44-12-209. Pretrial hearing. (1) Following the seizure of property in a proceeding under this chapter, a defendant who has been charged with a criminal offense providing for forfeiture of property upon conviction or a person claiming an interest in the property allegedly used in or derived from the commission of a criminal offense may make a written request for a pretrial hearing to determine the validity of the seizure.

(2) The request for a hearing pursuant to this section must be filed with the court in which the criminal proceeding is pending within 15 days of receiving notice of the seized property pursuant to 44-12-208(1)(b). If more than one person receives notice pursuant to 44-12-208(1)(b), the 15-day request period for a hearing begins from the date the last notice was received. The court shall hold a hearing on the request as soon as practicable but no later than 30 days after the request is filed.

(3) The claimant has the burden of demonstrating a lawful ownership interest or right of possession in the property.

(4) At least 10 days prior to a hearing on the request, a statement demonstrating probable cause for the seizure made pursuant to 44-12-103 must be filed with the court and provided to the claimant.

(5) The court shall order that the property be returned to the claimant if the court finds that:

(a) it is likely the final judgment in the criminal proceeding will result in the state being ordered to return the property;

(b) it is not reasonably necessary for the property to be held for investigatory reasons; or

(c) the property is the only reasonable means for the claimant to pay the costs of legal representation in the forfeiture or criminal proceeding. The court may order the return of a portion of the total amount of property seized sufficient to pay the costs of legal representation and may require an accounting of the remaining property.

(6) In lieu of ordering the return of the property, the court may order the law enforcement agency to provide security or other written assurances for satisfaction of any judgment that may be rendered in the forfeiture proceeding or criminal proceeding, including any damages sustained as a result of retaining the property.

History: En. Sec. 3, Ch. 421, L. 2015.