Notice of Intention to Administratively Forfeit Property – Published in The Garden Island on Monday, November 4, 2019, for the island of Kauai – TGI 110419
NOTICE OF INTENTION TO ADMINISTRATIVELY FORFEIT PROPERTY
TO: PERSONS WHO MAY HAVE AN INTEREST IN THE DESCRIBED PROPERTY AND ALL KNOWN OR UNKNOWN OWNERS OF OR INTEREST HOLDERS IN THE DESCRIBED PROPERTY:
YOU ARE HEREBY NOTIFIED that a Petition for Administrative Forfeiture has been filed with the Department of the Attorney General seeking forfeiture of the property described above pursuant to the Hawai’i Omnibus Forfeiture Act, Title 37, (hereafter referred to as “Forfeiture Act”), Chapter 712A of the Hawai’i Revised Statutes (“H.R.S.”).
YOU ARE FURTHER NOTIFIED that you may respond to this notice by doing one, but only one, of the following:
1. You may do nothing, in which case the property will be administratively forfeited; or,
2. You may file a Petition for Remission or Mitigation. A Petition for Remission or Mitigation admits that the property is subject to forfeiture but asks the Attorney General to pardon the property, in whole or in part, due to extenuating circumstances. The Attorney General’s decision is final, not subject to appeal, and may be made without hearing. A Petition for Remission or Mitigation must be signed by the petitioner and sworn on oath before a notary public, a suggested version of which is attached as Verified Petition for Remission or Mitigation Exhibit “1,” of the Notice of Intent to Administratively Forfeit Property and shall contain the following:
1. A reasonably complete description of the property;
2. A statement of the interest of the petition in the property, as owner or interest-holder which may be supported by bills of sale, contracts, or mortgages, or other documentary evidence; and,
3. Facts and circumstances sufficient to show whether you:
- own or hold an interest as defined by H.R.S. Section 712A-1, in the seized property;
- had any knowledge that the property was or would be involved in any violation of the law;
- had any knowledge of the particular violation which subjected the property to seizure and forfeiture;
- had any knowledge that the user of the property had any record, including arrests, except where the person was acquitted or the charges dismissed due to lack of evidence, for the violation which subjected the property to seizure and forfeiture or for any crime which is similar in nature.
4. If the Attorney General, with sole discretion, determines that remission is not warranted, the Attorney General may in his or her discretion mitigate the forfeiture where the petitioner has not met the minimum requirements for remission but where there are present other extenuating circumstances indicating that some relief should be granted to avoid extreme hardship. Extenuating circumstances include:
- Language or cultural barrier;
- Humanitarian factors such as youth or extreme age;
- Presence of physical or mental disease, disorder or defect;
- Limited or peripheral criminal culpability;
- Cooperation with the seizing agency or the prosecuting attorney; and
- Any contributory error on the part of the government officials.
5. The Attorney General will inquire into the facts and circumstances alleged in the Petition for Remission or Mitigation and provide a written decision on the Petition within sixty days. If the circumstances of the case require more time, the Petitioner will be notified in writing within the sixty day period, be informed of the circumstances requiring more time, and be further notified of the expected decision date.
3. The Claimant may seek judicial determination of the forfeiture by filing a claim and a cost or in pauperis bond. A claim must be signed by the claimant, be sworn on oath before a notary public, and comply with the requirements of H.R.S. Section 712A-12(5).
1. A claim will be decided by a judge and not the attorney general. A claim need not be in any special form, but it must be written or typed and readable, signed by the claimant and sworn upon oath before a notary public. A claim must contain the following information:
- The name of the claimant;
- The address at which the claimant will accept future mailings from the court or the prosecuting attorney and the attorney general;
- The nature and extent of the claimant’s interest in the property;
- The time, transferor and the circumstances of the claimant’s acquisition of the interest in the property;
- The specific provisions of chapter 712A, Hawaii Revised Statutes, relied on in asserting that the property seized for forfeiture is not subject to forfeiture;
- Facts supporting each assertion that the property is not subject to forfeiture;
- Any additional facts supporting the claimant’s claim; and
- The precise relief sought.
2. The claim must be accompanied by a cost bond in the amount of $2,500.00 or ten percent of the appraised or estimated value of the property, whichever is greater, or an in pauperis bond consisting of a declaration in the form of, and containing, the elements specified in the Appendix to the Hawai’i Rules of Penal Procedure, a suggested version of which is attached as Exhibit “2.” The cost bond must be in the form of a bank cashier’s check or money order. Personal checks will not be accepted. If claimant fails to prove that claimant’s interest is exempt from forfeiture under section 712A-5, H.R.S., the claimant shall pay the State’s costs and expenses, including reasonable attorney’s fees incurred in connection with the judicial proceeding.
3. Upon receipt of the claim and bond, the Attorney General will notify the Prosecuting Attorney who may either petition the Circuit Court for forfeiture of the property or may elect to honor the claim. If the Prosecuting Attorney elects to honor the claim, the seizing agency will be instructed to release the property, or some specified interest in it. If the Prosecuting Attorney petitions the circuit court for forfeiture and prevails, all costs and expenses of the proceedings will be deducted from any cost bond filed.
A Petition for Remission or Mitigation or a claim and bond must be filed with the Department of the Attorney General, Civil Recoveries Division, Hale Auhau, 425 Queen Street, Honolulu, Hawai’i 96813 within thirty days after you receive this notice or the date on which it is published in a newspaper of general circulation in the county in which the seizure for forfeiture took place, whichever occurs first. One extension of thirty days for filing of the claim may be granted upon a written request demonstrating good cause provided that the request is received within the thirty day period for filing of a claim.
IF YOU FAIL TO FILE A CLAIM AND COST OR IN PAUPERIS BOND OR A PETITION FOR REMISSION OR MITIGATION OR AN EXTENSION REQUEST IN A TIMELY MANNER AND IN SUBSTANTIAL COMPLIANCE WITH §712A-10 OF THE HAWAI’I REVISED STATUES, THE PETITION FOR ADMINISTRATIVE FORFEITURE WILL BE GRANTED AND THE PROPERTY SHALL BE FORFEITED TO THE STATE OF HAWAI’I.