prosecuting attorney under
IC 35-33-5-5(j), property seized under this chapter must be
transferred, subject to the perfected liens or other security interests
of any person in the property, to the appropriate federal authority for
disposition under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
881(e) and any related regulations adopted by the United States
Department of Justice.
(b) Money received by a law enforcement agency as a result of a
forfeiture under 18 U.S.C. 981(e), 19 U.S.C. 1616a, or 21 U.S.C.
881(e) and any related regulations adopted by the United States
Department of Justice must be deposited into a nonreverting fund
and may be expended only with the approval of:
(1) the executive (as defined in IC 36-1-2-5), if the money is
received by a local law enforcement agency; or
(2) the governor, if the money is received by a law enforcement
agency in the executive branch.
The money received under this subsection must be used solely for the
benefit of any agency directly participating in the seizure or
forfeiture for purposes consistent with federal laws and regulations. As added by P.L.174-1999, SEC.1. Amended by P.L.97-2004,
SEC.115.
