Chapter 9.28
CONTROLLED SUBSTANCES
Sections:
9.28.010 Possession, use of controlled substances.
9.28.020 Forfeiture proceedings.
9.28.030 Items subject to forfeiture.
9.28.040 Seizure and custody of property.
9.28.050 Procedure for forfeiture action.
9.28.060 Burdens of proof and rebuttable presumptions in certain actions.
9.28.070 Petition for release of seized items.
9.28.080 Petition for sale of seized item.
9.28.090 Disposal of forfeited property.
9.28.100 Remittance to claimant.
9.28.110 Forfeiture of controlled substances.
9.28.010 Possession, use of controlled substances.
A. AS 11.71.010 through 11.71.090 and 11.71.140 through 11.71.900, and such amendments as may be made thereto from time to time, are adopted by reference into this code. Any conduct involving a controlled substance which is declared to be a crime or an offense by the foregoing sections of the Alaska Statutes is unlawful and a violation of code.
B. Each violation of this section is punishable by a fine between one hundred and one thousand dollars. Upon citation under this section, court appearance is mandatory.
C. If a violation of this section is a violation of a federal law, state law or the law of another state, a conviction or acquittal under federal law, state law or the law of another state for the same act is a bar to prosecution in this city. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20)
9.28.020 Forfeiture proceedings.
A. Property listed in Section 9.28.030 may be forfeited to the city either upon conviction of the defendant of a violation of Section 9.28.010 or AS 11.71, or upon judgment of a court in a separate civil proceeding in rem. The court may order a forfeiture in the in rem proceeding if it finds that an item specified in Section 9.28.030 was used during or in aid of a violation of Section 9.28.010 or AS 11.71.
B. It is not a defense in an in rem proceeding brought under this section that a criminal proceeding has resulted in a conviction or conviction of a lesser offense for a violation of Section 9.28.010 or AS 11.71.
C. A civil action may be commenced against a criminal defendant to recover property which constitutes the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime, or to recover a money judgment in an amount equivalent in value to the property which constitutes the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime.
D. A civil action may be commenced against a noncriminal defendant to recover the property which constitutes the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime; provided, however, that a judgment of forfeiture shall be limited to the amount of the proceeds of the crime.
E. Any action under subsections C and D of this section shall be commenced within six years of the commission of the crime and shall be civil, remedial and personal in nature and shall not be deemed to be a penalty or criminal forfeiture for any purpose. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.1)
9.28.030 Items subject to forfeiture.
The following may be forfeited to the city:
A. A controlled substance which has been manufactured, distributed, dispensed, acquired, or possessed in violation of this code or AS 11.71;
B. Raw materials, products, and equipment which are used or intended for use in manufacturing, distributing, compounding, processing, delivering, importing, or exporting a controlled substance which is a violation under this code or AS 11.71;
C. Property which is used or intended for use as a container for property described in subsection A or B of this section;
D. A conveyance, including but not limited to aircraft, vehicles or vessels, which has been used or is intended for use in transporting or in any manner in facilitating the transportation, sale, receipt, possession, or concealment of property described in subsection A or B of this section in violation of this code or AS 11.71; however:
1. A conveyance may not be forfeited under this subsection if the owner of the conveyance establishes, by a preponderance of the evidence, at a hearing before the court as the trier of fact, that use of the conveyance in violation of this code or AS 11.71 was committed by another person and that the owner was neither a consenting party nor privy to the violation;
2. A forfeiture of a conveyance encumbered by a valid security interest at the time of seizure is subject to the interest of the secured party if the secured party establishes, by a preponderance of the evidence, at a hearing before the court as the trier of fact, that use of the conveyance in violation of this code or AS 11.71 was committed by another person and that the secured party was neither a consenting party nor privy to the violation;
E. Books, records and research products and materials, including formulas, microfilm, tapes, and data, which are used in violation of Section 9.28.010 or AS 11.71;
F. Money, securities, negotiable instruments, or other things of value used in financial transactions derived from activity prohibited by Section 9.28.010 or AS 11.71;
G. A firearm that is visible, carried during, or used in furtherance of a violation of Section 9.28.010 or AS 11.71;
H. The proceeds of a crime;
I. The substituted proceeds of a crime;
J. An instrumentality of a crime. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.2)
9.28.040 Seizure and custody of property.
A. Property listed in Section 9.28.030 may be seized by a peace officer upon an order issued by a court having jurisdiction over the property upon showing of probable cause that the property may be forfeited under this chapter. Seizure without a court order may be made if:
1. The seizure is incident to a valid arrest or a search under a valid search warrant;
2. The property subject to seizure has been the subject of an earlier judgment in favor of the city in a criminal proceeding or civil proceeding in rem under this title or AS 11.71; or
3. There is probable cause that the property was used, is being used, or is intended for use in violation of Section 9.28.010 or AS 11.71 and the property is easily movable; property seized under this subdivision may not be held for more than forty-eight hours without a court order obtained to continue its detention.
B. Property taken or detained under subsection A of this section shall be held in the custody of the department subject only to the orders and decrees of the court having jurisdiction over any forfeiture proceedings. If property is seized under this chapter, the department may:
1. Place the property under seal;
2. Remove the property to a place designated by the court; or
3. Take custody of the property and remove it to an appropriate location for disposition in accordance with law.
C. Within ten days after a seizure under Sections 9.28.020 through 9.28.120, the department shall make an inventory of any property seized, including controlled substances, and shall appraise the value of any items seized other than controlled substances. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.3)
9.28.050 Procedure for forfeiture action.
A. Within twenty days after a seizure under Sections 9.28.020 through 9.28.120, the department shall, by certified mail, notify any person known to have an interest in an item with an appraised value of five hundred dollars or more, or who is ascertainable from official registration numbers, licenses, or other state, federal or municipal numbers on the item, of the pending forfeiture action. Additionally, the department shall publish notice of forfeiture action of an item valued at five hundred dollars or more in a newspaper of general circulation in the city, or if no newspaper is published in the city, in a newspaper published in the judicial district and distributed in the city. The notice shall be published once each week during four consecutive calendar weeks. The requirements of this subsection do not apply to the forfeiture of controlled substances which have been manufactured, distributed, dispensed, or possessed in violation of this chapter or AS 11.71, regardless of their value.
B. Upon service or publication of notice of commencement of a forfeiture action under this section, a person claiming interest in the property shall file, within thirty days after the service or publication, a notice of claim setting out the nature of the interest, the date it was acquired, the consideration paid, and an answer to the city’s allegations. If a claim and answer is not filed within the time specified, the property described in the city’s allegation must be ordered forfeited to the city without further proceedings or showings.
C. Questions of fact or law raised by a notice of forfeiture action and answer of a claimant in an action commenced under this section must be determined by the court sitting without a jury. This proceeding may be held in abeyance until conclusion of any pending criminal charges against the claimant under this chapter or AS 11.71. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.4)
9.28.060 Burdens of proof and rebuttable presumptions in certain actions.
A. In a forfeiture action pursuant to Section 9.28.020(C) or (D), the following burdens of proof shall apply:
1. In a forfeiture action commenced by the city against a criminal defendant, the burden shall be upon the city to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture.
2. In a forfeiture action commenced by the city against a noncriminal defendant:
a. If the action relates to the proceeds of a crime, the burden shall be upon the city to prove upon a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the criminal defendant either:
i. Knew or should have known that the proceeds were obtained through the commission of a crime; or
ii. Knowingly obtained his or her interest in the proceeds to avoid forfeiture.
b. If the action relates to the substituted proceeds of a crime, the burden shall be upon the city to prove by a preponderance of the evidence the facts necessary to establish a claim of forfeiture and that the noncriminal defendant either:
i. Knew that the property sold or exchanged to obtain an interest in the substituted proceeds was obtained through the commission of a crime; or
ii. Knowingly obtained his or her interest in the substituted proceeds to avoid forfeiture.
c. If the action relates to an instrumentality of a crime, except as provided for in subsection (A)(2)(a) of this section, the burden shall be upon the city to prove by a preponderance of the evidence the facts necessary to establish a claim for forfeiture and that the noncriminal defendant either:
i. Knew that the instrumentality was or would be used in the commission of a crime; or
ii. Knowingly obtained his or her interest in the instrumentality to avoid forfeiture.
B. In a forfeiture action commenced by the city against a noncriminal defendant pursuant to Section 9.28.020(C) or (D), the following rebuttable presumptions shall apply:
1. A noncriminal defendant who did not pay fair consideration for the proceeds of a crime, the substituted proceeds of crime or the instrumentality of a crime shall be presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime or the instrumentality of a crime.
2. A noncriminal defendant who obtains an interest in the proceeds of a crime, substituted proceeds of crime or an instrumentality of a crime with knowledge of an order of provisional remedy relating to the property issued pursuant to this code, shall be presumed to know that such property was the proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime.
3. A noncriminal defendant who participated in or was aware of a scheme to conceal or disguise the manner in which the noncriminal obtained his or her interest in the proceeds of a crime, substituted proceeds of a crime, or an instrumentality of a crime is presumed to know that such property was the proceeds of a crime, the substituted proceeds of a crime, or an instrumentality of a crime, and shall further be presumed to have knowingly obtained his or her interest in the proceeds, substituted proceeds or instrumentality of a crime to avoid forfeiture. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.5)
9.28.070 Petition for release of seized items.
A. A claimant under Section 9.28.050(B) may at any time petition for release of a seized item as follows:
1. To a court in which a warrant for seizure has been issued;
2. To a court in which a criminal or civil action alleging forfeiture of the item has been filed; or
3. Before an action is filed, or if no seizure warrant was issued, to a court in the judicial district in which the violation took place.
B. An item may not be released by the court under subsection A of this section unless the claimant gives adequate assurance that the item will remain subject to the court’s jurisdiction and:
1. The court finds that the release is in the best interests of the city; or
2. The claimant provides a bond or other valid and equivalent security equal to twice the assessed value of the item. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.6)
9.28.080 Petition for sale of seized item.
A claimant under Section 9.28.050(B) or the city may petition the court for sale of an item before final disposition of court proceedings. The court shall grant a petition for sale upon a finding that the sale is in the best interests of the city and the preservation and maintenance of the item seized. Proceeds from the sale plus interest to the date of final disposition of the court proceedings become the subject of the forfeiture action. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.7)
9.28.090 Disposal of forfeited property.
Property forfeited under Sections 9.28.020 through 9.28.120, other than controlled substances and firearms, shall be disposed of by the department in accordance with applicable law. Firearms shall be disposed of as provided in AS 18.65.340. As to property other than firearms or controlled substances, the department may:
A. Destroy property harmful to the public;
B. Sell the property and use the proceeds for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, custody and court costs, or for any other municipal purpose;
C. Take custody of the property and authorize its use in the enforcement of this chapter or AS 11.71, or transfer it to another department of the city, the state or a political subdivision of the state for a use in furtherance of the administration of justice;
D. Take custody of the property and remove it for disposition in accordance with law;
E. Forward it to the Drug Enforcement Administration of the United States Department of Justice for disposition;
F. Transfer it to another department of the city for use in furtherance of any municipal purpose. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.8)
9.28.100 Remittance to claimant.
A. Upon a showing that a claimant is entitled to remittance under Sections 9.28.020 through 9.28.120, the court shall order that:
1. If the claimant is entitled to the item, it shall be delivered to the claimant immediately;
2. If the claimant is entitled to remittance of some value less than the total value of the item, the claimant is entitled, at the claimant’s choice, to receive either the value of the claimant’s interest or, upon receipt of payment of the difference in value by the claimant, the entire item.
B. An offender who used an item subject to remission in violation of Section 9.28.010, or AS 11.71, shall be assessed a civil penalty which may not be less than the cost of any lien payment or remittance made by the city plus the reasonable costs of the seizure. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.9)
9.28.110 Forfeiture of controlled substances.
A. A controlled substance manufactured, possessed, transferred, sold, or offered for sale in violation of this chapter is contraband and must be seized and summarily forfeited to the city. The department is responsible for the disposal of controlled substances which have been forfeited. The controlled substances shall be disposed of in accordance with procedures and requirements prescribed by the Alaska Commissioner of Public Safety for disposal of controlled substances forfeited to the state pursuant to AS 11.70 or 17.30.
B. Plants from which controlled substances may be derived and which have been planted or cultivated in violation of this chapter or which are grown in the wild may be seized and summarily forfeited to the city. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.10)
9.28.120 Definitions.
In Section 9.28.020 through this section:
“Crime” means a crime, offense or violation of Section 9.28.010 or AS 11.71.
“Criminal defendant” means a person who has criminal liability for a crime.
“Defendant” means a person against whom a forfeiture action is commenced and includes a “criminal defendant” and a “noncriminal defendant.”
“Department” means the Valdez police department.
“Fair consideration” means consideration given for property or obligation:
1. When in exchange for such property or obligation as a fair equivalent therefor, and in good faith, property is conveyed or an antecedent debt is satisfied; or
2. When such property or obligation is received in good faith to secure a present advance or antecedent debt in amount not disproportionately small as compared with the value of the property or obligation obtained.
“Instrumentality of a crime” means any property other than real property and any buildings, fixtures, appurtenances and improvements thereon, whose use contributes directly and materially to the commission of a crime.
“Noncriminal defendant” means a person other than a criminal defendant who possesses an interest in the proceeds of a crime, the substituted proceeds of a crime or an instrumentality of a crime.
“Proceeds of a crime” means any property obtained through the commission of a crime, and includes any appreciation in value of such property.
“Property” means and includes real property, personal property, money, negotiable instruments, securities or anything of value or any interest in a thing of value.
“Substituted proceeds of a crime” means any property obtained by the sale or exchange of proceeds of a crime and any gain realized by such sale or exchange. (Ord. 17-03 § 1 (part): Ord. 14-06 § 1 (part): prior code § 17-20.11)