PRINTER'S NO. 3916
No. 2598 Session of 2006
INTRODUCED BY GANNON, KILLION, ADOLPH, MICOZZIE, RAYMOND, CIVERA, BARRAR, O'BRIEN, DONATUCCI AND KIRKLAND, APRIL 24, 2006
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 24, 2006
AN ACT 1 Amending Titles 42 (Judiciary and Judicial Procedure) and 75 2 (Vehicles) of the Pennsylvania Consolidated Statutes, making 3 an editorial change; further providing for loss of property 4 rights to Commonwealth; providing for vehicle forfeiture when 5 driving under the influence; and further providing for 6 procedure with respect to seized property subject to liens 7 and rights of lienholders, for grading and for penalties. 8 The General Assembly of the Commonwealth of Pennsylvania 9 hereby enacts as follows: 10 Section 1. The heading of Chapter 68 of Title 42 of the 11 Pennsylvania Consolidated Statutes is amended to read: 12 CHAPTER 68 13 [CONTROLLED SUBSTANCES] FORFEITURES 14 Section 2. Section 6801 heading and (b), (d), (e) and (k) of 15 Title 42 are amended to read: 16 § 6801. [Loss of property rights to Commonwealth] Controlled 17 substance forfeiture. 18 * * * 19 (b) Process and seizure.--Property subject to forfeiture 20 under this [chapter] section may be seized by the law
1 enforcement authority upon process issued by any court of common 2 pleas having jurisdiction over the property. Seizure without 3 process may be made if: 4 (1) the seizure is incident to an arrest or a search 5 under a search warrant or inspection under an administrative 6 inspection warrant; 7 (2) the property subject to seizure has been the subject 8 of a prior judgment in favor of the Commonwealth in a 9 criminal injunction or forfeiture proceeding under this 10 [chapter] section; 11 (3) there is probable cause to believe that the property 12 is dangerous to health or safety; or 13 (4) there is probable cause to believe that the property 14 has been used or is intended to be used in violation of The 15 Controlled Substance, Drug, Device and Cosmetic Act. 16 * * * 17 (d) Custody of property.--Property taken or detained under 18 this section shall not be subject to replevin, but is deemed to 19 be in the custody of the law enforcement authority subject only 20 to the orders and decrees of the court of common pleas having 21 jurisdiction over the forfeiture proceedings and of the district 22 attorney or the Attorney General. When property is seized under 23 this [chapter] section, the law enforcement authority shall 24 place the property under seal and either: 25 (1) remove the property to a place designated by it; or 26 (2) require that the district attorney or Attorney 27 General take custody of the property and remove it to an 28 appropriate location for disposition in accordance with law. 29 (e) Use of property held in custody.--Whenever property is 30 forfeited under this [chapter] section, the property shall be 20060H2598B3916 - 2 -
1 transferred to the custody of the district attorney, if the law 2 enforcement authority seizing the property has local or county 3 jurisdiction, or the Attorney General, if the law enforcement 4 authority seizing the property has Statewide jurisdiction. The 5 district attorney or the Attorney General, where appropriate, 6 may: 7 (1) Retain the property for official use. 8 (2) Sell any forfeited property which is not required to 9 be destroyed by law and which is not harmful to the public, 10 but the proceeds from any such sale shall be used to pay all 11 proper expenses of the proceedings for forfeiture and sale, 12 including expenses of seizure, maintenance of custody, 13 advertising and court costs. The balance of the proceeds 14 shall be dealt with in accordance with subsections (f) and 15 (g). 16 * * * 17 (k) Proceeds and appropriations.--The proceeds or future 18 proceeds from forfeited property under this [chapter] section 19 shall be in addition to any appropriation made to the Office of 20 Attorney General. 21 Section 3. Title 42 is amended by adding a section to read: 22 § 6801.1. Vehicle forfeiture. 23 (a) Forfeiture generally.--Except as provided in subsection 24 (b), in addition to any other penalty imposed under law, the 25 court shall order forfeiture of a vehicle to the Commonwealth 26 which an individual was driving, operating or was in actual 27 physical control of at the time of the commission of an offense 28 and which is classified as a felony of the third degree under 75 29 Pa.C.S. § 3803(c) (relating to grading). 30 (b) Exceptions.--The following shall apply: 20060H2598B3916 - 3 -
1 (1) No vehicle used by any person as a common carrier in 2 the transaction of business as a common carrier shall be 3 forfeited under this section unless it appears that the owner 4 or other person in charge of the conveyance was a consenting 5 party or privy to a violation of 75 Pa.C.S. (relating to 6 vehicles). 7 (2) No vehicle shall be forfeited under this section by 8 reason of any act or omission which the owner of the vehicle 9 establishes to have been committed or omitted without the 10 owner's reasonable knowledge or consent. 11 (3) No bona fide security interest shall be subject to 12 forfeiture or impairment if it was retained or acquired in 13 any of the following circumstances: 14 (i) Under 13 Pa.C.S. (relating to commercial code) 15 by any merchant dealing in new or used vehicles. 16 (ii) By any licensed or regulated finance company, 17 bank or lending institution or by any other business 18 regularly engaged in the financing of or lending on the 19 security of the vehicle. 20 (c) Process and seizure.-- 21 (1) Property subject to forfeiture under this section 22 may be seized by the law enforcement authority upon process 23 issued by any court of common pleas having jurisdiction over 24 the property. 25 (2) Seizure without process may be made if any of the 26 following apply: 27 (i) The seizure is incident to an arrest or a search 28 under a search warrant or inspection under an 29 administrative inspection warrant. 30 (ii) The property subject to seizure has been the 20060H2598B3916 - 4 -
1 subject of a prior judgment in favor of the Commonwealth 2 in a criminal injunction or forfeiture proceeding under 3 this section. 4 (iii) There is probable cause to believe that the 5 property has been used or is intended to be used in 6 violation of 75 Pa.C.S. § 3802 (relating to driving under 7 influence of alcohol or controlled substance). 8 (3) In the event seizure without process occurs under 9 paragraph (2), proceedings for the issuance of process shall 10 be instituted as soon as possible. 11 (d) Custody.--Property taken or detained under this section 12 shall not be subject to replevin but is deemed to be in the 13 custody of the law enforcement authority, subject only to the 14 orders and decrees of the court of common pleas having 15 jurisdiction over the forfeiture proceedings and of the district 16 attorney or the Attorney General. When property is seized under 17 this section, the law enforcement authority shall place the 18 property under seal and either: 19 (1) remove the property to a place designated by it; or 20 (2) require that the district attorney or Attorney 21 General take custody of the property and remove it to an 22 appropriate location for disposition in accordance with law. 23 (e) Use or sale of property.--Whenever property is forfeited 24 under this section, the property shall be transferred to the 25 custody of the district attorney, if the law enforcement 26 authority seizing the property has local or county jurisdiction, 27 or to the Attorney General, if the law enforcement authority 28 seizing the property has Statewide jurisdiction. The district 29 attorney or the Attorney General, where appropriate, may do any 30 of the following: 20060H2598B3916 - 5 -
1 (1) Retain the property for official use. 2 (2) Sell any forfeited property. The proceeds from any 3 sale shall be used to pay all proper expenses of the 4 proceedings for forfeiture and sale, including expenses of 5 seizure, maintenance of custody, advertising and court costs. 6 The balance of the proceeds shall be dealt with in accordance 7 with subsections (f) and (g). 8 (f) Use of cash or proceeds of property.--Cash or proceeds 9 of forfeited property transferred to the custody of the district 10 attorney under subsection (e) shall be placed in the operating 11 fund of the county in which the district attorney is elected. 12 The appropriate county authority shall immediately release from 13 the operating fund, without restriction, a like amount for the 14 use of the district attorney enforcing the driving under the 15 influence provisions of 75 Pa.C.S. The entity having budgetary 16 control shall not anticipate future forfeitures or proceeds from 17 future forfeitures in adopting and approving the budget for the 18 district attorney. 19 (g) Distribution of property among law enforcement 20 authorities.--If both municipal and State law enforcement 21 authorities were substantially involved in effecting the 22 seizure, the court having jurisdiction over the forfeiture 23 proceedings shall equitably distribute the property between the 24 district attorney and the Attorney General. 25 (h) Authorization to utilize property or proceeds.--The 26 district attorney and the Attorney General shall utilize 27 forfeited property or proceeds from forfeited property for the 28 purpose of enforcing the provisions of 75 Pa.C.S. In appropriate 29 cases, the district attorney and the Attorney General may 30 designate proceeds from forfeited property to be utilized by 20060H2598B3916 - 6 -
1 community-based drug and alcohol programs and crime-fighting 2 programs and for relocation and protection of witnesses in 3 criminal cases. 4 (i) Annual audit.--It shall be the responsibility of every 5 county in this Commonwealth to provide, through the controller, 6 board of auditors or other appropriate auditor and the district 7 attorney, an annual audit of all forfeited property and proceeds 8 obtained under this section. The audit shall not be made public 9 but shall be submitted to the Office of Attorney General. The 10 county shall report all forfeited property and proceeds obtained 11 under this section and the disposition of the property and 12 proceeds to the Attorney General by September 30 of each year. 13 (j) Annual report and confidential information.--The 14 Attorney General shall do all of the following: 15 (1) Annually submit a report to the Appropriations and 16 Judiciary Committees of the Senate and the Appropriations and 17 Judiciary Committees of the House of Representatives 18 specifying the forfeited property or proceeds of forfeited 19 property obtained under this section. The report shall give 20 an accounting of all proceeds derived from the sale of 21 forfeited property and the use made of unsold forfeited 22 property. 23 (2) Adopt procedures and guidelines governing the 24 release of information by the district attorney to protect 25 the confidentiality of forfeited property or proceeds used in 26 ongoing law enforcement activities. 27 (k) Proceeds and appropriations.--The proceeds or future 28 proceeds from forfeited property under this section shall be in 29 addition to any appropriation made to the Office of Attorney 30 General. 20060H2598B3916 - 7 -
1 Section 4. Section 6802(a)(5), (f) introductory paragraph 2 and (1), (j) introductory paragraph and (k) of Title 42 are 3 amended to read: 4 § 6802. Procedure with respect to seized property subject to 5 liens and rights of lienholders. 6 (a) General procedure.--The proceedings for the forfeiture 7 or condemnation of property, the sale of which is provided for 8 in this chapter, shall be in rem, in which the Commonwealth 9 shall be the plaintiff and the property the defendant. A 10 petition shall be filed in the court of common pleas of the 11 judicial district where the property is located, verified by 12 oath or affirmation of an officer or citizen, containing the 13 following: 14 * * * 15 (5) An allegation that the property is subject to 16 forfeiture [pursuant to section 6801(a) (relating to loss of 17 property rights to Commonwealth)] under this chapter and an 18 averment of material facts upon which the forfeiture action 19 is based. 20 * * * 21 (f) Preservation of the property subject for forfeiture.-- 22 Upon application of the Commonwealth, the court may enter a 23 restraining order or injunction, require the execution of a 24 satisfactory performance bond or take any other action to 25 preserve the availability of property described in [section 26 6801(a)] this chapter for forfeiture under this section either: 27 (1) upon the filing of an information or an indictment 28 charging a violation [of the act of April 14, 1972 (P.L.233, 29 No.64), known as The Controlled Substance, Drug, Device and 30 Cosmetic Act,] for which criminal forfeiture may be ordered 20060H2598B3916 - 8 -
1 under this chapter and alleging that the property with 2 respect to which the order is sought would be subject to 3 forfeiture; or 4 * * * 5 (j) Owner's burden of proof.--At the time of the hearing, if 6 the Commonwealth produces evidence that the property in question 7 was unlawfully used, possessed or otherwise subject to 8 forfeiture under [section 6801(a)] this chapter, the burden 9 shall be upon the claimant to show: 10 * * * 11 (k) Court-ordered release of property.--If a person claiming 12 the ownership of or right of possession to or claiming to be the 13 holder of a chattel mortgage or contract of conditional sale 14 upon the property, the disposition of which is provided for in 15 this section, prior to the sale presents a petition to the court 16 alleging over the property lawful ownership, right of 17 possession, a lien or reservation of title and if, upon public 18 hearing, due notice of which having been given to the Attorney 19 General or the district attorney, the claimant shall prove by 20 competent evidence to the satisfaction of the court that the 21 property was lawfully acquired, possessed and used by him or, it 22 appearing that the property was unlawfully used by a person 23 other than the claimant, that the unlawful use was without the 24 claimant's knowledge or consent, then the court may order the 25 property returned or delivered to the claimant. Such absence of 26 knowledge or consent must be reasonable under the circumstances 27 presented. Otherwise, it shall be retained for official use or 28 sold in accordance with [section 6801(e)] this chapter. 29 Section 5. Section 3803(a) introductory paragraph of Title 30 75 is amended and the section is amended by adding a subsection 20060H2598B3916 - 9 -
1 to read: 2 § 3803. Grading. 3 (a) Basic offenses.--Notwithstanding the provisions of 4 [subsection (b)] subsections (b) and (c): 5 * * * 6 (c) Habitual offender.-- 7 (1) An individual who violates section 3802(b) and who 8 has four or more prior offenses commits a felony of the third 9 degree. 10 (2) An individual who violates section 3802(a)(1), where 11 the individual refused testing of blood or breath, or who 12 violates section 3802(c) or (d) and who has three or more 13 prior offenses commits a felony of the third degree. 14 Section 6. Section 3804(b)(4) and (c)(3) of Title 75 are 15 amended and the subsections are amended by adding paragraphs to 16 read: 17 § 3804. Penalties. 18 * * * 19 (b) High rate of blood alcohol; minors; commercial vehicles 20 and school buses and school vehicles; accidents.--Except as set 21 forth in subsection (c), an individual who violates section 22 3802(a)(1) where there was an accident resulting in bodily 23 injury, serious bodily injury or death of any person or damage 24 to a vehicle or other property or who violates section 3802(b), 25 (e) or (f) shall be sentenced as follows: 26 * * * 27 (4) For a fourth [or subsequent] offense, to: 28 (i) undergo imprisonment of not less than one year; 29 (ii) pay a fine of not less than $1,500 nor more 30 than $10,000; and 20060H2598B3916 - 10 -
1 (iii) comply with all drug and alcohol treatment 2 requirements imposed under sections 3814 and 3815. 3 (5) For a fifth or subsequent offense, to: 4 (i) undergo imprisonment of not less than two years; 5 (ii) pay a fine of not less than $2,500 nor more 6 than $15,000; and 7 (iii) comply with all drug and alcohol treatment 8 requirements imposed under sections 3814 and 3815. 9 (c) Incapacity; highest blood alcohol; controlled 10 substances.--An individual who violates section 3802(a)(1) and 11 refused testing of blood or breath or an individual who violates 12 section 3802(c) or (d) shall be sentenced as follows: 13 * * * 14 (3) For a third [or subsequent] offense, to: 15 (i) undergo imprisonment of not less than one year; 16 (ii) pay a fine of not less than $2,500; and 17 (iii) comply with all drug and alcohol treatment 18 requirements imposed under sections 3814 and 3815. 19 (4) For a fourth or subsequent offense, to: 20 (i) undergo imprisonment of not less than two years; 21 (ii) pay a fine of not less than $5,000; and 22 (iii) comply with all drug and alcohol treatment 23 requirements imposed under sections 3814 and 3815. 24 * * * 25 Section 7. The following provisions shall apply to all 26 offenses committed on or after the effective date of this act: 27 (1) The amendment of the heading of 42 Pa.C.S. Ch. 68. 28 (2) The amendment of 42 Pa.C.S. § 6801 heading and 29 subsections (b), (d), (e) and (k). 30 (3) The addition of 42 Pa.C.S. § 6801.1. 20060H2598B3916 - 11 -
1 (4) The amendment of 42 Pa.C.S. § 6802(a)(5), (f) 2 introductory paragraph and (1), (j) introductory paragraph 3 and (k). 4 (5) The amendment or addition of 75 Pa.C.S. § 3803(a) 5 introductory paragraph and (c). 6 (6) The amendment or addition of 75 Pa.C.S. § 3804(b)(4) 7 and (5) and (c)(3) and (4). 8 Section 8. This act shall take effect in 60 days. D5L42MSP/20060H2598B3916 - 12 -