§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.