Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
Forfeit: means to divest a claimant of an ownership interest in property seized by a peace officer or agency. See Utah Code 77-11a-101
Innocent owner: means a claimant who:
(a)
held an ownership interest in property at the time of the commission of an offense subjecting the property to seizure, and:
(i)
did not have actual knowledge of the offense subjecting the property to seizure; or
(ii)
upon learning of the commission of the offense, took reasonable steps to prohibit the use of the property in the commission of the offense; or
(b)
acquired an ownership interest in the property and had no knowledge that the commission of the offense subjecting the property to seizure had occurred or that the property had been seized, and:
(i)
acquired the property in a bona fide transaction for value;
(ii)
was an individual, including a minor child, who acquired an interest in the property through probate or inheritance; or
(iii)
was a spouse who acquired an interest in property through dissolution of marriage or by operation of law. See Utah Code 77-11a-101
Interest holder: means a secured party as defined in Section 70A-9a-102, a party with a right-of-offset, a mortgagee, lien creditor, or the beneficiary of a security interest or encumbrance pertaining to an interest in property, whose interest would be perfected against a good faith purchaser for value. See Utah Code 77-11a-101
Owner: means an individual or entity, other than an interest holder, that possesses a bona fide legal or equitable interest in property. See Utah Code 77-11a-101
Property: means all property, whether real or personal, tangible or intangible. See Utah Code 77-11a-101
Prosecuting attorney: means :
(a)
the attorney general and an assistant attorney general;
(b)
a district attorney or deputy district attorney;
(c)
a county attorney or assistant county attorney; and
(d)
an attorney authorized to commence an action on behalf of the state. See Utah Code 77-11a-101
Except for property required to be retained or preserved under Chapter 11c, Retention of Evidence, a claimant alleged to be an innocent owner or an interest holder may recover possession of seized property by:
(i)
submitting a written request with the seizing agency before the later of:
(A)
the commencement of a civil forfeiture proceeding under Section 77-11b-302; or
(B)
30 days after the day on which the property was seized; and
(ii)
providing the seizing agency with:
(A)
evidence that establishes proof of ownership; and
(B)
a brief description of the date, time, and place that the claimant mislaid or relinquished possession of the seized property, or any evidence that the claimant is an innocent owner or an interest holder.
(b)
If a seizing agency receives a claim under Subsection (1)(a), the seizing agency shall issue a written response to the claimant within 30 days after the day on which the seizing agency receives the claim.
(c)
A response under Subsection (1)(b) from the seizing agency shall indicate whether the claim has been granted, denied on the merits, or denied for failure to provide the information required by Subsection (1)(a)(ii).
(d)
(i)
If a seizing agency denies a claim for failure to provide the information required by Subsection (1)(a)(ii), the claimant has 15 days after the day on which the claim is denied to submit additional information.
(ii)
If a prosecuting attorney has not filed a civil action seeking to forfeit the property under Section 77-11b-302, and a seizing agency has denied a claim for failure to provide the information required by Subsection (1)(a)(ii), the prosecuting attorney may not commence a civil action until:
(A)
the claimant has submitted information under Subsection (1)(d)(i); or
(B)
the deadline for the claimant to submit information under Subsection (1)(d)(i) has passed.
(e)
If a seizing agency fails to issue a written response within 30 days after the day on which the seizing agency receives the response, the seizing agency shall return the property.
(2)
If a claim under Subsection (1)(a) is granted, or the property is returned because the seizing agency fails to respond within 30 days, a claimant may not receive any expenses, costs, or attorney fees for the returned property.
(3)
A claimant may collect reasonable attorney fees and court costs if:
(a)
a claimant filed a claim under Subsection (1)(a);
(b)
the seizing agency denies the claim on the merits; and
(c)
a court determines that the claimant is an innocent owner or an interest holder in a civil asset forfeiture proceeding.
(4)
If a court grants reasonable attorney fees and court costs, the amount of the attorney fees begins to accrue from the day on which the seizing agency denied the claim.
(5)
If the court grants reasonable attorney fees and court costs under Subsection (3), the attorney fees and court costs are not subject to the 50% cap under Subsection 77-11b-305(2).
(6)
A communication between parties regarding a claim submitted under Subsection (3) and any evidence provided to the parties in connection with a claim is subject to the Utah Rules of Evidence, Rules 408 and 410.
Renumbered and Amended by Chapter 448, 2023 General Session
