Preliminary Provisions

ORS 131.582
Prosecution of criminal forfeiture

indictment or information

burden of proof

judgment

notice to claimants

Text
Annotations

(1)

If a district attorney decides to proceed with a criminal forfeiture, the district attorney must present the criminal forfeiture to the grand jury for indictment. The indictment must allege facts sufficient to establish that the property is subject to criminal forfeiture and must comply with ORS 132.510 (Forms of pleadings), 132.540 (Sufficiency of indictment), 132.550 (Contents of indictment), 132.557 (Indictment must contain subcategory facts under certain circumstances), 132.560 (Joinder of counts and charges) and 132.580 (Names of grand jury witnesses required on indictment).

(2)

If the grand jury returns an indictment for criminal forfeiture, the defendant may admit or deny that the property is subject to criminal forfeiture. If the defendant fails to admit or deny that the property is subject to forfeiture, the court shall enter a denial on behalf of the defendant.

(3)

When the underlying criminal conduct is a Class A misdemeanor, a city or county attorney may prosecute a criminal forfeiture by filing an information in the municipal or justice court.

(4)

A criminal forfeiture proceeding and the underlying criminal case must be tried in the same proceeding.

(5)

The criminal procedure laws of this state apply to criminal forfeiture proceedings.

(6)

The court shall enter a judgment of criminal forfeiture if the forfeiture counsel proves beyond a reasonable doubt that the property for which forfeiture is sought is an instrumentality or the proceeds of the crime of conviction or past prohibited conduct that is similar to the crime of conviction.

(7)

Forfeiture counsel may move the court at any time 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 criminal 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.

(8)

No later than 21 days after the entry of a judgment of criminal forfeiture under this section, the forfeiture counsel shall notify by mail all persons who filed claims under ORS 131.570 (Notice of seizure for forfeiture) or affidavits under ORS 131.579 (Affidavit in response to notice of seizure for forfeiture) of the judgment of criminal forfeiture. The notice must inform the person of the requirements of subsection (9) of this section.

(9)

If a person who receives notice under subsection (8) of this section wishes to assert the person’s interest in the property but was not eligible to file an affidavit under ORS 131.579 (Affidavit in response to notice of seizure for forfeiture), the person must file an affidavit with the trial court, and must serve the forfeiture counsel with a copy of the affidavit, no later than 21 days after the date the notice required by subsection (8) of this section was mailed. The person must allege facts in an affidavit filed under this subsection that if true would prove that the person took the property or the interest that the person holds in the property:

(a)

(A)

Before it was seized for criminal forfeiture; and

(B)

In good faith and without intent to defeat the interest of any seizing agency; or

(b)

As a bona fide purchaser for value without acquiescing in the prohibited conduct.

(10)

(a)

If an affidavit is timely filed under subsection (9) of this section and the forfeiture counsel:

(A)

Does not contest the affidavit, the forfeiture counsel shall submit a form of judgment to the court for entry under ORS 131.588 (Judgment of forfeiture).

(B)

Does contest the affidavit, the forfeiture counsel shall request a hearing with the trial court no later than 21 days after receiving the affidavit.

(b)

If no affidavit is filed under subsection (9) of this section but the seizing agency filed an affidavit under ORS 131.579 (Affidavit in response to notice of seizure for forfeiture) (4), the forfeiture counsel shall request a hearing with the trial court no later than 21 days after the last date for receiving affidavits under subsection (9) of this section.

(11)

(a)

A hearing pursuant to subsection (10) of this section is an ancillary proceeding and the Oregon Rules of Civil Procedure apply. At the hearing:

(A)

Forfeiture counsel has the burden of proving by a preponderance of the evidence that the person claiming an interest in the property:

(i)

Took the property with the intent to defeat the interest of a seizing agency; or

(ii)

Is not a bona fide purchaser for value or acquiesced in the prohibited conduct.

(B)

Forfeiture counsel may present evidence and witnesses and cross-examine witnesses who appear at the hearing.

(C)

The person claiming an interest in the property may testify, present evidence and witnesses and cross-examine witnesses who appear at the hearing.

(b)

In addition to testimony and evidence presented at the hearing, the court shall consider relevant portions of the record of the criminal case that resulted in the judgment of criminal forfeiture.

(c)

The court shall amend the judgment of criminal forfeiture in accordance with its determination if, after the hearing, the court determines that the claimant:

(A)

Did take the property before it was seized for criminal forfeiture and in good faith and without intent to defeat the interest of the seizing agency; or

(B)

Is a bona fide purchaser for value of the right, title or interest in the property and did not acquiesce in the prohibited conduct.

(d)

Notwithstanding ORS 19.255 (Time for service and filing of notice of appeal) (1), a person may file a notice of appeal within 30 days after entry in the register of an order disposing of the matters at issue in the ancillary proceeding. An appeal under this paragraph is governed by the provisions of ORS chapter 19 relating to appeals in civil actions.

(12)

When a court enters a judgment of criminal forfeiture under this section, the jurisdiction of the court continues for purposes of subsection (11) of this section and the property continues to be subject to the court’s jurisdiction. [2005 c.830 §12]