2017 Special Session
2017 - 2018 LEGISLATURE
Criminal forfeiture law
Preliminary Draft - Not Ready For Introduction
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.
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 3
973.075 (5m); to renumber
973.075 (1) (b) 1m. a. to h.; to renumber and
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
(1g), 961.55 (1k), 961.55 (1m), 961.55 (1r), 961.555 (2) (am), 961.555 (3m), 10
961.555 (5), 961.555 (6), 973.075 (1g), 973.075 (1k), 973.075 (1m), 973.075 (1r),
973.075 (5r), 973.076 (1) (b) 1m., 973.076 (3m), 973.076 (5) and 973.076 (6) of 2
the 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
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:
29.934 (1) (d) of the statutes is amended to read:
(d) The provisions of s. 973.075 (1) (b) 2m. and (5) (1m)
apply to boats 3
and vehicles, other than motor vehicles, under this subsection.
961.55 (1) (intro.) of the statutes is amended to read:
(intro.) The Subject to subs. (1g) and (1m), the
following are subject 6
961.55 (1) (d) (intro.) of the statutes is renumbered 961.55 (1) (d) 8
and amended to read:
(d) All vehicles which are used, or intended for use, to transport, or 10
in any manner to facilitate the transportation, for the purpose of sale or receipt of 11
property described in pars. (a) and (b) or for the purpose of transporting any property 12
or weapon used or to be used or received in the commission of any felony under this 13
chapter, but: except that a vehicle is not subject to forfeiture for a violation of s.
14961.41 (3g) (b) to (g).
961.55 (1) (d) 1. of the statutes is repealed.
961.55 (1) (d) 2. of the statutes is repealed.
961.55 (1) (d) 3. of the statutes is repealed.
961.55 (1) (d) 4. of the statutes is repealed.
961.55 (1g) of the statutes is created to read:
No item is subject to forfeiture under this chapter unless a person 2
is convicted of the criminal offense that was the basis for the seizure of the item or 3
that is related to the action for forfeiture.
961.55 (1k) of the statutes is created to read:
(a) A person who has been subject to a seizure of property has a 6
right to a pretrial hearing to determine the validity of the seizure. He or she may 7
claim the right to possession of seized property at any time prior to 60 days before 8
trial for the crime that gave rise to the seizure by motion to the court establishing 9
the validity of the alleged interest in the property.
(b) The state shall file an answer to the motion filed under par. (a) showing 11
probable cause for the seizure at least 10 days before the hearing of the motion.
(c) The court shall hear the motion filed under par. (a) no more than 30 days 13
after the motion is filed.
(d) Either party may, by agreement or for good cause, move the court for one 15
extension of no more than 10 days. Any such motion may be supported by affidavits 16
or other submissions.
(e) Following hearing of the motion under par. (a), the court shall order the 18
seized property to be returned to a person under this subsection if it finds any of the 19
1. It is likely that the final judgement will be that the state must return the 21
property to the claimant, and the property is not reasonably required to be held for 22
2. The property is the only reasonable means for a defendant to pay for legal 24
representation in the forfeiture or criminal proceeding, and the property is not 25
reasonably required to be held for investigatory reasons. If the court makes this
finding, it may order the return of funds or property sufficient to obtain legal counsel 2
but less than the total amount seized, and require an accounting.
(f) If a court orders property returned under this subsection, the court shall 4
order the person not to sell, transfer, assign, or otherwise encumber the property 5
until the court orders the property either returned under sub. (3) or forfeited under 6
(g) If the person is subsequently convicted of or found to have committed the 8
offense, the court shall order the person to surrender the returned property for 9
proceedings under s. 961.555.
961.55 (1m) of the statutes is created to read:
(a) The property of an innocent owner may not be forfeited.
(b) A person who has an ownership interest in property subject to forfeiture 13
that exists at the occurrence of the illegal conduct giving rise to the forfeiture who 14
claims to be an innocent owner has the burden of proving by clear and convincing 15
evidence that he or she has a legal right, title, or interest in the property seized under 16
(c) If the requisite showing under par. (b) has been made, in order to proceed 18
with a forfeiture action against the property, the state has the burden of proving by 19
clear and convincing evidence that the person had actual or constructive knowledge 20
of the underlying crime giving rise to the forfeiture.
(d) A person who has an ownership interest in property subject to forfeiture 22
that he or she acquired after the occurrence of the conduct giving rise to the forfeiture 23
who claims to be an innocent owner has the burden of proving by clear and convincing 24
evidence that he or she has a legal right, title, or interest in the property seized under 25
(e) If the requisite showing under par. (d) has been made, in order to proceed 2
with a forfeiture action against the property, the state has the burden of proving by 3
clear and convincing evidence that the person had actual or constructive knowledge 4
that the property was subject to forfeiture or that the person was not a bona fide 5
purchaser without notice of any defect in title and for valuable consideration.
(f) If the state does not meet the burden under par. (c) or (e) as to any property, 7
the court shall find that the property is the property of an innocent owner and not 8
subject to forfeiture under this chapter and shall order the state to relinquish all 9
claims of title to the property.
(g) The defendant or convicted offender may invoke the right against 11
self-incrimination or the marital privilege during the forfeiture-related stage of the 12
prosecution. The trier of fact at the hearing may draw an adverse inference from the 13
invocation of the right or privilege.
961.55 (1r) of the statutes is created to read:
(a) No law enforcement officer or agency or state or local employee 16
or agency may enter into an agreement to transfer property to a federal agency 17
directly, indirectly, by adoption, through an intergovernmental joint task force, or by 18
other means, for the purposes of forfeiture litigation unless the seized property 19
includes more than $50,000 of U.S. currency or the property may be forfeited only 20
under federal law.
(b) All law enforcement agencies shall refer seized property to the appropriate 22
state prosecuting attorney for forfeiture under this chapter unless the seized 23
property includes more than $50,000 of U.S. currency or the property may be 24
forfeited only under federal law. If the seized property includes more than $50,000 25
of U.S. currency, the law enforcement agency may, but is not required to, refer or
transfer the seized property to a federal agency for forfeiture litigation under federal 2
(c) Nothing in this subsection shall be construed to restrict a law enforcement 4
officer or agency from collaborating with a federal agency to seize contraband or 5
property that the law enforcement agency has probable cause to believe is subject to 6
forfeiture through an intergovernmental joint task force.
961.55 (3) (intro.) of the statutes is amended to read:
(intro.) In the event of seizure under sub. (2), proceedings under sub. 9
(4) shall be instituted promptly. All dispositions and forfeitures under this section 10
and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent 11
persons under sub. (1) (d) 1., 2. and 4. subs. (1g), (1k), and (1m).
Any property seized 12
but not forfeited shall be returned to its rightful owner. Any person claiming the 13
right to possession of property seized may apply for its return to the circuit court for 14
the county in which the property was seized. The court shall order such notice as it 15
deems adequate to be given the district attorney and all persons who have or may 16
have an interest in the property and shall hold a hearing to hear all claims to its true 17
ownership. If the right to possession is proved to the court's satisfaction, it shall 18
order the property returned if: