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LRB-2167/1
CMH&MLJ:kjf&wlj
2017 - 2018 LEGISLATURE
March 2, 2017 - Introduced by Representatives Tauchen, Jarchow, Kessler,
Kooyenga, Sanfelippo, Sargent, Riemer, Brostoff, Kuglitsch, Quinn,
Knodl, Bowen, Kremer, Schraa, Sinicki, Wichgers, Mason, Gannon,
Skowronski and Ripp, cosponsored by Senators Craig, Nass, Wirch, Tiffany,
Kapenga, Stroebel and Lasee. Referred to Committee on State Affairs.
AB122,1,12 1An Act to repeal 961.55 (1) (d) 1., 961.55 (1) (d) 2., 961.55 (1) (d) 3., 961.55 (1)
2(d) 4., 961.55 (5) (a), 961.55 (5) (e) 1., 961.55 (5) (e) 2., 973.075 (1) (b) 2m. and
3973.075 (5m); to renumber 973.075 (1) (b) 1m. a. to h.; to renumber and
4amend
961.55 (1) (d) (intro.), 961.55 (5) (e) (intro.) and 973.075 (1) (b) 1m.
5(intro.); to amend 29.934 (1) (d), 961.55 (1) (intro.), 961.55 (3) (intro.), 961.55
6(5) (b), 961.555 (1), 961.555 (2) (a), 961.555 (3), 973.075 (1) (intro.), 973.075 (1)
7(bg), 973.075 (1) (bm), 973.075 (1) (d), 973.075 (1) (e), 973.075 (4), 973.075 (5)
8(intro.), 973.076 (1) (a), 973.076 (1) (b) 1. and 973.076 (3); and to create 961.55
9(1g), 961.55 (1k), 961.55 (1m), 961.55 (1r), 961.555 (2) (am), 961.555 (3m),
10961.555 (5), 961.555 (6), 973.075 (1g), 973.075 (1k), 973.075 (1m), 973.075 (1r),
11973.075 (5r), 973.076 (1) (b) 1m., 973.076 (3m), 973.076 (5) and 973.076 (6) of
12the statutes; relating to: forfeiture of property seized in relation to a crime.
Analysis by the Legislative Reference Bureau
This bill changes the procedure for forfeiture of property after it has been seized
in relation to a crime. Under current law, the state or a local law enforcement agency

may acquire certain property involved in the commission of a crime or seized in
relation to a criminal investigation through a forfeiture proceeding. The forfeiture
law applies to all property directly or indirectly derived from or used for the
commission of a crime. This bill allows property to be subject to forfeiture only after
a person has been convicted of the crime related to the forfeiture action and only if
a court finds that the property seized is proportional to the crime committed. If the
person is acquitted or the charges against the person are dropped, the court must
order that his or her property be returned within 30 days. The bill requires seized
property to be returned to innocent owners of the property unless the owners were
involved with or knowledgeable about the crime related to his or her property.
Further, the bill allows the court, upon petition by a person whose property was
seized but not yet forfeited, to return the property to the person under certain
circumstances. Under the bill, the person may not sell, give away, or burden the
property and, if the person is found to have committed the crime related to the
property, must surrender the property for forfeiture after conviction. This bill also
allows a person who prevails in a forfeiture action to recover reasonable attorney fees
from the state.
This bill requires that all proceeds from the sale of all forfeited property be
turned in to the state school fund. It also prohibits local law enforcement agencies
from transferring property to federal agencies for forfeiture under federal law unless
the value of the property exceeds $50,000 or the property can be forfeited only under
federal law.
Under current law, forfeiture proceedings may proceed prior to an actual
conviction in a criminal case, and any seized property will be held by the law
enforcement agency until the case is finished.
Under current law, after a court orders that property be forfeited, an agency
may keep certain property for its own use, transfer the property to another agency,
or sell the property. The agency that seized the property may retain a set percentage
of the proceeds of selling the property to cover administrative and other costs and the
remainder goes into the state school fund. In addition, current law allows local law
enforcement agencies to enter into agreements with federal authorities wherein
property that is seized in relation to a federal crime is turned over to the federal
authorities for forfeiture under federal law. Proceeds from selling the property are
then shared between the federal authorities and local law enforcement agencies.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB122,1 1Section 1. 29.934 (1) (d) of the statutes is amended to read:
AB122,2,32 29.934 (1) (d) The provisions of s. 973.075 (1) (b) 2m. and (5) (1m) apply to boats
3and vehicles, other than motor vehicles, under this subsection.
AB122,2
1Section 2. 961.55 (1) (intro.) of the statutes is amended to read:
AB122,3,32 961.55 (1) (intro.) The Subject to subs. (1g) and (1m), the following are subject
3to forfeiture:
AB122,3 4Section 3. 961.55 (1) (d) (intro.) of the statutes is renumbered 961.55 (1) (d)
5and amended to read:
AB122,3,116 961.55 (1) (d) All vehicles which are used, or intended for use, to transport, or
7in any manner to facilitate the transportation, for the purpose of sale or receipt of
8property described in pars. (a) and (b) or for the purpose of transporting any property
9or weapon used or to be used or received in the commission of any felony under this
10chapter, but: except that a vehicle is not subject to forfeiture for a violation of s.
11961.41 (3g) (b) to (g).
AB122,4 12Section 4. 961.55 (1) (d) 1. of the statutes is repealed.
AB122,5 13Section 5. 961.55 (1) (d) 2. of the statutes is repealed.
AB122,6 14Section 6. 961.55 (1) (d) 3. of the statutes is repealed.
AB122,7 15Section 7. 961.55 (1) (d) 4. of the statutes is repealed.
AB122,8 16Section 8. 961.55 (1g) of the statutes is created to read:
AB122,3,1917 961.55 (1g) No item is subject to forfeiture under this chapter unless a person
18is convicted of the criminal offense that was the basis for the seizure of the item or
19that is related to the action for forfeiture.
AB122,9 20Section 9. 961.55 (1k) of the statutes is created to read:
AB122,3,2521 961.55 (1k) (a) A person who has been subject to a seizure of property has a
22right to a pretrial hearing to determine the validity of the seizure. He or she may
23claim the right to possession of seized property at any time prior to 60 days before
24trial for the crime that gave rise to the seizure by motion to the court establishing
25the validity of the alleged interest in the property.
AB122,4,2
1(b) The state shall file an answer to the motion filed under par. (a) showing
2probable cause for the seizure at least 10 days before the hearing of the motion.
AB122,4,43 (c) The court shall hear the motion filed under par. (a) no more than 30 days
4after the motion is filed.
AB122,4,75 (d) Either party may, by agreement or for good cause, move the court for one
6extension of no more than 10 days. Any such motion may be supported by affidavits
7or other submissions.
AB122,4,108 (e) Following hearing of the motion under par. (a), the court shall order the
9seized property to be returned to a person under this subsection if it finds any of the
10following:
AB122,4,1311 1. It is likely that the final judgement will be that the state must return the
12property to the claimant, and the property is not reasonably required to be held for
13investigatory reasons.
AB122,4,1814 2. The property is the only reasonable means for a defendant to pay for legal
15representation in the forfeiture or criminal proceeding, and the property is not
16reasonably required to be held for investigatory reasons. If the court makes this
17finding, it may order the return of funds or property sufficient to obtain legal counsel
18but less than the total amount seized, and require an accounting.
AB122,4,2219 (f) If a court orders property returned under this subsection, the court shall
20order the person not to sell, transfer, assign, or otherwise encumber the property
21until the court orders the property either returned under sub. (3) or forfeited under
22s. 961.555.
AB122,4,2523 (g) If the person is subsequently convicted of or found to have committed the
24offense, the court shall order the person to surrender the returned property for
25proceedings under s. 961.555.
AB122,10
1Section 10. 961.55 (1m) of the statutes is created to read:
AB122,5,22 961.55 (1m) (a) The property of an innocent owner may not be forfeited.
AB122,5,73 (b) A person who has an ownership interest in property subject to forfeiture
4that exists at the occurrence of the illegal conduct giving rise to the forfeiture who
5claims to be an innocent owner has the burden of proving by clear and convincing
6evidence that he or she has a legal right, title, or interest in the property seized under
7this chapter.
AB122,5,118 (c) If the requisite showing under par. (b) has been made, in order to proceed
9with a forfeiture action against the property, the state has the burden of proving by
10clear and convincing evidence that the person had actual or constructive knowledge
11of the underlying crime giving rise to the forfeiture.
AB122,5,1612 (d) A person who has an ownership interest in property subject to forfeiture
13that he or she acquired after the occurrence of the conduct giving rise to the forfeiture
14who claims to be an innocent owner has the burden of proving by clear and convincing
15evidence that he or she has a legal right, title, or interest in the property seized under
16this chapter.
AB122,5,2117 (e) If the requisite showing under par. (d) has been made, in order to proceed
18with a forfeiture action against the property, the state has the burden of proving by
19clear and convincing evidence that the person had actual or constructive knowledge
20that the property was subject to forfeiture or that the person was not a bona fide
21purchaser without notice of any defect in title and for valuable consideration.
AB122,5,2522 (f) If the state does not meet the burden under par. (c) or (e) as to any property,
23the court shall find that the property is the property of an innocent owner and not
24subject to forfeiture under this chapter and shall order the state to relinquish all
25claims of title to the property.
AB122,6,4
1(g) The defendant or convicted offender may invoke the right against
2self-incrimination or the marital privilege during the forfeiture-related stage of the
3prosecution. The trier of fact at the hearing may draw an adverse inference from the
4invocation of the right or privilege.
AB122,11 5Section 11. 961.55 (1r) of the statutes is created to read:
AB122,6,116 961.55 (1r) (a) No law enforcement officer or agency or state or local employee
7or agency may enter into an agreement to transfer property to a federal agency
8directly, indirectly, by adoption, through an intergovernmental joint task force, or by
9other means, for the purposes of forfeiture litigation unless the seized property
10includes more than $50,000 of U.S. currency or the property may be forfeited only
11under federal law.
AB122,6,1812 (b) All law enforcement agencies shall refer seized property to the appropriate
13state prosecuting attorney for forfeiture under this chapter unless the seized
14property includes more than $50,000 of U.S. currency or the property may be
15forfeited only under federal law. If the seized property includes more than $50,000
16of U.S. currency, the law enforcement agency may, but is not required to, refer or
17transfer the seized property to a federal agency for forfeiture litigation under federal
18law.
AB122,6,2219 (c) Nothing in this subsection shall be construed to restrict a law enforcement
20officer or agency from collaborating with a federal agency to seize contraband or
21property that the law enforcement agency has probable cause to believe is subject to
22forfeiture through an intergovernmental joint task force.
AB122,12 23Section 12. 961.55 (3) (intro.) of the statutes is amended to read:
AB122,7,924 961.55 (3) (intro.) In the event of seizure under sub. (2), proceedings under sub.
25(4) shall be instituted promptly. All dispositions and forfeitures under this section

1and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent
2persons under sub. (1) (d) 1., 2. and 4. subs. (1g), (1k), and (1m). Any property seized
3but not forfeited shall be returned to its rightful owner. Any person claiming the
4right to possession of property seized may apply for its return to the circuit court for
5the county in which the property was seized. The court shall order such notice as it
6deems adequate to be given the district attorney and all persons who have or may
7have an interest in the property and shall hold a hearing to hear all claims to its true
8ownership. If the right to possession is proved to the court's satisfaction, it shall
9order the property returned if:
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