Division 2 — VEHICLE SEIZURE AND FORFEITURE

Any person, or his or her servant, agent or employee, who owns, leases, conducts, uses or maintains any vehicle for the purpose of participating in a motor vehicle speed contest shall be guilty of committing a nuisance. Any vehicle used to participate in a motor vehicle speed contest is also declared to be a nuisance. Such vehicle shall be subject to seizure and forfeiture as provided in this article. Declaration of this nuisance is made in accordance with the authority granted to the city in California Government Code, § 38771

(Ord. No. 1443, § 1, 3-16-04)

Subject to the requirements of section 17-505 and except as further identified by this article to protect innocent parties who claim an interest in any vehicle, all right, title, and interest in any vehicle used to participate in a motor vehicle speed contest shall vest in the city upon commission of the act giving rise to seizure and forfeiture.

(Ord. No. 1443, § 1, 3-16-04)

(a)

A vehicle subject to forfeiture under this chapter may be seized by any peace officer of the city upon process issued by any court having jurisdiction over the vehicle. Seizure without process may be made if any of the following situations exist;

(1)

The seizure is incident to an arrest or a search under a search warrant.

(2)

There is probable cause to believe that the vehicle was used or is intended to be used in violation of this article.

(b)

The city may notify the state franchise tax board of a vehicle seized where there is reasonable cause to believe that the value of the seized vehicle exceeds $5,000.00.

(c)

Receipts for vehicles seized pursuant to this article shall be delivered to any person out of whose possession and Vehicle was seized, in accordance with California Penal Code § 1412. There shall be a presumption affecting the burden of proof that a person to whom a receipt was issued is the owner thereof. This presumption may, however, be rebutted at the forfeiture hearing specified in section 17-511.

(Ord. No. 1443, § 1, 3-16-04)

A vehicle seized pursuant to section 17-505, where appropriate, may be held for evidence. The city attorney shall institute and maintain the proceedings.

(Ord. No. 1443, § 1, 3-16-04)

Within 15 days after seizure, if the peace officer does not hold the vehicle for evidence or if the department does not refer the matter for institution of forfeiture proceedings by the city attorney, the peace officer or department shall comply with any notice to withhold issued to the city with respect to the vehicle by the franchise tax board. If no notice to withhold has been issued with respect to the vehicle by the franchise tax board, the peace officer or the department shall return the vehicle to the registered owner. Alternatively, the city may return the vehicle to the registered lien holder upon the lien holder's filing of a hold harmless agreement on behalf of the city. The hold harmless agreement shall be acceptable to the department and the city attorney.

(Ord. No. 1443, § 1, 3-16-04)

(a)

Except as provided in subsection (g), if the city attorney determines that factual circumstances warrant that the vehicle described in section 17-503 is subject to forfeiture, and is not automatically made forfeitable by another provision of this article, the city attorney shall file a petition for forfeiture with the Superior Court of San Bernardino County.

(b)

A petition for forfeiture under this subdivision shall be filed as soon as practicable, but in any case within one year of the seizure of the vehicle which is subject to forfeiture.

(c)

Physical seizure of the vehicle shall not be necessary in order to have the vehicle alleged to be forfeitable in a petition pursuant to this section. The city attorney may seek protective orders for any such vehicle.

(d)

The city attorney shall cause notice of the seizure and of the intended forfeiture proceedings, as well as a notice stating that any interested party may file a verified claim with the Superior Court of San Bernardino County, to be served by personal delivery or by registered mail upon any person who has so interest in the vehicle. Whenever a notice is delivered pursuant to this section, it shall be accompanied by a claim form as described in section 17-510, as well as directions for the filing and service of a claim. Notice shall also be published once in a newspaper of general circulation in San Bernardino County.

(e)

An investigation shall be made by the department as to any claimant to the vehicle whose right, title, interest, or lien is of record in the department motor of vehicles or appropriate federal agency. If the department finds that a person, other than the registered owner, is the legal owner of the vehicle, and such ownership did not arise subsequent to the date and time of arrest or notification of the forfeiture proceedings or seizure of the vehicle, it shall forthwith send a notice to the legal owner at his or her address appearing on the records of the department of motor vehicles or appropriate state agency.

(f)

All notices shall set forth the time within which a claim of interest in the vehicle seized or that is subject to forfeiture is required to be filed pursuant to section 17-510.

(g)

The city attorney may, pursuant to this subsection, order the forfeiture of the vehicle seized pursuant to this article. The city attorney shall provide notice of the proceedings under this subsection, including:

(1)

A description of the vehicle.

(2)

The date and place of seizure.

(3)

The violation of law alleged with respect to forfeiture of the vehicle.

(4)

The instructions for filing and serving a claim with the city attorney pursuant to section 17-510 and time limits for filing a claim.

If no claims are timely filed, the city attorney shall prepare a written declaration of forfeiture of the vehicle to the city and dispose of the vehicle in accordance with this article. A written declaration of forfeiture signed by the city attorney under this section shall be deemed to provide good and sufficient title to the forfeited vehicle. The city attorney ordering forfeiture pursuant to this section shall provide a copy of the declaration of forfeiture to any person who received notice of the forfeiture proceedings.

If a claim is timely filed within ten days, then the city attorney shall file a petition for forfeiture pursuant to this section within 30 days of receipt of the claim.

(Ord. No. 1443, § 1, 3-16-04)

Notwithstanding the prevision of this chapter, the department shall return a seized vehicle upon the filing of a timely claim pursuant to section 17-510 and upon a showing by the claimant that any of subsections (1), (2) or (3) of this section exist. As a condition to the return of said vehicle, the claimant shall pay to the city all of the costs of towing and storing said vehicle as well as any release fee or charge.

(1)

The vehicle is owned by two or more persons, and there is a community property interest in the vehicle by a person other than the person who used or maintained the vehicle for the purpose participating in a motor vehicle speed contest and the vehicle is the sole vehicle available to the person's immediate family; or

(2)

The vehicle is owned by the employer of the person who used or maintained the vehicle for the purpose of participating in a motor vehicle speed contest and there is not probable cause to believe that the employer is the alter ego of the person participating in a motor vehicle speed contest; or

(3)

The vehicle is owned by a rental car agency with a duly executed contract with the person that used or maintained the vehicle for the purpose of participating in a motor vehicle speed contest.

(Ord. No. 1443, § 1, 3-16-04)

(a)

Any person claiming an interest in the vehicle seized must at any time within ten days from the date of the notice of seizure, file with the Superior Court of San Bernardino County a claim, verified in accordance with § 446 of the Code of Civil Procedure, stating his or her interest in the vehicle. An endorsed copy of the claim shall be served by the claimant on the city attorney within ten days of the filing of the claim.

(b)

Court proceedings shall be in accordance with the following:

(1)

If a verified claim is filed, the forfeiture proceeding shall be set for hearing on a day not less than 30 days there from.

(2)

The hearing shall be before the court or jury.

(3)

The provisions of the Code of Civil Procedure shall apply to proceedings under this article unless otherwise inconsistent with the provisions or procedures set forth in this article. However, there shall be no joinder of actions or coordination of actions, except for forfeiture proceedings, or cross-complaints and the issues shall be limited strictly to questions related to this article.

(Ord. No. 1443, § 1, 3-16-04)

With the respect to a vehicle for which forfeiture is sought and as to which forfeiture is contested, the city shall have the burden of proving by a preponderance of the evidence that the vehicle was used to participate in a motor vehicle speed contest, as this crime is defined in this article. Trial shall be before the court or jury. The presiding judge of the superior court shall assign actions brought pursuant to this article for trial.

(Ord. No. 1443, § 1, 3-16-04)

Upon proof that a vehicle was used for any of the purpose set forth in section 17-503, the court shall declare such vehicle a nuisance and order that the vehicle be seized, forfeited and disposed of in accordance with this article. The city may also request that the court order that the vehicle be released to a bona fide lien holder (motor vehicle dealer, bank, credit union, acceptance corporation, or other licensed financial institution or person holding a documented security interest in the vehicle that arose prior to the act giving rise to forfeiture under this article) following receipt by the city of a hold harmless agreement executed by the lien holder.

(Ord. No. 1443, § 1, 3-16-04)

Any person, or his or her servant, agent or employee who owns, leases, conducts, uses or maintains any vehicle to participate in a motor vehicle speed contest and whose vehicle has been seized in accordance with this article may request to execute a voluntary settlement agreement with the city for the return of the vehicle. Such request may be made in writing or verbally to the department or the city attorney's office. The minimum amount of the settlement fee shall be sufficient to cover all of the city's reasonable administrative costs, including attorney's fees and personnel time for the seizure and forfeiture action. The actual amount shall be at the sole and absolute discretion of the city attorney. The executed settlement agreement shall be accompanied by the appropriate settlement fee amount in the form of a money order, cashier's check or cash. All settlements funded shall be distributed as set forth in sections 17-514, subsections (2) and (3).

The city may also enter into a settlement agreement whereby the vehicle is released to a bona fide lien holder (motor vehicle dealer, bank, credit union, acceptance corporation, or other licensed financial institution or person holding a documented security interest in the vehicle that arose prior to the act giving rise to forfeiture under this article) following receipt by the city of a hold harmless agreement executed by the lien holder.

(Ord. No. 1443, § 1, 3-16-04)

In all cases where a vehicle is seized and forfeited to the city, the vehicle shall be destroyed or sold and the proceeds shall be distributed and appropriated as follows:

(1)

To the bona fide or the innocent purchaser, conditional sales vender, mortgage or lien holder of the vehicle, if any, up to the amount of his or her interest in the vehicle when the court or city attorney declares the forfeiture and orders a distribution to that person.

(2)

To the city for all expenditures made or incurred by it in connection with the publication of the notices set forth in this chapter, and sale of the vehicle, including expenditures for any necessary repairs, storage or transportation of any vehicle seized under this article.

(3)

The remaining funds shall be distributed to the department to cover the costs of implementing the program. Such funds shall be placed in a separate account titled 'The Vehicle Forfeiture Account.' The vehicle forfeiture account shall be subject to appropriate accounting controls and financial audits for all deposits and expenditures.

(4)

All the funds distributed to the department pursuant to subparagraph (3) shall not supplant any funds that would, in the absence of this article, be made available to support the law enforcement and protectoral efforts of the department.

(Ord. No. 1443, § 1, 3-16-04)