2011 Hawaii Code
DIVISION 5. CRIMES AND CRIMINAL PROCEEDINGS
TITLE 37. HAWAII PENAL CODE
712A. Forfeiture
§712A-13 Judicial in personam forfeiture proceedings.

§712A-13 Judicial in personam forfeiture proceedings. (1) If a forfeiture is authorized by law, it shall be ordered by a court on a petition for forfeiture filed by the prosecuting attorney in an in personam civil or criminal action. In any civil in personam action brought under this section, the owner or interest-holder may testify, present evidence and witnesses on the owner or interest-holder's behalf, and cross-examine witnesses who appear at the hearing. The State may present evidence and witnesses in rebuttal and in defense of its claim to the property and cross-examine witnesses who appear at the hearing. The State has the initial burden of showing by a preponderance of the evidence that the owner or interest-holder's interest in the property is subject to forfeiture. On such a showing by the State, the owner or interest-holder has the burden of showing by a preponderance of the evidence that the owner or interest-holder's interest in the property is not subject to forfeiture.

(2) In any proceeding pursuant to this section, the court, on application of the prosecuting attorney, may enter any order authorized by section 712A-11 or take any other action to seize, secure, maintain or preserve the availability of property subject to forfeiture under this chapter, including a warrant for its seizure, whether before or after the filing of a petition for forfeiture, complaint, or indictment.

(3) A temporary restraining order under this section may be entered on petition of the State without notice or an opportunity for a hearing if the State demonstrates that:

(a) There is probable cause to believe that the property with respect to which the order is sought would, in the event of final judgment or conviction, be subject to forfeiture; and

(b) Provision of notice will jeopardize the availability of the property subject to forfeiture.

A temporary restraining order expires within ten days after the date on which it is entered unless the party against whom it is entered consents to an extension for a longer period or unless after commencing a hearing the court enters or is considering a preliminary injunction.

(4) Notice of the issuance of the temporary restraining order and an opportunity for a hearing shall be afforded to persons known to have an interest in the property. The hearing, however, is limited to the issues required to be demonstrated in subsection 3(a) and (b) of this section.

(5) A hearing requested by any owner or interest-holder concerning a temporary restraining order entered under this section shall be held at the earliest practicable time and before the expiration of a temporary order.

(6) On a determination of liability or the conviction of a person for conduct giving rise to forfeiture under this title, the court shall enter a judgment of forfeiture of the property described in the petition for forfeiture, and shall also authorize the prosecuting attorney or attorney general, their agents or any other law enforcement officer to seize all property ordered forfeited that was not previously seized or is not then under seizure. Following the entry of an order declaring the property forfeited, the court, on application of the State, may enter any order authorized by section 712A-11 or take any other action to protect the interest of the State or a political subdivision in the property ordered forfeited. The filing of the order of forfeiture in the appropriate public records perfects the interest of the State in the property described in the order as of the date that a notice of pending forfeiture or racketeering lien was first filed in the records, which entitles the State to all rights of a secured party as to that property in addition to any other rights or remedies of the State in relation to the property. Any income accruing to, or derived from, an enterprise or any interest in an enterprise or other property interest that is forfeited under this chapter is also forfeited from the time of the conduct giving rise to forfeiture. Such income may be used pending procedures subsequent to a verdict or finding of liability to offset ordinary and necessary expenses of the enterprise or property as required by law or that are necessary to protect the interests of the State or a political subdivision.

(7) Procedures subsequent to the verdict or finding of liability and order of forfeiture shall be as follows:

(a) Following the entry of an order of forfeiture, the clerk of the court shall give notice of pending forfeiture to owners and interest-holders who have not previously been given notice, if any, in the manner provided in section 712A-8;

(b) Any owner or interest-holder, other than a party or a defendant in the underlying in personam action, asserting an interest in property that has been ordered forfeited pursuant to such action, within thirty days after initial notice of pending forfeiture or after notice under paragraph (a) of this subsection, whichever is earlier, may file a claim as described in section 712A-12(5), in the court for a hearing to adjudicate the validity of the person's claimed interest in the property;

(c) The hearing on the claim, to the extent practicable and consistent with the interest of justice, shall be held within sixty days after the order of forfeiture. The court may consolidate the hearing on the claim with a hearing on any other claim filed by a person other than a party or defendant in the underlying action and concerning the same property;

(d) The hearing shall be conducted in the manner provided for in rem judicial forfeiture actions including the provisions of section 712A-12(7) and (8). In addition to testimony and evidence presented at the hearing, the court shall consider the relevant portions of the record of the underlying civil or criminal action that resulted in the order of forfeiture; and

(e) In accordance with its findings at the hearing, the court may amend the order of forfeiture if it determines that any claimant has established by a preponderance of the evidence that the claimant has a legal interest in the property, and the claimant's interest is property designated as not subject to forfeiture by section 712A-5.

(8) Except as provided in section 712A-11(2) and subsection (7)(b) of this section, a person claiming an interest in property subject to forfeiture under this section may not:

(a) Intervene in a trial or an appeal of a criminal or in personam civil case involving the forfeiture of such property; or

(b) Commence or maintain any action against the State concerning the validity of the alleged interest other than as provided in this chapter.

(9) In order to facilitate the identification or location of property declared forfeited and to facilitate the disposition of filed or subsequent claims pursuant to this section the court, on application of the State, may order that the testimony of any witness relating to the property forfeited or alleged to be subject to forfeiture be taken by deposition and that any designated book, paper, document, record, recording, electronic or otherwise, or other material which is not privileged be produced at the same time and place and in the same manner as that provided for the taking of depositions under the rules of civil procedure. [L 1988, c 260, pt of §1; am L 1996, c 104, §5]

Revision Note

Throughout this section, "section" or "subsection" substituted for "§" or "paragraph".

COMMENTARY ON §712A-13

Act 104, Session Laws 1996, amended this section to allow both the State and the defendant to present evidence and witnesses, and to cross-examine witnesses, in a forfeiture proceeding. Act 104 also repealed the sunset provision of the Hawaii omnibus criminal forfeiture act to make the law permanent. The purpose of Act 104 was to make the omnibus criminal forfeiture act permanent and to ensure that it was fair to persons claiming an interest in the property subject to forfeiture. Conference Committee Report No. 122.