PRINTER'S NO. 1321
No. 1131 Session of 1997
INTRODUCED BY HART, GERLACH, ULIANA, COSTA, MUSTO, SALVATORE,
HELFRICK, HOLL, THOMPSON, MURPHY, AFFLERBACH, MADIGAN AND
TOMLINSON, SEPTEMBER 24, 1997
REFERRED TO JUDICIARY, SEPTEMBER 24, 1997
AN ACT
1 Amending Titles 42 (Judiciary and Judicial Procedure) and 75
2 (Vehicles) of the Pennsylvania Consolidated Statutes,
3 regulating suspension and revocation of operating privileges
4 for driving under the influence of alcohol or controlled
5 substances; and further providing for loss of property rights
6 to the Commonwealth and for penalties.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Section 6801 of Title 42 of the Pennsylvania
10 Consolidated Statutes is amended to read:
11 § 6801. Loss of property rights to Commonwealth.
12 (a) Forfeitures generally.--The following shall be subject
13 to forfeiture to the Commonwealth and no property right shall
14 exist in them:
15 (1) All drug paraphernalia, controlled substances or
16 other drugs which have been manufactured, distributed,
17 dispensed or acquired in violation of the act of April 14,
18 1972 (P.L.233, No.64), known as The Controlled Substance,
19 Drug, Device and Cosmetic Act.
1 (2) All raw materials, products and equipment of any
2 kind which are used, or intended for use, in manufacturing,
3 compounding, processing, delivering, importing or exporting
4 any controlled substance or other drug in violation of The
5 Controlled Substance, Drug, Device and Cosmetic Act.
6 (3) All property which is used, or intended for use, as
7 a container for property described in paragraph (1) or (2).
8 (4) All conveyances, including aircraft, vehicles or
9 vessels, which are used or are intended for use to transport,
10 or in any manner to facilitate the transportation, sale,
11 receipt, possession or concealment of, property described in
12 paragraph (1) or (2)[, except that:].
13 (5) Any vehicle used to facilitate a person's second or
14 subsequent violation of 75 Pa.C.S. § 3731 (relating to
15 driving under influence of alcohol or controlled substance),
16 except that:
17 (i) no [conveyance] vehicle used by any person as a
18 common carrier in the transaction of business as a common
19 carrier shall be forfeited under the provisions of this
20 section unless it shall appear that the owner or other
21 person in charge of such [conveyance] vehicle was a
22 consenting party or privy to a violation of The
23 Controlled Substance, Drug, Device and Cosmetic Act;
24 (ii) no [conveyance] vehicle shall be forfeited
25 under the provisions of this section by reason of any act
26 or omission established by the owner thereof to have been
27 committed or omitted without his knowledge or consent,
28 which absence of knowledge or consent must be reasonable
29 under the circumstances presented;
30 (iii) no bona fide security interest retained or
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1 acquired under 13 Pa.C.S. (relating to commercial code)
2 by any merchant dealing in new or used [aircraft,]
3 vehicles [or vessels], or retained or acquired by any
4 licensed or regulated finance company, bank or lending
5 institution, or by any other business regularly engaged
6 in the financing of, or lending on the security of, such
7 [aircraft,] vehicles [or vessels,] shall be subject to
8 forfeiture or impairment; and
9 (iv) no [conveyance] vehicle shall be forfeited
10 under this section for violation of section 13(a)(31) of
11 The Controlled Substance, Drug, Device and Cosmetic Act.
12 [(5)] (6) All books, records and research, including
13 formulas, microfilm, tapes and data, which are used or
14 intended for use in violation of The Controlled Substance,
15 Drug, Device and Cosmetic Act.
16 [(6)] (7) (i) All of the following:
17 (A) Money, negotiable instruments, securities or
18 other things of value furnished or intended to be
19 furnished by any person in exchange for a controlled
20 substance in violation of The Controlled Substance,
21 Drug, Device and Cosmetic Act, and all proceeds
22 traceable to such an exchange.
23 (B) Money, negotiable instruments, securities or
24 other things of value used or intended to be used to
25 facilitate any violation of The Controlled Substance,
26 Drug, Device and Cosmetic Act.
27 (C) Real property used or intended to be used to
28 facilitate any violation of The Controlled Substance,
29 Drug, Device and Cosmetic Act, including structures
30 or other improvements thereon, and including any
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1 right, title and interest in the whole or any lot or
2 tract of land and any appurtenances or improvements,
3 which is used, or intended to be used, in any manner
4 or part, to commit, or to facilitate the commission
5 of, a violation of The Controlled Substance, Drug,
6 Device and Cosmetic Act, and things growing on,
7 affixed to and found in the land.
8 (ii) No property shall be forfeited under this
9 paragraph, to the extent of the interest of an owner, by
10 reason of any act or omission established by the owner to
11 have been committed or omitted without the knowledge or
12 consent of that owner. Such money and negotiable
13 instruments found in close proximity to controlled
14 substances possessed in violation of The Controlled
15 Substance, Drug, Device and Cosmetic Act shall be
16 rebuttably presumed to be proceeds derived from the
17 selling of a controlled substance in violation of The
18 Controlled Substance, Drug, Device and Cosmetic Act.
19 (iii) No valid lien or encumbrance on real property
20 shall be subject to forfeiture or impairment under this
21 paragraph. A lien which is fraudulent or intended to
22 avoid forfeiture under this section shall be invalid.
23 [(7)] (8) Any firearms, including, but not limited to,
24 rifles, shotguns, pistols, revolvers, machine guns, zip guns
25 or any type of prohibited offensive weapon, as that term is
26 defined in 18 Pa.C.S. (relating to crimes and offenses),
27 which are used or intended for use to facilitate a violation
28 of The Controlled Substance, Drug, Device and Cosmetic Act.
29 Such operable firearms as are found in close proximity to
30 illegally possessed controlled substances shall be rebuttably
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1 presumed to be used or intended for use to facilitate a
2 violation of The Controlled Substance, Drug, Device and
3 Cosmetic Act. All weapons forfeited under this section shall
4 be immediately destroyed by the receiving law enforcement
5 agency.
6 (a.1) ARD.--Acceptance of Accelerated Rehabilitative
7 Disposition for any violation of 75 Pa.C.S. § 3731 shall be
8 considered a violation for purposes of this section.
9 (b) Process and seizure.--Property subject to forfeiture
10 under this chapter may be seized by the law enforcement
11 authority upon process issued by any court of common pleas
12 having jurisdiction over the property. Seizure without process
13 may be made if:
14 (1) the seizure is incident to an arrest or a search
15 under a search warrant or inspection under an administrative
16 inspection warrant;
17 (2) the property subject to seizure has been the subject
18 of a prior judgment in favor of the Commonwealth in a
19 criminal injunction or forfeiture proceeding under this
20 chapter;
21 (3) there is probable cause to believe that the property
22 is dangerous to health or safety; [or]
23 (4) there is probable cause to believe that the property
24 has been used or is intended to be used in violation of The
25 Controlled Substance, Drug, Device and Cosmetic Act; or
26 (5) there is probable cause to believe that the property
27 has been used or is intended to be used in violation of 75
28 Pa.C.S. § 3731.
29 (c) Seizure without process.--In the event seizure without
30 process occurs, as provided herein, proceedings for the issuance
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1 thereof shall be instituted forthwith.
2 (d) Custody of property.--Property taken or detained under
3 this section shall not be subject to replevin, but is deemed to
4 be in the custody of the law enforcement authority subject only
5 to the orders and decrees of the court of common pleas having
6 jurisdiction over the forfeiture proceedings and of the district
7 attorney or the Attorney General. When property is seized under
8 this chapter, the law enforcement authority shall place the
9 property under seal and either:
10 (1) remove the property to a place designated by it; or
11 (2) require that the district attorney or Attorney
12 General take custody of the property and remove it to an
13 appropriate location for disposition in accordance with law.
14 (e) Use of property held in custody.--[Whenever] Except as
15 provided in subsection (g.1), whenever property is forfeited
16 under this chapter, the property shall be transferred to the
17 custody of the district attorney, if the law enforcement
18 authority seizing the property has local or county jurisdiction,
19 or the Attorney General, if the law enforcement authority
20 seizing the property has Statewide jurisdiction. The district
21 attorney or the Attorney General, where appropriate, may:
22 (1) Retain the property for official use.
23 (2) Sell any forfeited property which is not required to
24 be destroyed by law and which is not harmful to the public,
25 but the proceeds from any such sale shall be used to pay all
26 proper expenses of the proceedings for forfeiture and sale,
27 including expenses of seizure, maintenance of custody,
28 advertising and court costs. The balance of the proceeds
29 shall be dealt with in accordance with subsections (f) and
30 (g).
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1 (f) Use of cash or proceeds of property.--Cash or proceeds
2 of forfeited property transferred to the custody of the district
3 attorney pursuant to subsection (e) shall be placed in the
4 operating fund of the county in which the district attorney is
5 elected. The appropriate county authority shall immediately
6 release from the operating fund, without restriction, a like
7 amount for the use of the district attorney enforcing the
8 provisions of The Controlled Substance, Drug, Device and
9 Cosmetic Act. The entity having budgetary control shall not
10 anticipate future forfeitures or proceeds therefrom in adoption
11 and approval of the budget for the district attorney.
12 (g) Distribution of property among law enforcement
13 authorities.--If both municipal and State law enforcement
14 authorities were substantially involved in effecting the
15 seizure, the court having jurisdiction over the forfeiture
16 proceedings shall equitably distribute the property between the
17 district attorney and the Attorney General.
18 (g.1) Disposition of proceeds.--Proceeds from the sale of a
19 vehicle forfeited under subsection (b)(5) shall be placed in an
20 operating fund of the county in which the district attorney is
21 elected. The appropriate county authority shall immediately
22 release without restriction a like amount, applying the proceeds
23 as follows:
24 (1) First, to the payment of costs incurred in
25 connection with the seizure, storage, sale and maintenance of
26 and provision of security for the vehicle and any proceeding
27 arising out of the forfeiture.
28 (2) Second, to the extent there are any remaining
29 proceeds, to the payment of the value of any bona fide
30 security interest as set forth in subsection (a)(3).
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1 (3) Third, any remaining proceeds for the use of the
2 district attorney in preventing driving under the influence
3 of alcohol or controlled substances and in the enforcement of
4 any laws pertaining thereto, including, but not limited to,
5 sobriety checkpoints, police education and training regarding
6 alcohol and substance abuse and the purchase of equipment for
7 the detection of alcohol levels in the blood.
8 (h) Authorization to utilize property.--[The] Except as
9 provided in subsection (g.1), the district attorney and the
10 Attorney General shall utilize forfeited property or proceeds
11 thereof for the purpose of enforcing the provisions of The
12 Controlled Substance, Drug, Device and Cosmetic Act. In
13 appropriate cases, the district attorney and the Attorney
14 General may designate proceeds from forfeited property to be
15 utilized by community-based drug and crime-fighting programs and
16 for relocation and protection of witnesses in criminal cases.
17 (i) Annual audit of forfeited property.--It shall be the
18 responsibility of every county in this Commonwealth to provide,
19 through the controller, board of auditors or other appropriate
20 auditor and the district attorney, an annual audit of all
21 forfeited property and proceeds obtained under this section. The
22 audit shall not be made public but shall be submitted to the
23 Office of Attorney General. The county shall report all
24 forfeited property and proceeds obtained under this section and
25 the disposition thereof to the Attorney General by September 30
26 of each year.
27 (j) Annual report; confidential information regarding
28 property.--The Attorney General shall annually submit a report,
29 to the Appropriations and Judiciary Committees of the Senate and
30 to the Appropriations and Judiciary Committees of the House of
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1 Representatives, specifying the forfeited property or proceeds
2 thereof obtained under this section. The report shall give an
3 accounting of all proceeds derived from the sale of forfeited
4 property and the use made of unsold forfeited property. The
5 Attorney General shall adopt procedures and guidelines governing
6 the release of information by the district attorney to protect
7 the confidentiality of forfeited property or proceeds used in
8 ongoing drug enforcement activities.
9 (k) Proceeds and appropriations.--The proceeds or future
10 proceeds from forfeited property under this chapter shall be in
11 addition to any appropriation made to the Office of Attorney
12 General.
13 (l) Hardship exception.--No vehicle shall be subject to
14 forfeiture under subsection (b)(5) where forfeiture of the
15 vehicle will impose a substantial hardship upon the family of
16 the owner of the vehicle. For the purposes of determining
17 whether a substantial hardship exists, the court shall consider
18 whether the vehicle is the family's only source of
19 transportation, public or private, whether the vehicle is the
20 family's only means of obtaining food and other necessities,
21 whether the vehicle is the family's only means of transportation
22 to educational facilities, or whether the vehicle is the
23 family's only means of transportation to places of employment.
24 The defendant shall have burden of proof for a hardship
25 exemption.
26 Section 2. Sections 1532(b)(3), 1542(d), 1554(f) and 3731(e)
27 of Title 75 are amended to read:
28 § 1532. Revocation or suspension of operating privilege.
29 * * *
30 (b) Suspension.--
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1 * * *
2 (3) The department shall suspend the operating privilege
3 of any driver for twelve months upon receiving a certified
4 record of the driver's conviction of section 3731 (relating
5 to driving under influence of alcohol or controlled
6 substance) for a first offense. The department shall suspend
7 the operating privilege of any driver for three years upon
8 receiving a certified record of the driver's conviction of
9 section 3731 for a second offense. The department shall
10 revoke the operating privilege of any driver permanently upon
11 receiving a certified record of the driver's conviction of
12 section 3731 for a third and subsequent offense. The
13 department shall suspend the operating privilege of any
14 driver for 12 months upon receiving a certified record of the
15 driver's conviction of section [3731 (relating to driving
16 under influence of alcohol or controlled substance) or] 3733
17 (relating to fleeing or attempting to elude police officer)
18 or an adjudication of delinquency based on section 3731 or
19 3733. The department shall suspend the operating privilege of
20 any driver for six months upon receiving a certified record
21 of a consent decree granted under 42 Pa.C.S. Ch. 63 (relating
22 to juvenile matters) based on section 3731 or 3733.
23 * * *
24 § 1542. Revocation of habitual offender's license.
25 * * *
26 (d) Period of revocation.--The operating privilege of any
27 person found to be a habitual offender under the provisions of
28 this section shall be revoked by the department for a period of
29 five years. The operating privilege of any person found to be a
30 habitual offender for three convictions of section 3731
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1 (relating to driving under influence of alcohol or controlled
2 substance) shall be revoked permanently.
3 * * *
4 § 1554. Probationary license.
5 * * *
6 (f) Unauthorized issuance.--The department shall not issue a
7 probationary license to:
8 (1) A person who has not fully served a minimum term of
9 suspension or revocation under the provisions of subsection
10 (b)(2).
11 (2) A person who is not licensed to drive by this or any
12 other state.
13 (3) A person whose operating privilege is currently
14 suspended under section 1533 (relating to suspension of
15 operating privilege for failure to respond to citation) or
16 6146 (relating to enforcement agreements).
17 (4) A person whose operating privilege is currently
18 suspended for failure to attend and satisfactorily complete a
19 driver improvement course or special examination or failure
20 to attend a hearing required under section 1538 (relating to
21 school, examination or hearing on accumulation of points or
22 excessive speeding).
23 (5) A person against whom there is an unsatisfied
24 judgment resulting from the operation of a motor vehicle,
25 until the judgment has been satisfied under the provisions of
26 section 1774 (relating to payments sufficient to satisfy
27 judgments) or an installment agreement has been entered into
28 to satisfy the judgment as permitted under section 1772(b)
29 (relating to suspension for nonpayment of judgments) or 1775
30 (relating to installment payment of judgments) and the
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1 financial responsibility of the person has been established.
2 (6) A person whose operating privilege is currently
3 suspended under section 1784 (relating to proof of financial
4 responsibility following violation), 1785 (relating to proof
5 of financial responsibility following accident) or 1786
6 (relating to required financial responsibility).
7 (7) A person who has previously been issued a
8 probationary license.
9 (8) A person who has been convicted of a violation of
10 section 3731 (relating to driving under influence of alcohol
11 or controlled substance) within the preceding seven years.
12 (9) A person who has been suspended for refusal to
13 submit to chemical testing to determine the amount of alcohol
14 or controlled substance within the preceding seven years.
15 (10) A person who has been granted Accelerated
16 Rehabilitative Disposition for the offense of driving under
17 the influence of alcohol or a controlled substance within the
18 preceding seven years.
19 (11) A person who has ever been convicted of a violation
20 of section 3732 (relating to homicide by vehicle) or 3735
21 (relating to homicide by vehicle while driving under
22 influence).
23 (12) A person convicted of a violation of section
24 1543(b) within the preceding seven years.
25 (13) A person whose license has been permanently revoked
26 for three or more convictions of violations of section 3731
27 as provided for by sections 1532(b)(3) and 1542(d).
28 * * *
29 § 3731. Driving under influence of alcohol or controlled
30 substance.
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1 * * *
2 (e) Penalty.--
3 (1) Any person violating any of the provisions of this
4 section is guilty of a misdemeanor of the second degree,
5 except that a person convicted of a third [or subsequent]
6 offense is guilty of a misdemeanor of the first degree and a
7 person convicted of a fourth or subsequent offense is guilty
8 of a felony of the third degree, and the sentencing court
9 shall order the person to pay a fine of [not less than $300]
10 and serve a minimum term of imprisonment of:
11 (i) Not less than 48 consecutive hours and not less
12 than $300.
13 (ii) Not less than [30 days] six months and not less
14 than $500 if the person has previously accepted
15 Accelerated Rehabilitative Disposition or any other form
16 of preliminary disposition, been convicted of,
17 adjudicated delinquent or granted a consent decree under
18 the Juvenile Act (42 Pa.C.S. § 6301 et seq.) based on an
19 offense under this section or of an equivalent offense in
20 this or other jurisdictions [within the previous seven
21 years].
22 (iii) Not less than [90 days] one year and not less
23 than $1,000 if the person has twice previously been
24 convicted of, adjudicated delinquent or granted a consent
25 decree under the Juvenile Act based on an offense under
26 this section or of an equivalent offense in this or other
27 jurisdictions [within the previous seven years].
28 (iv) Not less than [one year] three years and not
29 less than $2,500 if the person has three times previously
30 been convicted of, adjudicated delinquent or granted a
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1 consent decree under the Juvenile Act based on an offense
2 under this section or of an equivalent offense in this or
3 other jurisdictions [within the previous seven years].
4 (2) Acceptance of Accelerated Rehabilitative
5 Disposition, an adjudication of delinquency or a consent
6 decree under the Juvenile Act or any other form of
7 preliminary disposition of any charge brought under this
8 section shall be considered a first conviction for the
9 purpose of computing whether a subsequent conviction of a
10 violation of this section shall be considered a second,
11 third, fourth or subsequent conviction.
12 (3) The sentencing guidelines promulgated by the
13 Pennsylvania Commission on Sentencing shall not supersede the
14 mandatory penalties of this section.
15 (4) The Commonwealth has the right to appeal directly to
16 the Superior Court any order of court which imposes a
17 sentence for violation of this section which does not meet
18 the requirements of this section. The Superior Court shall
19 remand the case to the sentencing court for imposition of a
20 sentence in accordance with the provisions of this section.
21 (5) Notwithstanding the provision for direct appeal to
22 the Superior Court, if, in a city of the first class, a
23 person appeals from a judgment of sentence under this section
24 from the municipal court to the common pleas court for a
25 trial de novo, the Commonwealth shall have the right to
26 appeal directly to the Superior Court from the order of the
27 common pleas court if the sentence imposed is in violation of
28 this section. If, in a city of the first class, a person
29 appeals to the court of common pleas after conviction of a
30 violation of this section in the municipal court and
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1 thereafter withdraws his appeal to the common pleas court,
2 thereby reinstating the judgment of sentence of the municipal
3 court, the Commonwealth shall have 30 days from the date of
4 the withdrawal to appeal to the Superior Court if the
5 sentence is in violation of this section.
6 (6) Any person who accepts Accelerated Rehabilitative
7 Disposition of any charge brought under this section shall
8 accept as conditions the imposition of and the judge shall
9 impose in addition to any other conditions all of the
10 following:
11 (i) A fee to cover the costs referred to in section
12 1548(e) (relating to costs).
13 (ii) A mandatory suspension of operating privilege
14 for a period of not less than one month but not more than
15 12 months.
16 (iii) A condition that the defendant, as a condition
17 to entering the program, make restitution to any person
18 who incurred determinable financial loss as a result of
19 the defendant's actions which resulted in a charge of
20 violating this section.
21 (iv) Court supervision for any defendant required to
22 make restitution or submit to counseling or treatment.
23 (v) Court supervision for a period of not less than
24 six months when the Court Reporting Network indicates
25 that counseling or treatment is not necessary and not
26 less than 12 months when the Court Reporting Network
27 indicates that counseling or treatment is in order.
28 (vi) A fee to cover the reasonable costs, if any, of
29 a municipal corporation in connection with a charge
30 brought under this section which results in Accelerated
19970S1131B1321 - 15 -
1 Rehabilitative Disposition.
2 (7) Accelerated Rehabilitative Disposition or other
3 preliminary disposition of any charge of violating this
4 section may be revoked and the court shall direct the
5 attorney for the Commonwealth to proceed on the charges as
6 prescribed in general rules if the defendant:
7 (i) is charged with or commits any crime enumerated
8 in Title 18 (relating to crimes and offenses) or in
9 section 1542 within the probationary period;
10 (ii) fails to make restitution as provided for in
11 this section;
12 (iii) fails to successfully complete the alcohol
13 highway safety school required by section 1548(b);
14 (iv) fails to successfully complete any program of
15 counseling or treatment, or both, required as a condition
16 of Accelerated Rehabilitative Disposition; or
17 (v) violates the terms and conditions of Accelerated
18 Rehabilitative Disposition in any other way.
19 (7.1) In addition to the conditions set forth in
20 paragraph (7) for Accelerated Rehabilitative Disposition of
21 any charge brought under this section, the judge may impose,
22 and the person shall accept, the condition that the person
23 engage in a program of collecting litter from public and
24 private property, especially property which is littered with
25 alcoholic beverage containers. The duration of the person's
26 participation in a litter collection program shall not exceed
27 the duration of the probationary period imposed on the person
28 under Accelerated Rehabilitative Disposition.
29 (8) With the exception of program costs referred to in
30 section 1548(e) or any restitution referred to in this
19970S1131B1321 - 16 -
1 section, and with the exception of any fees imposed pursuant
2 to paragraph (6)(vi) which shall be distributed to the
3 affected municipal corporation, any fee or financial
4 condition imposed by a judge as a condition of Accelerated
5 Rehabilitative Disposition or any other preliminary
6 disposition of any charge under this section shall be
7 distributed as provided for in 42 Pa.C.S. §§ 3571 (relating
8 to Commonwealth portion of fines, etc.) and 3573 (relating to
9 municipal corporation portion of fines, etc.).
10 (9) The sentencing court may require that a defendant
11 serve all or a portion of a term of imprisonment to which the
12 defendant has been sentenced pursuant to this section in a
13 residential alcoholism treatment program or a residential
14 drug abuse treatment program. Any time spent in a treatment
15 program shall be credited by the court toward the term of
16 imprisonment.
17 * * *
18 Section 3. This act shall take effect in 60 days.
I19L75JS/19970S1131B1321 - 17 -