§ 41–306. Post-seizure property retention hearing.

(a) The District shall not release property seized for forfeiture while it is being retained as evidence in a criminal case.

(b) Except as prohibited by subsection (a) of this section, the District may, at any time, authorize interim release of property for use by the owner pending the final outcome of forfeiture proceedings.

(c)(1) Except as prohibited by subsection (a) of this section, upon an owner’s request for interim release of the property, the District shall release the property to the owner without conditions pending the final outcome of a forfeiture proceeding or, if the District alleges compliance with the notice provisions of §  41-304(a), the District shall file a request for a hearing in accordance with paragraph (3) of this subsection seeking to retain possession of the property or to place conditions on the release of the property pending the final outcome of any forfeiture proceeding.

(2) Nothing in this subsection shall require the District to release a seized vehicle to its owner if the owner cannot demonstrate that the vehicle will be removed from the place at which it was stored by the District in a way that complies with District of Columbia law.

(3)(A) If the District intends to seek to retain possession of the property or to place conditions on the release of the property pending the final outcome of any forfeiture proceedings, the District shall file a request for a hearing with the Court within 5 business days after its receipt of the owner’s request for interim release or within 5 business days after receiving written notice from the prosecutorial authority that the property will not be needed as evidence in a criminal case, whichever is later. The District shall not file a request for a hearing while property is being retained as evidence in a criminal case.

(B) A hearing with the Court shall be held as soon as practicable but no later than:

(i) If the seized property includes currency, 5 business days after the District requests an interim release hearing if the owner attests that the seized funds are necessary to either assist the owner in securing counsel of choice in a pending criminal matter related to the seizure or to meet the basic necessities of life, including the purchase of food, payment of utilities, provision of shelter, transportation costs, support of the owner’s family, or operation of a lawful business;

(ii) If the seized property includes a motor vehicle, 5 business days after the District requests an interim release hearing; or

(iii) For all other property, 10 business days after the District requests an interim release hearing.

(C) Either party may request a continuance of the hearing of up to 5 business days.

(d)(1) A hearing requested pursuant to subsection (c) of this section need not be held if, before the hearing, the District reaches a written agreement with the owner as to conditions for interim release of the seized property. The District may not request any conditions for interim release if the District failed to provide notice as required by §  41-304(a)(1)(D), unless the District has demonstrated good cause under §  41-304(b)(1).

(2) Permissible interim release conditions are limited to the following:

(A) An agreement by the owner to prohibit certain individuals from using seized property;

(B) An agreement by the owner to prohibit the use of the seized property to facilitate illegal conduct;

(C) An agreement by the owner that he or she will not intentionally destroy, substantially damage, dispose of, or transfer title to the property;

(D) An agreement by the owner that he or she will deliver to the District the property subject to forfeiture if and when it is ultimately deemed forfeitable;

(E) If the owner is not indigent, the payment of a bond not to exceed 2.5% of the fair market value of the property, which for a vehicle shall be the bluebook value; and

(F) In the case of a vehicle:

(i) A requirement that the owner present proof of ownership, which the owner may prove by the presentation of the title to the vehicle; and

(ii) An agreement by the owner to maintain valid registration and insurance; or

(G) In the case of currency, an assignment of an interest in other property to the District to secure the fair market value of the property subject to forfeiture proceedings.

(3) If, before the hearing pursuant to subsection (c) of this section, the District reaches an agreement with the owner under subsection (d) of this section, the District shall immediately notify the Court that it withdraws its request for a hearing.

(e)(1) At the hearing, the Court shall determine if the District complied with the notice requirements of §  41-304 or had good cause particular to the circumstances of the case for failure to comply with §  41-304.

(2) If the Court concludes that the District did not comply with §  41-304, it shall deny the District’s motion to retain the property and shall order the property released to the owner without conditions pending the final outcome of any forfeiture proceedings.

(f)(1)(A) At the hearing, the burden shall be on the District to establish that the seized property is subject to forfeiture under §  41-302.

(B) If the property is real property, a motor vehicle, or currency totaling $1000 or less, the District must establish the property is subject to forfeiture by a preponderance of the evidence.

(C) For all other property, the District must establish the property is subject to forfeiture by probable cause.

(2) If the Court concludes that the District has failed to meet its burden under paragraph (1) of this subsection, it shall deny the District’s motion to retain the seized property and order the property shall be released to the owner without conditions pending the conclusion of any forfeiture proceedings.

(3)(A) If the Court concludes that the District has met its burden under paragraph (1) of this subsection, the Court shall consider whether there is any condition or combination of conditions, other than retention of seized property, that will reasonably protect the interests of the District pending the conclusion of the forfeiture proceeding and whether those interests outweigh any countervailing interests of the owner.

(B) If the Court concludes that no condition or combination of conditions will reasonably protect the interests of the District pending the conclusion of the forfeiture proceedings and that those interests outweigh countervailing interests of the owner, the Court shall grant the District’s motion to retain the property pending the conclusion of any forfeiture proceedings.

(C) If the Court concludes that a condition or combination of conditions will reasonably protect the interests of the District pending the conclusion of the forfeiture proceeding and that those interests do not outweigh the countervailing interests of the owner, the Court shall deny the District’s motion and order the property released to the owner with any condition or combination of conditions necessary to protect the interests of the District pending the conclusion of the forfeiture proceeding, including:

(i) Any condition permitted by subsection (d) of this section; and

(ii) In the case of property other than real property and if the owner is not indigent, the payment of a bond not to exceed 5% of the fair market value of the property, which for a vehicle shall be the bluebook value.

(g)(1) If the owner establishes that there is probable cause that the seized currency is necessary to assist the owner in securing counsel in a pending criminal matter related to the seizure or to meet the basic necessities of life, including the purchase of food, payment of utilities, provision of shelter, transportation costs, support of the owner’s family, or operation of a lawful business, the portion of the currency necessary for demonstrated needs shall be returned.

(2) If the District retains possession of the currency or any portion of the currency pending disposition of the forfeiture case, the currency shall continue to be treated in accordance with § 23-532.

(h) If the Court orders interim release of seized property with conditions, the order shall specify the official to whom the owner must submit documentation to prove compliance with the conditions.

(i) The District shall refund to the owner the bond the owner paid as a condition of interim release of property pursuant to subsection (d)(2)(E) or subsection (f)(3)(C)(ii) of this section when:

(1) The property has been determined by the Court not to be forfeitable;

(2) The District has decided not to pursue forfeiture; or

(3) If the property is declared forfeited, the owner surrenders the property to the District.

(j) The Court shall issue an order at the conclusion of the hearing or as soon thereafter as practicable unless the parties consent to the delay.

(k)(1) An order granting or denying the District’s motion to retain the seized property is a final order for purposes of appeal.

(2) Upon motion of an appealing party, the Court may stay the effect of an order directing release of property pending appeal if the Court finds that:

(A) A substantial question is raised by the appeal;

(B) Irreparable harm is likely to occur to the moving party if the stay is not granted; and

(C) The hardship to the opposing party is outweighed by the threat of irreparable harm to the moving party.

(l)(1) If the District alleges that the owner has violated a condition of interim release, the District shall file a motion with the Court requesting a hearing for the owner to show cause why interim custody should not be revoked pending final forfeiture proceedings. If the condition the owner is alleged to have violated was imposed by agreement pursuant to subsection (d) of this section, the District shall file the motion in court at the time it files the libel of information pursuant to §  41-307.

(2) At the hearing, if the Court determines the owner violated a condition of interim release:

(A) The owner shall lose custody of the property pending final forfeiture proceedings; and

(B) Where the violation diminishes the value of the property, the owner shall be personally liable for diminished value if the property is ultimately deemed forfeitable; provided, that if the violation makes the property unavailable or entirely without value, the measure of the owner’s liability shall be the fair market value of the property.

(m) Nothing in this section shall preclude the owner from seeking any other relief provided by law or regulation.