A. The transportation of all unlawful oil or unlawful gas is hereby declared to be a public nuisance and such unlawful gas or unlawful oil shall be forfeited to the state. Except as provided by this section and Section 8 of this act all vehicles being used to transport said unlawful oil or unlawful gas shall also be forfeited to the state.
B. Except as authorized by subsection C of this section, all property taken or detained under this section by any authorized person shall not be repleviable, and shall be deemed to be in the custody of the office of the district attorney of the county in which such property was seized, subject only to the decree of a court of competent jurisdiction. If sufficient evidence exists, as determined by the district attorney, that any oil or gas seized is unlawful oil or unlawful gas or that any vehicle seized was used to transport such unlawful oil or unlawful gas, said district attorney shall follow the procedures provided in Section 8 of this act dealing with notification of seizure, intent and forfeiture, final disposition procedures, and release to innocent claimants with regard to all property seized by such authorized persons. If sufficient evidence does not exist, as determined by the district attorney, that any oil or gas seized is unlawful oil or unlawful gas or that any vehicle seized was used to transport such unlawful oil or unlawful gas, the district attorney may release such oil or gas or vehicle but shall notify any appropriate state or federal agency of any possible permit or license violations.
C. 1. The owner of a vehicle, upon submission of a written statement, under oath, to the office of the district attorney of the county in which said property was seized that such owner had no knowledge of the unlawfulness of the oil or gas or that the oil or gas became unlawful without his knowledge after the creation of his interest or that the vehicle was being used for the purpose charged without his knowledge, and upon execution of a lien pursuant to this subsection and entry of the lien on the certificate of title, shall be entitled to recover the possession of the vehicle prior to the commencement of the action.
2. The office of the district attorney of the county in which property was seized shall have a lien upon any vehicle seized pursuant to this section. If the title to the vehicle is not with the person from whom such vehicle was seized, the person having title shall be given notice within five (5) days of such seizure and of the opportunity to recover the vehicle pursuant to this subsection. The lien on such vehicle shall be preferred to all other liens or encumbrances which may attach to or upon such vehicle.
3. The office of the district attorney claiming the lien within ten (10) days of seizure of the vehicle shall file in the office of the county clerk of the county in which such property was seized a statement verified by affidavit setting forth:
In addition, the office of the district attorney claiming the lien shall provide for the entry of the lien on the certificate of title pursuant to the Motor Vehicle Title Act. Such statement shall be filed and the lien recorded on the certificate of title prior to the recovery of the vehicle by the owner pursuant to this subsection.
4. Any person having title to the seized vehicle on which a lien is claimed pursuant to this subsection may at any time discharge the lien by depositing with the county clerk of the county in which property was seized a corporate surety bond made payable to the state in an amount not less than the value of the vehicle seized. Within three (3) business days after the deposit of bond is made, the county clerk shall serve upon the office of the district attorney claiming the lien, written notice setting forth:
The party seeking to discharge the lien shall prepare and deliver the notice to the county clerk of the county in which the property was seized and pay a fee of Five Dollars ($5.00) to cover the cost of filing and mailing. An abbreviated notice may be used if the same refers to and encloses a copy of the lien claim and a copy of the bond with the clerk's filing stamp thereon. The notice shall be mailed by registered or certified mail at the option of the county clerk.
If a bond is deposited, the district attorney shall have five (5) days after the notice is mailed within which to file a written objection with the county clerk of said county. If a written objection is not timely made, the county clerk shall immediately show the lien released of record. If an objection is timely made, the county clerk shall set a hearing within five (5) days thereafter and notify by ordinary mail both the office of the district attorney and the party making the deposit of the date and time thereof. The only grounds for objection shall be that: The surety is not authorized to transact business in this state; the bond is not properly signed; the amount is less than the value of the vehicle seized; the power of attorney of the surety's attorney-in-fact does not authorize the execution; there is no power of attorney attached if the bond is executed by anyone other than the surety's president and attested by its secretary; or a cease and desist order has been issued against the surety either by the Insurance Commissioner or a court of competent jurisdiction. Within two (2) business days following the hearing the county clerk shall either sustain or overrule the objections and notify the parties of his ruling by ordinary mail. If the objections are sustained, the ruling of the county clerk shall be conclusive for lien release purposes unless appealed within ten (10) days to the district court. If the objections are overruled, the county clerk shall immediately show the lien released of record.
The bond shall: Name the office of the district attorney in which the property was seized as obligee and the party seeking the release as principal; be executed by both the principal and the surety; have a proper power of attorney attached if executed by an attorney-in-fact; be executed by a corporate surety authorized to transact business in this state; and be conditioned that the principal and surety will pay the full amount of the claim as established in any appropriate court proceeding, plus any court costs, but in no event shall the liability of the principal or surety under the bond exceed the bond penalty. The conditions of any bond filed pursuant to this section shall be deemed to comply with the requirements hereof, regardless of the language or limitations set forth therein, if both the principal and surety intend that the bond be filed to secure a lien release under this section.
The bond shall stand in lieu of the released lien. The bond shall stand liable for such principal, interest, and court costs. The bond principal and surety are necessary parties to an action against the substituted security, and by filing a bond the parties subject themselves to personal jurisdiction in the court where the action is properly filed and may be served with process as in other cases.
5. If the district attorney fails to file a forfeiture proceeding pursuant to Section 8 of this act, upon application of the party filing the bond and the payment of a fee of Ten Dollars ($10.00), the county clerk shall appropriately note on the bond that the same has been released. The clerk shall not incur liability to any lien claimant for the release of a bond in good faith.
6. Upon conviction of the owner of the vehicle for violating the provisions of this act, the vehicle so seized upon which a lien has been filed pursuant to this subsection or any bond posted for the discharge of the lien on such vehicle shall be forfeited to the state pursuant to forfeiture proceedings provided by Section 8 of this act.
7. Upon the acquittal of such person charged with violating the provisions of this section or upon the dismissal with prejudice of said charge against such person or it is shown that the owner of such vehicle was not knowledgeable concerning the illegal use of his vehicle, the lien on the vehicle shall be immediately discharged in accordance with procedures for the discharge of liens, or the bond posted shall be returned to the person posting such bond.
Added by Laws 1985, c. 187, § 7, eff. Nov. 1, 1985.