THE SENATE	S.B. NO.	453
THIRTIETH LEGISLATURE, 2019
STATE OF HAWAII

A BILL FOR AN ACT

relating to forfeiture.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Section 712A-5, Hawaii Revised Statutes, is amended by amending subsection (2) to read as follows:

"(2) Except that:

(a) Real property, or an interest therein, may be forfeited under the provisions of this chapter only in cases in which the covered offense is chargeable as a felony offense under state law;

(b) No property shall be forfeited under this chapter unless the owner or interest-holder of the property has been convicted of a covered offense or indicted for a covered offense and there is a significant risk that the property will be destroyed or otherwise made unavailable, and the State has met the rebuttable presumption established in section 712A-11(3);

[(b)] (c) No property shall be forfeited under this chapter to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge and consent of that owner;

[(c)] (d) No conveyance used by any person as a common carrier in the transaction of a business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;

[(d)] (e) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; and

[(e)] (f) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission."

SECTION 2. Section 712A-10, Hawaii Revised Statutes, is amended by amending subsection (10) to read as follows:

"(10) If a judicial forfeiture proceeding is instituted subsequent to notice of administrative forfeiture pursuant to [paragraph] subsection (9), no duplicate or repetitive notice shall be required. The judicial proceeding, if any, shall adjudicate all timely filed claims. At the judicial proceeding, the claimant may testify, present evidence and witnesses on the claimant's behalf, and cross-examine witnesses who appear at the hearing. The State may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. The State has the initial burden of showing by [a preponderance of the] clear and convincing evidence that the claimant's interest in the property is subject to forfeiture. On such a showing by the State, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture."

SECTION 3. Section 712A-11, Hawaii Revised Statutes, is amended by amending subsections (1) to (3) to read as follows:

"(1) In any judicial or administrative proceeding pursuant to this chapter, the court, on application of the State, may enter any restraining order or injunction, require the execution of satisfactory performance bonds, create receiverships, appoint conservators, appraisers, accountants or trustees, or take any other action to seize, secure, maintain, or preserve the availability of property subject to forfeiture under this chapter, including a warrant for its seizure, whether before or after the filing of a petition for forfeiture[, complaint,] or after an indictment.

(2) If property is seized for forfeiture without a seizure warrant, a prior judicial order of forfeiture, or a hearing pursuant to section 712A-13, a court, on an application filed by an owner or interest-holder within fifteen days after notice of its seizure for forfeiture or actual knowledge of it, whichever is earlier, and complying with the requirements for claims in section 712A-12, may issue an order to show cause to the seizing agency, with thirty days' notice to the prosecuting attorney, for a hearing on the issue of whether [probable cause] clear and convincing evidence exists for the forfeiture of the applicant's interest [then exists,]; provided that[,] the order to show cause shall be set aside upon the filing of a petition for either administrative or judicial forfeiture prior to the hearing, in which event forfeiture proceedings shall be in accordance with this chapter.

(3) There shall be a rebuttable presumption that any property of a person is subject to forfeiture under this chapter if the State establishes, by the standard of proof applicable to that proceeding, all of the following:

(a) That the person has [engaged in criminal conduct] been convicted of a covered offense for which property is subject to forfeiture[;] or indicted for a covered offense and there is a significant risk that the property will be destroyed or otherwise made unavailable, pursuant to section 712A-5(2)(b);

(b) That the property was acquired by the person during the period of the criminal conduct or within a reasonable time after that period; and

(c) That there was no likely source for the property other than the criminal conduct giving rise to forfeiture."

SECTION 4. Section 712A-12, Hawaii Revised Statutes, is amended by amending subsection (8) to read as follows:

"(8) The State has the initial burden of showing by [a preponderance of the] clear and convincing evidence that the claimant's interest in the property is subject to forfeiture. On such a showing by the State, the claimant has the burden of showing by a preponderance of the evidence that the claimant's interest in the property is not subject to forfeiture."

SECTION 5. Section 712A-13, Hawaii Revised Statutes, is amended by amending subsection (1) to read as follows:

"(1) If a forfeiture is authorized by law, it shall be ordered by a court on a petition for forfeiture filed by the prosecuting attorney in an in personam civil or criminal action. In any civil in personam action brought under this section, the owner or interest-holder may testify, present evidence and witnesses on the owner or interest-holder's behalf, and cross-examine witnesses who appear at the hearing. The State may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. The State has the initial burden of showing by [a preponderance of the] clear and convincing evidence that the owner or interest-holder's interest in the property is subject to forfeiture. On such a showing by the State, the owner or interest-holder has the burden of showing by a preponderance of the evidence that the owner or interest-holder's interest in the property is not subject to forfeiture."

SECTION 6. This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun before its effective date.

SECTION 7. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 8. This Act shall take effect upon its approval.

INTRODUCED BY:

_____________________________

Report Title:

Law Enforcement; Property Subject to Forfeiture; Burden of Proof

Description:

Specifies that no property shall be forfeited unless the owner or interest-holder of the property has been convicted of a covered offense or indicted for a covered offense and there is a significant risk that the property will be destroyed or otherwise made unavailable, and the State has met its rebuttable presumption for forfeiture. Requires the State to show by clear and convincing evidence that a claimant's interest in the property is subject to forfeiture.

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