Hearing; burden of proof; disposition of seized property
Sec. 4. (a) At the hearing, the prosecuting attorney must show by
a preponderance of the evidence that the property was within the
definition of property subject to seizure under section 1 of this
chapter. If the property seized was a vehicle, the prosecuting attorney
must also show by a preponderance of the evidence that a person
who has an ownership interest of record in the bureau of motor
vehicles knew or had reason to know that the vehicle was being used
in the commission of the offense.
(b) If the prosecuting attorney fails to meet the burden of proof,
the court shall order the property released to the owner.
(c) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court, subject to section 5 of this
chapter, shall order delivery to the law enforcement agency that
seized the property. The court's order may permit the agency to use
the property for a period not to exceed three (3) years. However, the
order must require that, after the period specified by the court, the
law enforcement agency shall deliver the property to the county
sheriff for public sale.
(d) If the court enters judgment in favor of the state, or the state
and a unit (if appropriate), the court shall, subject to section 5 of this
chapter:
(1) determine the amount of law enforcement costs; and
(2) order that:
(A) the property, if it is not money or real property, be sold
under section 6 of this chapter, by the sheriff of the county
in which the property was seized, and if the property is a
vehicle, this sale must occur after any period of use specified
in subsection (c);
(B) the property, if it is real property, be sold in the same
manner as real property is sold on execution under
IC 34-55-6;
(C) the proceeds of the sale or the money be:
(i) deposited in the general fund of the state, or the unit
that employed the law enforcement officers that seized the
property; or
(ii) deposited in the general fund of a unit if the property
was seized by a local law enforcement agency of the unit
for an offense, an attempted offense, or a conspiracy to
commit an offense under IC 35-47 as part of or in
furtherance of an act of terrorism; and
(D) any excess in value of the proceeds or the money over
the law enforcement costs be forfeited and transferred to the
treasurer of state for deposit in the common school fund.
(e) If property that is seized under this chapter (or IC 34-4-30.1-4
before its repeal) is transferred:
(1) after its seizure, but before an action is filed under section
3 of this chapter (or IC 34-4-30.1-3 before its repeal); or
(2) when an action filed under section 3 of this chapter (or
IC 34-4-30.1-3 before its repeal) is pending;
the person to whom the property is transferred must establish an
ownership interest of record as a bona fide purchaser for value. A
person is a bona fide purchaser for value under this section if the
person, at the time of the transfer, did not have reasonable cause to
believe that the property was subject to forfeiture under this chapter.
(f) If the property seized was an unlawful telecommunications
device (as defined in IC 35-45-13-6) or plans, instructions, or
publications used to commit an offense under IC 35-45-13, the court
may order the sheriff of the county in which the person was
convicted of an offense under IC 35-45-13 to destroy as contraband
or to otherwise lawfully dispose of the property.
As added by P.L.1-1998, SEC.19. Amended by P.L.123-2002,
SEC.31.
Last modified: May 24, 2006