CO Code § 16-13-505 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 13 - Special Proceedings|Part 5 - Colorado Contraband Forfeiture Act|§ 16-13-505. Forfeiture Proceedings

  The several district courts of this state shall have original jurisdiction in proceedings under this part 5. (1.5) No judgment of forfeiture of property in any forfeiture proceeding shall be entered unless and until an owner of the property is convicted of an offense involving the conduct listed in section 16-13-503 , or a lesser included offense of an eligible offense if the conviction is the result of a negotiated guilty plea. Nothing in this section shall be construed to require the conviction to be obtained in the same jurisdiction as the jurisdiction in which the forfeiture action is brought. In the event criminal charges arising from the same activity giving rise to the forfeiture proceedings are filed against any individual claiming an interest in the property subject to the forfeiture proceeding, the trial and discovery phases of the forfeiture proceeding shall be stayed by the court until the disposition of the criminal charges. A stay shall not be maintained during an appeal or post-conviction proceeding challenging a criminal conviction. Nothing in this section shall be construed to prohibit or prevent the parties from contemporaneously resolving criminal charges and a forfeiture proceeding arising from the same activity. (1.6) Upon acquittal or dismissal of a criminal action against a person named in a forfeiture action related to the criminal action, unless the forfeiture action was brought pursuant to one or more of paragraphs   to (f) of subsection (1.7) of this section, the forfeiture claim shall be dismissed and the seized property shall be returned as respects the subject matter property or interest therein of that person, if the case has been adjudicated as to all other claims, interests, and owners, unless possession of the property is illegal. If the forfeiture action is dismissed or judgment is entered in favor of the claimant, the claimant shall not be subject to any monetary charges by the state for storage of the property or expenses incurred in the preservation of the property, unless at the time of dismissal the plaintiff shows that those expenses would have been incurred to prevent waste of the property even if it had not been seized. (1.7) Notwithstanding the provisions of subsection (1.5) of this section:     A person shall lack standing for and shall be disallowed from pursuit of a claim or defense in a civil forfeiture action upon a finding that a warrant or other process has been issued for the apprehension of the person, and, in order to avoid criminal prosecution, the person: (a) (I) A person shall lack standing for and shall be disallowed from pursuit of a claim or defense in a civil forfeiture action upon a finding that a warrant or other process has been issued for the apprehension of the person, and, in order to avoid criminal prosecution, the person:   Purposely leaves the state; or    Declines to enter or reenter the state to submit to its jurisdiction; or    Otherwise evades the jurisdiction of the court in which a criminal case is pending against the person or from which a warrant has been issued, by failing to appear in court or surrender on the warrant; and    Is not known to be confined or held in custody in any other jurisdiction within the United States for commission of criminal conduct in that jurisdiction.       If a person lacks standing pursuant to this paragraph (a), the forfeiture action may proceed and a judgment of forfeiture may be entered without a criminal conviction of an owner, upon motion and notice as provided in the rules of civil procedure.       If, following notice to all persons known to have an interest or who have asserted an interest in the property subject to forfeiture, an owner fails to file an answer or other appropriate response with the court claiming an interest in the subject matter property, or no person establishes standing to contest the forfeiture action pursuant to section 16-13-504 (2), a forfeiture action may proceed and a judgment of forfeiture may be entered without a criminal conviction of an owner.    If the plaintiff proves by clear and convincing evidence that the property was instrumental in the commission of an offense listed in section 16-13-503 (1) or that the property is traceable proceeds of the offense or related criminal activity by a nonowner and the plaintiff proves by clear and convincing evidence that an owner is not an innocent owner pursuant to section 16-13-504 (2.2), a judgment of forfeiture may be entered without a criminal conviction of an owner.    If an owner of the property who was involved in the public nuisance act or conduct giving rise to the claim of forfeiture subsequently dies, and was not an innocent owner pursuant to section 16-13-504 (2.2), a judgment of forfeiture may be entered without a criminal conviction of an owner.    If an owner received a deferred judgment, deferred sentence, or participated in a diversion program, or in the case of a juvenile a deferred adjudication or deferred sentence or participated in a diversion program for the offense, a judgment of forfeiture may be entered without a criminal conviction.    A defendant or claimant shall be permitted to waive the requirement of a criminal conviction in order to settle a forfeiture action.            shall not apply where the seizure of the property occurred pursuant to a warrant authorizing such seizure or otherwise under any statute or rule of criminal procedure if the property is held as evidence in a pending criminal investigation or in a pending criminal case. The petition shall be accompanied by a supporting affidavit, and both shall describe the property seized with reasonable particularity and shall include a list of witnesses to be called in support of the claim for forfeiture, including the addresses and telephone numbers thereof.    If the court finds from the petition and supporting affidavit that probable cause exists to believe that the seized property is contraband property as defined in this part 5, it shall, without delay, issue a citation directed to interested parties to show cause why the property should not be forfeited. The citation shall fix the date and time for a first appearance on the petition. The date fixed shall be no less than thirty-five days and no more than sixty-three days from the date of the issuance of the citation.    At the first appearance on the petition, the court shall set a date and time for a hearing on the merits of the petition within forty-nine days after the first appearance.    The only responsive pleading shall be designated a response to petition and citation to show cause and shall be filed with the court at or before the first appearance on the petition and shall include:   A statement admitting or denying the averments of the petition;    A statement setting forth with particularity why the seized property should not be forfeited. The statement shall include specific factual and legal grounds supporting it and any affirmative defense to forfeiture as provided in this part 5.    A list of witnesses whom the respondent intends to call at the hearing on the merits, including the addresses and telephone numbers thereof; and    A verified statement, supported by documentation, that the claimant is the true owner of the property or an interest therein.       No claim for relief against the plaintiff shall be set forth in the response, except a request for return of the seized property. (2.5) All forfeiture actions shall proceed in state district court if the property was seized by a local or state law enforcement agency as a result of an ongoing state criminal investigation and the owner is being prosecuted in state court. Unless, directed by an authorized agent of the federal government, no state or local law enforcement agency may transfer any property seized by the state or local agency to a federal agency for forfeiture under federal law unless an owner of the property is being prosecuted in federal court.       The citation specified in paragraph (b) of subsection (2) of this section shall:   Describe the property;    State the county, place, and date of seizure;    State the name of the agency holding the seized property;    State the date and time of the first appearance and the court in which it will be held;    State that judgment in favor of the plaintiff shall enter forthwith against any party who fails to file a response pursuant to paragraph (d) of subsection (2) of this section or who fails to appear personally or by counsel at the first appearance before the court; and    Advise the defendant of the right to continue the action under the circumstances stated in subsection (5) of this section.       Except as otherwise provided in this part 5, the practice and procedure in an action to perfect title to contraband property shall be governed by the Colorado rules of civil procedure. Actions to perfect title to contraband property shall be included in the category of “expedited proceedings” specified in rules 16 and 26 of the Colorado rules of civil procedure; except that each party may conduct limited discovery as provided for in rule 26 (b)(2) of the Colorado rules of civil procedure. In addition, each party may move the court to authorize additional discovery upon good cause shown.    Continuance of the hearing on the merits shall be granted upon stipulation of the parties or upon good cause shown.    The hearing on the merits shall be heard by the court without a jury.    If the seized property is of a type for which title or registration is required by law, or if the owner of the property and his or her address are known in fact, or if the seized property is subject to a perfected security interest, the prosecuting attorney shall give notice of the forfeiture action to the claimant, either by personal service of the petition, supporting affidavit, and citation upon him or her or by sending copies of such documents by certified mail, return receipt requested, to the last-known address of such claimant. If the documents are properly mailed to an address which the prosecutor has reasonable grounds to believe is the last-known address of the potential claimant, said documents shall be deemed served whether or not the claimant responds to the notice to claim them at the post office. Unknown persons who may claim any interest in the property, persons whose addresses are unknown, and persons upon whom the prosecutor has been unable to effect service as otherwise provided in this subsection (7) despite diligent good faith efforts may be served pursuant to a court order by publishing a copy of the citation twice in a newspaper of general circulation in the county in which the proceeding is instituted. The fact of such publication shall be conclusively established by the publisher's affidavit of publication. The first publication shall be more than fourteen days and the last publication not less than seven days before the first appearance date on the citation.    If any claimant to the property subject to a forfeiture action, including a claimant unknown to the plaintiff, is properly served with the citation according to the procedures specified in subsection (7) of this section and fails to appear personally or by counsel on the first appearance date or fails to file a response as required by this section, the court shall forthwith find said person in default and enter an order forfeiting said person's interest in the property and distributing the proceeds of forfeiture as provided in this part 5. A default order of forfeiture entered pursuant to this section shall only be set aside upon an express finding by the court that a claimant was improperly served through no fault of such claimant and had no notice of the first appearance on the citation or was prevented from appearing and responding due to an emergency situation caused by events beyond such claimant's control when such claimant had made diligent, good faith, and reasonable efforts to prepare a response and appear.    If a forfeiture hearing held pursuant to this part 5 results in an order to return the subject property to a claimant and the prosecution states an intent to appeal and proceeds to initiate an appeal of the order, the court shall stay execution of the order pending appeal, unless the court finds that the appeal is taken in bad faith or for the purpose of delay. No appeal bond shall be required, but the court may make appropriate orders to preserve the value of the property pending appeal.    The evidentiary burdens at a forfeiture hearing brought pursuant to this part 5 shall be as follows:   The claimant shall first prove by a preponderance of the evidence that such claimant is the true owner of the property.    If the claimant establishes that such claimant is the true owner of the property sought to be forfeited, the prosecuting attorney shall have the burden of going forward with the evidence and proving the allegations of the petition by clear and convincing evidence.    (Deleted by amendment,L. 93, p. 629, § 3, effective July 1, 1993.)       Actions pursuant to this part 5 shall be brought in the name of the people of the state of Colorado by the district attorney in the county in which the property was seized or in the county in which any subject act occurred. With the consent of the district attorney, the attorney general may also bring such an action.     History. Source: L. 84: Entire part added, p. 507, § 1, effective July 1. L. 86: (2) amended, p. 735, § 5, effective July 1. L. 87: Entire section R&RE, p. 640, § 19, effective July 1. L. 93: (2), (3), (5), (7), (8), and (10) amended, p. 629, § 3, effective July 1. L. 2002: (1.5), (1.6), (1.7), and (2.5) added and (10)(b) amended, p. 927, § 10, effective July 1. L. 2003: (1.5), (1.6), (1.7), (4), and (5) amended, pp. 894, 907, 897, §§ 5, 20, 9, effective July 1. L. 2012: (2)(a), (2)(b), (2)(c), and (7) amended,(SB 12-175), ch. 208, p. 858, § 93, effective July 1.    ANNOTATION   Entry of default order of foreclosure did not violate defendant's due process rights. In a civil forfeiture case, due process requires that a prompt post-seizure retention hearing before a neutral magistrate be afforded, with adequate notice, to all claimants. Under the Colorado Contraband Forfeiture Act, defendant was entitled to receive, and did receive, sufficient notice of the civil forfeiture proceeding. People v. Vogel, , 463 P.3d 352 .   Defendant not entitled to appointed counsel in a civil forfeiture proceeding, so district court's order of default did not violate pro se defendant's sixth amendment right to counsel. People v. Vogel, 2020 COA 55 , 463 P.3d 352.   Procedures set forth in the act are exclusive, precluding other remedies for persons claiming interest in forfeited property. People v. Merrill, 816 P.2d 958 (Colo. App. 1991).   Failure of defendant to tender filing fee with the response, without any other aggravating factor, does not constitute an extreme circumstance justifying striking the pleading. Since the pleading was improperly stricken, it was error to enter a default judgment at the first hearing. People v. Davenport, 998 P.2d 473 (Colo. App. 2000).   Respondent's written statement asserting privilege against self-incrimination and requesting leave to submit documentation of ownership of confiscated money at a later date did not comply with subsection (2)(d)(IV) requirements for a “verified statement, supported by documentation”. Therefore, respondent was in default and court properly determined that she had not demonstrated standing entitling her to contest $10,000 forfeiture. People v. Merrill, 816 P.2d 958 (Colo. App. 1991).   Under this section, trial court had no authority to stay forfeiture proceedings on basis of privilege against self-incrimination or to allow resolution of related criminal proceedings. People v. Merrill, 816 P.2d 958 (Colo. App. 1991).   Nor could court grant use immunity to respondent for statements made in response to forfeiture petition. Courts possess no inherent power to grant immunity in these circumstances, nor is such power conferred by this section. Controlling provisions are in § 13-90-118 , which allows grant of immunity only upon request of the prosecuting attorney. People v. Merrill, 816 P.2d 958 (Colo. App. 1991).   District court did not err by entering the default order forfeiting defendant's claimed interest in property when defendant did not file a proper response. Defendant's response was not proper because it did not comply with each of the requirements of subsection (2)(d). People v. Vogel, 2020 COA 55 , 463 P.3d 352.