Section 70. Distribution procedure for "in-kind" property and for proceeds

A. Distribution of "in-kind" property when all parties are in agreement.

1. The submission of a DCJS Form 999 with all attachment(s), including the agreement between the law-enforcement agencies, shall constitute a petition for return of "in-kind" property when there is agreement between the agencies as to the disposition of such "in-kind" property. These petitions shall be treated by the department as approved, provided that the clear and reasonable law-enforcement need for the forfeited property has been demonstrated (§ 19.2-386.14 C (ii)) in the petition.

2. If the department cannot ascertain the "clear and reasonable law-enforcement need for the forfeited property," it may seek such additional information as will allow it to make the determination.

3. If the department is unable to determine the "clear and reasonable law-enforcement need for the forfeited property," it shall submit the question to the next regularly scheduled meeting of the Criminal Justice Services Board for determination.

B. Distribution of disputed "in-kind" property.

1. Any participating agency or office may petition the department for the return of any forfeited motor vehicle, boat or aircraft, or other tangible personal property within 10 days of the court's finding of compliance with § 19.2-386.11 A (iii).

2. The petition for return of "in-kind" property shall be on the petitioning agency's letterhead and shall contain the name, address, telephone number, and name of the agency administrator of all other participating agencies or offices known to have been involved in the seizure and forfeiture.

3. Petitions shall be filed with the department at 805 East Broad Street, 10th Floor, Richmond, VA 23219.

4. Upon receipt of a disputed petition for distribution of "in-kind" property, the department shall notify the Chairman of the Criminal Justice Services Board, and the process for resolution contained in subsection C shall be implemented. This shall include the mailing of notices for responsive petitions.

5. Findings by the committee or the board shall include without limitation the following:

a. A determination of the fair market value of the "in-kind" property;

b. A determination of the proportional share due to each participating agency or office involved in the forfeiture;

c. An amount, if any, which a participating agency must pay to the department to keep the property, and set a reasonable time for the agency to pay that amount to the department; and

d. A determination of the "clear and reasonable law-enforcement need for the forfeited property."

C. Joint agency sharing of forfeited assets.

In all cases in which there is agreement between participating agencies for the distribution of proceeds or "in-kind" property, distribution shall be made by the department according to the terms of the agreement contained on Form 999, or evidence of agreement attached to that form, subject to a petition challenging the agreement and subject to concurrence by the board of a reasonable law-enforcement need for the "in-kind" property pursuant to subdivision A 3.

1. Any agency or office not in agreement as to the distribution of forfeited proceeds may petition the Criminal Justice Services Board for a proportional share of the proceeds.

2. The petition shall be filed on the letterhead of the petitioning agency and shall identify other participating agencies or offices.

3. The petition shall identify the proportional share of proceeds to which the petitioning agency believes it is entitled, and the grounds upon which it relies for that determination.

4. The petition shall be filed with the Department of Criminal Justice Services, at 805 E. Broad Street, 10th Floor, Richmond, VA 23219.

5. The petition shall be filed within 21 days of the entry of the court's forfeiture order in the case.

6. Upon receipt of the petition for participation in distribution, the department shall forward copies of the petition to all known participating agencies or offices with a request for a responsive petition.

7. Responsive petitions shall be filed at DCJS within 14 days of receipt of request for responsive petition by the agency administrator.

8. Upon receipt at DCJS of all petitions related to a particular forfeiture, or upon expiration of the time for receipt of all petitions, DCJS shall prepare a decision package for the forfeited assets distribution committee.

D. Hearing.

1. Upon receipt of a petition raising any question or contesting any distribution within the authority of these regulations, the petition shall be referred to the chairman of the forfeited assets distribution committee (FADC) of the Criminal Justice Services Board.

2. The chairman of the FADC shall designate a time and place of the meeting of the committee.

3. Meetings shall be held no later than 45 days after receipt of a petition for contested distribution, unless continued from time to time as required.

4. All participating agencies or offices shall be notified of the time and place of the meeting.

5. The FADC or board shall consider the following criteria in reviewing petitions before it:

a. General.

The degree of participation in the law-enforcement effort resulting in the forfeiture, taking into account the total value of all property forfeited and the total law-enforcement effort with respect to the violation of law on which the forfeiture is based.

b. Specific.

(1) Whether the agency or office originated the information that led to the seizure, and whether the agency obtained such information by use of its investigative assets, or through fortuitous events;

(2) Whether the agency provided unique or indispensable assistance;

(3) Whether the agency initially identified the asset for seizure;

(4) Whether the agency seized other assets during the course of the same investigation and whether such seizures were made pursuant to state law;

(5) Whether the agency could have achieved forfeiture under federal law, with favorable consideration given to an agency which could have forfeited the assets on its own, but joined forces with another agency to produce a more effective investigation;

(6) Upon reviewing all petitions and arguments in the case, and after weighing the factors and criteria listed in these regulations, the FADC or board shall determine by majority vote the proportional share of the proceeds, and shall direct the department to distribute the proceeds according to law;

(7) A decision of the FADC will be final for purposes of distribution of forfeited assets, unless, within 10 days of the FADC decision, a participating agency notifies the department of an appeal to the Criminal Justice Services Board;

(8) Appeals of FADC decisions shall be placed on the agenda of the next Criminal Justice Services Board meeting;

(9) Appeals of FADC decisions will be heard by the full board upon the report of the committee, and upon such additional evidence and information as introduced during the meeting by participating agencies or offices;

(10) The decision on appeal by the Criminal Justice Services Board shall be final.

Historical Notes

Derived from VR240-04-2 § 7, eff. July 29, 1992.

Statutory Authority

§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.