[§712A-5.5]  Excessive forfeitures.  The
court shall limit the scope of a forfeiture judgment issued pursuant to section
[712A-5(1)(b)] to the extent the court finds the effect of the forfeiture is
grossly disproportionate to the nature and severity of the owner's conduct.  In
determining whether a forfeiture is grossly disproportionate, the court may
consider:



(1)  The degree to which the property was used to
facilitate the conduct that subjects property to forfeiture and the importance
of the property to the conduct;



(2)  The gain received or expected by an owner from
the conduct that subjects property to forfeiture and the value of the property
subject to forfeiture;



(3)  The nature and extent of the owner's culpability;
and



(4)  The owner's effort to prevent the conduct or
assist in prosecution. [L 1996, c 104, §2]



 



COMMENTARY ON §712A-5.5



 



  Act 104, Session Laws 1996, added this section which
specifies the criteria that the court may consider in determining whether a
forfeiture is grossly disproportionate to the nature and severity of the
owner's conduct.  The section applies only to forfeitures instituted under
§712A-5(1)(b) dealing with property used to facilitate an offense or an
instrumentality used in an offense.  If property were the derivatives or the
proceeds of an offense, the property would be tainted and consequently would be
forfeited.  House Standing Committee Report No. 409-96.



 



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 §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.