(1) Any vehicle or personal property, including fixtures and contents of a structure or building, as defined in section 16-13-301 (2), currency, securities, or negotiable instruments, which has been or is being used in any of the acts specified in section 16-13-503 or in, upon, or by means of which any act under said section has taken or is taking place; or any currency, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for any of the acts listed in section 16-13-503; or any proceeds traceable to the acts listed in section 16-13-503; or any currency, negotiable instruments, or securities used or intended to be used to facilitate any of the acts listed in section 16-13-503 are contraband property and shall be seized, as well as any contraband article. Any peace officer or agent of a seizing agency may seize and hold such property or articles if there is probable cause to believe that such property or articles are contraband and the seizure is incident to a lawful search. All rights and interest in and title to contraband property shall immediately vest in the state upon seizure by a seizing agency, subject only to perfection of title, rights, and interests in accordance with this part 5. Neither replevin nor any other action to recover any interest in such property shall be maintained in any court except as provided in this part 5.
(1.5) If a rental motor vehicle is seized pursuant to this part 5, the seizing agency shall notify the motor vehicle rental company of the seizure if the motor vehicle is identified as a rental motor vehicle. The motor vehicle rental company may appear at the seizing agency and request the return of the rental motor vehicle. The rental motor vehicle shall be returned to the motor vehicle rental company unless the motor vehicle must be maintained in the custody of the seizing agency for evidentiary purposes or if the seizing agency has probable cause to believe the motor vehicle rental company, at the time of rental, had knowledge or notice of the criminal activity for which the rental car was used.
(2) (a) In any action seeking forfeiture of property pursuant to this part 5, any person, including a lienholder, who seeks to contest the forfeiture shall establish by a preponderance of the evidence such person's standing as a true owner of the property or a true owner with an interest in the property.
To establish standing, the person shall first prove that the person has a recorded orregistered interest in the property, or a bona fide marital interest in the property, if the property is of a type for which interests can be, and customarily are, recorded or registered in a public office.
The person shall also prove that the person is a true owner of the property or a trueowner of an interest in the property. The factors to be considered by the court in determining whether a person is a true owner shall include, but need not be limited to:
Whether the person had the primary use, benefit, possession, or control of the property;
How much of the consideration for the purchase or ownership of the property wasfurnished by the person, and whether the person furnished reasonably equivalent value in exchange for the property or interest;
Whether the transaction by which the person acquired the property or interest wassecret, concealed, undisclosed, hurried, or not in the usual mode of doing business;
Whether the transaction by which the person acquired the property or interest wasconducted through the use of a shell, alter ego, nominee, or fictitious party;
Whether the person is a relative, a co-conspirator, complicitor, or an accessory in thepublic nuisance act or acts or other criminal activity, a business associate in a legal or illegal business, one who maintains a special or close relationship with, or an insider with respect to the perpetrator of the alleged public nuisance act or acts;
Whether the person is silent or fails to call parties to testify or to produce availableevidence explaining the acquisition of the property or factors which may be badges of fraud or deceit, or show lack of true ownership;
Whether the timing of the transaction by which the person acquired the propertywas during the pendency or threat of litigation, or during any time when the person knew, should have known, or had notice of the public nuisance act or acts or the threat of a forfeiture action;
Whether the placing of the title in the name of, or the putative ownership in, ortransfer to, the person was done with intent to delay, hinder, or avoid a forfeiture, or for some purpose other than ownership of the property;
Whether the perpetrator of the alleged public nuisance act or acts has absconded oris a fugitive from justice and the conveyance occurred after the flight, or before the flight, in any of the circumstances set forth in subparagraph (III) of this paragraph (c);
Whether the subject matter property is of a kind in which property or ownershiprights can legally exist;
Any other badge or indicia of fraud under article 8 of title 38, C.R.S., or the generallaw of fraudulent transfers or conveyances.
The court shall consider the totality of the circumstances in determining whether aperson is a true owner. A person contesting the forfeiture does not necessarily have to show that all of the factors enumerated in paragraph (c) of this subsection (2) support the claim of true ownership, nor does the person necessarily establish true ownership by showing the absence of fraudulent intent or badges of fraud.
No private sale or conveyance of a used motor vehicle shall be deemed to make aparty eligible to assert standing to contest the forfeiture thereof, unless the title to the motor vehicle, with transfer duly executed to the party, has been filed with the division of motor vehicles in the department of revenue prior to the physical seizure of the vehicle and the recording of a notice of seizure, or the party attempting to assert standing has exclusive possession of the vehicle at the time of seizure. A party eligible to assert standing under this paragraph (e) must nevertheless establish that the party is a true owner of the vehicle or has an interest therein pursuant to paragraph (c) of this subsection (2).
Unless the standing of a particular party is conceded in the complaint initiating thepublic nuisance action, a party must assert standing in the answer and fully describe the party's interest in the property which is the subject matter of the action, and submit a verified statement, supported by any available documentation, of the party's ownership of or interest in the property.
(2.1) (a) In any action to forfeit property pursuant to this part 5, the plaintiff, in addition to any other matter which must be proven in the plaintiff's case in chief, shall prove by clear and convincing evidence that possession of the property is unlawful, or that the owner of the property or interest therein was involved in or knew of the subject act. The plaintiff shall also prove by clear and convincing evidence that the property was instrumental in the commission or facilitation of the crime or the property constitutes traceable proceeds of the crime or related criminal activity.
(a.5) (I) The claimant in an action brought pursuant to this part 5 may petition the court to determine whether a forfeiture was constitutionally excessive. Upon the conclusion of a trial resulting in a judgment of forfeiture in an action brought pursuant to this part 5, if the evidence presented raises an issue of proportionality under this paragraph (a.5), the defendant may petition the court to set a hearing, or the court may on its own motion set a hearing to determine whether a forfeiture was constitutionally excessive. This determination shall be made prior to any sale or distribution of forfeited property.
In making this determination, the court shall compare the forfeiture to the gravity ofthe public nuisance act giving rise to the forfeiture and related criminal activity.
The defendant shall have the burden of establishing by a preponderance of the evidence that the forfeiture is grossly disproportional.
If the court finds that the forfeiture is grossly disproportional to the public nuisanceact and related criminal activity, it shall reduce or eliminate the forfeiture as necessary to avoid a violation of the excessive fines clause of the eighth amendment of the United States constitution or article II, section 20, of the Colorado constitution.
and (VI) (Deleted by amendment, L. 2003, p. 890, § 2, effective July 1, 2003.)
(b) As used in paragraph (a) of this subsection (2.1), an owner was "involved in or knew of the subject act" if it is established that:
The owner was involved in the subject act; or
(A) The owner knew of the subject act or had notice of the acts facilitating the criminal activity or prior similar conduct and failed to take reasonable steps to prohibit or abate the illegal use of the property;
(B) Notwithstanding the provisions of sub-subparagraph (A) of this subparagraph (II), if the plaintiff proves by clear and convincing evidence that the owner knew or had notice of the unlawful use of the property, the owner must prove by a preponderance of the evidence that the owner took reasonable steps to prohibit or abate the unlawful use of the property for the court to find the owner was not a party to the offense or related criminal activity.
(2.2) (a) With respect to a partial or whole ownership interest in existence at the time the conduct subjecting the property to seizure took place, the term "innocent owner" means any owner who:
Did not have actual knowledge of the conduct subjecting the property to seizure ornotice of an act or circumstance facilitating the criminal activity or prior similar conduct, notice being satisfied by, but not limited to, sending notice of an act or circumstance facilitating the criminal activity by certified mail; or
Upon learning of the conduct subjecting the property to seizure, took reasonablesteps to prohibit the conduct. An owner may demonstrate that he or she took reasonable action to prohibit such conduct if the owner:
Timely revoked or attempted to revoke permission for those engaging in such conduct to use the property; or
Took reasonable actions to discourage or prevent the use of the property in conductsubjecting the property to seizure.
(b) With respect to a partial or whole ownership interest acquired after the conduct subjecting the property to seizure has occurred, the term "innocent owner" means a person who, at the time he or she acquired the interest in the property, had no knowledge that the illegal conduct subjecting the property to seizure had occurred or that the property had been seized for forfeiture, and:
Acquired an interest in the property in a bona fide transaction for value;
Acquired an interest in the property through probate or inheritance; or
Acquired an interest in the property through dissolution of marriage or by operationof law.
An innocent owner's interest in property shall not be forfeited under any provision ofstate law. An innocent owner has the burden of proving by a preponderance of the evidence that he or she has an ownership interest in the subject property. Otherwise, the burden of proof under this subsection (2.2) shall be as provided in subsection (2.1) of this section.
A person who is convicted of a criminal offense arising from the same activity givingrise to the forfeiture proceedings in accordance with section 16-13-505 (1.5) shall not be eligible to assert an innocent owner defense.
(2.3) The prosecuting attorney shall set forth in the petition initiating the forfeiture action pursuant to this part 5 the existence of any liens and whether forfeiture of any liens will be sought. If forfeiture of a lien is not sought, the lienholder does not need to appear to preserve any interest in the property which is the subject of the forfeiture action which such lienholder may possess.
(3) (Deleted by amendment, L. 93, p. 627, § 2, effective July 1, 1993.)
Source: L. 84: Entire part added, p. 506, § 1, effective July 1. L. 87: (1) and (3) amended and (2) R&RE, pp. 639, 640, §§ 17, 18, effective July 1. L. 93: (2) and (3) amended and (2.1), (2.2), and (2.3) added, p. 627, § 2, effective July 1. L. 2002: (1.5) added and (2.1) and (2.2) amended, p. 924, § 9, effective July 1. L. 2003: (2), (2.1)(a), (2.1)(a.5), (2.1)(b)(I), (2.1)(b)(II), (2.2)(a)(I), and (2.2)(c) amended and (2.2)(d) added, pp. 900, 890, 903, §§ 11, 2, 13, effective July 1. L. 2004: (2.1)(b) amended, p. 1197, § 48, effective August 4.