Ohio § 2981.03

§ 2981.03.

(A)(1) The state or political subdivision acquires provisional title to property subject

to forfeiture under this chapter upon a person's commission of an offense giving rise

to forfeiture, subject to third party claims and a final adjudication under section 2981.04 or 2981.05 of the Revised Code .  Provisional title authorizes the state or political subdivision to seize and hold

the property, and to act to protect the property, under this section before any proceeding

under this chapter.  Title to the property vests with the state or political subdivision when the trier

of fact renders a final forfeiture verdict or order under section 2981.04 or 2981.05 of the Revised Code , but that title is subject to third party claims adjudicated under those sections. (2) Except as otherwise provided in division (A)(3) of this section, a law enforcement

officer may seize property that the officer has probable cause to believe is property

subject to forfeiture.  If a law enforcement officer seizes property that is titled or registered under

law, the officer or the law enforcement agency that employs the officer shall notify

the property owner of the seizure.  The agency shall give notice to the property owner at the owner's last known address

as soon as practical after the seizure and may give the notice by certified mail or

orally by any means, including telephone.  If the officer or agency is unable to provide the notice required by this division

despite reasonable, good faith efforts, those efforts constitute fulfillment of the

notice requirement. (3) If a state or political subdivision seeks to seize real property, the prosecutor

shall file a motion in the appropriate court to request a hearing before the seizure

and shall notify the property owner of the motion.  The court shall hold the hearing not sooner than twenty-one days after the motion

is filed.  At the hearing, the court shall grant the motion if the state or political subdivision

demonstrates by a preponderance of the evidence that the real property is subject

to forfeiture. (4) A person aggrieved by an alleged unlawful seizure of property may seek relief from

the seizure by filing a motion in the appropriate court that shows the person's interest

in the property, states why the seizure was unlawful, and requests the property's

return.  If the motion is filed before an indictment, information, or a complaint seeking

forfeiture of the property is filed, the court shall schedule a hearing on the motion

not later than twenty-one days after it is filed.  The court may extend the time for the hearing on the motion by consent of the parties

or for good cause shown.  At the hearing, if the property seized is titled or registered under law, the state

or political subdivision shall demonstrate by a preponderance of the evidence that

the seizure was lawful and that the person is not entitled to the property.  If the property seized is not titled or registered under law, the person shall demonstrate

by a preponderance of the evidence that the seizure was unlawful and that the person

is entitled to the property.  If the motion is filed by a defendant after an indictment, information, or a complaint

seeking forfeiture of the property has been filed, the court shall treat the motion

as a motion to suppress evidence.  If the motion is filed by a third party after an indictment, information, or complaint

seeking forfeiture of the property has been filed, the court shall treat the motion

as a petition of a person with an alleged interest in the subject property, pursuant

to divisions (E) and (F) of section 2981.04 of the Revised Code . (5)(a) In any action under section 2981.04 or 2981.05 of the Revised Code , if a property owner or third party claims lawful interest in the subject property

alleged to be proceeds, the state or political subdivision has provisional title and

a right to hold property if it proves both of the following by a preponderance of

the evidence: (i) The interest in the property was acquired by the alleged offender or delinquent child

during the commission of the offense or within a reasonable time after that period. (ii) There is no likely source for the interest in the property other than as proceeds

derived from or acquired through the commission of the offense. (b) In any action under section 2981.04 or 2981.05 of the Revised Code , the alleged offender or delinquent child shall have the burden to prove the amount

of any direct costs lawfully incurred. (B)(1) Upon application by the prosecutor who prosecutes or brings an action that allows

forfeiture under this chapter, the court in which the action is prosecuted or filed

may issue an order taking any reasonable action necessary to preserve the reachability

of the property including, but not limited to, a restraining order or injunction,

an order requiring execution of a satisfactory bond or insurance policy, an order

to inspect, photograph, or inventory the property, an order placing a lien or lis

pendens against the property, or an order appointing a receiver or trustee.  The court may issue an order of this nature at any of the following times: (a) Upon the filing of a complaint, indictment, or information alleging the property

to be subject to forfeiture under section 2981.02 of the Revised Code ; (b) Prior to the filing of a complaint, an indictment, or information alleging the property

to be subject to forfeiture under section 2981.02 of the Revised Code , if, after giving notice to all persons known to have an interest in the property

and giving those persons an opportunity to be heard, the court determines that all

of the following apply: (i) There is a substantial probability the state or political subdivision will prevail

on the forfeiture issue. (ii) There is a substantial probability that failure to enter the order will result in

the property being destroyed, being removed from the court's jurisdiction, or otherwise

being made unavailable for forfeiture. (iii) The need to preserve the availability of the property outweighs the hardship on the

person against whom the order is to be entered. (c) As a condition of releasing the property based on a determination of substantial

hardship under division (D) of this section. (2) Except as otherwise provided in division (B)(3) of this section, the court shall

make an order under division (B)(1)(b) of this section effective for not more than

ninety days, but the court may extend the order if the prosecutor demonstrates that

the need to preserve the reachability of the property still exists or for other good

cause shown and shall extend the order if an indictment, information, or a complaint

is filed alleging that the property is subject to forfeiture. (3) A court may issue an order under division (B)(1) of this section without giving notice

or a hearing to a person known to have a interest in the property if the prosecutor

demonstrates that the property is subject to forfeiture and that giving notice and

a hearing will jeopardize the availability of the property for forfeiture.  Notwithstanding the ninety-day limit described in division (B)(2) of this section,

the court shall make an order under division (B)(3) of this section effective for

not more than ten days, but the court may extend the order if the prosecutor again

demonstrates that the property is subject to forfeiture and that a hearing will jeopardize

the availability of the property or for other good cause shown or if the person subject

to the order consents to a longer period.  If a party requests a hearing on the order, the court shall hold the hearing at

the earliest possible time before the order expires. (4) At any hearing under division (B) of this section, the court may receive and consider

evidence and information that is inadmissible under the Rules of Evidence.  The court shall cause the hearing to be recorded and shall cause a transcript to

be made.  If property is to be seized as a result of the hearing, the recording and transcript

shall not be a public record for purposes of section 149.43 of the Revised Code until the property is seized.  This section does not authorize making available for inspection any confidential

law enforcement investigatory record or trial preparation record, as defined in section 149.43 of the Revised Code . (C) Except as otherwise provided in division (E) of this section, any replevin, conversion,

or other civil action brought concerning property subject to a criminal or civil forfeiture

action under this chapter shall be stayed until the forfeiture action is resolved. (D)(1) A person with an interest in property that is subject to forfeiture and that is seized

under this chapter may seek conditional release of the property by requesting possession

from the person with custody of the property.  The request shall demonstrate how the person meets the requirements specified in

divisions (D)(3)(a), (b), and (c) of this section. (2) If the person with custody of the property does not release the property within fifteen

days after a person makes a request under division (D)(1) of this section, or within

seven days after a person makes the request if the property was seized as a mobile

instrumentality or if the request is to copy records, the person who made the request

may file a petition for conditional release with the court in which the complaint,

indictment, or information is filed or, if no complaint, indictment, or information

is filed, the court that issued the seizure warrant for the property.  The petition shall demonstrate how the person meets the requirements specified in

divisions (D)(3)(a), (b), and (c) of this section and the steps the person has taken

to secure release of the property from the official.  Unless extended for good cause shown, the petition shall be filed either within

thirty days of the filing of a complaint, an indictment, or information in the forfeiture

action or, if no complaint, indictment, or information is filed, within thirty days

of the seizure of the property. If the court finds that the person meets the criteria specified in divisions (D)(3)(a),

(b), and (c) of this section, the court shall order the property's conditional return

to the person pending completion of the forfeiture action.  In issuing this order, the court shall notify the person of the prohibitions against

interfering with or diminishing property in section 2981.07 of the Revised Code and may make any order necessary to ensure that the value of the property is maintained. If personal, business, or governmental records are seized, including those contained

in computer files, a person may petition the court for a prompt opportunity to copy,

at the person's expense, any records that are not contraband.  The court may grant the petition if the person demonstrates how the person meets

the requirements specified in divisions (D)(3)(a) and (c) of this section.  The court shall order a competent person to supervise the copying. (3) Except when there is probable cause that the property is contraband, property that

must be held for a reasonable time as evidence related to an offense, or property

that is likely to be used in additional offenses or except when the state or political

subdivision meets the burden imposed under division (A)(5) of this section regarding

alleged proceeds, a court may conditionally release property subject to forfeiture

to a person who demonstrates all of the following: (a) A possessory interest in the property; (b) Sufficient ties to the community to provide assurance that the property will be available

at the time of trial; (c) That failure to conditionally release the property will cause a substantial hardship

to the claimant. (4) In determining whether a substantial hardship exists, the court shall weigh the claimant's

likely hardship from the state's or political subdivision's continued possession of

the property against the risk that the property will be destroyed, damaged, lost,

concealed, or transferred if returned to the claimant.  The court shall consider in favor of release the possibility that withholding the

property would prevent a legitimate business from functioning, prevent the claimant's

or an innocent person from maintaining employment, or leave the claimant or an innocent

person homeless. (5) If the state or political subdivision shows that the claimant's petition is frivolous,

the court shall deny the petition.  Otherwise, the state or political subdivision may respond to the petition by submitting

evidence ex parte to avoid disclosing any matter that may adversely affect an ongoing

criminal investigation or pending trial. (6) The court shall decide on the petition not more than twenty-one days after it is

filed.  If the property seized is alleged to be a mobile instrumentality, the court shall

decide on the petition not more than ten days after it is filed.  If personal, business, or governmental records were seized and a person files a

petition to copy the records, the court shall decide on the petition as soon as practicable,

but not later than thirty days after it is filed.  In any case, the court may extend the time for deciding on the petition by consent

of the parties or for good cause shown. (E) Nothing in this section precludes a financial institution that has or purports to

have a security interest in or lien on property described in section 2981.02 of the Revised Code from filing an action in connection with the property, prior to its disposition under

this chapter, to obtain possession of the property in order to foreclose or otherwise

enforce the security interest or lien. If a financial institution commences a civil action or takes any other appropriate

legal action to sell the property prior to its seizure or prior to its disposition

under this chapter, if the person who is responsible for conducting the sale has actual

knowledge of the commencement of a forfeiture action under either section 2981.04 or 2981.05 of the Revised Code , and if the property is sold, then the person shall dispose of the proceeds of the

sale in the following order: (1) First, to the payment of the costs of the sale, excluding any associated attorney's

fees, and to the payment of the costs incurred by law enforcement agencies and financial

institutions in connection with the seizure, storage, and maintenance of, and provision

of security for, the property; (2) Second, in the order of priority of the security interests and liens, to the payment

of valid security interests and liens pertaining to the property that, at the time

at which the state or political subdivision gains provisional title, are held by known

secured parties and lienholders; (3) Third, to the court that has or would have jurisdiction in a case or proceeding under section 2981.04 or 2981.05 of the Revised Code for disposition under this chapter. (F) A prosecutor may file a forfeiture action under section 2981.04 or 2981.05 of the Revised Code , or both.  If property is seized pursuant to this section, the prosecutor of the county in

which the seizure occurred shall commence a civil action to forfeit that property

under section 2981.05 of the Revised Code , if that section applies. A prosecutor may file an appropriate charging instrument under section 2981.04 of the Revised Code to seek a criminal forfeiture after a civil forfeiture action begins.  Filing a charging instrument for an offense that is also the basis of a civil forfeiture

action shall stay the civil forfeiture action. (G) The prosecutor shall maintain an accurate record of each item disposed of under section 2981.04 or 2981.05 of the Revised Code .  The record shall not identify or enable the identification of the officer who seized

the property.  The record is a public record open for inspection under section 149.43 of the Revised Code .