Beruflich Dokumente
Kultur Dokumente
ASSET FORFEITURE REFORM Brief summary of current asset forfeiture laws in Colorado History of asset forfeiture reform in Colorado (1992-legislation) Proposed asset forfeiture reform legislation Summary Oregon's asset forfeiture initiative (approved by voters in 2000) Summary of Utah's asset forfeiture initiative (approved by voters in 2000)
Affirmative Defense: If owner proves by preponderance of evidence that the person took all reasonable steps to avoid, prevent, abate improper use of property (16-13-303 (5.2) Burden of Proof: Plaintiff- Preponderance of evidence that possession of property is unlawful or that the owner of the property or interest therein was involved in, knew of the subject act, or reasonably should have known of the subject act. Evidentiary Presumption: Rebuttable presumption of "substantial connection" between currency and the acts specified if: currency in the amount of $1,000 or more was seized at or close to the time of the act and current was seized, or if traces of controlled substances were discovered on the currency or if animal indicates the presence of the odor of a controlled substance on the currency. Trial to court--no jury (16-13-307) No right to counsel (can't claim ineffective assistance of counsel People v. Cobb, 944 P.2d 574 (Colo.App.1996) Forfeiture does not require criminal conviction Sandstrom v. District Court (884 P.2d 707 Colo.1996) Disposition of proceeds: (16-13-311) (a) Sheriff sells property-is reimbursed for costs of sale, maintenance (b) plaintiff for costs of forfeiture action (c) balance to seizing agency/agencies substantially involved with court order finding that proceeds can be used by seizing agency (either cash from sale or property in lieu of sale) (d) Any person who suffers bodily injury or property damage as a result of action deemed a nuisance if person petitions the court. Proceeds received are not considered part of normal operating budget Reporting of Forfeited Property: 16-13-302 "each seizing agency which receives forfeiture proceeds shall conform with reporting, audit, and disposition procedures enumerated in this article." (16-13-701) 16-13-701 went into effect 7/1/92
No right to counsel (can't claim ineffective assistance of counsel People v. Cobb, 944 P.2d 574 (Colo.App.1996) Forfeiture does not require criminal conviction Sandstrom v. District Court (884 P.2d 707 Colo.1996) Disposition of proceeds: (in this order) (a) to sheriff for reasonable fees and costs of sale; (b) payment of the balance due on any lien (c) 10% to general fund for appropriation to judicial department for payment of costs of proceeding (d) 10% to general fund for appropriation to the department of public safety for law enforcement purposes (including, but not limited to administration of the Department of Corrections DOC) (e) 1.5% to district attorney as fees (f) Balance (1) seizing agency for costs of storage, maintenance, security and forfeiture of such action (2) to the seizing agency (cash or property in lieu of sale) (3) to any person who suffers bodily injury or property damage as a result of subject acts which resulted in forfeiture if person petitions the court. Receipt of federally forfeited property: authorizes state law enforcement to receive proceeds from any property forfeited by the federal government pursuant to 21 U.S.C. 881(e). Such revenues shall be in addition to moneys appropriated to law enforcement by general assembly. (16-13-601) Reporting of Forfeited Property: Each seizing agency which receives any property or proceeds which have been forfeited under state or federal law shall submit a written report to the governmental body which has approval authority over the budget of such seizing agency and to the Colorado Department of Local Affairs. Such report shall include an accounting of how any forfeited moneys were expended in the fiscal year. Such information is subject to audit in accordance with 29-1-6-CRS (16-13-701) Reporting requirement does not apply to the attorney general, the Colorado state patrol, or CBI.
operations, and let crime victims, not police, be first compensated for damages/injuries. Defeated 7-5 in House Judiciary Committee. (Bulk of testimony against bill came from John Suthers, then DA for 4th Judicial District, Norm Early DA-Denver, Bob Gallagher-DA 18th Judicial District) Senate Bill 92-204 (sponsored by Sen. Joan Johnson (D-Westminster) and Rep. Tim Foster (RGrand Junction). Shifts burden of proof to government. Judge consider whether a person was the primary user or possessor of the property, whether it was conveyed to someone else to avoid forfeiture, whether it was used in criminal activity and whether the owner knew or should have known. Requires law enforcement to account for forfeiture money and established special panels in each county to oversee how the proceeds were used. Senate Bill 92-102 (sponsored by Senator Meiklejohn and Rep. Adkins) passed Senate 35-0. Only probable cause needed for seizure not conviction of crime; "innocent owner" must be proven by property owner; etc. (Appears to have been killed in House by 19-44 vote.)
Allows for hardship release of seized property during forfeiture proceeding Provides for the appointment of counsel for indigent claimants in civil and criminal forfeiture proceedings, including third-party owners in criminal forfeiture proceedings who are not charged as criminal defendants. Civil and criminal forfeitures must be "substantially proportional". Also, property must be "instrumental" in the commission of the crime, not merely incidental Expedites civil forfeiture proceedings Allows property owners to get their property back if they are not provided with timely notice of seizure Establishes that owners shall not be required to post a bond to dispute a property seizure. Requires the government to pay pre and post judgment interest to owners who prevail in civl and criminal forfeiture Allows property owners to be compensated for property damaged during a seizure Prohibits the seizing agencies from charging a property owner with a fee for holding seized property if the owner wins the case Prohibits the use of forfeiture proceeds to be used to pay law enforcement agencies, informants, and prosecutors Requires a judge to approve of any transfers of seized property to the federal government and only under limited circumstances Establishes penalties for law enforcement agencies that illegally transfer property seizures to the federal government and that do not transfer forfeiture funds to the Uniform School Fund Requires annual state audit of the asset forfeiture, which is available to public.