§712A-5 - Property subject to forfeiture; exemption.
§712A-5 Property subject to forfeiture; exemption. (1) The following is subject to forfeiture:
(a) Property described in a statute authorizing forfeiture;
(b) Property used or intended for use in the commission of, attempt to commit, or conspiracy to commit a covered offense, or which facilitated or assisted such activity;
(c) Any firearm which is subject to forfeiture under any other subsection of this section or which is carried during, visible, or used in furtherance of the commission, attempt to commit, or conspiracy to commit a covered offense, or any firearm found in proximity to contraband or to instrumentalities of an offense;
(d) Contraband or untaxed cigarettes in violation of chapter 245, shall be seized and summarily forfeited to the State without regard to the procedures set forth in this chapter;
(e) Any proceeds or other property acquired, maintained, or produced by means of or as a result of the commission of the covered offense;
(f) Any property derived from any proceeds which were obtained directly or indirectly from the commission of a covered offense;
(g) Any interest in, security of, claim against, or property or contractual right of any kind affording a source of influence over any enterprise which has been established, participated in, operated, controlled, or conducted in order to commit a covered offense;
(h) All books, records, bank statements, accounting records, microfilms, tapes, computer data, or other data which are used, intended for use, or which facilitated or assisted in the commission of a covered offense, or which document the use of the proceeds of a covered offense.
(2) Except that:
(a) Real property, or an interest therein, may be forfeited under the provisions of this chapter only in cases in which the covered offense is chargeable as a felony offense under state law;
(b) No property shall be forfeited under this chapter to the extent of an interest of an owner, by reason of any act or omission established by that owner to have been committed or omitted without the knowledge and consent of that owner;
(c) No conveyance used by any person as a common carrier in the transaction of a business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;
(d) No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; and
(e) A forfeiture of a conveyance encumbered by a bona fide security interest is subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission. [L 1988, c 260, pt of §1; am L 2000, c 249, §§11, 20(2); am L 2002, c 94, §3]
COMMENTARY ON §712A-5
Act 249, Session Laws 2000, amended this section by adding to the list of property subject to seizure and summary forfeiture any untaxed cigarettes violating the cigarette tax and tobacco tax law under chapter 245.
Act 94, Session Laws 2002, by making the cigarette tax stamp law permanent, amended this and other sections. The legislature sought to ensure compliance with and enforcement of the cigarette tax stamp laws. House Standing Committee Report No. 502-02.
Case Notes
Cash was not subject to forfeiture where, despite suspicious packaging and shipment of money and positive dog sniff test for drugs, State failed to present sufficient evidence to support finding that defendant had committed a covered offense. 73 H. 229, 832 P.2d 256.
The State must prove the existence of a substantial connection between the currency being forfeited and the illegal activity; where $1,300 of the subject currency was substantially connected to appellant's illegal gambling activity and §712A-11(4) provides that the State need not trace the proceeds exactly, $1,300 was properly ordered forfeited to the State. 104 H. 323, 89 P.3d 823.
Where State failed to prove, by a preponderance of the evidence, that the subject currency of $1,900 seized from appellant's trousers was involved in appellant's gambling transactions, trial court erred in ordering currency forfeited to State; there was no evidence connecting currency to any illegal activity, and absent proof of a substantial connection between the illegal activity and the res, the currency was not subject to forfeiture. 104 H. 323, 89 P.3d 823.