CHAPTER 763

An Act to amend and reenact § 4-56, as amended, of the Code of Virginia,
relating to search, seizure and forfeiture of conveyances or vehicles
used in violation of alcoholic beverage laws. tH 950)

Approved April 5, 1968

Be it enacted by the General Assembly of Virginia:

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

§ 4-56. Search, seizure and forfeiture of conveyances or vehicles
used in violation of law; disposition of beverages; arrests.—(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 acquired, or that alco-
holic 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 bever-
ages 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-
eaits 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 Divi-
sion of Motor Vehicles, by letter, 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 or city wherein such
selzure was made.

The certificate of the Commissioner, concerning such registration and
lien shall be received in evidence in any proceeding, either civil or crim-
inal, 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 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
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

own 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 news-
paper 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.

(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 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 per-
formance of the final judgment of the court, on the trial of the informa-
tion, 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 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
endorse, ‘“‘no security to be taken.” Upon giving of the bond, the property
shall be delivered to the owner or lienor.

(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 char-
acter of his lien, and the evidence thereof; and in either case, such de-
fendant 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 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.

(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 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 re-
store 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.

(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 ve-
hicle 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 pre-
scribed 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 auto-
mobile shall make any other recordation of the same unnecessary), the
court shall, by an order entered of record establish the lien, upon satis-
factory proof of the amount thereof; and if, in the same proceeding,
it shall be determined that the owner of the seized property was him-
self 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 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.

(j) Sale of forfeited property.—If, however, no valid lien is estab-
lished 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 Common-
wealth, 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; provided, however, that failure to maintain on
a conneyonce or vehicle a permit or other indicia of permission issued by
the Board authorizing the transportation of alcoholic beverages within,
into or through, the State when the regulations of the Board applicable
to such transportation otherwise have been complied with shall not be
cause for the forfeiture of such conveyance or vehicle. Out of the proceeds
of such sale shall be paid the cost, and the residue shall be paid into the
literary fund.

(k) Contraband beverages.—In every case, the alenholic beverages
SO seized shall be deemed contraband as provided in § 4-58 and disposed
of accordingly; provided, however, that failure to maintain on a con-
veyance or vehicle a permit or other indicia of permission issued by the
Board authorizing the transportation of alcoholic beverages within, into
or through the State when the regulations of the Board applicable to such
transportation otherwise have been complied with shall not be cause for
deeming such alcoholic beverages contraband.

(1) Exnenses 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.