H*2015 Session 107 (1987-1988)
H*2015(Rat #0035, Act #0016 of 1987) General Bill, By R.N. McLellan,
D.L. Aydlette, Boan, P.T. Bradley and L.L. Taylor
Similar(S 104)
A Bill to enact the Motor Vehicle Chop Shop, Stolen, and Altered Property Act,
to provide penalties, including forfeiture for violations, and to amend
Section 16-1-10, as amended, Code of Laws of South Carolina, 1976, relating to
crimes classified as felonies, so as to include offenses established in this
Act.
12/03/86 House Prefiled
12/03/86 House Referred to Committee on Judiciary
01/13/87 House Introduced and read first time HJ-30
01/13/87 House Referred to Committee on Judiciary HJ-30
02/12/87 House Committee report: Favorable Judiciary HJ-508
02/19/87 House Objection by Rep. J. Rogers HJ-652
02/19/87 House Read second time HJ-652
02/24/87 House Read third time and sent to Senate HJ-687
02/25/87 Senate Introduced and read first time SJ-653
02/25/87 Senate Referred to Committee on Banking and Insurance SJ-65
03/05/87 Senate Committee report: Favorable Banking and Insurance
SJ-793
03/10/87 Senate Read second time SJ-833
03/11/87 Senate Read third time and enrolled SJ-862
03/25/87 Ratified R 35
03/31/87 Signed By Governor
03/31/87 Effective date 03/31/87
03/31/87 Act No. 16
04/08/87 Copies available
(A16, R35, H2015)
AN ACT TO ENACT THE MOTOR VEHICLE CHOP SHOP, STOLEN, AND ALTERED PROPERTY ACT,
TO PROVIDE PENALTIES INCLUDING FORFEITURE FOR VIOLATIONS, AND TO AMEND SECTION
16-1-10, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CRIMES
CLASSIFIED AS FELONIES, SO AS TO INCLUDE OFFENSES ESTABLISHED IN THIS ACT.
Be it enacted by the General Assembly of the State of South Carolina:
Findings
SECTION 1. The General Assembly finds:
(1) The annual number of reported motor vehicle thefts has exceeded one
million. Approximately fifty percent of all larcenies reported to law
enforcement authorities in the United States are directed against motor vehicles,
motor vehicle accessories, or the contents of motor vehicles. The recovery rate
of stolen motor vehicles has decreased significantly during the most recent
decade.
(2) Thefts of motor vehicles and the disposition of stolen motor vehicles and
motor vehicle parts are becoming more professional in nature. Such theft and
disposition activities have attracted criminal elements which have used
intimidation and violence as a means of obtaining increased control of such
activities. There are indications that criminal elements are using motor vehicle
theft proceeds for other illicit activities.
(3) The theft of motor vehicles has brought increased and unnecessary burdens
to motor vehicle users and taxpayers, as the national financial cost of motor
vehicle-related theft offenses currently approaches one billion dollars annually.
(4) Prosecutors should give increased emphasis to the prosecution of persons
committing motor vehicle thefts, with particular emphasis given to professional
motor vehicle theft operations and to persons engaged in the dismantling of
stolen motor vehicles for the purpose of trafficking in stolen motor vehicle
parts.
(5) Traditional law enforcement strategies and techniques that concentrate on
bringing criminal penalties to bear on motor vehicle thieves but do not focus on
chop shops that are heavily involved in the dismantling of stolen motor vehicles
or the distribution of motor vehicle parts and that do not enlist the assistance
of private enforcement and use civil sanctions are inadequate to control motor
vehicle theft as well as related offenses. Comprehensive strategies must be
formulated; more effective law enforcement techniques must be developed;
evidentiary, procedural, and substantive laws must be strengthened; and criminal
penalties and civil sanctions must be enhanced.
Act may be cited
SECTION 2. This act may be cited as the Motor Vehicle Chop Shop, Stolen, and
Altered Property Act.
Definitions
SECTION 3. As used in this act:
(1) "Chop shop" means any building, lot, or other premises where one
or more persons are or have been knowingly engaged in altering, destroying,
disassembling, dismantling, reassembling, or knowingly storing any motor vehicle,
or motor vehicle part known to be illegally obtained by theft, fraud, or
conspiracy to defraud, in order either to:
(a) alter, counterfeit, deface, destroy, disguise, falsify, forge,
obliterate, or remove the identity, including the vehicle identification number
of the motor vehicle or motor vehicle part, in order to misrepresent the identity
of the motor vehicle or motor vehicle part, or to prevent the identification of
the motor vehicle or motor vehicle part, or
(b) sell or dispose of the motor vehicle or motor vehicle part.
(2) "Vehicle" includes every device in, upon, or by which any person
or property is or may be transported or drawn upon a highway, which is
self-propelled or which may be connected to and towed by a self-propelled device,
and also includes any and all other land-based devices which are self-propelled
but which are not designed for use upon a highway including, but not limited to,
farm machinery and construction equipment.
(3) "Person" includes a natural person, company, corporation,
unincorporated association, partnership, professional corporation, and any other
legal entity.
(4) "Unidentifiable" means that the uniqueness of a motor vehicle
or motor vehicle part cannot be established by either expert law enforcement
investigative personnel specially trained and experienced in motor vehicle theft
investigative procedures and motor vehicle identification examination techniques,
or by expert employees of not-for-profit motor vehicle theft prevention agencies
specially trained and experienced in motor vehicle theft investigation procedures
and motor vehicle identification examination techniques.
(5) "Vehicle identification number" means a number, a letter, a
character, a datum, a derivative, or a combination thereof, used by the
manufacturer or the Motor Vehicle Division of the South Carolina Department of
Highways and Public Transportation for the purpose of uniquely identifying a
motor vehicle or motor vehicle part.
Penalty restitution
SECTION 4. (A) Any person who knowingly and with intent to violate this
section:
(1) owns, operates, or conducts a chop shop;
(2) transports any motor vehicle or motor vehicle part to or from a location
knowing it to be a chop shop; or
(3) sells, transfers, purchases, or receives any motor vehicle or motor
vehicle part either to or from a location knowing it to be a chop shop;
is guilty of a felony, and upon conviction, must be punished by imprisonment for
not more than ten years, or by a fine of not more than one hundred thousand
dollars, or both.
(B) Any person who knowingly alters, counterfeits, defaces, destroys,
disguises, falsifies, forges, obliterates, or knowingly removes a vehicle
identification number, or causes any of the above to be done, with the intent to
misrepresent the identity or prevent the identification of a motor vehicle or
motor vehicle part, upon conviction is guilty of a felony and must be punished
by imprisonment for not more than five years, or by a fine of not less than five
thousand nor more than ten thousand dollars, or both.
(C) (1) Any person who buys, disposes, sells, transfers, or possesses a motor
vehicle or motor vehicle part, with knowledge that the vehicle identification
number of the motor vehicle or motor vehicle part has been altered,
counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or
removed, or causes any of the above to be done, is guilty of a felony, and upon
conviction must be punished by imprisonment for not more than five years or by
a fine of not less than five thousand nor more than ten thousand dollars, or
both.
(2) The provisions of item (1) of subsection (C) of this section do not
apply to a motor vehicle scrap processor who, in the normal legal course of
business and in good faith, processes a motor vehicle or motor vehicle part by
crushing, compacting, or other similar methods, provided that any vehicle
identification number is not removed from the motor vehicle or motor vehicle part
prior to or during the processing.
(D) A person commits an attempt when, with intent to commit a violation
proscribed by subsection (A), (B), or (C) of this section, the person does any
act which constitutes a substantial step toward the commission of the violation
proscribed by those subsections and is guilty of a felony, and upon conviction
must be punished by imprisonment for not more than five years or a fine of not
less than five thousand nor more than ten thousand dollars, or both.
(E) A person commits the offense of conspiring to violate the provisions of
this act if he knowingly and wilfully agrees with another person to the
commission of the offenses proscribed by subsection (A), (B), or (C) of this
section and is guilty of a felony, and upon conviction must be punished by
imprisonment for not more than five years, or by a fine of not more than five
thousand dollars.
(F) Persons convicted of a second offense under this section must be punished
by a term of imprisonment for not less than one year. Persons convicted of a
third or subsequent offense must be punished by a term of imprisonment for not
less than five years. No part of these minimum sentences may be suspended or
reduced until the person has served the minimum period of imprisonment.
(G) (1) In addition to any other punishment, a person who violates this
section must be ordered to make restitution to the lawful owner of the stolen
motor vehicle or the stolen motor vehicle part, or to the owner's insurer to the
extent that the owner has been compensated by the insurer, and to any other
person for any financial loss sustained as a result of a violation of this
section.
Financial loss includes, but is not limited to, loss of earnings, out-of-pocket
and other expenses, repair and replacement costs, and claims payments. Lawful
owner includes an innocent bona fide purchaser for value of a stolen motor
vehicle or stolen motor vehicle part who does not know that the motor vehicle or
part is stolen; or an insurer to the extent that the insurer has compensated a
bona fide purchaser for value.
(2) The court shall determine the extent and method of restitution. In an
extraordinary case, the court may determine that the best interests of the victim
and justice would not be served by ordering restitution. In that case, the court
shall make and enter specific written findings on the record concerning the
extraordinary circumstances presented which militated against restitution.
Seizure of motor vehicle, implements
SECTION 5. (A) Any tool, implement, or instrumentality, including but not
limited to a motor vehicle or motor vehicle part, used or possessed in connection
with any violation of Section 4 may be seized by a member of a state or local law
enforcement agency upon process issued by any court of competent jurisdiction.
(B) Seizure of property described in subsection (A) of this section may be
made by a member of a state or local law enforcement agency without process if:
(1) it is in accordance with any applicable law or regulation;
(2) the seizure is incident to inspection under an administrative inspection
warrant;
(3) the seizure is incident to search made under a search warrant;
(4) the seizure is incident to a lawful arrest;
(5) the seizure is made pursuant to a valid consent to search;
(6) the property seized has been the subject of a prior judgment in favor
of the State in a criminal proceeding, or in an injunction or forfeiture
proceeding under Section 7; or
(7) there are reasonable grounds to believe that the property is directly
or indirectly dangerous to health or safety.
(C) When property is seized under this section, the seizing agency may:
(1) place the property under seal; or
(2) remove the property to a place selected and designated by the seizing
agency.
Forfeiture of motor vehicle, implements
SECTION 6. (A) The following are subject to forfeiture unless obtained by
theft, fraud, or conspiracy to defraud and the rightful owner is known or can be
identified and located:
(1) any tool;
(2) any instrumentality, including but not limited to any motor vehicle or
motor vehicle part, whether owned or unowned by the person from whose possession
or control it was seized, which is used or possessed either in violation of
Section 4 or to promote or facilitate a violation of Section 4.
(B) Any motor vehicle, other conveyance, or motor vehicle part used by any
person as a common carrier is subject to forfeiture under this section where the
owner or other person in charge of the motor vehicle, other conveyance, or motor
vehicle part is a consenting party to a violation of Section 4.
(C) Any motor vehicle, motor vehicle part, other conveyance, tool, implement,
or instrumentality is not subject to forfeiture under this section by reason of
any act or omission which the owner proves to have been committed or omitted
without the owner's knowledge or consent.
(D) A forfeiture of a motor vehicle, motor vehicle part, or other conveyance
encumbered by a bona fide security interest is subject to the interest of the
secured party where the secured party neither had knowledge of nor consented to
the act or omission forming the ground for the forfeiture.
(E) (1) The circuit solicitor shall give notice of the forfeiture proceeding
by mailing a copy of the complaint in the forfeiture proceeding to each person
whose right, title, or interest is of record in the Motor Vehicle Division of the
South Carolina Department of Highways and Public Transportation, or any other
department of the State, or any other state or territory of the United States,
or of the federal government if the property is required to be registered in the
department.
(2) Notice of the proceeding must be given to any other person as may
appear, from the facts and circumstances, to have any right, title, or interest
in or to the property.
(3) The owner of the property, or any person having, or claiming right,
title, or interest in the property, may within thirty days after the mailing of
the notice file a verified answer to the complaint and may appear at the hearing
on the action for forfeiture.
(4) The circuit solicitor shall show at a forfeiture hearing, by a
preponderance of the evidence, that the property was used in the commission of
a violation of Section 4, or was used or possessed to facilitate the violation.
(5) Unless the circuit solicitor makes the showing required, the court shall
order the
property released to the owner. Where the prosecutor has made a showing, the
court shall order:
(a) the property be destroyed by the agency which seized it or some other
agency designated by the court;
(b) the property be delivered and retained for use by the agency which
seized it or some other agency designated by the court; or
(c) any other disposition which the court considers appropriate under the
circumstances.
(F) A copy of a forfeiture order must be filed with the clerk of court of the
county in which the forfeiture occurs and with each federal or state department
with which the property is required to be registered. The order, when filed,
constitutes authority for the issuance to the agency to whom the property is
delivered and retained for use or to any purchaser of the property of a title
certificate, registration certificate, or other special certificate as may be
required by law considering the condition of the property.
(G) Proceeds from sale at public auction, after payment of all reasonable
charges and expenses incurred by the agency designated by the court to conduct
the sale in storing and selling the property, must be paid to the general fund
of the county in which the seizure occurred.
(H) No motor vehicle, either seized under Section 5 or forfeited under this
section, may be released by the seizing agency or used or sold by an agency
designated by the court unless any altered, counterfeited, defaced, destroyed,
disguised, falsified, forged, obliterated, or removed vehicle identification
number is corrected by the issuance and affixing of either an assigned or
replacement vehicle identification number plate as may be appropriate under laws
or regulations of this State.
(I) No motor vehicle or motor vehicle part may be forfeited under this section
solely on the basis that it is unidentifiable. Instead of forfeiture, any seized
motor vehicle or motor vehicle part which is unidentifiable must be the subject
of a written report sent by the seizing agency to the Motor Vehicle Division of
the South Carolina Department of Highways and Public Transportation, which report
must include a description of the motor vehicle or motor vehicle part, its color,
if any, the date, time, and place of its seizure, the name of the person from
whose possession or control it was seized, the grounds for its seizure, and the
location where it is held or stored.
(J) The proceeds of the public sale of an unidentifiable motor vehicle or
motor vehicle part must be deposited in the general fund of the governmental unit
employing the seizing agency after deduction of any reasonable and necessary
towing and storage charges.
(K) A seized motor vehicle or motor vehicle part that is neither forfeited nor
unidentifiable must be held subject to the order of the court in which the
criminal action is pending or, if a request for its release from custody is made,
until the prosecutor has notified the defendant or the defendant's attorney of
the request and both the prosecution and defense have been afforded a reasonable
opportunity for an examination of the property to determine its true value and
to produce or reproduce, by photographs or other identifying techniques, legally
sufficient evidence for introduction at trial or other criminal proceedings.
Upon expiration of a reasonable time for the completion of the examination which
in no event shall exceed fourteen days from the date of service upon the defense
of the notice of request for return of property as provided herein, the property
must be released to the person making the request after satisfactory
proof of such person's entitlement to the possession thereof. Notwithstanding
the foregoing, upon application by either party with notice to the other, the
court may order retention of the property if it determines that retention is
necessary in the furtherance of justice.
(L) When a seized vehicle is forfeited, restored to its owner, or disposed of
as unidentifiable, the seizing agency shall retain a report of the transaction
for a period of at least seven years from the date of the transaction.
(M) When an applicant for a certificate of title or salvage certificate
presents to the Motor Vehicle Division of the South Carolina Department of
Highways and Public Transportation proof that the applicant purchased or acquired
a motor vehicle at the public sale conducted pursuant to this section and that
fact is attested to by the seizing agency, the division shall issue a certificate
of title, or salvage certificate for the motor vehicle upon receipt of the
statutory fee, properly executed application for a certificate of title, or other
certificate of ownership, and the affidavit of the seizing agency that a
state-assigned number was applied for and affixed to the motor vehicle prior to
the time that the motor vehicle was released by the seizing agency to the
purchaser.
Civil proceedings
SECTION 7. (A) The Attorney General, any circuit solicitor, or any aggrieved
person may institute civil proceedings against any person in any court of
competent jurisdiction seeking relief from conduct constituting a violation of
any provision of this act. If the plaintiff in the proceeding proves the alleged
violation, or its threat, by a preponderance of the evidence, any court of
competent jurisdiction after due provision for the rights of innocent persons,
shall grant relief by entering any appropriate order or judgment, including, but
not limited to:
(1) ordering any defendant to be divested of any interest in any property;
(2) imposing reasonable restrictions upon the future activities or
investments of any defendant, including prohibiting any defendant from engaging
in the same type of endeavor as the defendant was engaged in previously;
(3) ordering the surrender of the charter of a corporation organized under
the laws of the State or the revocation of a certificate authorizing a foreign
corporation to conduct business within the State upon finding that the board of
directors or a managerial agent acting on behalf of the corporation, in
conducting the affairs of the corporation, has authorized or engaged in conduct
made unlawful by this act and that, for the prevention of future criminal
conduct, the public interest requires the charter of the corporation be
surrendered and the corporation dissolved or the certificate revoked.
(B) In a proceeding under this section, injunctive relief must be granted in
conformity with the principles that govern the granting of relief from injury or
threatened injury in other cases, but no showing of special or irreparable
injury must be made. Pending final determination of a proceeding under this
section, a temporary restraining order or a preliminary injunction may be issued
upon a showing of immediate danger of significant injury, including the
possibility that any judgment for money damages might be difficult to execute,
and, in a proceeding initiated by an aggrieved person, upon the execution of
proper bond against injury for an injunction improvidently granted.
(C) Any person injured, directly or indirectly, by conduct constituting a
violation by any person of Section 4, in addition to any other relief, shall have
a cause of action for threefold the actual damages sustained by the person.
(D) A final judgment or decree rendered against the defendant in any civil or
criminal proceeding shall estop the defendant in any subsequent civil action or
proceeding brought by any person as to all matters as to which the judgment or
decree would be an estoppel as between the parties to the civil or criminal
proceeding.
(E) Personal service of any process in an action under this section may be
made upon any person outside the State if the person has engaged in any conduct
constituting a violation of Section 4 in this State. The person is considered
to have thereby submitted to the jurisdiction of the courts of this State for the
purposes of this provision.
(F) Obtaining any civil remedy under this section does not preclude obtaining
any other civil or criminal remedy under either this act or any other provision
of law. Civil remedies under this section are supplemental and not mutually
exclusive.
Felony
SECTION 8. In addition to those crimes classified as felonies in Section
16-1-10 of the 1976 Code, violations of Section 4 of this act are declared
felonies.
Time effective
SECTION 9. This act takes effect upon approval by the Governor. |