As Passed by the Senate
131st General Assembly
Regular Session

Sub. H. B. No. 347

2015-2016
Representatives McColley, Brinkman
Cosponsors: Representatives Antani, Becker, Brenner, Dever, Duffey, Hambley,
Henne, Hood, LaTourette, Retherford, Roegner, Schuring, Terhar, Thompson,
Vitale, Young, Zeltwanger, Amstutz, Koehler, Rezabek, Romanchuk
Senators LaRose, Coley, Balderson, Beagle, Brown, Burke, Eklund, Faber,
Hackett, Hottinger, Jones, Jordan, Lehner, Obhof, Peterson, Seitz, Tavares,
Thomas, Uecker

A BILL
To amend sections 2329.84, 2329.85, 2329.86,

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2981.01, 2981.03, 2981.04, 2981.05, 2981.06,

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2981.09, 2981.11, and 2981.14 and to enact

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section 2927.21 of the Revised Code to modify

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the laws governing criminal and civil asset

5

forfeitures, to revise the procedures upon a

6

writ of execution of goods claimed by a person

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other than the defendant, and to establish the

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offense of receiving proceeds of an offense

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subject to forfeiture proceedings and permit the

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state to file a civil action against the person

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who allegedly committed that offense under

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certain circumstances.

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BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2329.84, 2329.85, 2329.86,

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2981.01, 2981.03, 2981.04, 2981.05, 2981.06, 2981.09, 2981.11,

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 Sub. H. B. No. 347
As Passed by the Senate

Page 2

and 2981.14 be amended and section 2927.21 of the Revised Code

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be enacted to read as follows:

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Sec. 2329.84. If, by virtue of a writ of execution issued

18

from a court of record in this state, an officer levies it on

19

goods and chattels claimed by a person other than the defendant,

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such officer forthwith shall give written notice to a judge of

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the court of common pleas, municipal court, or county court,

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which whichever court has jurisdiction. The notice shall contain

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the names of the plaintiff, defendant, and claimant, and at the

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same time furnish the judge a schedule of the property claimed.

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Immediately upon As soon as is practicable after the receipt of

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the notice and schedule, the judge shall make an entry of them

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on his docket, and issue a summons directed to the sheriff or

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any constable of the county commanding him to summon five

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disinterested men, having the qualifications of electors, to be

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named in the summons, to appear before him, at the time and

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place therein mentioned, which shall not be more than three days

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after the date of the writ, to try and schedule a hearing to

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determine the claimant's right to the property in controversy.

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The claimant shall give two days' notice, in writing, to the

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plaintiff, or other party, for whose benefit the execution was

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issued and levied, his agent, or attorney, if within the county,

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of the time and place of trial. The claimant shall prove to the

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satisfaction of the judge that such notice was given, or that it

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could not be given by reason of the absence of the party, his

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agent, or attorney.

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Sec. 2329.85. The jurors summoned under section 2329.84 of

42

the Revised Code shall be sworn to try and determine the right

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of the claimant to the property in controversy, and give a true

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verdict according to the evidence. If at the hearing under

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section 2329.84 of the Revised Code the jury judge of the court

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 Sub. H. B. No. 347
As Passed by the Senate

Page 3

of common pleas, municipal court, or county court finds that the

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right to the goods and chattels, in whole or part, is in the

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claimant, they the judge also shall find the value thereof of

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the goods and chattels. The judge of the county court shall

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render judgment on such finding for the claimant that he the

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claimant recover his the claimant's costs against the plaintiff

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in execution, or other party for whose benefit the writ of

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execution is issued, and also have restitution of the goods and

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chattels, or any part thereof of them, according to the finding

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of the jury judge. If the jury judge finds that no right to any

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part of the goods and chattels, is in the claimant, the judge

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shall render judgment on such finding in favor of the plaintiff

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in execution, or other party for whose benefit it the writ of

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execution is issued, and against the claimant, for costs, and

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award execution thereon on the judgment. If the jury fails to

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agree and is discharged, costs shall be taxed, to abide the

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final event of the proceedings, and another jury shall be

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summoned as before. Unless a bond is executed, as provided in

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section 2329.86 of the Revised Code, a judgment for the claimant

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shall be a justification of the officer in returning "no goods"

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to the writ by virtue of which the levy was made, as to such the

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part of the goods and chattels as that were found to belong to

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the claimant. The same fees shall be allowed and taxed by the

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judge, for himself self, officers, jurors, and witnesses, as

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that are allowed by law for like similar services.

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Sec. 2329.86. If the jury summoned judge at the hearing

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under section 2329.84 of the Revised Code finds that the right

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to the property, or a part of it, is in the claimant, and the

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plaintiff in execution within three days after the trial hearing

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tenders to the officer having the property in his the officer's

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custody, a bond in double the amount of its value as assessed by

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 Sub. H. B. No. 347
As Passed by the Senate

Page 4

the jury judge, with good and sufficient sureties, payable to

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the claimant, to the effect that they will pay all damages

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sustained by reason of the detention or sale of the property,

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the officer shall deliver such bond to the claimant, sell the

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property as if no trial hearing of the right thereto to the

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property had taken place, and shall not be liable to the

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claimant therefor for the property.

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Sec. 2927.21. (A) As used in this section:

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(1) "Offense subject to forfeiture proceedings" means any

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of the following:

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(a) A violation of section 2903.01, 2903.02, 2903.03,

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2903.04, 2903.041, 2903.05, 2903.06, 2903.08, 2903.09, 2903.11,

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2903.12, 2903.13, 2903.14, 2903.15, 2903.16, 2903.21, or

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2903.211 of the Revised Code;

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(b) A violation of section 2905.01, 2905.02, 2905.03,

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2905.05, 2905.11, 2905.32, or 2905.33 of the Revised Code;

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(c) A violation of section 2907.02, 2907.03, 2907.04,

94

2907.05, 2907.06, 2907.07, 2907.19, 2907.21, 2907.22, 2907.321,

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2907.322, or 2907.323 of the Revised Code;

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(d) A violation of section 2909.02, 2909.03, 2909.22,

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2909.23, 2909.24, 2909.26, 2909.27, 2909.28, or 2909.29 of the

98

Revised Code;

99

(e) A violation of section 2911.01, 2911.02, 2911.11,
2911.12, or 2911.13 of the Revised Code;
(f) A violation of section 2915.02, 2915.03, 2915.04, or
2915.05 of the Revised Code;

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101
102
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(g) A violation of section 2921.02, 2921.03, 2921.04,

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2921.05, 2921.11, 2921.12, or 2921.41 of the Revised Code;

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 Sub. H. B. No. 347
As Passed by the Senate

(h) A violation of section 2925.02, 2925.03, 2925.04,

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106

2925.041, 2925.05, 2925.06, 2925.09, or 2925.11 of the Revised

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Code;

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(i) A conspiracy or attempt to commit, or complicity in

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committing, any offense under division (A)(1)(a), (b), (c), (d),

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(e), (f), (g), or (h) of this section.

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(2) "Proceeds" has the same meaning as in section 2981.01
of the Revised Code.
(3) "Vehicle" has the same meaning as in section 4501.01
of the Revised Code.
(B) No person shall receive, retain, possess, or dispose

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113
114
115
116

of proceeds knowing or having reasonable cause to believe that

117

the proceeds were derived from the commission of an offense

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subject to forfeiture proceedings.

119

(C) It is not a defense to a charge of receiving proceeds

120

of an offense subject to forfeiture proceedings in violation of

121

this section that the proceeds were derived by means other than

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the commission of an offense subject to forfeiture proceedings

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if the property was explicitly represented to the accused person

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as having been derived from the commission of an offense subject

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to forfeiture proceedings.

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(D) A person shall be considered to have received,

127

retained, possessed, or disposed of proceeds if the proceeds are

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found anywhere in a vehicle and the person was the last person

129

who operated the vehicle immediately prior to the search of the

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vehicle by the law enforcement officer who found the proceeds.

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(E) Whoever violates this section is guilty of receiving

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proceeds of an offense subject to forfeiture proceedings. If the

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value of the proceeds involved is less than one thousand

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 Sub. H. B. No. 347
As Passed by the Senate

Page 6

dollars, receiving proceeds of an offense subject to forfeiture

135

proceedings is a misdemeanor of the first degree. If the value

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of the proceeds involved is one thousand dollars or more and is

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less than twenty-five thousand dollars, receiving proceeds of an

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offense subject to forfeiture proceedings is a felony of the

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fifth degree. If the value of the proceeds involved is twenty-

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five thousand dollars or more and is less than one hundred fifty

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thousand dollars, receiving proceeds of an offense subject to

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forfeiture proceedings is a felony of the fourth degree. If the

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value of the proceeds involved is one hundred fifty thousand

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dollars or more, receiving proceeds of an offense subject to

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forfeiture proceedings is a felony of the third degree.

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Sec. 2981.01. (A) Forfeitures under this chapter shall be
governed by all of the following purposes:

147
148

(1) To provide economic disincentives and remedies to

149

deter and offset the economic effect of offenses by seizing and

150

forfeiting contraband, proceeds, and certain instrumentalities;

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(2) To ensure that seizures and forfeitures of

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instrumentalities are proportionate to the offense committed;

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(3) To protect third parties from wrongful forfeiture of

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their property;

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(4) To prioritize restitution for victims of offenses.

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(B) As used in this chapter:

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(1) "Aircraft" has the same meaning as in section 4561.01

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of the Revised Code.
(2) "Computers," "computer networks," "computer systems,"

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160

"computer software," and "telecommunications device" have the

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same meanings as in section 2913.01 of the Revised Code.

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 Sub. H. B. No. 347
As Passed by the Senate

(3) "Financial institution" means a bank, credit union,

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savings and loan association, or a licensee or registrant under

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Chapter 1321. of the Revised Code.

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(4) "Firearm" and "dangerous ordnance" have the same
meanings as in section 2923.11 of the Revised Code.
(5) "Innocent person" includes any bona fide purchaser of

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167
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property that is subject to forfeiture, including any person who

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establishes a valid claim to or interest in the property in

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accordance with section 2923.04 2981.04 of the Revised Code, and

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any victim of an alleged offense.

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(6) "Instrumentality" means property otherwise lawful to

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possess that is used in or intended to be used in an offense. An

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"instrumentality" may include, but is not limited to, a firearm,

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a mobile instrumentality, a computer, a computer network, a

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computer system, computer software, a telecommunications device,

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money, and any other means of exchange.

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(7) "Law enforcement agency" includes, but is not limited

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to, the state board of pharmacy, the enforcement division of the

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department of taxation, the Ohio casino control commission, and

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the office of the prosecutor.

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(8) "Mobile instrumentality" means an instrumentality that

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is inherently mobile and used in the routine transport of

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persons. "Mobile instrumentality" includes, but is not limited

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to, any vehicle, any watercraft, and any aircraft.

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(9) "Money" has the same meaning as in section 1301.201 of
the Revised Code.
(10) "Offense" means any act or omission that could be

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188
189

charged as a criminal offense or a delinquent act, whether or

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not a formal criminal prosecution or delinquent child proceeding

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 Sub. H. B. No. 347
As Passed by the Senate

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began at the time the forfeiture is initiated. Except as

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otherwise specified, an offense for which property may be

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forfeited includes any felony and any misdemeanor. The

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commission of an "offense" includes the commission of a

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delinquent act.

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(11) "Proceeds" means both of the following:

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(a) In cases involving unlawful goods, services, or

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activities, "proceeds" means any property derived directly or

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indirectly from an offense. "Proceeds" may include, but is not

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limited to, money or any other means of exchange. "Proceeds" is

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not limited to the net gain or profit realized from the offense.

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"Proceeds" does not include property, including money or other

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means of exchange, if all of the following apply to that

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property:

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(i) It is held under clear title by a law enforcement
agency.
(ii) It is used or may be used to purchase contraband for

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207
208

the purpose of investigating any drug abuse offense, as defined

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in section 2925.01 of the Revised Code.

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(iii) If it is used to purchase contraband under division

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(B)(11)(a)(ii) of this section, the property continues to be

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considered the property of the law enforcement agency if the

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agency establishes a clear chain of custody of it.

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(b) In cases involving lawful goods or services that are

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sold or provided in an unlawful manner, "proceeds" means the

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amount of money or other means of exchange acquired through the

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illegal transactions resulting in the forfeiture, less the

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direct costs lawfully incurred in providing the goods or

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services. The lawful costs deduction does not include any part

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 Sub. H. B. No. 347
As Passed by the Senate

Page 9

of the overhead expenses of, or income taxes paid by, the entity

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providing the goods or services. The alleged offender or

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delinquent child has the burden to prove that any costs are

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lawfully incurred.

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(12) "Property" means "property" as defined in section

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2901.01 of the Revised Code and any benefit, privilege, claim,

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position, interest in an enterprise, or right derived, directly

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or indirectly, from the offense.

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(13) "Property subject to forfeiture" includes contraband

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and proceeds and may include instrumentalities as provided in

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this chapter.

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(14) "Prosecutor" has the same meaning as in section

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2935.01 of the Revised Code. When relevant, "prosecutor" also

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includes the attorney general.

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(15) "Vehicle" has the same meaning as in section 4501.01
of the Revised Code.
(16) "Watercraft" has the same meaning as in section
1547.01 of the Revised Code.
(C) The penalties and procedures under Chapters 2923.,

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237
238
239

2925., 2933., and 3772. of the Revised Code remain in effect to

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the extent that they do not conflict with this chapter.

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Sec. 2981.03. (A)(1) The state or political subdivision

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acquires provisional title to property subject to forfeiture

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under this chapter upon a person's commission of an offense

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giving rise to forfeiture, subject to third party claims and a

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final adjudication under section 2981.04 or 2981.05 of the

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Revised Code. Provisional title authorizes the state or

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political subdivision to seize and hold the property, and to act

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to protect the property, under this section before any

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 Sub. H. B. No. 347
As Passed by the Senate

Page 10

proceeding under this chapter. Title to the property vests with

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the state or political subdivision when the trier of fact

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renders a final forfeiture verdict or order under section

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2981.04 or 2981.05 of the Revised Code, but that title is

253

subject to third party claims adjudicated under those sections.

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(2) A Except as otherwise provided in division (A)(3) of

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this section, a law enforcement officer may seize property that

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the officer has probable cause to believe is property subject to

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forfeiture. If a law enforcement officer seizes property that is

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titled or registered under law, the officer or the law

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enforcement agency that employs the officer shall notify the

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property owner of the seizure. The agency shall give notice to

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the property owner at the owner's last known address as soon as

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practical after the seizure and may give the notice by certified

263

mail or orally by any means, including telephone. If the officer

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or agency is unable to provide the notice required by this

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division despite reasonable, good faith efforts, those efforts

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constitute fulfillment of the notice requirement.

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(3) In If a civil forfeiture case under this chapter in

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which the state or political subdivision seeks to seize real

269

property, the property owner may request the prosecutor shall

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file a motion in the appropriate court to request a hearing

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before the seizure, and in shall notify the property owner of

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the motion. The court shall hold the hearing not sooner than

273

twenty-one days after the motion is filed. At the hearing, the

274

court shall grant the motion if the state or political

275

subdivision shall show probable cause demonstrates by a

276

preponderance of the evidence that the real property is subject

277

to forfeiture.

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(4) A person aggrieved by an alleged unlawful seizure of

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 Sub. H. B. No. 347
As Passed by the Senate

Page 11

property may seek relief from the seizure by filing a motion in

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the appropriate court that shows the person's interest in the

281

property, states why the seizure was unlawful, and requests the

282

property's return. If the motion is filed before an indictment,

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information, or a complaint seeking forfeiture of the property

284

is filed, the court shall promptly schedule a hearing on the

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motion, and at not later than twenty-one days after it is filed.

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The court may extend the time for the hearing on the motion by

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consent of the parties or for good cause shown. At the hearing,

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if the property seized is titled or registered under law, the

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person state or political subdivision shall demonstrate by a

290

preponderance of the evidence that the seizure was unlawful

291

lawful and that the person is not entitled to the property. If

292

the property seized is not titled or registered under law, the

293

person shall demonstrate by a preponderance of the evidence that

294

the seizure was unlawful and that the person is entitled to the

295

property. If the motion is filed by a defendant after an

296

indictment, information, or a complaint seeking forfeiture of

297

the property has been filed, the court shall treat the motion as

298

a motion to suppress evidence. If the motion is filed by a third

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party after an indictment, information, or complaint seeking

300

forfeiture of the property has been filed, the court shall treat

301

the motion as a petition of a person with an alleged interest in

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the subject property, pursuant to divisions (E) and (F) of

303

section 2981.04 of the Revised Code.

304

(5)(a) In any action under section 2981.04 or 2981.05 of

305

the Revised Code, if a property owner or third party claims

306

lawful interest in the subject property alleged to be proceeds,

307

the state or political subdivision has provisional title and a

308

right to hold property if it proves both of the following by a

309

preponderance of the evidence:

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 Sub. H. B. No. 347
As Passed by the Senate

(i) The interest in the property was acquired by the

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311

alleged offender or delinquent child during the commission of

312

the offense or within a reasonable time after that period.

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(ii) There is no likely source for the interest in the

314

property other than as proceeds derived from or acquired through

315

the commission of the offense.

316

(b) The In any action under section 2981.04 or 2981.05 of

317

the Revised Code, the alleged offender or delinquent child shall

318

have the burden to prove the amount of any direct costs lawfully

319

incurred.

320

(B)(1) Upon application by the prosecutor who prosecutes

321

or brings an action that allows forfeiture under this chapter,

322

the court in which the action is prosecuted or filed may issue

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an order taking any reasonable action necessary to preserve the

324

reachability of the property including, but not limited to, a

325

restraining order or injunction, an order requiring execution of

326

a satisfactory bond or insurance policy, an order to inspect,

327

photograph, or inventory the property, an order placing a lien

328

or lis pendens against the property, or an order appointing a

329

receiver or trustee. The court may issue an order of this nature

330

at any of the following times:

331

(a) Upon the filing of a complaint, indictment, or

332

information alleging the property to be subject to forfeiture

333

under section 2981.02 of the Revised Code;

334

(b) Prior to the filing of a complaint, an indictment, or

335

information alleging the property to be subject to forfeiture

336

under section 2981.02 of the Revised Code, if, after giving

337

notice to all persons known to have a an interest in the

338

property and giving those persons an opportunity to be heard,

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 Sub. H. B. No. 347
As Passed by the Senate

the court determines that all of the following apply:
(i) There is a substantial probability the state or
political subdivision will prevail on the forfeiture issue.

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340
341
342

(ii) There is a substantial probability that failure to

343

enter the order will result in the property being destroyed,

344

being removed from the court's jurisdiction, or otherwise being

345

made unavailable for forfeiture.

346

(iii) The need to preserve the availability of the

347

property outweighs the hardship on the person against whom the

348

order is to be entered.

349

(c) As a condition of releasing the property based on a

350

determination of substantial hardship under division (D) of this

351

section.

352

(2) Except as otherwise provided in division (B)(3) of

353

this section, the court shall make an order under division (B)

354

(1)(b) of this section effective for not more than ninety days,

355

but the court may extend the order if the prosecutor

356

demonstrates that the need to preserve the reachability of the

357

property still exists or for other good cause shown and shall

358

extend the order if an indictment, information, or a complaint

359

is filed alleging that the property is subject to forfeiture.

360

(3) A court may issue an order under division (B)(1) of

361

this section without giving notice or a hearing to a person

362

known to have a interest in the property if the prosecutor

363

demonstrates that the property is subject to forfeiture and that

364

giving notice and a hearing will jeopardize the availability of

365

the property for forfeiture. Notwithstanding the ninety-day

366

limit described in division (B)(2) of this section, the court

367

shall make an order under division (B)(3) of this section

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 Sub. H. B. No. 347
As Passed by the Senate

Page 14

effective for not more than ten days, but the court may extend

369

the order if the prosecutor again demonstrates that the property

370

is subject to forfeiture and that a hearing will jeopardize the

371

availability of the property or for other good cause shown or if

372

the person subject to the order consents to a longer period. If

373

a party requests a hearing on the order, the court shall hold

374

the hearing at the earliest possible time before the order

375

expires.

376

(4) At any hearing under division (B) of this section, the

377

court may receive and consider evidence and information that is

378

inadmissible under the Rules of Evidence. The court shall cause

379

the hearing to be recorded and shall cause a transcript to be

380

made. If property is to be seized as a result of the hearing,

381

the recording and transcript shall not be a public record for

382

purposes of section 149.43 of the Revised Code until the

383

property is seized. This section does not authorize making

384

available for inspection any confidential law enforcement

385

investigatory record or trial preparation record, as defined in

386

section 149.43 of the Revised Code.

387

(C) Except as otherwise provided in division (E) of this

388

section, any replevin, conversion, or other civil action brought

389

concerning property subject to a criminal or civil forfeiture

390

action under this chapter shall be stayed until the forfeiture

391

action is resolved.

392

(D)(1) A person with an interest in property that is

393

subject to forfeiture and that is seized under this chapter may

394

seek conditional release of the property by requesting

395

possession from the person with custody of the property. The

396

request shall demonstrate how the person meets the requirements

397

specified in divisions (D)(3)(a), (b), and (c) of this section.

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 Sub. H. B. No. 347
As Passed by the Senate

(2) If the person with custody of the property does not

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399

release the property within fifteen days after a person makes a

400

request under division (D)(1) of this section, or within seven

401

days after a person makes the request if the property was seized

402

as a mobile instrumentality or if the request is to copy

403

records, the person who made the request may file a petition for

404

conditional release with the court in which the complaint,

405

indictment, or information is filed or, if no complaint,

406

indictment, or information is filed, the court that issued the

407

seizure warrant for the property. The petition shall demonstrate

408

how the person meets the requirements specified in divisions (D)

409

(3)(a), (b), and (c) of this section and the steps the person

410

has taken to secure release of the property from the official.

411

Unless extended for good cause shown, the petition shall be

412

filed either within thirty days of the filing of a complaint, an

413

indictment, or information in the forfeiture action or, if no

414

complaint, indictment, or information is filed, within thirty

415

days of the issuance of the seizure warrant of the property.

416

If the court finds that the person meets the criteria

417

specified in divisions (D)(3)(a), (b), and (c) of this section,

418

the court shall order the property's conditional return to the

419

person pending completion of the forfeiture action. In issuing

420

this order, the court shall notify the person of the

421

prohibitions against interfering with or diminishing property in

422

section 2981.07 of the Revised Code and may make any order

423

necessary to ensure that the value of the property is

424

maintained.

425

If personal, business, or governmental records are seized,

426

including those contained in computer files, a person may

427

petition the court for a prompt opportunity to copy, at the

428

person's expense, any records that are not contraband. The court

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 Sub. H. B. No. 347
As Passed by the Senate

Page 16

may grant the petition if the person demonstrates how the person

430

meets the requirements specified in divisions (D)(3)(a) and (c)

431

of this section. The court shall order a competent person to

432

supervise the copying.

433

(3) Except when there is probable cause that the property

434

is contraband, property that must be held for a reasonable time

435

as evidence related to an offense, or property that is likely to

436

be used in additional offenses or except when the state or

437

political subdivision meets the burden imposed under division

438

(A)(5) of this section regarding alleged proceeds, a court may

439

conditionally release property subject to forfeiture to a person

440

who demonstrates all of the following:

441

(a) A possessory interest in the property;

442

(b) Sufficient ties to the community to provide assurance

443

that the property will be available at the time of trial;
(c) That failure to conditionally release the property
will cause a substantial hardship to the claimant.
(4) In determining whether a substantial hardship exists,

444
445
446
447

the court shall weigh the claimant's likely hardship from the

448

state's or political subdivision's continued possession of the

449

property against the risk that the property will be destroyed,

450

damaged, lost, concealed, or transferred if returned to the

451

claimant. The court shall consider in favor of release the

452

possibility that withholding the property would prevent a

453

legitimate business from functioning, prevent the claimant's or

454

an innocent person from maintaining employment, or leave the

455

claimant or an innocent person homeless.

456

(5) If the state or political subdivision shows that the
claimant's petition is frivolous, the court shall deny the

457
458

 Sub. H. B. No. 347
As Passed by the Senate

Page 17

petition. Otherwise, the state or political subdivision may

459

respond to the petition by submitting evidence ex parte to avoid

460

disclosing any matter that may adversely affect an ongoing

461

criminal investigation or pending trial.

462

(6) The court shall decide on the petition not more than

463

thirty twenty-one days after it is filed. If the property seized

464

is alleged to be a mobile instrumentality, the court shall

465

decide on the petition as soon as practicable within the thirty-

466

day period not more than ten days after it is filed. If

467

personal, business, or governmental records were seized and a

468

person files a petition to copy the records, the court shall

469

decide on the petition as soon as practicable, but not later

470

than thirty days after it is filed. In any case, the court may

471

extend the time for deciding on the petition by consent of the

472

parties or for good cause shown.

473

(E) Nothing in this section precludes a financial

474

institution that has or purports to have a security interest in

475

or lien on property described in section 2981.02 of the Revised

476

Code from filing an action in connection with the property,

477

prior to its disposition under this chapter, to obtain

478

possession of the property in order to foreclose or otherwise

479

enforce the security interest or lien.

480

If a financial institution commences a civil action or

481

takes any other appropriate legal action to sell the property

482

prior to its seizure or prior to its disposition under this

483

chapter, if the person who is responsible for conducting the

484

sale has actual knowledge of the commencement of a forfeiture

485

action under either section 2981.04 or 2981.05 of the Revised

486

Code, and if the property is sold, then the person shall dispose

487

of the proceeds of the sale in the following order:

488

 Sub. H. B. No. 347
As Passed by the Senate

(1) First, to the payment of the costs of the sale,

Page 18

489

excluding any associated attorney's fees, and to the payment of

490

the costs incurred by law enforcement agencies and financial

491

institutions in connection with the seizure, storage, and

492

maintenance of, and provision of security for, the property;

493

(2) Second, in the order of priority of the security

494

interests and liens, to the payment of valid security interests

495

and liens pertaining to the property that, at the time at which

496

the state or political subdivision gains provisional title, are

497

held by known secured parties and lienholders;

498

(3) Third, to the court that has or would have

499

jurisdiction in a case or proceeding under section 2981.04 or

500

section 2981.05 of the Revised Code for disposition under this

501

chapter.

502

(F) A prosecutor may file a forfeiture action under

503

section 2981.04 or 2981.05 of the Revised Code, or both. If

504

property is seized pursuant to this section and a criminal

505

forfeiture has not begun under section 2981.04 of the Revised

506

Code, the prosecutor of the county in which the seizure occurred

507

shall commence a civil action to forfeit that property under

508

section 2981.05 of the Revised Code, if that section applies.

509

If the property seized includes property alleged to be a

510

mobile instrumentality or includes personal, business, or

511

governmental records, the civil forfeiture action shall be

512

brought within thirty days of seizure. Otherwise, the action

513

shall be brought within sixty days of seizure. In either case,

514

the period within which the action shall be brought may be

515

extended by agreement of the parties or by the court for good

516

cause shown.

517

 Sub. H. B. No. 347
As Passed by the Senate

A prosecutor may file an appropriate charging instrument

Page 19

518

under section 2981.04 of the Revised Code to seek a criminal

519

forfeiture after a civil forfeiture action begins. Filing a

520

charging instrument for an offense that is also the basis of a

521

civil forfeiture action shall stay the civil forfeiture action.

522

A civil action to obtain civil forfeiture may be commenced

523

as described in section 2981.05 of the Revised Code regardless

524

of whether the offender or delinquent child has pleaded guilty

525

to, been convicted of, or been adjudicated a delinquent child

526

for the act that is the basis of the order.

527

(G) The prosecutor shall maintain an accurate record of

528

each item disposed of under section 2981.04 or 2981.05 of the

529

Revised Code. The record shall not identify or enable the

530

identification of the officer who seized the property. The

531

record is a public record open for inspection under section

532

149.43 of the Revised Code.

533

Sec. 2981.04. (A)(1) Property described in division (A) of

534

section 2981.02 of the Revised Code may be forfeited under this

535

section only if the defendant is convicted of, or enters

536

intervention in lieu of conviction for, an offense or the

537

juvenile is adjudicated a delinquent child for committing an act

538

that would be an offense if committed by an adult and the

539

complaint, indictment, or information charging the offense or

540

municipal violation, or the complaint charging the delinquent

541

act, contains a specification of the type described in section

542

2941.1417 of the Revised Code that sets forth all of the

543

following to the extent it is reasonably known at the time of

544

the filing:

545

(a) The nature and extent of the alleged offender's or
delinquent child's interest in the property;

546
547

 Sub. H. B. No. 347
As Passed by the Senate

Page 20

(b) A description of the property;

548

(c) If the property is alleged to be an instrumentality,

549

the alleged use or intended use of the property in the

550

commission or facilitation of the offense.

551

(2) If any property is not reasonably foreseen to be

552

subject to forfeiture at the time of filing the indictment,

553

information, or complaint, the trier of fact still may return a

554

verdict of forfeiture concerning that property in the hearing

555

described in division (B) of this section if the prosecutor,

556

upon discovering the property to be subject to forfeiture, gave

557

prompt notice of this fact to the alleged offender or delinquent

558

child under Criminal Rule 7(E) or Juvenile Rule 10(B).

559

(3) For good cause shown, the court may consider issues of

560

the guilt of the alleged offender or the delinquency of the

561

alleged delinquent child separate from whether property

562

specified as subject to forfeiture should be forfeited.

563

(B) If a person pleads guilty to or is convicted of, or

564

enters intervention in lieu of conviction for, an offense or is

565

adjudicated a delinquent child for committing a delinquent act

566

and the complaint, indictment, or information charging the

567

offense or act contains a specification covering property

568

subject to forfeiture under section 2981.02 of the Revised Code,

569

the trier of fact shall determine whether the person's property

570

shall be forfeited. If the state or political subdivision proves

571

by a preponderance of the clear and convincing evidence that the

572

property is in whole or part subject to forfeiture under section

573

2981.02 of the Revised Code, after a proportionality review

574

under section 2981.09 of the Revised Code when relevant, the

575

trier of fact shall return a verdict of forfeiture that

576

specifically describes the extent of the property subject to

577

 Sub. H. B. No. 347
As Passed by the Senate

Page 21

forfeiture. If the trier of fact is a jury, on the offender's or

578

delinquent child's motion, the court shall make the

579

determination of whether the property shall be forfeited.

580

(C) If the court enters a verdict of forfeiture under this

581

section, the court imposing sentence or disposition, in addition

582

to any other sentence authorized by section 2951.041 or Chapter

583

2929. of the Revised Code or any disposition authorized by

584

Chapter 2152. of the Revised Code, shall order that the offender

585

or delinquent child forfeit to the state or political

586

subdivision the offender's or delinquent child's interest in the

587

property. The property vests with the state or political

588

subdivision subject to the claims of third parties. The court

589

may issue any additional order to affect the forfeiture,

590

including, but not limited to, an order under section 2981.06 of

591

the Revised Code.

592

(D) After the entry of a forfeiture order under this

593

section, the prosecutor shall attempt to identify any person

594

with an interest in the property subject to forfeiture by

595

searching appropriate public records and making reasonably

596

diligent inquiries. The prosecutor shall give notice of the

597

forfeiture that remains subject to the claims of third parties

598

and proposed disposal of the forfeited property to any person

599

known to have an interest in the property. The prosecutor also

600

shall publish notice of the forfeiture that remains subject to

601

the claims of third parties and proposed disposal of the

602

forfeited property once each week for two consecutive weeks in a

603

newspaper of general circulation in the county in which the

604

property was seized.

605

(E)(1) Any person, other than the offender or delinquent
child whose conviction or plea of guilty or delinquency

606
607

 Sub. H. B. No. 347
As Passed by the Senate

Page 22

adjudication is the basis of the forfeiture order, who asserts a

608

legal interest in the property that is the subject of the order

609

may petition the court that issued the order for a hearing under

610

division (E)(3) of this section to adjudicate the validity of

611

the person's alleged interest in the property. All of the

612

following apply to the petition:

613

(a) It shall be filed within thirty days after the final

614

publication of notice or the person's receipt of notice under

615

division (D) of this section.

616

(b) It shall be signed by the petitioner under the

617

penalties for falsification specified in section 2921.13 of the

618

Revised Code.

619

(c) It shall describe the nature and extent of the

620

petitioner's interest in the property, the time and

621

circumstances of the petitioner's acquisition of that interest,

622

any additional facts supporting the petitioner's claim, and the

623

relief sought.

624

(d) It shall state that one of the following conditions
applies to the petitioner:
(i) The petitioner has a legal interest in the property

625
626
627

that is subject to the forfeiture order that renders the order

628

completely or partially invalid because the legal interest in

629

the property was vested in the petitioner, rather than the

630

offender or delinquent child whose conviction or plea of guilty

631

or delinquency adjudication is the basis of the order, or was

632

superior to any interest of that offender or delinquent child,

633

at the time of the commission of the offense or delinquent act

634

that is the basis of the order.

635

(ii) The petitioner is a bona fide purchaser for value of

636

 Sub. H. B. No. 347
As Passed by the Senate

Page 23

the interest in the property that is subject to the forfeiture

637

order and was, at the time of the purchase, reasonably without

638

cause to believe that it was subject to forfeiture.

639

(2)(a) In lieu of filing a petition as described in

640

division (E)(1) of this section, a person, other than the

641

offender or delinquent child whose conviction or plea of guilty

642

or delinquency adjudication is the basis of the forfeiture

643

order, may file an affidavit as described in this division to

644

establish the validity of the alleged right, title, or interest

645

in the property that is the subject of the forfeiture order if

646

the person is a secured party or other lienholder of record that

647

asserts a legal interest in the property, including, but not

648

limited to, a mortgage, security interest, or other type of

649

lien. The affidavit shall contain averments that the secured

650

party or other lienholder acquired its alleged right, title, or

651

interest in the property in the regular course of its business,

652

for a specified valuable consideration, without actual knowledge

653

of any facts pertaining to the offense that was the basis of the

654

forfeiture order, in good faith, and without the intent to

655

prevent or otherwise impede the state or political subdivision

656

from seizing or obtaining a forfeiture of the property. The

657

person shall file the affidavit within thirty days after the

658

earlier of the final publication of notice or the receipt of

659

notice under division (D) of this section.

660

(b) Except as otherwise provided in this section, the

661

affidavit shall constitute prima-facie evidence of the validity

662

of the affiant's alleged interest in the property.

663

(c) Unless the prosecutor files a motion challenging the

664

affidavit within ten days after its filing and unless the

665

prosecutor establishes by a preponderance of the clear and

666

 Sub. H. B. No. 347
As Passed by the Senate

Page 24

convincing evidence at the hearing held under division (E)(3) of

667

this section that the affiant does not possess the alleged

668

interest in the property or that the affiant had actual

669

knowledge of facts pertaining to the offense or delinquent act

670

that was the basis of the forfeiture order, the affidavit shall

671

constitute conclusive evidence of the validity of the affiant's

672

interest in the property.

673

(d) Any subsequent purchaser or other transferee of

674

property pursuant to forfeiture under this section shall take

675

the property subject to the continued validity of the interest

676

of the affiant.

677

(3) Upon receipt of a petition or affidavit filed under

678

division (E)(1) or (2) of this section, the court shall hold a

679

hearing to determine the validity of the petitioner's interest

680

in the property that is the subject of the forfeiture order or,

681

if the affidavit was challenged, to determine the validity of

682

the affiant's interest in the property. To the extent

683

practicable and consistent with the interests of justice, the

684

court shall hold the hearing within thirty days after the filing

685

of the petition or within thirty days after the prosecutor files

686

the motion challenging the affidavit. The court may consolidate

687

the hearing with a hearing on any other petition or affidavit

688

that is filed by a person other than the offender or delinquent

689

child whose conviction or plea of guilty or delinquency

690

adjudication is the basis of the forfeiture order and that

691

relates to the property that is the subject of the forfeiture

692

order.

693

At the hearing, the petitioner or affiant may testify,

694

present evidence and witnesses on the petitioner's or affiant's

695

behalf, and cross-examine witnesses for the state or political

696

 Sub. H. B. No. 347
As Passed by the Senate

Page 25

subdivision. In regards to a petition, the state or political

697

subdivision may present evidence and witnesses in rebuttal and

698

in defense of its claim to the property and may cross-examine

699

witnesses for the petitioner. In regards to an affidavit, the

700

prosecutor may present evidence and witnesses and cross-examine

701

witnesses for the affiant.

702

In addition to the evidence and testimony presented at the

703

hearing, the court also shall consider the relevant portions of

704

the record in the criminal or delinquent child case that

705

resulted in the forfeiture order.

706

(F)(1) If the hearing involves a petition, the court shall

707

amend its forfeiture order if it determines at the hearing held

708

pursuant to division (E)(3) of this section that the petitioner

709

has established either of the following by a preponderance of

710

the evidence:

711

(a) The petitioner has a legal interest in the property

712

that is subject to the forfeiture order that renders the order

713

completely or partially invalid because the legal interest in

714

the property was vested in the petitioner, rather than the

715

offender or delinquent child whose conviction or plea of guilty

716

or delinquency adjudication is the basis of the order, or was

717

superior to any interest of that offender or delinquent child,

718

at the time of the commission of the offense or delinquent act

719

that is the basis of the order.

720

(b) The petitioner is a bona fide purchaser for value of

721

the interest in the property that is subject to the forfeiture

722

order and was, at the time of the purchase, reasonably without

723

cause to believe that it was subject that the applicable

724

condition alleged by the petitioner under division (E)(1)(d) of

725

this section applies to forfeiture the petitioner.

726

 Sub. H. B. No. 347
As Passed by the Senate

(2) The court also shall amend its forfeiture order to

Page 26

727

reflect any interest of a secured party or other lienholder of

728

record in the property subject to forfeiture who prevails at a

729

hearing on the petition or affidavit filed pursuant to division

730

(E)(1) or (2) of this section.

731

(G) If the court disposes of all petitions or affidavits

732

timely filed under this section in favor of the state or

733

political subdivision, the state or political subdivision shall

734

have clear title to the property that is the subject of a

735

forfeiture order issued under this section, but only to the

736

extent that other parties' lawful interests in the property are

737

not infringed. To the extent that the state or political

738

subdivision has clear title to the property, the state or

739

political subdivision may warrant good title to any subsequent

740

purchaser or other transferee.

741

Sec. 2981.05. (A) The prosecutor of the political

742

subdivision in which After the seizure of property described in

743

division (A) of section 2981.02 of the Revised Code and not

744

sooner than three months after the property owner is deceased as

745

described in division (A)(1)(a) of this section, not sooner than

746

three months after the property owner has not claimed, or

747

asserted any interest in, the property as described in division

748

(A)(2) of this section, or not sooner than one year after

749

division (A)(1)(b)(i) or (ii) of this section applies, the

750

prosecutor of the political subdivision in which the property is

751

located may commence a civil forfeiture action under this

752

section by filing in the court of common pleas of the county in

753

which the property is located a complaint requesting an order

754

that forfeits the property to the state or a political

755

subdivision. A complaint for civil forfeiture may only be filed

756

under this division if the property was seized with probable

757

 Sub. H. B. No. 347
As Passed by the Senate

Page 27

cause that it was involved in the commission of a felony or a

758

gambling offense or was directly or indirectly obtained through

759

the commission of a felony or a gambling offense and either of

760

the following applies:

761

(1) The property owner is unavailable to the court for one
of the following reasons:

762
763

(a) The property owner is deceased.

764

(b) An indictment for a felony or a charge for a gambling

765

offense has been filed against the property owner, a warrant was

766

issued for the arrest of the property owner, and either of the

767

following applies:

768

(i) The property owner is outside the state and unable to

769

be extradited or brought back to the state for prosecution for

770

the felony or gambling offense.

771

(ii) Reasonable efforts have been made by law enforcement

772

authorities to locate and arrest the property owner, but the

773

property owner has not been located.

774

(2) The property owner has not claimed the property

775

subject to forfeiture or asserted any interest in the property

776

at any time during or after its seizure, verbally or in writing,

777

and all claims brought under division (A)(4) of section 2981.03

778

of the Revised Code have been denied.

779

(B)(1) The filing of a complaint for civil forfeiture

780

under division (A) of this section shall be consistent with

781

division (F) of section 2981.03 of the Revised Code. The

782

complaint shall state all of the following:

783

(a) The facts that support the state's or political
subdivision's allegations in the complaint;

784
785

 Sub. H. B. No. 347
As Passed by the Senate

(b) The alleged felony or gambling offense that subjects

Page 28

786

the property to forfeiture under division (A) of section 2981.02

787

of the Revised Code.

788

(2) If the property owner is unavailable to the court

789

because the property owner is deceased as provided in division

790

(A)(1)(a) of this section, the complaint shall include a

791

certified copy of the death certificate of the property owner.

792

(C) Simultaneously with or after the filing of a

793

complaint, indictment, or information charging an offense or a

794

complaint charging a delinquent act, the prosecutor may commence

795

a civil forfeiture action by filing in the court in which the

796

applicable complaint, indictment, or information is filed a

797

complaint requesting an order that forfeits to the state or

798

political subdivision any property that is involved in the

799

offense or delinquent act and is subject to forfeiture under

800

section 2981.02 of the Revised Code. The civil forfeiture action

801

filed under this division shall be stayed during the pendency of

802

the applicable criminal or delinquency proceedings. That civil

803

forfeiture action shall proceed after the defendant is convicted

804

of, or enters intervention in lieu of conviction for, the

805

offense involved or the juvenile is adjudicated a delinquent

806

child for the delinquent act involved.

807

(D)(1) Subject to division (D)(7) of this section, the

808

state may file a civil forfeiture action, in the form of a civil

809

action, against any person who is alleged to have received,

810

retained, possessed, or disposed of proceeds, in an amount

811

exceeding fifteen thousand dollars, knowing or having reasonable

812

cause to believe that the proceeds were allegedly derived from

813

the commission of an offense subject to forfeiture proceedings

814

in violation of section 2927.21 of the Revised Code. The

815

 Sub. H. B. No. 347
As Passed by the Senate

Page 29

complaint shall be filed in the court of common pleas of the

816

county in which the proceeds were alleged to have been received,

817

retained, possessed, or disposed of by the person. The complaint

818

shall specify all of the following:

819

(a) That the person against whom the complaint is filed is

820

alleged to have received, retained, possessed, or disposed of

821

proceeds, in an amount exceeding fifteen thousand dollars,

822

knowing or having reasonable cause to believe that the proceeds

823

were allegedly derived from the commission of an offense subject

824

to forfeiture proceedings in violation of section 2927.21 of the

825

Revised Code;

826

(b) That the state has the right to recover the proceeds
described in division (D)(1)(a) of this section;
(c) The actual amount of the proceeds described in
division (D)(1)(a) of this section.
(2) Subject to division (D)(7) of this section, a civil

827
828
829
830
831

action filed under division (D)(1) of this section shall be

832

stayed if a criminal complaint, indictment, or information is

833

filed against the person who is alleged to have received,

834

retained, possessed, or disposed of proceeds, in an amount

835

exceeding fifteen thousand dollars, knowing or having reasonable

836

cause to believe that the proceeds were derived from the

837

commission of an offense subject to forfeiture proceedings in

838

violation of section 2927.21 of the Revised Code.

839

(3) In a civil action filed under division (D)(1) of this

840

section, the state has the burden to prove by clear and

841

convincing evidence all of the following:

842

(a) That the person received, retained, possessed, or
disposed of the proceeds involved;

843
844

 Sub. H. B. No. 347
As Passed by the Senate

(b) That the person knew or had reasonable cause to

Page 30

845

believe that the proceeds were derived from the alleged

846

commission of an offense subject to forfeiture proceedings in

847

violation of section 2927.21 of the Revised Code;

848

(c) Subject to division (D)(7) of this section, the actual

849

amount of the proceeds received, retained, possessed, or

850

disposed of by the person that exceeds fifteen thousand dollars.

851

(4) Any statements made in a civil action under division

852

(D)(1) of this section are inadmissible as evidence in a

853

criminal action brought against the person involved for a

854

violation of section 2927.21 of the Revised Code, except for

855

purposes of impeachment.

856

(5) Subject to division (D)(7) of this section, a civil

857

action under division (D)(1) of this section shall be commenced

858

within two years after the latest date on which a person

859

allegedly received, retained, possessed, or disposed of

860

proceeds, in an amount exceeding fifteen thousand dollars,

861

knowing or having reasonable cause to believe that the proceeds

862

were allegedly derived from the commission of an offense subject

863

to forfeiture proceedings in violation of section 2927.21 of the

864

Revised Code.

865

(6) The court shall complete the trial of the civil action

866

under division (D)(1) of this section within one year after the

867

action is commenced unless the parties to the action mutually

868

agree to extend the one-year period or the extension of that

869

period is for good cause shown.

870

(7) The amount of fifteen thousand dollars specified in

871

divisions (D)(1), (2), (3)(c), and (5) of this section shall be

872

increased on the first day of the following January, starting on

873

 Sub. H. B. No. 347
As Passed by the Senate

Page 31

January 1, 2018, by the rate of inflation for the twelve-month

874

period ending in September of the prior year according to the

875

consumer price index or its successor index.

876

(E) For purposes of this section, there is a rebuttable

877

presumption that the person in possession of the property at the

878

time of its seizure is considered to be the owner of the

879

property unless legal title to the property states otherwise.

880

(B) (F) Prior to or upon the commencement of a civil

881

forfeiture action under this section, the prosecutor shall

882

attempt to identify any person with an interest in the property

883

subject to forfeiture by searching appropriate public records

884

and making reasonably diligent inquiries. The At the time of

885

filing the complaint, the prosecutor shall give notice of the

886

commencement of the civil action, together with a copy of the

887

complaint, to each person who is reasonably known to have any

888

interest in the property, by certified mail, return receipt

889

requested, or by personal service. The prosecutor shall cause a

890

similar notice to be published once each week for the two

891

consecutive weeks immediately after the filing of the complaint

892

in a newspaper of general circulation in the county in which the

893

property is located. The published notice shall contain the date

894

and location of the seizure of the property and an itemized list

895

of the property seized that is sought to be forfeited in the

896

complaint.

897

(C) (G) A person with an interest in the property subject

898

to forfeiture may petition the court to release the property

899

pursuant to division (D) of section 2981.03 of the Revised Code.

900

The court shall consider the petition as provided in that

901

section. If a timely petition for pretrial hardship release is

902

not filed, or if a petition is filed but not granted, the person

903

 Sub. H. B. No. 347
As Passed by the Senate

Page 32

may file a claim for the release of the property under the Rules

904

of Civil Procedure. The court shall dispose of any petitions

905

timely filed under this division.

906

(D) (H) The court shall issue a civil forfeiture order if

907

it determines that the prosecutor has proved by a preponderance

908

of the clear and convincing evidence that the property is

909

subject to forfeiture under section 2981.02 of the Revised Code,

910

and, after a proportionality review under section 2981.09 of the

911

Revised Code when relevant, the trier of fact specifically

912

describes the extent of the property to be forfeited. A civil

913

forfeiture order shall state that all interest in the property

914

in question of the property owner who committed the felony or

915

gambling offense if division (A) of this section applies, of the

916

adult or juvenile who committed the act if division (C) of this

917

section applies, or of the person who is alleged to have

918

received, retained, possessed, or disposed of proceeds if

919

division (D) of this section applies that is the basis of the

920

order is forfeited to the state or political subdivision and

921

shall make due provision for the interest in that property of

922

any other person, when appropriate under this section. The court

923

may issue any additional order to affect the forfeiture,

924

including, but not limited to, one or more orders under section

925

2981.06 of the Revised Code.

926

(E) (I) If the court disposes of all petitions timely

927

filed under this section in favor of the state or political

928

subdivision, the state or political subdivision shall have clear

929

title to the property that is the subject of a forfeiture order

930

under this section, but only to the extent that other parties'

931

lawful interests in the property are not infringed. To the

932

extent that the state or political subdivision has clear title

933

to the property, the state or political subdivision may warrant

934

 Sub. H. B. No. 347
As Passed by the Senate

good title to any subsequent purchaser or other transferee.

Page 33

935

(J) As used in this section:

936

(1) "Gambling offense" has the same meaning as in section

937

2915.01 of the Revised Code;
(2) "Offense subject to forfeiture proceedings" has the
same meaning as in section 2927.21 of the Revised Code.
Sec. 2981.06. (A) Upon the entry of a forfeiture order

938
939
940
941

under section 2981.04 or 2981.05 of the Revised Code, if

942

necessary, the court shall order an appropriate law enforcement

943

officer to seize the forfeited property on conditions that the

944

court considers proper. If necessary, the court shall order the

945

person in possession of the property to deliver the property by

946

a specific date to the law enforcement agency involved in the

947

initial seizure of the property. The court shall deliver the

948

order by personal service or certified mail.

949

(B) With respect to property that is the subject of a

950

forfeiture order issued under section 2981.04 or 2981.05 of the

951

Revised Code, the court that issued the order, upon petition of

952

the prosecutor who prosecuted the underlying offense or act or

953

brought the civil forfeiture action, may do any of the

954

following:

955

(1) Enter any appropriate restraining orders or

956

injunctions; require execution of satisfactory performance

957

bonds; appoint receivers, conservators, appraisers, accountants,

958

or trustees; or take any other action necessary to safeguard and

959

maintain the forfeited property;

960

(2) Authorize the payment of rewards to persons who

961

provide information resulting in forfeiture of the property

962

under this chapter from funds provided under division (F) of

963

 Sub. H. B. No. 347
As Passed by the Senate

section 2981.12 of the Revised Code;

Page 34

964

(3) Authorize the prosecutor to settle claims;

965

(4) Restore forfeited property to victims and grant

966

petitions for mitigation or remission of forfeiture;

967

(5) Authorize a stay of the forfeiture order pending

968

appeal or resolution of any claim to the property if requested

969

by a person other than the defendant or a person acting in

970

concert with, or on behalf of, the defendant.

971

(C) To facilitate the identification and location of

972

property that is the subject of a forfeiture order and to

973

facilitate the disposition of petitions for remission or

974

mitigation issued under this section, after the issuance of a

975

forfeiture order and upon application by the prosecutor, the

976

court, consistent with the Civil Rules, may order that the

977

testimony of any witness relating to the forfeited property be

978

taken by deposition and that any designated material that is not

979

privileged be produced at the same time and place as the

980

testimony.

981

(D)(1) The court shall order forfeiture of any other

982

property of the offender or delinquent child up to the value of

983

the unreachable property if the state or political subdivision

984

demonstrates by clear and convincing evidence that any of the

985

following describe any property subject to a forfeiture order

986

under section 2981.04 or 2981.05 of the Revised Code:

987

(1) (a) It cannot be located through due diligence.

988

(2) (b) It has been transferred, sold, or deposited with a

989

an innocent or bona-fide third party.
(3) (c) It has been placed beyond the jurisdiction of the

990
991

 Sub. H. B. No. 347
As Passed by the Senate

court.

Page 35

992

(4) (d) It has been substantially diminished in value or

993

has been commingled with other property and cannot be divided

994

without difficulty or undue injury to innocent persons.

995

(2) If property that is subject to a forfeiture order

996

under section 2981.04 or 2981.05 of the Revised Code has been

997

transferred, sold, or deposited with a third party, the court

998

shall order forfeiture of the transferred, sold, or deposited

999

property instead of ordering the forfeiture of other property

1000

under division (D)(1) of this section if the state or political

1001

subdivision demonstrates by clear and convincing evidence that

1002

the transferred, sold, or deposited property was transferred,

1003

sold, or deposited in violation of section 2981.07 of the

1004

Revised Code.

1005

(3) The requirements of divisions (D), (E), and (F) of

1006

section 2981.04 of the Revised Code or the requirements of

1007

divisions (F) and (G) of section 2981.05 of the Revised Code,

1008

whichever are applicable, apply to property forfeited under

1009

division (D)(1) or (2) of this section.

1010

(E) After the state or political subdivision is granted

1011

clear title under section 2981.04 or 2981.05 of the Revised

1012

Code, the prosecutor shall direct disposition of the property

1013

pursuant to this chapter, making due provisions for the rights

1014

of innocent persons.

1015

(F) Any interest in property not exercisable by, or

1016

transferable for value to, the state or political subdivision

1017

shall expire and shall not revert to the offender or delinquent

1018

child who forfeited the property. The offender or delinquent

1019

child is not eligible to purchase the property at a sale under

1020

 Sub. H. B. No. 347
As Passed by the Senate

this chapter.

Page 36

1021

(G) Any income accruing to or derived from forfeited

1022

property may be used to offset ordinary and necessary expenses

1023

related to the property that are required by law or necessary to

1024

protect the interest of the state, political subdivision, or

1025

third parties.

1026

Sec. 2981.09. (A) Property may not be forfeited as an

1027

instrumentality under this chapter to the extent that the amount

1028

or value of the property is disproportionate to the severity of

1029

the offense. The owner of the property state or political

1030

subdivision shall have the burden of going forward with the

1031

evidence and the burden to prove by a preponderance of the clear

1032

and convincing evidence that the amount or value of the property

1033

subject to forfeiture is disproportionate proportionate to the

1034

severity of the offense.

1035

(B) Contraband and any proceeds obtained from the offense

1036

are not subject to proportionality review under this section.

1037

(C) In determining the severity of the offense for

1038

purposes of forfeiture of an instrumentality, the court shall

1039

consider all relevant factors including, but not limited to, the

1040

following:

1041

(1) The seriousness of the offense and its impact on the

1042

community, including the duration of the activity and the harm

1043

caused or intended by the person whose property is subject to

1044

forfeiture;

1045

(2) The extent to which the person whose property is
subject to forfeiture participated in the offense;
(3) Whether the offense was completed or attempted;

1046
1047
1048

 Sub. H. B. No. 347
As Passed by the Senate

(4) The extent to which the property was used in
committing the offense;
(5) The sentence imposed for committing the offense that
is the basis of the forfeiture, if applicable.

Page 37

1049
1050
1051
1052

(D) In determining the value of the property that is an

1053

instrumentality and that is subject to forfeiture, the court

1054

shall consider relevant factors including, but not limited to,

1055

the following:

1056

(1) The fair market value of the property;

1057

(2) The value of the property to the person whose property

1058

is subject to forfeiture, including hardship to the person or to

1059

innocent persons if the property were forfeited. The burden

1060

shall be on the person whose property is subject to forfeiture

1061

to show the value of the property to that person and any

1062

hardship to that person.

1063

Sec. 2981.11. (A)(1) Any property that has been lost,

1064

abandoned, stolen, seized pursuant to a search warrant, or

1065

otherwise lawfully seized or forfeited and that is in the

1066

custody of a law enforcement agency shall be kept safely by the

1067

agency, pending the time it no longer is needed as evidence or

1068

for another lawful purpose, and shall be disposed of pursuant to

1069

sections 2981.12 and 2981.13 of the Revised Code.

1070

(2) This chapter does not apply to the custody and
disposal of any of the following:

1071
1072

(a) Vehicles subject to forfeiture under Title XLV of the

1073

Revised Code, except as provided in division (A)(6) of section

1074

2981.12 of the Revised Code;

1075

(b) Abandoned junk motor vehicles or other property of

1076

 Sub. H. B. No. 347
As Passed by the Senate

negligible value;
(c) Property held by a department of rehabilitation and

Page 38

1077
1078

correction institution that is unclaimed, that does not have an

1079

identified owner, that the owner agrees to dispose of, or that

1080

is identified by the department as having little value;

1081

(d) Animals taken, and devices used in unlawfully taking
animals, under section 1531.20 of the Revised Code;
(e) Controlled substances sold by a peace officer in the

1082
1083
1084

performance of the officer's official duties under section

1085

3719.141 of the Revised Code;

1086

(f) Property recovered by a township law enforcement
agency under sections 505.105 to 505.109 of the Revised Code;
(g) Property held and disposed of under an ordinance of

1087
1088
1089

the municipal corporation or under sections 737.29 to 737.33 of

1090

the Revised Code, except that a municipal corporation that has

1091

received notice of a citizens' reward program as provided in

1092

division (F) of section 2981.12 of the Revised Code and disposes

1093

of property under an ordinance shall pay twenty-five per cent of

1094

any moneys acquired from any sale or auction to the citizens'

1095

reward program.

1096

(B)(1) Each law enforcement agency that has custody of any

1097

property that is subject to this section shall adopt and comply

1098

with a written internal control policy that does all of the

1099

following:

1100

(a) Provides for keeping detailed records as to the amount

1101

of property acquired by the agency and the date property was

1102

acquired;

1103

(b) Provides for keeping detailed records of the

1104

 Sub. H. B. No. 347
As Passed by the Senate

Page 39

disposition of the property, which shall include, but not be

1105

limited to, both of the following:

1106

(i) The manner in which it was disposed, the date of

1107

disposition, detailed financial records concerning any property

1108

sold, and the name of any person who received the property. The

1109

record shall not identify or enable identification of the

1110

individual officer who seized any item of property.

1111

(ii) The general types An itemized list of the specific

1112

expenditures made with amounts that are gained from the sale of

1113

the property and that are retained by the agency, including the

1114

specific amount expended on each general type of expenditure,

1115

except that the policy shall not provide for or permit the

1116

identification of any specific expenditure that is made in an

1117

ongoing investigation.

1118

(c) Complies with section 2981.13 of the Revised Code if

1119

the agency has a law enforcement trust fund or similar fund

1120

created under that section.

1121

(2) The records kept under the internal control policy

1122

shall be open to public inspection during the agency's regular

1123

business hours. The policy adopted under this section is a

1124

public record open for inspection under section 149.43 of the

1125

Revised Code.

1126

(C) A law enforcement agency with custody of property to

1127

be disposed of under section 2981.12 or 2981.13 of the Revised

1128

Code shall make a reasonable effort to locate persons entitled

1129

to possession of the property, to notify them of when and where

1130

it may be claimed, and to return the property to them at the

1131

earliest possible time. In the absence of evidence identifying

1132

persons entitled to possession, it is sufficient notice to

1133

 Sub. H. B. No. 347
As Passed by the Senate

Page 40

advertise in a newspaper of general circulation in the county

1134

and to briefly describe the nature of the property in custody

1135

and inviting persons to view and establish their right to it.

1136

(D) As used in sections 2981.11 to 2981.13 of the Revised
Code:

1137
1138

(1) "Citizens' reward program" has the same meaning as in
section 9.92 of the Revised Code.
(2) "Law enforcement agency" includes correctional
institutions.
(3) "Township law enforcement agency" means an organized

1139
1140
1141
1142
1143

police department of a township, a township police district, a

1144

joint police district, or the office of a township constable.

1145

Sec. 2981.14. (A) Nothing Subject to division (B) of this

1146

section, nothing in this chapter precludes the head of a law

1147

enforcement agency that seizes property from seeking forfeiture

1148

under federal law. If the property is forfeitable under this

1149

chapter and federal forfeiture is not sought, the property is

1150

subject only to this chapter.

1151

(B) A law enforcement agency or prosecuting authority

1152

shall not directly or indirectly transfer or refer any property

1153

seized by the agency or authority to any federal law enforcement

1154

authority or other federal agency for purposes of forfeiture

1155

under federal law unless the value of the seized property

1156

exceeds one hundred thousand dollars, excluding the potential

1157

value of the sale of contraband, or the property is being

1158

transferred or referred for federal criminal forfeiture

1159

proceedings.

1160

(C) Any law enforcement agency that receives moneys from a
sale of forfeited property under federal law shall deposit, use,

1161
1162

 Sub. H. B. No. 347
As Passed by the Senate

Page 41

and account for the amounts, including any interest derived, in

1163

accordance with applicable federal law. If the state highway

1164

patrol or the investigative unit of the department of public

1165

safety receives such federal forfeiture moneys, the appropriate

1166

official shall deposit all interest or other earnings derived

1167

from the investment of the moneys into the highway patrol

1168

treasury contraband fund, the highway patrol justice contraband

1169

fund, the investigative unit treasury contraband fund, or the

1170

investigative unit justice contraband fund, whichever is

1171

appropriate.

1172

(C) (D) There is hereby created in the state treasury the

1173

highway patrol treasury contraband fund, the highway patrol

1174

justice contraband fund, the investigative unit treasury

1175

contraband fund, and the investigative unit justice contraband

1176

fund. Each fund shall consist of moneys received under division

1177

(B) (C) of this section and shall be used in accordance with any

1178

federal or other requirements associated with moneys received.

1179

Section 2. That existing sections 2329.84, 2329.85,

1180

2329.86, 2981.01, 2981.03, 2981.04, 2981.05, 2981.06, 2981.09,

1181

2981.11, and 2981.14 of the Revised Code are hereby repealed.

1182