How can I get my car back if my son was arrested and the car seized?
04/23/2007 - Category:Criminal - Search and Seizure - State: TN #3280
My son got arested in my car. He had drugs, one ounce of marrjiana. They inpounded my car. Can I get it back? I'm in Dyersburg, Tennessee.
The following is a TN statute:
53-11-201. Procedure in confiscation. —
(a) (1) (A) In all cases of seizure of any narcotic drugs or marijuana or any vehicle, aircraft or boat or other property subject to forfeiture under the provisions of this chapter, the officer or other person making the seizure shall deliver a receipt to the person, if any, found in possession of such property or conveyance.
(B) The receipt shall state a general description of the seized property or conveyance, the reasons for the seizure, the procedure by which recovery of the property or conveyance may be sought, including the time period in which a claim for recovery must be presented, and the consequences of failing to file within the time period.
(C) If the person found in possession of the conveyance is not the sole unencumbered owner of the conveyance, the department of safety shall make a reasonable effort to notify the owner or lienholder of the seizure by furnishing all parties known to have an interest in the conveyance with a copy of the receipt.
(D) A copy of the receipt shall be filed in the office of the department of safety and shall be open to the public for inspection.
(2) In all cases of seizure under the provisions of subdivision (a)(1) involving a commercial vehicle or common carrier, any cargo or products transported by such vehicle shall not be subject to forfeiture, unless such cargo or products are otherwise subject to forfeiture under this chapter, or any other law of this state or the federal government. Such cargo or products shall, upon request, immediately be made available for release to the owner or transporting agent.
(b) (1) All such property seized and forfeited under the provisions of this chapter shall be sold at public sale by the commissioner of general services when seized by an agency of the state or, if seized by a county or municipality, by the seizing agency of the county or municipality when the seized and forfeited property has been released by the commissioner of safety as now authorized by law.
(2) (A) However, any vehicle, seized by an agency of the state, and forfeited under the provisions of this chapter may, with the permission of the commissioner of safety and under such terms and conditions as are approved by the commissioner of safety, be used, for a period of time not to exceed one (1) year, in the drug enforcement program of the state.
(B) No such vehicle shall be used in the county or municipality in which it was seized.
(C) Notwithstanding the provisions of subdivision (b)(2)(B) to the contrary, any vehicle seized by a county or municipal agency and forfeited under the provisions of title 40, chapter 33, part 2, may be used in the local drug enforcement program for a period not to exceed five (5) years.
(c) (1) Any person claiming any property seized as contraband goods may, within thirty (30) days after receipt of notification of seizure, file with the commissioner at Nashville a claim in writing, requesting a hearing and stating such person's interest in the articles seized.
(2) Any such claimant shall also file with the claimant's claim a cost bond with one (1) or more good and solvent sureties in the sum of two hundred fifty dollars ($250), such bond being made payable to the state of Tennessee.
(3) An indigent person may file the claim in forma pauperis by filing with the claim an affidavit stating that the indigent person is unable to bear the cost of the proceeding.
(d) (1) (A) Within thirty (30) days from the day the claim is filed, the commissioner shall establish a hearing date and set the case on the docket.
(B) Nothing in this subsection (d) shall be construed as requiring the hearing to be conducted within the thirty-day period.
(2) At each hearing, the state shall have the burden of proving by a preponderance of the evidence that the seized property was of a nature making its possession illegal or was used in a manner making it subject to forfeiture under the provisions of this chapter, and failure to carry the burden of proof shall operate as a bar to any forfeiture under this chapter.
(e) (1) If the ruling of the commissioner is favorable to the claimant, the commissioner shall deliver to the claimant the vehicle and any other property seized that is not contraband, and the claimant shall not be required to pay any of the expenses incurred in the storage, transportation, and impoundment of such seized property.
(2) If the ruling of the commissioner is adverse to the claimant, the commissioner shall proceed to sell or dispose of the contraband goods in accordance with the provisions of this section and the expenses incurred in the storage, transportation, and impoundment, of the property shall be adjudged as part of the cost of the proceeding in any manner the commissioner shall determine.
(f) (1) Whenever, in any proceeding under this section, a claim is filed for any property seized, as provided in this section, by an owner or other person asserting the interest of the owner, the commissioner shall not allow the claim unless and until the claimant proves that the claimant:
(A) Has an interest in the property, which the claimant acquired in good faith; and
(B) Had at no time any knowledge or reason to believe that it was being or would be used in violation of the laws of the United States or of the state of Tennessee relating to narcotic drugs or marijuana.
(2) Whenever, in any proceeding under this section, a claim is filed for any property seized, as provided in this section, by a person who is the holder of a security interest or other claim arising out of a contract or agreement, the commissioner shall not allow the claim unless and until the claimant proves that the claimant has an interest in such property, which the claimant acquired in good faith. An interest that is acquired in the ordinary course of business shall be presumed to be in good faith unless the commissioner receives evidence that the holder of the security interest had knowledge, at the time the interest attached, of the intended illegal use of the vehicle or was a co-conspirator in furtherance of the illegal activity. A holder of a security interest that is other than a natural person shall be considered a co-conspirator for purposes of this section, if evidence shows that an officer, employee or agent of the holder acting within the scope of employment is a co-conspirator, and the holder either:
(A) Has actual knowledge of the illegal activities of the officer, employee or agent from an individual other than the officer, employee or agent and fails to take appropriate action; or
(B) Has failed to reasonably supervise or monitor the activities of the holder's officer, employee or agent.
(3) In the event the interest of the owner is forfeited, as provided in subdivision (f)(1), and the interest of the holder of a security interest is not forfeited as provided in subdivision (f)(2), the commissioner may, at the request of the holder of such interest, return the property to the holder for disposition in accordance with the applicable security agreement or other contract. If the commissioner does not return the property to the holder, the forfeiture shall be subject to the holder's interest.
(g) Pending any proceeding to recover a vehicle, aircraft or boat seized under this chapter, the commissioner may order delivery of the vehicle, aircraft or boat to any claimant who shall establish such claimant's right to immediate possession of the vehicle, aircraft or boat, and who shall execute, with one (1) or more sureties approved by the commissioner, and deliver to the commissioner, a bond in favor of the state of Tennessee and for the payment of the NADA retail value of the vehicle, aircraft or boat as of the time of the hearing, and conditioned further that, if the vehicle, aircraft or boat is not returned at the time of hearing, the bond shall stand in lieu of and be forfeited in the same manner as the vehicle, aircraft or boat.
(h) (1) The commissioner, in the commissioner's discretion, is hereby authorized to appoint or designate a hearing officer to sit, and set such case on the docket, as such hearing officer at the request and in the absence of the commissioner for the purpose of conducting such hearing as the commissioner may deem necessary.
(2) The hearing officer designated by the commissioner shall make findings of fact, conclusions of law, and recommendation for the issuance of the proposed order based on the findings, conclusions and recommendations.
(3) If the commissioner concurs, the commissioner shall issue the order, or the commissioner may, upon review of the record, make such findings, conclusions, and issue such order as, in the commissioner's discretion, the record justifies.
(4) The commissioner, personally, may hold such hearings as the commissioner may deem proper.
(5) The hearing officer is likewise empowered to subpoena witnesses and compel their attendance and the production of records, memoranda, papers and other documents at any hearing authorized under this section.
(i) (1) At all hearings provided for in this section, the commissioner or the hearing officer shall provide a stenographer or court reporter to take a stenographic record of the evidence adduced at the hearing.
(2) The claimant shall be entitled to a copy of the stenographic record, upon application for a copy, and upon paying the reasonable costs of the copy to be fixed by the commissioner.
(j) The commissioner may make or publish, such other and further procedural rules and regulations, not inconsistent with this section, as the commissioner deems proper, governing any hearing provided for in this section.
(k) If a law enforcement agency seizes a motor vehicle as the result of a violation of the drug control law, the agency may elect whether to go forward with the forfeiture proceeding through either an administrative agency or through a court having civil jurisdiction in the county where the seizure occurred.
[Acts 1955, ch. 83, § 4; 1959, ch. 304, § 1; impl. am. Acts 1961, ch. 97, § 5; impl. am. Acts 1972, ch. 543, § 7; Acts 1973, ch. 358, §§ 1, 2, 3; 1976, ch. 499, § 1; T.C.A., § 52-1404; Acts 1986, ch. 738, § 3; 1989, ch. 475, §§ 1, 2; 1990, ch. 1037, § 1; 1992, ch. 842, §§ 1-5; 1993, ch. 218, § 1; 1995, ch. 514, § 1.]
04/23/2007 - Category: Search and Seizure - State: TN #3280
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