CHAPTER 450

FORMERLY

HOUSE BILL NO. 502

AS AMENDED BY

HOUSE AMENDMENT NOS. 1, 2, AND 3

AN ACT TO AMEND SUBCHAPTER VI, CHAPTER 47, TITLE 16 OF THE DELAWARE CODE RELATING TO CONTROLLED SUBSTANCES.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE:

Section 1. Amend Section 4784, Subchapter VI, Chapter 47, Title 16 of the Delaware Code by striking said section in its entirety and by substituting in lieu thereof the following:

"(a) The following shall be subject to forfeiture to the State of Delaware and no property rights shall exist in them:

(1) All controlled substances which have been manufactured, distributed, possessed, dispensed, or acquired in violation of this subchapter;

(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 chapter;

(3) Any property which is used, or intended for use, as a container for property described in paragraphs (1), (2), or (6);

(4) Any conveyances, including aircraft, vehicles, or vessels, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, trafficking in or possession with intent to deliver property described in paragraph (l), or (2) except that

a. no vehicle 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 the owner or other person in charge of the vehicle is a consenting party or privy to a violation of the Uniform Controlled Substances Act;

b. no vehicle 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 his knowledge or consent;

c. a vehicle is not subject to forfeiture for a violation of Section 4753, 4754, 4757, and 4758 of Title 16; and

d. a forfeiture of a vehicle encumbered by a bona fide security interest is subject to the interest of the secured party if he neither had knowledge of nor consented to the act or omission;

(5) 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;

(6) All drug paraphernalia as defined in sec. 4701 of this title;

(7) All moneys, negotiable instruments, securities or any other thing of value furnished, or intended to be furnished, in exchange for a controlled substance, or drug paraphernalia in violation of this chapter; all profits or proceeds traceable to securities, assets or interest used, or intended to be used, to facilitate any violation of this chapter. However, no property interest of an owner, by reason or any act or omission established by him to be committed or omitted without his knowledge or consent shall be forfeited in the items listed in this paragraph;

a. All moneys, negotiable instruments or securities found in close proximity to forfeitable controlled substances, or to forfeitable records of the importation, manufacture or distribution of controlled substances are presumed to be forfeitable under this paragraph. The burden of proof is upon claimant of the property to rebut this presumption.

b.

All moneys, negotiable instruments or securities found to have trace amounts of controlled substances on them are presumed to be forfeitable under this paragraph. The burden of proof is upon the claimant of the property to rebut this presumption.

c. To the extent that assets, interests, profits and proceeds forfeitable under this paragraph; (i) cannot be located, (ii) have been transferred, sold to or deposited with third parties, or (iii) have been placed beyond the jurisdiction of the State, the court, following conviction of the individual charged, may direct forfeiture of such other assets of the defendant as may be available, limited in value to those assets that would otherwise be forfeited under this paragraph. Upon petition of the defendant, the court may authorize redemption of assets forfeited under this paragraph, provided the assets described in this paragraph are surrendered or otherwise remitted by such defendant to the jurisdiction of the court;

(8) Any real property which is used, or is intended for use, to store, grow, manufacture, compound, process, deliver, import or export any controlled substance in violation of this chapter except that:

a. No real property is subject to forfeiture under this section by reason of any act or omission established by any owner thereof to have been committed or omitted without his knowledge or consent;

b. No real property being leased out by its owner shall be subject to forfeiture under this section unless the owner of the real property is a consenting party or privy to the violation of the Controlled Substances Act; and

c. No real property shall be subject to forfeiture for a violation of §4753, §4754, §4754A, §4755, §4757 or §4758 of Title 16; and

d. A forfeiture of real property encumbered by a bona fide security interest of the secured party if he neither had knowledge of nor consented to the act or omission.

(b) Notwithstanding any other provisions of the laws of this State or rules of court, the procedures listed in subsection (c) through (j) of this section are applicable to the administrative forfeiture of property subject to forfeiture under this section.

(c) Property subject to forfeiture under this chapter may be seized by the Secretary upon process issued by any Superior Court having jurisdiction over the property. Seizure without process may be made if:

(1) The seizure made is pursuant to subchapter I, Chapter 23, Title 11 or an inspection under an administrative inspection warrant;

(2) The property subject to seizure has been the subject of a prior judgement in favor of the State in a criminal, injunction or forfeiture proceeding based upon this chapter;

(3) The Secretary has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(4) The Secretary has probable cause to believe that the property was used or intended to be used in violation of this chapter.

(d) In the event of seizure pursuant to subsection (c), proceedings under subsections (e) and (j) shall be instituted promptly.

(e) Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the Secretary subject only to the orders and decrees of the Superior Court. When property is seized under this chapter, the Secretary may:

(1) Place the property under seal:

(2) Remove the property to a place designated by him; or

(3) Require the Department of Health and Social Services to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

(f) When property is forfeited under this chapter the Secretary may:

(1) Retain it for official use;

(2) Sell that which is not required to be destroyed by law and which is not harmful to the public. The proceeds shall be used for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs;

(3) Allow the arresting agency or any other law enforcement division to use the property for the purpose of law enforcement provided that any proceeds remaining after the payment of expenses and any other money forfeited or realized from forfeited property shall be deposited to the Special Law Enforcement Assistance Fund for the use of the State for any purpose deemed by the Attorney General to be in the interest of law enforcement;

(4) Require the Department of Health and Social Services to take custody of the property and remove it for disposition in accordance with law; or

(5) Forward it to the Bureau for disposition.

(g) Controlled substances listed in Schedule I 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, the owners of which are unknown, which are seized or come into the possession of the State are contraband and shall be summarily forfeited to the State.

(h) 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 State.

(i) The failure upon demand by the Secretary, or his authorized agent 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.

(j) Property seized pursuant to this section that is not summarily forfeited pursuant to subsection (f) shall be automatically forfeited to the State upon application to the Superior Court if, within 45 days of notification of seizure to all known parties having possessory interest in the seized property by registered or certified mail to the last known post-office address of the parties in interest and by publication in a newspaper of general circulation in this State, the person or persons claiming title to the seized property do not institute proceedings in the Superior Court to establish:

(1) That they have the lawful possessory interest in the seized property; and

(2) The property was unlawfully seized or not subject to forfeiture pursuant to this section.

Approved October 12, 1990.