§712-1230  Forfeiture of property used in
illegal gambling.  Any gambling device, paraphernalia used on fighting
animals, or birds, implements, furniture, personal property, vehicles, vessels,
aircraft, or gambling record possessed or used in violation of this part, or
any money or personal property used as a bet or stake in gambling activity in
violation of this part, may be ordered forfeited to the State, subject to the
requirements of chapter 712A. [L 1972, c 9, pt of §1; am L 1973, c 201, pt of
§1; am L 1979, c 83, §1; am L 1989, c 261, §22; am L 1992, c 57, §3]



 



Cross References



 



  Surrender or forfeiture of animals, see §711-1110.5.



 



COMMENTARY ON §712-1230



 



  This section restates in general terms the previous law
relating to forfeiture of gambling stakes, records, and devices.[1]  The
forfeiture is specifically made subject to the requirements of §701-119 which
embodies a single procedure for the establishment of all forfeitures declared
by the Penal Code.  The procedure provides, as did the previous law,[2] for the
protection of innocent owners of property which is involved in the commission
of an offense.  Intentionally omitted are prior provisions permitting a person
who loses funds gambling to sue for recovery,[3] permitting a police officer,
officer, or other person to sue to recover treble damages based on the amount
lost (in which case one-half went to the person so prosecuting and one-half to
the state for use for public schools),[4] and voiding instruments of
indebtedness used in gambling.[5]  These provisions are unrealistic, seldom, if
ever, invoked, and unnecessary in view of the general forfeiture provision. 
This section was renumbered from §712-1229 to §712-1230, by Act 201, Session
Laws 1973.



  In State v. Nobuhara, 52 Haw. 319, 474 P.2d 707 (1970), the
Hawaii Supreme Court ruled that certain moneys seized under a violation of
former HRS §746-8, which proscribed betting on an athletic contest, could not
be forfeited.  The Court declared that there was no evidence to tie in the
moneys with the betting activities and thus could not be forfeited under HRS
§746-12.



 



SUPPLEMENTAL COMMENTARY ON §712-1230



 



  Act 83, Session Laws 1979, amended this section to better
define the properties which may be forfeited when used in illegal gambling. 
Within this context, the legislature specifically intended that "only
paraphernalia used in fighting animals and birds be susceptible
to...forfeiture...as distinguished from the animals or birds themselves." 
Conference Committee Report No. 60.  The Act also established a preponderance
of evidence standard for courts to use in determining whether forfeiture should
be ordered.



  Act 57, Session Laws 1992, amended this section to clarify
that forfeitures of property used in illegal gambling are subject to the requirements
of chapter 712A.  House Standing Committee Report No. 1198-92, Senate Standing
Committee Report No. 1947.



 



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.



  Insufficient showing that property was integral part of
illegal gambling operation.  5 H. App. 547, 705 P.2d 54.



 



__________



§712-1230 Commentary:



 



1.  See former H.R.S. §§746-11, 746-12.



 



2.  Id. §746-13.



 



3.  Id. §746-16.



 



4.  Id. §746-18.



 



5.  Id. §746-19.