§ 21-28-5.04. Forfeiture of property and money. (a) Any property, real or personal, including, but not limited to, vessels, vehicles, or aircraft, and money or negotiable instruments, securities, or other things of value or any property constituting, or derived from any proceeds, furnished, or intended to be furnished, by any person for the transportation of, or in exchange for, a controlled substance and that has been, or is being used, in violation of § 21-28-4.01(a) or 21-28-4.01(b) or in, upon, or by means of which any violation of §§ 21-28-4.01(a) or 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08 has taken, or is taking place, and all real property including any right, title, and interest in the whole of any lot or tract of land and any appurtenances or improvements that is used in the commission of a violation of §§ 21-28-4.01(a) or 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08, or that was purchased with funds obtained as a result of the commission of a violation of §§ 21-28-4.01(a) or §§ 21-28-4.01(b) or §§ 21-28-4.01.1 or 21-28-4.01.2 or 21-28-4.08, shall be seized and forfeited; provided that no property or money, as enumerated in this subsection, used by any person shall be forfeited under the provisions of this chapter unless it shall appear that the owner of the property or money had knowledge, actual or constructive, and was a consenting party to the alleged illegal act. All moneys, coin and currency, found in close proximity to forfeitable controlled substances, to forfeitable drug manufacturing or distributing paraphernalia, or to forfeitable records of the importation, manufacture, or distribution of controlled substances, are presumed to be unlawfully furnished in exchange for a controlled substance or used in violation of this chapter. The burden of proof is upon claimants of the property to rebut this presumption.

(b) Property taken or detained under this section shall not be repleviable, but shall be deemed to be in the custody of the law enforcement agency making the seizure and whenever property or money is forfeited under this chapter it shall be utilized as follows:

(1) Where the seized property is a vessel, vehicle, aircraft, or other personal property it may be retained and used by the law enforcement agency that seized the property where the use of the property is reasonably related to the law enforcement duties of the seizing agency. If the seized property is a motor vehicle that is inappropriate for use by the law enforcement agency due to style, size, or color, the seizing agency shall be allowed to apply the proceeds of sale or the trade-in value of the vehicle towards the purchase of an appropriate vehicle for use in activities reasonably related to law enforcement duties.

(2) The law enforcement agency may sell any forfeited property not required by this chapter to be destroyed and not harmful to the public. The proceeds from the sale are to be distributed in accordance with subdivision (3) of this subsection.

(3) As to the proceeds from the sale of seized property as referred to in subdivision (2) of this subsection, and as to moneys, coin and currency, negotiable instruments, securities, or other things of value as referred to in subsection (a) of this section, the distribution shall be as follows:

(i)(A) All proceeds of the forfeiture of real or personal property shall be distributed as follows: All costs of advertising administrative forfeitures shall first be deducted from the amount forfeited. Of the remainder, twenty percent (20%) of the proceeds shall be provided to the attorney general's department to be used for further drug-related law enforcement activities including, but not limited to, investigations, prosecutions, and the administration of this chapter; seventy percent (70%) of the proceeds shall be divided among the state and local law enforcement agencies proportionately based upon their contribution to the investigation of the criminal activity related to the asset being forfeited; and ten percent (10%) of the proceeds shall be provided to the department of health for distribution to substance abuse treatment programs.

(B) The law enforcement agencies involved in the investigation, with the assistance of the attorney general, shall by agreement determine the respective proportionate share to be received by each agency. If the agencies are unable to reach agreement, application shall be made by one or more of the agencies involved to the presiding justice of the superior court who shall determine the respective proportionate share attributable to each law enforcement agency. The proceeds from all forfeitures shall be held by the general treasurer in a separate account until such time as an allocation is determined by agreement of the agencies or by the presiding justice. It shall be the duty and responsibility of the general treasurer to disburse the allocated funds from the separate account to the respective law enforcement agencies.

(ii) Each state or local law enforcement agency shall be entitled to keep the forfeited money or the proceeds from sales of forfeited property. The funds shall be used for law enforcement purposes and investigations of violations of this chapter. The funds received by a state law enforcement agency shall be maintained in a separate account by the general treasurer. The funds received by a local law enforcement agency shall be maintained in a separate account by the local agency's city or town treasurer.

(c)(1) There is established in the state's treasury a special fund to be known as the asset forfeiture fund in which shall be deposited the excess proceeds of forfeitures arising out of criminal acts occurring before July 1, 1987. The asset forfeiture fund shall be used to fund drug-related law enforcement activity and the treatment and rehabilitation of victims of drug abuse. The fund shall be administered through the office of the general treasurer. The presiding justice of the superior court shall have the authority to determine the feasibility and amount of disbursement to those state or local law enforcement agencies that have made application.

(2) Upon the application of any law enforcement agency of the state of Rhode Island, when a special need exists concerning the enforcement of the provisions of this chapter, the attorney general, or his or her designee, may apply to the presiding justice of the superior court for the release from the general treasury of sums of money. When the presiding justice upon consideration of the reasons set forth by that agency deems them to be reasonable and necessary to the accomplishment of a goal within the powers and duties of that law enforcement agency, he or she may issue an order ex parte providing for the release of the funds.

(d) Each law enforcement agency making any seizure(s) that result(s) in a forfeiture pursuant to this section shall certify and file with the state treasurer between January 1 and January 30 an annual report detailing the property or money forfeited during the previous calendar year and the use or disposition of the property or money. The report shall be made in the form and manner as may be provided or specified by the treasurer and these annual law enforcement agency reports shall be provided to the local governmental body governing the agency and to the house and senate judiciary committees.

(e) Any law enforcement agency whose duty it is to enforce the laws of this state relating to controlled substances is empowered to authorize designated officers or agents to carry out the seizure provisions of this chapter. It shall be the duty of any officer or agent authorized or designated, or authorized by law, whenever he or she shall discover any property or monies that have been, or are being, used in violation of any of the provisions of this chapter, or in, upon, or by means of which any violation of this chapter has taken or is taking place, to seize the property or monies and to place it in the custody of the person as may be authorized or designated for that purpose by the respective law enforcement agency pursuant to those provisions.

(f) For purposes of this section and § 30-14-2 only, the Rhode Island national guard shall be deemed a law enforcement agency eligible to participate in the forfeiture of money and assets seized through counterdrug operations in which members of the guard support federal, state or municipal efforts.

History of Section. (P.L. 1974, ch. 183, § 2; P.L. 1980, ch. 179, § 1; P.L. 1983, ch. 269, § 1; P.L. 1987, ch. 371, § 1; P.L. 1988, ch. 666, § 1; P.L. 1989, ch. 126, art. 31, § 2; P.L. 1992, ch. 288, § 1; P.L. 1992, ch. 418, § 4; P.L. 1998, ch. 391, § 3; P.L. 2002, ch. 292, § 54; P.L. 2011, ch. 327, § 1; P.L. 2011, ch. 374, § 1; P.L. 2014, ch. 70, § 2; P.L. 2014, ch. 75, § 2.)