Terms Used In Louisiana Revised Statutes 40:2611

  • Acquittal:
    1. Judgement that a criminal defendant has not been proved guilty beyond a reasonable doubt.
    2. A verdict of "not guilty."
     
  • Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
  • Attachment: A procedure by which a person's property is seized to pay judgments levied by the court.
  • Civil forfeiture: The loss of ownership of property used to conduct illegal activity.
  • Conviction: A judgement of guilt against a criminal defendant.
  • Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
  • Dismissal: The dropping of a case by the judge without further consideration or hearing. Source:
  • 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.
  • 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 secured party within the meaning of La. See Louisiana Revised Statutes 40:2601
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Lien: A claim against real or personal property in satisfaction of a debt.
  • Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
  • Owner: means a person, other than an interest holder, who has an interest in property and, if required by law, is in compliance with any statute requiring recordation or reflection in public records in order to perfect the interest against a bona fide purchaser for value. See Louisiana Revised Statutes 40:2601
  • person: includes a body of persons, whether incorporated or not. See Louisiana Revised Statutes 1:10
  • 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.
  • Proceeds: means property derived directly or indirectly from, maintained by, or realized through, an act or omission and includes any benefit, interest or property of any kind without reduction for expenses incurred for acquisition, maintenance, or any other purpose. See Louisiana Revised Statutes 40:2601
  • Property: means anything of value, including movables and immovables, including the whole of any lot or tract of land and corporeal and incorporeal movable property, including currency, instruments, or securities, or any other kind of privilege, claim, or right and includes any interest therein. See Louisiana Revised Statutes 40:2601
  • Seizure for forfeiture: means seizure of property by a law enforcement officer designated by the district attorney accompanied by a written assertion by the seizing agency or by a district attorney that the property is seized for forfeiture. See Louisiana Revised Statutes 40:2601
  • 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.
  • Writ: A formal written command, issued from the court, requiring the performance of a specific act.

A.  A judicial forfeiture proceeding under this Chapter is subject to the provisions of this Section.

B.  The court, on application of the district attorney, 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 Chapter, including a writ of attachment or a warrant for its seizure, whether before or after the filing of a Notice of Pending Forfeiture or petition for forfeiture.

C.  If property is seized for forfeiture or a forfeiture lien is filed without a previous judicial determination of probable cause or order of forfeiture or a hearing under the provisions of Section 2613 of this Chapter, the court, on an application filed by an owner of or interest holder in the property, within ten days after notice of its seizure for forfeiture or lien, or actual knowledge of it, whichever is earlier, and after complying with the requirements for claims in Section 2610 of this Chapter, after five days notice to the district attorney, 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.  The hearing shall be held within thirty days of the order to show cause unless continued for good cause on motion of either party.  If the court finds that there is no probable cause for forfeiture of the property, the property shall be released to the custody of the applicant or from the lien pending the outcome of a judicial proceeding pursuant to this Section.

D.  The court may order property which has been seized for forfeiture sold to satisfy a specified interest of any interest holder, on motion of such party, and after notice and a hearing, on all of the following conditions:

(1)  That the interest holder has filed a proper claim and is a business authorized to do business in this state under the jurisdiction of the commissioner of financial institutions, the Department of Insurance, or the United States Securities and Exchange Commission, or that the interest holder is such a business which or a person who has an interest which the district attorney has stipulated is exempt from forfeiture.

(2)  That the interest holder shall dispose of the property by commercially reasonable public sale and apply the proceeds to their interest and then to reasonable expenses incurred in connection with the sale or disposal.

(3)  That the balance of the proceeds, if any, be returned to the actual or constructive custody of the court, in an interest bearing account, subject to further proceedings under this Chapter.

E.  A defendant convicted in any criminal proceeding is precluded from later denying the essential allegations of the criminal offense of which the defendant was convicted in any proceeding pursuant to this Section regardless of the pendency of an appeal from that conviction.  However, evidence of the pendency of an appeal is admissible.  For the purposes of this Section, a conviction results from a verdict or plea of guilty, including a plea of nolo contendere.

F.  In hearings and determinations pursuant to this Section, the court may receive and consider, in making any determination of probable cause or reasonable cause, all evidence admissible in determining probable cause at a preliminary hearing or by a judge pursuant to C.Cr.P. Art. 162 together with inferences therefrom.

G.  The fact that money or a negotiable instrument was found in proximity to contraband or an instrumentality of conduct giving rise to forfeiture shall give rise to the permissible inference that the money or negotiable instrument was the proceeds of conduct giving rise to forfeiture or was used or intended to be used to facilitate the conduct.

H.  There shall also be a rebuttable presumption that any property of a person is subject to forfeiture under this Section if the state establishes all of the following:

(1)  That the person has engaged in conduct giving rise to forfeiture.

(2)  That the property was acquired by the person during the period of the conduct giving rise to forfeiture or within a reasonable time after that period.

(3)  That there was no likely source for the property other than the conduct giving rise to forfeiture.

I.  All property declared forfeited under this Chapter vests in this state on the commission of the conduct giving rise to forfeiture together with the proceeds of the property after that time.  Any such property or proceeds subsequently transferred to any person remain subject to forfeiture and thereafter shall be ordered forfeited unless the transferee claims and establishes in a hearing under the provisions of this Chapter that the transferee is a bona fide purchaser for value and the transferee’s interest is exempt under Section 2605 of this Chapter.

J.  An acquittal or dismissal in a criminal proceeding shall not preclude civil proceedings under this Chapter; however, for good cause shown, on motion by the district attorney, the court may stay civil forfeiture proceedings during the criminal trial for a related criminal indictment or information alleging a violation of this Chapter.  Such a stay shall not be available pending an appeal.

K.  Except as otherwise provided by this Chapter, all proceedings hereunder shall be governed by the provisions of the Louisiana Code of Civil Procedure.  Additionally, any action under the provisions of this Chapter may be consolidated with any other action or proceeding pursuant to the Chapter relating to the same property on motion of the district attorney and may be consolidated on motion of an interest holder.

L.  If a claimant whose property has been seized for forfeiture is successful in obtaining the return of the property in a civil proceeding, the court may award the claimant reasonable attorney fees, to be paid by the seizing agency, and the claimant shall also be exempt from any storage fees, or other costs incurred in the seizure, preservation, storage, or return of such seized property.  Any searched or seized vehicle that is subsequently returned to a claimant, with or without court mandate, shall be returned in substantially the same condition as when searched or seized, together with any interest earned on monies or other negotiable instruments deposited, held, or invested.

Acts 1989, No. 375, §1, eff. Jan. 1, 1990; Acts 1992, No. 875, §1; Acts 1997, No. 1334, §1.

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