State Codes and Statutes

Statutes > Utah > Title-24 > Chapter-01 > 24-1-8

24-1-8. Criminal procedures.
(1) In cases where an owner is criminally prosecuted for conduct giving rise to forfeiture,the prosecuting attorney may elect to forfeit the owner's interest in the property civilly orcriminally, provided that no civil forfeiture judgment may be entered with respect to the propertyof a defendant who is acquitted of the offense on which the forfeiture claim is based.
(2) If the prosecuting attorney elects to criminally forfeit the owner's interest in theproperty, the information or indictment must state that the owner's interest in the specificallydescribed property is subject to criminal forfeiture and the basis for the forfeiture.
(3) (a) Upon application of the prosecuting attorney, the court may enter restrainingorders or injunctions, or take other reasonable action to preserve for forfeiture under this sectionany forfeitable property if, after notice to persons known, or discoverable after due diligence, tohave an interest in the property and after affording them an opportunity for a hearing, the courtdetermines that:
(i) there is a substantial probability that the state will prevail on the issue of forfeitureand that failure to enter the order will result in the property being sold, transferred, destroyed, orremoved from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property or prevent its sale, transfer,destruction, or removal through the entry of the requested order outweighs the hardship againstany party against whom the order is to be entered.
(b) A temporary restraining order may be entered ex parte upon application of theprosecuting attorney before or after an information or indictment has been filed with respect tothe property, if the prosecuting attorney demonstrates that:
(i) there is probable cause to believe that the property with respect to which the order issought would, in the event of a conviction, be subject to forfeiture under this section; and
(ii) provision of notice would jeopardize the availability of the property for forfeiture orwould jeopardize an ongoing criminal investigation.
(c) The temporary order expires not more than 10 days after entry unless extended forgood cause shown or unless the party against whom it is entered consents to an extension. Anadversarial hearing concerning an order entered under this section shall be held as soon aspracticable and prior to the expiration of the temporary order.
(d) The court is not bound by the Utah Rules of Evidence regarding evidence it mayreceive and consider at any hearing under this section.
(4) (a) Upon conviction by a jury of an owner for conduct giving rise to criminalforfeiture, the jury shall be instructed and asked to return a special verdict as to the extent of theproperty identified in the information or indictment, if any, that is forfeitable.
(b) Whether property is forfeitable shall be proven beyond a reasonable doubt.
(5) (a) Upon conviction of a person for violating any provision of state law subjecting anowner's property to forfeiture and upon the jury's special verdict that the property is forfeitable,the court shall enter a judgment and order the property forfeited to the state upon the terms statedby the court in its order.
(b) Following the entry of an order declaring property forfeited, the court may, uponapplication of the prosecuting attorney, enter appropriate restraining orders or injunctions,require the execution of satisfactory performance bonds, appoint receivers, conservators,appraisers, accountants, or trustees, or take any other action to protect the interest of the state inproperty ordered forfeited.

(6) (a) After property is ordered forfeited under this section, the seizing agency shalldirect the disposition of the property under Section 24-1-17. Any property right or interest notexercisable by or transferable for value to the state expires and does not revert to the defendant. The defendant or any person acting in concert with or on behalf of the defendant is not eligible topurchase forfeited property at any sale held by the seizing agency unless approved by the judge.
(b) The court may stay the sale or disposition of the property pending the conclusion ofany appeal of the criminal case giving rise to the forfeiture if the defendant demonstrates thatproceeding with the sale or disposition of the property may result in irreparable injury, harm orloss to him.
(7) Except under Subsection (3) or (10), a party claiming an interest in property subjectto criminal forfeiture under this section:
(a) may not intervene in a trial or appeal of a criminal case involving the forfeiture ofproperty under this section; and
(b) may not commence an action at law or equity against the state or the countyconcerning the validity of his alleged interests in the property subsequent to the filing of anindictment or an information alleging that the property is subject to forfeiture under this section.
(8) The district court of the state which has jurisdiction of a case under this part mayenter orders under this section without regard to the location of any property which may besubject to forfeiture under this section, or which has been ordered forfeited under this section.
(9) To facilitate the identification or location of property declared forfeited and tofacilitate the disposition of petitions for remission or mitigation of forfeiture, after the entry of anorder declaring property forfeited to the state, the court may upon application of the prosecutingattorney order that the testimony of any witness relating to the property forfeited be taken bydeposition, and that any book, paper, document, record, recording, or other material notprivileged shall be produced as provided for depositions and discovery under the Utah Rules ofCivil Procedure.
(10) (a) Following the entry of an order of forfeiture under this section, the prosecutingattorney shall publish notice of the order's intent to dispose of the property as the court maydirect. The prosecuting attorney shall also provide direct written notice to any person known tohave an alleged interest in the property subject to the order of forfeiture.
(b) Any person, other than the defendant, asserting a legal interest in property which hasbeen ordered forfeited to the state under this section may, within 30 days of the final publicationof notice or his receipt of written notice under Subsection (10)(a), whichever is earlier, petitionthe court for a hearing to adjudicate the validity of his alleged interest in the property. Anygenuine issue of material fact, including issues of standing, is triable to a jury upon demand ofany party.
(c) The petition shall be in writing and signed by the petitioner under penalty of perjury. It shall set forth the nature and extent of the petitioner's right, title, or interest in the property, thetime and circumstances of the petitioner's acquisition of the right, title, or interest in the property,and any additional facts supporting the petitioner's claim and the relief sought.
(d) The trial or hearing on the petition shall be expedited to the extent practicable. Thecourt may consolidate a trial or hearing on the petition and any petition filed by any other personunder this section other than the defendant. The court shall permit the parties to conduct pretrialdiscovery pursuant to the Utah Rules of Civil Procedure.
(e) At the trial or hearing, the petitioner may testify and present evidence and witnesses

on his own behalf and cross-examine witnesses who appear at the hearing. The prosecutingattorney may present evidence and witnesses in rebuttal and in defense of the claim to theproperty and cross-examine witnesses who appear. In addition to testimony and evidencepresented at the trial or hearing, the court may consider the relevant portion of the record of thecriminal case which resulted in the order of forfeiture. Any trial or hearing shall be conductedpursuant to the Utah Rules of Evidence.
(f) The court shall amend the order of forfeiture in accordance with its determination, ifafter the trial or hearing, the court or jury determines that the petitioner has established by apreponderance of the evidence that:
(i) the petitioner has a legal right, title, or interest in the property, and the right, title, orinterest renders the order of forfeiture invalid in whole or in part because the right, title, orinterest was vested in the petitioner rather than the defendant or was superior to any right, title, orinterest of the defendant at the time of the commission of the acts or conduct which gave rise tothe forfeiture of the property under this section; or
(ii) the petitioner acquired the right, title or interest in the property in a bona fidetransaction for value and, at the time of such acquisition, the petitioner did not know that theproperty was subject to forfeiture.
(g) Following the court's disposition of all petitions filed under this Subsection (10), or ifno petitions are filed following the expiration of the period provided in Subsection (10)(b) for thefiling of petitions, the state has clear title to property subject to the order of forfeiture and maywarrant good title to any subsequent purchaser or transferee.

Amended by Chapter 180, 2007 General Session

State Codes and Statutes

Statutes > Utah > Title-24 > Chapter-01 > 24-1-8

24-1-8. Criminal procedures.
(1) In cases where an owner is criminally prosecuted for conduct giving rise to forfeiture,the prosecuting attorney may elect to forfeit the owner's interest in the property civilly orcriminally, provided that no civil forfeiture judgment may be entered with respect to the propertyof a defendant who is acquitted of the offense on which the forfeiture claim is based.
(2) If the prosecuting attorney elects to criminally forfeit the owner's interest in theproperty, the information or indictment must state that the owner's interest in the specificallydescribed property is subject to criminal forfeiture and the basis for the forfeiture.
(3) (a) Upon application of the prosecuting attorney, the court may enter restrainingorders or injunctions, or take other reasonable action to preserve for forfeiture under this sectionany forfeitable property if, after notice to persons known, or discoverable after due diligence, tohave an interest in the property and after affording them an opportunity for a hearing, the courtdetermines that:
(i) there is a substantial probability that the state will prevail on the issue of forfeitureand that failure to enter the order will result in the property being sold, transferred, destroyed, orremoved from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property or prevent its sale, transfer,destruction, or removal through the entry of the requested order outweighs the hardship againstany party against whom the order is to be entered.
(b) A temporary restraining order may be entered ex parte upon application of theprosecuting attorney before or after an information or indictment has been filed with respect tothe property, if the prosecuting attorney demonstrates that:
(i) there is probable cause to believe that the property with respect to which the order issought would, in the event of a conviction, be subject to forfeiture under this section; and
(ii) provision of notice would jeopardize the availability of the property for forfeiture orwould jeopardize an ongoing criminal investigation.
(c) The temporary order expires not more than 10 days after entry unless extended forgood cause shown or unless the party against whom it is entered consents to an extension. Anadversarial hearing concerning an order entered under this section shall be held as soon aspracticable and prior to the expiration of the temporary order.
(d) The court is not bound by the Utah Rules of Evidence regarding evidence it mayreceive and consider at any hearing under this section.
(4) (a) Upon conviction by a jury of an owner for conduct giving rise to criminalforfeiture, the jury shall be instructed and asked to return a special verdict as to the extent of theproperty identified in the information or indictment, if any, that is forfeitable.
(b) Whether property is forfeitable shall be proven beyond a reasonable doubt.
(5) (a) Upon conviction of a person for violating any provision of state law subjecting anowner's property to forfeiture and upon the jury's special verdict that the property is forfeitable,the court shall enter a judgment and order the property forfeited to the state upon the terms statedby the court in its order.
(b) Following the entry of an order declaring property forfeited, the court may, uponapplication of the prosecuting attorney, enter appropriate restraining orders or injunctions,require the execution of satisfactory performance bonds, appoint receivers, conservators,appraisers, accountants, or trustees, or take any other action to protect the interest of the state inproperty ordered forfeited.

(6) (a) After property is ordered forfeited under this section, the seizing agency shalldirect the disposition of the property under Section 24-1-17. Any property right or interest notexercisable by or transferable for value to the state expires and does not revert to the defendant. The defendant or any person acting in concert with or on behalf of the defendant is not eligible topurchase forfeited property at any sale held by the seizing agency unless approved by the judge.
(b) The court may stay the sale or disposition of the property pending the conclusion ofany appeal of the criminal case giving rise to the forfeiture if the defendant demonstrates thatproceeding with the sale or disposition of the property may result in irreparable injury, harm orloss to him.
(7) Except under Subsection (3) or (10), a party claiming an interest in property subjectto criminal forfeiture under this section:
(a) may not intervene in a trial or appeal of a criminal case involving the forfeiture ofproperty under this section; and
(b) may not commence an action at law or equity against the state or the countyconcerning the validity of his alleged interests in the property subsequent to the filing of anindictment or an information alleging that the property is subject to forfeiture under this section.
(8) The district court of the state which has jurisdiction of a case under this part mayenter orders under this section without regard to the location of any property which may besubject to forfeiture under this section, or which has been ordered forfeited under this section.
(9) To facilitate the identification or location of property declared forfeited and tofacilitate the disposition of petitions for remission or mitigation of forfeiture, after the entry of anorder declaring property forfeited to the state, the court may upon application of the prosecutingattorney order that the testimony of any witness relating to the property forfeited be taken bydeposition, and that any book, paper, document, record, recording, or other material notprivileged shall be produced as provided for depositions and discovery under the Utah Rules ofCivil Procedure.
(10) (a) Following the entry of an order of forfeiture under this section, the prosecutingattorney shall publish notice of the order's intent to dispose of the property as the court maydirect. The prosecuting attorney shall also provide direct written notice to any person known tohave an alleged interest in the property subject to the order of forfeiture.
(b) Any person, other than the defendant, asserting a legal interest in property which hasbeen ordered forfeited to the state under this section may, within 30 days of the final publicationof notice or his receipt of written notice under Subsection (10)(a), whichever is earlier, petitionthe court for a hearing to adjudicate the validity of his alleged interest in the property. Anygenuine issue of material fact, including issues of standing, is triable to a jury upon demand ofany party.
(c) The petition shall be in writing and signed by the petitioner under penalty of perjury. It shall set forth the nature and extent of the petitioner's right, title, or interest in the property, thetime and circumstances of the petitioner's acquisition of the right, title, or interest in the property,and any additional facts supporting the petitioner's claim and the relief sought.
(d) The trial or hearing on the petition shall be expedited to the extent practicable. Thecourt may consolidate a trial or hearing on the petition and any petition filed by any other personunder this section other than the defendant. The court shall permit the parties to conduct pretrialdiscovery pursuant to the Utah Rules of Civil Procedure.
(e) At the trial or hearing, the petitioner may testify and present evidence and witnesses

on his own behalf and cross-examine witnesses who appear at the hearing. The prosecutingattorney may present evidence and witnesses in rebuttal and in defense of the claim to theproperty and cross-examine witnesses who appear. In addition to testimony and evidencepresented at the trial or hearing, the court may consider the relevant portion of the record of thecriminal case which resulted in the order of forfeiture. Any trial or hearing shall be conductedpursuant to the Utah Rules of Evidence.
(f) The court shall amend the order of forfeiture in accordance with its determination, ifafter the trial or hearing, the court or jury determines that the petitioner has established by apreponderance of the evidence that:
(i) the petitioner has a legal right, title, or interest in the property, and the right, title, orinterest renders the order of forfeiture invalid in whole or in part because the right, title, orinterest was vested in the petitioner rather than the defendant or was superior to any right, title, orinterest of the defendant at the time of the commission of the acts or conduct which gave rise tothe forfeiture of the property under this section; or
(ii) the petitioner acquired the right, title or interest in the property in a bona fidetransaction for value and, at the time of such acquisition, the petitioner did not know that theproperty was subject to forfeiture.
(g) Following the court's disposition of all petitions filed under this Subsection (10), or ifno petitions are filed following the expiration of the period provided in Subsection (10)(b) for thefiling of petitions, the state has clear title to property subject to the order of forfeiture and maywarrant good title to any subsequent purchaser or transferee.

Amended by Chapter 180, 2007 General Session


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State Codes and Statutes

Statutes > Utah > Title-24 > Chapter-01 > 24-1-8

24-1-8. Criminal procedures.
(1) In cases where an owner is criminally prosecuted for conduct giving rise to forfeiture,the prosecuting attorney may elect to forfeit the owner's interest in the property civilly orcriminally, provided that no civil forfeiture judgment may be entered with respect to the propertyof a defendant who is acquitted of the offense on which the forfeiture claim is based.
(2) If the prosecuting attorney elects to criminally forfeit the owner's interest in theproperty, the information or indictment must state that the owner's interest in the specificallydescribed property is subject to criminal forfeiture and the basis for the forfeiture.
(3) (a) Upon application of the prosecuting attorney, the court may enter restrainingorders or injunctions, or take other reasonable action to preserve for forfeiture under this sectionany forfeitable property if, after notice to persons known, or discoverable after due diligence, tohave an interest in the property and after affording them an opportunity for a hearing, the courtdetermines that:
(i) there is a substantial probability that the state will prevail on the issue of forfeitureand that failure to enter the order will result in the property being sold, transferred, destroyed, orremoved from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
(ii) the need to preserve the availability of the property or prevent its sale, transfer,destruction, or removal through the entry of the requested order outweighs the hardship againstany party against whom the order is to be entered.
(b) A temporary restraining order may be entered ex parte upon application of theprosecuting attorney before or after an information or indictment has been filed with respect tothe property, if the prosecuting attorney demonstrates that:
(i) there is probable cause to believe that the property with respect to which the order issought would, in the event of a conviction, be subject to forfeiture under this section; and
(ii) provision of notice would jeopardize the availability of the property for forfeiture orwould jeopardize an ongoing criminal investigation.
(c) The temporary order expires not more than 10 days after entry unless extended forgood cause shown or unless the party against whom it is entered consents to an extension. Anadversarial hearing concerning an order entered under this section shall be held as soon aspracticable and prior to the expiration of the temporary order.
(d) The court is not bound by the Utah Rules of Evidence regarding evidence it mayreceive and consider at any hearing under this section.
(4) (a) Upon conviction by a jury of an owner for conduct giving rise to criminalforfeiture, the jury shall be instructed and asked to return a special verdict as to the extent of theproperty identified in the information or indictment, if any, that is forfeitable.
(b) Whether property is forfeitable shall be proven beyond a reasonable doubt.
(5) (a) Upon conviction of a person for violating any provision of state law subjecting anowner's property to forfeiture and upon the jury's special verdict that the property is forfeitable,the court shall enter a judgment and order the property forfeited to the state upon the terms statedby the court in its order.
(b) Following the entry of an order declaring property forfeited, the court may, uponapplication of the prosecuting attorney, enter appropriate restraining orders or injunctions,require the execution of satisfactory performance bonds, appoint receivers, conservators,appraisers, accountants, or trustees, or take any other action to protect the interest of the state inproperty ordered forfeited.

(6) (a) After property is ordered forfeited under this section, the seizing agency shalldirect the disposition of the property under Section 24-1-17. Any property right or interest notexercisable by or transferable for value to the state expires and does not revert to the defendant. The defendant or any person acting in concert with or on behalf of the defendant is not eligible topurchase forfeited property at any sale held by the seizing agency unless approved by the judge.
(b) The court may stay the sale or disposition of the property pending the conclusion ofany appeal of the criminal case giving rise to the forfeiture if the defendant demonstrates thatproceeding with the sale or disposition of the property may result in irreparable injury, harm orloss to him.
(7) Except under Subsection (3) or (10), a party claiming an interest in property subjectto criminal forfeiture under this section:
(a) may not intervene in a trial or appeal of a criminal case involving the forfeiture ofproperty under this section; and
(b) may not commence an action at law or equity against the state or the countyconcerning the validity of his alleged interests in the property subsequent to the filing of anindictment or an information alleging that the property is subject to forfeiture under this section.
(8) The district court of the state which has jurisdiction of a case under this part mayenter orders under this section without regard to the location of any property which may besubject to forfeiture under this section, or which has been ordered forfeited under this section.
(9) To facilitate the identification or location of property declared forfeited and tofacilitate the disposition of petitions for remission or mitigation of forfeiture, after the entry of anorder declaring property forfeited to the state, the court may upon application of the prosecutingattorney order that the testimony of any witness relating to the property forfeited be taken bydeposition, and that any book, paper, document, record, recording, or other material notprivileged shall be produced as provided for depositions and discovery under the Utah Rules ofCivil Procedure.
(10) (a) Following the entry of an order of forfeiture under this section, the prosecutingattorney shall publish notice of the order's intent to dispose of the property as the court maydirect. The prosecuting attorney shall also provide direct written notice to any person known tohave an alleged interest in the property subject to the order of forfeiture.
(b) Any person, other than the defendant, asserting a legal interest in property which hasbeen ordered forfeited to the state under this section may, within 30 days of the final publicationof notice or his receipt of written notice under Subsection (10)(a), whichever is earlier, petitionthe court for a hearing to adjudicate the validity of his alleged interest in the property. Anygenuine issue of material fact, including issues of standing, is triable to a jury upon demand ofany party.
(c) The petition shall be in writing and signed by the petitioner under penalty of perjury. It shall set forth the nature and extent of the petitioner's right, title, or interest in the property, thetime and circumstances of the petitioner's acquisition of the right, title, or interest in the property,and any additional facts supporting the petitioner's claim and the relief sought.
(d) The trial or hearing on the petition shall be expedited to the extent practicable. Thecourt may consolidate a trial or hearing on the petition and any petition filed by any other personunder this section other than the defendant. The court shall permit the parties to conduct pretrialdiscovery pursuant to the Utah Rules of Civil Procedure.
(e) At the trial or hearing, the petitioner may testify and present evidence and witnesses

on his own behalf and cross-examine witnesses who appear at the hearing. The prosecutingattorney may present evidence and witnesses in rebuttal and in defense of the claim to theproperty and cross-examine witnesses who appear. In addition to testimony and evidencepresented at the trial or hearing, the court may consider the relevant portion of the record of thecriminal case which resulted in the order of forfeiture. Any trial or hearing shall be conductedpursuant to the Utah Rules of Evidence.
(f) The court shall amend the order of forfeiture in accordance with its determination, ifafter the trial or hearing, the court or jury determines that the petitioner has established by apreponderance of the evidence that:
(i) the petitioner has a legal right, title, or interest in the property, and the right, title, orinterest renders the order of forfeiture invalid in whole or in part because the right, title, orinterest was vested in the petitioner rather than the defendant or was superior to any right, title, orinterest of the defendant at the time of the commission of the acts or conduct which gave rise tothe forfeiture of the property under this section; or
(ii) the petitioner acquired the right, title or interest in the property in a bona fidetransaction for value and, at the time of such acquisition, the petitioner did not know that theproperty was subject to forfeiture.
(g) Following the court's disposition of all petitions filed under this Subsection (10), or ifno petitions are filed following the expiration of the period provided in Subsection (10)(b) for thefiling of petitions, the state has clear title to property subject to the order of forfeiture and maywarrant good title to any subsequent purchaser or transferee.

Amended by Chapter 180, 2007 General Session


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