2007 Oregon Code - Chapter 475a :: Chapter 475A - Civil Forfeiture
Chapter 475A
— Civil Forfeiture
2007 EDITION
CIVIL FORFEITURE
LIQUOR; DRUGS
CIVIL FORFEITURE
(Definitions)
475A.005Â Definitions
for chapter
(Civil Forfeiture Generally)
475A.010Â Legislative
findings; preemption of local laws; remedy not exclusive
475A.015Â Right,
title and interest in forfeited property vests in forfeiting agency
(Property Subject to Forfeiture)
475A.020Â Property
subject to forfeiture generally
475A.025Â Property
seized as result of consensual search of motor vehicle; written notice of right
to refuse search required
475A.030Â Currency;
seizure of less than $15,000
(Seizure of Property)
475A.035Â Procedure
for seizure; immunities; constructive seizure; inventory
475A.040Â Amendment
of inventory
475A.045Â Status
of seized property; release; maintenance and use
475A.050Â Recorded
notice of intent to forfeit real property; form
(Nonjudicial Forfeiture)
475A.055Â Nonjudicial
forfeiture; notice of seizure for civil forfeiture; when notice need not be
given; claims
(Expedited Hearing)
475A.060Â Petition
for expedited hearing; relief authorized; time of hearing
475A.065Â Expedited
hearing on claimed affirmative defense
475A.070Â Order
restoring custody of property after expedited hearing; requirements;
enforcement
(Judicial Forfeiture)
475A.075Â Civil
action for forfeiture; when required; complaint; affidavit in response
475A.080Â Standards
of proof in civil action for forfeiture
475A.085Â Affirmative
defenses in civil action for forfeiture
(Mitigation)
475A.091Â Motion
for mitigation; order of court
475A.096Â Minimum
forfeiture; offer of compromise
475A.100Â Factors
to be considered by court in determining if forfeiture excessive
(Judgment of Forfeiture)
475A.110Â Judgment
of forfeiture; contents; effect
475A.111Â Appellate
review of order of mitigation
(Distribution of Forfeited Property and
Proceeds)
475A.115Â Equitable
distribution of property or proceeds; intergovernmental agreements
475A.120Â Distribution
of forfeited property or proceeds by local government
475A.126Â Distribution
of forfeited property or proceeds by state
475A.130Â Special
Crime and Forfeiture Account
ASSET FORFEITURE OVERSIGHT ADVISORY COMMITTEE
475A.155Â Asset
Forfeiture Oversight Advisory Committee
475A.160Â Asset
Forfeiture Oversight Account
CIVIL FORFEITURE
(Definitions)
     475A.005
Definitions for chapter. As
used in this chapter, unless the context requires otherwise:
     (1) “All persons known to have an interest”
means:
     (a) Any person who has, prior to the time
the property is seized for forfeiture, filed notice of interest with any public
office as may be required or permitted by law to be filed with respect to the
property which has been seized for forfeiture;
     (b) Any person from whose custody the
property was seized; or
     (c) Any person who has an interest in the
property, including all owners and occupants of the property, whose identity
and address is known or is ascertainable upon diligent inquiry and whose rights
and interest in the property may be affected by the action.
     (2) “Attorney fees” has the meaning given
that term in ORCP 68 A.
     (3) “Costs and disbursements” are those
expenditures set forth in ORCP 68 A.
     (4) “Financial institution” means any
person lawfully conducting business as:
     (a) A financial institution or trust
company, as those terms are defined in ORS 706.008;
     (b) A consumer finance company subject to
the provisions of ORS chapter 725;
     (c) A mortgage banker or a mortgage broker
as those terms are defined in ORS 59.840, a mortgage servicing company or other
mortgage company;
     (d) An officer, agency, department or
instrumentality of the federal government, including but not limited to:
     (A) The Secretary of Housing and Urban
Development;
     (B) The Federal Housing Administration;
     (C) The
     (D) Rural Development and the Farm Service
Agency of the United States Department of Agriculture;
     (E) The Federal National Mortgage
Association;
     (F) The Government National Mortgage
Administration;
     (G) The Federal Home Loan Mortgage
Corporation;
     (H) The Federal Agricultural Mortgage
Corporation; and
     (I) The Small Business Administration;
     (e) An agency, department or
instrumentality of the state, including but not limited to:
     (A) The Housing Agency;
     (B) The Department of Veterans’ Affairs;
and
     (C) The Public Employees Retirement
System;
     (f) An agency, department or
instrumentality of any municipality in the state, including but not limited to
such agencies as the Portland Development Commission;
     (g) An insurer as defined in ORS 731.106;
     (h) A private mortgage insurance company;
     (i) A pension plan or fund or other
retirement plan; and
     (j) A broker-dealer or investment adviser
as defined in ORS 59.015.
     (5) “Forfeiting agency” means the State of
     (6) “Forfeiture counsel” means an attorney
designated to represent a forfeiting agency in forfeiture actions or
proceedings.
     (7) “Law enforcement agency” means any
agency that employs police officers or prosecutes criminal cases.
     (8) “Official law enforcement use” or “official
law enforcement activity” means uses or activities that may reasonably be
expected to result in the identification, apprehension or conviction of
criminal offenders.
     (9) “Police officer” has the meaning given
that term in ORS 133.525.
     (10) “Proceeds of prohibited conduct”
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 of acquiring or maintaining it or
incurred for any other reason.
     (11) “Prohibited conduct” includes
violation of, solicitation to violate, attempt to violate or conspiracy to
violate any provisions of ORS 475.005 to 475.285 and 475.805 to 475.980 when
the conduct constitutes either a felony or misdemeanor as those terms are
defined in ORS 161.525 and 161.545.
     (12) “Property” means any interest in
anything of value, including the whole of any lot or tract of land and tangible
and intangible personal property, including currency, instruments or securities
or any other kind of privilege, interest, claim or right whether due or to
become due.
     (13) “Seizing agency” means a law enforcement
agency that has seized property for forfeiture.
     (14) “Weapon” means any instrument of
offensive or defensive combat or anything used, or designed to be used, in
destroying, defeating or injuring a person. [1989 c.791 §2; 1991 c.291 §1; 1993
c.508 §44; 1995 c.79 §388; 1997 c.631 §565; 2001 c.104 §215; 2001 c.780 §§1,1a;
2003 c.14 §308; 2005 c.625 §§74,75; 2007 c.71 §154]
(Civil
Forfeiture Generally)
     475A.010
Legislative findings; preemption of local laws; remedy not exclusive. (1) The Legislative Assembly finds that:
     (a) The prohibited conduct defined in this
chapter is undertaken in the course of profitable activities which result in,
and are facilitated by, the acquisition, possession or transfer of property
subject to forfeiture under this chapter;
     (b) Transactions involving property
subject to forfeiture under this chapter escape taxation;
     (c) Governments attempting to respond to
prohibited conduct require additional resources to meet their needs; and
     (d) There is a need to provide for the
forfeiture of certain property subject to forfeiture under this chapter, to
provide for the protection of the rights and interests of affected persons, and
to provide for uniformity throughout the state with respect to the laws of this
state which pertain to the forfeiture of real and personal property based upon
prohibited conduct as defined in this chapter.
     (2) Therefore, the Legislative Assembly
adopts the provisions of this chapter as the sole and exclusive law of the
state pertaining to the forfeiture of real and personal property based upon the
prohibited conduct, thereby replacing all charter provisions, ordinances,
regulations and other enactments adopted by cities and counties pertaining to
such forfeitures. After July 24, 1989, no actions for forfeiture shall be
initiated except those in compliance with the provisions of this chapter.
     (3) This chapter is applicable throughout
this state and in all cities and counties. The electors or the governing body
of a city or county shall not enact and the governing body shall not enforce
any charter provision, ordinance, resolution or other regulation that is
inconsistent with this section.
     (4) This chapter does not impair the right
of any city or county to enact ordinances providing for the forfeiture of
property based upon conduct that is other than prohibited conduct as defined in
this chapter if:
     (a) The property was used to commit the
conduct described in the ordinances, or is proceeds of the conduct; and
     (b) The forfeiture is subject to
procedures and limitations set forth in this chapter.
     (5) Nothing in this chapter shall be
construed to limit or impair any right or remedy that any person or entity may
have under ORS 166.715 to 166.735. The application of any remedy under this
chapter is intended to be remedial and not punitive and shall not preclude or
be precluded by the application of any previous or subsequent civil or criminal
remedy under any other provision of law. Civil remedies under this chapter are
supplemental and not mutually exclusive. [1989 c.791 §1; 1999 c.59 §145; 2001
c.780 §§2,2a]
     475A.015
Right, title and interest in forfeited property vests in forfeiting agency. Subject to this chapter, all right, title
and interest in property forfeited under this chapter shall vest in the forfeiting
agency upon commission of the prohibited conduct. [1989 c.791 §12; 1999 c.59 §146]
(Property
Subject to Forfeiture)
     475A.020
Property subject to forfeiture generally. The following will be subject to civil in rem forfeiture:
     (1) All controlled substances which have
been manufactured, distributed, dispensed, possessed or acquired in the course
of prohibited conduct;
     (2) All raw materials, products and
equipment of any kind which are used, or intended for use, in providing,
manufacturing, compounding, processing, delivering, importing or exporting any
service or substance in the course of prohibited conduct;
     (3) All property which is used, or
intended for use, as a container for property described in subsection (1) or
(2) of this section;
     (4) All conveyances, including aircraft,
vehicles or vessels, which are used, or are intended for use, to transport or
in any manner facilitate the transportation, sale, receipt, possession or
concealment of property described in subsection (1) or (2) of this section, and
all conveyances, including aircraft, vehicles or vessels, which are used or
intended for use in prohibited conduct or to facilitate prohibited conduct in
any manner, except that:
     (a) No conveyance used by any person as a
common carrier in the transaction of business as a common carrier shall be
forfeited under the provisions of this section unless the owner or other person
in charge of such conveyance was a consenting party or knew of and acquiesced
in the prohibited conduct; and
     (b) No conveyance shall be forfeited under
the provisions of this section by reason of any act or omission established by
the owner thereof to have been committed or omitted by any person other than
such owner while such conveyance was unlawfully in the possession of a person
other than the owner in violation of the criminal laws of the United States or
of any state;
     (5) All books, records, computers and
research, including formulae, microfilm, tapes and data which are used or
intended for use to facilitate prohibited conduct in any manner;
     (6) All moneys, negotiable instruments,
balances in deposit or other accounts, securities or other things of value
furnished or intended to be furnished by any person in the course of prohibited
conduct, all proceeds of or from prohibited conduct, and all moneys, negotiable
instruments, balances in deposit and other accounts and securities used or
intended to be used to facilitate any prohibited conduct;
     (7) All real property, including any
right, title and interest in the whole of any lot or tract of land and any
appurtenances or improvements, which is used, or intended to be used, in any
manner or part, to commit or facilitate in any manner the commission of
prohibited conduct; and
     (8) All weapons possessed, used or
available for use in any manner to facilitate conduct giving rise to
forfeiture. [1989 c.791 §3; 2001 c.780 §§3,3a]
     475A.025
Property seized as result of consensual search of motor vehicle; written notice
of right to refuse search required. (1) Notwithstanding any other provisions of this chapter, property
that is seized solely on the basis of a consensual search of a motor vehicle is
not subject to civil in rem forfeiture unless, before obtaining the consent of
a person for the search, the person is provided with written, multilingual
notice of the right of the person to refuse to consent to the search. The
notice shall include at least the following information:
     (a) Notice that the person has a right to
refuse to consent to a search.
     (b) Notice that a refusal to consent to a
search cannot be used against the person for any purpose.
     (c) Notice that anything found in the
search can be seized as evidence of a crime or can be seized for civil
forfeiture.
     (2) A notice or consent form under this
section shall be considered multilingual if the notice or form provides
information in at least English and Spanish. [1993 c.699 §20]
     475A.030
Currency; seizure of less than $15,000. Notwithstanding any other provision of this chapter,
(Seizure of
Property)
     475A.035
Procedure for seizure; immunities; constructive seizure; inventory. Property may be seized for forfeiture as
provided in this section.
     (1) Any person who delivers property in
obedience to an order or direction to deliver the property under this section
shall not be liable:
     (a) To any person on account of obedience
to the order or direction; or
     (b) For any costs incurred on account of
any contamination of the delivered property. This includes, but is not limited
to, any disposal costs for any property forfeited under ORS 475A.020, any
hazardous waste or material, any contraband or any other contamination
contained in property seized under this section.
     (2) Property may be seized by any police
officer without a court order if:
     (a) The property has been the subject of
an earlier judgment in favor of any forfeiting agency in an earlier civil in
rem proceeding under this chapter;
     (b) There is probable cause to believe
that property is subject to forfeiture, provided that the property may
constitutionally be seized without a warrant;
     (c) The seizure is in the course of a
constitutionally valid criminal investigative stop, arrest or search, and there
is probable cause to believe that the property is subject to forfeiture;
     (d) The property is directly or indirectly
dangerous to the health or safety of any person; or
     (e) An owner consents to the seizure.
     (3) Except as provided in ORS 475A.045,
with regard to cash or other assets which at the time of seizure are held in
any form of account in a financial institution, if the property is in whole or
in part intangible, the person having control or custody of the property shall
deliver the same over to the police officer.
     (4)(a) Property may be seized by any
police officer pursuant to an order of the court. Forfeiture counsel or a
seizing agency may apply for an ex parte order directing seizure of specified
property.
     (b) Application shall be made to any judge
as defined in ORS 133.525. The application shall be supported by one or more
affidavits setting forth the facts and circumstances tending to show where the
objects of the seizure are to be found. The court shall issue the order upon a
finding of probable cause to believe that the described property is subject to
forfeiture. The order may be set out on the face of a search warrant.
     (c) Except as provided in ORS 475A.045,
with regard to cash or other assets which at the time of seizure are held in
any form of account in a financial institution, if the property is in whole or
in part intangible, the order shall direct any person having control or custody
of the property to deliver the same over to the seizing agency or to the court
to abide judgment.
     (5) Property may be constructively seized
by posting notice of seizure for forfeiture on it or by filing notice of
seizure for forfeiture or notice of pending forfeiture in the public records
that impart constructive notice of matters relating to such property. A notice
which is filed must include a description of the property that is the subject
of the seizure. Real property, including interests arising out of land sale
contracts, shall be seized only upon recording notice of seizure containing a
legal description of the property in the mortgage records of the county in
which the real property is located.
     (6) Property which has been
unconstitutionally seized may be subject to forfeiture if the basis for
forfeiture under this chapter is sustained by evidence which is not the fruit
of the unconstitutional seizure.
     (7) Promptly upon seizure, the officer who
seized the property shall make an inventory of the property seized and shall
deliver a receipt embodying the inventory to the person from whose possession
they are taken or to the person in apparent control of the property at the time
it is seized. The officer may, in addition, provide an estimate of the value of
the property seized and information on the right to file a claim under ORS
475A.055 (2), and the deadline for filing that claim. If the property is
unoccupied or there is no one present in apparent control, the officer shall
leave the receipt suitably affixed to the property. If the property is
physically removed from the location of seizure and it is unoccupied or there
is no one present in apparent control, then the officer shall promptly file the
receipt in the public records of the forfeiting agency. Every receipt prepared
under this subsection shall contain, in addition to an inventory of the
property seized, the following information:
     (a) The identity of the seizing agency;
and
     (b) The address and telephone number of
the office or other place where the person may obtain further information
concerning the forfeiture.
     (8) A police officer has probable cause to
believe that cash, weapons or negotiable instruments are subject to forfeiture
if the cash, weapons or negotiable instruments are found in close proximity to
controlled substances or to instrumentalities of prohibited conduct.
Notwithstanding ORS 475A.080, if the forfeiting agency establishes in a
forfeiture action that cash, weapons or negotiable instruments were found in
close proximity to controlled substances or to instrumentalities of prohibited
conduct, the burden is on any person claiming the cash, weapons or negotiable
instruments to prove by a preponderance of the evidence that the cash, weapons
or negotiable instruments are not proceeds of prohibited conduct or an
instrumentality of prohibited conduct.
     (9) In the event that property is seized
from the possession of a person who asserts a possessory lien over such
property pursuant to applicable law, notwithstanding any other provision of law,
any lien of the person from whom the property was seized shall remain in effect
and shall be enforceable as fully as though the person had retained possession
of the property. [1989 c.791 §4; 1991 c.218 §1; 1991 c.237 §1; 1991 c.934 §2;
1999 c.59 §147; 2001 c.780 §§5,5a; 2005 c.830 §31]
     475A.040
Amendment of inventory. If,
prior to the commencement of forfeiture proceedings under ORS 475A.075, it is
determined that the inventory prepared pursuant to ORS 475A.035 and 475A.055 is
substantially incorrect, the seizing agency shall cause the inventory to be
amended. The substance of the amendment shall be clearly noted on the face of
the inventory. The amended inventory shall be served with any summons and
complaint served under ORS 475A.075. If the amendment occurs after the
commencement of forfeiture proceedings, the amended inventory shall be served
on all persons previously served with summons and complaint under ORS 475A.075.
[1991 c.218 §5; 2001 c.780 §§20,20a]
     475A.045
Status of seized property; release; maintenance and use. (1)(a) Except as otherwise provided in this
chapter, property seized for forfeiture is not subject to replevin, conveyance,
sequestration or attachment, nor is it subject to a motion or order to return
under ORS chapter 133. The seizure of property or the commencement of a
forfeiture proceeding pursuant to this chapter shall not abate, impede or in
any way delay the initiation or prosecution of a suit or action by a financial
institution for the possession of seized property in which the financial
institution has or purports to have a lien or security interest or for the
foreclosure of such lien or security interest. A financial institution may
proceed with any suit or action involving property in which it has a lien or
security interest even though a seizure has occurred and forfeiture proceedings
have been or will be commenced. Any such suit or action may be consolidated
with the forfeiture proceeding for the purpose of trial. If property which may
be subject to forfeiture is sold prior to the conclusion of the forfeiture
proceedings, the sheriff, trustee or other person conducting the sale and who
has actual notice of the forfeiture proceedings shall distribute the sale
proceeds as follows:
     (A) To the expenses of the sale;
     (B) To the payment of the obligations owed
to the foreclosing financial institution that are secured by the property and
to any other person whose lien or security interest in the property has been
foreclosed in the suit or action in the order determined by the court; and
     (C) The surplus, if any, shall be
distributed to the seizing or forfeiting agency, or to the court in which the
forfeiture proceedings are pending.
     (b) The sheriff, trustee or other person
who distributes the sale proceeds as provided shall not be liable to any person
who has or asserts an interest in the property.
     (2) Within 30 days following seizure of
property for forfeiture, the seizing agency, in consultation with the district
attorney of the county in which the property was seized for forfeiture, shall
determine whether it will seek the forfeiture of the property. If the seizing
agency elects not to seek forfeiture, it shall pay all costs and expenses
relating to towing and storage of the property, and shall cause to be
discharged any possessory chattel liens arising under ORS 87.152 to 87.162 that
have attached to the property since its seizure and release the property. The
property may be released to a person other than the person from whose custody
or control the property was taken if the seizing agency, forfeiting agency or
forfeiture counsel first mails to the last-known addresses of all persons known
to have an interest in the property a notice of intent to release the property.
The notice shall specify the person to whom the property is to be released and
shall detail the time and place of the release. An agency that complies with
the provisions of this subsection by paying costs and expenses of towing and
storage, discharging possessory liens, mailing any required notices and releasing
the property shall not be liable for its actions under this subsection or for
any consequences thereof.
     (3) A forfeiting agency shall, pending
forfeiture and final disposition and subject to the need to retain it in any
criminal proceeding, provide that property in the physical custody of the
seizing or forfeiting agency be serviced or maintained as may be reasonably
appropriate to preserve the value of the property.
     (4) A forfeiting agency may, pending
forfeiture and final disposition and subject to the need to retain seized
property in any criminal proceeding:
     (a) Provide that the seized property be
transferred for forfeiture to any city, county, state or federal agency with
forfeiture authority, provided that no such transfer shall have the effect of
diminishing or reducing the rights of any third party under this chapter.
     (b) Apply to the court for an order
providing that the seized property may be sold, leased, rented or operated in
the manner and on the terms that may be specified in the courtÂ’s order. The
court shall deny any application unless the sale, lease, rental or operation of
the property will be conducted in a commercially reasonable manner and shall
not result in a material reduction of the propertyÂ’s value. An order shall only
be entered:
     (A) After notice and opportunity to be
heard is provided to all persons known to have or to claim an interest in the
property; and
     (B) With the consent of all persons
holding security interests of record in the property.
     (c) Provide that the seized property be
removed to a storage area for safekeeping.
     (5) Unless otherwise ordered by the court,
the proceeds of the sale, leasing, renting or operation under subsection (4) of
this section shall be held by the forfeiting agency, and the rights of holders
of security interests of record in the property shall attach to the proceeds of
the sale, leasing, renting or operation in the same order of priority as
interests attached to the property.
     (6)(a) Except as provided in paragraph (b)
of this subsection and except for currency with apparent or known intrinsic
collector value, all cash seized for forfeiture, together with all cash
received from the sale, leasing, renting or operation of the property, shall be
immediately deposited in an insured interest-bearing forfeiture trust account
or accounts maintained by the seizing or forfeiting agency exclusively for this
purpose. Cash may be retained as evidence in a criminal proceeding but shall be
deposited immediately when the need to retain it as evidence is discharged.
     (b) Notwithstanding paragraph (a) of this
subsection, all cash seized for forfeiture which at the time of seizure is
deposited in any form of account in a financial institution may remain in the
account in the financial institution. From the time of seizure until the
forfeiture proceeding is abandoned, or until a court ultimately enters or fails
to enter a judgment of forfeiture, all deposits except the deposit of interest
by the financial institution, withdrawals or other transactions involving the
account are prohibited, unless approved by the court.
     (c) Subject to any court order, interest
earned upon cash deposited in a forfeiture trust account or held in an account
in a financial institution under this subsection shall be disbursed as follows:
     (A) If the forfeiture proceeding is
abandoned, or if the court ultimately fails to enter a judgment of forfeiture
or foreclosure, any interest earned, together with the cash deposited in the
forfeiture trust account in connection with the seizure in question, shall be
paid by the seizing or forfeiting agency to the person from whom it was seized
and any interest earned, together with the cash deposited in an account in a
financial institution shall be released by the seizing or forfeiting agency to
the person from whom it was seized.
     (B) If a judgment of forfeiture is
entered, but parties other than the forfeiting agency establish rights to
portions of the amount deposited in the forfeiture trust account or the account
held in a financial institution which are in the aggregate larger than or equal
to the cash on deposit plus interest earned thereon, the interest, together
with the cash on deposit, shall be disbursed by the forfeiting agency to the
parties in the order of their priority.
     (C) If a judgment of forfeiture is
entered, and the total amount arising out of the seizure which is on deposit in
the forfeiture trust account or in an account in a financial institution,
including interest earned on moneys deposited, is greater than the aggregate
amount needed to satisfy the established interests of security interest
holders, lienholders and other claimants, then the balance remaining after
payment by the forfeiting agency to parties shall be retained by the forfeiting
agency.
     (7) If the property seized for forfeiture
consists of stocks, bonds, promissory notes, or other security or evidence of
indebtedness, and the property is held in some form of account in a financial
institution, the property may remain in the account pending a final decision in
the forfeiture proceedings. Unless otherwise allowed by order of the court, no
transactions involving the account shall be permitted other than the deposit or
reinvestment of dividends or other normally recurring payments on the property.
Any accrual to the value of the property during the pendency of forfeiture
proceedings shall be disbursed in the manner provided for the disbursement of
interest under subsection (6) of this section.
     (8) If property is seized for forfeiture
or if a notice of forfeiture is filed without a prior judicial determination of
probable cause, a court, on application filed by an owner of or interest holder
in the property within 15 days after notice of its seizure for forfeiture, or
actual knowledge of it, whichever is earlier, may, after five daysÂ’ written
notice to the forfeiture counsel, issue an order to show cause to the
forfeiting agency, for a hearing on the sole issue of whether probable cause
for forfeiture of the property then exists. If the court finds that there is no
probable cause for forfeiture of the property, the property seized for
forfeiture from the applicant or subjected to the notice of forfeiture shall be
released from its seizure for forfeiture or lien pending the outcome of a
judicial proceeding under ORS 475A.075. [1989 c.791 §5; 1991 c.237 §2; 1991
c.276 §1; 1991 c.800 §1; 1995 c.459 §1; 1999 c.59 §148; 2001 c.780 §§6,6a]
     475A.050
Recorded notice of intent to forfeit real property; form. (1) Whenever the state or a political
subdivision intends to forfeit any real property, the state or political
subdivision may have recorded by the county clerk or other recorder of deeds of
every county in which any part of the premises or real property lies a notice
of intent to forfeit real property under ORS 205.246. The notice shall contain
the legal description of the real property, the common address if any and the
attorney responsible for the forfeiture action. From the time of recording the
notice, and from that time only, the intent to forfeit is notice to purchasers
and encumbrances of the rights and equities in the premises of the party filing
the notice. The notice shall be recorded in the same book and in the same
manner in which mortgages are recorded and may be discharged in like manner as
mortgages are discharged, either by such party or the attorney signing the
notice.
     (2) Unless otherwise prescribed by law, a
party recording a notice of intent to forfeit shall use substantially the
following form:
______________________________________________________________________________
NOTICE OF INTENT
TO FORFEIT
Pursuant to
ORS 475A.050, the undersigned states:
     That I, _______________ do declare that it
is my intent to initiate forfeiture proceedings on the following described real
property:
     1. The description of the real property to
be affected is:
     ________________________
     ________________________
     ________________________
     ________________________
     ________________________
     2. The common address, if any, is:
     ________________________
     ________________________
     ________________________
Dated this _____
day of ________, _____.
This notice
of intent to file forfeiture will expire on _____ day of ________, _____ absent
future filings.
Name of
agency seeking forfeiture
     ________________________
Name of
Attorney
     ________________________
Address
     ________________________
     ________________________
     ________________________
Phone Number
     ________________________
State of
                                  ) ss.
County of _____Â Â Â Â Â Â Â Â )
     The foregoing instrument was acknowledged
before me this _____ day of ____________, ______.
_______________
Notary Public for
My commission expires________.
______________________________________________________________________________
     (3) The notice of intent to forfeit
property shall expire 30 days after the date of filing absent future filings to
perfect. [1989 c.791 §19; 2001 c.780 §§21,21a]
(Nonjudicial
Forfeiture)
     475A.055
Nonjudicial forfeiture; notice of seizure for civil forfeiture; when notice need
not be given; claims.
Personal property which is not subject to an interest in favor of any person
known to have an interest, other than a person who engaged in prohibited
conduct, may be forfeited by the forfeiting agency in the manner provided in
this section.
     (1) As soon as practicable after seizure for
forfeiture, the seizing agency shall review the inventory prepared by the
officer under ORS 475A.035 (7) and estimate the value of the property seized.
The forfeiting agency shall amend the inventory to supply an estimate of value
of the property seized if no estimate was made by the officer under ORS
475A.035 (7). The forfeiting agency shall, in addition, amend the inventory to
supply a correct listing of the property seized or estimate of the value of
that property if either the listing or any estimate of value made by the
officer is substantially incorrect. Within 15 days after seizure for
forfeiture, the forfeiting agency shall prepare a notice of seizure for
forfeiture containing a copy of the inventory prepared pursuant to this section
and ORS 475A.035, the identity of the person from whom the property was seized,
the name, address and telephone number of the seizing agency and the address
and telephone number of the office or other place where further information
concerning the seizure and forfeiture may be obtained, and shall make
reasonable efforts to serve the notice of seizure for forfeiture on all persons
known to have an interest in the seized property. A person may be served as
provided in ORCP 7 D except that the notice shall also include information
regarding the right to file a claim under subsection (3) of this section, if
applicable, and the deadline for filing the claim. If the property is cash in
the amount of $1,000 or less, or if the fair market value of the property is
$1,000 or less, the forfeiting agency may publish notice of seizure for
forfeiture in a newspaper as provided in ORCP 7 D(6)(b) to (d). In all other
cases, the forfeiting agency shall publish notice of seizure for forfeiture in
a newspaper as provided in ORCP 7 D(6)(b) to (d). A copy of the notice,
inventory and estimate of value shall be provided to the forfeiting agencyÂ’s
forfeiture counsel.
     (2)(a) The notice of seizure for
forfeiture provided for in this section need not be served on a person who has
received the receipt provided for in ORS 475A.035 (7) if:
     (A) The receipt contains an estimate of
the value of the property seized and the seizing agency has not amended the
listing of property or estimate of the value in reviewing the inventory under
subsection (1) of this section; and
     (B) The receipt contains information
regarding the right to file a claim under subsection (3) of this section and
the deadline for filing the claim.
     (b) Any person who has received the
receipt provided for in ORS 475A.035 (7), who must be served with the notice of
seizure for forfeiture solely by reason of an amendment to the listing of
property or estimate of value under subsection (1) of this section, need only
be served by mailing a true copy of the notice of seizure for forfeiture by certified
mail, return receipt requested.
     (3) Any person claiming an interest in the
property shall file a claim with the forfeiting agencyÂ’s forfeiture counsel
within 21 days after notice of seizure for forfeiture if notice is given in a
manner other than by publication. All other persons claiming an interest in the
property shall file a claim with the forfeiting agencyÂ’s forfeiture counsel
within 21 days after the last publication date if notice is published. No
extension for the filing of any claim shall be granted. The claim shall be
signed by the claimant under penalty of perjury and shall set forth all of the
following:
     (a) The true name of the claimant;
     (b) The address at which the claimant will
accept future mailings from the court or forfeiture counsel; and
     (c) A statement that the claimant has an
interest in the seized property.
     (4) If no timely claim is filed, the
property shall, upon application and affidavit of the forfeiting agency, be
declared forfeited to the forfeiting agency. The affidavit shall set forth
proof of service or, if no service was accomplished, facts demonstrating the
forfeiting agencyÂ’s efforts to accomplish service, together with proof of
publication of notice. The application and affidavit shall be filed in the
circuit court designated in ORS 475A.075. The judgment declaring the property
forfeited shall be as provided in ORS 475A.110.
     (5) If a timely claim is filed, a judicial
forfeiture proceeding may be commenced as provided in ORS 475A.075.
     (6) Notwithstanding ORS 8.720 or any other
provision of law, but subject to the provisions of ORS 180.060, a district
attorney may act as forfeiture counsel in any civil forfeiture proceeding.
     (7) In any civil forfeiture proceeding
where there are or may be related criminal proceedings, a prosecuting attorney
or forfeiture counsel may participate in settlement negotiations initiated by
the defendant or claimant or by the attorney representing the defendant or
claimant.
     (8) If a forfeiting agency publishes
notice of seizure for forfeiture in a newspaper in the manner provided by
subsection (1) of this section, the agency may include in a single publication
as many notices of forfeiture as the agency considers convenient. The
publication may contain a single statement of matters from the notices of
forfeiture that are common to all of the notices and which would otherwise
result in needless repetition. The publication must contain for each notice of
forfeiture a separate copy of the inventory prepared pursuant to this section
and ORS 475A.035 and a separate statement of the identity of the person from
whose custody the property was seized. The published inventory need not contain
estimates of value for the property seized. [1989 c.791 §6; 1991 c.218 §2; 1991
c.799 §1; 1991 c.934 §1; 1993 c.553 §1; 1993 c.699 §10; 2001 c.780 §§7,7a]
(Expedited
Hearing)
     475A.060
Petition for expedited hearing; relief authorized; time of hearing. (1) A person claiming an interest in
property seized pursuant to this chapter may file a petition for an expedited
hearing within 15 days after notice of seizure for forfeiture or within such
further time as the court may allow for good cause shown.
     (2) A petition for an expedited hearing
shall contain a claim if no claim has previously been filed. The petition shall
reflect whether the petitioner seeks one or more of the following:
     (a) A determination at the hearing of any
of the affirmative defenses provided for in ORS 475A.085.
     (b) An order restoring custody of seized
property to the petitioner during the pendency of the proceedings if the court
finds, by a preponderance of the evidence, that it is probable that the
property will remain available for forfeiture at the completion of the
proceedings and that there is a reasonable possibility that the petitioner will
ultimately prevail in the proceeding.
     (c) Appointment of a receiver.
     (3) A person filing a petition under this
section shall serve a copy of the petition on all persons known to have an
interest. Service shall be accomplished as provided in ORCP 7D. Service by
publication shall not be required prior to an expedited hearing.
     (4) A hearing shall be held within 15 days
after service of all persons known to have an interest or at such later time as
the court may allow for good cause shown. The hearing shall be limited to:
     (a) Deciding whether claimant can prove an
affirmative defense provided for in ORS 475A.085 if the petitioner asserts one
of those defenses;
     (b) Determining whether an order should be
entered directing the return of the seized property to the claimant during the
pendency of the hearing; and
     (c) Determining whether an order should be
entered directing the appointment of a receiver to manage property seized
pursuant to this chapter pending a final determination as to the disposition of
the property, if the petitioner or the forfeiting agency requests that order.
     (5) If the petition is denied, and
evidence that was not previously available to the petitioner is discovered, the
petitioner may file a new petition under this section at any time prior to a
trial under ORS 475A.075. The new petition shall be served as provided under
subsection (3) of this section. A hearing on the petition shall be conducted as
provided in ORS 475A.065.
     (6) The parties to a proceeding under ORS
475A.075 may at any time stipulate to the entry of an order restoring custody
of seized property to a petitioner who claims an interest in the property. The
order shall comply with the requirements of ORS 475A.070 (1). [1991 c.934 §4;
2001 c.780 §§22,22a]
     475A.065
Expedited hearing on claimed affirmative defense. (1) In any expedited hearing under ORS
475A.060 in which petitioner seeks a determination at the hearing of any of the
affirmative defenses provided for in ORS 475A.085, the court may consider
evidence relating to those affirmative defenses and shall make a determination
as to any of those defenses that may be asserted by the petitioner.
     (2) If the court finds that petitioner has
proven an affirmative defense provided for in ORS 475A.085, the court shall
order that custody of the seized property be returned to the petitioner to the
extent of the petitionerÂ’s interest pending a final determination as to the
disposition of the property, unless the forfeiting agency can show that the
return of the property will result in prejudice to the agency in seeking
forfeiture of other claimantsÂ’ interest in the property.
     (3) If the court finds that the petitioner
has failed to prove an affirmative defense provided for in ORS 475A.085, the
court shall continue the matter for further proceedings consistent with ORS
475A.075. [1991 c.934 §5]
     475A.070
Order restoring custody of property after expedited hearing; requirements;
enforcement. (1) An order
restoring custody to a petitioner under ORS 475A.060 or 475A.065 shall:
     (a) Prohibit the petitioner from using the
property in unlawful conduct of any kind, or from allowing the property to be
used by any other person in unlawful conduct;
     (b) Require the petitioner to service and
maintain the property as may be reasonably appropriate to preserve the value of
the property; and
     (c) Require the petitioner to inform the
court of the exact location of the property at the time of any trial under ORS
475A.075 and to deliver the property to the forfeiting agency immediately upon
the issuance of a judgment of forfeiture.
     (2) An order restoring custody to a
petitioner under ORS 475A.060 or 475A.065 may include such other requirements
as the court finds appropriate pending a final determination as to the
disposition of the property.
     (3) An order restoring custody to a
petitioner under ORS 475A.060 or 475A.065 is enforceable by a contempt
proceeding brought on the relation of forfeiture counsel, by a further order
directing the petitioner to deliver the property to the custody of the forfeiting
agency, by an order awarding to the forfeiting agency its reasonably incurred
attorney fees, costs and investigative expenses, and by such other remedies or
relief as the court may find appropriate. [1991 c.934 §6]
(Judicial
Forfeiture)
     475A.075
Civil action for forfeiture; when required; complaint; affidavit in response. A civil action in rem may be brought as
provided in this section in any case in which forfeiture is sought. A civil
action in rem must be brought if the property is real property, the property is
in whole or part a manufactured dwelling as defined in ORS 446.003, the
property is a floating home as defined in ORS 830.700 or the property is
subject to an interest in favor of any person known to have an interest, other
than a person who engaged in prohibited conduct.
     (1) If a forfeiting agency has commenced
proceedings under ORS 475A.055, then an action shall be commenced by forfeiture
counsel, within 15 days of receipt of a claim. If no proceedings have been
commenced under ORS 475A.055, then the action shall be commenced by forfeiture
counsel within 30 days of seizure. The property may be released by forfeiture
counsel as provided in ORS 475A.045 (2).
     (2) An action is commenced by filing a
complaint. Responses to a complaint shall conform to the following procedure:
     (a) A person claiming an interest in the
property shall respond as provided in the Oregon Rules of Civil Procedure and,
if a claim has not previously been filed, by filing a claim in the form set
forth in ORS 475A.055 (3) with the court and posting a bond with the court. The
bond shall be a cash bond in an amount equal to 10 percent of the value of the
interest claimed by the person in the property. Upon good cause shown by motion
and affidavit filed with the initial appearance, the court may waive or reduce
the bond. Failure to file an appearance, claim and bond shall constitute a
default. The bond shall be returned to the claimant upon the entry of a final
determination on the claim.
     (b) Notwithstanding the provisions of paragraph
(a) of this subsection, a financial institution holding an interest in the
seized property shall respond to a complaint with an affidavit establishing
that the financial institutionÂ’s interest in the property was acquired:
     (A) In the regular course of business as a
financial institution;
     (B) For valuable consideration;
     (C) Without knowledge of the prohibited
conduct;
     (D) In good faith and without intent to
defeat the interest of any potential forfeiting agency; and
     (E) With respect to personal property,
prior to the seizure of the property, or with respect to real property,
recorded prior to the recording of notice of the seizure of the real property
in the mortgage records of the county in which the real property is located.
Failure to file an affidavit shall constitute a default. The affidavit shall be
filed within 30 days from the date of service.
     (c) Notwithstanding the provisions of
paragraph (a) of this subsection, any person, other than a financial
institution, who transfers or conveys an interest in real property pursuant to
a contract for transfer or conveyance of an interest in real property as
defined in ORS 93.905 and who retains an interest in the real property, or any
successor in interest, may respond to a complaint with an affidavit
establishing that the person:
     (A) Received the interest in return for
valuable consideration or by way of devise or intestate succession;
     (B) Had no knowledge at the time of
transfer or conveyance of the prohibited conduct;
     (C) Acted in good faith and without intent
to defeat the interest of any potential forfeiting agency;
     (D) Recorded the interest in the mortgage
records of the county in which the real property is located prior to the
recording of any notice of intent to seize or notice of seizure; and
     (E) Continued to hold the interest without
acquiescing in the prohibited conduct.
     (d) For the purposes of paragraph (c) of
this subsection, a person shall be considered to have acquiesced in prohibited
conduct if the person knew of the prohibited conduct and knowingly failed to
take reasonable action under the circumstances to terminate or avoid use of the
property in the course of prohibited conduct. For purposes of this section, “reasonable
action under the circumstances” includes, but is not limited to:
     (A) Reporting the prohibited conduct to a
police agency;
     (B) Commencing action that will assert the
rights of the affiant as to the property interest;
     (C) Terminating a rental agreement; or
     (D) Seeking an abatement order under the
provisions of ORS 105.505 to 105.520, or under the provisions of ORS 105.550 to
105.600, or under any ordinance or regulation allowing abatement of nuisances.
     (e) The affidavit permitted by paragraph
(c) of this subsection shall be filed within 30 days from the date of service
of the summons and complaint. Failure to file an affidavit or to respond as set
forth in paragraph (a) of this subsection shall constitute a default.
     (f) In response to an affidavit filed
pursuant to paragraph (c) of this subsection, the forfeiting agency may
controvert any or all of the assertions made in the affidavit. The affidavit of
the forfeiting agency shall be filed within 20 days of the filing of the
affidavit filed under paragraph (c) of this subsection. The transferor,
conveyor or successor in interest may respond, within five days of the filing
of the affidavit of the forfeiting agency, with a supplemental affidavit
limited to the matters stated in the affidavit of the forfeiting agency. If the
forfeiting agency does not file an affidavit within the time allowed, the
transferor, conveyor or successor in interest shall be considered a financial
institution for all purposes under this chapter.
     (g)(A) If the forfeiting agency files an
affidavit under paragraph (f) of this subsection, the court shall determine
from the affidavits whether there is a genuine issue of material fact with
respect to the assertions of the transferor, conveyor or successor in interest.
     (B) If the court determines that there is
no genuine issue of material fact as to the truth of the assertions in the
affidavit filed under paragraph (f) of this subsection, the transferor,
conveyor or successor in interest shall be considered a financial institution
for all purposes under this chapter. The court shall order the forfeiting
agency to pay the costs and disbursements, including attorney fees, of the
prevailing transferor, conveyor or successor in interest if the forfeiting
agency does not prevail.
     (C) If the court determines that there is
a genuine issue of material fact as to the truth of the assertions in the
affidavit filed pursuant to paragraph (f) of this subsection, the transferor,
conveyor or successor in interest shall, within 15 days, respond as provided in
paragraph (a) of this subsection. The court may order the transferor, conveyor
or successor in interest to pay the attorney fees of the forfeiting agency that
were incurred in contesting the affidavit of the transferor, conveyor or
successor in interest if the court determines that the affidavit of the transferor,
conveyor or successor in interest was frivolous.
     (3) All persons known to have an interest
in the property, including any claimant, shall be served with a true copy of
the inventory of the property prepared pursuant to ORS 475A.035 and 475A.055,
the summons and the complaint as provided in ORCP 5 and 7 D. Notice of the
action shall be published as provided in ORCP 7 D(6)(b) to (d) unless notice
has previously been published in accordance with ORS 475A.055 (1). In the event
that a forfeiture involves a vehicle, and the notices required by this statute
have been given, and substitute service on the claimant is required because
personal service cannot be reasonably accomplished, service as authorized by
ORCP 7 D(4) shall be sufficient to establish jurisdiction over a registered
owner or operator of a vehicle. If the property is in whole or part a
manufactured dwelling as defined in ORS 446.003 or a floating home as defined
in ORS 830.700, the forfeiting agency shall, in addition to serving all persons
known to have an interest in the property, record a notice of seizure
containing a description of the manufactured dwelling or floating home in all
public offices maintaining records that impart constructive notice of matters
relating to manufactured dwellings or floating homes.
     (4) Forfeiture counsel may move the court
at any time after a response is made as provided in subsection (2)(a) of this
section for an order finding that the defendant is a fugitive and in default.
The court may enter an order finding the defendant in default under this
subsection and enter a judgment of civil forfeiture if the court finds that the
defendant is not confined or held in custody by another jurisdiction, and that
the defendant, after notice or knowledge of the fact that a warrant has been
issued for the defendant:
     (a) Purposely left the state to avoid
prosecution;
     (b) Declines to return to the state and
allow execution of the warrant; or
     (c) Otherwise evades the jurisdiction of
the court issuing the warrant.
     (5) All judicial proceedings under this
chapter shall be governed by the Oregon Rules of Civil Procedure to the extent
that they do not conflict with specific provisions of this chapter.
     (6)(a) The filing of criminal charges
related to any civil proceeding for forfeiture may, upon motion of forfeiture
counsel or the district attorney or upon motion on behalf of defendant in a
related criminal proceeding, stay the civil forfeiture proceeding until the
trial, plea or dismissal of the related criminal proceeding. A motion for stay
on behalf of the defendant in a related criminal proceeding shall constitute a
waiver of double jeopardy by the defendant as to the civil forfeiture
proceeding and any related criminal proceeding. Pursuant to subsection (7) of
this section, a civil forfeiture proceeding stayed under this paragraph may be
consolidated for trial or other resolution with any related criminal
proceeding.
     (b) The court may stay the civil
forfeiture proceeding upon motion of a party and good cause shown. Good cause may
include a reasonable fear on the part of a claimant that the claimant could be
prosecuted for conduct arising out of the same factual situation which gave
rise to the seizure of property. Pursuant to subsection (7) of this section, a
civil forfeiture proceeding stayed under this paragraph may be consolidated for
trial or other resolution with any related criminal proceeding.
     (7) Notwithstanding any stay entered
pursuant to subsection (6)(a) or (b) of this section, an action pursuant to
this section may be consolidated with any other action pursuant to this section
relating to the same property or parties on motion by any party in any related
action. Upon motion by the state or a political subdivision of the state, or
any criminal defendant who is also a claimant, a civil forfeiture proceeding
under this section may be consolidated for trial or other resolution with any
related criminal proceeding. Trial or other resolution of the civil forfeiture
action shall immediately follow the related criminal trial or other resolution,
shall be part of the same proceeding and shall be heard by the same trier of
fact. Any objection by the defendant to the consolidation or any motion by the
defendant to sever the related criminal case from the civil proceeding for forfeiture
shall constitute a waiver of double jeopardy as to any related criminal action
and the civil forfeiture proceeding.
     (8) The action shall be commenced and
tried:
     (a) In the case of real property, in the
circuit court in a county in which the property is situated; or
     (b) In all other cases, in the circuit
court of the county in which the property was seized or the county in which any
part of the prohibited conduct took place. [1989 c.791 §7; 1991 c.218 §3; 1991
c.238 §1; 1991 c.275 §1; 1991 c.799 §2; 1991 c.828 §1; 1993 c.699 §18; 1995
c.459 §2; 1999 c.59 §149; 1999 c.168 §11; 2001 c.780 §§8,8a; 2005 c.830 §34]
     475A.080
Standards of proof in civil action for forfeiture. (1) Except as provided in subsection (2) of
this section, in all civil forfeiture actions the forfeiting agency must prove
that the claimant of the property has been convicted of a crime that
constitutes prohibited conduct, and that the property to be forfeited is:
     (a) Proceeds of the crime for which the
claimant has been convicted;
     (b) Instrumental in committing or
facilitating the crime for which the claimant has been convicted;
     (c) Proceeds of one or more other crimes
similar to the crime for which the claimant was convicted; or
     (d) Instrumental in committing or
facilitating one or more other crimes similar to the crime for which the
claimant was convicted.
     (2) A forfeiting agency may bring an
action for civil forfeiture of property of a claimant who has not been
convicted of a crime if the forfeiting agency proves all elements of subsection
(1) of this section with respect to another person and:
     (a) That the claimant took the property
with the intent to defeat forfeiture of the property;
     (b) That the claimant knew or should have
known that the property was proceeds of prohibited conduct; or
     (c) That the claimant acquiesced in the
prohibited conduct.
     (3) If the property to be forfeited in a
civil forfeiture action is personal property, the forfeiting agency must prove
the elements specified in subsection (1) or (2) of this section by a
preponderance of the evidence. If the property to be forfeited in a civil
forfeiture action is real property, the forfeiting agency must prove the
elements specified in subsection (1) or (2) of this section by clear and
convincing evidence.
     (4) For the purposes of subsection (2)(c)
of this section, a person shall be considered to have acquiesced in prohibited
conduct if the person knew of the prohibited conduct and failed to take
reasonable action under the circumstances to terminate the prohibited conduct
or prevent use of the seized property to facilitate the prohibited conduct. [1989
c.791 §13; 2001 c.780 §§9,9a; 2005 c.830 §30]
     475A.085
Affirmative defenses in civil action for forfeiture. (1) A claimant may plead as an affirmative
defense that the property was seized in violation of ORS 475A.025.
     (2) In any action brought against property
subject to forfeiture under ORS 475A.020 (7), a claimant may plead as an
affirmative defense that the controlled substance was solely for personal use.
     (3) If, by a preponderance of the
evidence, the claimant proves a defense under this section, then judgment shall
be entered for the claimant as provided in ORS 475A.110 (7).
     (4) This defense may not be asserted by a
financial institution that holds a security interest in the property. [1989
c.791 §8; 1991 c.322 §1; 1993 c.699 §21; 2001 c.780 §§10,10a; 2003 c.14 §§309,310;
2005 c.830 §32]
     475A.090 [1993 c.699 §13; repealed by 2001 c.780 §32]
(Mitigation)
     475A.091
Motion for mitigation; order of court. (1) If it has been determined in an action brought under the
provisions of ORS 475A.075 that the plaintiff has prevailed as to some or all
of the defendant property, the plaintiff shall serve on the claimant a proposed
judgment of forfeiture and a statement of costs as described in ORS 475A.120
(4) and 475A.126 (3).
     (2)(a) A claimant who has filed a claim to
seized property, appeared in the action, and part or all of whose interest in
the claimed property is forfeited under the terms of the proposed judgment may
file a motion for a mitigation hearing.
     (b) A motion under this section must list
all evidence not previously received that is relevant to the determination to
be made by the court under ORS 475A.100. Every argument that the claimant
wishes to raise in mitigation must be set out in specific detail in the motion.
     (c) Before filing a motion for mitigation,
the claimant and the plaintiff must make a good faith effort to confer with one
another concerning any issues in dispute. The claimant must file a certificate
of compliance with the requirements of this paragraph before the time set for
hearing on the motion. The certificate is sufficient if the certificate states
that the parties conferred or the certificate contains facts showing good cause
for not conferring.
     (d) A motion under this section may be
filed only after the service of a proposed judgment on the claimants. If a
motion for a mitigation hearing is not filed with the court within 14 days
after the date the plaintiff serves the proposed judgment on the claimant, the
court shall enter judgment.
     (3) If a motion for a mitigation hearing
is filed, the court shall determine whether any portion of the proposed
judgment is excessive in the manner provided by ORS 475A.100.
     (4) A hearing under the provisions of this
section is subject to the Oregon Rules of Evidence.
     (5) The court may make such orders as may
be necessary to ensure that the forfeiture is not excessive, including but not
limited to the following orders:
     (a) An order directing that the defendant
property, or part of it, be sold and the proceeds of sale distributed between
the litigants.
     (b) An order directing that the claimant
make available to the court other assets, not named as defendants in the
forfeiture action, for the purpose of fashioning a judgment that is not
excessive.
     (6) The court shall make written findings
of fact and shall enter written conclusions of law in proceedings under the
provisions of this section. [2001 c.780 §35; 2003 c.576 §254; 2005 c.830 §41]
     475A.095 [1993 c.699 §14; repealed by 2001 c.780 §32]
     475A.096
Minimum forfeiture; offer of compromise. (1) Subject to subsection (2) of this section, the court shall forfeit
to the forfeiting agency at least as much of the defendant property as may be
required to pay the forfeiting agencyÂ’s costs as described in ORS 475A.120 (4)
and 475A.126 (3).
     (2) At least 10 days before a trial under
ORS 475A.075, a claimant may serve upon the forfeiting agency an offer to allow
judgment to be given against all or part of the defendant property for a
specified sum, specified property, or to a specified effect. If the forfeiting
agency accepts the offer, the forfeiting agency must file a written acceptance
with the clerk of the court within three days after the date on which the offer
was served upon the forfeiting agency. If an acceptance is filed with the
court, judgment shall be entered based on the acceptance as a stipulated
judgment. Unless otherwise agreed by the parties, costs and disbursements as
defined in ORCP 68 shall be entered as part of the judgment pursuant to the
procedure provided by Rule 68. If an acceptance is not filed with the court
within three days after the time the offer was served upon the forfeiting
agency, the offer shall be considered withdrawn, and may not be given in
evidence on the trial. If the forfeiting agency fails to obtain a judgment
after trial that is more favorable than the offer made by the claimant, the
court shall award to the claimant costs and disbursements as defined in ORCP
68, and the court may enter a judgment that forfeits to the forfeiting agency
less of the defendant property than may be required to pay the forfeiting
agency’s costs as described in ORS 475A.120 (4) and 475A.126 (3). [2001 c.780 §36;
2005 c.830 §42]
     475A.100
Factors to be considered by court in determining if forfeiture excessive. The court shall consider the following
factors in determining whether any portion of the proposed judgment of
forfeiture is excessive:
     (1) The court shall enter judgment to the
extent that the defendant property is derived directly or indirectly from past
prohibited conduct.
     (2) With respect to defendant property
that is not derived directly or indirectly from past prohibited conduct, the
court shall consider:
     (a) Whether the defendant property
constitutes the claimantÂ’s lawful livelihood or means of earning a living.
     (b) Whether the defendant property is the
claimantÂ’s residence.
     (c) The degree of relationship between the
defendant property and the prohibited conduct, including the extent to which
the defendant property facilitated the prohibited conduct or could facilitate
future prohibited conduct.
     (d) The monetary value of the defendant
property in relation to the risk of injury to the public from the prohibited
conduct.
     (e) The monetary value of the defendant
property in relation to the actual injury to the public from the prohibited
conduct.
     (f) The monetary value of the defendant
property in relation to objective measures of the potential or actual criminal
culpability of the person or persons engaging in the prohibited conduct,
including:
     (A) The inherent gravity of the prohibited
conduct;
     (B) The potential sentence for similar
prohibited conduct under
     (C) The claimant’s prior criminal history;
and
     (D) The sentence actually imposed on the
claimant.
     (g) Any additional relevant evidence. [1993
c.699 §15; 2001 c.780 §§11,11a]
     475A.105 [1993 c.699 §16; repealed by 2001 c.780 §32]
(Judgment of
Forfeiture)
     475A.110
Judgment of forfeiture; contents; effect. (1) A judgment of forfeiture shall recite the basis for the judgment.
     (2) If no financial institutions have
filed the affidavit described in ORS 475A.075 (2)(b), and if the court has
failed to uphold the claim or affidavit of any other claimant, the effect of
the judgment shall be that:
     (a) Title to the property shall pass to
the forfeiting agency free of any interest or encumbrance thereon in favor of
any person who has been given notice;
     (b) The forfeiting agency may transfer
good and sufficient title to any subsequent purchaser or transferee, and the
title shall be recognized by all courts, by the state, by the departments and
agencies of the state, and by any political subdivision. In the case of real
property, the forfeiting agency shall warrant the title against constitutional
defect. A warranty under this section is limited to the purchase price of the
real property; and
     (c) Any department, agency or officer of
the state or any political subdivision whose official functions include the
issuance of certificates or other evidence of title shall be immune from civil
or criminal liability when such issuance is pursuant to a judgment of
forfeiture.
     (3) If any affidavits are filed by
financial institutions as provided in ORS 475A.075 (2)(b), or if any claimants
file an appearance, claim and bond as provided in ORS 475A.075 (2)(a) or an
affidavit as provided in ORS 475A.075 (2)(c):
     (a) The court shall foreclose all security
interests, liens and vendorÂ’s interests of financial institutions and claimants
as to which the court determines that there is a legal or equitable basis for
foreclosure; and
     (b) All other interests applicable to the
property, which are not foreclosed or otherwise eliminated through a judgment
of foreclosure, shall, if and to the extent that they are valid and subsisting,
remain in effect, and the property shall remain subject to them upon completion
of the forfeiture proceeding.
     (4) Notwithstanding the provisions of this
chapter or other law, if a financial institution or other person has filed an
affidavit described in ORS 475A.075, or if the court has upheld the claim of
any claimant, then as to each item of property seized:
     (a) If the court has determined that the
property should not be forfeited and has not foreclosed the security interests,
liens or other interests covering the property, the court shall render judgment
in favor of the owner of the property, the property shall be returned to the
owner and all security interests, liens and other interests applicable to the
property shall remain in effect as though the property had never been seized.
Upon the return of the property to the owner, the seizing agency shall pay all
costs and expenses relating to towing and storage of the property, and shall
cause to be discharged any possessory chattel liens on the property arising
under ORS 87.152 to 87.162 that have attached to the property since the
seizure.
     (b) If the court has determined that the
property should not be forfeited and has foreclosed one or more interests
covering the property, including security interests or liens covering the
property or contracts for the transfer or conveyance of the property, the
seizing agency shall pay all costs and expenses relating to towing and storage
of the property, and shall cause to be discharged any possessory chattel liens
on the property arising under ORS 87.152 to 87.162 that have attached to the
property since the seizure and the court shall order the property sold pursuant
to a sheriffÂ’s sale or other sale authorized by the court within such time as
may be prescribed by the court following entry of the judgment. If any
interests covering the property have not been foreclosed, including any liens
or security interests of a claimant whose claim has been upheld, or of a
financial institution that has filed the affidavit described in ORS 475A.075,
the property shall be sold subject to those interests. The judgment shall also
order the proceeds of such sale applied in the following order:
     (A) To the payment of the costs of the
sale;
     (B) To the satisfaction of the foreclosed
liens, security interests and contracts in order of their priority; and
     (C) The excess, if any, to the owner of
the property.
     (c) If the court has determined that the
property should be forfeited and has foreclosed one or more security interests,
liens, contracts or other interests covering the property, the seizing agency
shall pay all costs and expenses relating to towing and storage of the
property, and shall cause to be discharged any possessory chattel liens on the
property arising under ORS 87.152 to 87.162 that have attached to the property
since the seizure and the court shall order the property sold pursuant to a
sheriffÂ’s sale or other sale authorized by the court. If any interest in the
property was claimed by a financial institution or other claimant and the
interest was upheld but not foreclosed, the property shall be sold subject to
the interest. The sale of the property shall be held within such time as may be
prescribed by the court following entry of the judgment. The judgment shall
also order the proceeds of such sale applied in the following order:
     (A) To the payment of the costs of the
sale;
     (B) To the satisfaction of the foreclosed
liens, security interests and contracts in the order of their priority; and
     (C) The excess, if any, to the forfeiting
agency to be disposed of as provided in ORS 475A.120.
     (d) If the court has determined that the
property should be forfeited and has not foreclosed the interests of any party
in the property, the seizing agency shall pay all costs and expenses relating
to towing and storage of the property and shall cause to be discharged any
possessory chattel liens on the property arising under ORS 87.152 to 87.162
that have attached to the property since the seizure, and the court shall enter
a judgment awarding the property to the forfeiting agency, subject to the
interests of any claimants whose claims or affidavits were upheld by the court,
and subject to the interests of any financial institutions that filed
affidavits under ORS 475A.075 (2)(b), which shall remain in full force and
effect.
     (5) The forfeiting agency shall not be
liable to any person as a consequence of obedience to a judgment directing
conveyance to a financial institution.
     (6) A copy of the judgment, including any
judgment entered under the provisions of ORS 475A.055 (4), shall be sent by
forfeiture counsel to the Asset Forfeiture Oversight Advisory Committee.
     (7)(a) On entry of judgment for a claimant
in any proceeding to forfeit property under this chapter, unless the court has
foreclosed one or more security interests, liens or other interests covering
the property, such property or interest in property shall be returned or
conveyed immediately to the claimant designated by the court. The court, in the
manner provided by ORCP 68, shall award costs, disbursements and attorney fees
to the prevailing claimants and financial institutions, to be paid by the
forfeiting agency.
     (b) If it appears that there was
reasonable suspicion that the property was subject to forfeiture, the court
shall cause a finding to be entered, and no claimant or financial institution
shall be entitled to damages, nor is the person who made the seizure, the
seizing or forfeiting agency or forfeiture counsel liable to suit or judgment on
account of such seizure or action. An order directing seizure issued under ORS
475A.035 (4) shall constitute a finding of reasonable suspicion that the
property was subject to forfeiture.
     (8) Nothing contained in this section
shall prevent a claimant or financial institution from obtaining any deficiency
to which such claimant or financial institution would otherwise be entitled.
     (9) Nothing in this section or in ORS
475A.045 shall prevent a seizing agency from entering into an agreement with a
claimant or other person for the reimbursement of the seizing agency for the
costs and expenses relating to towing and storage of property or the cost of
discharging any possessory chattel lien on the property arising under ORS
87.152 to 87.162 that attached to the property between seizure of the property
and release or forfeiture of the property. [1989 c.791 §9; 1991 c.275 §2; 1991
c.290 §1; 1991 c.322 §2; 1991 c.800 §2; 1993 c.553 §2; 1999 c.59 §150; 2001
c.780 §§12,12a; 2003 c.14 §§311,312; 2003 c.576 §§464,465]
     475A.111
Appellate review of order of mitigation. (1) In any appeal from a judgment of forfeiture, review of any
mitigation ordered by the trial court shall be limited to the following:
     (a) Whether the findings of fact are
supported by the evidence in the record.
     (b) Whether the ultimate conclusion
modifying or declining to modify the judgment submitted by the plaintiff was an
abuse of discretion by the trial court.
     (c) Whether the judgment complies with
applicable constitutional limitations.
     (2) An appellate court may reverse,
affirm, modify or remand the provisions of a judgment of forfeiture relating to
mitigation, but the appellate court may not consider arguments for mitigation
of a judgment of forfeiture unless those arguments were timely raised by the
motion provided for in ORS 475A.091. [2001 c.780 §37; 2003 c.576 §255; 2005
c.22 §352]
(Distribution of
Forfeited Property and Proceeds)
     475A.115
Equitable distribution of property or proceeds; intergovernmental agreements. Distribution of property or proceeds in
accordance with this chapter shall be made equitably and may be pursuant to
intergovernmental agreement under ORS chapter 190. Intergovernmental agreements
providing for such distributions and in effect July 24, 1989, shall remain valid
unless changed by the parties. [1989 c.791 §12a; 1999 c.59 §151; 2001 c.780 §§13,13a]
     475A.120
Distribution of forfeited property or proceeds by local government. (1) The provisions of this section apply to
a forfeiting agency other than the state.
     (2) Except as otherwise provided by
intergovernmental agreement and this section, a forfeiting agency may:
     (a) Sell, lease, lend or transfer
forfeited property to any federal, state or local law enforcement agency or
district attorney.
     (b) Sell forfeited property by public or
other commercially reasonable sale and pay from the proceeds the expenses of
keeping and selling the property.
     (c) Retain forfeited property.
     (d) With written authorization from the
district attorney for the county in which the property was seized, destroy any
forfeited firearms or controlled substances.
     (3) If the forfeiting agency is a
political subdivision other than a county, the political subdivision shall
enter into an agreement with the county pursuant to ORS chapter 190 to provide
a portion of the forfeiture proceeds to the county. Any intergovernmental
agreements or ordinances providing for the distribution of forfeiture proceeds
in effect on July 24, 1989, shall remain valid unless changed by the parties.
     (4) A forfeiting agency shall distribute
forfeiture proceeds as follows:
     (a) Costs shall be paid first, including
costs, disbursements and attorney fees as defined in ORCP 68 A and special
expenses, including the provision of lawful currency, incurred by any seizing
or forfeiting agency in investigating and prosecuting a specific case. The
forfeiting agency may pay expenses of servicing or maintaining the seized
property under ORS 475A.045 (3) under the provisions of this paragraph. The
forfeiting agency may not pay expenditures made in connection with the ordinary
maintenance and operation of the seizing or forfeiting agency under the
provisions of this paragraph.
     (b) After payment of costs under paragraph
(a) of this subsection, the forfeiting agency shall:
     (A) Deduct an amount equal to five percent
of the proceeds and deposit that amount in the Illegal Drug Cleanup Fund
established by ORS 475.495 for the purposes specified in ORS 475.495 (5);
     (B) Deduct an amount equal to 2.5 percent
of the proceeds and deposit that amount in the Asset Forfeiture Oversight
Account established by ORS 475A.160 for the purposes specified in ORS 475A.155;
     (C) Deduct an amount equal to 20 percent
of the proceeds and deposit that amount in the Oregon Criminal Justice
Commission Account established under ORS 137.662 for disbursement to drug court
programs as described in ORS 3.450; and
     (D) Deduct an amount equal to 10 percent
of the proceeds and deposit that amount in the State Commission on Children and
Families Account established by ORS 417.733 for disbursement to relief
nurseries as described in ORS 417.788.
     (c) If the forfeiting agency has entered
into an agreement with a county under subsection (3) of this section, after
paying costs under paragraph (a) of this subsection and making the deductions
required by paragraph (b) of this subsection, the forfeiting agency shall pay
the county the amounts required by the agreement.
     (d) After making all payments and
deductions required by paragraphs (a) to (c) of this subsection, the forfeiting
agency may use forfeiture proceeds, including amounts received by a county
under paragraph (c) of this subsection and pursuant to an intergovernmental
agreement entered into under ORS 475A.115, only for:
     (A) The purchase of equipment necessary
for the enforcement of laws relating to the unlawful delivery, distribution,
manufacture or possession of controlled substances;
     (B) Cash for use in law enforcement
activities;
     (C) Drug awareness and drug education
programs offered in middle schools and high schools;
     (D) The expenses of a forfeiting agency in
operating joint narcotic operations with other forfeiting agencies pursuant to
the terms of an intergovernmental agreement, including paying for rental space,
utilities and office equipment; and
     (E) Expenses of a district attorney in
criminal prosecutions for unlawful delivery, distribution, manufacture or
possession of controlled substances, as determined through intergovernmental
agreement between the forfeiting agency and the district attorney.
     (5) Notwithstanding subsection (4) of this
section, growing equipment and laboratory equipment seized by a forfeiting
agency that was used, or intended for use, in the manufacturing of controlled
substances may be donated to a public school, community college or institution
of higher education.
     (6) A political subdivision shall sell as
much property as may be needed to make the distributions required by subsection
(4) of this section. Distributions required under subsection (4)(b) of this
section must be made once every three months and are due within 20 days of the
end of each quarter. No interest shall accrue on amounts that are paid within
the period specified by this subsection.
     (7) The forfeiting agency, and any agency
which receives forfeited property or proceeds from the sale of forfeited
property, shall maintain written documentation of each sale, decision to
retain, transfer or other disposition.
     (8) Forfeiture counsel shall report each
forfeiture to the Asset Forfeiture Oversight Advisory Committee as soon as reasonably
possible after the conclusion of forfeiture proceedings, whether or not the
forfeiture results in an entry of judgment under ORS 475A.110. The committee
shall develop and make available forms for the purpose of reporting
forfeitures.
     (9) Law enforcement agencies shall supply
to forfeiture counsel all information requested by forfeiture counsel necessary
for the preparation of the report required by subsection (8) of this section.
     (10) Political subdivisions of the state
who receive forfeiture proceeds under this section shall submit a report to the
Asset Forfeiture Oversight Advisory Committee for any year in which those
proceeds are received. The committee shall develop and make available forms for
the purpose of those reports. The forms shall require the political subdivision
to report on how proceeds received by the political subdivision have been or
will be used, and such other information as may be requested by the committee.
Reports shall be submitted each December 15 for the last ending fiscal year of
the political subdivision.
     (11) This section applies only to
forfeiture proceeds arising out of prohibited conduct as defined by ORS
475A.005 (11), and does not apply to proceeds from forfeiture based on other
conduct. [1989 c.791 §10; 1991 c.276 §2; 1991 c.290 §2; 1991 c.934 §7; 1993
c.552 §1; 1993 c.553 §3; 1993 c.699 §6; 1995 c.79 §389; 1997 c.592 §1; 2001
c.780 §§14,14a; 2005 c.830 §§35,36]
     475A.125 [1989 c.791 §11b; 1991 c.276 §3; 1991 c.290 §3;
1993 c.699 §7; 1995 c.79 §390; 1997 c.592 §2; 1999 c.59 §152; repealed by 2001
c.780 §32]
     475A.126
Distribution of forfeited property or proceeds by state. (1) The provisions of this section apply
only when the forfeiting agency is the state.
     (2) Except as otherwise provided by
intergovernmental agreement and this section, a forfeiting agency may:
     (a) Sell, lease, lend or transfer
forfeited property to any federal, state or local law enforcement agency or
district attorney.
     (b) Sell forfeited property by public or
other commercially reasonable sale and pay from the proceeds the expenses of
keeping and selling the property.
     (c) Retain forfeited property.
     (d) With written authorization from the
district attorney for the county in which the property was seized, destroy any
forfeited firearms or controlled substances.
     (3) The forfeiting agency shall distribute
forfeiture proceeds as follows:
     (a) Costs shall be paid first, including
costs, disbursements and attorney fees as defined in ORCP 68 A and special
expenses, including the provision of lawful currency, incurred by any seizing
or forfeiting agency in investigating and prosecuting a specific case. The
forfeiting agency may pay expenses of servicing or maintaining the seized
property under ORS 475A.045 (3) under the provisions of this paragraph. The
forfeiting agency may not pay expenditures made in connection with the ordinary
maintenance and operation of the seizing or forfeiting agency under the
provisions of this paragraph. Any amount paid to or retained by the Department
of Justice under this paragraph shall be deposited in the Criminal Justice
Revolving Account in the State Treasury. Any amount paid to or retained by the
Oregon State Police under this paragraph shall be deposited in the State Police
Account.
     (b) After payment of costs under paragraph
(a) of this subsection, the forfeiting agency shall:
     (A) Deduct an amount equal to 10 percent
of the proceeds and deposit that amount in the Illegal Drug Cleanup Fund
established by ORS 475.495 for the purposes specified in ORS 475.495 (5);
     (B) Deduct an amount equal to three
percent of the proceeds, not to exceed $50,000 in a biennium, and deposit that
amount in the Asset Forfeiture Oversight Account established by ORS 475A.160
for the purposes specified in ORS 475A.155;
     (C) Deduct an amount equal to 20 percent
of the proceeds and deposit that amount in the Oregon Criminal Justice
Commission Account established under ORS 137.662 for disbursement to drug court
programs as described in ORS 3.450; and
     (D) Deduct an amount equal to 10 percent of
the proceeds and deposit that amount in the State Commission on Children and
Families Account established by ORS 417.733 for disbursement to relief
nurseries as described in ORS 417.788.
     (c) If the forfeiting agency has entered
into an intergovernmental agreement with a political subdivision under ORS
475A.115, or has entered into an agreement with any other law enforcement
agency of the state relating to distribution of forfeiture proceeds, after
paying costs under paragraph (a) of this subsection and making the deductions
required by paragraph (b) of this subsection, the forfeiting agency shall pay
an equitable portion of the forfeiture proceeds to each agency participating in
the seizure or forfeiture as provided by the agreement.
     (d) After making all payments and
deductions required by paragraphs (a) to (c) of this subsection, the forfeiting
agency shall distribute the remaining proceeds as follows:
     (A) If no law enforcement agency other
than the Department of Justice participated in the seizure or forfeiture, the
remaining proceeds, and proceeds received by the Department of Justice under
paragraph (c) of this subsection, shall be divided between the Criminal Justice
Revolving Account and the Special Crime and Forfeiture Account established by
ORS 475A.130 according to the following schedule:
     (i) One hundred percent of the first
$200,000 accumulated shall be deposited in the Criminal Justice Revolving
Account.
     (ii) Seventy-five percent of the next
$200,000 shall be deposited in the Criminal Justice Revolving Account and the
balance in the Special Crime and Forfeiture Account.
     (iii) Fifty percent of the next $200,000
shall be deposited in the Criminal Justice Revolving Account and the balance in
the Special Crime and Forfeiture Account.
     (iv) Twenty-five percent of the next
$200,000 shall be deposited in the Criminal Justice Revolving Account and the
balance in the Special Crime and Forfeiture Account.
     (v) One hundred percent of all additional
sums shall be deposited in the Special Crime and Forfeiture Account.
     (B) If no law enforcement agency other
than the Department of State Police participated in the seizure or forfeiture,
the remaining proceeds, and proceeds received by the Department of State Police
under paragraph (c) of this subsection, shall be divided between the State
Police Account and the Special Crime and Forfeiture Account according to the
following schedule:
     (i) One hundred percent of the first
$600,000 accumulated shall be deposited in the State Police Account.
     (ii) Seventy-five percent of the next
$300,000 shall be deposited in the State Police Account and the balance in the
Special Crime and Forfeiture Account.
     (iii) Fifty percent of the next $200,000
shall be deposited in the State Police Account and the balance in the Special Crime
and Forfeiture Account.
     (iv) Twenty-five percent of the next
$200,000 shall be deposited in the State Police Account and the balance in the
Special Crime and Forfeiture Account.
     (v) One hundred percent of all additional
sums shall be deposited in the Special Crime and Forfeiture Account.
     (4) Forfeiture proceeds distributed under
subsection (3)(d) of this section may be used only for:
     (a) The purchase of equipment necessary
for the enforcement of laws relating to the unlawful delivery, distribution,
manufacture or possession of controlled substances;
     (b) Cash for use in law enforcement
activities;
     (c) Drug awareness and drug education
programs offered in middle schools and high schools; and
     (d) The expenses of a forfeiting agency in
operating joint narcotic operations with other forfeiting agencies pursuant to
the terms of an intergovernmental agreement, including paying for rental space,
utilities and office equipment.
     (5) A forfeiting agency shall sell as much
property as may be needed to make the distributions required by subsection (3)
of this section. Distributions required under subsection (3)(b) of this section
must be made once every three months and are due within 20 days of the end of
each quarter. No interest shall accrue on amounts that are paid within the
period specified by this subsection.
     (6) The forfeiting agency, and any agency
that receives forfeited property or proceeds from the sale of forfeited
property, shall maintain written documentation of each sale, decision to
retain, transfer or other disposition of the property or proceeds.
     (7) Forfeiture counsel shall report each
forfeiture to the Asset Forfeiture Oversight Advisory Committee as soon as
reasonably possible after the conclusion of forfeiture proceedings, whether or
not the forfeiture results in an entry of judgment under ORS 475A.110. The
committee shall develop and make available forms for the purpose of reporting
forfeitures.
     (8) Law enforcement agencies shall supply
to forfeiture counsel all information requested by forfeiture counsel necessary
for the preparation of the report required by subsection (7) of this section. [2001
c.780 §38; 2005 c.830 §§37,38]
     475A.130
Special Crime and Forfeiture Account. The Special Crime and Forfeiture Account is established in the General
Fund of the State Treasury. The account shall consist of all forfeiture
proceeds received or retained by agencies of the state under this chapter,
except as otherwise provided by ORS 475A.126. All moneys in the account are
continuously appropriated to the Department of Justice and may be used only for
the purposes specified in ORS 475A.126 (4). [1989 c.791 §11c; 1993 c.699 §9;
1999 c.59 §153; 2001 c.780 §15; 2001 c.834 §§5a,9a; 2005 c.830 §39]
     475A.135 [1989 c.791 §20; 1999 c.59 §154; repealed by
2001 c.780 §32]
ASSET FORFEITURE
OVERSIGHT ADVISORY COMMITTEE
     475A.155
Asset Forfeiture Oversight Advisory Committee. (1) The Asset Forfeiture Oversight Advisory
Committee is created. The committee consists of 12 members to be appointed as
follows:
     (a) The President of the Senate and the
Speaker of the House of Representatives shall appoint six legislators to the
committee. Three shall be Senators appointed by the President. Three shall be
Representatives appointed by the Speaker.
     (b) The Governor shall appoint three
members to the committee.
     (c) The Attorney General shall appoint
three members to the committee.
     (2) The term of a legislative member of
the committee shall be two years. The term of all other members shall be four
years. Members of the committee may be reappointed. If a vacancy occurs on the
committee for any reason during the term of membership, the official who
appointed the member to the vacant position shall appoint a new member to serve
the remainder of the term. A member of the committee may be removed from the
committee at any time by the official who appointed the member.
     (3)(a) The members of the committee shall
select from among themselves a chairperson and vice chairperson.
     (b) The committee shall meet at such times
and places as determined by the chairperson.
     (4) Legislative members shall be entitled
to payment of compensation and expense reimbursement under ORS 171.072, payable
from funds appropriated to the Legislative Assembly.
     (5) The committee shall:
     (a) Prepare reports detailing the number
and nature of forfeitures carried out under this chapter and ORS 131.550 to
131.600 including the disposition and use of the proceeds from the forfeitures.
The reports shall be submitted on or before March 31 of each year to the Speaker
of the House of Representatives, President of the Senate, Attorney General and
Governor.
     (b) In consultation with forfeiture
counsel, review and, if necessary, modify the reports required from forfeiture
counsel and political subdivisions to ensure that information necessary for
oversight is being obtained and is gathered in an efficient and effective
manner.
     (c) Make any recommendations it deems
necessary to increase the effectiveness, fairness and efficiency of forfeiture
actions brought under this chapter and ORS 131.550 to 131.600.
     (d) Make any recommendations for
additional legislation governing forfeiture actions brought under this chapter
and ORS 131.550 to 131.600.
     (e) Conduct studies or other activities as
necessary to accomplish the purposes of this subsection.
     (6) The Executive Director of the Oregon
Criminal Justice Commission shall provide the committee with staff, subject to
funds available for that purpose.
     (7) For purposes of this section, “forfeiture
counsel” includes forfeiture counsel as defined in ORS 131.550. [1989 c.791 §14;
1991 c.290 §4; 1993 c.699 §4; 1997 c.592 §3; 1999 c.59 §155; 2001 c.666 §§20,21;
2005 c.830 §39a]
     475A.160
Asset Forfeiture Oversight Account. (1) The Asset Forfeiture Oversight Account is established in the State
Treasury separate and distinct from the General Fund.
     (2) The following moneys shall be
deposited into the State Treasury and credited to the Asset Forfeiture
Oversight Account:
     (a) Moneys received from a state agency or
political subdivision under the provisions of ORS 475A.120 and 475A.126; and
     (b) Any other moneys appropriated to the
Asset Forfeiture Oversight Account.
     (3) The State Treasurer may invest and
reinvest moneys in the Asset Forfeiture Oversight Account in the manner
provided by law. Interest earned by the account shall be credited to the
account.
     (4) The moneys in the Asset Forfeiture
Oversight Account are continuously appropriated to the Oregon Criminal Justice
Commission to be used for the purposes specified in ORS 475A.155.
     (5) If at the end of a biennium the Asset
Forfeiture Oversight Account has received amounts under the provisions of ORS
475A.120 (4)(b) and 475A.126 (3)(b) that are in excess of 115 percent of the
biennial expenditure limitation established for expenditures from the account,
the Oregon Criminal Justice Commission shall refund to each state agency or
political subdivision that made payment into the account during the biennium a
pro rata share of the amounts that are in excess of 115 percent of the expenditure
limitation for the account, based on the amount of forfeiture proceeds paid
into the account by the state agency or political subdivision. The commission
is not required to issue any refund under this subsection if the amount of the
refund is less than $25. [1997 c.592 §4; 1999 c.864 §1; 2001 c.780 §§16,16a;
2005 c.830 §40]
_______________
Disclaimer: These codes may not be the most recent version. Oregon may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.