Section 973.075. Forfeiture of property derived from crime and certain vehicles.

 

(1)  The following are subject to seizure and forfeiture under ss. 973.075 to 973.077 :

(a) All property, real or personal, including money, used in the course of, intended for use in the course of, or directly or indirectly derived from or realized through the commission of any crime.

(b)

1m. Except as provided in subd. 2m. , all vehicles, as defined in s. 939.22 (44) , which are used in any of the following ways:

a. To transport any property or weapon used or to be used or received in the commission of any felony.

b. In the commission of a crime under s. 946.70 .

c. In the commission of a crime in violation of s. 940.302 , 944.30 (1m) , 944.31 , 944.32 , 944.33 , 944.34 , 948.02 , 948.025 , 948.05 , 948.051 , 948.055 , 948.06 , 948.07 , 948.08 , 948.09 , 948.10 , 948.12 , or 948.14 .

d. In the commission of a crime relating to a submerged cultural resource in violation of s. 44.47 .

e. To cause more than $2,500 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012 .

f. In the commission of a crime under s. 813.12 (8) , 813.122 (11) , 813.123 (10) , 813.125 (7) , 813.128 (4) or 940.32 .

g. In the commission of a crime under s. 943.75 (2) or (2m) .

h. In the commission of a crime under s. 948.07 .

2m.

a. No vehicle used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under ss. 973.075 to 973.077 unless it appears that the owner or other person in charge of the vehicle had knowledge of or consented to the commission of the crime.

b. No vehicle is subject to forfeiture under ss. 973.075 to 973.077 by reason of any act or omission established by the owner of the vehicle to have been committed or omitted without his or her knowledge or consent.

c. If forfeiture of a vehicle encumbered by a bona fide perfected security interest occurs, the holder of the security interest shall be paid from the proceeds of the forfeiture if the security interest was perfected prior to the date of the commission of the crime which forms the basis for the forfeiture and he or she neither had knowledge of nor consented to the act or omission.

(bg) Any property used or to be used in the commission of a crime under s. 943.74 , 943.75 (2) or (2m) , or 948.07 , but if the property is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

(bm) Any property used in the commission of a crime under s. 813.12 (8) , 813.122 (11) , 813.123 (10) , 813.125 (7) , 813.128 (4) or 940.32 , but if the property is encumbered by a bonafide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

(c) All remote sensing equipment, navigational devices, survey equipment and scuba gear and any other equipment or device used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47 .

(d) A tank vessel that violates s. 299.62 (2) that is owned by a person who, within 5 years before the commission of the current violation, was previously convicted of violating s. 299.62 (2) , but if the tank vessel is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

(e) Any recording, as defined in s. 943.206 (5) , created, advertised, offered for sale or rent, sold, rented, transported or possessed in violation of ss. 943.207 to 943.209 or s. 943.49 and any electronic, mechanical or other device for making a recording or for manufacturing, reproducing, packaging or assembling a recording that was used to facilitate a violation of ss. 943.207 to 943.209 or s. 943.49 , regardless of the knowledge or intent of the person from whom the recording or device is seized. If a device subject to forfeiture under this paragraph is encumbered by a bona fide perfected security interest that was perfected before the date of the commission of the current violation and the holder of the security interest neither had knowledge of nor consented to the commission of that violation, the holder of the security interest shall be paid from the proceeds of the forfeiture.

(2)  A law enforcement officer may seize property subject to this section upon process issued by any court of record having jurisdiction over the property. Except for vehicles used in the commission of a crime in violation of s. 940.302 , 944.30 (1m) , 944.31 , 944.32 , 944.33 , 944.34 , 948.02 , 948.025 , 948.05 , 948.051 , 948.055 , 948.06 , 948.07 , 948.08 , 948.09 , 948.10 , 948.12 , or 948.14 , seizure without process may be made under any of the following circumstances:

(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under any administrative or special inspection warrant.

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state.

(c) The officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety.

(d) The officer has probable cause to believe that the property was derived from or realized through a crime, or was used in a crime under s. 948.07 , or that the property is a vehicle which was used to transport any property or weapon used or to be used or received in the commission of any felony, which was used in the commission of a crime relating to a submerged cultural resource in violation of s. 44.47 , which was used in the commission of a crime under s. 948.07 , or which was used to cause more than $2,500 worth of criminal damage to cemetery property in violation of s. 943.01 (2) (d) or 943.012 .

(3)  If there is a seizure under sub. (2) or s. 342.30 (4) (a) , proceedings under s. 973.076 shall be instituted. Property seized under this section or s. 342.30 (4) (a) is not subject to replevin, but is deemed to be in the custody of the sheriff of the county in which the seizure was made subject only to the orders and decrees of the court having jurisdiction over the forfeiture proceedings. When property is seized under this section or s. 342.30 (4) (a) , the person seizing the property may do any of the following:

(a) Place the property under seal.

(b) Remove the property to a place designated by it.

(c) Require the sheriff of the county in which the seizure was made to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

(4)  When property is forfeited under ss. 973.075 to 973.077 , the agency seizing the property may sell the property that is not required by law to be destroyed or transferred to another agency. The agency may retain any vehicle for official use or sell the vehicle. The agency seizing the property may deduct 50 percent of the amount received for administrative expenses of seizure, maintenance of custody, advertising and court costs and the costs of investigation and prosecution reasonably incurred. The remainder shall be deposited in the school fund as the proceeds of the forfeiture. If the property forfeited under ss. 973.075 to 973.077 is money, all the money shall be deposited in the school fund.

(5)  All forfeitures under ss. 973.075 to 973.077 shall be made with due provision for the rights of innocent persons under sub. (1) (b) 2m. , (bg) , (bm) , (d) and (e) . Except as provided in sub. (5m) , any property seized but not forfeited shall be returned to its rightful owner. Any person claiming the right to possession of property seized may apply for its return to the circuit court for the county in which the property was seized. The court shall order such notice as it deems adequate to be given the district attorney and all persons who have or may have an interest in the property and shall hold a hearing to hear all claims to its true ownership. If the right to possession is proved to the court's satisfaction, it shall order the property returned as soon as practically possible if:

(a) The property is not needed as evidence or, if needed, satisfactory arrangements can be made for its return for subsequent use as evidence; or

(b) All proceedings in which it might be required have been completed.

(5m)  

(a) In this subsection:

1. “Forfeiture action deadline" means the 30th day after the seizure of the property or, if the property was seized as a result of a criminal conviction, the 30th day after the date of the conviction.

2. “Prosecutor" means the district attorney or, in counties having a population of 500,000 or more, the district attorney or the corporation counsel.

3. “Victim" means the owner, as defined in s. 943.206 (2) , of the sounds in a recording described in sub. (1) (e) or, if the recording is seized in connection with an investigation or prosecution of a violation of s. 943.208 , the performance owner.

(b) If a recording involved in a violation of ss. 943.207 to 943.209 is forfeited, the sheriff of the county in which the recording was seized shall destroy it after the completion of all proceedings in which the recording might be required as evidence.

(c) If, by the forfeiture action deadline, a summons, complaint and affidavit have not been filed under s. 973.076 (1) (b) 1. with respect to property seized under sub. (1) (e) , the prosecutor shall notify the victim, if known, by certified mail no later than 7 days after the forfeiture action deadline. The prosecutor shall then return the property to the person from whom it was seized no earlier than 60 days and no later than 90 days after the forfeiture action deadline unless one of the following applies:

1. A court has entered an order prohibiting the return of the property or requiring it to be conveyed to another person.

2. The property is needed as evidence in a criminal proceeding and is likely to be unavailable for use as evidence if returned to the person from whom it was seized.

(6)   Sections 973.075 to 973.077 do not apply to crimes committed under ch. 961 .

1981 c. 267 ; 1985 a. 245 , 258 ; 1987 a. 348 ; 1989 a. 263 ; 1993 a. 92 , 169 , 459 , 491 ; 1995 a. 290 , 448 ; 1997 a. 35 , 285 ; 1999 a. 45 , 51 , 186 ; 2001 a. 16 , 91 ; 2013 a. 262 , 362 ; 2015 a. 352 . The critical inquiry under sub. (1) (b) is not whether the vehicle was used in a crime, but whether property carried by the vehicle was used in a crime. State v. One 1971 Oldsmobile Cutlass, 159 Wis. 2d 718 , 464 N.W.2d 851 (Ct. App. 1990). The forfeiture of a motor vehicle under sub. (1) (b) did not violate the constitutional guarantees against excessive punishment. State v. Hammad, 212 Wis. 2d 343 , 569 N.W.2d 68 (Ct. App. 1997), 95-2669 . Ownership under sub. (1) (b) 2. (renumbered sub. (1) (b) 2m. b.) is not controlled by legal title, but will be found based on consideration of possession, title, control, and financial stake. State v. Kirch, 222 Wis. 2d 598 , 587 N.W.2d 919 (Ct. App. 1998), 98-0582 . A punitive forfeiture violates the prohibition against excessive fines in the U.S. constitution if it is grossly disproportional to the gravity of the defendant's offense. Whether a forfeiture is far in excess of the maximum fine is a factor appropriately considered. State v. Boyd, 2000 WI App 208 , 238 Wis. 2d 693 , 618 N.W.2d 251 , 99-2633 . For purposes of the statutory “innocent owner" exception in this case, while one co-titleholder had the largest financial interest in the forfeited vehicle, the 2nd co-titleholder, who used the vehicle in drug sales was the actual owner of the vehicle when that 2nd titleholder had nearly complete possession and control of the vehicle and paid for insurance, gas, and maintenance while the first titleholder had a different vehicle of her own. However, while forfeiture of the vehicle and 2nd co-titleholder's 's financial interest in it was constitutional, forfeiture of the first titleholder's full financial interest in the vehicle was unconstitutional under the Excessive Fines Clause. State v. One 2013, Toyota Corolla, 2015 WI App 84 , 365 Wis. 2d 582 , 872 N.W.2d 98 , 14-2226 . A law enforcement agency may not retain unclaimed contraband money for its own use. In the absence of an asset forfeiture proceeding initiated by the state or a judicial determination that the money constitutes contraband, a local law enforcement agency should dispose of the money as unclaimed property under s. 59.66 (2). OAG 10-09 .