973.075 Forfeiture of property derived from crime and certain vehicles.

(1) Subject to subs. (1g) and (1m), the following are subject to seizure and forfeiture under ss. 973.075 to 973.077:

(a) All property, real or personal, including money, used in the course of, intended for use in the course of, or directly or indirectly derived from or realized through the commission of any crime.

(b) All vehicles, as defined in s. 939.22 (44), which are used in any of the following ways:

1. To transport any property or weapon used or to be used or received in the commission of any felony.

2. In the commission of a crime under s. 946.70.

3. In the commission of a crime in violation of s. 940.302, 944.30 (1m), 944.31, 944.32, 944.33, 944.34, 948.02, 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.09, 948.10, 948.12, or 948.14.

4. In the commission of a crime relating to a submerged cultural resource in violation of s. 44.47.

5. To cause more than $2,500 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

6. In the commission of a crime under s. 813.12 (8), 813.122 (11), 813.123 (10), 813.125 (7), 813.128 (4) or 940.32.

7. In the commission of a crime under s. 943.75 (2) or (2m).

8. In the commission of a crime under s. 948.07.

(bg) Any property used or to be used in the commission of a crime under s. 943.74, 943.75 (2) or (2m), or 948.07.

(bm) Any property used in the commission of a crime under s. 813.12 (8), 813.122 (11), 813.123 (10), 813.125 (7), 813.128 (4) or 940.32.

(c) All remote sensing equipment, navigational devices, survey equipment and scuba gear and any other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47.

(d) A tank vessel that violates s. 299.62 (2) that is owned by a person who, within 5 years before the commission of the current violation, was previously convicted of violating s. 299.62 (2).

(e) Any recording, as defined in s. 943.206 (5), created, advertised, offered for sale or rent, sold, rented, transported or possessed in violation of ss. 943.207 to 943.209 or s. 943.49 and any electronic, mechanical or other device for making a recording or for manufacturing, reproducing, packaging or assembling a recording that was used to facilitate a violation of ss. 943.207 to 943.209 or s. 943.49, regardless of the knowledge or intent of the person from whom the recording or device is seized.

(1g) A judgment of forfeiture may not be entered under ss. 973.075 to 973.077 unless a person is convicted of the criminal offense that was the basis for the seizure of the item or that is related to the action for forfeiture.

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

(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. 973.076 (5).

(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, including administrative expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred, 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:

(a) The defendant has died.

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

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

(d) The defendant fled the jurisdiction.

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

(2) A law enforcement officer may seize property subject to this section upon process issued by any court of record having jurisdiction over the property. Except for vehicles used in the commission of a crime in violation of s. 940.302, 944.30 (1m), 944.31, 944.32, 944.33, 944.34, 948.02, 948.025, 948.05, 948.051, 948.055, 948.06, 948.07, 948.08, 948.081, 948.09, 948.10, 948.12, or 948.14, seizure without process may be made under any of the following circumstances:

(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under any administrative or special inspection warrant.

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state.

(c) The officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety.

(d) The officer has probable cause to believe that the property was derived from or realized through a crime, or was used in a crime under s. 948.07, or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47, which was used in the commission of a crime under s. 948.07, or which was used to cause more than $2,500 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012.

(3) If there is a seizure under sub. (2) or s. 342.30 (4) (a), proceedings under s. 973.076 shall be instituted. Property seized under this section or s. 342.30 (4) (a) is not 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 section or s. 342.30 (4) (a), the person seizing the property may do any of the following:

(a) Place the property under seal.

(b) Remove the property to a place designated by it.

(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.

(4) When property is forfeited under ss. 973.075 to 973.077, the agency seizing the property shall do one of the following:

(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:

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. In this subdivision, “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.

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.

(b) Sell the property that is not required by law to be destroyed or transferred to another agency. The agency seizing the property may use a portion, not to exceed 50 percent, of the amount received for administrative expenses of seizure, maintenance of custody, advertising, and court costs and the costs of investigation and prosecution reasonably incurred 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 the proceeds of the forfeiture.

(c) If the property forfeited is money, deposit all the money in the school fund.

(5) All forfeitures under ss. 973.075 to 973.077 shall be made with due provision for the rights of innocent persons under subs. (1g), (1k), and (1m). Except as provided in sub. (5r), 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 as soon as practically possible if:

(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

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

(5r) If a recording involved in a violation of ss. 943.207 to 943.209 is forfeited, the sheriff of the county in which the recording was seized shall destroy it after the completion of all proceedings in which the recording might be required as evidence.

(6) Sections 973.075 to 973.077 do not apply to crimes committed under ch. 961.

History: 1981 c. 267; 1985 a. 245, 258; 1987 a. 348; 1989 a. 263; 1993 a. 92, 169, 459, 491; 1995 a. 290, 448; 1997 a. 35, 285; 1999 a. 45, 51, 186; 2001 a. 16, 91; 2013 a. 262, 362; 2015 a. 352; 2017 a. 128, 211.

The critical inquiry under sub. (1) (b) is not whether the vehicle was used in a crime, but whether property carried by the vehicle was used in a crime. State v. One 1971 Oldsmobile Cutlass, 159 Wis. 2d 718, 464 N.W.2d 851 (Ct. App. 1990).

The forfeiture of a motor vehicle under sub. (1) (b) did not violate the constitutional guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343, 569 N.W.2d 68 (Ct. App. 1997), 95-2669.

Ownership under sub. (1) (b) 2. (renumbered sub. (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.

A punitive forfeiture violates the prohibition against excessive fines in the U.S. constitution if it is grossly disproportional to the gravity of the defendant's offense. Whether a forfeiture is far in excess of the maximum fine is a factor appropriately considered. State v. Boyd, 2000 WI App 208, 238 Wis. 2d 693, 618 N.W.2d 251, 99-2633.

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 2nd co-titleholder, who used the vehicle in drug sales was the actual owner of the vehicle when that 2nd 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 2nd co-titleholder's '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.

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.