§712A-5.5 Excessive forfeitures. The court shall limit the scope of a forfeiture judgment issued pursuant to section [712A-5(1)(b)] to the extent the court finds the effect of the forfeiture is grossly disproportionate to the nature and severity of the owner's conduct. In determining whether a forfeiture is grossly disproportionate, the court may consider:

(1) The degree to which the property was used to facilitate the conduct that subjects property to forfeiture and the importance of the property to the conduct;

(2) The gain received or expected by an owner from the conduct that subjects property to forfeiture and the value of the property subject to forfeiture;

(3) The nature and extent of the owner's culpability; and

(4) The owner's effort to prevent the conduct or assist in prosecution. [L 1996, c 104, §2]

COMMENTARY ON §712A-5.5

Act 104, Session Laws 1996, added this section which specifies the criteria that the court may consider in determining whether a forfeiture is grossly disproportionate to the nature and severity of the owner's conduct. The section applies only to forfeitures instituted under §712A-5(1)(b) dealing with property used to facilitate an offense or an instrumentality used in an offense. If property were the derivatives or the proceeds of an offense, the property would be tainted and consequently would be forfeited. House Standing Committee Report No. 409-96.

Case Notes

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).