THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY ERICKSON, RAFFERTY, FONTANA, PIPPY, PICCOLA AND FARNESE, FEBRUARY 16, 2011

REFERRED TO TRANSPORTATION, FEBRUARY 16, 2011  

AN ACT

Amending Titles 42 (Judiciary and Judicial Procedure) and 75

(Vehicles) of the Pennsylvania Consolidated Statutes, making

an editorial change; further providing for loss of property

rights to Commonwealth; providing for vehicle forfeiture when

driving under the influence; and further providing for

procedure with respect to seized property subject to liens

and rights of lienholders, for grading and for penalties.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Section 6801(b), (d), (e) and (k) of Title 42 of

the Pennsylvania Consolidated Statutes are amended to read:

§ 6801.  Controlled substance forfeiture.

* * *

(b)  Process and seizure.--Property subject to forfeiture

under this [chapter] section may be seized by the law

enforcement authority upon process issued by any court of common

pleas having jurisdiction over the property. Seizure without

process may be made if:

(1)  the seizure is incident to an arrest or a search

under a search warrant or inspection under an administrative

inspection warrant;

(2)  the property subject to seizure has been the subject

of a prior judgment in favor of the Commonwealth in a

criminal injunction or forfeiture proceeding under this

[chapter] section;

(3)  there is probable cause to believe that the property

is dangerous to health or safety; or

(4)  there is probable cause to believe that the property

has been used or is intended to be used in violation of The

Controlled Substance, Drug, Device and Cosmetic Act.

* * *

(d)  Custody of property.--Property taken or detained under

this section shall not be subject to replevin, but is deemed to

be in the custody of the law enforcement authority subject only

to the orders and decrees of the court of common pleas having

jurisdiction over the forfeiture proceedings and of the district

attorney or the Attorney General. When property is seized under

this [chapter] section, the law enforcement authority shall

place the property under seal and either:

(1)  remove the property to a place designated by it; or

(2)  require that the district attorney or Attorney

General take custody of the property and remove it to an

appropriate location for disposition in accordance with law.

(e)  Use of property held in custody.--Whenever property is

forfeited under this [chapter] section, the property shall be

transferred to the custody of the district attorney, if the law

enforcement authority seizing the property has local or county

jurisdiction, or the Attorney General, if the law enforcement

authority seizing the property has Statewide jurisdiction. The

district attorney or the Attorney General, where appropriate,

may:

(1)  Retain the property for official use.

(2)  Sell any forfeited property which is not required to

be destroyed by law and which is not harmful to the public,

but the proceeds from any such sale shall be used to pay all

proper expenses of the proceedings for forfeiture and sale,

including expenses of seizure, maintenance of custody,

advertising and court costs. The balance of the proceeds

shall be dealt with in accordance with subsections (f) and

(g).

* * *

(k)  Proceeds and appropriations.--The proceeds or future

proceeds from forfeited property under this [chapter] section 

shall be in addition to any appropriation made to the Office of

Attorney General.

Section 2.  Title 42 is amended by adding a section to read:

§ 6801.2.  Vehicle forfeiture.

(a)  Forfeiture generally.--Except as provided in subsection

(b), in addition to any other penalty imposed under law, the

court shall order forfeiture of a vehicle to the Commonwealth

which an individual was driving or operating or was in actual

physical control of at the time of the commission of an offense

which is classified as a felony of the third degree under 75

Pa.C.S. § 3803(c) (relating to grading).

(b)  Exceptions.--The following shall apply:

(1)  No vehicle used by any person as a common carrier in

the transaction of business as a common carrier shall be

forfeited under this section unless it appears that the owner

or other person in charge of the conveyance was a consenting

party or privy to a violation of 75 Pa.C.S. (relating to

vehicles).

(2)  No vehicle shall be forfeited under this section by

reason of any act or omission which the owner of the vehicle

establishes to have been committed or omitted without the

owner's reasonable knowledge or consent.

(3)  No bona fide security interest shall be subject to

forfeiture or impairment if it was retained or acquired in

any of the following circumstances:

(i)  Under 13 Pa.C.S. (relating to commercial code)

by any merchant dealing in new or used vehicles.

(ii)  By any licensed or regulated finance company,

bank or lending institution or by any other business

regularly engaged in the financing of or lending on the

security of the vehicle.

(c)  Process and seizure.--

(1)  Property subject to forfeiture under this section

may be seized by the law enforcement authority upon process

issued by any court of common pleas having jurisdiction over

the property.

(2)  Seizure without process may be made if any of the

following apply:

(i)  The seizure is incident to an arrest or a search

under a search warrant or inspection under an

administrative inspection warrant.

(ii)  The property subject to seizure has been the

subject of a prior judgment in favor of the Commonwealth

in a criminal injunction or forfeiture proceeding under

this section.

(iii)  There is probable cause to believe that the

property has been used or is intended to be used in

violation of 75 Pa.C.S. § 3802 (relating to driving under

influence of alcohol or controlled substance).

(3)  In the event seizure without process occurs under

paragraph (2), proceedings for the issuance of process shall

be instituted as soon as possible.

(d)  Custody.--Property taken or detained under this section

shall not be subject to replevin but is deemed to be in the

custody of the law enforcement authority, subject only to the

orders and decrees of the court of common pleas having

jurisdiction over the forfeiture proceedings and of the district

attorney or the Attorney General. When property is seized under

this section, the law enforcement authority shall place the

property under seal and either:

(1)  remove the property to a place designated by it; or

(2)  require that the district attorney or Attorney

General take custody of the property and remove it to an

appropriate location for disposition in accordance with law.

(e)  Use or sale of property.--Whenever property is forfeited

under this section, the property shall be transferred to the

custody of the district attorney, if the law enforcement

authority seizing the property has local or county jurisdiction,

or to the Attorney General, if the law enforcement authority

seizing the property has Statewide jurisdiction. The district

attorney or the Attorney General, where appropriate, may do any

of the following:

(1)  Retain the property for official use.

(2)  Sell any forfeited property. The proceeds from any

sale shall be used to pay all proper expenses of the

proceedings for forfeiture and sale, including expenses of

seizure, maintenance of custody, advertising and court costs.

The balance of the proceeds shall be dealt with in accordance

with subsections (f) and (g).

(f)  Use of cash or proceeds of property.--Cash or proceeds

of forfeited property transferred to the custody of the district

attorney under subsection (e) shall be placed in the operating

fund of the county in which the district attorney is elected.

The appropriate county authority shall immediately release from

the operating fund, without restriction, a like amount for the

use of the district attorney enforcing the driving under the

influence provisions of 75 Pa.C.S. The entity having budgetary

control shall not anticipate future forfeitures or proceeds from

future forfeitures in adopting and approving the budget for the

district attorney.

(g)  Distribution of property among law enforcement

authorities.--If both municipal and State law enforcement

authorities were substantially involved in effecting the

seizure, the court having jurisdiction over the forfeiture

proceedings shall equitably distribute the property between the

district attorney and the Attorney General.

(h)  Authorization to utilize property or proceeds.--The

district attorney and the Attorney General shall utilize

forfeited property or proceeds from forfeited property for the

purpose of enforcing the provisions of 75 Pa.C.S. In appropriate

cases, the district attorney and the Attorney General may

designate proceeds from forfeited property to be utilized by

community-based drug and alcohol programs and crime-fighting

programs and for relocation and protection of witnesses in

criminal cases.

(i)  Annual audit.--It shall be the responsibility of every

county in this Commonwealth to provide, through the controller,

board of auditors or other appropriate auditor and the district

attorney, an annual audit of all forfeited property and proceeds

obtained under this section. The audit shall not be made public

but shall be submitted to the Office of Attorney General. The

county shall report all forfeited property and proceeds obtained

under this section and the disposition of the property and

proceeds to the Attorney General by September 30 of each year.

(j)  Annual report and confidential information.--The

Attorney General shall do all of the following:

(1)  Annually submit a report to the Appropriations and

Judiciary Committees of the Senate and the Appropriations and

Judiciary Committees of the House of Representatives

specifying the forfeited property or proceeds of forfeited

property obtained under this section. The report shall give

an accounting of all proceeds derived from the sale of

forfeited property and the use made of unsold forfeited

property.

(2)  Adopt procedures and guidelines governing the

release of information by the district attorney to protect

the confidentiality of forfeited property or proceeds used in

ongoing law enforcement activities.

(k)  Proceeds and appropriations.--The proceeds or future

proceeds from forfeited property under this section shall be in

addition to any appropriation made to the Office of Attorney

General.

Section 3.  Section 6802(a)(5), (f) introductory paragraph,

(j) introductory paragraph and (k) of Title 42, are amended to

read:

§ 6802.  Procedure with respect to seized property subject to

liens and rights of lienholders.

(a)  General procedure.--The proceedings for the forfeiture

or condemnation of property, the sale of which is provided for

in this chapter, shall be in rem, in which the Commonwealth

shall be the plaintiff and the property the defendant. A

petition shall be filed in the court of common pleas of the

judicial district where the property is located, verified by

oath or affirmation of an officer or citizen, containing the

following:

* * *

(5)  An allegation that the property is subject to

forfeiture [pursuant to section 6801(a) (relating to

controlled substances forfeiture) or 6801.1(a) (relating to

terrorism forfeiture)] under this chapter and an averment of

material facts upon which the forfeiture action is based.

* * *

(f)  Preservation of the property subject for forfeiture.--

Upon application of the Commonwealth, the court may enter a

restraining order or injunction, require the execution of a

satisfactory performance bond or take any other action to

preserve the availability of property described [in section

6801(a) or 6801.1(a)] under this chapter for forfeiture under

this section either:

* * *

(j)  Owner's burden of proof.--At the time of the hearing, if

the Commonwealth produces evidence that the property in question

was unlawfully used, possessed or otherwise subject to

forfeiture under [section 6801(a) or 6801.1(a)] this chapter,

the burden shall be upon the claimant to show:

* * *

(k)  Court-ordered release of property.--If a person claiming

the ownership of or right of possession to or claiming to be the

holder of a chattel mortgage or contract of conditional sale

upon the property, the disposition of which is provided for in

this section, prior to the sale presents a petition to the court

alleging over the property lawful ownership, right of

possession, a lien or reservation of title and if, upon public

hearing, due notice of which having been given to the Attorney

General or the district attorney, the claimant shall prove by

competent evidence to the satisfaction of the court that the

property was lawfully acquired, possessed and used by him or, it

appearing that the property was unlawfully used by a person

other than the claimant, that the unlawful use was without the

claimant's knowledge or consent, then the court may order the

property returned or delivered to the claimant. Such absence of

knowledge or consent must be reasonable under the circumstances

presented. Otherwise, it shall be retained for official use or

sold in accordance with [section 6801(e) or 6801.1(f)] this

chapter.

Section 4.  Section 3803(a) introductory paragraph of Title

75 is amended and the section is amended by adding a subsection

to read:

§ 3803.  Grading.

(a)  Basic offenses.--Notwithstanding the provisions of

[subsection (b)] subsections (b) and (c):

* * *

(c)  Habitual offender.--

(1)  An individual who violates section 3802(b) and who

has four or more prior offenses commits a felony of the third

degree.

(2)  An individual who violates section 3802(a)(1), where

the individual refused testing of blood or breath, or who

violates section 3802(c) or (d) and who has three or more

prior offenses commits a felony of the third degree.

Section 5.  Section 3804(b)(4) and (c)(3) of Title 75 are

amended and the subsections are amended by adding paragraphs to

read:

§ 3804.  Penalties.

* * *

(b)  High rate of blood alcohol; minors; commercial vehicles

and school buses and school vehicles; accidents.--Except as set

forth in subsection (c), an individual who violates section

3802(a)(1) where there was an accident resulting in bodily

injury, serious bodily injury or death of any person or damage

to a vehicle or other property or who violates section 3802(b),

(e) or (f) shall be sentenced as follows:

* * *

(4)  For a fourth [or subsequent] offense, to:

(i)  undergo imprisonment of not less than one year;

(ii)  pay a fine of not less than $1,500 nor more

than $10,000; and

(iii)  comply with all drug and alcohol treatment

requirements imposed under sections 3814 and 3815.

(5)  For a fifth or subsequent offense, to:

(i)  undergo imprisonment of not less than two years;

(ii)  pay a fine of not less than $2,500 nor more

than $15,000; and

(iii)  comply with all drug and alcohol treatment

requirements imposed under sections 3814 and 3815.

(c)  Incapacity; highest blood alcohol; controlled

substances.--An individual who violates section 3802(a)(1) and

refused testing of blood or breath or an individual who violates

section 3802(c) or (d) shall be sentenced as follows:

* * *

(3)  For a third [or subsequent] offense, to:

(i)  undergo imprisonment of not less than one year;

(ii)  pay a fine of not less than $2,500; and

(iii)  comply with all drug and alcohol treatment

requirements imposed under sections 3814 and 3815.

(4)  For a fourth or subsequent offense, to:

(i)  undergo imprisonment of not less than two years;

(ii)  pay a fine of not less than $5,000; and

(iii)  comply with all drug and alcohol treatment

requirements imposed under sections 3814 and 3815.

* * *

Section 6.  This act shall apply to any offense committed on

or after the effective date of this section.

Section 7.  This act shall take effect in 60 days.