TITLE 4

Alcoholic Liquors

CHAPTER 11. SEIZURE AND CONFISCATION


(a) Wherever alcoholic liquor is being peddled in this State, or whenever any alcoholic liquor is transported in this State, unaccompanied by a license to transport such alcoholic liquor, or unaccompanied by a waybill as provided in § 718(c) of this title, any police officer of the State or subdivision thereof or any inspector of the Division may seize such alcoholic liquor, as well as the receptacle or receptacles containing the same, and hand them over to the Division.

(b) This section shall not at any time or in any instance apply to an individual who is the holder of a license to purchase a stock of draft beer in half barrel or quarter barrel containers for personal use and is transporting for the individual's own personal use from the individual's home after delivery has been made thereto by an importer.

(c) This section does not apply to persons transporting alcoholic liquor under §§ 501 and 716 of this title.

38 Del. Laws, c. 18, § 55; Code 1935, § 6182; 41 Del. Laws, c. 256, § 1; 42 Del. Laws, c. 191, § 6; 4 Del. C. 1953, § 1101; 55 Del. Laws, c. 82, § 11; 58 Del. Laws, c. 248, §§ 1, 2; 67 Del. Laws, c. 109, § 31; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 486, § 13.;

(a) Any officer or inspector of the Division so authorized, may seize, without a warrant, any alcoholic liquor, as well as any receptacle containing it, shipped into a municipality or part of this State in which a prohibitory law is in force, or whose competent authority has decided, in the manner set forth in § 102 of this title, that any license or any certain kind of license shall not be granted, unless each parcel containing such alcoholic liquor is clearly and visibly addressed to the bona fide purchaser. The fact that such parcel is so addressed shall not, however, prevent the seizure of the alcoholic liquor and of the receptacle containing it if such alcoholic liquor is shipped or sold contrary to any provision of this title.

(b) The alcoholic liquor seized as well as the receptacles containing it shall be handed over to the Division.

(c) This section shall not apply to an individual, the holder of a license to purchase a stock of draft beer in half barrel or quarter barrel containers for personal use, who having said license then with him or her, is personally transporting for his or her own personal use such draft beer.

38 Del. Laws, c. 18, § 56; Code 1935, § 6183; 42 Del. Laws, c. 191, § 7; 4 Del. C. 1953, § 1102; 55 Del. Laws, c. 82, § 12; 58 Del. Laws, c. 248, § 3; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 486, § 13.;

All alcoholic liquor, stills and other apparatus, tubs, barrels, containers and paraphernalia of any character, and all mash, wort or wash, used or useful in connection with the manufacture of alcoholic liquor which are upon the premises wherein or whereon are committed any offense defined in § 905 of this title, shall be seized by the officers apprehending the same and disposed of as provided in this section. The officers finding the same may forthwith destroy any or all mash, wort or wash upon the premises, and any or all stills or other apparatus, tubs, barrels, containers and paraphernalia so found. The officer or officers destroying any property shall forthwith report the same to the Commissioner and in such report shall itemize all property destroyed and the estimated value thereof and shall state the names of the persons in whose presence such act or acts of destruction were performed. The report shall be witnessed by at least 2 responsible persons other than the officer or officers performing such act or acts of destruction. The Commissioner may sell any property of value so seized to any person or persons desiring to purchase same, who in the opinion of the Commissioner will not utilize same in connection with any violation of this chapter. The proceeds from such sale shall be deposited in the General Fund of the State.

Code 1935, § 6174A; 45 Del. Laws, c. 261, § 1; 4 Del. C. 1953, § 1103; 50 Del. Laws, c. 427, § 1; 72 Del. Laws, c. 486, § 11.;

Every officer and inspector of the Commissioner and all other peace officers of this State, may, without a warrant, seize property, as hereinafter defined, kept, transported, possessed or sold in contravention of this title, when found in any disorderly house; and may also seize such property in like manner and for like violations when the said property is used in connection with any offense under this title to the knowledge of the Commissioner or any of its officers or inspectors or to the knowledge of any other peace officer of this State. Immediately upon seizure, such property shall be deemed to be confiscated and the Commissioner shall be vested with a special property therein, subject to this chapter. The word "property" as used in this chapter includes alcoholic liquor, stills and other apparatus designed for the manufacture of alcoholic liquor, receptacles and other paraphernalia used in connection with any violation of this title, and all vehicles used in connection with the unlawful transportation of alcoholic liquor. This chapter shall not apply to vehicles operated by common carriers over scheduled routes, or to such vehicles in which the sale of alcoholic liquor is licensed. Forthwith upon seizure, all property seized shall be delivered to and shall be retained and disposed of by the Commissioner under the provisions of this chapter, subject, however, to any right or power of immediate destruction otherwise conferred by this chapter. The word "Commissioner" as used in the immediately preceding sentence includes any officer or inspector thereof with respect to delivery to the Commissioner of seized property as defined in this section.

38 Del. Laws, c. 18, § 57; Code 1935, § 6184; 45 Del. Laws, c. 264, § 1; 4 Del. C. 1953, § 1104; 72 Del. Laws, c. 486, § 11.;

All property seized and delivered into the possession of the Division shall be disposed of in the following manner:

(1) The enforcement officers of the Division or the peace officers who seized the property shall give written notice to the person whom they reasonably believe to be the owner of the property, and to the person from whom the property was seized, if they reasonably believe such person is not the owner, that such person may within 10 days of the date of notice and upon proof, satisfactory to the Commissioner that such property had not been used in connection with any violation of any of the provisions of this title, or of the rules of the Commissioner or both, if so used, that the use was without the knowledge, acquiescence or consent of the rightful owner, the owner's agent, employee or servant, return said property to the rightful owner. Any dispute between the enforcement personnel of the Division and the person believed to be the rightful owner or the person from whom the property was seized, shall be resolved by a hearing before the Commissioner. The Commissioner's decision shall be final and conclusive unless any party, having appeared before the Commissioner, appeals to the Superior Court of the State within 10 days of the date of the written decision.

(2) Any property seized pursuant to this chapter which consists of alcoholic liquor and its container may, after the provisions of paragraph (1) of this section have been complied with, be offered for sale to the licensed Delaware importers of alcoholic liquor at the prevailing price paid by the importers for like brands and quality. If the alcoholic liquor is distributed in this State by more than 1 licensed importer, then the Commissioner shall offer said seized alcoholic liquor to all importers who engage in the sale of such brand of alcoholic liquor. If the seized alcoholic liquor is purchased by a licensed Delaware importer, the importer shall issue to the Commissioner a voucher showing at least the following facts:

(a) The date of the purchase;

(b) The purchase price of each item purchased; and

(c) The quantity and nature of the item purchased.

At the subsequent direction of the Commissioner, the licensed Delaware importer which purchased the liquor shall:

1. If the owner of the alcoholic liquor or the person from whom the liquor was seized, if different from the person reasonably believed to be the owner, shall be found guilty of the offenses in violation of the Liquor Control Act or the rules of the Office of the Commissioner or both, issue its check payable to the Office of the Commissioner in the amount of the total purchase price shown on the voucher, which amount shall be applied by the Commissioner as provided in § 1110 of this title as proceeds of a sale authorized by order of court; or

2. If the owner of the alcoholic liquor and the person from whom the liquor was seized, if different from the person reasonably believed to be the owner, shall be acquitted of the offenses alleged to have been in violation of the Liquor Control Act or the rules of the Commissioner, or both, issue its check payable to such person, or, at such person's election, deliver alcoholic liquor of the same or similar nature and quantity described in the voucher to such person.

3. The enforcement officers of the Division with the advice of other peace officers of this State and/or the Department of Justice may retain all or part of the alcoholic liquor and its containers seized for use as evidence for as long a period as they deem necessary. Thereafter it may be disposed of pursuant to this chapter.

4. All other such seized property shall be disposed of as is provided in this chapter.

38 Del. Laws, c. 18, § 57; Code 1935, § 6184; 45 Del. Laws, c. 264, § 1; 4 Del. C. 1953, § 1105; 58 Del. Laws, c. 248, § 4; 70 Del. Laws, c. 186, § 1; 72 Del. Laws, c. 486, § 14.;

Before filing the report and petition required by § 1107 of this title, the Division shall examine or cause to be examined records of liens on motor vehicles at the titling department in Dover and records of conditional sales contracts recorded in the offices of the recorders of the counties to ascertain what liens, if any, had been entered against any motor vehicles seized under this chapter and all available information as to ownership of such vehicles and liens, if any, upon the same shall be incorporated in such report and petition.

38 Del. Laws, c. 18, § 57; Code 1935, § 6184; 45 Del. Laws, c. 264, § 1; 4 Del. C. 1953, § 1106; 72 Del. Laws, c. 486, § 13.;

The Division shall, from time to time in its discretion, file a report and petition in the Superior Court in any county of the State. The report and petition shall set forth (1) the date of the filing of the last preceding report, with term number thereof, (2) an itemized list of all property seized and delivered to the Division under this chapter with the date of seizure of each item, but the report may not include property previously disposed of under this chapter or involved in pending offenses either before the courts of the State or the Division, (3) a statement of the circumstances of each seizure with the names and addresses, so far as known, of any persons in possession of the property at the time of the seizure thereof, and the names and addresses of any persons believed by the enforcement officers of the Division or the peace officers who made the seizure to be the rightful owners of said property (and as to motor vehicles, the lienholders thereon), (4) whether or not any portion or part of the property listed in the report and petition was returned to others or other claimants, (5) a list of requests, if any, of state departments, agencies, institutions, hospitals or other institutions supported in whole or in part by state appropriations, for any property seized and herein described, (6) the disposition of any prosecutions in any court of any cases involving offenses under this title or against the rules of the Division and arising out of arrests made in connection with the seizure of any such property, and (7) a statement of the estimated value of each item of property listed in the report and petition, so far as may be ascertained, with the names and addresses, so far as known, of all persons claiming ownership of such property or any lien thereon. The report and petition shall request an order of the Court as to the disposal of the property.

38 Del. Laws, c. 18, § 57; Code 1935, § 6184; 45 Del. Laws, c. 264, § 1; 4 Del. C. 1953, § 1107; 58 Del. Laws, c. 248, § 5; 72 Del. Laws, c. 486, § 13.;

(a) Upon the filing with the Court of the Division's report and petition in accordance with § 1107 of this title, the Court shall direct the issuance of a rule returnable on a day certain at the next succeeding term of the Court, directed to all known claimants, owners and lienors, and such rule shall be issued to and served by the sheriff of the county in which such claimant, owner or lienor shall reside or, if the Court shall so direct, may be mailed by the clerk of the peace to such claimants, owners or lienors at the addresses disclosed by the report and petition. In addition, the Court shall direct publication of a notice, in a form approved by the Court, in a newspaper of general circulation in the county or counties where the property or any part thereof was located at the time of seizure. The publication shall be made at least 1 time weekly during 2 successive weeks preceding the week during which the rule is returnable.

(b) Upon the return of the rule, the Court may order:

(1) The destruction of any of such property except legally distilled spirits with seals and containers so preserved and with labels and seals unbroken as to permit or be eligible for resale;

(2) The delivery of any thereof to any state department, agency or institution or to any hospital or other institution supported in whole or in part by state appropriations, for which such institution shall have use in the conduct of its authorized activities, which order and subsequent delivery shall vest title in and to all such property in the agency, department or institution receiving same;

(3) The sale of any thereof by the Division at public sale, except that such order may direct the Division in its discretion to offer privately for sale in regular trade channels to the licensed importers of alcoholic liquor such of the alcoholic liquor as are bottled for the trade and with labels and seals unbroken at the prevailing price paid by the importers for like brands and quality, and upon any other terms the Court decides should be imposed;

(4) In the case of order for sale of any motor vehicle seized in accordance with this chapter, the order shall also direct that after advertisement and public sale, the proceeds of such sale shall first be applied to the costs of the proceedings including storage, then to bona fide liens placed upon the vehicles prior to seizure, and then to the Division to be disposed of as otherwise provided in this chapter.

(c) The Division shall make return to the Court of its proceedings under the Court's order.

38 Del. Laws, c. 18, § 57; Code 1935, § 6184; 45 Del. Laws, c. 264, § 1; 4 Del. C. 1953, § 1108; 72 Del. Laws, c. 486, § 13.;

(a) The Superior Court may adopt rules to govern proceedings under this chapter.

(b) All proceedings under this chapter shall be in the nature of proceedings in rem for the forfeiture and disposition of property seized and not otherwise disposed of under this chapter.

(c) Nothing contained in this chapter shall be construed as depriving any owner or person holding a lien upon or conditional title to any property seized from pursuing any remedy otherwise available in any court for the recovery of said property, but no such other remedy shall be available and no other proceeding for the recovery of said property shall be brought after a petition, involving said property, has been filed in the Superior Court under the authority of § 1107 of this title, and in such case all remedies of persons claiming title to or liens upon such seized property shall be asserted and adjudicated in the cause presented by such petition in the Superior Court.

(d) In any action or proceeding brought by an alleged owner, lienor or claimant of the seized property, this State, acting on behalf of the Division, shall be permitted to intervene as a party defendant and justify the seizure under the authority of this chapter, and in such case, as well as in any case arising under this chapter, the Court may by order, judgment or decree require the payment to the Division of all proper costs and expenses of seizure, holding, storage or other acts or proceedings under the authority of this chapter.

(e) It shall be no objection to any report and petition filed by the Division under § 1107 of this title that it relates to and deals with the property of more than one person or property seized on more than one occasion, nor shall the Superior Court refuse to act upon any such petition because any criminal proceeding arising out of the seizure of such property remains undisposed of, has resulted in an acquittal or has been retired or nolle prossed by the Attorney General.

38 Del. Laws, c. 18, § 57; Code 1935, § 6184; 45 Del. Laws, c. 264, § 1; 4 Del. C. 1953, § 1109; 72 Del. Laws, c. 486, § 13.;

(a) Where a sale of property has been authorized by order of court under this chapter, and consummated, the proceeds to the extent of an aggregate of $15,000 during any one fiscal year, shall be retained by the Division as a special fund for enforcement of this title, any sum so received in excess of $15,000, during any 1 fiscal year, shall be paid into the General Fund of the State. If at the end of any fiscal year there is in the fund more than $15,000, the excess shall be paid into the General Fund of the State.

(b) All taxable costs in any proceeding under this chapter in the Superior Court, including the costs of publication and sale, shall be paid by the Division from any of its available funds, but first out of the proceeds of sale to the extent such proceeds may be adequate for the purpose.

38 Del. Laws, c. 18, § 57; Code 1935, § 6184; 45 Del. Laws, c. 264, § 1; 4 Del. C. 1953, § 1110; 72 Del. Laws, c. 486, § 13; 79 Del. Laws, c. 118, § 1.;

The provisions of this chapter pertaining to searches and seizures shall be subject to Chapter 23 of Title 11. In the event of any conflict or inconsistency between this chapter and Chapter 23 of Title 11, the latter shall prevail.

4 Del. C. 1953, § 1111.;