§ 18B-504. Forfeiture.
§18B‑504. Forfeiture.
(a) Property Subject toForfeiture. The following kinds of property shall be subject to forfeiture:
(1) Motor vehicles,boats, airplanes, and all other conveyances used to transport nontaxpaidalcoholic beverages in violation of the ABC laws;
(2) Containers foralcoholic beverages which are manufactured, possessed, sold, or transported inviolation of the ABC laws; and
(3) Equipment oringredients used in the manufacture of alcoholic beverages in violation of theABC laws.
(b) Exemption forForfeiture. Property which may be possessed lawfully shall not be subject toforfeiture when it was used unlawfully by someone other than the owner of theproperty and the owner did not consent to the unlawful use.
(c) Seizure ofProperty. If property subject to forfeiture has not already been seized aspart of an arrest or search, a law‑enforcement officer may apply to ajudge for an order authorizing seizure of that property. An order for seizuremay be issued only after criminal process has been issued for an ABC lawviolation in connection with that property. The order shall describe theproperty to be seized and shall state the facts establishing probable cause tobelieve that the property is subject to forfeiture.
(d) Custody untilTrial. A law‑enforcement officer seizing property subject to forfeitureshall provide for its safe storage until trial. The officer may destroy stillsand perishable materials seized under subdivision (a)(3), if storage isimpractical and if the absence of the property will not be likely to adverselyaffect the defendant's right to defend against the charge that is the basis forthe forfeiture. If the officer having custody of the property is satisfied thatit will be returned at the time of trial, he may return the property to theowner upon receiving a bond for the value of the property, signed by sufficientsureties. If the property is not returned at the time of trial, the full amountof the bond shall be forfeited to the court. Property which it is unlawful topossess may not be returned to the owner.
(e) Disposition afterTrial. The presiding judge in a criminal proceeding for violation of ABC lawsmay take the following actions after resolution of a charge against the owneror possessor of property subject to forfeiture under this section:
(1) If the owner orpossessor of the property is found guilty of an ABC offense, the judge mayorder the property forfeited.
(2) If the owner orpossessor of the property is found not guilty, or if the charge is dismissed orotherwise resolved in favor of the owner or possessor, the judge shall orderthe property returned to the owner or possessor.
(3) If ownership of theproperty remains uncertain after trial, the judge may order the property heldfor a specified time to determine ownership. If the judge finds that ownershipcannot be determined with reasonable effort, the judge shall order the propertyforfeited.
(4) Regardless of thedisposition of the charge, if the property is something that may not bepossessed lawfully, the judge shall order it forfeited.
(5) If the property isalso needed as evidence at an administrative hearing, the judge shall providethat the order does not go into effect until the Commission determines that theproperty is no longer needed for the administrative proceeding.
(f) Disposition ofForfeited Property. A judge ordering forfeiture of property may order any oneof the following dispositions:
(1) Sale at publicauction;
(2) Sale at auctionafter notice to certain named individuals or groups, if only a limited numberof people would have use for that property;
(3) Delivery to a namedState or local law‑enforcement agency, if the property is not suited forsale, with preference to be given in the following order, to: the agency thatseized the property, the ALE Division, the Commission, the local board of thejurisdiction in which the property was seized, and the Department of Justice;or
(4) Destruction, ifpossession of the property would be unlawful and it could not be used or is notwanted for law enforcement, or if sale or other disposition is not practical.
(g) Proceeds of Sale. If forfeited property is sold, the proceeds of that sale shall be paid to theschool fund of the county in which the property was seized, except as providedin subsection (h). Before placing the proceeds in the school fund the agencymaking the sale may deduct and retain the costs of storing the property andconducting the sale.
(h) Innocent Parties. At any time before forfeiture is ordered, an owner of seized property or aholder of a security interest in seized property, other than the defendant, mayapply to protect his interest in the property. The application may be made toany judge who has jurisdiction to try the offense with which the property is associated.If the judge finds that the property owner or holder of a security interest didnot consent to the unlawful use of the property, and that the property may bepossessed lawfully by the owner or holder, the judge may order:
(1) That the property bereturned to the owner, if it is not needed as evidence at trial;
(2) That the property bereturned to the owner following trial or other resolution of the case; or
(3) That, if theproperty is sold following trial, a specified sum be paid from the proceeds ofthat sale to the holder of the security interest.
(i) DefendantUnavailable. When property is seized for forfeiture, but the owner isunknown, the district attorney may seek forfeiture under this section by anaction in rem against the property. If the owner is known and has been chargedwith an offense, but is unavailable for trial, the district attorney may seekforfeiture either by an action in rem against the property or by motion in thecriminal action.
(j) When No Charge isMade. Any owner of property seized for forfeiture may apply to a judge tohave the property returned to him if no criminal charge has been made inconnection with that property within a reasonable time after seizure. The judgemay not order the return of the property if possession by the owner would beunlawful. (1923, c. 1, s. 6; C.S., s. 3411(f); 1927, c. 18;1945, c. 635; 1951, c. 850; 1955, c. 560; 1957, c. 1235, s. 1; 1969, c. 789;1971, c. 872, s. 1; 1977, c. 854, s. 2; 1981, c. 412, s. 2; c. 747, s. 48;1993, c. 415, s. 6.)