1. (a) At the hearing, the prosecuting attorney must show by a preponderance of the evidence that the property was within the definition of property subject to seizure under section 1 of this chapter. If the property seized was a vehicle, the prosecuting attorney must also show by a preponderance of the evidence that a person who has an ownership interest of record in the bureau of motor vehicles knew or had reason to know that the vehicle was being used in the commission of the offense.
2. (b) If the prosecuting attorney fails to meet the burden of proof, the court shall order the property released to the owner, unless the owner's possession of the property is illegal. If property is released to the owner under this subsection, the owner is not subject to or responsible for any charges for storage of the property or other expenses incurred in the preservation of the property.
3. (c) If the court enters judgment in favor of the state, the court, subject to section 5 of this chapter, shall order distribution of the property in accordance with subsection (d). The court's order may permit the law enforcement agency to use the property for a period not to exceed three (3) years. However, the order must require that, after the period specified by the court, the law enforcement agency shall deliver the property to the county sheriff for public sale.

4. (d) If the court enters judgment in favor of the state, the court shall, subject to section 5 of this chapter order that:

   1. (1) the property, if it is not money or real property, be sold under section 6 of this chapter, by the sheriff of the county in which the property was seized, and if the property is a vehicle, this sale must occur after any period of use specified in subsection (c);
   2. (2) the property, if it is real property, be sold in the same manner as real property is sold on execution under IC 34-55-6 ; and

   3. (3) the proceeds of the sale or the money be distributed as follows:

      1. (A) To pay attorney's fees, if outside counsel is employed under section 8 of this chapter.
      2. (B) After payment of attorney's fees under clause (A), one third (1/3) of the remaining amount shall be deposited into the forfeiture fund established by the prosecuting attorney to offset expenses incurred in connection with the investigation and prosecution of the action.

      3. (C) Except as provided in clause (D), after distribution of the proceeds described in clauses (A) and (B), if applicable, eighty-five percent (85%) of the remaining proceeds shall be deposited in the:

         1. (i) general fund of the state;
         2. (ii) general fund of the unit that employed the law enforcement officers that seized the property; or

         3. (iii) county law enforcement fund established for the support of the drug task force;

            as determined by the court, to offset expenses incurred in the investigation of the acts giving rise to the action.

      4. (D) After distribution of the proceeds described in clauses (A) and (B), if applicable, eighty-five percent (85%) of the remaining proceeds shall be deposited in the general fund of a unit if the property was seized by a local law enforcement agency of the unit for an offense, an attempted offense, or a conspiracy to commit a felony terrorist offense (as defined in IC 35-50-2-18 ) or an offense under IC 35-47 as part of or in furtherance of an act of terrorism.

         The court shall order that the proceeds remaining after the distribution of funds to offset expenses described in subdivision (3) be forfeited and transferred to the treasurer of state for deposit in the common school fund.

5. (e) If property that is seized under this chapter (or IC 34-4-30.1-4 before its repeal) is transferred:

   1. (1) after its seizure, but before an action is filed under section 3 of this chapter (or IC 34-4-30.1-3 before its repeal); or

   2. (2) when an action filed under section 3 of this chapter (or IC 34-4-30.1-3 before its repeal) is pending;

      the person to whom the property is transferred must establish an ownership interest of record as a bona fide purchaser for value. A person is a bona fide purchaser for value under this section if the person, at the time of the transfer, did not have reasonable cause to believe that the property was subject to forfeiture under this chapter.

6. (f) If the property seized was an unlawful telecommunications device (as defined in IC 35-45-13-6 ) or plans, instructions, or publications used to commit an offense under IC 35-45-13 , the court may order the sheriff of the county in which the person was convicted of an offense under IC 35-45-13 to destroy as contraband or to otherwise lawfully dispose of the property.

   [Pre-1998 Recodification Citation: 34-4-30.1-4.]

As added by P.L.1-1998, SEC.19. Amended by P.L.123-2002, SEC.31; P.L.47-2018, SEC.3; P.L.66-2019, SEC.5.