39-30-04. Forfeiture of property
1. The following are subject to forfeiture unless obtained by theft, fraud, or conspiracy to
defraud and the rightful owner is known or can be identified and located:
a. Any tool;
b. Any implement; or
c. Any instrumentality, including any motor vehicle or motor vehicle part, whether
owned or unowned by the person from whose possession or control it was
seized, which is used or possessed either in violation of section 39-30-02 or to
promote or facilitate a violation of section 39-30-02.
2. Any motor vehicle, other conveyance, or motor vehicle part used by any person as a
common carrier is subject to forfeiture under this section if the owner or other person
in charge of the motor vehicle, other conveyance, or motor vehicle part is a consenting
party to a violation of section 39-30-02.
3. Any motor vehicle, motor vehicle part, other conveyance, tool, implement, or
instrumentality is not subject to forfeiture under this section by reason of any act or
omission that the owner proves to have been committed or omitted without the owner's
knowledge or consent.
4. a. Seizing agencies shall utilize their best efforts to identify any seized motor vehicle
or motor vehicle part to determine ownership or the identity of any other person
having a right or interest in it. In its reasonable identification and owner location
attempts, the seizing agency shall cause the stolen motor vehicle files of all law
enforcement agencies to be searched for stolen or wanted information on motor
vehicles similar to the seized motor vehicle or consistent with the seized motor
vehicle part.
b. If a motor vehicle or motor vehicle part has an apparent value in excess of one
thousand dollars:
(1) The seizing agency shall consult with an expert of the type specified in
subsection 4 of section 39-30-01; and
(2) The seizing party shall request searches of the online and offline files of the
national crime information center and the national automobile theft bureau
when files have been searched with negative results.
5. A forfeiture of a motor vehicle, motor vehicle part, or other conveyance encumbered by
a bona fide security interest is subject to the interest of the secured party if the
secured party neither had knowledge of nor consented to the act or omission forming
the ground for the forfeiture.
6. Property, described in subsection 1, seized and held for forfeiture, is not subject to
replevin and is subject only to the order and judgments of a court of competent
jurisdiction hearing the forfeiture proceedings.
7. a. A state's attorney in the county where the seizure occurs shall bring an action for
forfeiture in a court of competent jurisdiction. The forfeiture action must be
brought within sixty days from the date of seizure except when the state's
attorney in the sound exercise of discretion determines that no forfeiture action
should be brought because of the rights of property owners, lienholders, or
secured creditors, or because of exculpatory, exonerating, or mitigating facts and
circumstances.
b. The state's attorney shall give notice of the forfeiture proceeding by mailing a
copy of the complaint in the forfeiture proceeding to each person whose right,
title, or interest is of record maintained in the department of transportation, or any
other department of the state, or any other state or territory of the United States,
or of the federal government if the property is required to be registered in any
such department.
c. Notice of the proceeding must be given to any other person as may appear, from
the facts and circumstances, to have any right, title, or interest in or to the
property.
d. The owner of the property, or any person having or claiming right, title, or interest
in the property may within sixty days after the mailing of such notice file a verified
answer to the complaint and may appear at the hearing on the action for
forfeiture.
e. The state's attorney must show at a forfeiture hearing, by a preponderance of the
evidence, that the property was used in the commission of a violation of section
39-30-02 or was used or possessed to facilitate such violation.
f. The owner of property may show by a preponderance of the evidence that the
owner did not know, and did not have reason to know, that the property was to be
used or possessed in the commission of any violation or that any of the
exceptions to forfeiture are applicable.
g. Unless the state's attorney makes the required showing, the court shall order the
property released to the owner. If the state's attorney has made such a showing,
the court may order:
(1) The property be destroyed by the agency that seized it or some other
agency designated by the court;
(2) The property be delivered and retained for use by the agency that seized it
or some other agency designated by the court; or
(3) The property be sold at public sale.
8. A copy of a forfeiture order must be filed with the sheriff of the county in which the
forfeiture occurs and with each federal or state department with which the property is
required to be registered. The order, when filed, constitutes authority for the issuance
to the agency to which the property is delivered and retained for use or to any
purchaser of the property of a title certificate, registration certificate, or other special
certificate as may be required by law considering the condition of the property.
9. Proceeds from the sale at public auction, after payment of all reasonable charges and
expenses incurred by the agency designated by the court to conduct the sale in storing
and selling the property, must be paid to the general fund of the county of seizure.
10. No motor vehicle, either seized under section 39-30-03 or forfeited under this section,
may be released by the seizing agency or used or sold by an agency designated by
the court unless any altered, counterfeited, defaced, destroyed, disguised, falsified,
forged, obliterated, or removed vehicle identification number is corrected by the
issuance and affixing of either assigned or replacement vehicle identification number
plates as may be appropriate under laws of this state.
11. No motor vehicle part having any altered, counterfeited, defaced, destroyed,
disguised, falsified, forged, obliterated, or removed vehicle identification number may
be disposed of upon forfeiture except by destruction. This subsection does not apply to
any motor vehicle part that is assembled with and constitutes part of a motor vehicle.
12. No motor vehicle or motor vehicle part may be forfeited under this section solely on the
basis that it is unidentifiable. Instead of forfeiture, any seized motor vehicle or motor
vehicle part that is unidentifiable must be the subject of a written report sent by the
seizing agency to the department of transportation. The report must include a
description of the motor vehicle or motor vehicle part, its color, if any, the date, time,
and place of its seizure, the name of the person from whose possession or control it
was seized, the grounds for its seizure, and the location where it is held or stored.
13. When a seized unidentifiable motor vehicle or motor vehicle part has been held for
sixty days or more after the notice to the department of transportation specified in
subsection 12 has been given, the seizing agency, or its agent, shall cause the motor
vehicle or motor vehicle part to be sold at public sale to the highest bidder. Notice of
the time and place of sale must be posted in a conspicuous place for at least thirty
days prior to the sale on the premises where the motor vehicle or motor vehicle part
has been stored.
14. If a seized unidentifiable motor vehicle or motor vehicle part has an apparent value of
one thousand dollars or less, the seizing agency shall authorize the disposal of the
motor vehicle or motor vehicle part, provided that no such disposition may be made
less than sixty days after the date of seizure.
15. The proceeds of the public sale of an unidentifiable motor vehicle or motor vehicle part
must be deposited in the general fund of the state or other governmental unit after
deduction of any reasonable and necessary towing and storage charges.
16. Seizing agencies shall utilize their best efforts to arrange for the towing and storing of
motor vehicles and motor vehicle parts in the most economical manner possible. The
owner of a motor vehicle or a motor vehicle part may not be required to pay more than
the minimum reasonable costs of towing and storage.
17. A seized motor vehicle or motor vehicle part that is neither forfeited nor unidentifiable
must be held subject to the order of the court in which the criminal action is pending or,
if a request for its release from such custody is made, until the state's attorney has
notified the defendant or the defendant's attorney of such request and both the
prosecution and defense have been afforded a reasonable opportunity for an
examination of the property to determine its true value and to produce or reproduce,
by photographs or other identifying techniques, legally sufficient evidence for
introduction at trial or other criminal proceedings. Upon expiration of a reasonable time
for the completion of the examination, which may not exceed fourteen days from the
date of service upon the defense of the notice of request for return of property, the
property must be released to the person making such request after satisfactory proof
of the person's entitlement to possession. Notwithstanding the foregoing, upon
application by either party with notice to the other, the court may order retention of the
property if it determines that retention is necessary in the furtherance of justice.
18. When a seized vehicle is forfeited, restored to its owner, or disposed of as
unidentifiable, the seizing agency shall retain a report of the transaction for a period of
at least one year from the date of the transaction.
19. When an applicant for a certificate of title or salvage certificate presents to the
department of transportation proof that the applicant purchased or acquired a motor
vehicle at a public sale conducted pursuant to this section and such fact is attested to
by the seizing agency, the department of transportation shall issue a certificate of title,
salvage certificate for the motor vehicle upon receipt of the statutory fee, properly
executed application for a certificate of title, or other certificate of ownership, and the
affidavit of the seizing agency that a state-assigned number was applied for and
affixed to the motor vehicle prior to the time that the motor vehicle was released by the
seizing agency to the purchaser.
