Forfeiture

V.S.A. tit. 18, ch. 84, subch. 2

in effect

18 V.S.A. § 4241 Scope

4241. Scope (a) The following property shall be subject to this subchapter: (1) All regulated drugs that have been cultivated, manufactured, distributed, compounded, possessed, sold, prescribed, dispensed, or delivered in violation of subchapter 1 of this chapter. (2) All raw materials, products, and equipment of any kind that are used or intended for use in cultivating, manufacturing, compounding, dispensing, delivering, processing, importing, or exporting any regulated drug in violation of subchapter 1 of this chapter. (3) All property that is used or intended for use as a container for property described in subdivision (1) or (2) of this subsection. (4) All books, records, and research, including formulas, microfilm, tapes, computers, software, and data, that are used or intended for use in violation of subchapter 1 of this chapter. (5) Any consideration, including monies, negotiable instruments, and securities, used or intended for use in the cultivation, manufacture, compounding, distribution, or delivery of any regulated drug in violation of subchapter 1 of this chapter and any proceeds or derivative proceeds of any dispensing or sale of any regulated drug in violation of subchapter 1 of this chapter, including monies, negotiable instruments, and securities. Such consideration, proceeds, or derivative proceeds shall be forfeited to the extent of the interest of an owner, only by reason of an action or omission committed or omitted with the knowledge or consent of the owner. As used herein, “derivative proceeds” shall not include real property that is occupied as the primary residence of a person involved in the violation and a member or members of that person’s family. (6) All conveyances, including aircraft, vehicles, or vessels, that are used or are intended for use to transport, conceal, or in any manner facilitate the cultivation, manufacture, compounding, dispensing, delivering, sale, or possession of a regulated drug in violation of subchapter 1 of this chapter. No conveyance shall be forfeited: (A) that is used by any person as a common carrier in the transaction of business as a common carrier unless the owner or other person in charge of such conveyance was a consenting party or privy to a violation of subchapter 1 of this chapter; (B) by reason of any act or omission of any person other than the owner while the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, this State, or any other state; or (C) by reason of the use or intended use of the conveyance in violation of subchapter 1 of this chapter by a person other than the owner, unless the owner knew or had reason to believe that the conveyance was used in that manner. (7) Any property seized pursuant to 13 V.S.A. § 364. (b) This subchapter shall apply to property for which forfeiture is sought in connection with: (1) a violation under chapter 84, subchapter 1 of this title that carries by law a maximum penalty of ten years’ incarceration or greater; or (2) a violation of 13 V.S.A. § 364. Added 1985, No. 174 (Adj. Sess.), § 2; amended 1989, No. 100, § 13; 2013, No. 84, § 3, eff. June 10, 2013; 2015, No. 53, § 3.

18 V.S.A. § 4242 Seizure

4242. Seizure (a) The court may issue at the request of the State ex parte a preliminary order or process to seize or secure property for which forfeiture is sought and to provide for its custody. Process for seizure of such property shall issue only upon a showing of probable cause that the property is subject to forfeiture. Application therefor and issuance, execution, and return shall be subject to provisions of applicable law. (b) Any property subject to forfeiture under this subchapter may be seized upon process. Seizure without process may be made when: (1) the seizure is incident to an arrest with probable cause or a search under a valid search warrant; (2) the property subject to seizure has been the subject of a prior judgment in favor of the State in a forfeiture proceeding under this subchapter; or (3) the seizure is incident to a valid warrantless search. (c) If property is seized without process under subdivision (b)(1) or (3) of this section, the State shall forthwith petition the court for a preliminary order or process under subsection (a) of this section. (d) Notwithstanding subsection 4241(b) of this title, all regulated drugs the possession of which is prohibited under this chapter are contraband and shall be automatically forfeited to the State and destroyed. Added 1985, No. 174 (Adj. Sess.), § 2; amended 1987, No. 42; 2015, No. 53, § 4.

18 V.S.A. § 4243 Judicial forfeiture procedure

4243. Judicial forfeiture procedure (a) Conviction or agreement required. An asset is subject to forfeiture by judicial determination under section 4241 of this title and 13 V.S.A. § 364 if: (1) a person is convicted of the criminal offense related to the action for forfeiture; or (2) a person enters into an agreement with the prosecutor under which he or she is not charged with a criminal offense related to the action for forfeiture. (b) Evidence. The State may introduce into evidence in the judicial forfeiture case the fact of a conviction in the Criminal Division of the Superior Court. (c) Burden of proof. The State bears the burden of proving by clear and convincing evidence that the property is an instrument of or represents the proceeds of the underlying offense. (d) Notice. Within 60 days from when the seizure occurs, the State shall notify any owners, possessors, and lienholders of the property of the action, if known or readily ascertainable. Upon motion by the State, a court may extend the time period for sending notice for a period not to exceed 90 days for good cause shown. (e) Return of property. If notice is not sent in accordance with subsection (d) of this section, and no time extension is granted or the extension period has expired, the law enforcement agency shall return the property to the person from whom the property was seized. An agency’s return of property due to lack of proper notice does not restrict the agency’s authority to commence a forfeiture proceeding at a later time. Nothing in this subsection shall require the agency to return contraband, evidence, or other property that the person from whom the property was seized is not entitled to lawfully possess. (f) Filing of petition. The State shall file a petition for forfeiture of any property seized under section 4242 of this title promptly, but not more than 14 days from the date the preliminary order or process is issued. The petition shall be filed in the Superior Court of the county in which the property is located or in any court with jurisdiction over a criminal proceeding related to the property. (g) Service of petition. A copy of the petition shall be served on all persons named in the petition as provided for in Rule 4 of the Vermont Rules of Civil Procedure. In addition, the State shall cause notice of the petition to be published in a newspaper of general circulation in the State, as ordered by the court. The petition shall state: (1) the facts upon which the forfeiture is requested, including a description of the property subject to forfeiture, and the type and quantity of regulated drug involved; (2) the names of the apparent owner or owners, lienholders who have properly recorded their interests, and any other person appearing to have an interest; and, in the case of a conveyance, the name of the person holding title, the registered owner, and the make, model, and year of the conveyance. Added 1985, No. 174 (Adj. Sess.), § 2; amended 2015, No. 53, § 5; 2015, No. 97 (Adj. Sess.), § 50.

18 V.S.A. § 4244 Forfeiture hearing

4244. Forfeiture hearing (a) Within 60 days following service of notice of seizure and forfeiture under section 4243 of this title, a claimant may file a demand for judicial determination of the forfeiture. The demand must be in the form of a civil complaint accompanied by a sworn affidavit setting forth the facts upon which the claimant intends to rely, including, if relevant, the noncriminal source of the asset or currency at issue. The demand must be filed with the court administrator in the county in which the seizure occurred. (b) The court shall hold a hearing on the petition as soon as practicable after, and in any event no later than 90 days following, the conclusion of the criminal prosecution. (c) A lienholder who has received notice of a forfeiture proceeding may intervene as a party. If the court finds that the lienholder has a valid, good faith interest in the subject property that is not held through a straw purchase, trust, or otherwise for the actual benefit of another and that the lienholder did not at any time have knowledge or reason to believe that the property was being or would be used in violation of the law, the court upon forfeiture shall order compensation to the lienholder to the extent of the lienholder’s interest. (d) The court shall not order the forfeiture of property if an owner, co-owner, or person who regularly uses the property, other than the defendant, shows by a preponderance of the evidence that the owner, co-owner, or regular user did not consent to or have any express or implied knowledge that the property was being or was intended to be used in a manner that would subject the property to forfeiture, or that the owner, co-owner, or regular user had no reasonable opportunity or capacity to prevent the defendant from using the property. (e) The proceeding shall be against the property and shall be deemed civil in nature. The State shall have the burden of proving all material facts by clear and convincing evidence. (f) The court shall make findings of fact and conclusions of law and shall issue a final order. If the petition is granted, the court shall order the property held for evidentiary purposes, delivered to the State Treasurer, or, in the case of regulated drugs or property that is harmful to the public, destroyed. Added 1985, No. 174 (Adj. Sess.), § 2; amended 2015, No. 53, § 6.

18 V.S.A. § 4245 Remission or mitigation of forfeiture

4245. Remission or mitigation of forfeiture (a) On petition filed within 90 days after completion of a forfeiture proceeding, a court that issued a forfeiture order pursuant to section 4244 of this title may order that the forfeiture be remitted or mitigated. The petition shall be sworn and shall include all information necessary for its resolution or shall describe where such information can be obtained. Upon receiving a petition, the court shall investigate and may conduct a hearing if in its judgment it would be helpful to the resolution of the petition. The court shall either grant or deny the petition within 90 days. (b) The court may remit or mitigate a forfeiture upon finding that relief should be granted to avoid extreme hardship or upon finding that the petitioner has a valid, good faith interest in the property that is not held through a straw purchase, trust, or otherwise for the benefit of another and that the petitioner did not at any time have knowledge or reason to believe that the property was being or would be used in violation of the law. Added 1985, No. 174 (Adj. Sess.), § 2; amended 2018, No. 8 (Sp. Sess.), § 7, eff. June 28, 2018.

18 V.S.A. § 4246 Maintenance

4246. Maintenance Law enforcement agencies seizing property under this subchapter shall ensure that the property is properly maintained. Equipment and conveyances seized shall be removed to an appropriate place for storage. Any monies, negotiable instruments, or securities seized shall if practicable be deposited in an interest-bearing account pending final disposition by the court unless the seizing agency determines the properties to be of an evidentiary nature and provides for their security in another manner. Any such deposit in an interest-bearing account shall only be accomplished pursuant to a court order directing the same, and the court shall have jurisdiction to enter such order or any other order directing interim disposition of the properties pending final disposition by the court. Added 1985, No. 174 (Adj. Sess.), § 2.

18 V.S.A. § 4247 Disposition of property

4247. Disposition of property (a) Whenever property is forfeited and delivered to the State Treasurer under this subchapter, the State Treasurer shall, not sooner than 90 days after the date the property is delivered, sell the property at a public sale held under 27 V.S.A. chapter 18, subchapter 7. (b) The proceeds from the sale of forfeited property shall be used first to offset any costs of selling the property and then, after any liens on the property have been paid in full, applied to payment of seizure, storage, and forfeiture expenses, including animal care expenses related to the underlying violation. Remaining proceeds shall be distributed as follows: (1)(A) 45 percent shall be distributed among: (i) the Office of the Attorney General; (ii) the Department of State’s Attorneys and Sheriffs; and (iii) State and local law enforcement agencies. (B) The Agency of Administration is authorized to determine the allocations among the groups listed in subdivision (A) of this subdivision (1) and may only reimburse the prosecutor and law enforcement agencies that participated in the enforcement effort resulting in the forfeiture for expenses incurred, including actual expenses for involved personnel. The proceeds shall be held by the Treasurer until the Agency notifies the Treasurer of the allocation determinations, at which time the Treasurer shall forward the allocated amounts to the appropriate agency’s operating funds. (2) The remaining 55 percent shall be deposited in the General Fund. Added 1985, No. 174 (Adj. Sess.), § 2; amended 2015, No. 53, § 7; 2021, No. 141 (Adj. Sess.), § 2, eff. July 1, 2022; 2021, No. 141 (Adj. Sess.), § 3.

18 V.S.A. § 4248 Records

4248. Records (a) Law enforcement departments and agencies, and other State departments and agencies that have custody of any property subject to forfeiture under this subchapter, or that dispose of such property, shall keep and maintain full and complete records including the following: (1) from whom the property was received; (2) description of the property, including the exact kinds, quantities, and forms of the property; (3) value of the property; (4) if the property is deposited in an interest-bearing account, the location of the account and the amount of interest; (5) under what authority the property was held or received or disposed; (6) to whom the property was delivered; (7) the date and manner of destruction or disposition of the property. (b) Those records shall be submitted to the State Treasurer and shall be open to inspection by all federal and State departments and agencies charged with enforcement of federal and State drug control laws. Persons making final disposition or destruction of the property under court order shall report, under oath, to the court the exact circumstances of that disposition or destruction and a copy of that report shall be sent to the State Treasurer. Added 1985, No. 174 (Adj. Sess.), § 2.

Source: Vermont General Assembly (legislature.vermont.gov)URL: https://legislature.vermont.gov/statutes/chapter/18/084Fetched: 10/21/2026