13-4312. Judicial in personam forfeiture proceedings

392 words·~2 min read·/az/title-13/13-4312

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

A. Any complaint, information or indictment alleging or charging one or more offenses included in section 13-2301, subsection D, paragraph 4 or a violation of section 13-2312, or any other offense giving rise to forfeiture under this title, shall set forth with reasonable particularity property that the state seeks to forfeit pursuant to this section in that action, if any.

B. Notwithstanding subsection C of this section, a temporary restraining order under this section may be entered on application of the state without notice or an opportunity for a hearing if the state demonstrates both that:

1. The seizure is incident to a lawful arrest for a crime or a search lawfully conducted pursuant to a search warrant and the state has probable cause to believe that the property with respect to which the order is sought would, if a conviction occurs, be subject to forfeiture under this title and that the subject of the arrest or search warrant is an owner of the property.

2. Provision of notice will jeopardize the availability of the property for forfeiture. A temporary restraining order expires within ten days after the date on which it is entered unless the party against whom it is entered consents to an extension for a longer period or unless the state can demonstrate the property is being held as evidence in a criminal case.

C. Notice of the entry of the restraining order and an opportunity for a hearing shall be afforded to persons known to have an interest in the property, whether or not a temporary restraining order is entered without notice. The hearing, however, is limited to the issues of whether both:

1. There is a probability that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, conveyed, encumbered or further encumbered, removed from the jurisdiction of the court, concealed or otherwise made unavailable for forfeiture.

2. The need to preserve the availability of property through the entry of the requested order outweighs the hardship on any owner, interest holder or defendant against whom the order is to be entered.

D. A hearing requested by any owner or interest holder concerning an order entered under this section shall be held at the earliest possible time and before the expiration of a temporary order.