Release of seized property to a claimant -- Release by surety bond or cash - Release for hardship.
Checkout our iOS App for a better way to browser and research.
(1)
(a) An agency with custody of seized property or the prosecuting attorney may release the property to a claimant if the agency or the prosecuting attorney:
(i) determines that retention of the property is unnecessary; or
(ii) seeks to return the property to the claimant because the agency or prosecuting attorney determines that the claimant is an innocent owner.
(b) An agency with custody of the seized property, or the prosecuting attorney, shall release the property to a claimant if:
(i) the claimant posts a surety bond or cash with the court in accordance with Subsection (2);
(ii) the court orders the release of property for hardship purposes under Subsection (3);
(iii) a claimant establishes that the claimant is an innocent owner under Section 24-2-107; or
(iv) the court orders property retained as evidence to be released to a rightful owner under Section 24-3-104.
(2)
(a) Except as provided in Subsection (2)(b), a claimant may obtain release of seized property by posting a surety bond or cash with the court that is in an amount equal to the current fair market value of the property as determined by the court or a stipulation by the parties.
(b) A court may refuse to order the release under Subsection (2)(a) of:
(i) the property if:
(A) the bond tendered is inadequate;
(B) the property is retained as evidence; or
(C) the property is particularly altered or designed for use in the commission of the offense subjecting the property to forfeiture; or
(ii) contraband.
(c) If a surety bond or cash is posted and the court later determines that the property is forfeited, the court shall order the forfeiture of the surety bond or cash in lieu of the property.
(3) A claimant is entitled to the immediate release of seized property for which the agency has filed a notice of intent to forfeit under Section 24-4-103 if:
(a) the claimant had a possessory interest in the property at the time of seizure;
(b) continued possession by the agency pending a forfeiture proceeding will cause substantial hardship to the claimant, including:
(i) preventing the functioning of a legitimate business;
(ii) preventing any individual from working;
(iii) preventing any child from attending elementary or secondary school;
(iv) preventing or hindering an individual from receiving necessary medical care;
(v) preventing the care of a dependent child or adult who is elderly or disabled;
(vi) leaving an individual homeless; or
(vii) any other condition that the court determines causes a substantial hardship;
(c) the hardship from the continued possession of the property by the agency outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if the property is returned to the claimant during the pendency of the proceeding; and
(d) the determination of substantial hardship under this Subsection (3) is based upon the property's use before the seizure.
(4) A claimant may file a motion or petition for hardship release under Subsection (3):
(a) in the court in which forfeiture proceedings have commenced; or
(b) in a district court where there is venue if a forfeiture proceeding has not yet commenced.
(5) The motion or petition for hardship release shall be served upon the agency with custody of the property within five days after the day on which the motion or petition is filed.
(6) The court shall:
(a) schedule a hearing on the motion or petition within 14 days after the day on which the motion or petition is filed; and
(b) render a decision on a motion or petition for hardship filed under this section no later than 20 days after the day of the hearing, unless this period is extended by the agreement of both parties or by the court for good cause shown.
(7)
(a) If the claimant demonstrates substantial hardship under Subsection (3), the court shall order the property immediately released to the claimant pending completion of any forfeiture proceeding.
(b) The court may place conditions on release of the property as the court finds necessary and appropriate to preserve the availability of the property or the property's equivalent for forfeiture.
(8) The hardship release under this section does not apply to:
(a) contraband; or
(b) property that is likely to be used to commit additional offenses if returned to the claimant.