CHAPTER 504

An Act to amend and reenact § 4-56 of the Code of Virginia, relating to
search, seizure and forfeiture of conveyances or vehicles used in vio-
lation of the alcoholic beverage laws.

[S 288]

Approved April 5, 1954
Be it enacted by the General Assembly of Virginia:

1. That § 4-56 of the Code of Virginia be amended and reenacted as
follows:

§ 4-56. (a) Search, seizure and delivery to sheriff or sergeant.—Where
any officer charged with the enforcement of the alcoholic beverage laws of
this State shall have reason to believe that alcoholic beverages, illegally ac-
quired, or that alcoholic beverages being illegally transported, are, in any
conveyance or vehicle of any kind either on land or on water (except a
conveyance or vehicle owned or operated by a railroad, express, sleeping or
parlor car or steamboat company, other than barges, tugs or small craft),
it shall be the duty of such officer to obtain a legal search warrant and
search such conveyance or vehicle, and if such illegally acquired alcoholic
beverages or alcoholic beverages being illegally transported in amounts in
excess of one quart be found therein, he shall seize the same, and shall also
seize and take possession of such conveyance or vehicle and deliver the
same and the alcoholic beverages so seized, to the sheriff of the county, or
the sergeant of the city in which such seizure was made, taking his receipt
therefor in duplicate.

(b) Arrests.—The officer making such seizure shall also arrest all
persons found in charge of such conveyance or vehicle and shall forthwith
report in writing, of such seizure and arrest, to the attorney for the Com-
monweniih for the county or city in which such seizure and arrest were
made.

(c) Notice to Commissioner of Division of Motor Vehicles; duties of
Commissioner.—If the conveyance so seized be a motor vehicle required by
the motor vehicle laws of Virginia to be registered, the attorney for the
Commonwealth shall forthwith notify the Commissioner of the Division of
Motor Vehicles, by letter, of such seizure and the motor number of the ve-
hicle so seized, and the Commissioner shall promptly certify to such at-
torney for the Commonwealth the name and address of the person in
whose name such vehicle is registered, together with the name and address
of any person holding a lien thereon, and the amount thereof. The Com-
missioner shall also forthwith notify such registered owner and lienor, in
writing, of the reported seizure and the county or city wherein such seizure
was made.

The certificate of the Commissioner, concerning such registration and
lien shall be received in evidence in any proceeding, either civil or criminal,
under any provision of this chapter, in which such facts may be material to
the issue involved.

(d) Proceedings by attorney for the Commonwealth.—Within * thirty
days after receiving notice of any such seizure, the attorney for the Com-
monwealth shall file, in the name of the Commonwealth, an information
against the seized property, in the clerk’s office of the circuit court of the
county, or of the corporation court of the city, wherein the seizure was
made. Should the attorney for the Commonwealth, for any reason, fail to
file such information within such time, the same may, at any time within
twelve months thereafter, be filed by the Attorney General, and the pro-
ceedings thereon shall be the same as if it had been filed by the attorney
for the Commonwealth.

Such information shall allege the seizure, and set forth in general
terms the grounds for forfeiture of the seized property, and shall pray that
the same be condemned and sold and the proceeds disposed of according to
law, and that all persons concerned or interested be cited to appear and
show cause why such property should not be condemned and sold to enforce
the forfeiture.

The owner of and all persons in any manner then indebted or liable for
the purchase price of the property, and any person having a lien thereon,
if they be known to the attorney who files the information, shall be made
parties defendant thereto, and shall be served with the notice hereinafter
provided for, in the manner provided by law for serving a notice, at least
ten days before the day therein specified for the hearing on the informa-
tion, if they be residents of this State; and if they be unknown or non-
residents, or cannot with reasonable diligence be found in this State, they
shall be deemed sufficiently served by publication of the notice once a week
for two successive weeks in some newspaper published in such county or
city, or if none be published therein, then in some newspaper having gen-
eral circulation therein, and a notice shall be sent by registered mail of such
si to the last known address of the owner of such conveyance or
vehicle.

(e) Bond to secure possession.—If the owner or lienor of the seized
property shall desire to obtain possession thereof before the hearing on the
information filed against the same, such property shall be appraised by the
clerk of the court where such information is filed.

The sheriff of the county or the sergeant of the city in which the trial
court is located shall promptly inspect and appraise the property, under
oath, at its fair cash value, and forthwith make return thereof in writing,
to the clerk’s office of the court in which the proceedings are pending, upon
the return of which the owner or lienor may give bond payable to the Com-
monwealth, in a penalty of the amount equal to the appraised value of the
conveyance or vehicle plus the court costs which may accrue, with security
to be approved by the clerk, and conditioned for the performance of the
final judgment of the court, on the trial of the information, and with a
further condition to the effect that, if upon the hearing on the information,
the judgment of the court be that such property, or any part thereof, or
such interest and equity as the owner or lienor may have therein, be for-
feited, judgment may thereupon be entered against the obligors on such
bond for the penalty thereof, without further or other proceedings against
them thereon, to be discharged by the payment of the appraised value of
the property so seized and forfeited and costs, upon which judgment, execu-
tion may issue, on which the clerk shall endorse, “‘no security to be taken’’.
Upon giving of the bond, the property shall be delivered to the owner or

enor.

(f) Appearance by claimant.—Any person claiming to be the owner
of such seized property, or to hold a lien thereon, may appear at any time
before final judgment of the trial court, and be made a party defendant to
the information so filed, which appearance shall be by answer, under oath,
in which shall be clearly set forth the nature of such defendant’s claim,
whether as owner or as lienor, and if as owner, the right or title by which
he claims to be such owner, and if lienor, the amount and character of his
lien, and the evidence thereof; and in either case, such defendant shall set
forth fully any reason or cause which he may have to show against the
forfeiture of the property.

(g) Jury trial finding for claimant.—If such claimant shall deny that
illegally acquired alcoholic beverages or alcoholic beverages being illegally
transported in amounts in excess of one quart were in such conveyance or
vehicle at the time of the seizure thereof, and shall demand a trial by jury
of the issue thus made, the court shall, under proper instruction, submit
the same to a jury of five, to be selected and empanelled as prescribed by
law, and if such jury shall find on the issue in favor of such claimant, or
if the court, trying such issue without a jury, shall so find, the judgment of
the court shall be to entirely relieve the property from forfeiture, and no
costs shall be taxed against such claimant.

(h) Rights of innocent owner.—If, on the other hand, the jury, or the
court trying the issue without a jury, shall find against the claimant, or if
it be admitted by the claimant that the conveyance or vehicle at the time
of the seizure contained illegally acquired alcoholic beverages or alcoholic
beverages being illegally transported in amounts in excess of one quart,
nevertheless, if it shall appear to the satisfaction of the court that such
claimant, if he claims to be the owner, was the actual bona fide owner of the
conveyance or vehicle at the time of the seizure, that he was ignorant of
such illegal use thereof, and that such illegal use was without his con-
nivance or consent, express or implied, and that such innocent owner has
perfected his title to the conveyance or vehicle, if it be a motor vehicle, if
application for the title is made ten days prior to its seizure or within ten
days from the time it was acquired, the court shall relieve the conveyance
or vehicle from forfeiture and restore it to its innocent owner, and the costs
me the proceedings shall be paid by the Commonwealth as now provided by
aw.

Where it is shown to the satisfaction of the court that the conveyance
or vehicle for the forfeiture of which proceedings have been instituted was
stolen from the person in possession, relief shall be granted the owner or
lienor, either or both, and the costs of the proceedings shall be paid by the
Commonwealth as now provided by law.

(i) Rights of innocent lienor.—If any such claimant be a lienor, and
if it shall appear to the satisfaction of the court that the owner of the
conveyance or vehicle has perfected his title to the conveyance or vehicle if
it be a motor vehicle, prior to its seizure, or within ten days from the time it
was acquired, and that such lienor was ignorant of the fact that such con-
veyance or vehicle was being used for illegal purposes, when it was so
seized, that such illegal use was without such lienor’s connivance or con-
sent, express or implied, and that he held a bona fide lien on such property
and had perfected the same in the manner prescribed by law, prior to such
seizure (if such conveyance or vehicle be an automobile the memorandum
of lien on the certificate of title issued by the Commissioner of the Division
of Motor Vehicles on the automobile shall make any other recordation of
the same unnecessary), the court shall, by an order entered of record es-
tablish the lien, upon satisfactory proof of the amount thereof; and if, in
the same proceeding, it shall be determined that the owner of the seized
property was himself in possession of the same, at the time it was seized,
and that such illegal use was with his knowledge or consent, the forfeiture
hereinbefore in this section declared, shall become final as to any and all
interest and equity which such owner, or any other person so illegally using
the same, may have in such seized property, which forfeiture shall be
entered of record. In the last mentioned event, if the lien established is
equal to or more than the value of the conveyance or vehicle, such con-
veyance or vehicle shall be delivered to the lienor, and the costs of the
proceedings shall be paid by the Commonwealth as now provided by law;
if the lien is less than the value of the conveyance or vehicle, the lienor may
have the conveyance or vehicle delivered to him upon the payment of the
difference. Should the lienor not demand delivery as aforesaid, an order
shall be made for the sale of the property by the sheriff of the county, or
sergeant of the city, as the case may be, in the manner prescribed by law,
out of the proceeds of which sale shall be paid, first, the lien, and second,
the costs; and the residue, if any, shall be paid into the Literary Fund.

(j) Sale of forfeited property.—If, however, no valid lien is established
against the seized property, and upon the trial of the information, it shall
be determined that the owner thereof was himself using the same, at the
time of the seizure, and that such illegal use was with his knowledge or
consent, the property shall be completely forfeited to the Commonwealth,
and an order shall be made for the sale of such property by the sheriff of
the county or sergeant of the city, as the case may be, in the manner pre-
scribed by law. Out of the proceeds of such sale shall be paid the costs, and
the residue shall be paid into the Literary Fund.

(k) Contraband beverages.—In every case, the alcoholic beverages so
seized shall be deemed contraband as provided in § 4-53 and disposed of
accordingly.

(1) Expenses taxed as costs.—In all cases, the actual expense incident
to the custody of the seized property, and the expense incident to the sale
thereof, including commissions, shall be taxed as costs.

(m) Beverages not licensed under this chapter.—The provisions of
this section shall not apply to alcoholic beverages which may be manu-
factured and sold without any license under the provisions of this chapter.