MISSISSIPPI LEGISLATURE

1997 Regular Session

To: Judiciary B

By: Representative Davis (102nd)

AN ACT TO CREATE THE FELONY OF FAILURE TO RESPOND TO A LAW ENFORCEMENT OFFICER'S SIGNAL TO STOP WHEN OPERATING A MOTOR VEHICLE; TO PROVIDE PENALTIES FOR VIOLATIONS OF THIS ACT; TO PROVIDE FOR FORFEITURE OF PROPERTY AS THE RESULT OF VIOLATIONS OF THIS ACT; TO PROVIDE FOR THE DISBURSEMENT OF PROCEEDS; TO AMEND SECTION 63-3-203, MISSISSIPPI CODE OF 1972, TO CONFORM WITH THE PROVISIONS OF THIS ACT; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. The following shall be codified as Section 63-3-204, Mississippi Code of 1972:

63-3-204. (1) An operator who, having received a visual or audible signal from a law enforcement officer to bring his vehicle to a stop, operates his vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person, or who attempts to flee or elude a law enforcement officer by vehicle or other means is guilty of a felony. The court shall, as part of any sentence under this subsection, impose a fine of not less than One Thousand Dollars ($1,000.00).

(2) An operator who violates subsection (1) and while so doing causes death or serious bodily injury to another person, under circumstances not amounting to murder or aggravated murder, is guilty of a felony. The court shall, as part of any sentence under this subsection, impose a fine of not less than Five Thousand Dollars ($5,000.00).

(3) (a) In addition to the penalty provided under this section or any other section, an operator who, having received a visual or audible signal from a law enforcement officer to bring his vehicle to a stop, operates his vehicle in willful or wanton disregard of the signal so as to interfere with or endanger the operation of any vehicle or person, or who attempts to flee or elude a law enforcement officer by vehicle or other means, shall have his driver's license revoked for a period of one (1) year.

(b) The court shall collect the driver's license to be revoked and forward it to the Department of Public Safety, along with a report of the conviction. If the court is unable to collect the driver's license, the court shall nevertheless forward the report to the department. If the person is the holder of a driver's license from another jurisdiction, the court shall not collect the driver's license but shall notify the department and the department shall notify the appropriate officials in the licensing state.

(4) Any conveyance, including vehicles, aircraft, watercraft or other vessel used in violation of this section shall be subject to forfeiture and no property right exists in it, except that:

(a) A conveyance used by any person as a common carrier in the transaction of business as a common carrier may not be forfeited under this section unless it appears that the owner or other person in charge of the conveyance was a consenting party or privy to violation of this chapter;

(b) A conveyance may not be forfeited under this section by reason of any act or omission committed or omitted without the owner's knowledge or consent; and

(c) Any forfeiture of a conveyance subject to a bona fide security interest is subject to the interest of a secured party who could not have known in the exercise of reasonable diligence that a violation would or did take place in the use of the conveyance.

(5) Property subject to forfeiture under this section may be seized by any law enforcement officer of this state upon notice and service of process issued by any court having jurisdiction over the property. However, seizure without notice and service of process may be made when:

(a) The seizure is incident to an arrest to search under a search warrant or an inspection under an administrative inspection warrant;

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding under this section; or

(c) The law enforcement officer has probable cause to believe that the property has been used in violation of the provisions of this section.

(6) In the event of seizure under subsection (5), proceedings under subsection (9) shall be instituted without unreasonable delay.

(7) Property taken or detained under this section is not repleviable but is in custody of the law enforcement agency making the seizure, subject only to the orders and decrees of the court or the official having jurisdiction. When property is seized under this section, the appropriate a person or agency may:

(a) Place the property under seal;

(b) Remove the property to a place designated by the warrant under which it was seized; or

(c) Take custody of the property and remove it to an appropriate location for disposition in accordance with law.

(8) When any property is forfeited under this section after a finding of the court that no person is entitled to recover the property, it shall be deposited in the custody of the law enforcement agency seizing such property. The law enforcement agency shall dispose of the property by public bidding. The net proceeds of such sale shall be paid to the Mississippi Board on Law Enforcement Officer Standards and Training for use in training law enforcement officers in pursuit driving and providing a public awareness program regarding police pursuits. Property forfeited under this section may not be applied by the court to costs or fines assessed against any defendant in the case.

(9) When any property is subject to forfeiture under this section, a determination for forfeiture to the state shall be made as follows:

(a) A complaint verified on oath or affirmation shall be prepared by the district attorney where the property was seized or is to be seized. The complaint shall be filed in the circuit or county court if the property is not real property and the value is less than Ten Thousand Dollars ($10,000.00). The complaint shall be filed in the circuit court if the value of property other than real property is Ten Thousand Dollars ($10,000.00) or more or the property is real property. If the complaint includes property under the jurisdiction of the circuit court and also property under the exclusive jurisdiction of the county court, the complaint shall be filed in the circuit court. The complaint shall describe with reasonable particularity:

(i) The property which is the subject matter of the proceeding;

(ii) The date and place of seizure, if known; and

(iii) The allegations which constitute a basis for forfeiture.

(b) Upon filing the complaint, the clerk of the court shall forthwith issue a warrant for seizure of the property which is the subject matter of the action and deliver it to the sheriff for service, unless the property has previously been seized without a warrant.

(c) Notice of the seizure and intended forfeiture shall be filed with the court clerk and served together with a copy of the complaint, upon all persons known to the county attorney to have a claim in the property by one of the following methods:

(i) Upon each claimant whose name and address is known, at the last known address of the claimant, or upon each owner whose right, title or interest is of record in the State Tax Commission, by mailing a copy of the notice and complaint by certified mail to the address given upon the records of the division, which service is considered complete even though the mail is refused or cannot be forwarded; and

(ii) Upon all other claimants whose addresses are unknown, but who are believed to have an interest in the property, by one (1) publication in a newspaper of general circulation in the county where the seizure was made.

(d) Any claimant or interested party shall file with the court a verified answer to the complaint within twenty (20) days after service has been obtained.

(e) When property is seized under this chapter, any interested person or claimant of the property, prior to being served with a complaint under this section, may file a petition in the court having jurisdiction for release of his interest in the property. The petition shall specify the claimant's interest in the property and his right to have it released. A copy shall be served upon the district attorney in the county of the seizure, who shall answer the petition within twenty (20) days. A petitioner need not answer a complaint of forfeiture.

(f) After twenty (20) days following service of a complaint or petition for release, the court shall examine the record and if no answer is on file, the court shall allow the complainant or petitioner an opportunity to present evidence in support of his claim and order forfeiture or release of the property as the court determines. If the district attorney has not filed an answer to a petition for release and the court determines from the evidence that the petitioner is not entitled to recovery of the property, it shall enter an order directing the district attorney to answer the petition within ten (10) days. If no answer is filed within that period, the court shall order the release of the property to the petitioner entitled to receive it.

(g) When an answer to a complaint or petition appears of record at the end of twenty (20) days, the court shall set the matter for hearing within twenty (20) days. At this hearing, all interested parties may present evidence of their rights of release of the property following the state's evidence for forfeiture. The court shall determine by a preponderance of the evidence the issues in the case and order forfeiture or release of the property as it determines.

(h) Proceedings of this section are independent of any other proceedings, whether civil or criminal, under this chapter or the laws of this state.

(i) When the court determines that claimants have no right in the property in whole or in part, it shall declare the property to be forfeited and direct it to be delivered to the custody of the law enforcement agency which seized the property. The law enforcement agency shall dispose of the property under subsection (8).

(j) When the court determines that property, in whole or in part, is not subject to forfeiture, it shall order release of the property to the proper claimant. If the court determines that the property is subject to forfeiture and release in part, it shall order partial release and partial forfeiture. When the property cannot be divided for partial forfeiture and release, the court shall order it sold and the proceeds distributed:

(i) First, proportionally among the legitimate claimants;

(ii) Second, to defray the costs of the action, including seizure, storage of the property, legal costs of filing and pursuing the forfeiture and costs of sale; and

(iii) Third, to the Mississippi Board on Law Enforcement Officer Standards and Training.

(k) In a proceeding under this section where forfeiture is declared, in whole or in part, the court shall assess all costs of the forfeiture proceeding, including seizure and storage of the property, against the individual or individuals whose conduct was the basis of the forfeiture, and may assess costs against any other claimant or claimants to the property as appropriate.

(10) For purposes of this section, it shall be a rebuttable presumption that the owner of a vehicle was the operator of the vehicle at the time of the offense.

SECTION 2. Section 63-3-203, Mississippi Code of 1972, is amended as follows:

63-3-203. Except as otherwise provided in Section 63-3-204, no person shall willfully fail or refuse to comply with any lawful order or direction of any law enforcement officer invested by law with authority to direct, control or regulate traffic.

SECTION 3. This act shall take effect and be in force from and after July 1, 1997.