SENATE BILL NO. 655

November 13, 2019, Introduced by Senators SANTANA, MCBROOM and MACDONALD and referred to the Committee on Insurance and Banking.

"Identity theft protection act,"

by amending sections 19 and 19b (MCL 445.79 and 445.79b), section 19 as added by 2010 PA 315 and section 19b as added by 2010 PA 314.

the people of the state of michigan enact:

Sec. 19. (1) Except as provided in subsection (2), the Subject to subsections (2), (3), and (4), the following property is subject to forfeiture:

(a) Any personal or real property that has been used, possessed, or acquired in a felony violation of this act.

(b) Except as provided in subparagraphs (i) to (iii), a conveyance, including an aircraft, vehicle, or vessel, used or intended for use to transport, or in any manner to facilitate the transportation of, for the purpose of sale or receipt, property described in subdivision (a):

(i) A conveyance used by a person as a common carrier in the transaction of business as a common carrier is not subject to forfeiture unless it is determined that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this act.

(ii) A conveyance is not subject to forfeiture by reason of any act or omission established by the owner of that conveyance to have been committed or omitted without the owner's knowledge or consent.

(iii) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party who neither had knowledge of nor consented to the act or omission.

(c) Books, records, computers, electronic equipment, and research products and materials, including microfilm, digital media, tapes, and data, used or intended for use in violation of this act.

(d) Any money, negotiable instruments, securities, or any other thing of value that is found in close proximity to any property that is subject to forfeiture under subdivision (a), (b), or (c) is presumed to be subject to forfeiture. This presumption may be rebutted by clear and convincing evidence.

(2) Property used to commit a violation of this act that is subject to seizure under section 19a is not subject to forfeiture unless the owner of the property actively participates in or consents to the violation of this act.a criminal proceeding involving or related to the property has been completed and the defendant pleads guilty to or is convicted after a trial of a violation of this act.

(3) A criminal conviction or guilty plea under subsection (2) is not required if 1 or more of the following apply:

(a) No person claims any interest in the property as provided under section 19b or the owner of the property withdraws his or her claim in the property.

(b) The owner of the property waives the criminal conviction or plea requirement under subsection (2) and elects to proceed with the civil forfeiture proceeding.

(i) The defendant is outside this state and cannot reasonably be extradited or brought back to this state for prosecution.

(ii) Reasonable efforts have been made by law enforcement authorities to locate and arrest the defendant, but the defendant has not been located.

(4) If a person withdraws his or her claim under subsection (3)(a), the prosecuting attorney for the county in which the property was seized or, if the attorney general is actively handling a case involving or related to the property, the attorney general, must review the seizure of the property and approve the forfeiture of the property before the property may be forfeited.

(5) Subsection (2) does not prohibit the immediate destruction of property that may not be lawfully possessed by any person or that is dangerous to the health or safety of the public regardless of whether the person is convicted of a violation of this act.

(6) This section applies to forfeiture proceedings under this act that are initiated on or after the effective date of the amendatory act that added this subsection.

(7) Subsections (2), (3), and (4) do not apply to forfeiture proceedings in which the aggregate fair market value of the property and currency seized exceeds $50,000.00, excluding the value of contraband.

(8) (3) Property of any of the following providers is not subject to forfeiture under this act unless it is determined that the provider is a consenting party or privy to a violation of this act:

(a) A telecommunication provider.

(b) An internet service provider.

(d) An interactive computer service provider.

Sec. 19b. (1) If Subject to section 19(2), (3), and (4), if property is seized pursuant to section 19a, forfeiture proceedings shall must be instituted promptly. If the property is seized without process as provided under section 19a and the total value of the property seized does not exceed $50,000.00, the following procedure shall must be used:

(a) The local unit of government that seized the property or, if the property was seized by the state, the state shall notify the owner of the property that the property has been seized and, if charges have been filed against a person for a crime, the person charged, and that the local unit of government or, if applicable, the state intends to forfeit and dispose of the property by delivering a written notice to the owner of the property or by sending the notice to the owner by certified mail. If the name and address of the owner are not reasonably ascertainable or delivery of the notice cannot be reasonably accomplished, the notice shall must be published on the local unit of government's or the department of the attorney general's website and in a newspaper of general circulation in the county in which the property was seized, for 10 successive publishing days.

(b) Unless all criminal proceedings involving or relating to the property have been completed, the seizing agency shall immediately notify the prosecuting attorney for the county in which the property was seized or, if the attorney general is actively handling a case involving or relating to the property, the attorney general of the seizure of the property and the intention to forfeit and dispose of the property.

(c) Any person claiming an interest in property that is the subject of a notice under subdivision (a) may, within 20 days after receipt of the notice or of the date of the first publication of the notice, file a written claim signed by the claimant with the local unit of government or the state expressing his or her interest in the property and any objection to the forfeiture. A claim or an objection under this subsection must be written, verified, and signed by the claimant, and include a detailed description of the property and the property interest asserted. The verification must include a certification under the penalty of perjury stating that the undersigned has examined the claim and believes it to be, to the best of the claimant's knowledge, true and complete. A written claim under this subsection must be made on the form developed by the state court administrative office as required under subsection (2). The person filing the claim shall give a bond to the local unit of government or the state in the amount of 10% of the value of the claimed property, but not less than $250.00 or greater than $5,000.00, with sureties approved by the local unit of government or the state containing the condition that if the property is ordered forfeited by the court the obligor shall pay all costs and expenses of the forfeiture proceedings. The local unit of government or, if applicable, the state shall transmit the claim and bond with a list and description of the property seized to the attorney general, the prosecuting attorney for the county, or the city or township attorney for the local unit of government in which the seizure was made. The attorney general, the prosecuting attorney, or the city or township attorney shall promptly institute forfeiture proceedings after the expiration of the 20-day period. However, unless all criminal proceedings involving or relating to the property have been completed, a city or township attorney shall not institute forfeiture proceedings without the consent of the prosecuting attorney or, if the attorney general is actively handling a case involving or relating to the property, the attorney general.

(d) If no claim is filed or bond given within the 20-day period as described in subdivision (c), the local unit of government or the state shall declare the property forfeited and shall dispose of the property as provided under section 19c. However, unless all criminal proceedings involving or relating to the property have been completed, the local unit of government or the state shall not dispose of the property under this subdivision without the written consent of the prosecuting attorney or, if the attorney general is actively handling a case involving or relating to the property, the attorney general.

(2) The state court administrative office shall develop and make available to law enforcement agencies, courts, and the public a form for asserting an ownership interest in seized property under subsection (1)(c). The form must require a claimant to provide a detailed description of the property, and a signed attestation that the claimant has a bona fide interest in the property.

(3) (2) Property taken or detained under this act is not subject to an action to recover personal property, but is considered to be in the custody of the seizing agency subject only to this section or an order and judgment of the court having jurisdiction over the forfeiture proceedings. When property is seized under this act, the seizing agency may do any of the following:

(a) Place the property under seal.

(b) Remove the property to a place designated by the court.

(d) Deposit money seized under this act into an interest-bearing account in a financial institution. As used in this subdivision, "financial institution" means a state or nationally chartered bank or a state or federally chartered savings and loan association, savings bank, or credit union whose deposits are insured by an agency of the United States government and that maintains a principal office or branch office located in this state under the laws of this state or the United States.

(4) (3) Title to real property forfeited under this act shall must be determined by a court of competent jurisdiction. A forfeiture of real property encumbered by a bona fide security interest is subject to the interest of the secured party who neither had knowledge of nor consented to the act or omission.

(5) (4) An attorney for a person who is charged with a crime involving or related to the money seized under this act has 60 days within which to examine that money. This 60-day period begins to run after notice is given under subsection (1)(a) but before the money is deposited into a financial institution under subsection (2)(d). (3)(d). If the attorney general, prosecuting attorney, or city or township attorney fails to sustain his or her burden of proof in forfeiture proceedings under this act, the court shall order the return of the money, including any interest earned on money deposited into a financial institution under subsection (2)(d).(3)(d).

(6) If property is subject to forfeiture under section 19, section 19(2), (3), and (4) apply, and a person has filed a claim under this section, a civil forfeiture action under this act must be stayed during the pendency of the applicable criminal proceedings. The civil forfeiture action must proceed after the defendant is convicted of, or enters a guilty plea to, the offense involved, or 1 or more of the events described in section 19(3) apply.

(7) At the forfeiture hearing, the plaintiff must prove 1 or both of the following, as applicable:

(a) The property is subject to forfeiture as provided in section 19(1).

(b) If a person, other than the person who has been convicted of a violation of this act or entered into a plea agreement for a violation of this act as provided under section 19(2), claims an ownership or security interest in the property, that the person claiming the interest in the property had prior knowledge of or consented to the commission of the crime.

(8) If the plaintiff fails to meet the burden of proof under subsection (7), property seized under section 19a must be returned to the owner not more than 14 days from the date the court issues a dispositive order.

(9) Except as otherwise provided in section 19, property must be returned to the owner not more than 14 days after the occurrence of any of the following:

(a) A warrant is not issued against a person for the commission of a crime within 90 days after the property was seized.

(b) All charges against the person relating to the commission of the crime are dismissed.

(d) In the case of multiple defendants, all persons charged with committing a crime are acquitted of the crime.

(e) Entry of a court order under this act for the return of the property.

(10) A party to a forfeiture proceeding may seek an extension of the time periods described in subsections (8) and (9) for good cause. The court may grant a motion under this subsection for good cause shown.

Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.

Enacting section 2. This amendatory act does not take effect unless all of the following bills of the 100th Legislature are enacted into law:

(a) Senate Bill No. 653.

(b) Senate Bill No. 654.