CHAPTER 396

An Act to amend the Code of Virginia by adding sections numbered 46.1-
851.1 and 46.1-851.2, so as to provide when certain motor vehicles
owned by certain persons shall become contraband; and how such
motor vehicles shall be disposed of. rH 134)

Approved March 31, 1964.

Be it enacted by the General Assembly of Virginia: , oo
1. That the Code of Virginia be amended by adding sections numbered
46.1-851.1 and 46.1-351.2, as follows:

§ 46.1-351.1. (a) Where any officer charged with the enforcement
of the motor vehicle laws of this State reasonably believes that he has
arrested any person who will be subject to the penalties prescribed by
§§ 46.1-350 and 46.1-851, he shall seize and take possession of such motor
vehicle, and deliver the same to the sheriff of the county or the sergeant
of the city in which such arrest was made, taking his receipt therefor in
duplicate. The officer making such seizure shall also forthwith report in
writing, of such arrest and seizure to the attorney for the Commonwealth
for the county or city in which such arrest and seizure was made.

(b) The attorney for the Commonwealth shall forthwith notify the
Commissioner of the Division of Motor Vehicles of such seizure and the
motor number of the vehicle so seized, and the Commissioner shall prompt-
ly certify to such attorney 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 Commissioner shall also forthwith notify such registered
owner and lienor, in writing, of the reported seizure and the county and
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 section or that of § 46.1-351.2, in which such
facts may be material to the issue involved.

§ 46.1-351.2. (a) Within sixty days after receiving notice of seizure
under § 46.1-351.1 the attorney for the Commonwealth 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, Hustings Court, or other court of record having jurisdiction in the
city, wherein the seizure was made. Should the attorney for the Common-
wealth, 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 proceedings 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 of forfeiture of the seized property, and shall pray
that the same be condemned and sold and the proceeds disposed of accord-
ing 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 here-
inafter 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
information, if they be residents of this State; and if they be unknown or
nonresidents, 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
general circulation therein, and a notice shall be sent by registered mail
of such ote to the last known address of the owner of such conveyance
or vehicle.

(b) 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 a bond payable to the
Commonwealth, 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 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,
execution 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 lienor.

(c) 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.

(d) If such claimant shall deny that he was, or should be, convicted
as provided in §§ 46.1-350 or 46.1-351, and shall demand a trial by jury
of the issue thus made, the court shall, under proper instructions, 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.

__ (e) 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 was
being operated under conditions that the operator was, or should be,
convicted as provided in §§ 46.1-850 or 46.1-351; 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 connivance 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 of the
proceedings shall be paid by the Commonwealth as now provided by law.

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.

(f) 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 conveyance or vehicle
was being used for illegal purposes, when it was so seized, that such illegal
use was without such lienor’s connivance or consent, 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 establish 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 herein-
before 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 conveyance 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.

(zg) 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,
or 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 prescribed by law. Out of
the proceeds of such sale shall be paid the costs, and the residue shall be
paid into the Literary Fund.

(h) 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.