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Only an owner or interest holder may make a claim for return of property seized for forfeiture or otherwise contest the forfeiture under this part. In the event of a seizure for forfeiture under this part, the property shall not be subject to replevin, conveyance, or attachment, but is deemed to be in the custody of the seizing agency or official.
If after thirty (30) days from the date of the seizure of the property or the filing of a notice of lien lis pendens no administrative or civil forfeiture action has been initiated, the owner or interest holder may petition the court of record having criminal jurisdiction in the judicial district where the seizure occurred for return of the property seized or to have the notice of lien lis pendens released. The district attorney general having jurisdiction over the judicial district where the petition is filed shall be served with a copy of the petition. If no administrative or civil forfeiture action is commenced within thirty (30) days after the appropriate official has been served with the petition for return of property or release of lis pendens, then the court shall order the property be returned or the lien released.
The order to return property or to release a lien shall not bar any action to forfeit the property in a future proceeding, but such property may not be seized nor lien filed against the property until such time as a forfeiture proceeding seeking forfeiture of the property has been filed. At any time subsequent to the seizure of the property by the seizing agency, the attorney general may direct the return of the seized property or release any lien filed upon a determination that forfeiture proceedings would be without merit.
After the filing of a forfeiture action under this part, a claimant may file a motion with the court in which the action is pending for the state to show cause why the property, or any portion of the property, should not be returned or the lien released. The court shall conduct a hearing on the motion within twenty-one (21) days from the date such motion is filed. The claimant must first establish by a preponderance of the evidence that the claimant is an owner in the property seized before other evidence is taken. The claimant has the burden of establishing standing to assert the claim. If the claimant fails to establish standing to assert a claim, then the request shall be denied. If the state then proves that a probability of success on the merits of the forfeiture action exists, the court shall deny the request to return the property or release the lien. If the court finds that the state has failed to prove a probability of success on the merits of the forfeiture action, the court shall order that the property be returned or that the lien be released. If the state proves that a probability of success on the merits exists as to some portion of the property seized or upon which a lien is attached but not on other portions of the property, the court shall order that the portions upon which the state did not meet the burden of proof be returned or the lien released.