SB224: Release of seized property; petition to stay release.


SENATE BILL NO. 224
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee for Courts of Justice
on February 5, 2018)
(Patron Prior to Substitute--Senator Petersen)
A BILL to amend and reenact § 19.2-386.5 of the Code of Virginia, relating to release of seized property; petition to stay release.

Be it enacted by the General Assembly of Virginia:

1. That § 19.2-386.5 of the Code of Virginia is amended and reenacted as follows:

§ 19.2-386.5. Release of seized property.

A. At any time prior to the filing of an information, the attorney for the Commonwealth in the county or city in which the property has been seized pursuant to Chapter 22.2 (§ 19.2-386.15 et seq.) or other provision under the Code may, in his discretion, upon the payment of costs incident to the custody of the seized property, return the seized property to an owner or lien holder, without requiring that the owner or lien holder post bond as provided in § 19.2-386.6, if he believes the property is properly exempt from forfeiture pursuant to § 19.2-386.8.

B. Notwithstanding any other provision of law, a lawful property owner or lienholder may file a petition after one year from the date of seizure to reclaim any property seized under this Title, unless (i) an information has been filed against that property or (ii) such property is being used as evidence in a criminal proceeding following an indictment, arrest by warrant, or service of a petition in the case of a juvenile adjudication. A copy of the property owner's or lienholder's petition shall be served on the attorney for the Commonwealth in the jurisdiction of the property's seizure. The attorney for the Commonwealth shall have 21 days to respond or otherwise return the property. If the attorney for the Commonwealth contends that the property should continue to remain in the possession of the Commonwealth, the Commonwealth shall have the burden to prove, by the preponderance of the evidence, that the property seized is relevant to a criminal investigation or prosecution. Such review shall be conducted in camera. If the court determines that the Commonwealth has failed to meet its burden, the property shall be ordered returned to the lawful owner or lienholder. If the court finds that the Commonwealth has met its burden, the Commonwealth may retain property for an additional year from the court's ruling. If the property is not returned by the end of the subsequent year, the lawful owner or lienholder may file a subsequent petition.

SENATE BILL NO. 224

Offered January 10, 2018
Prefiled January 3, 2018
A BILL to amend and reenact § 19.2-386.5 of the Code of Virginia, relating to release of seized property; petition to stay release.
Patron-- Petersen

Referred to Committee for Courts of Justice

Be it enacted by the General Assembly of Virginia:

1. That § 19.2-386.5 of the Code of Virginia is amended and reenacted as follows:

§ 19.2-386.5. Release of seized property.

A. At any time prior to the filing of an information, the attorney for the Commonwealth in the county or city in which the property has been seized pursuant to Chapter 22.2 (§ 19.2-386.15 et seq.) or other provision under the Code may, in his discretion, upon the payment of costs incident to the custody of the seized property, return the seized property to an owner or lien holder, without requiring that the owner or lien holder post bond as provided in § 19.2-386.6, if he believes the property is properly exempt from forfeiture pursuant to § 19.2-386.8.

B. Notwithstanding any other provision of law, any property seized under Chapter 22.2 (§ 19.2-386.15 et seq.) or other provision under this Code shall be released to the owner or lienholder within one year from the date of seizure, unless (i) an information has been filed against that property or (ii) the attorney for the Commonwealth in the county or city in which the seizure occurred files a petition to stay the release of such property. Such petition shall allege that the property seized is an integral part of an investigation and that such property cannot be returned without jeopardizing such investigation. The owner or lienholder may file a response to the petition within 30 days of the filing of such petition. If a response is filed, the Commonwealth must prove by a preponderance of the evidence that the property is an integral part of an investigation and the property cannot be returned without jeopardizing the investigation. If the Commonwealth fails to meet its burden, the court may, in its discretion, award interest and attorney fees in addition to ordering the return of the seized property. If the Commonwealth meets its burden, the court shall stay the release of the property for one year, at which time the property shall be released to the owner or lienholder unless the Commonwealth has complied with clause (i) or (ii) of this subsection.