37-2744A REAL PROPERTY SUBJECT TO FORFEITURE. - Idaho Statutes

TITLE 37

FOOD, DRUGS, AND OIL

CHAPTER 27

UNIFORM CONTROLLED SUBSTANCES

ARTICLE V

37-2744A. Real property subject to forfeiture. (a) Any real property, including any interest therein and any appurtenances thereto or improvements thereon, which is used in any manner or part, to commit or to facilitate the commission of a violation of the provisions of this chapter punishable by more than one (1) year of imprisonment, shall be subject to forfeiture under the provisions of this section.

(b) Property subject to forfeiture under the provisions of this section may be seized by the director upon determining that a parcel of property is subject to forfeiture, by filing a notice of forfeiture with the recorder of the county in which the property or any part thereof is situated. The notice must contain a legal description of the property sought to be forfeited; provided, however, that in the event the property sought to be forfeited is part of a greater parcel, the director may, for the purposes of this notice, use the legal description of the greater parcel. The director shall also send by certified mail a copy of the notice of forfeiture to any persons holding a recorded interest or of whose interest the director has actual knowledge. The director shall post a similar copy of the notice conspicuously upon the property and publish a copy thereof once a week for three (3) consecutive weeks immediately following the seizure in a newspaper published in the county. The owner or party in lawful possession of the property sought to be forfeited may retain possession and use thereof and may collect and keep income from the property while the forfeiture proceedings are pending.

(c) In the event of a seizure pursuant to subsection (a) of this section, a complaint instituting forfeiture proceedings under subsection (d) of this section shall be filed in the district court in the county in which the real property is situated within ninety (90) days of the date of seizure. The complaint shall be served in the same manner as other complaints subject to the Idaho rules of civil procedure on all persons having an interest in the real property sought to be forfeited.

(d) Real property sought to be forfeited under the provisions of this section shall not be subject to an action for detainer or any other collateral action, but is deemed to be in the custody of the director subject only to the orders and decrees of the district court having jurisdiction over the forfeiture proceedings. Forfeiture proceedings shall be civil proceedings in which the burden of proof shall be on the director to prove by a preponderance of the evidence that the property sought to be forfeited is subject to forfeiture. Upon being satisfied that an owner or claimant as defined in paragraph (4) of this subsection should not be subjected to forfeiture because that person had no knowledge or reason to believe that the real property was being used or had been used for the purposes alleged by the department, the director shall release the property to the owner or other claimant. The procedure applicable to such cases shall be the same as that prescribed by the Idaho rules of civil procedure. Following service the director may, where appropriate, seek default judgment pursuant to the Idaho rules of civil procedure. If an answer is filed the court shall proceed to set the case for hearing before the court without a jury.

(1) Following the hearing, if the court finds that the property is subject to forfeiture pursuant to subsection (a) of this section the court shall order the property forfeited to the director and title shall vest as of the date of the original seizure.

(2) Following the hearing, if the court finds that the property is not subject to forfeiture pursuant to subsection (a) of this section, the court shall order the property released to the owner or owners thereof.

(3) Any owner who has an answer on file may show by competent evidence that his interest in the property sought to be forfeited is not subject to forfeiture because he could not have known in the exercise of reasonable diligence that the real property was being used, or had been used in any manner in violation of the provisions of this section. If the court finds that the property was not used in violation of the provisions of this section or is not subject to forfeiture under the provisions of this section, the court shall order the property released to the owner.

(4) An owner, co-owner or claimant of any right, title or interest in the real property sought to be forfeited may prove that his right, title or interest, whether under a lien, mortgage, or otherwise, was created without any knowledge or reason to believe that the real property was being used or had been used for the purposes alleged by the department;

(A) In the event of such proof, the court shall order the real property released to the innocent owner, purchaser, lienholder or mortgagee.

(B) If the amount due to such person is less than the value of the real property, the real property may be sold in a commercially reasonable manner by the director. The proceeds from such sale shall be distributed as follows in the order indicated:

(i) To the innocent owner, purchaser or mortgagee of the real property, if any, up to the value of his interest in the real property.

(ii) The balance, if any, in the following order:

1. To the director for all expenditures made or incurred by the department in connection with the sale, including expenditure for any necessary repairs or maintenance of the real property, and for all expenditures made or incurred by the department in connection with the forfeiture proceedings including, but not limited to, expenditures for witnesses’ fees, reporters’ fees, transcripts, printing, travel, investigation, title company fees and insurance premiums.

2. The remainder, if any, to the director for credit to the drug enforcement donation account.

(C) In any case, the director may, within thirty (30) days after judgment, pay the balance due to the innocent owner, purchaser, lienholder or mortgagee and thereby purchase the real property for use in the enforcement of this act.

(e) In issuing any order under the provisions of this section, the court shall make a determination that the property, or a portion thereof, was actually used in violation of the provisions of this act. The size of the property forfeited shall not be unfairly disproportionate to the size of the property actually used in violation of the provisions of this section.

(f) When property is forfeited under the provisions of this section the director may:

(1) Retain it for official use; or

(2) Sell the property in a commercially reasonable manner. The proceeds shall be distributed by the director as follows:

(A) To reimburse for all expenditures made or incurred in connection with the sale, including expenditures for any necessary repairs or maintenance, and for all expenditures made or incurred in connection with the forfeiture proceedings including, but not limited to, expenditures for attorneys’ fees, title company fees, insurance premiums, recording costs, witnesses’ fees, reporters’ fees, transcripts, printing, travel and investigation.

(B) The remainder, if any, shall be credited to the drug enforcement donation account.

(3) Recommend to the court that the property, or proceeds thereof, be forfeited in whole or in part to a city or county, the law enforcement agency of which participated in the events leading to the seizure of the property or proceeds. Property distributed pursuant to this recommendation shall be used by the city or county for purposes consistent with the provisions of this chapter.