13-4309. Postdeprivation hearing

477 words·~2 min read·/az/title-13/13-4309

A research copy — for the controlling text, always check the official state or federal source. Not legal advice.

A. After the seizure of property, the defendant in the related criminal matter or another person who claims an interest in the seized property, up to sixty days after the notice, may claim an interest in seized property by filing a motion with the superior court requesting an order for the release of the claimed property to the person's custody pending further forfeiture proceedings and orders pursuant to this chapter. A motion filed pursuant to this section must include facts to support the person's alleged interest in the property.

The state may elect to not contest the motion and the release of the claimed property to the custody of the person who is claiming the interest in the seized property. The state may request that the court issue a protective order that preserves the availability of released property pending further forfeiture proceedings.

B. A person who makes a timely motion for the return of property has a right to a hearing on the motion before the resolution of any related criminal matter or forfeiture proceeding and within thirty days after the date that the motion is filed.

C. At least ten days before a hearing on a motion filed pursuant to this section, the state shall file an answer or responsive motion that includes the reasons why the state is entitled to retain possession of the property.

D. The court shall grant the claimant's motion if the court finds that any of the following applies:

1. It is likely that the final judgment will require the state to return the property to the claimant.

2. The property is not reasonably required to be held for evidentiary reasons.

3. The property is the only reasonable means for a defendant to pay for legal representation in a related criminal or forfeiture proceeding. This paragraph does not apply if the court finds by sufficient evidence, presented in a hearing on a motion, answer or responsive motion, that another person has filed a claim to the seized property and the other person is the victim, as defined in section 13-4401, of the alleged crime that gave rise to the forfeiture.

E. The court may order the return of money or property sufficient to obtain legal counsel but less than the total amount seized and the court may require an accounting.

F. In lieu of ordering the return of property, the court may order:

1. The state to give security or written assurance for satisfaction of any judgment, including damages, that may be rendered in a related forfeiture action.

2. Any other relief that the court deems to be just.

G. This section does not prevent either of the following:

1. The state from returning any property to the owner of the property.

2. The filing of a racketeering lien pursuant to section 13-2314.02 or a restitution lien pursuant to section 13-806.