Chapter 961

961.55(1k) (1k) A person who has been subject to a seizure of property has a right to a pretrial hearing under s. 968.20.

961.55(1m) (1m) The property of an innocent owner may not be forfeited. A person who claims to be an innocent owner may follow the procedures under s. 961.555 (5).

961.55(1r) (1r) If a law enforcement officer or agency or state or local employee or agency refers seized property to a federal agency directly, indirectly, by adoption, through an intergovernmental joint task force, or by other means, for the purposes of forfeiture litigation, the agency shall produce an itemized report of actual forfeiture expenses, as defined in sub. (5) (b), and submit the report to the department of administration to make it available on the department’s website. If there is a federal or state criminal conviction for the crime that was the basis for the seizure, the agency may accept all proceeds. If there is no federal or state criminal conviction, the agency may not accept any proceeds, except that the agency may accept all proceeds if one of the following circumstances applies and is explained in the report submitted under this subsection:

961.55(1r)(a) (a) The defendant has died.

961.55(1r)(b) (b) The defendant was deported by the U.S. government.

961.55(1r)(c) (c) The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

961.55(1r)(d) (d) The defendant fled the jurisdiction.

961.55(1r)(e) (e) The property has been unclaimed for a period of at least 9 months.

961.55(2) (2) Property subject to forfeiture under this chapter may be seized by any officer or employee designated in s. 961.51 (1) or (2) or a law enforcement officer upon process issued by any court of record having jurisdiction over the property. Seizure without process may be made if:

961.55(2)(a) (a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

961.55(2)(b) (b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;

961.55(2)(c) (c) The officer or employee or a law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

961.55(2)(d) (d) The officer or employee or a law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter, that the property was derived from or realized through a crime under this chapter or that the property is a vehicle which was used as described in sub. (1) (d).

961.55(3) (3) In the event of seizure under sub. (2), proceedings under sub. (4) shall be instituted promptly. All dispositions and forfeitures under this section and ss. 961.555 and 961.56 shall be made with due provision for the rights of innocent persons under subs. (1g), (1k), and (1m). Any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court’s satisfaction, it shall order the property returned if:

961.55(3)(a) (a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or

961.55(3)(b) (b) All proceedings in which it might be required have been completed.

961.55(4) (4) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the person seizing the property may:

961.55(4)(a) (a) Place the property under seal;

961.55(4)(b) (b) Remove the property to a place designated by it; or

961.55(4)(c) (c) Require the sheriff of the county in which the seizure was made to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

961.55(5) (5) When property is forfeited under this chapter, the agency whose officer or employee seized the property shall do one of the following:

961.55(5)(a) (a) If the property is a vehicle, retain it for official use for a period of up to one year. Before the end of that period, the agency shall do one of the following:

961.55(5)(a)1. 1. Sell the property and use a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department’s website. The remainder shall be deposited in the school fund as proceeds of the forfeiture.

961.55(5)(a)2. 2. Continue to retain the property, if the agency deposits 30 percent of the value of the vehicle, as determined by the department of revenue, in the school fund as proceeds of the forfeiture. If the agency sells the vehicle at a later time and receives as proceeds from the sale an amount in excess of the amount previously deposited in the school fund, the agency shall deposit the excess in the school fund.

961.55(5)(b) (b) Sell that which is not required to be destroyed by law and which is not harmful to the public. The agency may use a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department’s website. The remainder shall be deposited in the school fund as proceeds of the forfeiture. In this subsection, “forfeiture expenses” include all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred.

961.55(5)(c) (c) Require the sheriff of the county in which the property was seized to take custody of the property and remove it for disposition in accordance with law.

961.55(5)(d) (d) Forward it to the bureau for disposition.

961.55(5)(e) (e) If the property forfeited is money, retain a portion, not to exceed 50 percent, of the amount received for payment of forfeiture expenses, as defined in par. (b), if the agency produces an itemized report of actual forfeiture expenses and submits the report to the department of administration to make it available on the department’s website and deposit the money in the school fund.

961.55(6) (6) Controlled substances included in schedule I and controlled substance analogs of controlled substances included in schedule I that are possessed, transferred, sold, offered for sale or attempted to be possessed in violation of this chapter are contraband and shall be seized and summarily forfeited to the state. Controlled substances included in schedule I and controlled substance analogs of controlled substances included in schedule I that are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state.

961.55(6m) (6m) Flunitrazepam or ketamine that is possessed, transferred, sold, offered for sale or attempted to be possessed in violation of this chapter is contraband and shall be seized and summarily forfeited to the state. Flunitrazepam or ketamine that is seized or comes into the possession of the state, the owner of which is unknown, is contraband and shall be summarily forfeited to the state.

961.55(7) (7) Species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of this chapter, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the state.

961.55(8) (8) The failure, upon demand by any officer or employee designated in s. 961.51 (1) or (2), of the person in occupancy or in control of land or premises upon which the species of plants are growing or being stored, to produce any of the following constitutes authority for the seizure and forfeiture of the plants described in sub. (7):

961.55(8)(a) (a) An appropriate federal registration, or proof that the person is the holder thereof.

961.55(8)(b) (b) Proof that the person is growing or storing the plants in accordance with the requirements, if any, imposed by the department of agriculture, trade and consumer protection under s. 94.55.

961.55(9) (9) If a crop intended to be hemp, as defined in s. 94.55 (1), is tested for delta-9-tetrahydrocannabinol levels and the average concentration of delta-9-tetrahydrocannabinol is found to exceed 0.7 percent above the permissible limit for hemp on a dry weight basis, as tested using post-decarboxylation or other similarly reliable methods, the entire crop at the growing location where the plant was found shall be seized and destroyed. Before a crop is seized and destroyed under this subsection, the agency whose officers or employees intend to seize and destroy the crop shall provide, to the person licensed under s. 94.55 to grow the crop or to the person’s agent or employee, written documentation verifying the test results for the crop that is subject to seizure and destruction.

961.55 History History: 1971 c. 219, 307; 1981 c. 267; 1985 a. 245, 328; 1987 a. 339; 1989 a. 121; 1993 a. 118, 482; 1995 a. 448 ss. 297 to 305; Stats. 1995 s. 961.55; 1997 a. 220; 1999 a. 48, 57, 110; 2001 a. 109; 2003 a. 49; 2005 a. 91; 2015 a. 264; 2017 a. 100, 211; 2019 a. 68.

961.55 Annotation A vehicle obtained out of state and used to transport a controlled substance is subject to forfeiture under sub. (1) (d). State v. S&S Meats, Inc., 92 Wis. 2d 64, 284 N.W.2d 712 (Ct. App. 1979).

961.55 Annotation A vehicle subject to sub. (1) (d) 4. is not subject to forfeiture unless the secured party consents. State v. Fouse, 120 Wis. 2d 471, 355 N.W.2d 366 (Ct. App. 1984).

961.55 Annotation Under sub. (1) (f), the state may seize property from an owner not charged with a crime. State v. Hooper, 122 Wis. 2d 748, 364 N.W.2d 175 (Ct. App. 1985).

961.55 Annotation This section and s. 973.075 both include the same “innocent owner” defense language, which bars forfeiture if the crime was committed without the property owner’s knowledge or consent. In the absence of contrary evidence, the legislature intended “owner” to have the same meaning in both provisions. Ownership under s. 973.075 (1) (b) 2. [now s. 973.075 (1) (b) 2m. b.] is not controlled by legal title, but will be found based on consideration of possession, title, control, and financial stake. State v. Kirch, 222 Wis. 2d 598, 587 N.W.2d 919 (Ct. App. 1998), 98-0582.

961.55 Annotation The “seized but not forfeited” language of sub. (3) means that the portion of that subsection related to return of property is only triggered by an unsuccessful forfeiture action brought by the state; in the event that the district attorney elects not to bring a forfeiture action, a person seeking the return of seized property may do so under s. 968.20. Jones v. State, 226 Wis. 2d 565, 594 N.W.2d 738 (1999), 97-3306.

961.55 Annotation For purposes of the statutory “innocent owner” exception in this case, while one co-titleholder had the largest financial interest in the forfeited vehicle, the second co-titleholder, who used the vehicle in drug sales was the actual owner of the vehicle when that second titleholder had nearly complete possession and control of the vehicle and paid for insurance, gas, and maintenance while the first titleholder had a different vehicle of her own. However, while forfeiture of the vehicle and second co-titleholder’s financial interest in it was constitutional, forfeiture of the first titleholder’s full financial interest in the vehicle was unconstitutional under the excessive fines clause. State v. One 2013, Toyota Corolla, 2015 WI App 84, 365 Wis. 2d 582, 872 N.W.2d 98, 14-2226.

961.55 Annotation A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2). OAG 10-09.

961.555 961.555 Forfeiture proceedings.

961.555(1) (1) Type of action; where brought. In an action brought to cause the forfeiture of any property seized under s. 961.55, the court may render a judgment in rem or against a party personally, or both. The circuit court for the county in which the property was seized shall have jurisdiction over any proceedings regarding the property when the action is commenced in state court. Subject to s. 961.55 (1r), any property seized may be the subject of a federal forfeiture action.

961.555(2) (2) Commencement.

961.555(2)(a) (a) The district attorney of the county within which the property was seized shall commence the forfeiture action within 30 days after the seizure of the property, and the forfeiture proceedings shall be adjourned until after the defendant is convicted of any charge concerning a crime which was the basis for the seizure of the property. If property is seized, a charge shall be issued within 6 months after the seizure, except that an unlimited number of 6-month extensions may be granted if, for each extension, a judge determines probable cause is shown and the additional time is warranted. If no charge is issued within 6 months after the seizure, or a 6-month extension is not granted, the seized property shall be returned to the owner. The forfeiture action shall be commenced by filing a summons, complaint and affidavit of the person who seized the property with the clerk of circuit court, provided service of authenticated copies of those papers is made in accordance with ch. 801 within 90 days after filing upon the person from whom the property was seized and upon any person known to have a bona fide perfected security interest in the property.

961.555(2)(am) (am) Upon motion by the prosecuting attorney, the court may waive the conviction requirement under par. (a) if the prosecuting attorney shows by clear and convincing evidence that any of the following applies:

961.555(2)(am)1. 1. The defendant has died.

961.555(2)(am)2. 2. The defendant was deported by the U.S. government.

961.555(2)(am)3. 3. The defendant has been granted immunity in exchange for testifying or otherwise assisting a law enforcement investigation or prosecution.

961.555(2)(am)4. 4. The defendant fled the jurisdiction.

961.555(2)(am)5. 5. The property has been unclaimed for a period of at least 9 months.

961.555(2)(am)6. 6. The property is contraband that is subject to forfeiture under s. 961.55 (6), (6m), or (7).

961.555(2)(b) (b) Upon service of an answer, the action shall be set for hearing within 60 days of the service of the answer but may be continued for cause or upon stipulation of the parties.

961.555(2)(c) (c) In counties having a population of 750,000 or more, the district attorney or corporation counsel may proceed under par. (a).

961.555(2)(d) (d) If no answer is served or no issue of law or fact has been joined and the time for that service or joining issue has expired, or if any defendant fails to appear at trial after answering or joining issue, the court may render a default judgment as provided in s. 806.02.

961.555(2m) (2m) Criminal forfeitures.

961.555(2m)(a) (a) In addition to any penalties under this chapter, the court shall, with due provision for the rights of innocent persons in accordance with sub. (5), order forfeiture of any property specified in s. 961.55 (1) in accordance with pars. (b), (c), and (d).

961.555(2m)(b) (b) A criminal complaint must allege the extent of property subject to forfeiture under this subsection. At trial, the court or the jury shall return a special verdict determining the extent of property, if any, that is subject to forfeiture under this subsection. When a special verdict contains a finding of property subject to a forfeiture under this subsection, a judgment of criminal forfeiture shall be entered along with the judgment of conviction under s. 972.13.

961.555(2m)(c) (c) An injured person has a right or claim to forfeited property or the proceeds derived from forfeited property under this subsection that is superior to any right or claim the state has in the property or proceeds. This paragraph does not grant the injured person priority over state claims or rights by reason of a tax lien or other basis not covered by this section or by s. 961.55 or 961.56. All rights, titles, and interest in property specified in s. 961.55 (1) vest in the state upon the commission of the act giving rise to forfeiture under this subsection.

961.555(2m)(d) (d) An injured or innocent person may petition the court for relief from the judgment of criminal forfeiture entered under par. (b) within 30 days after it is entered. The person filing the petition has the burden of satisfying or convincing to a reasonable certainty by the greater weight of the evidence that the person has a bona fide perfected security interest in the property subject to forfeiture in s. 961.55 (1) or any other property subject to forfeiture in sub. (4). The court may order that a person with a bona fide perfected security interest be paid from the proceeds of the forfeiture or any other equitable relief necessary so as to do substantial justice to the person.

961.555(3) (3) Burden of proof. The state shall have the burden of proving by clear and convincing evidence that the property is subject to forfeiture under s. 961.55.

961.555(3g) (3g) Privileges. The defendant or convicted offender may invoke the right against self-incrimination or the marital privilege during the forfeiture-related stage of the prosecution. The trier of fact at the hearing may draw an adverse inference from the invocation of the right or privilege.

961.555(3m) (3m) Proportionality.

961.555(3m)(a) (a) The court may not order the forfeiture of property if the court finds that the forfeiture is grossly disproportional to the crime for which the person whose property was seized was convicted or that the forfeiture is unconstitutionally excessive under the state or federal constitution.

961.555(3m)(b) (b) A person who is alleging that the forfeiture is grossly disproportional or is unconstitutionally excessive under this subsection shall have the burden of satisfying or convincing to a reasonable certainty by the greater weight of the credible evidence that the forfeiture is grossly disproportional or unconstitutionally excessive.

961.555(3m)(c) (c) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court shall consider the following:

961.555(3m)(c)1. 1. The seriousness of the offense.

961.555(3m)(c)2. 2. The purpose of the statute authorizing the forfeiture.

961.555(3m)(c)3. 3. The maximum fine for the offense.

961.555(3m)(c)4. 4. The harm that actually resulted from the defendant’s conduct.

961.555(3m)(d) (d) In determining whether the forfeiture is grossly disproportional or unconstitutionally excessive, the court may not consider the value of the property to the state.

961.555(4) (4) Action against other property of the person. The court may order the forfeiture of any other property of a defendant up to the value of property found by the court to be subject to forfeiture under s. 961.55 if the property subject to forfeiture meets any of the following conditions:

961.555(4)(a) (a) Cannot be located.

961.555(4)(b) (b) Has been transferred or conveyed to, sold to or deposited with a 3rd party.

961.555(4)(c) (c) Is beyond the jurisdiction of the court.

961.555(4)(d) (d) Has been substantially diminished in value while not in the actual physical custody of the law enforcement agency.

961.555(4)(e) (e) Has been commingled with other property that cannot be divided without difficulty.

961.555(5) (5) Innocent owners.

961.555(5)(a) (a) Notwithstanding sub. (2) (a), a person who claims to have an ownership interest in property subject to forfeiture as an innocent owner may petition the court for the return of his or her seized property at any time.

961.555(5)(b) (b) A person who has an ownership interest in property subject to forfeiture that exists at the occurrence of the illegal conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

961.555(5)(c) (c) If the requisite showing under par. (b) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge of the underlying crime giving rise to the forfeiture.

961.555(5)(d) (d) A person who has an ownership interest in property subject to forfeiture that he or she acquired after the occurrence of the conduct giving rise to the forfeiture and who claims to be an innocent owner has the burden of proving by clear and convincing evidence that he or she has a legal right, title, or interest in the property seized under this chapter.

961.555(5)(e) (e) If the requisite showing under par. (d) has been made, in order to proceed with a forfeiture action against the property, the state has the burden of proving by clear and convincing evidence that the person had actual or constructive knowledge that the property was subject to forfeiture or that the person was not a bona fide purchaser without notice of any defect in title and for valuable consideration.

961.555(5)(f) (f) If the state does not meet the burden under par. (c) or (e) as to any property, the court shall find that the property is the property of an innocent owner and not subject to forfeiture under this chapter and shall order the state to relinquish all claims of title to the property.

961.555(6) (6) Return of property. The court shall order the return of any property subject to forfeiture under ss. 961.55 to 961.56 within 30 days of acquittal or dismissal of charges for the offense which was the basis of the forfeiture action, or 6 months after a seizure which was the basis of the forfeiture action if no charges have been issued and no extension has been granted. If the property is co-owned by 2 or more defendants in a criminal action, and one or more defendant co-owners are acquitted or the charges against him or her are dismissed, the court shall have discretion to dispose of the co-owned property in accordance with the proportionality guidelines in sub. (3m) as he or she deems appropriate.

961.555(7) (7) Attorney fees. A person who prevails in an action to return property subject to forfeiture under ss. 961.55 to 961.56 may be awarded reasonable attorney fees by the state if the court finds that the forfeiting agency or prosecuting attorney has arbitrarily and capriciously pursued the forfeiture action.

961.555 History History: 1971 c. 219; Sup. Ct. Order, 67 Wis. 2d 585, 752 (1975); 1981 c. 113, 267; Sup. Ct. Order, 120 Wis. 2d xiii; 1985 a. 245; 1989 a. 121; 1993 a. 321; 1995 a. 448 s. 306; Stats. 1995 s. 961.555; 1997 a. 187; 2017 a. 207 s. 5; 2017 a. 211.