House Bill 0549

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    Florida House of Representatives - 1999                 HB 549

        By Representative Ogles






  1                      A bill to be entitled

  2         An act relating to driving under the influence

  3         of alcohol or drugs; amending s. 322.34, F.S.;

  4         providing that a motor vehicle is subject to

  5         forfeiture under the Florida Contraband Act if

  6         the motor vehicle is driven by a person under

  7         the influence of alcohol or drugs and the

  8         person's license is suspended as a result of a

  9         prior conviction for driving under the

10         influence; requiring that notification of the

11         impoundment or seizure be sent to the

12         Department of Highway Safety and Motor

13         Vehicles; amending s. 932.701, F.S., relating

14         to definitions with respect to the Florida

15         Contraband Act; redefining the term "contraband

16         article" to conform to changes made by the act;

17         reenacting s. 932.703, F.S., relating to

18         forfeiture of contraband articles, to

19         incorporate the amendment to s. 932.701, F.S.,

20         in references; providing an effective date.

21

22  Be It Enacted by the Legislature of the State of Florida:

23

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

25  Florida Statutes, 1998 Supplement, to read:

26         322.34  Driving while license suspended, revoked,

27  canceled, or disqualified.--

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

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

30  316.193 is subject to seizure and forfeiture under ss.

31  932.701-932.707 and is subject to liens for recovering,

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    Florida House of Representatives - 1999                 HB 549

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

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

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

  4  driving under the influence.

  5         (b)  The law enforcement officer shall notify the

  6  Department of Highway Safety and Motor Vehicles of any

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

  8  accordance with procedures established by the department.

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

10  when the seizing agency obtains a final judgment granting

11  forfeiture of the motor vehicle, 30 percent of the proceeds

12  accrued from the sale of the motor vehicle shall be retained

13  by the seizing law enforcement agency and 70 percent shall be

14  deposited into the General Revenue Fund for use by the

15  Department of Labor and Employment Security in providing

16  transportation services for participants of the WAGES program.

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

18  932.701, Florida Statutes, is amended to read:

19         932.701  Short title; definitions.--

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

21         (a)  "Contraband article" means:

22         1.  Any controlled substance as defined in chapter 893

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

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

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

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

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

28  establishing probable cause to believe that a nexus exists

29  between the article seized and the narcotics activity, whether

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

31  specific narcotics transaction.

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    Florida House of Representatives - 1999                 HB 549

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

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

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

  4  laws of the state.

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

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

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

  8  state.

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

10  not been paid as required by law.

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

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

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

14  securities, books, records, research, negotiable instruments,

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

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

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

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

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

20  Forfeiture Act.

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

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

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

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

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

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

27  the Florida Contraband Forfeiture Act.

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

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

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

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

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    Florida House of Representatives - 1999                 HB 549

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

  2  person who takes aquaculture products in violation of s.

  3  812.014(2)(c).

  4         8.  Any motor vehicle used during the course of

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

  6         Section 3.  For purposes of incorporating the amendment

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

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

  9         932.703  Forfeiture of contraband article;

10  exceptions.--

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

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

13  violation of any provision of the Florida Contraband

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

15  violation of the Florida Contraband Forfeiture Act has taken

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

17  subject to the provisions of the Florida Contraband Forfeiture

18  Act.

19         (b)  Notwithstanding any other provision of the Florida

20  Contraband Forfeiture Act, except the provisions of paragraph

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

22  in violation of any provision of the Florida Contraband

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

24  violation of the Florida Contraband Forfeiture Act has taken

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

26  subject to the provisions of the Florida Contraband Forfeiture

27  Act.

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

29  contraband articles used in violation of s. 932.702 shall

30  immediately vest in the seizing law enforcement agency upon

31  seizure.

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

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

  3  the seized property are perfected in accordance with the

  4  Florida Contraband Forfeiture Act.  This section does not

  5  prohibit use or operation necessary for reasonable maintenance

  6  of seized property. Reasonable efforts shall be made to

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

  8  of value.

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

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

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

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

13  right to an adversarial preliminary hearing after the seizure

14  to determine whether probable cause exists to believe that

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

16  Florida Contraband Forfeiture Act. Seizing agencies shall make

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

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

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

20  person entitled to notice may request an adversarial

21  preliminary hearing within 15 days after receiving such

22  notice.  When a postseizure, adversarial preliminary hearing

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

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

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

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

27  is received or as soon as practicable thereafter.

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

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

30  Florida Contraband Forfeiture Act until the persons entitled

31  to notice are afforded the opportunity to attend the

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    Florida House of Representatives - 1999                 HB 549

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  1  preseizure adversarial preliminary hearing.  A lis pendens may

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

  3  adversarial preliminary hearing shall be by certified mail,

  4  return receipt requested.  The purpose of the adversarial

  5  preliminary hearing is to determine whether probable cause

  6  exists to believe that such property has been used in

  7  violation of the Florida Contraband Forfeiture Act.  The

  8  seizing agency shall make a diligent effort to notify any

  9  person entitled to notice of the seizure.  The preseizure

10  adversarial preliminary hearing provided herein shall be held

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

12  practicable.

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

14  the court shall review the verified affidavit and any other

15  supporting documents and take any testimony to determine

16  whether there is probable cause to believe that the property

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

18  intended to be used in violation of the Florida Contraband

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

20  shall authorize the seizure or continued seizure of the

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

22  be provided to any person entitled to notice.

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

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

25  Florida Contraband Forfeiture Act, the court shall order the

26  property restrained by the least restrictive means to protect

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

28  property pending disposition of the forfeiture proceeding.

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

30  adequate security equivalent to the value of the property.

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    Florida House of Representatives - 1999                 HB 549

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

  2  any interest in such property shall be maintained in any

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

  4  may be maintained if forfeiture proceedings are not initiated

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

  6  cause is shown, the court may extend the aforementioned

  7  prohibition to 60 days.

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

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

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

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

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

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

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

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

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

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

18  in a manner to facilitate the transportation, carriage,

19  conveyance, concealment, receipt, possession, purchase, sale,

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

21  defined in s. 932.701(2).

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

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

24  of any property subject to forfeiture under this section if

25  any of the property described in this section:

26         (a)  Cannot be located;

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

28  with, a third party;

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

30  court;

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    Florida House of Representatives - 1999                 HB 549

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

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

  3  or

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

  5  be divided without difficulty.

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

  7  Contraband Forfeiture Act unless the seizing agency

  8  establishes by a preponderance of the evidence that the owner

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

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

11  employed in criminal activity.

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

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

14  may not be forfeited under the Florida Contraband Forfeiture

15  Act unless the seizing agency establishes by a preponderance

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

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

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

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

20  the requirements of this section, such interest shall be

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

22  to be paid as provided in s. 932.7055.

23         (c)  Property titled or registered between husband and

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

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

26  may not be forfeited under the Florida Contraband Forfeiture

27  Act unless the seizing agency establishes by a preponderance

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

29  know, after reasonable inquiry, that such property was

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

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    Florida House of Representatives - 1999                 HB 549

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

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

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

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

  5  Contraband Forfeiture Act unless the seizing agency

  6  establishes by preponderance of the evidence that the renter

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

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

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

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

11  business of renting or leasing vehicles is seized under the

12  Florida Contraband Forfeiture Act, upon learning the address

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

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

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

16  to take possession.

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

18  titled or registered jointly by the use of the conjunctives

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

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

21  forfeited unless the seizing agency establishes by a

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

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

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

25  activity.  When the interests of each culpable coowner are

26  forfeited, any remaining coowners shall be afforded the

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

28  or right to the property from the seizing law enforcement

29  agency.  If any remaining coowner does not purchase such

30  interest, the seizing agency may hold the property in

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

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    Florida House of Representatives - 1999                 HB 549

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

  2  property in any other reasonable manner.

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

  4  proceeding that the nexus between the property sought to be

  5  forfeited and the commission of any underlying violation was

  6  incidental or entirely accidental.  The value of the property

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

  8  not be considered in any determination as to this affirmative

  9  defense.

10         Section 4.  This act shall take effect July 1, 1999.

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12            *****************************************

13                       LEGISLATIVE SUMMARY

14    Authorizes a law enforcement officer to seize and impound
      a motor vehicle if the law enforcement officer has
15    probable cause to believe that the motor vehicle is
      driven by a person under the influence of alcohol or
16    drugs and, at the time of the offense, the person's
      license is suspended as a result of a prior conviction
17    for driving under the influence. Provides for liens
      against a vehicle so seized. Provides for forfeiture of
18    the motor vehicle under the Florida Contraband Forfeiture
      Act. Requires that notice of impoundment be sent to the
19    Department of Highway Safety and Motor Vehicles.
      Authorizes the seizing law enforcement agency to retain
20    30 percent of the proceeds of the sale of a forfeited
      vehicle following a final judgment. Provides that 70
21    percent of the proceeds of the sale of a forfeited
      vehicle be deposited into the General Revenue Fund and
22    used to provide transportation services for participants
      of the WAGES program.
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