§712A-5  Property subject to forfeiture; exemption.  (1)  The following shall be subject to forfeiture:

     (a)  Property described in a statute authorizing forfeiture;

     (b)  Property used or intended for use in the commission of, attempt to commit, or conspiracy to commit a covered offense, or that facilitated or assisted the activity;

     (c)  Any firearm that is subject to forfeiture under any other subsection of this section or that is carried during, visible, or used in furtherance of the commission, attempt to commit, or conspiracy to commit a covered offense, or any firearm found in proximity to contraband or to instrumentalities of an offense;

     (d)  Contraband or untaxed cigarettes in violation of chapter 245, shall be seized and summarily forfeited to the State without regard to the procedures set forth in this chapter;

     (e)  Any proceeds or other property acquired, maintained, or produced by means of or as a result of the commission of the covered offense;

     (f)  Any property derived from any proceeds that were obtained directly or indirectly from the commission of a covered offense;

     (g)  Any interest in, security of, claim against, or property or contractual right of any kind affording a source of influence over any enterprise that has been established, participated in, operated, controlled, or conducted in order to commit a covered offense; and

     (h)  All books, records, bank statements, accounting records, microfilms, tapes, computer data, or other data that are used, intended for use, or that facilitated or assisted in the commission of a covered offense, or that document the use of the proceeds of a covered offense.

     (2)  Real property, or an interest therein, may be forfeited under the provisions of this chapter only in cases in which the covered offense is chargeable as a felony offense under state law.

     (3)  The following limitations shall apply to the forfeiture of property under this chapter; provided that nothing in this subsection shall be construed to prevent the seizure of property before conviction pursuant to section 712A-6:

    (a)   No property shall be forfeited under this chapter by reason of the commission of any covered offense unless the owner has received a charge for the covered offense.  If no such charge is filed within one year from the date of seizure, all property seized shall be returned to the legal owner, as determined by the department or agency in possession of the property, one year from the date of seizure; provided that property that is contraband or otherwise unlawful shall not be returned and shall be disposed of pursuant to rules adopted by the attorney general; provided further that if the legal owner cannot be determined or located, the department or agency in possession of the property shall follow procedures set forth in rules adopted by the attorney general to determine or locate the owner;

     (b)  No property shall be forfeited under this chapter by reason of any act or omission established by the owner to have been committed or omitted without the knowledge and consent of the owner;

     (c)  No conveyance used by any person as a common carrier in the transaction of a business as a common carrier shall be subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of this chapter;

     (d)  No conveyance shall be subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without the owner's knowledge or consent; and

     (e)  A forfeiture of a conveyance encumbered by a bona fide security interest shall be subject to the interest of the secured party if the secured party neither had knowledge of nor consented to the act or omission.

     (4)  This chapter shall not apply to the forfeiture of an animal pursuant to section 711-1109.2.

     (5)  This section shall not prohibit or restrict forfeitures authorized by law other than this chapter. [L 1988, c 260, pt of §1, §7; am L 1990, c 197, §1; am L 1993, c 196, §1; am L 1996, c 104, §6; am L 2000, c 249, §§11, 20(2); am L 2002, c 94, §3; am L 2025, c 288, §3]

COMMENTARY ON §712A-5

  Act 249, Session Laws 2000, amended this section by adding to the list of property subject to seizure and summary forfeiture any untaxed cigarettes violating the cigarette tax and tobacco tax law under chapter 245.

  Act 94, Session Laws 2002, by making the cigarette tax stamp law permanent, amended this and other sections.  The legislature sought to ensure compliance with and enforcement of the cigarette tax stamp laws.  House Standing Committee Report No. 502-02.

  Act 288, Session Laws 2025, amended this section to:  (1) restrict civil asset forfeiture to cases where the owner has received a charge for the offense; and (2) require seized property to be returned to the legal owner if a charge is not filed within one year from the date of seizure.  The legislature found that the State's existing property forfeiture process required reform to ensure greater fairness, transparency, and accountability.  The State's civil asset forfeiture process allowed law enforcement agencies to seize and keep property based on suspicion that the property was connected to criminal activity.  Property, such as vehicles, houses, cash, and jewelry, could be taken without the property owner having been convicted of a crime or even being formally accused of one, and the burden of proof to recover the seized property was shifted from the State to the property owner.  Additionally, there was a potential incentive to improperly seize property for forfeiture, as state and county law enforcement agencies were permitted to retain all proceeds from the sale of forfeited property.  Accordingly, Act 288 would make the State's civil asset forfeiture process more fair and just.  Senate Standing Committee Report No. 1238, House Standing Committee Report No. 618, Conference Committee Report No. 231.

Case Notes

  Cash was not subject to forfeiture where, despite suspicious packaging and shipment of money and positive dog sniff test for drugs, State failed to present sufficient evidence to support finding that defendant had committed a covered offense.  73 H. 229, 832 P.2d 256 (1992).

  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 (2004).

  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 (2004).