HB-5490, As Passed House, March 16, 2006
December 8, 2005, Introduced by Reps. David Law, Farrah, Hune, Mortimer, Kahn, Jones, Gleason, Garfield, Schuitmaker, Stakoe, Hansen, Dillon and Huizenga and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 4703, 4704, 4705, and 4708 (MCL 600.4703,
600.4704, 600.4705, and 600.4708), as added by 1988 PA 104.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 4703. (1) Personal property subject to forfeiture under
this chapter may be seized pursuant to an order of seizure issued
by the court having jurisdiction over the property upon a showing
of probable cause that the property is subject to forfeiture.
(2) Personal property subject to forfeiture under this chapter
may be seized without process under any of the following
circumstances:
(a) The property is the proceeds of a crime or an
instrumentality of a crime and the seizure is incident to a lawful
arrest.
(b) The seizure is pursuant to a valid search warrant.
(c) The seizure is pursuant to an inspection under a valid
administrative inspection warrant.
(d) There is probable cause to believe that the property is
directly or indirectly dangerous to health or safety.
(e) Exigent circumstances exist that preclude the obtaining of
a court order, and there is probable cause to believe that the
property is the proceeds of a crime or an instrumentality of a
crime.
(f) The property is the subject of a prior judgment in favor
of this state in a forfeiture proceeding.
(3) The attorney general, or the prosecuting attorney or the
city or township attorney for the local unit of government in which
the property is located, may apply ex parte for an order
authorizing the filing of a lien notice against real property
subject to forfeiture under this chapter. The application shall be
supported by a sworn affidavit setting forth probable cause for a
forfeiture action pursuant to this chapter. An order authorizing
the filing of a lien notice may be issued upon a showing of
probable cause to believe that the property is the proceeds of a
crime or the substituted proceeds of a crime.
(4) Property that belongs to the victim of a crime shall
promptly be returned to the victim, except in the following
circumstances:
(a) If the property is contraband.
(b) If the ownership of the property is disputed until the
dispute is resolved.
(c) If the property is required to be retained as evidence
pursuant
to section 4(4) of the crime victim's rights act, Act No.
87
of the Public Acts of 1985, being section 780.754 of the
Michigan
Compiled Laws 1985 PA 87, MCL 780.754.
(5) Personal property seized under this chapter is not subject
to any other action to recover personal property, but is considered
to be in the custody of the seizing agency subject only to
subsection (4) and sections 4705 to 4707, or to an order and
judgment of the court having jurisdiction over the forfeiture
proceedings.
When Except as provided
in subsection (6), when
property is seized under this chapter, the seizing agency may do
either or both of the following:
(a) Place the property under seal.
(b) Remove the property to a place designated by the court.
(6) The seizing agency may deposit money seized under this
chapter into an interest-bearing account in a financial
institution. As used in this subsection, "financial institution"
means a state or nationally chartered bank or a state or federally
chartered savings and loan association, savings bank, or credit
union whose deposits are insured by an agency of the United States
government and that maintains a principal office or branch office
located in this state under the laws of this state or the United
States.
Sec. 4704. (1) Within 7 days after personal property is seized
or a lien notice is filed against real property under section 4703,
the seizing agency or, if the property is real property, the
attorney general, the prosecuting attorney, or the city or township
attorney shall give notice of the seizure of the property and the
intent to forfeit and dispose of the property according to this
chapter to each of the following persons:
(a) If charges have been filed against a person for a crime,
the person charged.
(b) Each person with a known ownership interest in the
property.
(c) Each mortgagee, person holding a security interest, or
person having a lien that appears on the certificate of title or is
on file with the secretary of state or appropriate register of
deeds, if the property is real property, a mobile home, motor
vehicle, watercraft, or other personal property.
(d) Each holder of a preferred ship mortgage of record in the
appropriate
public office pursuant to the ship mortgage act, 1920,
chapter
250, 41 Stat. 1000, 46 U.S.C. App. 911, 921 to 927, 941,
951
to 954, 961, 971 to 975, and 981 to 984 46 USC 30101, 31301-
31343, if the property is a watercraft more than 28 feet long or a
watercraft that has a capacity of 5 net tons or more.
(e) Each person whose security interest is recorded with the
appropriate public office pursuant to the federal aviation act of
1958,
Public Law 85-726, 27 Stat. 731, if the property is an
aircraft, aircraft engine, or aircraft propeller, or a part of an
aircraft, aircraft engine, or aircraft propeller.
(f) Each person with a known security interest in the
property.
(g) Each victim of the crime.
(2) The notice required under subsection (1) shall be a
written notice delivered to the person or sent to the person by
certified mail. If the name and address of the person are not
reasonably ascertainable or delivery of the notice cannot
reasonably be accomplished, the notice shall be published in a
newspaper of general circulation in the county in which the
personal property was seized or the real property is located for 10
successive publishing days. Proof of written notice or publication
shall be filed with the court having jurisdiction over the seizure
or forfeiture.
(3) If personal property was seized, the seizing agency shall
immediately notify the prosecuting attorney for the county in which
the property was seized or, if the attorney general is actively
handling a case involving or relating to the property, the attorney
general of the seizure of the property and the intent to forfeit
and dispose of the property according to this chapter.
(4) An attorney for a person described in subsection (1)(a)
shall be afforded a period of 60 days within which to examine money
seized under section 4703. This 60-day period shall begin to run
after notice is given under subsection (1) but before the money is
deposited into a financial institution.
Sec. 4705. (1) A person who did not have prior knowledge of,
or consent to the commission of, the crime may move the court
having jurisdiction to return the property or discharge the lien on
the grounds that the property was illegally seized, that the
property is not subject to forfeiture under this chapter, or that
the person has an ownership or security interest in the property
and did not have prior knowledge of, or consent to the commission
of, the crime. The court shall hear the motion within 30 days after
the motion is filed.
(2) At the hearing on the motion filed under subsection (1),
the attorney general, or the prosecuting attorney or the city or
township attorney for the local unit of government in which the
property was seized or the lien was filed, shall establish the
following:
(a) Probable cause to believe that the property is subject to
forfeiture under this chapter and that the person filing the motion
had prior knowledge of, or consented to the commission of, the
crime.
(b) If the person filing the motion claims the property was
illegally seized, that the property was properly seized.
(3) If the attorney general, prosecuting attorney, or city or
township attorney fails to sustain his or her burden of proof under
subsection (2), the court shall order the return of the property,
including any interest earned on money deposited in a financial
institution as described in section 4703(6), or the discharge of
the lien.
(4) If a motor vehicle is seized under section 4703, the owner
of the vehicle may move the court having jurisdiction over the
forfeiture proceedings to require the seizing agency to file a lien
against the vehicle and to return the vehicle to the owner. The
court shall hear the motion within 7 days after the motion is
filed. If the owner of the vehicle establishes at the hearing that
he or she holds the legal title of the vehicle and that it is
necessary for him or her or his or her family to use the vehicle
pending the outcome of the forfeiture action, the court may order
the seizing agency to return the vehicle to the owner. If the court
orders the return of the vehicle to the owner, the court shall
order the seizing agency to file a lien against the vehicle.
(5) The testimony of a person at a hearing held under this
section is not admissible against him or her in any criminal
proceeding except in a criminal prosecution for perjury. The
testimony of a person at a hearing held under this section does not
waive the person's constitutional right against self-incrimination.
Sec. 4708. (1) When property is forfeited under this chapter,
the unit of government that seized or filed a lien against the
property may sell the property that is not required to be destroyed
by law and that is not harmful to the public and may dispose of the
proceeds and any money, including any interest earned on money
deposited in a financial institution as described in section
4703(6), negotiable instrument, security, or other thing of value
that is forfeited pursuant to this chapter in the following order
of priority:
(a) Pay any outstanding security interest of a secured party
who did not have prior knowledge of, or consent to the commission
of, the crime.
(b) Satisfy any order of restitution in the prosecution for
the crime.
(c) Pay the claim of each person who shows that he or she is a
victim of the crime to the extent that the claim is not covered by
an order of restitution.
(d) Pay any outstanding lien against the property that has
been imposed by a governmental unit.
(e) Pay the proper expenses of the proceedings for forfeiture
and sale, including, but not limited to, expenses incurred during
the seizure process and expenses for maintaining custody of the
property, advertising, and court costs.
(f) The balance remaining after the payment of restitution,
the claims of victims, outstanding liens, and expenses shall be
distributed by the court having jurisdiction over the forfeiture
proceedings to the unit or units of government substantially
involved in effecting the forfeiture. Seventy-five percent of the
money received by a unit of government under this subdivision shall
be used to enhance enforcement of the criminal laws and 25% of the
money
shall be used to implement the crime victim's rights act,
Act
No. 87 of the Public Acts of 1985, being sections 780.751 to
780.775
of the Michigan Compiled Laws 1985 PA 87, MCL 780.751 to
780.834. A unit of government receiving money under this
subdivision shall report annually to the department of management
and budget the amount of money received under this subdivision that
was used to enhance enforcement of the criminal laws and the amount
that was used to implement the crime victim's rights act.
(2) In the course of selling real property pursuant to
subsection (1), the court that enters an order of forfeiture, on
motion of the unit of government to whom the property is forfeited,
may appoint a receiver to dispose of the real property forfeited.
The receiver is entitled to reasonable compensation. The receiver
has authority to do all of the following:
(a) List the forfeited real property for sale.
(b) Make whatever arrangements are necessary for the
maintenance and preservation of the forfeited real property.
(c) Accept offers to purchase the forfeited real property.
(d) Execute instruments transferring title to the forfeited
real property.