07 LC 35
0564S
The
Senate Public Safety and Homeland Security Committee offered the following
substitute to SB 219:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 6 of Title 16 of the Official Code of Georgia Annotated, relating
to sexual offenses, so as to provide for seizure and forfeiture of motor
vehicles operated by a person to facilitate certain sexual offenses; to provide
for procedure; to provide for related matters; to provide for an effective date
and applicability; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
6 of Title 16 of the Official Code of Georgia Annotated, relating to sexual
offenses, is amended by adding a new Code section to read as
follows:
"16-6-26.
(a)
Except as provided in this Code section, any motor vehicle operated by a person
to facilitate a violation of Code Section 16-6-1 with respect to the offense of
rape; a violation of Code Section 16-6-2 with respect to the offense of
aggravated sodomy; a violation of Code Section 16-6-4 with respect to the
offenses of child molestation or aggravated child molestation; a violation of
Code Section 16-6-5 with respect to the offense of enticing a child for indecent
purposes; or a violation of Code Section 16-6-22.2 with respect to the offense
of aggravated sexual battery; and where such offense involved a motor vehicle,
said motor vehicle 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 such offense. As used
in this Code section the term 'motor vehicle' means any motor vehicle as defined
in Code Section 40-1-1.
(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 Code section, that said motor vehicle has been declared contraband.
Said motor vehicle shall be delivered within 20 days to the prosecuting attorney
whose circuit includes the county in which a seizure is made or to the
prosecuting attorney´s duly authorized agent. At any time subsequent to
the seizure, the chief officer of the seizing agency, his or her designee, or
the prosecuting attorney may release the motor 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 prosecuting 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 prosecuting 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 the 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 registered or
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 registered
or certified mail or statutory overnight delivery to the titleholder at the
address set out in the title and an additional copy is mailed by registered or
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 motor vehicle shall not be subject to forfeiture unless it is
established in the forfeiture proceedings that the owner of the rented or leased
motor vehicle knew of or should have known of or consented to the operation of
such motor vehicle in a manner which would subject the motor vehicle to
forfeiture. Upon learning of the address or phone number of the rental or
leasing company which owns such motor vehicle, the prosecuting attorney shall
immediately contact the company to inform it that the motor 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)(1)
When a motor vehicle is forfeited under this article, the court
may:
(A)
Order the property to be sold, with the proceeds of the sale to be distributed
as provided in paragraph (3) of this subsection; or
(B)
Provide for the in-kind distribution of the property as provided for in
paragraph (3) of this subsection.
(2)
Where a motor vehicle is to be sold pursuant to this subsection, the court may
direct that such property be sold by:
(A)
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 motor
vehicle; or
(B)
Any commercially feasible means.
(3)
All motor vehicles forfeited in the same forfeiture proceeding shall be pooled
together for distribution as follows:
(A)
A fair market value shall be assigned to the motor vehicles and a total value
shall be established for the pool by adding together the fair market value of
all motor vehicles in the pool;
(B)
All costs, including court costs, costs incurred in the seizure, and any costs
incurred in the storage, advertisement, maintenance, or care of each motor
vehicle shall be paid and the remaining pool shall be distributed pro rata to
the state and to local governments, according to the role which their law
enforcement agencies played in the seizure of the motor vehicle; provided,
however, that the amount distributed to the state shall not exceed 25 percent of
the amount distributed; county governments are authorized upon request of the
district attorney to provide for payment of any and all necessary expenses for
the operation of the office from the said forfeiture pool up to 10 percent of
the amount distributed, in addition to any other expenses paid by the county to
the district attorney´s office;
(C)
An order of distribution provided for in this subsection shall be submitted by
the district attorney to the court for approval; and
(D)(i)
Property and money distributed to a local government shall be passed through to
the local law enforcement agency until the sum equals 33 1/3 percent of the
amount of local funds appropriated or otherwise made available to such agency
for the fiscal year in which such funds are distributed. Proceeds received may
be used for any official law enforcement purpose except for the payment of
salaries or rewards to law enforcement personnel, at the discretion of the chief
officer of the local law enforcement agency, or may be used to fund
victim-witness assistance programs or a state law enforcement museum. Such
property shall not be used to supplant any other local, state, or federal funds
appropriated for staff or operations.
(ii)
The local governing authority shall expend any remaining proceeds for any law
enforcement purpose; for drug treatment, rehabilitation, prevention, or
education or any other program which responds to problems created by drug or
substance abuse; for use as matching funds for grant programs related to drug
treatment or prevention; to fund victim-witness assistance programs; or for any
combination of the foregoing.
(iii)
Any local law enforcement agency receiving property under this subsection shall
submit an annual report to the local governing authority. The report shall be
submitted with the agency´s budget request and shall itemize the property
received during the fiscal year and the utilization made thereof.
(iv)
Money distributed to the state pursuant to this subsection shall be paid into
the general fund of the state treasury, it being the intent of the General
Assembly that the same be used, subject to appropriation from the general fund
in the manner provided by law for funding of the Crime Victims Emergency Fund;
for law enforcement and prosecution agency programs and particularly for funding
of advanced drug investigation and prosecution training for law enforcement
officers and prosecuting attorneys; for drug treatment, rehabilitation,
prevention, or education or any other program which responds to problems created
by drug or substance abuse; for use as matching funds for grant programs related
to drug treatment or prevention; or for financing the judicial system of the
state.
(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 such person
would operate or was operating the motor vehicle while engaging in conduct in
violation of Code Section 16-6-1 with respect to the offense of rape; a
violation of Code Section 16-6-2 with respect to the offense of aggravated
sodomy; a violation of Code Section 16-6-4 with respect to the offenses of child
molestation or aggravated child molestation; a violation of Code Section 16-6-5
with respect to the offense of enticing a child for indecent purposes; or a
violation of Code Section 16-6-22.2 with respect to the offense of aggravated
sexual battery.
(i)
In any case where a motor vehicle which is the only family motor 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
motor vehicle transferred to another family member who is a duly licensed
operator and who requires the use of such motor 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 upon its approval by the Governor or upon its
becoming law without such approval and shall apply to all crimes committed on or
after such date.
SECTION
3.
All
laws and parts of laws in conflict with this Act are repealed.