CHAPTER 366

An Act to amend and reenact §§ 46.1-351.1 and 46.1-851.2 of the Code
of Virginia, relating to seizure of motor vehicles in certain cases
and proceedings in connection therewith.

[S 106]

Approved April 2, 1968

Be it enacted by the General Assembly of Virginia:

1. That §§ 46.1-351.1 and 46.1-351.2 of the Code of Virginia be amended
and reenacted as follows:

§ 46.1-351.1. Seizure of vehicle upon arrest of person believed to
have violated §§ 46.1-350 and 46.1-351; report to Commonwealth’s at-
torney ; notification to Commissioner ; certificate of Commissioner concern-
ing seized vehicle.—(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 or 46.1-351, he shall seize and take possession, etther at the
time of arrest or within thirty days after such arrest, of * the motor
vehicle being operated by such person at the time of arrest, 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 promptly
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. Proceedings concerning vehicles seized under § 46.1-
351.1.—(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 Com-
monwealth, 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 ac-
cording 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 owners 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 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 seizure to the last ‘known address of the
owner of such conveyance or vehicle.

(al) In lieu of filing an information, as provided in subsection (a),
the attorney for the Commonwealth may, upon payment of costs incident
to the custody of the seized property, return the seized property to an
owner or lienor, without requiring that such owner or lienor file bond
as provided in subsection (b), if he believes that such 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, or if he
believes 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, that he held a bona fide lien on such property and had per-
fected the same in the manner prescribed by law, prior to such seizure
and that the lien is equal to or more than the value of the conveyance
or vehicle.

In the event the conveyance or vehicle has been sold to a bona fide
purchaser subsequent to the arrest but prior to seizure in order to avoid
the provisions of § 46.1-851.1 and this section, the Commonwealth shall
have a right of action against such seller for the proceeds of the sale.
(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 pend-
ing, upon the return of which the owner or lienor may give a bond pay-
able to the Commonwealth, in a penalty of the amount equal to the ap-
praised 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 forfeited, 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 en-
dorse, “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, con-
victed 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 pre-
scribed 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 §§ 46.1-350 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 for-
feiture and restore it to its innocent owner, and the costs of the pro-
ceedings 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 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 for-
feiture 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.

(g) If, however, no valid lien is established against the seized prop-
erty, 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.