CODING: Words stricken are deletions; words underlined are additions.





                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)

                            CHAMBER ACTION
              Senate                               House
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 4                                                                

 5                                           ORIGINAL STAMP BELOW

 6

 7

 8

 9

10                                                                

11  Representative(s) Ogles offered the following:

12

13         Amendment (with title amendment) 

14         On page 1, line 22,

15

16  insert:

17         Section 1.  Subsection (9) is added to section 322.34,

18  Florida Statutes, 1998 Supplement, to read:

19         322.34  Driving while license suspended, revoked,

20  canceled, or disqualified.--

21         (9)(a)  A motor vehicle that is driven by a person

22  under the influence of alcohol or drugs in violation of s.

23  316.193 is subject to seizure and forfeiture under ss.

24  932.701-932.707 and is subject to liens for recovering,

25  towing, or storing vehicles under s. 713.78 if, at the time of

26  the offense, the person's driver's license is suspended,

27  revoked, or canceled as a result of a prior conviction for

28  driving under the influence.

29         (b)  The law enforcement officer shall notify the

30  Department of Highway Safety and Motor Vehicles of any

31  impoundment or seizure for violation of paragraph (a) in

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  accordance with procedures established by the department.

 2         (c)  Notwithstanding s. 932.703(1)(c) or s. 932.7055,

 3  when the seizing agency obtains a final judgment granting

 4  forfeiture of the motor vehicle under this section, 30 percent

 5  of the net proceeds from the sale of the motor vehicle shall

 6  be retained by the seizing law enforcement agency and 70

 7  percent shall be deposited in the General Revenue Fund for use

 8  by local WAGES coalitions in providing transportation services

 9  for participants of the WAGES program. In a forfeiture

10  proceeding under this section, the court may consider the

11  extent that the family of the owner has other public or

12  private means of transportation.

13         Section 2.  Paragraph (a) of subsection (2) of section

14  932.701, Florida Statutes, is amended to read:

15         932.701  Short title; definitions.--

16         (2)  As used in the Florida Contraband Forfeiture Act:

17         (a)  "Contraband article" means:

18         1.  Any controlled substance as defined in chapter 893

19  or any substance, device, paraphernalia, or currency or other

20  means of exchange that was used, was attempted to be used, or

21  was intended to be used in violation of any provision of

22  chapter 893, if the totality of the facts presented by the

23  state is clearly sufficient to meet the state's burden of

24  establishing probable cause to believe that a nexus exists

25  between the article seized and the narcotics activity, whether

26  or not the use of the contraband article can be traced to a

27  specific narcotics transaction.

28         2.  Any gambling paraphernalia, lottery tickets, money,

29  currency, or other means of exchange which was used, was

30  attempted, or intended to be used in violation of the gambling

31  laws of the state.

                                  2

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1         3.  Any equipment, liquid or solid, which was being

 2  used, is being used, was attempted to be used, or intended to

 3  be used in violation of the beverage or tobacco laws of the

 4  state.

 5         4.  Any motor fuel upon which the motor fuel tax has

 6  not been paid as required by law.

 7         5.  Any personal property, including, but not limited

 8  to, any vessel, aircraft, item, object, tool, substance,

 9  device, weapon, machine, vehicle of any kind, money,

10  securities, books, records, research, negotiable instruments,

11  or currency, which was used or was attempted to be used as an

12  instrumentality in the commission of, or in aiding or abetting

13  in the commission of, any felony, whether or not comprising an

14  element of the felony, or which is acquired by proceeds

15  obtained as a result of a violation of the Florida Contraband

16  Forfeiture Act.

17         6.  Any real property, including any right, title,

18  leasehold, or other interest in the whole of any lot or tract

19  of land, which was used, is being used, or was attempted to be

20  used as an instrumentality in the commission of, or in aiding

21  or abetting in the commission of, any felony, or which is

22  acquired by proceeds obtained as a result of a violation of

23  the Florida Contraband Forfeiture Act.

24         7.  Any personal property, including, but not limited

25  to, equipment, money, securities, books, records, research,

26  negotiable instruments, currency, or any vessel, aircraft,

27  item, object, tool, substance, device, weapon, machine, or

28  vehicle of any kind in the possession of or belonging to any

29  person who takes aquaculture products in violation of s.

30  812.014(2)(c).

31         8.  Any motor vehicle used during the course of

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  committing an offense in violation of s. 322.34(9)(a).

 2         Section 3.  For purposes of incorporating the amendment

 3  to section 932.701, Florida Statutes, in references thereto,

 4  section 932.703, Florida Statutes, is reenacted to read:

 5         932.703  Forfeiture of contraband article;

 6  exceptions.--

 7         (1)(a)  Any contraband article, vessel, motor vehicle,

 8  aircraft, other personal property, or real property used in

 9  violation of any provision of the Florida Contraband

10  Forfeiture Act, or in, upon, or by means of which any

11  violation of the Florida Contraband Forfeiture Act has taken

12  or is taking place, may be seized and shall be forfeited

13  subject to the provisions of the Florida Contraband Forfeiture

14  Act.

15         (b)  Notwithstanding any other provision of the Florida

16  Contraband Forfeiture Act, except the provisions of paragraph

17  (a), contraband articles set forth in s. 932.701(2)(a)7. used

18  in violation of any provision of the Florida Contraband

19  Forfeiture Act, or in, upon, or by means of which any

20  violation of the Florida Contraband Forfeiture Act has taken

21  or is taking place, shall be seized and shall be forfeited

22  subject to the provisions of the Florida Contraband Forfeiture

23  Act.

24         (c)  All rights to, interest in, and title to

25  contraband articles used in violation of s. 932.702 shall

26  immediately vest in the seizing law enforcement agency upon

27  seizure.

28         (d)  The seizing agency may not use the seized property

29  for any purpose until the rights to, interest in, and title to

30  the seized property are perfected in accordance with the

31  Florida Contraband Forfeiture Act.  This section does not

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  prohibit use or operation necessary for reasonable maintenance

 2  of seized property. Reasonable efforts shall be made to

 3  maintain seized property in such a manner as to minimize loss

 4  of value.

 5         (2)(a)  Personal property may be seized at the time of

 6  the violation or subsequent to the violation, if the person

 7  entitled to notice is notified at the time of the seizure or

 8  by certified mail, return receipt requested, that there is a

 9  right to an adversarial preliminary hearing after the seizure

10  to determine whether probable cause exists to believe that

11  such property has been or is being used in violation of the

12  Florida Contraband Forfeiture Act. Seizing agencies shall make

13  a diligent effort to notify the person entitled to notice of

14  the seizure. Notice provided by certified mail must be mailed

15  within 5 working days after the seizure and must state that a

16  person entitled to notice may request an adversarial

17  preliminary hearing within 15 days after receiving such

18  notice.  When a postseizure, adversarial preliminary hearing

19  as provided in this section is desired, a request must be made

20  in writing by certified mail, return receipt requested, to the

21  seizing agency.  The seizing agency shall set and notice the

22  hearing, which must be held within 10 days after the request

23  is received or as soon as practicable thereafter.

24         (b)  Real property may not be seized or restrained,

25  other than by lis pendens, subsequent to a violation of the

26  Florida Contraband Forfeiture Act until the persons entitled

27  to notice are afforded the opportunity to attend the

28  preseizure adversarial preliminary hearing.  A lis pendens may

29  be obtained by any method authorized by law.  Notice of the

30  adversarial preliminary hearing shall be by certified mail,

31  return receipt requested.  The purpose of the adversarial

                                  5

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  preliminary hearing is to determine whether probable cause

 2  exists to believe that such property has been used in

 3  violation of the Florida Contraband Forfeiture Act.  The

 4  seizing agency shall make a diligent effort to notify any

 5  person entitled to notice of the seizure.  The preseizure

 6  adversarial preliminary hearing provided herein shall be held

 7  within 10 days of the filing of the lis pendens or as soon as

 8  practicable.

 9         (c)  When an adversarial preliminary hearing is held,

10  the court shall review the verified affidavit and any other

11  supporting documents and take any testimony to determine

12  whether there is probable cause to believe that the property

13  was used, is being used, was attempted to be used, or was

14  intended to be used in violation of the Florida Contraband

15  Forfeiture Act.  If probable cause is established, the court

16  shall authorize the seizure or continued seizure of the

17  subject contraband.  A copy of the findings of the court shall

18  be provided to any person entitled to notice.

19         (d)  If the court determines that probable cause exists

20  to believe that such property was used in violation of the

21  Florida Contraband Forfeiture Act, the court shall order the

22  property restrained by the least restrictive means to protect

23  against disposal, waste, or continued illegal use of such

24  property pending disposition of the forfeiture proceeding.

25  The court may order the claimant to post a bond or other

26  adequate security equivalent to the value of the property.

27         (3)  Neither replevin nor any other action to recover

28  any interest in such property shall be maintained in any

29  court, except as provided in this act; however, such action

30  may be maintained if forfeiture proceedings are not initiated

31  within 45 days after the date of seizure.  However, if good

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  cause is shown, the court may extend the aforementioned

 2  prohibition to 60 days.

 3         (4)  In any incident in which possession of any

 4  contraband article defined in s. 932.701(2)(a) constitutes a

 5  felony, the vessel, motor vehicle, aircraft, other personal

 6  property, or real property in or on which such contraband

 7  article is located at the time of seizure shall be contraband

 8  subject to forfeiture.  It shall be presumed in the manner

 9  provided in s. 90.302(2) that the vessel, motor vehicle,

10  aircraft, other personal property, or real property in which

11  or on which such contraband article is located at the time of

12  seizure is being used or was attempted or intended to be used

13  in a manner to facilitate the transportation, carriage,

14  conveyance, concealment, receipt, possession, purchase, sale,

15  barter, exchange, or giving away of a contraband article

16  defined in s. 932.701(2).

17         (5)  The court shall order the forfeiture of any other

18  property of a claimant, excluding lienholders, up to the value

19  of any property subject to forfeiture under this section if

20  any of the property described in this section:

21         (a)  Cannot be located;

22         (b)  Has been transferred to, sold to, or deposited

23  with, a third party;

24         (c)  Has been placed beyond the jurisdiction of the

25  court;

26         (d)  Has been substantially diminished in value by any

27  act or omission of the person in possession of the property;

28  or

29         (e)  Has been commingled with any property which cannot

30  be divided without difficulty.

31         (6)(a)  Property may not be forfeited under the Florida

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  Contraband Forfeiture Act unless the seizing agency

 2  establishes by a preponderance of the evidence that the owner

 3  either knew, or should have known after a reasonable inquiry,

 4  that the property was being employed or was likely to be

 5  employed in criminal activity.

 6         (b)  A bona fide lienholder's interest that has been

 7  perfected in the manner prescribed by law prior to the seizure

 8  may not be forfeited under the Florida Contraband Forfeiture

 9  Act unless the seizing agency establishes by a preponderance

10  of the evidence that the lienholder had actual knowledge, at

11  the time the lien was made, that the property was being

12  employed or was likely to be employed in criminal activity.

13  If a lienholder's interest is not subject to forfeiture under

14  the requirements of this section, such interest shall be

15  preserved by the court by ordering the lienholder's interest

16  to be paid as provided in s. 932.7055.

17         (c)  Property titled or registered between husband and

18  wife jointly by the use of the conjunctives "and," "and/or,"

19  or "or," in the manner prescribed by law prior to the seizure,

20  may not be forfeited under the Florida Contraband Forfeiture

21  Act unless the seizing agency establishes by a preponderance

22  of the evidence that the coowner either knew or had reason to

23  know, after reasonable inquiry, that such property was

24  employed or was likely to be employed in criminal activity.

25         (d)  A vehicle that is rented or leased from a company

26  engaged in the business of renting or leasing vehicles, which

27  vehicle was rented or leased in the manner prescribed by law

28  prior to the seizure, may not be forfeited under the Florida

29  Contraband Forfeiture Act unless the seizing agency

30  establishes by preponderance of the evidence that the renter

31  or lessor had actual knowledge, at the time the vehicle was

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  rented or leased, that the vehicle was being employed or was

 2  likely to be employed in criminal activity.  When a vehicle

 3  that is rented or leased from a company engaged in the

 4  business of renting or leasing vehicles is seized under the

 5  Florida Contraband Forfeiture Act, upon learning the address

 6  or phone number of the company, the seizing law enforcement

 7  agency shall, as soon as practicable, inform the company that

 8  the vehicle has been seized and is available for the company

 9  to take possession.

10         (7)  Any interest in, title to, or right to property

11  titled or registered jointly by the use of the conjunctives

12  "and," "and/or," or "or" held by a coowner, other than

13  property held jointly between husband and wife, may not be

14  forfeited unless the seizing agency establishes by a

15  preponderance of the evidence that the coowner either knew, or

16  had reason to know, after reasonable inquiry, that the

17  property was employed or was likely to be employed in criminal

18  activity.  When the interests of each culpable coowner are

19  forfeited, any remaining coowners shall be afforded the

20  opportunity to purchase the forfeited interest in, title to,

21  or right to the property from the seizing law enforcement

22  agency.  If any remaining coowner does not purchase such

23  interest, the seizing agency may hold the property in

24  coownership, sell its interest in the property, liquidate its

25  interest in the property, or dispose of its interest in the

26  property in any other reasonable manner.

27         (8)  It is an affirmative defense to a forfeiture

28  proceeding that the nexus between the property sought to be

29  forfeited and the commission of any underlying violation was

30  incidental or entirely accidental.  The value of the property

31  sought to be forfeited in proportion to any other factors must

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                                                   HOUSE AMENDMENT

                          Bill No. CS for CS for SB 1056, 1st Eng.

    Amendment No.     (for drafter's use only)





 1  not be considered in any determination as to this affirmative

 2  defense.

 3

 4

 5  ================ T I T L E   A M E N D M E N T ===============

 6  And the title is amended as follows:

 7         On page 1, line 2,

 8

 9  after the semicolon insert:

10         driving under the influence of alcohol or

11         drugs; amending s. 322.34, F.S.; providing that

12         a motor vehicle is subject to forfeiture under

13         the Florida Contraband Act if the motor vehicle

14         is driven by a person under the influence of

15         alcohol or drugs and the person's license is

16         suspended as a result of a prior conviction for

17         driving under the influence; requiring that

18         notification of the impoundment or seizure be

19         sent to the Department of Highway Safety and

20         Motor Vehicles; amending s. 932.701, F.S.,

21         relating to definitions with respect to the

22         Florida Contraband Act; redefining the term

23         "contraband article" to conform to changes made

24         by the act; reenacting s. 932.703, F.S.,

25         relating to forfeiture of contraband articles,

26         to incorporate the amendment to s. 932.701,

27         F.S., in references;

28

29

30

31

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