Current Status Introducing Body:Senate Bill Number:1249 Primary Sponsor:Williams Committee Number:11 Type of Legislation:GB Subject:Drug forfeiture procedures Residing Body:Senate Current Committee:Judiciary Computer Document Number:JIC/6035.HC Introduced Date:Feb 04, 1992 Last History Body:Senate Last History Date:Feb 04, 1992 Last History Type:Introduced, read first time, referred to Committee Scope of Legislation:Statewide All Sponsors:Williams Holland Type of Legislation:General Bill
Bill Body Date Action Description CMN
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1249 Senate Feb 04, 1992 Introduced, read first time, 11
referred to Committee
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TO AMEND SECTION 44-53-530, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO DRUG FORFEITURE PROCEDURES, DISPOSITION OF FORFEITED ITEMS, AND DISPOSITION OF SALES OF FORFEITED ITEMS, SO AS TO MAKE PERMANENT THE TEMPORARY DISPOSITION PROVISIONS OF ACT 604 OF 1990, INCLUDING THE DISTRIBUTION OF TWENTY PERCENT OF FORFEITED PROPERTY TO PROSECUTION AGENCIES.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Section 44-53-530 of the 1976 Code, as amended by Act 604 of 1990, is further amended to read:
"Section 44-53-530. (a) Forfeiture of property defined in Section 44-53-520 must be accomplished by petition of the Attorney General or his designee or the circuit solicitor or his designee to the court of common pleas for the jurisdiction where the items were seized. The petition must be submitted to the court within a reasonable time period following seizure and shall set forth the facts upon which the seizure was made. The petition shall describe the property and include the names of all owners of record and lienholders of record. The petition shall identify any other persons known to the petitioner to have interests in the property. Petitions for the forfeiture of conveyances shall also include the following information: the make, model, and year of the conveyance, the person in whose name the conveyance is registered, and the person who holds the title to the conveyance. The petition shall set forth the type and quantity of the controlled substance involved. A copy of the petition must be sent to each law enforcement agency which has notified the petitioner of its involvement in the seizure. Notice of hearing or rule to show cause must be directed to all persons with interests in the property listed in the petition including law enforcement agencies which have notified the petitioner of their involvement in the seizure. Owners of record and lienholders of record may be served by certified mail to the last known address as appears in the records of the governmental agency which records the title or lien.
The judge shall determine whether the property is subject to forfeiture and order the forfeiture confirmed. If the judge finds a forfeiture, he shall then determine the lienholder's interest as provided in this article. The judge shall determine whether any property must be returned to a law enforcement agency pursuant to Section 44-53-582.
If there is a dispute as to the division of the proceeds of forfeited property among participating law enforcement agencies, this issue must be determined by the judge. The proceeds from a sale of property, conveyances, and equipment must be disposed of pursuant to subsection (b) of this section.
All property, conveyances, and equipment which will not be reduced to proceeds may be transferred to the law enforcement agency or agencies or to the prosecution agency. Upon agreement of the law enforcement agency or agencies and the prosecution agency, conveyances and equipment may be transferred to any other appropriate agency or agencies. Property transferred may not be used to supplant operating funds within the current or future budgets.
Any forfeiture may be effected by consent order approved by the court without filing or serving pleadings or notices provided that all owners and other persons with interests in the property, including participating law enforcement agencies, entitled to notice under this section, except lienholders and agencies, consent to the forfeiture. Disposition of the property may be accomplished by consent of the petitioner and those agencies involved. Persons entitled to notice under this section may consent to some issues and have the judge determine the remaining issues.
(b) (1) If the property is seized by a state law enforcement agency and is not transferred by the court to the seizing agency, the judge shall order it transferred to the Division of General Services for sale. Proceeds may be used by the division for payment of all proper expenses of the proceedings for the forfeiture and sale of the property, including the expenses of seizure, maintenance, and custody and other costs incurred by the implementation of this section. The net proceeds from any sale must be remitted to the State Treasurer as provided in subsection (d) of this section. The Division of General Services may authorize payment of like expenses in cases where monies, negotiable instruments, or securities are seized and forfeited.
(2) If the property is seized by a local law enforcement agency and is not transferred by the court to the agency, the judge shall order it sold at public auction by the seizing agency as provided by law. Notwithstanding any other provision of the law, proceeds from the sale may be used by the agency for payment of all proper expenses of the proceeding for the forfeiture and sale of the property, including the expenses of the seizure, maintenance, and custody and other costs incurred by the implementation of this section. The net proceeds from the sale must be disposed of as provided by this section.
(3) All real or personal property, conveyances, and equipment of any value defined in Section 44-53-520, when reduced to proceeds, any cash more than one thousand dollars, any negotiable instruments, and any securities which are seized and forfeited must be disposed of as follows:
(A) ninety percent to the law enforcement agency or agencies; and
(B) ten percent must be remitted to the State Treasurer and deposited to the credit of the general fund of the State.
(c) The first one thousand dollars of any cash seized and forfeited pursuant to this article remains with and is the property of the law enforcement agency which effected the seizure.
(d) All forfeited monies and proceeds from the sale of forfeited property as defined by Section 44-53-520 must be retained by the governing body of the local law enforcement agency or, in the case of a state law enforcement agency, by the State Treasurer, and deposited and maintained in a separate, special account in the name of each appropriate agency. These accounts may be drawn on and used only by the law enforcement agency for drug enforcement activities. These accounts may not be used to supplant operating funds within the current or future budgets. Any expenditures from these accounts for an item that would be a recurring expense to the governing body must be approved by the governing body before the purchase or, in the case of a state law enforcement agency, approved as provided by law. All expenditures from these funds must be documented, and the documentation must be available for audit purposes. (1)(a) Forfeiture of property defined in Section 44-53-520 must be accomplished by petition of the Attorney General or his designee or the circuit solicitor or his designee to the court of common pleas for the jurisdiction where the items were seized. The petition must be submitted to the court within a reasonable time period following seizure and shall set forth the facts upon which the seizure was made. The petition shall describe the property and include the names of all owners of record and leinholders of record. The petition shall identify any other persons known to the petitioner to have interests in the property. Petitions for the forfeiture of conveyances shall also include the following information: the make, model, and year of the conveyance, the person in whose name the conveyance is registered, and the person who holds the title to the conveyance. The petition shall set forth the type and quantity of the controlled substance involved. A copy of the petition must be sent to each law enforcement agency which has notified the petitioner of its involvement in effecting the seizure.
Notice of hearing or rule to show cause must be directed to all persons with interests in the property listed in the petition including law enforcement agencies which have notified the petitioner of their involvement in effecting the seizure. Owners of record and leinholders of record may be served by certified mail, to the last known address as appears in the records of the governmental agency which records the title or lien.
The judge shall determine whether the property is subject to forfeiture and order the forfeiture confirmed. If the judge finds a forfeiture, he shall then determine the lienholder's interest as provided in this article. The judge shall determine whether any property must be returned to a law enforcement agency pursuant to Section 44-53-582.
If there is a dispute as to the division of the proceeds of forfeited property among participating law enforcement agencies, this issue must be determined by the judge. The proceeds from a sale of property, conveyances, and equipment must be disposed of pursuant to subsection (e) of this section.
All property, conveyances, and equipment which will not be reduced to proceeds may be transferred to the law enforcement agency or agencies or to the prosecution agency. Upon agreement of the law enforcement agency or agencies and the prosecution agency, conveyances and equipment may be transferred to any other appropriate agency. Property transferred must not be used to supplant operating funds within the current or future budgets.
(b) If the property is seized by a state law enforcement agency and is not transferred by the court to the seizing agency, the judge shall order it transferred to the Division of General Services for sale. Proceeds may be used by the division for payment of all proper expenses of the proceedings for the forfeiture and sale of the property, including the expenses of seizure, maintenance, and custody, and other costs incurred by the implementation of this section. The net proceeds from any sale must be remitted to the State Treasurer as provided in subsection (g) of this section. The Division of General Services may authorized payment of like expenses in cases where monies, negotiable instruments, or securities are seized and forfeited.
(c) If the property is seized by a local law enforcement agency and is not transferred by the court to the agency, the judge shall order it sold at public auction by the seizing agency as provided by law. Notwithstanding any other provision of the law, proceeds from the sale may be used by the agency for payment of all proper expenses of the proceeding for the forfeiture and sale of the property, including the expenses of the seizure, maintenance, and custody and other costs incurred by the implementation of this section. The net proceeds from the sale must be disposed of as provided by this section.
(d) Any forfeiture may be effected by consent order approved by the court without filing or serving pleadings or notices provided that all owners and other persons with interests in the property, including participating law enforcement agencies, entitled to notice under this section, except lienholders and agencies, consent to the forfeiture. Disposition of the property may be accomplished by consent of the petitioner and those agencies involved. Persons entitled to notice under this section may consent to some issues and have the judge determine the remaining issues.
All proceeds of property and cash forfeited by consent order must be disposed of as provided in subsection (e) of this section.
(e) All real or personal property, conveyances, and equipment of any value defined in Section 44-53-520, when reduced to proceeds, any cash more than one thousand dollars, any negotiable instruments, and any securities which are seized and forfeited must be disposed of as follows:
(1) seventy-five percent to the law enforcement agency or agencies;
(2) twenty percent to the prosecuting agency; and
(3) five percent must be remitted to the State Treasurer and deposited to the credit of the general fund of the State.
(f) The first one thousand dollars of any cash seized and forfeited pursuant to this article remains with and is the property of the law enforcement agency which effected the seizure unless otherwise agreed to by the law enforcement agency and prosecuting agency.
(g) All forfeited monies and proceeds from the sale of forfeited property as defined in Section 44-53-520 must be retained by the governing body of the local law enforcement agency or prosecution agency and deposited in a separate, special account in the name of each appropriate agency. These accounts may be drawn on and used only by the law enforcement agency or prosecution agency for which the account was established. For law enforcement agencies, the accounts must be used for drug enforcement activities and for prosecution agencies, the accounts must be used in matters relating to the prosecution of drug offenses and litigation of drug related matters.
These accounts must not be used to supplant operating funds in the current or future budgets. Any expenditures from these accounts for an item that would be a recurring expense must be approved by the governing body before purchase or, in the case of a state law enforcement agency or prosecution agency, approved as provided by law.
In the case of a state law enforcement agency or state prosecution agency, monies and proceeds must be remitted to the State Treasurer who shall establish separate, special accounts as provided in this section for local agencies.
All expenditures from these accounts must be documented, and the documentation made available for audit purposes."
SECTION 2. This act takes effect upon approval by the Governor.