Title 16, Chapter 13, Section 49
( 16-13-49)
(a) As used in this Code section, the term: (1) "Controlled substance" shall have the same meaning as provided in paragraph (4) of Code Section 16-13-21 and shall also include marijuana as such term is defined in paragraph (16) of Code Section 16-13-21, notwithstanding any other provisions of this article. (2) "Costs" means, but is not limited to: (A) All expenses associated with the seizure, towing, storage,
maintenance, custody, preservation, operation, or sale of the
property; and (B) Satisfaction of any security interest or lien not subject to
forfeiture under this Code section. (3) "Court costs" means, but is not limited to: (A) All court costs, including the costs of advertisement,
transcripts, and court reporter fees; and (B) Payment of receivers, conservators, appraisers, accountants,
or trustees appointed by the court pursuant to this Code
section. (4) "Enterprise" means any person, sole proprietorship,
partnership, corporation, trust, association, or other legal
entity created under the laws of this state, of the United States
or any of the several states of the United States, or of any
foreign nation or a group of individuals associated in fact
although not a legal entity and includes illicit as well as licit
enterprises and governmental as well as other entities. (5) "Governmental agency" means any department, office, council,
commission, committee, authority, board, bureau, or division of
the executive, judicial, or legislative branch of a state, the
United States, or any political subdivision thereof. (6) "Interest holder" means a secured party within the meaning of Code Section 11-9-102 or the beneficiary of a perfected encumbrance pertaining to an interest in property. (7) "Owner" means a person, other than an interest holder, who has
an interest in property and is in compliance with any statute
requiring its recordation or reflection in public records in order
to perfect the interest against a bona fide purchaser for value. (8) "Proceeds" means property derived directly or indirectly from,
maintained by, or realized through an act or omission and includes
any benefit, interest, or property of any kind without reduction
for expenses incurred for acquisition, maintenance, or any other
purpose. (9) "Property" means anything of value and includes any interest
in anything of value, including real property and any fixtures
thereon, and tangible and intangible personal property, including
but not limited to currency, instruments, securities, or any other
kind of privilege, interest, claim, or right. (10) "United States" includes its territories, possessions, and
dominions and the District of Columbia. (b)(1) An action filed pursuant to this Code section shall be
filed in the name of the State of Georgia and may be brought: (A) In the case of an in rem action, by the district attorney
for the judicial circuit where the property is located; (B) In the case of an in personam action, by the district
attorney for the judicial circuit in which the defendant
resides; or (C) By the district attorney having jurisdiction over any
offense which arose out of the same conduct which made the
property subject to forfeiture. Such district attorney may bring an action pursuant to this Code
section in any superior court of this state. (2) If more than one district attorney has jurisdiction to file an
action pursuant to this Code section, the district attorney having
primary jurisdiction over a violation of this article shall, in
the event of a conflict, have priority over any other district
attorney. (3) Any action brought pursuant to this Code section may be
compromised or settled in the same manner as other civil actions. (c) An action for forfeiture brought pursuant to this Code section
shall be tried: (1) If the action is in rem against real property, in the county
where the property is located, except where a single tract is
divided by a county line, in which case the superior court of
either county shall have jurisdiction; (2) If the action is in rem against tangible or intangible
personal property, in any county where the property is located or
will be during the pendency of the action; or (3) If the action is in personam, as provided by law. (d) The following are declared to be contraband and no person shall
have a property right in them: (1) All controlled substances, raw materials, or controlled
substance analogs that have been manufactured, distributed,
dispensed, possessed, or acquired in violation of this article; (2) All property which is, directly or indirectly, used or
intended for use in any manner to facilitate a violation of this
article or any proceeds derived or realized therefrom; (3) All property located in this state which was, directly or
indirectly, used or intended for use in any manner to facilitate a
violation of this article or of the laws of the United States or
any of the several states relating to controlled substances which
is punishable by imprisonment for more than one year or any
proceeds derived or realized therefrom; (4) All weapons possessed, used, or available for use in any
manner to facilitate a violation of this article or any of the
laws of the United States or any of the several states relating to
controlled substances which is punishable by imprisonment for more
than one year; (5) Any interest, security, claim, or property or contractual
right of any kind affording a source of influence over any
enterprise that a person has established, operated, controlled,
conducted, or participated in the conduct of in violation of this
article or any of the laws of the United States or any of the
several states relating to controlled substances which is
punishable by imprisonment for more than one year or any proceeds
derived or realized therefrom; and (6) All moneys, negotiable instruments, securities, or other
things of value which are found in close proximity to any
controlled substance or marijuana or other property which is
subject to forfeiture under this subsection. (e) A property interest shall not be subject to forfeiture under
this Code section if the owner of such interest or interest holder
establishes that the owner or interest holder: (1) Is not legally accountable for the conduct giving rise to its
forfeiture, did not consent to it, and did not know and could not
reasonably have known of the conduct or that it was likely to
occur; (2) Had not acquired and did not stand to acquire substantial
proceeds from the conduct giving rise to its forfeiture other than
as an interest holder in an arm's length commercial transaction; (3) With respect to conveyances for transportation only, did not
hold the property jointly, in common, or in community with a
person whose conduct gave rise to its forfeiture; (4) Does not hold the property for the benefit of or as nominee
for any person whose conduct gave rise to its forfeiture, and, if
the owner or interest holder acquired the interest through any
such person, the owner or interest holder acquired it as a bona
fide purchaser for value without knowingly taking part in an
illegal transaction; and (5) Acquired the interest: (A) Before the completion of the conduct giving rise to its
forfeiture, and the person whose conduct gave rise to its
forfeiture did not have the authority to convey the interest to
a bona fide purchaser for value at the time of the conduct; or (B) After the completion of the conduct giving rise to its
forfeiture: (i) As a bona fide purchaser for value without knowingly
taking part in an illegal transaction;
(ii) Before the filing of a lien on it and before the
effective date of a notice of pending forfeiture relating to
it and without notice of its seizure for forfeiture under this
article; and (iii) At the time the interest was acquired, was reasonably
without cause to believe that the property was subject to
forfeiture or likely to become subject to forfeiture under
this article. A property interest shall not be subject to forfeiture under this
Code section for a violation involving one gram of cocaine or less
or four ounces of marijuana or less unless said property was used to
facilitate a transaction in or a purchase of or sale of a controlled
substance or marijuana. (f) A rented or leased vehicle shall not be subject to forfeiture
unless it is established in forfeiture proceedings that the owner of
the rented or leased vehicle is legally accountable for the conduct
which would otherwise subject the vehicle to forfeiture, consented
to the conduct, or knew or reasonably should have known of the
conduct or that it was likely to occur. Upon learning of the address
or phone number of the company which owns any rented or leased
vehicle which is present at the scene of an arrest or other action
taken pursuant to this Code section, the duly authorized authorities
shall immediately contact the company to inform it that the vehicle
is available for the company to take possession. (g)(1) Property which is subject to forfeiture under this Code
section may be seized by the director of the Georgia Drugs and
Narcotics Agency or any duly authorized agent or drug agent of
this state or by any law enforcement officer of this state or of
any political subdivision thereof who has power to make arrests or
execute process or a search warrant issued by any court having
jurisdiction over the property. A search warrant authorizing
seizure of property which is subject to forfeiture pursuant to
this Code section may be issued on an affidavit demonstrating that
probable cause exists for its forfeiture or that the property has
been the subject of a previous final judgment of forfeiture in the
courts of this state, any other state, or the United States. The
court may order that the property be seized on such terms and
conditions as are reasonable. (2) Property which is subject to forfeiture under this Code
section may be seized without process if there is probable cause
to believe that the property is subject to forfeiture under this
article or the seizure is incident to an arrest or search pursuant
to a search warrant or to an inspection under an inspection
warrant. (3) The court's jurisdiction over forfeiture proceedings is not
affected by a seizure in violation of the Constitution of Georgia
or the United States Constitution made with process or in a good
faith belief of probable cause. (h)(1) When property is seized pursuant to this article, the
sheriff, drug agent, or law enforcement officer seizing the same
shall report the fact of seizure, in writing, within 20 days
thereof to the district attorney of the judicial circuit having
jurisdiction in the county where the seizure was made.
(2) Within 60 days from the date of seizure, a complaint for
forfeiture shall be initiated as provided for in subsection (n),
(o), or (p) of this Code section. (3) If the state fails to initiate forfeiture proceedings against
property seized for forfeiture by notice of pending forfeiture
within the time limits specified in paragraphs (1) and (2) of this
subsection, the property must be released on the request of an
owner or interest holder, pending further proceedings pursuant to
this Code section, unless the property is being held as evidence. (i)(1) Seizure of property by a law enforcement officer
constitutes notice of such seizure to any person who was present
at the time of seizure who may assert an interest in the property. (2) When property is seized pursuant to this article, the district
attorney or the sheriff, drug agent, or law enforcement officer
seizing the same shall give notice of the seizure to any owner or
interest holder who is not present at the time of seizure by
personal service, publication, or the mailing of written notice: (A) If the owner's or interest holder's name and current address
are known, by either personal service or mailing a copy of the
notice by certified mail or statutory overnight delivery to that
address; (B) If the owner's or interest holder's name and address are
required by law to be on record with a government agency to
perfect an interest in the property but the owner's or interest
holder's current address is not known, by mailing a copy of the
notice by certified mail or statutory overnight delivery, return
receipt requested, to any address on the record; or (C) If the owner's or interest holder's address is not known and
is not on record as provided in subparagraph (B) of this
paragraph or the owner's or interest holder's interest is not
known, by publication in two consecutive issues of a newspaper
of general circulation in the county in which the seizure
occurs. (3) Notice of seizure must include a description of the property,
the date and place of seizure, the conduct giving rise to
forfeiture, and the violation of law alleged. (j) A district attorney may file, without a filing fee, a lien for
forfeiture of property upon the initiation of any civil or criminal
proceeding under this article or upon seizure for forfeiture. The
filing constitutes notice to any person claiming an interest in the
property owned by the named person. The filing shall include the
following: (1) The lien notice must set forth: (A) The name of the person and, in the discretion of the state,
any alias and any corporations, partnerships, trusts, or other
entities, including nominees, that are either owned entirely or
in part or controlled by the person; and (B) The description of the property, the criminal or civil
proceeding that has been brought under this article, the amount
claimed by the state, the name of the court where the proceeding
or action has been brought, and the case number of the
proceeding or action if known at the time of filing; (2) A lien under this subsection applies to the described property
and to one named person and to any aliases, fictitious names, or
other names, including names of corporations, partnerships,
trusts, or other entities, that are either owned entirely or in
part or controlled by the named person and any interest in real
property owned or controlled by the named person. A separate lien
for forfeiture of property must be filed for any other person; (3) The lien creates, upon filing, a lien in favor of the state as
it relates to the seized property or to the named person or
related entities with respect to said property. The lien secures
the amount of potential liability for civil judgment and, if
applicable, the fair market value of seized property relating to
all proceedings under this article enforcing the lien. The
forfeiture lien referred to in this subsection must be filed in
accordance with the provisions of the laws in this state
pertaining to the type of property that is subject to the lien.
The state may amend or release, in whole or in part, a lien filed
under this subsection at any time by filing, without a filing fee,
an amended lien in accordance with this subsection which
identifies the lien amended. The state, as soon as practical
after filing a lien, shall furnish to any person named in the lien
a notice of the filing of the lien. Failure to furnish notice
under this subsection does not invalidate or otherwise affect a
lien filed in accordance with this subsection; (4) Upon entry of judgment in favor of the state, the state may
proceed to execute on the lien as in the case of any other
judgment; (5) A trustee, constructive or otherwise, who has notice that a
lien for forfeiture of property, a notice of pending forfeiture,
or a civil forfeiture proceeding has been filed against the
property or against any person or entity for whom the person holds
title or appears as the owner of record shall furnish, within ten
days, to the district attorney or his designee the following
information: (A) The name and address of the person or entity for whom the
property is held; (B) The names and addresses of all beneficiaries for whose
benefit legal title to the seized property, or property of the
named person or related entity, is held; and (C) A copy of the applicable trust agreement or other
instrument, if any, under which the trustee or other person
holds legal title or appears as the owner of record of the
property; and (6) A trustee, constructive or otherwise, who fails to comply with
this subsection shall be guilty of a misdemeanor. (k) Property taken or detained under this Code section is not
subject to replevin, conveyance, sequestration, or attachment. The
seizing law enforcement agency or the district attorney may
authorize the release of the property if the forfeiture or retention
is unnecessary or may transfer the action to another agency or
district attorney by discontinuing forfeiture proceedings in favor
of forfeiture proceedings initiated by the other law enforcement
agency or district attorney. An action under this Code section may
be consolidated with any other action or proceeding under this
article relating to the same property on motion by an interest
holder and must be so consolidated on motion by the district
attorney in either proceeding or action. The property is deemed to
be in the custody of the State of Georgia subject only to the orders
and decrees of the superior court having jurisdiction over the
forfeiture proceedings. (l)(1) If property is seized under this article, the district
attorney may: (A) Remove the property to a place designated by the superior
court having jurisdiction over the forfeiture proceeding; (B) Place the property under constructive seizure by posting
notice of pending forfeiture, by giving notice of pending
forfeiture to its owners and interest holders, or by filing
notice of seizure in any appropriate public record relating to
the property; (C) Remove the property to a storage area, within the
jurisdiction of the court, for safekeeping or, if the property
is a negotiable instrument or money and is not needed for
evidentiary purposes, the district attorney may authorize its
being deposited in an interest-bearing account in a financial
institution in this state. Any accrued interest shall follow
the principal in any judgment with respect thereto; (D) Provide for another governmental agency, a receiver
appointed by the court pursuant to Chapter 8 of Title 9, an
owner, or an interest holder to take custody of the property and
remove it to an appropriate location within the county where the
property was seized; or (E) Require the sheriff or chief of police of the political
subdivision where the property was seized to take custody of the
property and remove it to an appropriate location for
disposition in accordance with law. (2) If any property which has been attached or seized pursuant to
this Code section is perishable or is liable to perish, waste, or
be greatly reduced in value by keeping or if the expense of
keeping the same is excessive or disproportionate to the value
thereof, the court, upon motion of the state, a claimant, or the
custodian, may order the property or any portion thereof to be
sold upon such terms and conditions as may be prescribed by the
court; and the proceeds shall be paid into the registry of the
court pending final disposition of the action. (m) As soon as possible, but not more than 30 days after the seizure
of property, the seizing law enforcement agency shall conduct an
inventory and estimate the value of the property seized. (n) If the estimated value of personal property seized is $25,000.00
or less, the district attorney may elect to proceed under the
provisions of this subsection in the following manner: (1) Notice of the seizure of such property shall be posted in a
prominent location in the courthouse of the county in which the
property was seized. Such notice shall include a description of
the property, the date and place of seizure, the conduct giving
rise to forfeiture, a statement that the owner of such property
has 30 days within which a claim must be filed, and the violation
of law alleged; (2) A copy of the notice, which shall include a statement that the
owner of such property has 30 days within which a claim must be
filed, shall be served upon an owner, interest holder, or person
in possession of the property at the time of seizure as provided
in subsection (i) of this Code section and shall be published for
at least three successive weeks in a newspaper of general
circulation in the county where the seizure was made; (3) The owner or interest holder may file a claim within 30 days
after the second publication of the notice of forfeiture by
sending the claim to the seizing law enforcement agency and to the
district attorney by certified mail or statutory overnight
delivery, return receipt requested; (4) The claim must be signed by the owner or interest holder under
penalty of perjury and must set forth: (A) The caption of the proceedings as set forth on the notice of
pending forfeiture and the name of the claimant; (B) The address at which the claimant will accept mail; (C) The nature and extent of the claimant's interest in the
property; (D) The date, identity of the transferor, and circumstances of
the claimant's acquisition of the interest in the property; (E) The specific provision of this Code section relied on in
asserting that the property is not subject to forfeiture; (F) All essential facts supporting each assertion; and (G) The precise relief sought; (5) If a claim is filed, the district attorney shall file a
complaint for forfeiture as provided in subsection (o) or (p) of
this Code section within 30 days of the actual receipt of the
claim. A person who files a claim shall be joined as a party; and (6) If no claim is filed within 30 days after the second
publication of the notice of forfeiture, all right, title, and
interest in the property is forfeited to the state and the
district attorney shall dispose of the property as provided in
subsection (u) of this Code section. (o) In rem proceedings. (1) In actions in rem, the property which is the subject of the
action shall be named as the defendant. The complaint shall be
verified on oath or affirmation by a duly authorized agent of the
state in a manner required by the laws of this state. Such
complaint shall describe the property with reasonable
particularity; state that it is located within the county or will
be located within the county during the pendency of the action;
state its present custodian; state the name of the owner or
interest holder, if known; allege the essential elements of the
violation which is claimed to exist; state the place of seizure,
if the property was seized; and conclude with a prayer of due
process to enforce the forfeiture. (2) A copy of the complaint and summons shall be served on any
person known to be an owner or interest holder and any person who
is in possession of the property. (A) Service of the complaint and summons shall be as provided in subsections (a), (b), (c), and (e) of Code Section 9-11-4. (B) If real property is the subject of the action or the owner
or interest holder is unknown or resides out of the state or
departs the state or cannot after due diligence be found within
the state or conceals himself so as to avoid service, notice of
the proceeding shall be published once a week for two successive
weeks in the newspaper in which the sheriff's advertisements are
published. Such publication shall be deemed notice to any and
all persons having an interest in or right affected by such
proceeding and from any sale of the property resulting
therefrom, but shall not constitute notice to an interest holder
unless that person is unknown or resides out of the state or
departs the state or cannot after due diligence be found within
the state or conceals himself to avoid service. (C) If tangible property which has not been seized is the
subject of the action, the court may order the sheriff or
another law enforcement officer to take possession of the
property. If the character or situation of the property is such
that the taking of actual possession is impracticable, the
sheriff shall execute process by affixing a copy of the
complaint and summons to the property in a conspicuous place and
by leaving another copy of the complaint and summons with the
person having possession or his agent. In cases involving a
vessel or aircraft, the sheriff or other law enforcement officer
is authorized to make a written request with the appropriate
governmental agency not to permit the departure of such vessel
or aircraft until notified by the sheriff or his deputy that the
vessel or aircraft has been released. (3) An owner of or interest holder in the property may file an
answer asserting a claim against the property in the action in
rem. Any such answer shall be filed within 30 days after the
service of the summons and complaint. Where service is made by
publication and personal service has not been made, an owner or
interest holder shall file an answer within 30 days of the date of
final publication. An answer must be verified by the owner or
interest holder under penalty of perjury. In addition to
complying with the general rules applicable to an answer in civil
actions, the answer must set forth: (A) The caption of the proceedings as set forth in the complaint
and the name of the claimant;
(B) The address at which the claimant will accept mail; (C) The nature and extent of the claimant's interest in the
property; (D) The date, identity of transferor, and circumstances of the
claimant's acquisition of the interest in the property; (E) The specific provision of this Code section relied on in
asserting that the property is not subject to forfeiture; (F) All essential facts supporting each assertion; and (G) The precise relief sought. (4) If at the expiration of the period set forth in paragraph (3)
of this subsection no answer has been filed, the court shall order
the disposition of the seized property as provided for in this
Code section. (5) If an answer is filed, a hearing must be held within 60 days
after service of the complaint unless continued for good cause and
must be held by the court without a jury. (6) An action in rem may be brought by the state in addition to or
in lieu of any other in rem or in personam action brought pursuant
to this title. (p) In personam proceedings. (1) The complaint shall be verified on oath or affirmation by a
duly authorized agent of the state in a manner required by the
laws of this state. It shall describe with reasonable
particularity the property which is sought to be forfeited; state
its present custodian; state the name of the owner or interest
holder, if known; allege the essential elements of the violation
which is claimed to exist; state the place of seizure, if the
property was seized; and conclude with a prayer of due process to
enforce the forfeiture. (2) Service of the complaint and summons shall be as follows: (A) Except as otherwise provided in this subsection, service of the complaint and summons shall be as provided by subsections (a), (b), (c), and (d) of Code Section 9-11-4; and (B) If the defendant is unknown or resides out of the state or
departs the state or cannot after due diligence be found within
the state or conceals himself so as to avoid service, notice of
the proceedings shall be published once a week for two
successive weeks in the newspaper in which the sheriff's
advertisements are published. Such publication shall be deemed
sufficient notice to any such defendant. (3) A defendant shall file a verified answer within 30 days after
the service of the summons and complaint. Where service is made
by publication and personal service has not been made, a defendant
shall file such answer within 30 days of the date of final
publication. In addition to complying with the general rules
applicable to an answer in civil actions, the answer must contain
all of the elements set forth in paragraph (3) of subsection (o)
of this Code section. (4) Any interest holder or person in possession of the property
may join any action brought pursuant to this subsection as
provided by Chapter 11 of Title 9, known as the "Georgia Civil
Practice Act." (5) If at the expiration of the period set forth in paragraph (3)
of this subsection no answer has been filed, the court shall order
the disposition of the seized property as provided for in this
Code section. (6) If an answer is filed, a hearing must be held within 60 days
after service of the complaint unless continued for good cause and
must be held by the court without a jury. (7) On a determination of liability of a person for conduct giving
rise to forfeiture under this Code section, the court must enter a
judgment of forfeiture of the property described in the complaint
and must also authorize the district attorney or his agent or any
law enforcement officer or peace officer to seize all property
ordered to be forfeited which was not previously seized or was not
then under seizure. Following the entry of an order declaring the
property forfeited, the court, on application of the state, may
enter any appropriate order to protect the interest of the state
in the property ordered to be forfeited. (8) Except as provided in this subsection, no person claiming an
interest in property subject to forfeiture under this Code section
may intervene in a trial or appeal of a criminal action or in an
in personam civil action involving the forfeiture of the property. (q) In conjunction with any civil or criminal action brought
pursuant to this article: (1) The court, on application of the district attorney, may enter
any restraining order or injunction; require the execution of
satisfactory performance bonds; appoint receivers, conservators,
appraisers, accountants, or trustees; or take any action to seize,
secure, maintain, or preserve the availability of property subject
to forfeiture under this article, including issuing a warrant for
its seizure and writ of attachment, whether before or after the
filing of a complaint for forfeiture; (2) A temporary restraining order under this Code section may be
entered on application of the district attorney, without notice or
an opportunity for a hearing, if the district attorney
demonstrates that: (A) There is probable cause to believe that the property with
respect to which the order is sought, in the event of final
judgment or conviction, would be subject to forfeiture under
this title; and (B) Provision of notice would jeopardize the availability of the
property for forfeiture; (3) Notice of the entry of a restraining order and an opportunity for a hearing must be afforded to persons known to have an interest in the property. The hearing must be held at the earliest possible date consistent with the date set in subsection (b) of Code Section 9-11-65 and is limited to the issues of whether: (A) There is a probability that the state will prevail on the
issue of forfeiture and that failure to enter the order will
result in the property's being destroyed, conveyed, encumbered,
removed from the jurisdiction of the court, concealed, or
otherwise made unavailable for forfeiture; and (B) The need to preserve the availability of property through
the entry of the requested order outweighs the hardship on any
owner or interest holder against whom the order is to be
entered; (4) If property is seized for forfeiture or a forfeiture lien is
filed without a previous judicial determination of probable cause
or order of forfeiture or a hearing under paragraph (2) of this
subsection, the court, on an application filed by an owner of or
interest holder in the property within 30 days after notice of its
seizure or lien or actual knowledge of such seizure or lien,
whichever is earlier, and complying with the requirements for an
answer to an in rem complaint, and after five days' notice to the
district attorney of the judicial circuit where the property was
seized or, in the case of a forfeiture lien, to the district
attorney filing such lien, 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 then exists.
The hearing must be held within 30 days unless continued for good
cause on motion of either party. If the court finds that there is
no probable cause for forfeiture of the property, the property
must be released pending the outcome of a judicial proceeding
which may be filed pursuant to this Code section; and (5) The court may order property that has been seized for
forfeiture to be sold to satisfy a specified interest of any
interest holder, on motion of any party, and after notice and a
hearing, on the conditions that: (A) The interest holder has filed a proper claim and: (i) Is authorized to do business in this state and is under
the jurisdiction of a governmental agency of this state or of
the United States which regulates financial institutions,
securities, insurance, or real estate; or (ii) Has an interest that the district attorney has stipulated
is exempt from forfeiture; (B) The interest holder must dispose of the property by
commercially reasonable public sale and apply the proceeds first
to its interest and then to its reasonable expenses incurred in
connection with the sale or disposal; and (C) The balance of the proceeds, if any, must be returned to the
actual or constructive custody of the court, in an
interest-bearing account, subject to further proceedings under
this Code section. (r) A defendant convicted in any criminal proceeding is precluded
from later denying the essential allegations of the criminal offense
of which the defendant was convicted in any proceeding pursuant to
this Code section, regardless of the pendency of an appeal from that
conviction; however, evidence of the pendency of an appeal is
admissible. For the purposes of this Code section, a conviction
results from a verdict or plea of guilty, including a plea of nolo
contendere. (s) In hearings and determinations pursuant to this Code section: (1) The court may receive and consider, in making any
determination of probable cause or reasonable cause, all evidence
admissible in determining probable cause at a preliminary hearing
or by a magistrate pursuant to Article 1 of Chapter 5 of Title 17,
together with inferences therefrom; (2) The fact that money or a negotiable instrument was found in
proximity to contraband or to an instrumentality of conduct giving
rise to forfeiture authorizes the trier of the fact to infer that
the money or negotiable instrument was the proceeds of conduct
giving rise to forfeiture or was used or intended to be used to
facilitate such conduct; and (3) There is a rebuttable presumption that any property of a
person is subject to forfeiture under this Code section if the
state establishes probable cause to believe that: (A) The person has engaged in conduct giving rise to forfeiture; (B) The property was acquired by the person during the period of
the conduct giving rise to forfeiture or within a reasonable
time after the period; and (C) There was no likely source for the property other than the
conduct giving rise to forfeiture. (t)(1) All property declared to be forfeited under this Code
section vests in this state at the time of commission of the
conduct giving rise to forfeiture together with the proceeds of
the property after that time. Any property or proceeds
transferred later to any person remain subject to forfeiture and
thereafter must be ordered to be forfeited unless the transferee
claims and establishes in a hearing under this Code section that
the transferee is a bona fide purchaser for value and the
transferee's interest is exempt under subsection (e) of this Code
section. (2) On entry of judgment for a person claiming an interest in the
property that is subject to proceedings to forfeit property under
this Code section, the court shall order that the property or
interest in property be released or delivered promptly to that
person free of liens and encumbrances, as provided under this
article. (3) The court shall order a claimant who fails to establish that a
substantial portion of the claimant's interest is exempt from
forfeiture under subsection (e) of this Code section to pay the
reasonable costs relating to the disproving of the claim which
were incurred by the state, including costs for investigation,
prosecution, and attorneys' fees.
(u)(1) Whenever property is forfeited under this article, any
property which is required by law to be destroyed or which is
harmful to the public shall, when no longer needed for evidentiary
purposes, be destroyed or forwarded to the Division of Forensic
Sciences of the Georgia Bureau of Investigation or any other
agency of state or local government for destruction or for any
medical or scientific use not prohibited under the laws of the
United States or this state. (2) When property, other than money, is forfeited under this
article, the court may: (A) Order the property to be sold, with the proceeds of the sale
to be distributed as provided in paragraph (4) of this
subsection; or (B) Provide for the in-kind distribution of the property as
provided for in paragraph (4) of this subsection. (3) Where property is to be sold pursuant to this subsection, the
court may direct that such property be sold by: (A) Judicial sale as provided in Article 7 of Chapter 13 of
Title 9; provided, however, that the court may establish a
minimum acceptable price for such property; or (B) Any commercially feasible means, including, but not limited
to, in the case of real property, listing such property with a
licensed real estate broker, selected by the district attorney
through competitive bids. (4) All money and property forfeited in the same forfeiture
proceeding shall be pooled together for distribution as follows: (A) A fair market value shall be assigned to all items of
property other than money in such pool; and a total value shall
be established for the pool by adding together the fair market
value of all such property in the pool and the amount of money
in the pool; (B) All costs, including court costs, shall be paid and the
remaining pool shall be distributed pro rata to the state and to
local governments, according to the role which their law
enforcement agencies played in the seizure of the assets;
provided, however, that the amount distributed to the state
shall not exceed 25 percent of the amount distributed; county
governments are authorized upon request of the district attorney
to provide for payment of any and all necessary expenses for the
operation of the office from the said forfeiture pool up to 10
percent of the amount distributed, in addition to any other
expenses paid by the county to the district attorney's office. (C) An order of distribution provided for in this subsection
shall be submitted by the district attorney to the court for
approval; and (D)(i) Property and money distributed to a local government
shall be passed through to the local law enforcement agency
until the sum equals 33 1/3 percent of the amount of local
funds appropriated or otherwise made available to such agency
for the fiscal year in which such funds are distributed.
Proceeds received may be used for any official law enforcement
purpose except for the payment of salaries or rewards to law
enforcement personnel, at the discretion of the chief officer
of the local law enforcement agency, or may be used to fund
victim-witness assistance programs. Such property shall not
be used to supplant any other local, state, or federal funds
appropriated for staff or operations. (ii) The local governing authority shall expend any remaining
proceeds for any law enforcement purpose; for the
representation of indigents in criminal cases; for drug
treatment, rehabilitation, prevention, or education or any
other program which responds to problems created by drug or
substance abuse; for use as matching funds for grant programs
related to drug treatment or prevention; to fund
victim-witness assistance programs; or for any combination of
the foregoing. (iii) Any local law enforcement agency receiving property
under this subsection shall submit an annual report to the
local governing authority. The report shall be submitted with
the agency's budget request and shall itemize the property
received during the fiscal year and the utilization made
thereof. (iv) Money distributed to the state pursuant to this
subsection shall be paid into the general fund of the state
treasury, it being the intent of the General Assembly that the
same be used, subject to appropriation from the general fund
in the manner provided by law, for funding of Article 2 of
Chapter 12 of Title 17, "The Georgia Indigent Defense Act,"
for representation of indigents in criminal cases; for funding
of the Crime Victims Emergency Fund; for law enforcement and
prosecution agency programs and particularly for funding of
advanced drug investigation and prosecution training for law
enforcement officers and prosecuting attorneys; for drug
treatment, rehabilitation, prevention, or education or any
other program which responds to problems created by drug or
substance abuse; for use as matching funds for grant programs
related to drug treatment or prevention; or for financing the
judicial system of the state. (v) Property distributed in kind to the state pursuant to this
subsection may be designated by the Attorney General, with the
approval of the court, for use by such agency or officer of
the state as may be appropriate or, otherwise, shall be turned
over to the Department of Administrative Services for such use
or disposition as may be determined by the commissioner of the
Department of Administrative Services. (v) An acquittal or dismissal in a criminal proceeding does not
preclude civil proceedings under this article. (w) For good cause shown, the court may stay civil forfeiture
proceedings during the criminal trial resulting from a related
indictment or information alleging a violation of this article. (x)(1) The court shall order the forfeiture of any property of a
claimant or defendant up to the value of property found by the
court to be subject to forfeiture under the provisions of this
Code section if any of the forfeited property: (A) Cannot be located; (B) Has been transferred or conveyed to, sold to, or deposited
with a third party; (C) Is beyond the jurisdiction of the court; (D) Has been substantially diminished in value while not in the
actual physical custody of the receiver or governmental agency
directed to maintain custody of the property; or (E) Has been commingled with other property that cannot be
divided without difficulty. (2) In addition to any other remedy provided for by law, a
district attorney on behalf of the state may institute an action
in any court of this state or of the United States or any of the
several states against any person acting with knowledge or any
person to whom notice of a lien for forfeiture of property has
been provided in accordance with subsection (j) of this Code
section; to whom notice of seizure has been provided in accordance
with subsection (i) of this Code section; or to whom notice of a
civil proceeding alleging conduct giving rise to forfeiture under
this Code section has been provided, if property subject to
forfeiture is conveyed, alienated, disposed of, or otherwise
rendered unavailable for forfeiture after the filing of a
forfeiture lien notice or notice of seizure or after the filing
and notice of a civil proceeding alleging conduct giving rise to
forfeiture under this Code section, as the case may be. The state
may recover judgment in an amount equal to the value of the lien
but not to exceed the fair market value of the property or, if
there is no lien, in an amount not to exceed the fair market value
of the property, together with reasonable investigative expenses
and attorneys' fees. If a civil proceeding is pending, the action
must be heard by the court in which the civil proceeding is
pending. (3) A district attorney may file and prosecute in any of the
courts of this state or of the United States or of any of the
several states such civil actions as may be necessary to enforce
any judgment rendered pursuant to this Code section. (4) No person claiming an interest in property subject to
forfeiture under this article may commence or maintain any action
against the state concerning the validity of the alleged interest
other than as provided in this Code section. Except as
specifically authorized by this Code section, no person claiming
an interest in such property may file any counterclaim or
cross-claim to any action brought pursuant to this Code section. (5) A civil action under this article must be commenced within
five years after the last conduct giving rise to forfeiture or to
the claim for relief became known or should have become known,
excluding any time during which either the property or defendant
is out of the state or in confinement or during which criminal
proceedings relating to the same conduct are in progress.
(y) Controlled substances included in Schedule I which are
contraband and any controlled substance whose owners are unknown are
summarily forfeited to the state. The court may include in any
judgment of conviction under this article an order forfeiting any
controlled substance involved in the offense to the extent of the
defendant's interest. (z) This Code section must be liberally construed to effectuate its
remedial purposes. |