Current Status
BillNumber: 2841
Ratification Number: 579
Act Number: 482
Introducing Body: House
Subject: Relating to certain crimes involving illegal poisons
and controlled substances
View additional legislative information at the LPITS web site.
(A482, R579, S2841)
AN ACT TO AMEND SECTION 44-53-370, AS AMENDED, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO CERTAIN CRIMES INVOLVING ILLEGAL POISONS AND CONTROLLED SUBSTANCES AND THE PENALTIES THEREFOR, SO AS TO PROVIDE THAT ANY PERSON WHO PROVIDES FINANCIAL ASSISTANCE FOR OR OTHERWISE AIDS, ABETS, OR CONSPIRES TO SELL, MANUFACTURE, DELIVER, OR BRING INTO THIS STATE THESE ILLEGAL SUBSTANCES IS ALSO GUILTY OF THESE CRIMES, AND TO REVISE PENALTIES FOR THE CRIMES OF TRAFFICKING IN MARIJUANA, TRAFFICKING IN COCAINE, TRAFFICKING IN ILLEGAL DRUGS, AND TRAFFICKING IN METHAQUALONE; TO AMEND SECTION 24-21-610, AS AMENDED, RELATING TO PREREQUISITE TO PAROLE, SO AS TO PROVIDE FOR DRUG TRAFFICKING TO BE INCLUDED AMONG THE CRIMES TO WHICH THE PAROLE PROVISIONS DO NOT APPLY; TO AMEND SECTION 44-53-520, AS AMENDED, RELATING TO NARCOTICS AND CONTROLLED SUBSTANCES AND FORFEITURES, SO AS TO, AMONG OTHER THINGS, MAKE SUBJECT TO FORFEITURE ALL PROPERTY WHICH IN ANY MANNER FACILITATES TRAFFICKING IN VARIOUS CONTROLLED SUBSTANCES, AS DEFINED, AND CERTAIN OTHER ITEMS OF PROPERTY, DELETE CERTAIN LANGUAGE, PROVIDE THAT IN THE EVENT OF SEIZURE PURSUANT TO CERTAIN PROVISIONS OF LAW, PROCEEDINGS UNDER SECTION 44-53-530 REGARDING FORFEITURE AND DISPOSITION MUST BE INSTITUTED PROMPTLY, PROVIDE THAT FOR THE PURPOSES OF SECTION 44-53-520, WHENEVER THE SEIZURE OF ANY ITEM SUBJECT TO SEIZURE IS ACCOMPLISHED AS A RESULT OF A JOINT EFFORT BY MORE THAN ONE LAW ENFORCEMENT AGENCY, THE LAW ENFORCEMENT AGENCY INITIATING THE INVESTIGATION IS CONSIDERED TO BE THE AGENCY MAKING THE SEIZURE, PROVIDE FOR INSURING THE PROPER MAINTENANCE OF ITEMS SEIZED AND FOR RELATED MATTERS, PROVIDE THAT WHENEVER ITEMS ARE SEIZED UNDER SECTION 44-53-520, THE LAW ENFORCEMENT AGENCY MAKING THE SEIZURE SHALL, WITHIN TEN DAYS OF THE SEIZURE OR WITHIN A REASONABLE PERIOD OF TIME WHERE SPECIAL NEED CAN BE DEMONSTRATED, SUBMIT A REPORT TO ITS GOVERNING BODY WITH A COPY TO THE ATTORNEY GENERAL'S OFFICE, AND PROVIDE FOR THE CONTENTS OF THE REPORT; TO AMEND SECTION 44-53-530, AS AMENDED, RELATING TO NARCOTICS, AND CONTROLLED SUBSTANCES AND FORFEITURE AND DISPOSITION OF CONVEYANCES USED TO TRANSPORT ILLEGAL DRUGS, SO, AS TO, AMONG OTHER THINGS, DELETE CERTAIN LANGUAGE, PROVIDE THAT FORFEITURE OF ITEMS DEFINED IN SECTION 44-53-520 MUST BE ACCOMPLISHED BY PETITION OF THE ATTORNEY GENERAL OR HIS DESIGNEE OR THE CIRCUIT SOLICITOR OR HIS DESIGNEE TO THE COURT OF COMMON PLEAS FOR THE JURISDICTION WHERE THE ITEMS WERE SEIZED, PROVIDE FOR MATTERS RELATED TO THE PETITION, PROVIDE FOR THE COURT'S ISSUANCE OF A RULE TO SHOW CAUSE REGARDING WHY THE ITEMS SHOULD NOT BE FORFEITED, PROVIDE FOR MATTERS RELATED TO A DETERMINATION OF WHETHER THE ITEMS ARE SUBJECT TO FORFEITURE, PROVIDE THAT WHENEVER CERTAIN DEFINED ITEMS ARE FORFEITED THE ATTORNEY GENERAL MAY RETAIN THE ITEMS OR TITLE OR MAY, IN HIS DISCRETION, AND IN COORDINATION WITH THE DIVISION OF GENERAL SERVICES, PROVIDE FOR THE TRANSFER OF THE ITEMS OR TITLE TO CERTAIN ENTITIES, PROVIDE FOR THE USE OF PROCEEDS AND FOR THE REMITTING OF THE NET PROCEEDS FROM ANY SALE TO THE STATE TREASURER TO BE PLACED IN A SPECIAL ACCOUNT, PROVIDE FOR ADMINISTRATIVE SUPPORT BY THE DIVISION OF GENERAL SERVICES IN THE DISPOSITION OF FORFEITED ITEMS, PROVIDE THAT WHENEVER MONIES, NEGOTIABLE INSTRUMENTS, OR SECURITIES AS CONTAINED IN A PORTION OF SECTION 44-53-520 ARE FORFEITED UNDER THE PROVISIONS OF SECTION 44-53-530, THE ATTORNEY GENERAL SHALL PROVIDE FOR THE TRANSFER OF THE ITEMS TO THE STATE TREASURER, WHO SHALL RETAIN THEM IN A SPECIAL ACCOUNT, AND PROVIDE FOR THE DISPOSITION BY THE ATTORNEY GENERAL OF REAL PROPERTY OR "OTHER THINGS OF VALUE" AS CONTAINED IN A CERTAIN PORTION OF SECTION 44-53-520 UPON FORFEITURE; TO AMEND SECTION 44-53-580, AS AMENDED, RELATING TO THE DISPOSITION OF FINES AND FORFEITURES AND NARCOTICS AND CONTROLLED SUBSTANCES, SO AS TO DELETE ANY REFERENCE TO THE COLLECTION OF FORFEITURES; AND TO AMEND ARTICLE 3 OF CHAPTER 53 OF TITLE 44, RELATING TO NARCOTICS AND CONTROLLED SUBSTANCES, BY ADDING SECTION 44-53-582, SO AS TO PROVIDE THAT ALL MONIES USED BY OFFICERS OR AGENTS IN THE LINE OF DUTY TO PURCHASE CONTROLLED SUBSTANCES MUST BE RETURNED TO THE STATE OR LOCAL UNIT OF GOVERNMENT FURNISHING THE MONIES UPON A DETERMINATION BY THE COURT THAT THE MONIES WERE USED IN THE LINE OF DUTY DURING A CRIMINAL INVESTIGATION; BY ADDING SECTION 44-53-584, SO AS TO PROVIDE FOR REPORTS OF ITEMS FORFEITED AND RECEIVED BY ANY LAW ENFORCEMENT AGENCY TO BE FORWARDED TO THE ATTORNEY GENERAL, A COPY TO BE RETAINED BY THE RECEIVING AGENCY, TO PROVIDE FOR THE CONTENTS OF THE REPORTS, AND TO PROVIDE FOR THE ATTORNEY GENERAL TO MAINTAIN RECORDS TO DEVELOP AN ANNUAL REPORT ON FORFEITED ITEMS, THE DISPOSITION OF THE ITEMS, AND THE PROCEEDS FROM THE SALE OF THE ITEMS; BY ADDING SECTION 44-53-586, SO AS TO PROVIDE FOR THE MANNER IN WHICH THE COURT OF COMMON PLEAS PROVIDES FOR NOTICE OF SEIZURE AND A HEARING ON ITEMS SEIZED; TO PROVIDE FOR THE RETURN OF ANY SEIZED ITEM TO THE OWNER OF PUBLIC RECORD IF THE OWNER DEMONSTRATES CERTAIN EVIDENCE TO THE COURT; TO PROVIDE FOR THE LIEN OF ANY INNOCENT PERSON OR OTHER LEGAL ENTITY, RECORDED IN PUBLIC RECORDS, TO CONTINUE UPON TITLE TRANSFER OF ANY FORFEITED ITEM; TO REQUIRE THE LIENHOLDER TO EXECUTE AN AFFIDAVIT IN A POST FORFEITURE PROCEEDING TO THE EFFECT THAT THE LIENHOLDER HAD NO KNOWLEDGE OF THE VIOLATION WHICH RESULTED IN THE FORFEITURE; AND TO PROVIDE FOR PRESUMPTION OF INNOCENCE IN RENTAL FROM A LEGITIMATE RENTAL AGENCY; BY ADDING SECTION 44-53-588, SO AS TO PROVIDE FOR A SPECIAL ACCOUNT TO BE SET UP BY THE STATE TREASURER FOR PROCEEDS FROM THE SALE OF FORFEITED ITEMS WHICH MUST BE REMITTED IN A LIMITED AMOUNT TO THE BODY OR AGENCY WHICH SEIZED THE ITEMS; TO PROVIDE FOR THE BODY OR AGENCY TO REPORT TO THE TREASURER AND ATTORNEY GENERAL ON THE USE OF THE FUNDS AND FOR THE ATTORNEY GENERAL TO REPORT TO THE BUDGET AND CONTROL BOARD; TO PROVIDE FOR THE COMMISSION ON ALCOHOL AND DRUG ABUSE TO SERVE IN AN ADVISORY CAPACITY TO THE DEPARTMENT OF CORRECTIONS IN THE USE OF THE SPECIAL ACCOUNT PROCEEDS; AND TO PROVIDE FOR ANY STATE AGENCY TO REQUEST FUNDS FROM THE SPECIAL ACCOUNT; AND BY ADDING SECTION 44-53-590, SO AS TO PROVIDE THAT ANY PERSON WHO USES PROPERTY OR A CONVEYANCE IN A MANNER WHICH WOULD MAKE THE PROPERTY OR CONVEYANCE SUBJECT TO FORFEITURE AS PROVIDED FOR IN SECTION 44-53-520 OR 44-53-530, WITH CERTAIN STATED EXCEPTIONS, IS GUILTY OF A MISDEMEANOR, PROVIDE PENALTIES, AND PROVIDE THAT THE PENALTIES PRESCRIBED IN SECTION 44-53-590 ARE CUMULATIVE AND MUST BE CONSTRUED TO BE IN ADDITION TO ANY OTHER PENALTY PRESCRIBED BY ANY OTHER PROVISION OF ARTICLE 3 (OF CHAPTER 53 OF TITLE RELATING TO CONTROLLED SUBSTANCES OR HARMFUL OR ILLEGAL DRUGS.
Be it enacted by the General Assembly of the State of South Carolina:
Penalties revised
SECTION 1.Subsection (e) of Section 44-53-370 of the 1976 Code, as last amended by Act 33 of 1981, is further amended to read:
"(e) Any person who knowingly sells, manufactures, delivers, or brings into this State, or who provides financial assistance or otherwise aids, abets, or conspires to sell, manufacture, deliver, or bring into this State, or who is knowingly in actual or constructive possession of
(1) Ten pounds of marijuana is guilty of a felony which is known as 'trafficking in marijuana' and upon conviction must be punished as follows if the quantity involved is:
(a) Ten pounds or more, but less than one hundred pounds, a term of imprisonment of not less than one year nor more than ten years and a fine of ten thousand dollars.
(b) One hundred pounds or more, but less than two thousand pounds, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of twenty-five thousand dollars.
(c) Two thousand pounds or more, but less than ten thousand pounds, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of fifty thousand dollars.
(d) Ten thousand pounds or more, a term of imprisonment of not less than twenty-five years nor more than thirty years with a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of two hundred thousand dollars.
(2) Ten grams or more of cocaine or any mixtures containing cocaine, as provided in Section 44-53-210(b)(4) is guilty of a felony which is known as 'trafficking in cocaine' and upon conviction must be punished as follows if the quantity involved is:
(a) Ten grams or more, but less than twenty-eight grams, a term of imprisonment of not less than three years nor more than ten years and a fine of ten thousand dollars.
(b) Twenty-eight grams or more, but less than one hundred grams, a term of imprisonment of not less than seven years nor more than twenty-five years and a fine of fifty thousand dollars.
(c) One hundred grams or more, but less than two hundred grains, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of fifty thousand dollars.
(d) Two hundred grains or more, but less than four hundred grains, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of one hundred thousand dollars.
(e) Four hundred grams or more, a term of imprisonment of not less than twenty-five years nor more than thirty years with a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of two hundred thousand dollars.
(3) Four grams or more of any morphine, opium, salt, isomer, or salt of an isomer thereof, including heroin, as described in Section 44-53-190 or Section 44-53-210, or four grams or more of any mixture containing any of these substances is guilty of a felony which is known as 'trafficking in illegal drugs' and upon conviction must be punished as follows if the quantity involved is:
(a) Four grams or more, but less than fourteen grams, a term of imprisonment of not less than seven years nor more than twenty-five years and a fine of fifty thousand dollars.
(b) Fourteen grams or more, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of two hundred thousand dollars.
(4) Fifteen grams or more of methaqualone is guilty of a felony which is known as 'trafficking in methaqualone' and upon conviction must be punished as follows if the quantity involved is:
(a) Fifteen grams but less than one hundred fifty grams, a term of imprisonment of not less than one year nor more than ten years and a fine of ten thousand dollars.
(b) One hundred fifty grams but less than fifteen hundred grains, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of twenty-five thousand dollars.
(c) Fifteen hundred grams but less than fifteen kilograms, a mandatory term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of fifty thousand dollars.
(d) Fifteen kilograms or more, a term of imprisonment of not less than twenty-five years nor more than thirty years with a mandatory minimum term of imprisonment of twenty-five years, no part of which may be suspended, and a fine of two hundred thousand dollars.
Any person convicted and sentenced under this subsection to a mandatory minimum term of imprisonment of twenty-five years is not eligible for parole, extended work release, as provided for in Section 24-13-610, or supervised furlough, as provided for in Section 24-13-710. Notwithstanding Section 44-53-420, any person convicted of conspiracy pursuant to this subsection (e) must be sentenced as provided.
The weight of any controlled substance in this subsection includes the substance in pure form or any compound or mixture of the substance."
Conditions for parole
SECTION 2. Section 24-21-610 of the 1976 Code, as last amended by Act 100 of 1981, is further amended to read:
"Section 24-21-610. In all cases cognizable under this chapter the Board may, upon ten days written notice to the solicitor and judge who participated in the trial of any prisoner, parole a prisoner convicted of a felony and imprisoned in the state penitentiary, in any jail, or upon the public works of any county who if:
(1) sentenced for not more than thirty years has served at least one third of the term;
(2) sentenced to life imprisonment or imprisonment for any period in excess of thirty years, has served at least ten years;
(3) he is a first offender and is sentenced for an indeterminate term has served the minimum for which he was sentenced.
If after January 1, 1984, the Board finds that the statewide case classification system provided for in Chapter 23 of this title has been implemented, that an intensive supervision program for parolees who require more than average supervision has been implemented, that a system for the periodic review of all parole cases in order to assess the adequacy of supervisory controls and of parolee participation in rehabilitative programs has been implemented, and that a system of contracted rehabilitative services for parolees is being furnished by public and private agencies, then in all cases cognizable under this chapter the Board may, upon ten days' written notice to the solicitor and judge who participated in the trial of any prisoner, to the victim or victims, if any, of the felony, and to the sheriff of the county where the prisoner resides or will reside, parole a prisoner convicted of a felony and imprisoned in the state penitentiary, in any jail, or upon the public works of any county who, if:
(1) sentenced for the crime of murder, armed robbery, criminal sexual assault, assault and battery with intent to kill, or kidnapping, has served at least one third of the term. For any other crime the prisoner shall have served at least one fourth of the term;
(2) sentenced to life imprisonment or imprisonment for any period in excess of forty years, has served at least ten years;
(3) he is a first offender and is sentenced for an indeterminate term has served the minimum for which he was sentenced.
The provisions of this section do not affect the parole ineligibility provisions for murder, armed robbery, and drug trafficking as set forth respectively in Section 16-3-20, Section 16-11-330, and subsection (e) of Section 44-53-370.
In computing parole eligibility, no deduction of time may be allowed hi any case for good behavior, but after June 30, 1981, there must be deductions of time in all cases for earned work credits, notwithstanding the provisions of Sections 16-3-20, 16-11-330, and 24-13-230.
Notwithstanding the provisions of this section, the Board may parole any prisoner not sooner than one year prior to the prescribed date of parole eligibility when, based on medical information furnished to it, the Board determines that the physical condition of the prisoner concerned is so serious that he would not be reasonably expected to live for more than one year. Notwithstanding any other provision of this section or of law, no prisoner who has served a total of ten consecutive years or more in prison may be paroled until the Board has first received a report as to his mental condition and his ability to adjust to life outside the prison from a duly qualified psychiatrist or psychologist."
Items subject to forfeiture
SECTION 3. Section 44-53-520 of the 1976 Code, as last amended by Act 372 of 1980, is further amended to read:
"Section 44-53-520. (a) The following are subject to forfeiture:
(1) All controlled substances which have been manufactured, distributed, dispensed, or acquired in violation of this article;
(2) 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 article;
(3) All property which in any manner facilitates trafficking in various controlled substances as defined in this article or is used, or intended for use, as a container for property described in item (1) or (2);
(4) 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 article;
(5) All conveyances including, but not limited to, trailers, aircraft, motor vehicles, and water going vessels which are used or intended for use to accomplish trafficking in various controlled substances as defined in this article;
(6) All monies, negotiable instruments, securities, real property, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance, all proceeds including, but not limited to, monies, and real and personal property traceable to such an exchange, and all monies, negotiable instruments, securities, real property, or other things of value used or intended to be used to facilitate or accomplish trafficking in various controlled substances as defined in this article;
(7) All monies, coin, and currency in excess of one hundred dollars found in close proximity to forfeitable controlled substances in amounts subject to trafficking as defined in this article, drug manufacturing, or distributing paraphernalia, or in close proximity to forfeitable records of the importation, manufacturing, or distribution of controlled substances.
(b) Any item subject to a forfeiture under this article may be seized by the department having authority upon process issued by any court having jurisdiction over the item. Seizure without process may be made if:
(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;
(2) The item 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 article;
(3) The department has probable cause to believe that the item is directly or indirectly dangerous to health or safety; or
(4) The department has probable cause to believe that the item was used or is intended to be used in violation of this article.
(c) In the event of seizure pursuant to subsection (b), proceedings under Section 44-53-530 regarding forfeiture and disposition must be instituted promptly.
(d) Any item taken or detained under this section is not subject to replevin but is considered to be in the custody of the department making the seizure subject only to the orders of the court having jurisdiction over the forfeiture proceedings.
(e) Controlled substances listed in Schedule I that are possessed, transferred, sold, or offered for sale in violation of this article are contraband and must be seized and summarily forfeited to the State. Controlled substances listed in Schedule 1, which are seized or come into the possession of the State, the owners of which are unknown, are contraband and must be summarily forfeited to the State.
(f) 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 article, or of which the owners or cultivators are unknown, or which are wild growths, may be seized and summarily forfeited to the State.
(g) The failure, upon demand by the department having authority to make the demand, 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 is the holder thereof, constitutes authority for the seizure and forfeiture of the plants.
(h) For the purposes of this section, whenever the seizure of any item subject to seizure is accomplished as a result of a joint effort by more than one law enforcement agency, the law enforcement agency initiating the investigation is considered to be the agency making the seizure.
(I) Law enforcement agencies seizing items under this section shall insure that the items are properly maintained. Equipment and conveyances seized must be removed to an appropriate place for storage. Any monies, negotiable instruments, or securities seized must be deposited in an interest bearing account pending final disposition by the court unless the seizing agency determines the items to be of an evidential nature and provides for their security in another manner.
(j) Whenever items are seized as provided for under this section, the law enforcement agency making the seizure shall, within ten days of the seizure or within a reasonable period of time where special need can be demonstrated, submit a report to its governing body with a copy to the Attorney General's Office.
The report shall provide a description of the items seized, the circumstances of their seizure, and the location where the items are being stored."
Method by which forfeiture accomplished
SECTION 4. Section 44-53-530 of the 1976 Code, as last amended by Act 462 of 1980, is further amended to read:
Section 44-53-530. (1) Forfeiture of items defined in Section 44-53-520 must be accomplished by petition of the Attorney General or his designee or the circuit solicitor or his designee to the court of common pleas for the jurisdiction where the items were seized. The petition must be submitted to the court within a reasonable time period following seizure and shall set forth the facts upon which the seizure was made. Petitions for the forfeiture of conveyances shall also include the following information: the make, model, and year of the conveyance, the person in whose name the conveyance is registered, the person who holds the title to the conveyance, and the type and quantity of the controlled substance involved. A copy of the petition must be sent to each law enforcement agency which has notified the petitioner of its involvement in the seizure.
The court shall issue a rule to show cause directing any person with an interest in the items or any person who is presumed to be the owner of the items through title as documented in public records to show cause why the items should not be forfeited. If the judge finds items to be subject to forfeiture as provided by law, he shall issue an order declaring the items to be forfeited to the State and order the appropriate notification and transfer to the Attorney General. If there is a dispute as to which law enforcement agency initiated the seizure, this issue must be determined by the court. If any item seized is a conveyance or equipment, the law enforcement agency initiating the seizure may request the court to have the item or title transferred to the law enforcement agency upon a showing of substantial and compelling need.
(2) Whenever any items defined in items (1) through (5) of subsection (a) of Section 44-53-520 are forfeited under the provisions of this section, the Attorney General may retain the items or title or may, in his discretion, and in coordination with the Division of General Services, provide for the transfer of the items or title:
(a) to the law enforcement agency making the seizure when that agency demonstrates a legitimate need for the items;
(b) to any other appropriate agency; or
(c) to the custody of the Division of General Services and require that the items be sold or transferred in accordance with state law. Proceeds may be used by the Attorney General for payment of all proper expenses of the proceedings for the forfeiture and sale of these items, including the expenses of seizure, maintenance, and custody and other costs incurred by the implementation of this section. The net proceeds from any sale must be remitted to the State Treasurer to be placed in a special account. The Division of General Services shall provide the necessary administrative support to the Attorney General's Office in the disposition of forfeited items as provided for in this section.
(3) Whenever monies, negotiable instruments, or securities as contained in item (6) of subsection (a) of Section 44-53-520 are forfeited under the provisions of this section, the Attorney General shall provide for the transfer of the items to the State Treasurer, who shall retain them in a special account. Whenever real property or 'other things of value' as contained in item (6) of subsection (a) of Section 44-53-520 are forfeited under the provisions of this section, the Attorney General shall dispose of the items as provided for under item (c) of subsection (2) of this section."
Fines
SECTION 5. Section 44-53-580 of the 1976 Code, as last amended by an act of 1984 bearing ratification number 268, is further amended to read:
"Section 44-53-580. All fines collected by any court or agency resulting from any violation of any provision of this article must be remitted to the State Treasurer under terms and conditions as he may determine. All fines must be used by the Department of Mental Health exclusively for the treatment and rehabilitation of drug addicts within the department's addiction center facilities.
All monies used by law enforcement officers or agents to purchase controlled substances as provided in item (5) of subsection (a) of Section 44-53-520 must be, upon application to the court, returned to the county or municipality furnishing such monies."
Monies must be returned
SECTION 6. Article 3 of Chapter 53 of Title 44 of the 1976 Code is amended by adding:
"Section 44-53-582. All monies used by law enforcement officers or agents, in the line of duty, to purchase controlled substances during a criminal investigation must be returned to the State or local unit of government furnishing the monies upon a determination by the court that the monies were used by law enforcement officers or agents, in the line of duty, to purchase controlled substances during a criminal investigation."
Report required
SECTION 7. Article 3 of Chapter 53 of Title 44 of the 1976 Code is amended by adding:
"Section 44-53-584. Any law enforcement agency receiving items forfeited under the provisions of this article shall make a report in duplicate of all items forfeited after final determination by the court. One copy must be forwarded to the Attorney General and one copy retained by the receiving agency. The report shall provide the following information with respect to the items: (a) description, (b) location, (c) present custodian, (d) name of owner, and (e) seizing agency. If the item is a conveyance, the report shall include the following: the make, model, and year of the conveyance; the person in whose name the conveyance is registered; the person who holds the title of ownership; and the quantity of the controlled substance involved in the forfeiture of the conveyance. The Attorney General shall maintain the necessary records to develop an annual report on the items forfeited to the State, the disposition of those items, and the proceeds from the sale of the items."
Petition for return of certain items
SECTION 8. Article 3 of Chapter 53 of Title 44 of the 1976 Code is amended by adding:
"Section 44-53-586. A. Any innocent owner, parent owner, guardian owner, lienholder of public record or any manager or owner of a licensed rental agency or any common carrier or carrier of goods for hire may apply to the court of common pleas for the return of any item seized under the provisions of Section 44-53-520. Notice of seizure and hearing must be accomplished by the court, as follows:
(1) personal service of the owner of record; lienholder of record by certified copy of the petition for forfeiture or notice of hearing or
(2) by certified mail, to the last known address of the owner of record as appears on the title to the conveyance; or to the lienholder of record by mailing a copy of the petition for forfeiture or notice of hearing to the applicable governmental agency which normally records the liens. Proof of service may be established by affidavit.
B. The court may return any seized item to the owner of public record, if the owner demonstrates to the court by a preponderance of the evidence:
(1) In the case of an innocent owner, parent owner, guardian owner, or lienholder of public record, that the person or entity was not a consenting party to, or privy to, or did not have knowledge of, the concealment, containment, or transportation of controlled substances.
(2) In the case of a manager or an owner of a licensed rental agency, a common carrier, or a carrier of goods for hire, that any agent, servant, or employee of the rental agency or of the common carrier or carrier of goods for hire was not a party to, or privy to, or did not have knowledge of, the concealment, containment, or transportation of controlled substances in the property.
If the licensed rental agency demonstrates to the court that it has rented the seized property in the ordinary course of its business and that the tenant or tenants were not related within the third degree of kinship to the manager or owner, or any agents, servants, or employees of the rental agency, then it is presumed that the licensed rental agency was not a party to, or privy to, or did not have knowledge of, the concealment, containment, or transportation of controlled substances in the property.
C. The lien of any innocent person or other legal entity, recorded in public records, shall continue in force upon transfer of title of any forfeited item, and any transfer of title is subject to the lien. In the event of a forfeiture, the lienholder is required to execute an affidavit in a post-forfeiture proceeding to the effect that the lienholder had no knowledge of any record of conviction for a violation of any drug law by the owner of the conveyance and was not a consenting party or privy to the violation which resulted in the forfeiture. Rental from a legitimate rental agency gives rise to it presumption of innocence."
Proceeds remitted to State Treasurer
SECTION 9. Article 3 of Chapter 53 of Title 44 of the 1976 Code is amended by adding:
"Section 44-53-588. All cash proceeds and other proceeds from the sale of forfeited items under Section 44-53-530 must be remitted to the State Treasurer, who shall place them in a special account. The State Treasurer shall remit to the governing body of the local law enforcement agency, or to a state law enforcement agency, whichever initiated seizure of the item or items, twenty-five percent of the proceeds from the sale of the forfeited item or items to be used by law enforcement in the control of drug offenses or for drug rehabilitation purposes. However, no governing body may receive more than one hundred thousand dollars in proceeds from the special account for each seizure. Any governing body or state agency receiving the proceeds shall annually report to the State Treasurer and to the Attorney General the use made of the funds and the funds must not be used to supplant current operating funds. The Attorney General shall annually make a report to the State Budget and Control Board of the use made of the funds. The remaining seventy-five percent of the proceeds from the sale of the forfeited item or items must be retained in the special account. Twenty-five percent of the proceeds retained in the special account must be retained for use by the State Department of Corrections for rehabilitation programs for prisoners. The State Commission on Alcohol and Drug Abuse shall serve in an advisory capacity to the Department of Corrections to assure that the expenditure of the funds is consistent with the state plans as required by subsection (c) of Section 44-49-40.
Any state agency, including, but not limited to, the Department of Mental Health, the Department of Youth Services, and the Department of Corrections, may request funds from this special account in its annual appropriations request, and may receive those funds only after approval in the annual state appropriations act. The request shall document and justify how the funds will impact on the problems associated with the illegal use of controlled substances by enhancing state agencies' preventive, investigative, prosecutorial, correctional, or rehabilitative functions.
No funds so requested and obtained from the special account may be used to supplant existing state funds."
Penalty
SECTION 10. Article 3 of Chapter 53 of Title 44 of the 1976 Code is amended by adding:
"Section 44-53-590. Any person who uses property or a conveyance in a manner which would make the property or conveyance subject to forfeiture as provided for in Section 44-53-520 or 44-53-530, except for innocent owners, rental agencies, lienholders, and the like as provided for in this article, is guilty of a misdemeanor and upon conviction must be imprisoned for not less than thirty days nor more than one year or fined not more than five thousand dollars, or both, in the discretion of the court. The penalties prescribed in this section are cumulative and must be construed to be in addition to any other penalty prescribed by any other provision of this article relating to controlled substances or harmful or illegal drugs."
Time effective
SECTION 11. This act shall take effect upon approval by the Governor.
Approved the 19th day of June, 1984..