60-4106. Exemptions.
60-4106
60-4106. Exemptions.(a) All property, including all interests in property,describedin K.S.A. 60-4105, is subject to forfeituresubject to all mortgages,deeds of trust, financing statements or security agreements properly of recordprior to the forfeiture held by an interest holderexcept that propertyspecifically exempted hereunder:
(1) No real property or conveyance, or an interest therein,may be forfeited under this act unless the offense orconduct giving rise to forfeiture constitutes a felony.
(2) No conveyance used by any person as a common carrier inthe transaction of business as a common carrier is subject toforfeiture under this act unless it appears that the owner or otherperson in charge of the conveyance is a consenting party or privyto a violation of this act.
(3) No property is subject to forfeiture under this act ifthe owner or interest holder acquired the property before or duringthe conduct giving rise to the property's forfeiture, and such owner orinterest holder:
(A) Did not know and could not have reasonablyknown of the act or omission or that it was likely to occur; or
(B) acted reasonably to prevent the conduct givingrise to forfeiture.
(4) No property is subject to forfeiture if the owner orinterest holder acquired the property after the conduct giving riseto the property's forfeiture, including acquisition of proceeds of conductgiving rise to forfeiture, and the owner or interest holder acquired theproperty in goodfaith, for value and was not knowingly taking part in an illegaltransaction.
(5) (A) An interest in property acquired in good faith by an attorney asreasonable payment or to secure payment for legal services in a criminalmatter relating to violations of this act or for the reimbursement ofreasonable expenses related to the legal services is exempt from forfeitureunless before the interest was acquired the attorney knew of a judicialdetermination of probable cause that the property is subject to forfeiture.
(B) The state bears the burden of proving that an exemption claimed underthis section is not applicable. Evidence made available by the compelleddisclosure of confidential communications between an attorney and a clientother than nonprivileged information relating to attorney fees, is notadmissible to satisfy the state's burden of proof.
(b) Notwithstanding subsection (a), property isnot exempt from forfeiture, even though the owner or interestholder lacked knowledge or reason to know that the conduct givingrise to property's forfeiture had occurred or was likely to occur, if the:
(1) Person whose conduct gave rise to the property's forfeiture hadauthority to convey the property of the person claiming theexemption to a good faith purchaser for value at the time of theconduct;
(2) owner or interest holder is criminally responsiblefor the conduct giving rise to the property's forfeiture, whether or not thereis a prosecution or conviction; or
(3) owner or interest holder acquired the property withnotice of the property's actual or constructive seizure for forfeiture underthis act, or with reason to believe that the property was subject toforfeiture under this act.
(c) Prior to final judgment in a judicial forfeiture proceeding, a courtshall limit the scope of a proposed forfeiture to the extent the court findsthe effect of the forfeiture is grossly disproportionate to the nature andseverity of the owner's conduct including, but not limited to, a considerationofany of the following factors:
(1) The gain received or expected to be received by an owner from conductthat allows forfeiture;
(2) the value of the property subject to forfeiture;
(3) the extent to which the property actually facilitated the criminalconduct;
(4) the nature and extent of the owner's knowledge of the role of others inthe conduct that allows forfeiture of the property and efforts of the owner toprevent the conduct; and
(5) the totality of the circumstances regarding the investigation.
History: L. 1994, ch. 339, § 6; July 1.