§ 41–308. Forfeiture proceeding.

(a) An in rem civil forfeiture matter may be brought by the District against specific property, personal or real, by the filing of a civil libel of information in accordance with §  41-307.

(b) A party to a forfeiture action has a right to trial by jury.

(c) If the trial has not commenced within 60 days after the filing of the libel of information, the owner may move the court for interim release of the property or of a portion of the property pending the final outcome of the forfeiture proceeding. The court shall schedule a hearing on the request as soon as practicable. The court shall conduct the hearing in accordance with §  41-306.

(d)(1)(A) The burden of proof shall be on the District to establish that the property is subject to forfeiture under §  41-302.

(B) The District shall establish that the property is subject to forfeiture by a preponderance of the evidence, except if the property is a motor vehicle or real property, the District shall establish that the property is subject to forfeiture by clear and convincing evidence.

(C) There shall be a rebuttable presumption that currency totaling $1000 or less was not used or intended to be used in furtherance of a forfeitable offense, are not the proceeds of a forfeitable offense, and therefore are not subject to forfeiture under §  41-302. The government may rebut this presumption with clear and convincing evidence.

(2) A forfeiture of property encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party:

(A) Did not have actual knowledge of the offense giving rise to the forfeiture;

(B) Did not consent to the commission of that offense; and

(C) Was not willfully blind to the commission of that offense.

(3) When determining whether an owner was willfully blind to acts or omissions that subjected the property to forfeiture:

(A) A showing of negligence or mistake is insufficient to support a finding that the owner was willfully blind; and

(B) A person’s past criminal behavior shall not form the sole basis for an inference that the owner was willfully blind.

(4) If the property is the primary residence of the owner, in order for the property to be subject to forfeiture, the District must establish that an owner of the property was convicted of the crime giving rise to the forfeiture.

(e)(1) At any time after the filing of the libel of information, the Court, sua sponte or on motion of the owner, may determine whether the forfeiture is disproportional to the offense giving rise to the forfeiture.

(2) In determining whether the forfeiture is disproportional to the offense, the Court may not consider the value to the District of the property, but shall consider all relevant factors, including:

(A) The gravity of the forfeitable offense, including:

(i) The nature and duration of the forfeitable offense;

(ii) Any direct harm caused to other people as a result of the forfeitable offense;

(B) The fair market value of the property;

(C) The importance of the property to the owner, including the role of the property in the life of the owner or non-culpable members of the owner’s family;

(D) The degree to which the forfeitable property was integral to the performance of the forfeitable offense;

(E) Whether the primary use of the property was to commit or attempt to commit a forfeitable offense;

(F) The likelihood that the forfeitable property will be used again to commit similar illegal activity and the availability of other means for the District to address the illegality;

(G) The extent to which the owner of the forfeitable property participated in the forfeitable offense;

(H) The hardship caused by the forfeiture on the owner of the forfeitable property; and

(I) Any other criminal or civil penalties imposed on the owner of the forfeitable property for the same conduct.

(3) If the Court determines the forfeiture is disproportional to the offense giving rise to the forfeiture, the Court shall dismiss the libel of information. In the case of seized currency, the Court may dismiss the libel of information in total or as to the amount it determines to be disproportionate to the offense.

(f)(1) It shall be an affirmative defense to a forfeiture action that:

(A) The owner took reasonable action under the circumstances to prevent or stop the commission of the offense or the involvement of the property in the offense; or

(B) The owner did not take action to prevent or stop the commission of the offense or the property’s involvement in the offense because the owner reasonably believed to have done so would have placed the owner or a third party in physical danger.

(2) The owner must establish an affirmative defense in paragraph (1) of this subsection by a preponderance of the evidence.

(g)(1) If the owner acquired his or her interest in the property after the commission of the forfeitable offense and the new owner did not know or had no reason to know of the property’s forfeitability, there shall be a rebuttable presumption that the property is not subject to forfeiture.

(2) The government may rebut the presumption in paragraph (1) of this subsection with clear and convincing evidence that the property was proceeds of the forfeitable offense and that the current owner did not provide fair consideration in exchange for his interest in the property.

(h) If the District withdraws a forfeiture action or if the Court finds that property is not subject to forfeiture or otherwise issues a dispositive ruling that results in the termination of the action without an order of forfeiture, all claims of custody or title to the property by the District shall be relinquished. The Court, unless the parties agree otherwise, shall:

(1) Order the property returned to the owner or released from any conditions immediately or, if not immediately feasible, as soon as practicable;

(2) If the District disposed of the property pursuant to §  41-303(e)(1), determine the fair market value of the property at the time it was seized and award to the owner that value; provided, that if the property was disposed of by sale and the amount for which that property was sold is greater than the determined fair market value, the greater amount shall be awarded to the owner; or

(3) If the court enters a partial order of forfeiture, make any other rulings consistent with this subsection in the interests of justice.

(i) Evidence that was obtained as a result of a violation of the Fourth or Fifth Amendment of the Constitution shall not be admissible.