2006 Code of Virginia § 4.1-338 - Confiscation proceedings; disposition of forfeited articles

4.1-338. Confiscation proceedings; disposition of forfeited articles.

A. All proceedings for the confiscation of articles, except motor vehicles,declared contraband and forfeited to the Commonwealth under this chaptershall be as provided in this section.

B. Production of seized property. - Whenever any article declared contrabandunder the provisions of this title and required to be forfeited to theCommonwealth has been seized, with or without a warrant, by any officercharged with the enforcement of this title, he shall produce the contrabandarticle and any person in whose possession it was found. In those cases whereno person is found in possession of such articles the return shall so stateand a copy of the warrant shall be posted on the door of the buildings orroom where the articles were found, or if there is no door, then in anyconspicuous place upon the premises.

In case of seizure of a still, doubler, worm, worm tub, mash tub, fermentingtub, or other distilling apparatus, for any offense involving theirforfeiture, where it is impracticable to remove such distilling apparatus toa place of safe storage from the place where seized, the seizing officer maydestroy such apparatus only as necessary to prevent use of all or any partthereof for the purpose of distilling. The destruction shall be in thepresence of at least one credible witness, and such witness shall join theofficer in a sworn report of the seizure and destruction, to be made to theBoard. The report shall set forth the grounds of the claim of forfeiture, thereasons for seizure and destruction, an estimate of the fair cash value ofthe apparatus destroyed, and the materials remaining after such destruction.The report shall include a statement that, from facts within their ownknowledge, the seizing officer and witness have no doubt whatever that thedistilling apparatus was set up for use, or had been used in the unlawfuldistillation of spirits, and that it was impracticable to remove suchapparatus to a place of safe storage.

In case of seizure of any quantity of mash, or of alcoholic beverages onwhich the tax imposed by the laws of the United States has not been paid, forany offense involving forfeiture of the same, the seizing officer may destroythem to prevent the use of all or any part thereof for the purpose ofunlawful distillation of spirits or any other violation of this title. Thedestruction shall be in the presence of at least one credible witness, andsuch witness shall join the officer in a sworn report of the seizure anddestruction, to be made to the Board. The report shall set forth the groundsof the claim of forfeiture, the reasons for seizure and destruction, and astatement that, from facts within their own knowledge, the seizing officerand witness have no doubt whatever that the mash was intended for use in theunlawful distillation of spirits, or that the alcoholic beverages wereintended for use in violation of this title.

C. Hearing and determination. - Upon the return of the warrant as provided inthis section, the court shall fix a time not less than ten days, unlesswaived by the accused in writing, and not more than thirty days thereafter,for the hearing on such return to determine whether or not the articlesseized, or any part thereof, were used or in any manner kept, stored orpossessed in violation of this title.

At such hearing if no claimant appears, the court shall declare the articlesseized forfeited to the Commonwealth and, if such articles are not necessaryas evidence in any pending prosecution, shall turn them over to the Board.Any person claiming an interest in any of the articles seized may appear atthe hearing and file a written claim setting forth particularly the characterand extent of his interest. The court shall certify the warrant and thearticles seized along with any claim filed to the circuit court to hear anddetermine the validity of such claim.

If the evidence warrants, the court shall enter a judgment of forfeiture andorder the articles seized to be turned over to the Board. Action under thissection and the forfeiture of any articles hereunder shall not be a bar toany prosecution under any other provision of this title.

D. Disposition of forfeited beverages and other articles. - Any articlesforfeited to the Commonwealth and turned over to the Board in accordance withthis section shall be destroyed or sold by the Board as it deems proper. Thenet proceeds from such sales shall be paid into the Literary Fund. If theBoard believes that any alcoholic beverages forfeited to the Commonwealth andturned over to the Board in accordance with this section cannot be sold andshould not be destroyed, it may give such alcoholic beverages for medicinalpurposes to any institution in the Commonwealth regularly conducted as ahospital, nursing home or sanatorium for the care of persons in ill health,or as a home devoted exclusively to the care of aged people, to supply theneeds of such institution for alcoholic beverages for such purposes, providedthat (i) the State Health Commissioner has issued a certificate stating thatsuch institution has need for such alcoholic beverages and (ii) preference isaccorded by the Board to institutions supported either in whole or in part bypublic funds. A record shall be made showing the amount issued in each case,to whom issued and the date when issued, and shall be kept in the offices ofthe State Health Commissioner and the Board. No charge shall be made to anypatient for the alcoholic beverages supplied to him where they have beenreceived from the Board pursuant to this section. Such alcoholic beveragesshall be administered only upon approval of the patient's physician.

If the Board believes that any foodstuffs forfeited to the Commonwealth andturned over to the Board in accordance with this section are usable, shouldnot be destroyed and cannot be sold or whose sale would be impractical, itmay give such foodstuffs to any institution in the Commonwealth and shallprefer a gift to the local jail or other local correctional facility in thejurisdiction where seizure took place. A record shall be made showing thenature of the foodstuffs and amount given, to whom given and the date whengiven, and shall be kept in the offices of the Board.

(Code 1950, 4-55; 1954, c. 484; 1958, c. 194; 1976, c. 37; 1993, c. 866;1995, c. 196.)