This section requires the state to prove forfeiture facts, protects innocent owners and bona fide lienholders, and sets procedures for expedited hearings and exempting interests from forfeiture.
The state must prove to the court’s reasonable satisfaction that the proceeds, property, or instrumentality of any kind were used in, intended to be used in, or derived from, a felony offense. Except as provided otherwise in this article, the manner, method, and procedure for the seizure, forfeiture, condemnation, and disposition shall be the same as that set out in Section 20-2-93 and Sections 28-4-286 through 28-4-290, inclusive, except for the following: (1) An innocent owner’s or bona fide lienholder’s interest in any type of property shall not be forfeited under this article for any act or omission unless the state proves that the act or omission was committed or omitted with the knowledge or consent of that owner or lienholder. (2) The state may stipulate that the interest of an innocent owner or bona fide lienholder is exempt from forfeiture upon presentation of proof of the claim. The state shall file the stipulation with the court exercising jurisdiction over the forfeiture action and the filing of the stipulation shall constitute an admission by the state that the interest is exempt from forfeiture. If a stipulation is submitted, no further claim, answer, or pleading shall be required of the stipulated innocent owner or lienholder, and a judgment shall be entered exempting that interest from forfeiture. (3) If an answer is filed within 30 days of service by an innocent owner or bona fide lienholder requesting an expedited hearing, the court may issue an order to show cause to the seizing law enforcement agency for a hearing on the sole issue of whether probable cause for forfeiture of the property or proceeds exists. The hearing shall be held within 60 days of the filing of the request for expedited hearing unless continued for good cause. After the hearing, the court may do any of the following: a. Find probable cause and stay further proceedings until the resolution of any underlying criminal case. b. Enter a judgment exempting that interest from forfeiture. c. Order property that has been seized for forfeiture to be sold to satisfy a specified interest of any lienholder, on motion of any party on all of the following conditions: 1. The lienholder has filed a proper claim. 2. The lienholder has a perfected interest in the property. 3. The lienholder is an innocent owner as defined under Section 15-5-62. (4) Upon order of a court, the lienholder shall dispose of the property by public sale and apply the proceeds from the sale first to obligations to the lienholder secured by the lien, and then to the lienholder’s reasonable expenses incurred in connection with the sale or disposal with the balance of the proceeds, if any, to be returned to the actual or constructive custody of the court, in an interest-bearing account, subject to further proceedings under this article. (5)a. In cases where the property to be forfeited is cash, monetary instruments in bearer form, funds deposited in an account in a financial institution, or other like fungible property, it shall not be necessary for the state to identify the specific property, other than as U.S. currency, cash, monetary instruments in bearer form, or as funds deposited in an account in a financial institution, involved in the offense that is the basis for the forfeiture action. Actual serial numbers or other detailed descriptions are not required. b. It shall not be a defense that the property involved in such an action has been removed and replaced by identical property.