CHAPTER 23A-49
CIVIL FORFEITURE FOR CRIME
23A-49-1 Real property subject to forfeiture for crime listed in chapter 34-20B or 22-24A.
23A-49-2 Conveyance used in common carrier business not subject to forfeiture--Exception.
23A-49-3 Stolen and leased conveyances not subject to forfeiture--Exception.
23A-49-4 Conveyance not subject to forfeiture for acts or omissions of nonowner--Exception.
23A-49-5 Item not subject to forfeiture for act or omission without owner's knowledge or consent.
23A-49-6 Victim protected against forfeiture by victim immunity.
23A-49-7 Seizure of property by court process.
23A-49-8 Seizure of property without court process.
23A-49-9 Time for instituting proceedings.
23A-49-10 Seized property subject only to order of court or official.
23A-49-11 Attorney general action with respect to seized property.
23A-49-12 Property subject to security interest--Action by attorney general.
23A-49-13 Civil action--Standard of proof.
23A-49-14 Procedure in forfeiture proceedings involving property other than real property or conveyances.
23A-49-15 Procedure in forfeiture proceedings involving real property or conveyances.
23A-49-16 Service of process by mail where person released on bail.
23A-49-17 Answer by party in interest.
23A-49-18 Disposition of property by court where no appearance made.
23A-49-19 Trial--Disposition of property by court.
23A-49-20 Attorney general's disposition of forfeited property.
23A-49-21 Seized property--Written report--Contents.
23A-49-22 Seized property--Searchable website or spreadsheet.
23A-49-23 Seized property--Information to be public.
23A-49-24 Seized property--Fees and costs recouped.
23A-49-25 Seized property--Promulgation of rules.
23A-49-1. Real property subject to forfeiture for crime listed in chapter 34-20B or 22-24A.
All real property, including any right, title, and interest in the whole of any platted lot or tract of land which is measured in three hundred twenty acre increments, or all of any smaller amount and any appurtenances or improvements, which is used, or intended to be used, in any manner or part, to commit or to facilitate the commission of a violation of any crime listed in chapter 34-20B or 22-24A, is subject to forfeiture under this section. Forfeiture under this chapter of real property encumbered by a bona fide security interest is subject to the interest of the secured party unless the secured party had actual knowledge of the act upon which the forfeiture is based. Notice of forfeiture proceedings shall be given each owner or secured party whose right, title, or interest is of record, at the time of the seizure, with the secretary of state or the register of deeds in the county where the real property is located. A person claiming a security interest bears the burden of establishing that interest by a preponderance of the evidence. No real property may be forfeited under the provisions of this chapter by reason of any act committed by a person other than an owner of the property unless that owner had actual knowledge that the real property was used or intended for use in any of the manners set forth in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 1.
23A-49-2. Conveyance used in common carrier business not subject to forfeiture--Exception.
Notwithstanding the provisions of subdivision 34-20B-70(4) or 22-24A-15(4), no conveyance used by any person as a common carrier in the transaction of business as a common carrier may be forfeited under the provisions of this chapter, unless it appears that the owner or other person in charge of the conveyance was a consenting party or privy to a violation of any crime in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 2.
23A-49-3. Stolen and leased conveyances not subject to forfeiture--Exception.
Notwithstanding the provisions of subdivision 34-20B-70(4) or 22-24A-15(4), no conveyance may be forfeited under the provisions of this chapter, by reason of any act or omission established by the owner of the conveyance to have been committed or omitted by any person other than the owner while the conveyance was unlawfully in the possession of a person other than the owner in violation of the criminal laws of the United States, or of any state, or while the conveyance was rented or leased from a motor vehicle dealer or a leasing or rental agency and the dealer or agency had no knowledge that the conveyance was being used or intended for use, to transport or in any manner facilitate the commission of any crime in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 3.
23A-49-4. Conveyance not subject to forfeiture for acts or omissions of nonowner--Exception.
Notwithstanding the provisions of subdivision 34-20B-70(4) or 22-24A-15(4), no conveyance may be forfeited under the provisions of this chapter, by reason of any act committed or omitted by a person other than an owner of the conveyance unless the owner knew or in the exercise of ordinary care should have known that the conveyance was being used or was intended for use to facilitate the commission of any crime in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 4.
23A-49-5. Item not subject to forfeiture for act or omission without owner's knowledge or consent.
To the extent of the interest of an owner, a thing of value is not subject to forfeiture under this chapter by reason of any act or omission that is established by the owner of the item to have been committed or omitted without the owner's knowledge or consent.
Source: SL 2016, ch 138, § 5.
23A-49-6. Victim protected against forfeiture by victim immunity.
Any victim of a crime as described in the provisions of §§ 22-19A-1, 22-24A-1 to 22-24A-20, inclusive, 22-24B-1, 22-49-1 to 22-49-3, inclusive, and 43-43B-1 to 43-43B-3, inclusive, is protected against loss of property through forfeiture by victim immunity as described in § 22-48-2.
Source: SL 2016, ch 138, § 6.
23A-49-7. Seizure of property by court process.
Any property subject to forfeiture under this chapter may be seized by any law enforcement officer or designated agent of the Division of Criminal Investigation upon process issued by any court having jurisdiction over the property.
Source: SL 2016, ch 138, § 7.
23A-49-8. Seizure of property without court process.
The seizure of any property subject to forfeiture under this chapter may be made without process issued under § 23A-49-7 if:
(1) The seizure is incident to an arrest or a search under a search warrant or to an inspection under an administrative inspection warrant;
(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding under this chapter;
(3) The law enforcement officer or agent has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) The law enforcement officer or agent has probable cause to believe that the property has been used or intended to be used in violation of crimes in the chapters listed in § 23A-49-20.
Source: SL 2016, ch 138, § 8.
23A-49-9. Time for instituting proceedings.
If a seizure pursuant to § 23A-49-7 or subdivisions 23A-49-8(1), (3), or (4) occurs, the attorney general shall institute, within sixty days of the seizure, the proceedings pursuant to § 23A-49-14 or 23A-49-15.
Source: SL 2016, ch 138, § 9.
23A-49-10. Seized property subject only to order of court or official.
No property taken or detained pursuant to this chapter is replevinable or subject to an action in claim and delivery. However, the property is deemed to be in the custody of the attorney general, subject only to the orders and decrees of the court or the official having jurisdiction over the property.
Source: SL 2016, ch 138, § 10.
23A-49-11. Attorney general action with respect to seized property.
If property is seized under the provisions of this chapter, the attorney general may:
(1) Place the property under seal;
(2) Remove the property to a place designated by the attorney general; or
(3) Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
Source: SL 2016, ch 138, § 11.
23A-49-12. Property subject to security interest--Action by attorney general.
Any property, as described in subdivisions 34-20B-70(4), (6), and (7) or 22-24A-15(4), (6), and (7), or § 23A-49-1, that is subject to a bona fide perfected security interest at the time of seizure of the personal property, at the time the offense was committed, and is forfeited under the provisions of §§ 23A-49-7 to 23A-49-19, inclusive, shall be taken by the attorney general subject to the security interest. The attorney general shall, within sixty days of the forfeiture of the property:
(1) Return the property to the possession of the secured party;
(2) Satisfy fully all indebtedness to the secured party secured by the property; or
(3) Return the property to the possession of the secured party and require the secured party to sell the property within sixty days of receipt of the property from the attorney general at public or private sale and retain all proceeds necessary to satisfy fully all indebtedness of the secured party secured by the property together with all reasonable costs of the sale and remit to the attorney general all excess proceeds within thirty days of the sale.
If the secured party knew or should have known, that the property was being used or intended for use to facilitate in the commission of a crime, the provisions of this section do not apply to the property.
Source: SL 2016, ch 138, § 12.
23A-49-13. Civil action--Standard of proof.
Any forfeiture proceeding is a civil action against the property seized and the standard of proof shall be preponderance of the evidence.
Source: SL 2016, ch 138, § 13.
23A-49-14. Procedure in forfeiture proceedings involving property other than real property or conveyances.
If property described in subdivisions 34-20B-70(2), (3), (5), (6), and (7) or 22-24A-15(2), (3), (5), (6), and (7) is seized, the attorney general shall file a summons and complaint for forfeiture of the property in circuit court for the county in which the property was seized or is being held. The proceedings shall be brought in the name of the state. The complaint shall describe the property, and state the property's location, the property's present custodian, the name of each owner if known, the name of each party in interest if known or of legal record, and allege the essential elements of the violation that is claimed to exist. The complaint shall conclude with a prayer to enforce the forfeiture. Notice of a forfeiture proceeding shall be given to each known owner and known party in interest by serving a copy of the summons and complaint in accordance with § 23A-49-15. The procedure governing the proceedings, except as provided in this section, shall be the same as that prescribed for civil proceedings by chapter 15-6.
Source: SL 2016, ch 138, § 14.
23A-49-15. Procedure in forfeiture proceedings involving real property or conveyances.
If property described in § 23A-49-1 or subdivision 34-20B-70(4) or 22-24A-15(4) is seized, the attorney general shall file a summons and complaint for forfeiture of the property in circuit court of the county in which the property was seized or is being held. The proceedings shall be brought in the name of the state. The complaint shall describe the property, and state the property's location, the property's present custodian, the name of each owner if known, the name of each party in interest if known or of legal record, and allege the essential elements of the violation that is claimed to exist. The complaint shall conclude with a prayer to enforce the forfeiture. The procedure governing the proceedings, except as provided by this section, shall be the same as that prescribed for civil proceedings by chapter 15-6. Notice of forfeiture proceedings shall be given to each owner and party in interest whose right, title, or interest is of record as provided in § 23A-49-1 or to the Department of Revenue or the Division of Aeronautics or a similar department of another state if the records are maintained in that state by serving a copy of the summons and complaint upon each known owner and known party in interest in accordance with title 15.
Source: SL 2016, ch 138, § 15.
23A-49-16. Service of process by mail where person released on bail.
If a person as described in §§ 23A-49-14 and 23A-49-15 is released on bail as provided by chapter 23A-43, a summons and complaint for forfeiture of the property may be served by mailing the summons and complaint by certified mail, no return receipt required, to the address left by the person upon release from confinement.
Source: SL 2016, ch 138, § 16.
23A-49-17. Answer by party in interest.
Within thirty days after the service of the notice pursuant to § 23A-49-14 or 23A-49-15, the owner of the seized property and any other party in interest or claimant may file a verified answer to the claims described in the complaint instituting the forfeiture proceedings.
Source: SL 2016, ch 138, § 17.
23A-49-18. Disposition of property by court where no appearance made.
If at the end of thirty days after the notice has been served there is no verified answer on file and no claimant has appeared to defend the complaint, the court shall order the disposition of the seized property as requested in the complaint.
Source: SL 2016, ch 138, § 18.
23A-49-19. Trial--Disposition of property by court.
If a verified answer is filed, the forfeiture proceedings shall be set for a trial on a day not more than one hundred eighty days from the date of the filing. Any party may demand a trial by jury for the forfeiture proceedings pursuant to § 15-6-38(b). At the trial, the state shall establish probable cause for instituting the forfeiture action following which any owner, party in interest, or claimant who has filed a verified answer has the burden of proving that the property seized is not subject to forfeiture under this chapter. If the court or a jury finds that the property is not subject to forfeiture under this chapter, the court shall order the property released to the owner, party in interest, or claimant according to the person's right, title, or interest. The court shall order the property forfeited if the court or a jury determines that the property was subject to forfeiture.
Source: SL 2016, ch 138, § 19.
23A-49-20. Attorney general's disposition of forfeited property.
If property is forfeited under this chapter, the attorney general may:
(1) Retain the property for official use;
(2) Sell any forfeited property which is not required to be destroyed by law and which is not harmful to the public, provided that the proceeds be disposed of for payment of all proper expenses of the proceedings for forfeiture and sale including expenses of seizure, maintenance of custody, advertising, and court costs. All money seized or remaining proceeds from the sale of any forfeited property shall be paid into the following funds:
(a) If seized pursuant to a violation of chapters 34-20B or 22-42, proceeds shall go to the drug control fund;
(b) If seized pursuant to a violation of chapters 22-24A, 22-23, 22-19A, 22-24B, 43-43B, or 23A-27, proceeds shall be used to reimburse the actual costs of the criminal investigation and prosecution, and any amount over those costs shall be used to satisfy any civil judgments received by the victims. All remaining proceeds shall be paid to the South Dakota internet crimes against children fund; and
(c) If not otherwise specified by this chapter, proceeds shall go to the general fund; or
(3) If property is seized pursuant to a violation of chapters 34-20B or 22-42, the attorney general may forward it to the Division of Criminal Investigation for disposition. Such disposition may include delivery for medical or scientific use to any federal or state agency under regulations of the United States attorney general.
Source: SL 2016, ch 138, § 20.
23A-49-21. Seized property--Written report--Contents.
For any property seized or forfeited under this chapter, a law enforcement agency shall issue a report to the attorney general within a time specified and in a form prescribed by the attorney general, containing information about the property seized or forfeited as listed in § 23A-49-22 and in rule promulgated by the attorney general.
Source: SL 2022, ch 76, § 1.
23A-49-22. Seized property--Searchable website or spreadsheet.
The attorney general shall establish and maintain a searchable public website or electronic spreadsheet that includes the following information about each property seized and forfeited:
(1) Name of the law enforcement agency that seized the property or, if seized by a multijurisdictional state task force, the name of the lead state agency;
(2) Forfeiture case file number;
(3) County;
(4) Arresting agency;
(5) Seizure date;
(6) Location of the seizure, whether a residence, business, event, or traffic stop;
(7) If a traffic stop on an interstate, the direction of the traffic flow, whether eastbound, westbound, southbound or northbound;
(8) Type and amount of controlled substance;
(9) Original criminal charge;
(10) Final criminal charge;
(11) Date of summons and complaint filed;
(12) Date of summons and complaint served or last date of publication;
(13) Whether the defendant or property owner defaulted on the forfeiture complaint, and if no default occurred, the date of civil answer filed by the defendant or property owner;
(14) Whether an innocent-owner claimant or creditor moved to regain the property;
(15) Date of default civil judgment;
(16) Date of summary judgment;
(17) Date of civil dismissal;
(18) Date of order of civil forfeiture;
(19) Dollar amount of seized currency;
(20) Description of seized property, other than currency, including make, model, and year;
(21) Estimated value of seized property other than currency;
(22) Date of case completion;
(23) Dollar amount of forfeited currency after case completion;
(24) Description of forfeited property, other than currency, after case completion;
(25) Estimated value of forfeited property, other than currency, after case completion;
(26) Whether the property was returned to the defendant or property owner, returned to the innocent-owner claimant or creditor, bought back, sold, destroyed, retained or disbursed to law enforcement agency, or pending disposition; and
(27) Case comments.
Source: SL 2022, ch 76, § 2.
23A-49-23. Seized property--Information to be public.
The attorney general, no more than 120 days after the close of the fiscal year, shall post on a searchable public website a report containing an itemized list of each property seized and forfeited for the preceding fiscal year as provided in § 23A-49-22.
The attorney general shall include in the report an itemized list of the expenditures and disbursements made by the attorney general under §§ 23A-49-20 and 34-20B-64.
The attorney general may include in the report recommendations to improve statutes, rules, and policies to better ensure that seizure, forfeiture, and expenditures are done and reported in a manner that is fair to crime victims, innocent property owners, secured interest holders, citizens, law enforcement and taxpayers.
The data and report compiled hereunder are public records under chapter 1-27.
Source: SL 2022, ch 76, § 3.
23A-49-24. Seized property--Fees and costs recouped.
The attorney general may use forfeiture proceeds to pay the costs of compiling and reporting data under §§ 23A-49-21 to 23A-49-25, inclusive.
Source: SL 2022, ch 76, § 4.
23A-49-25. Seized property--Promulgation of rules.
The attorney general shall promulgate rules, in accordance with chapter 1-26 establishing:
(1) The form for law enforcement agencies to file a report with the attorney general;
(2) The deadline by which law enforcement must report under § 23A-49-21;
(3) Procedures necessary to facilitate the reporting provisions under this Act; and
(4) Any information required from law enforcement agencies about property seized and forfeited under this chapter, in addition to the information required to be reported to the attorney general in § 23A-49-22.
Source: SL 2022, ch 76, § 5.
