Arizona Laws 13-4312. Judicial in personam forfeiture proceedings
A. Any complaint, information or indictment alleging or charging one or more offenses included in section 13-2301, subsection D, paragraph 4 or a violation of section 13-2312, or any other offense giving rise to forfeiture under this title, shall set forth with reasonable particularity property that the state seeks to forfeit pursuant to this section in that action, if any.
Terms Used In Arizona Laws 13-4312
- Action: includes any matter or proceeding in a court, civil or criminal. See Arizona Laws 1-215
- Arrest: Taking physical custody of a person by lawful authority.
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Conviction: A judgement of guilt against a criminal defendant.
- Crime: means a misdemeanor or a felony. See Arizona Laws 13-105
- Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Indictment: The formal charge issued by a grand jury stating that there is enough evidence that the defendant committed the crime to justify having a trial; it is used primarily for felonies.
- Interest holder: means a person in whose favor there is a security interest or who is the beneficiary of a perfected encumbrance pertaining to an interest in property. See Arizona Laws 13-4301
- Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
- Owner: means a person who is not a secured party as defined in section 47-9102 and who has an interest in property, whether legal or equitable. See Arizona Laws 13-4301
- Probable cause: A reasonable ground for belief that the offender violated a specific law.
- Property: means anything of value, tangible or intangible. See Arizona Laws 13-105
- Temporary restraining order: Prohibits a person from an action that is likely to cause irreparable harm. This differs from an injunction in that it may be granted immediately, without notice to the opposing party, and without a hearing. It is intended to last only until a hearing can be held.
B. Notwithstanding subsection C of this section, a temporary restraining order under this section may be entered on application of the state without notice or an opportunity for a hearing if the state demonstrates both that:
1. The seizure is incident to a lawful arrest for a crime or a search lawfully conducted pursuant to a search warrant and the state has probable cause to believe that the property with respect to which the order is sought would, if a conviction occurs, be subject to forfeiture under this title and that the subject of the arrest or search warrant is an owner of the property.
2. Provision of notice will jeopardize the availability of the property for forfeiture. A temporary restraining order expires within ten days after the date on which it is entered unless the party against whom it is entered consents to an extension for a longer period or unless the state can demonstrate the property is being held as evidence in a criminal case.
C. Notice of the entry of the restraining order and an opportunity for a hearing shall be afforded to persons known to have an interest in the property, whether or not a temporary restraining order is entered without notice. The hearing, however, is limited to the issues of whether both:
1. There is a probability that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, conveyed, encumbered or further encumbered, removed from the jurisdiction of the court, concealed or otherwise made unavailable for forfeiture.
2. The need to preserve the availability of property through the entry of the requested order outweighs the hardship on any owner, interest holder or defendant against whom the order is to be entered.
D. A hearing requested by any owner or interest holder concerning an order entered under this section shall be held at the earliest possible time and before the expiration of a temporary order.