(1) The following
are subject to seizure and forfeiture and no property right
exists in them:
(a) All controlled substances which have been manufactured,
distributed, dispensed, acquired, or possessed in violation of
this chapter or chapter 69.41 or 69.52 RCW, and all hazardous
chemicals, as defined in RCW 64.44.010, used or intended to be
used in the manufacture of controlled substances;
(b) All raw materials, products, and equipment of any kind
which are used, or intended for use, in manufacturing,
compounding, processing, delivering, importing, or exporting any
controlled substance in violation of this chapter or chapter 69.41 or 69.52 RCW;
(c) All property which is used, or intended for use, as a
container for property described in (a) or (b) of this
subsection;
(d) All conveyances, including aircraft, vehicles, or
vessels, which are used, or intended for use, in any manner to
facilitate the sale, delivery, or receipt of property described
in (a) or (b) of this subsection, except that:
(i) No conveyance used by any person as a common carrier in
the transaction of business as a common carrier is subject to
forfeiture under this section unless it appears that the owner or
other person in charge of the conveyance is a consenting party or
privy to a violation of this chapter or chapter 69.41 or 69.52 RCW;
(ii) No conveyance is subject to forfeiture under this
section by reason of any act or omission established by the owner
thereof to have been committed or omitted without the owner's
knowledge or consent;
(iii) No conveyance is subject to forfeiture under this
section if used in the receipt of only an amount of marijuana for
which possession constitutes a misdemeanor under RCW 69.50.4014;
(iv) A forfeiture of a conveyance encumbered by a bona fide
security interest is subject to the interest of the secured party
if the secured party neither had knowledge of nor consented to
the act or omission; and
(v) When the owner of a conveyance has been arrested under
this chapter or chapter 69.41 or 69.52 RCW the conveyance in
which the person is arrested may not be subject to forfeiture
unless it is seized or process is issued for its seizure within
ten days of the owner's arrest;
(e) All books, records, and research products and materials,
including formulas, microfilm, tapes, and data which are used, or
intended for use, in violation of this chapter or chapter 69.41 or 69.52 RCW;
(f) All drug paraphernalia;
(g) All moneys, negotiable instruments, securities, or other
tangible or intangible property of value furnished or intended to
be furnished by any person in exchange for a controlled substance
in violation of this chapter or chapter 69.41 or 69.52 RCW, all
tangible or intangible personal property, proceeds, or assets
acquired in whole or in part with proceeds traceable to an
exchange or series of exchanges in violation of this chapter or
chapter 69.41 or 69.52 RCW, and all moneys, negotiable
instruments, and securities used or intended to be used to
facilitate any violation of this chapter or chapter 69.41 or 69.52 RCW. A forfeiture of money, negotiable instruments,
securities, or other tangible or intangible property encumbered
by a bona fide security interest is subject to the interest of
the secured party if, at the time the security interest was
created, the secured party neither had knowledge of nor consented
to the act or omission. No personal property may be forfeited
under this subsection (1)(g), to the extent of the interest of an
owner, by reason of any act or omission which that owner
establishes was committed or omitted without the owner's
knowledge or consent; and
(h) All real property, including any right, title, and
interest in the whole of any lot or tract of land, and any
appurtenances or improvements which are being used with the
knowledge of the owner for the manufacturing, compounding,
processing, delivery, importing, or exporting of any controlled
substance, or which have been acquired in whole or in part with
proceeds traceable to an exchange or series of exchanges in
violation of this chapter or chapter 69.41 or 69.52 RCW, if such
activity is not less than a class C felony and a substantial
nexus exists between the commercial production or sale of the
controlled substance and the real property. However:
(i) No property may be forfeited pursuant to this subsection
(1)(h), to the extent of the interest of an owner, by reason of
any act or omission committed or omitted without the owner's
knowledge or consent;
(ii) The bona fide gift of a controlled substance, legend
drug, or imitation controlled substance shall not result in the
forfeiture of real property;
(iii) The possession of marijuana shall not result in the
forfeiture of real property unless the marijuana is possessed for
commercial purposes, the amount possessed is five or more plants
or one pound or more of marijuana, and a substantial nexus exists
between the possession of marijuana and the real property. In
such a case, the intent of the offender shall be determined by
the preponderance of the evidence, including the offender's prior
criminal history, the amount of marijuana possessed by the
offender, the sophistication of the activity or equipment used by
the offender, and other evidence which demonstrates the
offender's intent to engage in commercial activity;
(iv) The unlawful sale of marijuana or a legend drug shall
not result in the forfeiture of real property unless the sale was
forty grams or more in the case of marijuana or one hundred
dollars or more in the case of a legend drug, and a substantial
nexus exists between the unlawful sale and the real property; and
(v) A forfeiture of real property encumbered by a bona fide
security interest is subject to the interest of the secured party
if the secured party, at the time the security interest was
created, neither had knowledge of nor consented to the act or
omission.
(2) Real or personal property subject to forfeiture under
this chapter may be seized by any board inspector or law
enforcement officer of this state upon process issued by any
superior court having jurisdiction over the property. Seizure of
real property shall include the filing of a lis pendens by the
seizing agency. Real property seized under this section shall
not be transferred or otherwise conveyed until ninety days after
seizure or until a judgment of forfeiture is entered, whichever
is later: PROVIDED, That real property seized under this section
may be transferred or conveyed to any person or entity who
acquires title by foreclosure or deed in lieu of foreclosure of a
security interest. Seizure of personal property without process
may be made if:
(a) The seizure is incident to an arrest or a search under a
search warrant or an inspection under an administrative
inspection warrant;
(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;
(c) A board inspector or law enforcement officer has
probable cause to believe that the property is directly or
indirectly dangerous to health or safety; or
(d) The board inspector or law enforcement officer has
probable cause to believe that the property was used or is
intended to be used in violation of this chapter.
(3) In the event of seizure pursuant to subsection (2) of
this section, proceedings for forfeiture shall be deemed
commenced by the seizure. The law enforcement agency under whose
authority the seizure was made shall cause notice to be served
within fifteen days following the seizure on the owner of the
property seized and the person in charge thereof and any person
having any known right or interest therein, including any
community property interest, of the seizure and intended
forfeiture of the seized property. Service of notice of seizure
of real property shall be made according to the rules of civil
procedure. However, the state may not obtain a default judgment
with respect to real property against a party who is served by
substituted service absent an affidavit stating that a good faith
effort has been made to ascertain if the defaulted party is
incarcerated within the state, and that there is no present basis
to believe that the party is incarcerated within the state.
Notice of seizure in the case of property subject to a security
interest that has been perfected by filing a financing statement
in accordance with chapter 62A.9A RCW, or a certificate of title,
shall be made by service upon the secured party or the secured
party's assignee at the address shown on the financing statement
or the certificate of title. The notice of seizure in other
cases may be served by any method authorized by law or court rule
including but not limited to service by certified mail with
return receipt requested. Service by mail shall be deemed
complete upon mailing within the fifteen day period following the
seizure.
(4) If no person notifies the seizing law enforcement agency
in writing of the person's claim of ownership or right to
possession of items specified in subsection (1)(d), (g), or (h)
of this section within forty-five days of the seizure in the case
of personal property and ninety days in the case of real
property, the item seized shall be deemed forfeited. The
community property interest in real property of a person whose
spouse committed a violation giving rise to seizure of the real
property may not be forfeited if the person did not participate
in the violation.
(5) If any person notifies the seizing law enforcement
agency in writing of the person's claim of ownership or right to
possession of items specified in subsection (1)(b), (c), (d),
(e), (f), (g), or (h) of this section within forty-five days of
the seizure in the case of personal property and ninety days in
the case of real property, the person or persons shall be
afforded a reasonable opportunity to be heard as to the claim or
right. The hearing shall be before the chief law enforcement
officer of the seizing agency or the chief law enforcement
officer's designee, except where the seizing agency is a state
agency as defined in RCW 34.12.020(4), the hearing shall be
before the chief law enforcement officer of the seizing agency or
an administrative law judge appointed under chapter 34.12 RCW,
except that any person asserting a claim or right may remove the
matter to a court of competent jurisdiction. Removal of any
matter involving personal property may only be accomplished
according to the rules of civil procedure. The person seeking
removal of the matter must serve process against the state,
county, political subdivision, or municipality that operates the
seizing agency, and any other party of interest, in accordance
with RCW 4.28.080 or 4.92.020, within forty-five days after the
person seeking removal has notified the seizing law enforcement
agency of the person's claim of ownership or right to possession.
The court to which the matter is to be removed shall be the
district court when the aggregate value of personal property is
within the jurisdictional limit set forth in RCW 3.66.020. A
hearing before the seizing agency and any appeal therefrom shall
be under Title 34 RCW. In all cases, the burden of proof is upon
the law enforcement agency to establish, by a preponderance of
the evidence, that the property is subject to forfeiture.
The seizing law enforcement agency shall promptly return the
article or articles to the claimant upon a determination by the
administrative law judge or court that the claimant is the
present lawful owner or is lawfully entitled to possession
thereof of items specified in subsection (1)(b), (c), (d), (e),
(f), (g), or (h) of this section.
(6) In any proceeding to forfeit property under this title,
where the claimant substantially prevails, the claimant is
entitled to reasonable attorneys' fees reasonably incurred by the
claimant. In addition, in a court hearing between two or more
claimants to the article or articles involved, the prevailing
party is entitled to a judgment for costs and reasonable
attorneys' fees.
(7) When property is forfeited under this chapter the board
or seizing law enforcement agency may:
(a) Retain it for official use or upon application by any
law enforcement agency of this state release such property to
such agency for the exclusive use of enforcing the provisions of
this chapter;
(b) Sell that which is not required to be destroyed by law
and which is not harmful to the public;
(c) Request the appropriate sheriff or director of public
safety to take custody of the property and remove it for
disposition in accordance with law; or
(d) Forward it to the drug enforcement administration for
disposition.
(8)(a) When property is forfeited, the seizing agency shall
keep a record indicating the identity of the prior owner, if
known, a description of the property, the disposition of the
property, the value of the property at the time of seizure, and
the amount of proceeds realized from disposition of the property.
(b) Each seizing agency shall retain records of forfeited
property for at least seven years.
(c) Each seizing agency shall file a report including a copy
of the records of forfeited property with the state treasurer
each calendar quarter.
(d) The quarterly report need not include a record of
forfeited property that is still being held for use as evidence
during the investigation or prosecution of a case or during the
appeal from a conviction.
(9)(a) By January 31st of each year, each seizing agency
shall remit to the state treasurer an amount equal to ten percent
of the net proceeds of any property forfeited during the
preceding calendar year. Money remitted shall be deposited in
the violence reduction and drug enforcement account under RCW 69.50.520.
(b) The net proceeds of forfeited property is the value of
the forfeitable interest in the property after deducting the cost
of satisfying any bona fide security interest to which the
property is subject at the time of seizure; and in the case of
sold property, after deducting the cost of sale, including
reasonable fees or commissions paid to independent selling
agents, and the cost of any valid landlord's claim for damages
under subsection (15) of this section.
(c) The value of sold forfeited property is the sale price.
The value of retained forfeited property is the fair market value
of the property at the time of seizure, determined when possible
by reference to an applicable commonly used index, such as the
index used by the department of licensing for valuation of motor
vehicles. A seizing agency may use, but need not use, an
independent qualified appraiser to determine the value of
retained property. If an appraiser is used, the value of the
property appraised is net of the cost of the appraisal. The
value of destroyed property and retained firearms or illegal
property is zero.
(10) Forfeited property and net proceeds not required to be
paid to the state treasurer shall be retained by the seizing law
enforcement agency exclusively for the expansion and improvement
of controlled substances related law enforcement activity. Money
retained under this section may not be used to supplant
preexisting funding sources.
(11) Controlled substances listed in Schedule I, II, III,
IV, and V that are possessed, transferred, sold, or offered for
sale in violation of this chapter are contraband and shall be
seized and summarily forfeited to the state. Controlled
substances listed in Schedule I, II, III, IV, and V, which are
seized or come into the possession of the board, the owners of
which are unknown, are contraband and shall be summarily
forfeited to the board.
(12) 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 board.
(13) The failure, upon demand by a board inspector or law
enforcement officer, 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 an appropriate registration or proof that
he or she is the holder thereof constitutes authority for the
seizure and forfeiture of the plants.
(14) Upon the entry of an order of forfeiture of real
property, the court shall forward a copy of the order to the
assessor of the county in which the property is located. Orders
for the forfeiture of real property shall be entered by the
superior court, subject to court rules. Such an order shall be
filed by the seizing agency in the county auditor's records in
the county in which the real property is located.
(15) A landlord may assert a claim against proceeds from the
sale of assets seized and forfeited under subsection (7)(b) of
this section, only if:
(a) A law enforcement officer, while acting in his or her
official capacity, directly caused damage to the complaining
landlord's property while executing a search of a tenant's
residence; and
(b) The landlord has applied any funds remaining in the
tenant's deposit, to which the landlord has a right under chapter 59.18 RCW, to cover the damage directly caused by a law
enforcement officer prior to asserting a claim under the
provisions of this section;
(i) Only if the funds applied under (b) of this subsection
are insufficient to satisfy the damage directly caused by a law
enforcement officer, may the landlord seek compensation for the
damage by filing a claim against the governmental entity under
whose authority the law enforcement agency operates within thirty
days after the search;
(ii) Only if the governmental entity denies or fails to
respond to the landlord's claim within sixty days of the date of
filing, may the landlord collect damages under this subsection by
filing within thirty days of denial or the expiration of the
sixty-day period, whichever occurs first, a claim with the
seizing law enforcement agency. The seizing law enforcement
agency must notify the landlord of the status of the claim by the
end of the thirty-day period. Nothing in this section requires
the claim to be paid by the end of the sixty-day or thirty-day
period.
(c) For any claim filed under (b) of this subsection, the
law enforcement agency shall pay the claim unless the agency
provides substantial proof that the landlord either:
(i) Knew or consented to actions of the tenant in violation
of this chapter or chapter 69.41 or 69.52 RCW; or
(ii) Failed to respond to a notification of the illegal
activity, provided by a law enforcement agency under RCW 59.18.075, within seven days of receipt of notification of the
illegal activity.
(16) The landlord's claim for damages under subsection (15)
of this section may not include a claim for loss of business and
is limited to:
(a) Damage to tangible property and clean-up costs;
(b) The lesser of the cost of repair or fair market value of
the damage directly caused by a law enforcement officer;
(c) The proceeds from the sale of the specific tenant's
property seized and forfeited under subsection (7)(b) of this
section; and
(d) The proceeds available after the seizing law enforcement
agency satisfies any bona fide security interest in the tenant's
property and costs related to sale of the tenant's property as
provided by subsection (9)(b) of this section.
(17) Subsections (15) and (16) of this section do not limit
any other rights a landlord may have against a tenant to collect
for damages. However, if a law enforcement agency satisfies a
landlord's claim under subsection (15) of this section, the
rights the landlord has against the tenant for damages directly
caused by a law enforcement officer under the terms of the
landlord and tenant's contract are subrogated to the law
enforcement agency.
[2003 c 53 § 348; 2001 c 168 § 1; 1993 c 487 § 1; 1992 c 211 § 1. Prior: (1992 c 210 § 5 repealed by 1992 c 211 § 2); 1990 c 248 § 2; 1990 c 213 § 12; 1989 c 271 § 212; 1988 c 282 § 2; 1986 c 124 § 9; 1984 c 258 § 333; 1983 c 2 § 15; prior: 1982 c 189 § 6; 1982 c 171 § 1; prior: 1981 c 67 § 32; 1981 c 48 § 3; 1977 ex.s. c 77 § 1; 1971 ex.s. c 308 §69.50.505 .]
NOTES:
Intent -- Effective date -- 2003 c 53: See notes following RCW 2.48.180.
Severability -- 2001 c 168: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [2001 c 168 § 5.]
Effective date -- 1990 c 213 §§ 2 and 12: See note following RCW 64.44.010.
Severability -- 1990 c 213: See RCW 64.44.901.
Findings -- 1989 c 271: "The legislature finds that: Drug offenses and crimes resulting from illegal drug use are destructive to society; the nature of drug trafficking results in many property crimes and crimes of violence; state and local governmental agencies incur immense expenses in the investigation, prosecution, adjudication, incarceration, and treatment of drug-related offenders and the compensation of their victims; drug-related offenses are difficult to eradicate because of the profits derived from the criminal activities, which can be invested in legitimate assets and later used for further criminal activities; and the forfeiture of real assets where a substantial nexus exists between the commercial production or sale of the substances and the real property will provide a significant deterrent to crime by removing the profit incentive of drug trafficking, and will provide a revenue source that will partially defray the large costs incurred by government as a result of these crimes. The legislature recognizes that seizure of real property is a very powerful tool and should not be applied in cases in which a manifest injustice would occur as a result of forfeiture of an innocent spouse's community property interest." [1989 c 271 § 211.]
Severability -- 1989 c 271: See note following RCW 9.94A.510.
Severability -- 1988 c 282: "If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected." [1988 c 282 § 3.]
Court Improvement Act of 1984 -- Effective dates -- Severability -- Short title -- 1984 c 258: See notes following RCW 3.30.010.
Intent -- 1984 c 258: See note following RCW 3.46.120.
Severability -- 1983 c 2: See note following RCW 18.71.030.
Effective date -- 1982 c 189: See note following RCW 34.12.020.
Severability -- Effective date -- 1982 c 171: See RCW 69.52.900 and 69.52.901.
Severability -- 1981 c 48: See note following RCW 69.50.102.