A. In any 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 title, including a warrant for its seizure, whether prior or subsequent to the filing of a notice of pending forfeiture, complaint, indictment or information.
Terms Used In Arizona Laws 13-4310
- Act: means a bodily movement. See Arizona Laws 3-1703
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- Attorney for the state: means an attorney designated by the attorney general, by a county attorney or by a city attorney to investigate, commence and prosecute an action under this chapter. See Arizona Laws 6-237
- Civil forfeiture: The loss of ownership of property used to conduct illegal activity.
- Commercially reasonable: means a sale or disposal that would be commercially reasonable under title 47, chapter 9, article 6. See Arizona Laws 6-237
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Conduct: means an act or omission and its accompanying culpable mental state. See Arizona Laws 3-1703
- Conviction: A judgement of guilt against a criminal defendant.
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- 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.
- Fair market value: The price at which an asset would change hands in a transaction between a willing, informed buyer and a willing, informed seller.
- Grand jury: agreement providing that a lender will delay exercising its rights (in the case of a mortgage,
- including: means not limited to and is not a term of exclusion. See Arizona Laws 1-215
- Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
- Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
- Interest holder: means a person in whose favor there is a security interest or who is the beneficiary of a perfected encumbrance pertaining to an interest in property. See Arizona Laws 6-237
- Magistrate: means an officer having power to issue a warrant for the arrest of a person charged with a public offense and includes the chief justice and justices of the supreme court, judges of the superior court, judges of the court of appeals, justices of the peace and judges of a municipal court. See Arizona Laws 1-215
- Omission: means the failure to perform an act as to which a duty of performance is imposed by law. See Arizona Laws 3-1703
- Owner: means a person who is not a secured party within the meaning of section 47-9102 and who has an interest in property, whether legal or equitable. See Arizona Laws 6-237
- Person: means a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal or beneficial interest in property. See Arizona Laws 3-1703
- Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
- Preliminary hearing: A hearing where the judge decides whether there is enough evidence to make the defendant have a trial.
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Property: means anything of value, tangible or intangible. See Arizona Laws 3-1703
- Seizing agency: means any department or agency of this state or its political subdivisions which regularly employs peace officers, and which employs the peace officer who seizes property for forfeiture, or such other agency as the seizing agency may designate in a particular case by its chief executive officer or his designee. See Arizona Laws 6-237
- Seizure for forfeiture: means seizure of property by a peace officer coupled with an assertion by the seizing agency or by an attorney for the state that the property is subject to forfeiture. See Arizona Laws 6-237
- Trial: A hearing that takes place when the defendant pleads "not guilty" and witnesses are required to come to court to give evidence.
- Verdict: The decision of a petit jury or a judge.
B. If property is seized for forfeiture without a prior judicial determination of probable cause, an order of forfeiture or a hearing pursuant to section 13-4312, subsection D, the court, on an application filed by an owner of or interest holder in the property 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 13-4311, subsections E and F, may issue an order to show cause to the seizing agency for a hearing on the sole issue of whether probable cause for forfeiture of the property then exists. Notice of the order to show cause hearing must be served on the attorney for the state at least five working days before the hearing is held. If the court finds that no probable cause for forfeiture of the property then exists or if the state elects not to contest the issue, the property seized for forfeiture from the applicant shall be released to the custody of the applicant pending the outcome of a judicial proceeding pursuant to this chapter. If the court finds that probable cause for the forfeiture of the property then exists, the court shall not order the property released, except as provided in section 13-4306, subsection G.
C. A defendant convicted in any criminal proceeding shall be precluded from subsequently denying the essential allegations of the criminal offense of which he was convicted in any proceeding pursuant to this chapter. For the purposes of this chapter, a conviction may result from a verdict or plea including a no contest plea.
D. In any judicial forfeiture hearing, determination or other proceeding pursuant to this chapter, the applicant, petitioner or claimant must establish by a preponderance of the evidence that he is an owner of or interest holder in the property seized for forfeiture before other evidence is taken. The burden of proving the standing of the claimant and the existence of the exemption is on the claimant or party raising the claim, and it is not necessary to negate the standing of any claimant or the existence of any exemption in any notice, application, complaint, information or indictment.
E. In hearings and determinations pursuant to this chapter:
1. The law of evidence relating to civil actions applies equally to all parties, including the state, an applicant, a petitioner, a claimant and a defendant, on all issues required to be established by a preponderance of the evidence or clear and convincing evidence.
2. The court shall receive and consider, in making any determination of probable cause or reasonable cause, all evidence and information that would be permissible in determining probable cause at a preliminary hearing, at a grand jury or by a magistrate pursuant to section 13-3913, together with inferences from the evidence and information.
F. All property, including all interests in such property, declared forfeited under this title vests in this state on the commission of the act or omission giving rise to forfeiture under this title together with the proceeds of the property after such time. Any such property or proceeds subsequently transferred to any person are subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing pursuant to this chapter the showings set out in section 13-4304.
G. On the motion of a party and after notice to any persons who are known to have an interest in the property and an opportunity to be heard, the court may order property that has been seized for forfeiture sold, leased, rented or operated to satisfy an interest of any interest holder who has timely filed a proper claim or to preserve the interests of any party. The court may order a sale or any other disposition of the property if the property may perish, waste, be foreclosed on or otherwise be significantly reduced in value or if the expenses of maintaining the property are or will become greater than its fair market value. If the court orders a sale, the court shall designate a third party or state property manager to dispose of the property by public sale or other commercially reasonable method and shall distribute the proceeds in the following order of priority:
1. Payment of reasonable expenses incurred in connection with the sale.
2. Satisfaction of exempt interests in the order of their priority.
3. Preservation of the balance, if any, in the actual or constructive custody of the court in an interest bearing account, subject to further proceedings under this chapter.
H. If the property is disposed of pursuant to subsection G of this section, a successful claimant may apply to the court for actual monetary damages suffered, if any, as a result of the disposal of the property, but the state, a political subdivision of the state, or an officer, employee or agent of any of them shall not in any event be liable under this chapter for incidental or consequential damages or for damages either:
1. That could have been avoided if the claimant had made full and immediate disclosure to the attorney for the state of facts or evidence known or available to the claimant.
2. In excess of the fair market value of the property seized for forfeiture at the time of its seizure plus interest from the time of its seizure for forfeiture.
I. If an indictment or information is filed alleging the same conduct as the conduct giving rise to forfeiture in a civil forfeiture proceeding, the court in the civil proceeding may stay civil discovery against the criminal defendant and against the state in the civil proceeding until the defendant’s criminal trial is completed. Before staying civil discovery, the court shall make adequate provision to prevent any loss or expense to any victim or party resulting from the delay, including loss or expense due to maintenance, management, insurance, storage or preservation of the availability of the property or due to depreciation in the value of the property.
J. No person claiming to be an owner of or interest holder in property seized for forfeiture under this chapter may commence or maintain any action against the state concerning the validity of the alleged interest other than as provided in this chapter.