§712A-11  Judicial forfeiture proceedings;
general.  (1)  In any judicial or administrative proceeding pursuant to
this chapter, the court, on application of the State, may enter any restraining
order or injunction, require the execution of satisfactory performance bonds,
create receiverships, appoint conservators, appraisers, accountants or
trustees, or take any other action to seize, secure, maintain, or preserve the
availability of property subject to forfeiture under this chapter, including a
warrant for its seizure, whether before or after the filing of a petition for
forfeiture, complaint, or indictment.



(2)  If property is seized for forfeiture
without a seizure warrant, a prior judicial order of forfeiture, or a hearing
pursuant to section 712A-13, a court, on an application filed by an owner or
interest-holder within fifteen days after notice of its seizure for forfeiture
or actual knowledge of it, whichever is earlier, and complying with the
requirements for claims in section 712A-12, may issue an order to show cause to
the seizing agency, with thirty days' notice to the prosecuting attorney, for a
hearing on the issue of whether probable cause for forfeiture of the
applicant's interest then exists, provided that, the order to show cause shall
be set aside upon the filing of a petition for either administrative or
judicial forfeiture prior to the hearing, in which event forfeiture proceedings
shall be in accordance with this chapter.



(3)  There shall be a rebuttable presumption
that any property of a person is subject to forfeiture under this chapter if
the State establishes, by the standard of proof applicable to that proceeding,
all of the following:



(a) That the person has engaged in criminal conduct
for which property is subject to forfeiture;



(b) That the property was acquired by the person
during the period of the criminal conduct or within a reasonable time after
that period; and



(c) That there was no likely source for the property
other than the criminal conduct giving rise to forfeiture.



(4)  A finding that property is the proceeds of
criminal conduct giving rise to forfeiture does not require proof that the
property is the proceeds [of] any particular exchange or transaction.



(5)  A defendant convicted in any criminal
proceeding shall be precluded from subsequently denying the essential
allegations of the criminal offense of which the defendant was convicted in any
proceeding pursuant to this chapter.  For the purposes of this chapter, a
conviction may result from a verdict or plea, including a no contest plea, or
deferred acceptance of guilty plea, or no contest plea.



(6)  An acquittal or dismissal in a criminal
proceeding shall not preclude civil proceedings under this chapter.



(7)  In any judicial forfeiture proceeding
pursuant to this chapter, if a defense is based on an exemption provided for in
this chapter, the burden of proving the existence of the exemption is on the
claimant or party raising the defense, and it is not necessary to negate the
exemption in any petition, application, complaint, or indictment.



(8)  For good cause shown, on motion by the
prosecuting attorney, the court may stay discovery against the State in civil
forfeiture proceedings prior to trial on a criminal complaint or indictment
arising from the same conduct and against a claimant who is a defendant in the
criminal proceeding after making provision to prevent loss to any party
resulting from the delay.  The stay provided by this subsection shall not be
available pending appeal of any order or judgment in the criminal proceeding.



(9)  The court shall receive and consider, at
any hearing held pursuant to this chapter, except the hearing on claims
pursuant to sections 712A-12(4) through (8) and 712A-13(7), evidence and
information which would be admissible under the rules of penal procedure
relating to preliminary hearings.



(10)  All property, including all interest in
such property, declared forfeited under this chapter vests in this State on the
commission of the act or omission giving rise to forfeiture under this chapter
together with the proceeds of the property after the act or omission.  Any
property or proceeds transferred to any person after the act or omission are
subject to forfeiture and thereafter shall be ordered forfeited unless the
transferee claims and establishes in a hearing pursuant to this chapter the
showings set out in section 712A-5(2). [L 1988, c 260, pt of §1; am L 1991, c
166, §6]



 



Case Notes



 



  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 subsection (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.