Chapter 150. Rules Relating to the Forfeited Drug Asset Sharing Program
6VAC20-150-10. Definitions.
The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:
"Agency" means any federal, state or local agency or office that directly participated in the investigation or other law-enforcement activity which led, directly or indirectly, to the seizure and forfeiture.
"Agency administrator" means any chief of police, sheriff, commonwealth's attorney or agency head of a federal, state or local agency or office.
"Asset" means any property or interest in property, whether tangible or intangible, real or personal.
"Board" means the Criminal Justice Services Board.
"Chief administrative officer" means the officer vested with the administrative and executive function of a political subdivision (e.g., city manager, county manager, etc.), or in the case of an executive branch agency, the director, administrator, superintendent or other equivalent position as provided by law, unless such agency operates under a supervisory board as defined in § 9-6.25:3 of the Code of Virginia, in which case the chairman of the supervisory board shall be deemed "chief administrative officer."
"Committee" means the Forfeited Asset Distribution Committee of the Criminal Justice Services Board, sometimes referred to as "FADC."
"Department" or "DCJS" means the Department of Criminal Justice Services.
"Designated seizing agency" means the agency or office which initiates the seizure, or which retains possession of the seized property. Designated seizing agency may include the agency chosen by mutual decision of the participating agencies.
"Director" means the chief administrative officer of the Department of Criminal Justice Services.
"In-kind property" in this context means the actual property other than cash seized, forfeited and returned to the seizing agency for law-enforcement purposes. In-kind property includes property which is received in exchange for original in-kind property.
"Proceeds" means actual cash forfeited, and the cash value returned from the sale of forfeited property, including property that may have been returned "in-kind" and sold during a one-year period for a value greater than $250.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 1, eff. July 29, 1992.
6VAC20-150-20. Applicability.
This regulation applies to all agencies or offices, insofar as they participate in the seizure and forfeiture of drug assets under Virginia law.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 2, eff. July 29, 1992.
6VAC20-150-30. Asset seizure.
A. Property subject to seizure under § 18.2-249 of the Code of Virginia, that is seized with the intent to forfeit to the Commonwealth and retain the property or proceeds for law-enforcement use pursuant to Chapter 22.1 of Title 19.2, shall be reported to the department provided that the property or cash value exceeds $100.
B. The agency administrator of the designated seizing agency will file a DCJS Form 998, Asset Seizure Reporting Form, within 21 days of seizure with intent to forfeit pursuant to § 18.2-249. This form calls for detailed information regarding the description and location of property. If more than one agency participates in the seizure, the names, addresses and agency administrators of all participating agencies or offices shall be reported to the department on Form 998.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 3, eff. July 29, 1992.
6VAC20-150-40. Report of proceeds, costs and asset sharing agreements.
Once the court has ordered disposition of the forfeited asset(s) pursuant to § 19.2-386.11, the designated seizing agency will file a DCJS Form 999, Seized Property Disposition/Sharing Decision Form, with the department. This form should be accompanied by:
1. Copy of the court order;
2. Petition for in-kind property;
3. List of costs incurred to manage seized assets;
4. Cashier's check or money order in the amount of the net forfeited proceeds (total proceeds minus amount for costs incurred that are allowable under § 19.2-386.12 or other costs if approved by the court) made payable to the Treasurer of Virginia.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 4, eff. July 29, 1992.
6VAC20-150-50. Remission of innocent property interests.
Petitions for remission by innocent property holders or innocent lien holders shall be filed within 21 days of the court order of forfeiture (§ 19.2-386.10) with the Department of Criminal Justice Services, 805 East Broad Street, 10th Floor, Richmond, VA 23219.
Petitions for remission shall contain such information as will allow the department to identify the forfeiture involved, including the name of the circuit court from which the forfeiture was ordered. The petition shall clearly and specifically allege the grounds upon which petitioner seeks remission, and the statutory basis for relief.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 5, eff. July 29, 1992.
6VAC20-150-60. Valuation of "in-kind" property for purposes of distribution.
A. Valuation of "in-kind" property shall be done in those cases of distribution upon which there is not agreement among participating jurisdictions.
B. Evidence of value shall be submitted by the agency seeking possession of the property, and may be submitted by any participating agency.
C. Evidence of value may be submitted in any form, including appraisals, assessments, references to "book" value, etc., as the submitting agency deems necessary to establish the fair market value (FMV) of the property.
D. Final determination of fair market value shall be made by the Criminal Justice Services Board based upon a review of all evidence of value presented to it.
E. The cost of an appraisal will be recognized as a cost incident to the custody, preservation and management of the property, and may be reimbursed to the agency submitting the appraisal from total forfeiture funds prior to the distribution of net proceeds. If there are no proceeds to be distributed, the cost of appraisal will not be reimbursed.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 6, eff. July 29, 1992.
6VAC20-150-70. 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.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 7, eff. July 29, 1992.
6VAC20-150-80. Audit and certification requirements.
A. Prior to disbursement of proceeds by the department, the chief administrative officer of the participating jurisdiction shall sign on its official stationery the following certification:
"I certify that the proceeds applied for and any income or interest derived therefrom will be used for law-enforcement purposes, and will not be used to supplant existing funds from any source whatsoever."
B. Agencies or offices which participate in the distribution of property or proceeds under Chapter 22.1 (§ 19.2-386.1 et seq.) of Title 19.2, agree to maintain records of the use and handling of the respective proceeds or property and any income or interest derived therefrom for a period of three years from receipt. The department may audit the records of the forfeited assets at any time during those three years, and shall report the findings of any such audit to the Criminal Justice Services Board.
C. The department requires that all participants in the Forfeited Asset Sharing Program submit an annual financial statement of receipts and expenditures related to the program, certifying that the proceeds applied for and any income or interest derived therefrom was used for law-enforcement purposes and was not used to supplant existing funds from any source. This certification and a financial statement shall be submitted to the department six months after the close of the designated fiscal year.
Statutory Authority
§§ 19.2-386.4, 19.2-386.10 and 19.2-386.14 of the Code of Virginia.
Historical Notes
Derived from VR240-04-2 § 8, eff. July 29, 1992.
Forms (6VAC20-150)
Seized Property Disposition/Sharing Decision Form, Form 999, eff. 10/91.
Supplement to Form 999 - Costs Incurred to Manage Seized Assets.
Asset Seizure Reporting Form, Form 998, eff. 10/91.