08 LC 34
1398
House
Bill 978
By:
Representative Mills of the
25th
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Article 12 of Chapter 6 of Title 40 of the Official Code of Georgia
Annotated, relating to the uniform rules of the road for motor vehicles, so as
to allow law enforcement officers to seize the vehicles of drivers who are not
in the country legally and are involved in a traffic accident; to provide for
related matters; to provide for an effective date; to repeal conflicting laws;
and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Article
12 of Chapter 6 of Title 40 of the Official Code of Georgia Annotated, relating
to the uniform rules of the road for motor vehicles, is amended by adding a new
Code section to read as follows:
"40-6-279.
(a)
Except as otherwise provided in this Code section, any motor vehicle that is
involved in an accident while being operated by a person who is not legally in
this country is declared to be contraband and subject to forfeiture to the
state, as provided in this Code section, provided that said forfeiture shall not
be absolute unless the defendant is finally convicted of the offense charged at
the time of the accident.
(b)
Any motor vehicle subject to forfeiture under subsection (a) of this Code
section shall be seized immediately upon discovery by any law enforcement
officer, peace officer, or law enforcement agency of this state or any political
subdivision thereof who has the power to make arrests and whose duty it is to
enforce this article, that said motor vehicle has been declared contraband under
the provisions of subsection (a) of this Code section. Said motor vehicle shall
be delivered within 20 days to the district attorney whose circuit includes the
county in which a seizure is made or to his or her duly authorized agent. At
any time subsequent to the seizure, the chief officer of the seizing agency, his
or her designee, or the district attorney may release the vehicle upon bond
being posted in like manner as authorized in subsection (e) of this Code
section.
(c)
Within 60 days from the date of the seizure, the district attorney of the
judicial circuit, or the director on his or her behalf, shall cause to be filed
in the superior court of the county in which the motor vehicle is seized or
detained an action for condemnation of such motor vehicle. The proceedings
shall be brought in the name of the state by the district attorney of the
circuit in which the motor vehicle was seized, and the action shall be verified
by a duly authorized agent of the state in a manner required by the law of this
state. The action shall describe the motor vehicle and state its location,
present custodian, and the name of the owner, if known, to the duly authorized
agent of the state; allege the essential elements of the violation which is
claimed to exist; and conclude with a prayer of due process to enforce the
forfeiture. Upon the filing of such an action, the court shall promptly cause
process to issue to the present custodian in possession of the motor vehicle
described in the action, commanding such custodian to seize the motor vehicle in
the action and to hold that motor vehicle for further order of the court. The
owner, lessee, or any person having a duly recorded security interest in or lien
on such motor vehicle shall be notified by any means of service provided for in
Title 9 or by delivery of a copy of the complaint and summons by certified mail
or statutory overnight delivery to said owner or lienholder or a person of
suitable age or discretion having charge of said owner´s premises. For
purposes of this subsection, where forfeiture of a motor vehicle titled or
registered in Georgia is sought, notice to the titleholder shall be deemed
adequate if a copy of the complaint and summons is mailed by certified mail or
statutory overnight delivery to the titleholder at the address set out in the
title and an additional copy is mailed by certified mail or statutory overnight
delivery to the firm, person, or corporation which holds the current
registration for said motor vehicle, who shall be deemed agent for service for
said titleholder, and said complaint is advertised once a week for two weeks as
set out in this subsection. If the owner, lessee, or person having a duly
recorded security interest in or lien on the contraband motor vehicle is unknown
or resides out of the state or departs the state or cannot after due diligence
be found within the state or conceals himself or herself so as to avoid notice,
notice of the proceedings shall be published once a week for two weeks in the
newspaper in which the sheriff´s advertisements are published. Such
publication shall be deemed notice to any and all persons having an interest in
or right affected by such proceeding and any sale of the motor vehicle resulting
therefrom, but shall not constitute notice to any person having a duly recorded
security interest in or lien upon such motor vehicle and required to be served
under this Code section unless that person is unknown or resides out of the
state or departs the state or cannot after due diligence be found within the
state or conceals himself or herself to avoid notice.
(d)(1)
Any party at interest may appear, by answer under oath, and file an intervention
or defense within 30 days from the date of service on the condemnee of the
action for condemnation. The owner, lessee, security interest holder, or
lienholder shall be permitted to defend by showing that the motor vehicle seized
was not subject to forfeiture under this Code section.
(2)
A rented or leased vehicle shall not be subject to forfeiture unless it is
established in the forfeiture proceedings that the owner of the rented or leased
vehicle knew or should have known of or consented to the operation of such motor
vehicle in a manner which would subject the vehicle to forfeiture. Upon
learning of the address or phone number of the rental or leasing company which
owns such vehicle, the district attorney shall immediately contact the company
to inform it that the vehicle is available for the company to take
possession.
(e)
The court to which any such petition for condemnation may be referred may, in
its discretion, allow any party at interest, after making said defense under
subsection (d) of this Code section, to give bond and take possession of the
motor vehicle seized. Such motor vehicle shall not be sold or leased without
prior approval of the court. In the event the court approves such sale or
lease, the proceeds arising therefrom shall be deposited in the registry of the
court, pending final adjudication of the forfeiture proceeding. The court shall
determine whether the bond shall be a forthcoming bond or an eventual
condemnation money bond and shall also determine the amount of the bond. The
enforcement of any bond so given shall be regulated by the general law
applicable to such cases.
(f)
If no defense or intervention is filed within 30 days from the date of service
on the condemnee of the petition, judgment shall be entered by the court and the
motor vehicle shall be sold. The court may direct that such property be sold
by:
(1)
Judicial sale as provided in Article 7 of Chapter 13 of Title 9; provided,
however, that the court may establish a minimum acceptable price for such
property; or
(2)
Any commercially feasible means.
(g)
The proceeds arising from such sale shall be deposited into the general treasury
of the state or any other governmental unit whose law enforcement agency it was
that originally seized the motor vehicle. Before the proceeds are deposited,
the following claims shall be satisfied:
(1)
Any costs incurred in the seizure;
(2)
The costs of the court and its officers; and
(3)
Any costs incurred in the storage, advertisement, maintenance, or care of the
motor vehicle.
(h)
The interest of an owner, lessee, security interest holder, or lienholder shall
not be subject to forfeiture unless the condemnor shows by a preponderance of
evidence that such person knew or reasonably should have known that the operator
was illegally in this country. It is not a defense to the forfeiture
proceeding that the owner, lessee, security interest holder, or lienholder
failed to inquire as to the legal status of the operator of the motor
vehicle.
(i)
In any case where a vehicle which is the only family vehicle is determined to be
subject to forfeiture, the court may, if it determines that the financial
hardship to the family as a result of the forfeiture and sale outweighs the
benefit to the state from such forfeiture, order the title to the vehicle
transferred to such other family member who is a duly licensed operator and who
requires the use of such vehicle for employment or family transportation
purposes. Such transfer shall be subject to any valid liens and shall be
granted only once."
SECTION
2.
This
Act shall become effective on July 1, 2008.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.