H 3474 Session 109 (1991-1992)
H 3474 General Bill, By Meacham, Bailey, H. Brown, Cooper, Elliott, R.C. Fulmer,
Haskins, M.F. Jaskwhich, Keegan, McKay, J. Rama, Vaughn, C.C. Wells,
S.S. Wofford and Young-Brickell
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Section
56-5-755 so as to provide for the seizure and forfeiture of a motor vehicle if
the owner of record is convicted of Section 56-5-750 (increasing speed to
avoid a law enforcement vehicle) and to provide procedures for the forfeiture.
02/07/91 House Introduced and read first time HJ-26
02/07/91 House Referred to Committee on Judiciary HJ-26
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING SECTION 56-5-755 SO AS TO PROVIDE FOR THE
SEIZURE AND FORFEITURE OF A MOTOR VEHICLE IF THE
OWNER OF RECORD IS CONVICTED OF SECTION 56-5-750
(INCREASING SPEED TO AVOID A LAW ENFORCEMENT
VEHICLE) AND TO PROVIDE PROCEDURES FOR THE
FORFEITURE.
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. The 1976 Code is amended by adding:
"Section 56-5-755. (A)(1) A motor vehicle operator
who is found guilty in violation of Section 56-5-750 by increasing the
speed of a motor vehicle in excess of posted or prima facie speed limits
that may endanger life or property to avoid a pursuing law enforcement
vehicle may have the motor vehicle he drove during the offense forfeited
if the offender is the owner of record under the conditions as provided
in subsections (B) and (C) and may be confiscated by the arresting
officer or other law enforcement officer of that agency at the time of
arrest. The officer shall deliver it immediately to the head of his law
enforcement agency or his authorized agent who shall notify the clerk
of court within forty-eight hours of the confiscation. The clerk of court
shall issue a Rule to Show Cause immediately upon notification of the
confiscation which must be returnable before the presiding judge of the
judicial circuit or his designated hearing officer within ten days from the
date of issuance of the Rule and the vehicle must be returned to the
owner of record if he can show by a preponderance of the evidence that:
(a) the use of the vehicle was not either expressly or impliedly
authorized; or
(b) the owner of record was not the driver at the time of the
arrest.
(2) Forfeiture of a vehicle is subordinate in priority to all valid
liens.
(3) For purposes of this section, a motor vehicle operator's
driving may be inferred to endanger life or property where the operator's
driving exceeds the posted speed limit by a speed of fifteen miles an
hour or more, or where the operator does not exceed the posted speed
limit by fifteen miles an hour, the driving of the fleeing vehicle may be
reasonably seen as reckless, within the meaning of Section 56-5-2920,
or otherwise as foreseeable to endanger the life of members of the
public.
(4) If the offender is not the owner of record of the vehicle,
then any vehicle of the offender may be forfeited when it can be shown
that the offender is the owner of record.
(5) The law enforcement agency confiscating the vehicle shall
provide notice by certified mail of the confiscation to all lienholders of
record within ten days of confiscation.
(B)(1) Upon conviction of the person driving the vehicle, or upon
his plea of guilty or nolo contendere to these offenses, the attorney
representing the governmental entity of which the law enforcement
agency is a part shall initiate an action in the circuit court of the county
in which the vehicle was seized to accomplish forfeiture by giving notice
to owners of record, lienholders of record, and other persons claiming
an interest in the vehicle subject to forfeiture and by giving these
persons an opportunity to appear and show why the vehicle should not
be forfeited and disposed of as provided for by this section. Failure of
a person claiming an interest in the vehicle to appear at the above
proceeding after having been given notice constitutes a waiver of the
claim. The failure to appear does not in any way alter or affect the claim
of a lienholder of record. The court, after hearing, shall order the
vehicle forfeited to the State or to the political subdivision of the State
of which the law enforcement agency is a part and sold in the manner
provided in this section, or returned to the owner of record. The court
shall order a vehicle returned to the owner of record if it is shown by a
preponderance of the evidence that:
(a) the use of the vehicle on the occasion of arrest was not
either expressly or impliedly authorized; or
(b) the owner of record was not the driver at the time of
arrest.
Otherwise, the court shall order the vehicle forfeited. Forfeiture of a
vehicle is subordinate in priority to all valid liens and encumbrances.
(2) Notice of the proceedings in item (1) must be by personal
service of the owner of record, lienholder of record, if any, and any other
person claiming an interest in the vehicle of a certified copy of the
petition or notice of hearing, and by publication of notice in a newspaper
of general circulation in the county where the vehicle was seized for at
least two successive weeks before the hearing.
(3) Property constituted forfeited property by this section must
be sold as provided in subsection (C).
(C) The law enforcement agency making the arrest or its
authorized agent shall sell the confiscated vehicle at public auction for
cash to the highest bidder in front of the county courthouse in the county
where it was confiscated. It may be sold at another suitable location in
that county after giving ten days' public notice of the sale by posting an
advertisement on the door or bulletin board of the county courthouse or
other location of the public auction and by publishing an advertisement
of the auction at least once in a newspaper of general circulation in the
county at least ten days before the auction. When sold, the agency or its
agent shall pay the net proceeds, after payment of the liens and
encumbrances on the vehicle, and after payment of the proper costs and
expenses, if any, of the seizure, advertisement, and sale including any
proper expense incurred for the storage of the confiscated vehicle, to the
State or the political subdivision of this State of which the law
enforcement agency is a part, for use in law enforcement."
SECTION 2. This act takes effect upon approval by the Governor.
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