Code 1975 s 13A-12-233

CODE OF ALABAMA 1975

TITLE 13A. CRIMINAL CODE.

CHAPTER 12. OFFENSES AGAINST PUBLIC HEALTH AND MORALS.

ARTICLE 5. DRUG OFFENSES.

Division 3. Drug Trafficking Offenses.

Copyright (c) 1977-1991 by State of Alabama. All rights reserved.

s 13A-12-233. Drug trafficking enterprise defined; punishment.

(a) This section shall be known as the "Alabama Drug Trafficking Enterprise Act." For purposes of this section, a person is engaged in a criminal enterprise for the purpose of trafficking in illegal drugs if that person violates any provision of section 13A-12-231, and such violation is:

(1) Undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and

(2) From which such person obtains substantial income or resources.

(b) For purposes of this section, "substantial income" means any amount exceeding the established minimum wage, as established by law.

(c) Any person who engages in a criminal enterprise for the purpose of trafficking in illegal drugs shall be punished as follows:

(1) Upon the first conviction of violation of this section, he shall be sentenced to a mandatory minimum term of imprisonment of 25 calendar years or for any mandatory term of calendar years up to and including life without parole and to a fine of not less than $50,000.00 nor more than $500,000.00.

(2) Upon the second conviction of violation of this section, he must be sentenced to a mandatory term of imprisonment for life without parole and to a fine of not less than $150,000.00 nor more than $1,000,000.00.

(3) In no event shall the term of imprisonment or the amount of fine imposed under this section be less than the corresponding term of imprisonment or fine authorized in section 13A-12-231, for the underlying violation of that section, including application of the Habitual Felony Offender Act, as determined by the type and amount of the particular illegal drug involved.

(d) The courts of Alabama shall have jurisdiction to enter such restraining orders or prohibitions, or to take such other actions, including the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to forfeiture under section 20-2-93 as they shall deem proper.

(Acts 1990, No. 90-471, p. 687.)

NOTES, REFERENCES, AND ANNOTATIONS

Effective date -- The act which added this section became effective April 18, 1990.

Code 1975 s 13A-12-233

AL ST s 13A-12-233

END OF DOCUMENTCode 1975 s 13A-12-260

CODE OF ALABAMA 1975

TITLE 13A. CRIMINAL CODE.

CHAPTER 12. OFFENSES AGAINST PUBLIC HEALTH AND MORALS.

ARTICLE 5. DRUG OFFENSES.

Division 5. Drug Paraphernalia Offenses.

Copyright (c) 1977-1991 by State of Alabama. All rights reserved.

s 13A-12-260. Drug paraphernalia; use or possession; delivery or sale; forfeiture.

(a) Definition of "drug paraphernalia". -- As used in this section, the term "drug paraphernalia" means all equipment, products, and materials of any kind which are used, intended for use, or designed for use, in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing, packaging, repackaging, storing, containing, concealing, injecting, ingesting, inhaling, or otherwise introducing into the human body a controlled substance in violation of the controlled substances laws of this state. It includes but is not limited to:

(1) Kits used, intended for use, or designed for use in planting, propagating, cultivating, growing, or harvesting of any species of plant which is a controlled substance or from which a controlled substance can be derived;

(2) Kits used, intended for use, or designed for use in manufacturing, compounding, converting, producing, processing, or preparing controlled substances;

(3) Isomerization devices used, intended for use, or designed for use in increasing the potency of any species of plant which is a controlled substance;

(4) Testing equipment used, intended for use, or designed for use in identifying, or in analyzing the strength, effectiveness, or purity of controlled substances;

(5) Scales and balances used, intended for use, or designed for use in weighing or measuring controlled substances;

(6) Dilutants and adulterants, such as quinine hydrochloride, mannitol, mannite, dextrose and lactose, used, intended for use, or designed for use in cutting controlled substances;

(7) Separation gins and sifters used, intended for use, or designed for use in removing twigs and seeds from, or in otherwise cleaning or refining, marihuana;

(8) Blenders, bowls, containers, spoons and mixing devices used, intended for use, or designed for use in compounding controlled substances;

(9) Capsules, balloons, envelopes and other containers used, intended for use, or designed for use in packaging small quantities of controlled substances;

(10) Containers and other objects used, intended for use, or designed for use in storing or concealing controlled substances;

(11) Hypodermic syringes, needles and other objects used, intended for use, or designed for use in parenterally injecting controlled substances into the human body;

(12) Objects used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing marihuana, tetrahydro cannabinols, cocaine, hashish, or hashish oil into the human body, such as:

a. Metal, wooden, acrylic, glass, stone, plastic, or ceramic pipes with or without screens, permanent screens, hashish heads, or punctured metal bowls;

b. Water pipes;

c. Carburetion tubes and devices;

d. Smoking and carburetion masks;

e. Roach clips: meaning objects used to hold burning material, such as a marihuana cigarette, that has become too small or too short to be held in the hand;

f. Miniature cocaine spoons, and cocaine vials;

g. Chamber pipes;

h. Carburetor pipes;

i. Electric pipes;

j. Air-driven pipes;

k. Chillums;

l. Bongs;

m. Ice pipes or chillers.

(b) Factors in determining whether object is drug paraphernalia. -- In determining whether an object is drug paraphernalia, a court or other authority shall consider, in addition to all other logically relevant factors, the following:

(1) Statements by an owner or by anyone in control of the object concerning its use;

(2) Prior convictions, if any, of an owner, or of anyone in control of the object, under any state or federal law relating to any controlled substance;

(3) The proximity of the object, in time and space, to a direct violation of this section or to a controlled substance;

(4) The existence of any residue of controlled substances on the object;

(5) Direct or circumstantial evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom he knows intend to use the object to facilitate a violation of the controlled substances laws of this state; the innocence of an owner, or of anyone in control of the object, as to a direct violation of such laws shall not prevent a finding that the object is intended for use, or designed for use as drug paraphernalia;

(6) Instructions, oral or written, provided with the object concerning its use;

(7) Descriptive materials accompanying the object which explain or depict its use;

(8) National and local advertising concerning its use;

(9) The manner in which the object is displayed for sale;

(10) Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products;

(11) Direct or circumstantial evidence of the ratio of sales of the object or objects to the total sales of the business enterprise;

(12) The existence and scope of legitimate uses for the object in the community;

(13) Expert testimony concerning its use.

(c) Use or possession with intent to use. -- It shall be unlawful for any person to use, or to possess with intent to use, or to use to inject, ingest, inhale or otherwise introduce into the human body, drug paraphernalia to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain or conceal a controlled substance in violation of the controlled substances laws of this state. Any person who violates this subsection is guilty of a class A misdemeanor and upon conviction shall be punished as prescribed by law.

(d) Delivery or sale.

(1) It shall be unlawful for any person to deliver or sell, possess with intent to deliver or sell, or manufacture with intent to deliver or sell drug paraphernalia, knowing that it will be used to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale, or otherwise introduce into the human body a controlled substance in violation of the controlled substances laws of this state. Any person who violates this section is guilty of a class A misdemeanor and upon conviction shall be punished as prescribed by law. A person who is convicted of a subsequent violation of this subsection shall be guilty of a class C felony and punished as prescribed by law. Any person convicted of violating this subsection who previously has been convicted of violating subdivision (2) of this subsection shall be subject to the same penalties specified for subsequent violations of this subsection.

(2) Any person 18 years of age or over who violates subdivision (1) of this subsection by delivering drug paraphernalia to a person under 18 years of age who is at least three years his junior shall be guilty of a class B felony and upon conviction shall be punished as prescribed by law.

(e) Contraband; forfeiture. -- All drug paraphernalia used in violation of this section shall be contraband and subject to the forfeiture laws of this state and section 20-2-93 as amended, in particular.

(Acts 1986, No. 86-425, p. 771; Code 1975, s 20-2-75.1; Acts 1988, 1st Ex. Sess., No. 88-918, p. 512, s 2.)

NOTES, REFERENCES, AND ANNOTATIONS

Code commissioner's note. -- This section was formerly s 20-2-75.1. It was transferred to s 13A-12-260 by Acts 1988, 1st Ex. Sess., No. 88-918, s 2(2), effective September 30, 1988.

Section 13A-12-260 was designated as Division 5 of Article 5 of Chapter 12 of Title 13A by Acts 1988, 1st Ex. Sess., No. 88-918, s 2(17), effective September 30, 1988.

Collateral References. -- Consumption or destruction of physical evidence due to testing or analysis by prosecution's expert as warranting suppression of evidence or dismissal of case against accused in state court. 40 ALR4th 594.

Code 1975 s 13A-12-260

AL ST s 13A-12-260

END OF DOCUMENTCode 1975 s 20-2-93

CODE OF ALABAMA 1975

TITLE 20. FOOD, DRUGS AND COSMETICS.

CHAPTER 2. CONTROLLED SUBSTANCES.

ARTICLE 5. ENFORCEMENT.

Copyright (c) 1977-1991 by State of Alabama. All rights reserved.

s 20-2-93. Forfeitures; seizures.

(a) The following are subject to forfeiture:

(1) All controlled substances which have been grown, manufactured, distributed, dispensed or acquired in violation of any law of this state;

(2) All raw materials, products and equipment of any kind which are used or intended for use in manufacturing, cultivating, growing, compounding, processing, delivering, importing or exporting any controlled substance in violation of any law of this state;

(3) All property which is used or intended for use as a container for property described in subdivision (1) or (2) of this subsection;

(4) All moneys, negotiable instruments, securities, or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of any law of this state; all proceeds traceable to such an exchange; and all moneys, negotiable instruments, and securities used or intended to be used to facilitate any violation of any law of this state concerning controlled substances;

(5) All conveyances, including aircraft, vehicles, or vessels, or agricultural machinery, which are used, or are intended for use, to transport, or in any manner to facilitate the transportation, sale, receipt, possession, or concealment of any property described in subdivision (1) or (2) of this subsection;

(6) All books, records and research products and materials, including formulas, microfilm, tapes and data, which are used or intended for use in violation of any law of this state concerning controlled substances;

(7) All imitation controlled substances as defined under the laws of this state;

(8) All real property or fixtures used or intended to be used for the manufacture, cultivation, growth, receipt, storage, handling, distribution, or sale of any controlled substance in violation of any law of this state;

(9) All property of any type whatsoever constituting, or derived from, any proceeds obtained directly, or indirectly, from any violation of any law of this state concerning controlled substances;

(b) Property subject to forfeiture under this chapter may be seized by state, county or municipal law enforcement agencies upon process issued by any court having jurisdiction over the property. Seizure without process may be made if:

(1) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(2) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;

(3) The state, county, or municipal law enforcement agency has probable cause to believe that the property is directly or indirectly dangerous to health or safety; or

(4) The state, county or municipal law enforcement agency has probable cause to believe that the property was used or is intended to be used in violation of this chapter.

(c) In the event of seizure pursuant to subsection (b) of this section, proceedings under subsection (d) of this section shall be instituted promptly.

(d) Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the state, county or municipal law enforcement agency subject only to the orders and judgment of the court having jurisdiction over the forfeiture proceedings. When property is seized under this chapter, the state, county or municipal law enforcement agency may:

(1) Place the property under seal;

(2) Remove the property to a place designated by it;

(3) Require the state, county or municipal law enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law; and

(4) In the case of real property or fixtures, post notice of the seizure on the property, and file and record notice of the seizure in the probate office.

(e) When property is forfeited under this chapter the state, county or municipal law enforcement agency may:

(1) Retain it for official use; except for lawful currency (money) of the United States of America which shall be disposed of in the same manner provided for the disposal of proceeds from a sale in subdivision (e)(2) of this section;

(2) Sell that which is not required to be destroyed by law and which is not harmful to the public. The proceeds from the sale authorized by this subsection shall be used, first, for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of or custody, advertising and court costs; and the remaining proceeds from such sale shall be awarded and distributed by the court to the municipal law enforcement agency or department, and/or county law enforcement agency or department, and/or state law enforcement agency or department, following a determination of the court of whose law enforcement agencies or departments are determined by the court have been a participant in the investigation resulting in the seizure, and such award and distribution shall be made on the basis of the percentage as determined by the court, which the respective agency or department contributed to the police work resulting in the seizure. Provided however, any proceeds from sales authorized by this section awarded by the court to a county or municipal law enforcement agency or department shall be deposited into the respective county or municipal general fund and made available to the affected law enforcement agency or department upon requisition of the chief law enforcement official of such agency or department.

(3) Require the state, county or municipal law enforcement agency to take custody of the property and remove it for disposition in accordance with law.

(f) Controlled substances listed in schedule I that are possessed, transferred, sold or offered for sale in violation of any law of this state are contraband and shall be seized and summarily forfeited to the state. Controlled substances listed in schedule I which are seized or come into the possession of the state, the owners of which are unknown, are contraband and shall be summarily forfeited to the state.

(g) Species of plants from which controlled substances in schedules I and II may be derived which have been planted or cultivated in violation of any law of this state or of which the owners or cultivators are unknown or which are wild growths may be seized and summarily forfeited to the state.

(h) An owner's or bona fide lienholder's interest in real property or fixtures shall not be forfeited under this section for any act or omission unless the state proves that that act or omission was committed or omitted with the knowledge or consent of that owner or lienholder. An owner's or bona fide lienholder's interest in any type of property other than real property and fixtures shall be forfeited under this section unless the owner or bona fide lienholder proves both that the act or omission subjecting the property to forfeiture was committed or omitted without the owner's or lienholder's knowledge or consent and that the owner or lienholder could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the property so as to have prevented such use. Except as specifically provided to the contrary in this section, the procedures for the condemnation and forfeiture of property seized under this section shall be governed by and shall conform to the procedures set out in sections 28-4-286 through 28-4-290, except that: (1) the burden of proof and standard of proof shall be as set out in this subsection instead of as set out in the last three lines of section 28- 4-290; and (2) the official filing the complaint shall also serve a copy of it on any person, corporation, or other entity having a perfected security interest in the property that is known to that official or that can be discovered through the exercise of reasonable diligence.

(Acts 1971, No. 1407, p. 2378, s 504; Acts 1981, No. 81-413, p. 650; Acts 1982, No. 82-426, p. 670, s 4; Acts 1983, 2nd Ex. Sess., No. 83-131, p. 137, s 1; Acts 1988, No. 88-651, p. 1038, s 2; Acts 1989, No. 89-525, p. 1074; Acts 1990, No. 90-472.)

NOTES, REFERENCES, AND ANNOTATIONS

The 1990 amendment, effective April 18, 1990, in subdivision (e)(2), substituted "law enforcement agency or department, and/or county law enforcement agency or department, and/or state law enforcement agency or department, following a determination of the court of" for "and/or county, and/or state general fund" in the second sentence, and added the last sentence.

Code commissioner's note. -- Acts 1988, No. 88-651, s 1 provides: "This act shall be entitled 'The Drug Profits Forfeiture Act of 1988.' "

Constitutionality of section. -- This section is constitutional even though it permits the deprivation of property without a prior hearing. Kirkland v. State ex rel. Baxley, 340 So. 2d 1121 (Ala. Civ. App. 1976), cert. denied, 340 So. 2d 1127 (Ala. 1977).

The interruption of the individual's dominion over his property under this section pending the prompt initiation of judicial proceedings to determine the propriety of the seizure does not constitute an unreasonable deprivation of property forbidden by the Constitution. Kirkland v. State ex rel. Baxley, 340 So. 2d 1121 (Ala. Civ. App. 1976), cert. denied, 340 So. 2d 1127 (Ala. 1977).

The want of a bond provision in this section does not render it constitutionally defective so long as it provides interested parties the right to a prompt hearing. Kirkland v. State ex rel. Baxley, 340 So. 2d 1121 (Ala. Civ. App. 1976), cert. denied, 340 So. 2d 1127 (Ala. 1977).

The mandate in the statute that forfeiture proceedings be instituted promptly is necessary to the statute's constitutionality. Reach v. State, 530 So. 2d 40 (Ala. 1988).

Section was patterned after proposed Uniform Controlled Substances Act recommended by the National Conference of Commissioners on Uniform State Laws. Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So. 2d 853 (1975).

This section addresses the forfeiture of two specific types of conveyances, viz., those conveyances "used" in the transportation of a controlled substance and those conveyances "intended for use." Singleton v. State, 396 So. 2d 1050 (Ala. 1981).

This section authorizes condemnation and forfeiture and thus is highly penal in nature and must be strictly construed. State v. Bilotta, 522 So. 2d 300 (Ala. Civ. App. 1988).

Proceeding pursuant to s 32-8-86(h). -- The language of this section has no effect on the forfeiture of the automobile in proceedings instituted pursuant to s 32-8-86(h). Glover v. State, 553 So. 2d 131 (Ala. Civ. App. 1989).

Strict construction. -- Statutes which authorize condemnation and forfeiture of property are highly penal in nature and must be strictly construed. Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So. 2d 853 (1975); Cumbie v. State, 515 So. 2d 973 (Ala. Civ. App. 1987).

Statutes authorizing condemnation and forfeiture of property must be strictly construed. Jackson v. Evans, 379 So. 2d 1236 (Ala. 1979); State v. Blair, 435 So. 2d 124 (Ala. Civ. App. 1983).

Forfeiture statutes, because of their penal nature, are subject to strict construction. Nicaud v. State ex rel. Hendrix, 401 So. 2d 43 (Ala. 1981).

This section must be strictly construed since it authorizes the condemnation and forfeiture of money or other property. $3,976.00 U.S. Currency v. State, 484 So. 2d 1088 (Ala. Civ. App. 1985).

A statute authorizing the seizure, forfeiture, and condemnation is extremely penal in nature and as such, should be strictly construed. Felder v. State, 515 So. 2d 17 (Ala. Civ. App. 1987).

When the state seeks to seize, condemn, and forfeit property under this section, the section must be strictly construed, and the state must establish by the evidence a prima facie case; the standard of proof is reasonable satisfaction. Miller v. State, 567 So. 2d 331 (Ala. Civ. App. 1990).

Reasonable period of time. -- There is no mathematical formula which can be used to determine what constitutes a reasonable period of time. What is a reasonable time for an act to be done depends upon the nature of the act to be done and all the circumstances relating to that act. Glover v. State, 553 So. 2d 131 (Ala. Civ. App. 1989).

Standard of proof required under this section is reasonable satisfaction. State v. Walker, 503 So. 2d 866 (Ala. Civ. App. 1987).

Sections 28-4-285 and 28-4-290 compared. -- This section, unlike ss 28-4-285 and 28-4-290, does not require reasonable diligence in inquiring as to the proposed use of the car or contain a provision that would impute notice of reputation as a matter of law. Metropolitan Toyota, Inc. v. State ex rel. Galanos, 496 So. 2d 25 (Ala. 1986).

Prima facie case required for seizure, condemnation, and forfeiture of property. -- The state is required to establish by the evidence a prima facie case for the seizure, condemnation, and forfeiture of property under this section. State v. Walker, 503 So. 2d 866 (Ala. Civ. App. 1987).

To properly seize, condemn, and submit property to forfeiture pursuant to this section, the state must first establish a prima facie case. Further, the state is required to establish by reasonable satisfaction each element of the statute. Hayden v. State ex rel. Galanos, 513 So. 2d 638 (Ala. Civ. App. 1987).

The state must establish a prima facie case before it can properly seize and condemn property pursuant to this section. In order to establish a prima facie case, the state must establish by reasonable satisfaction the following two elements: (1) that the defendant was found in the act of selling or receiving or attempting to sell or receive a controlled substance and (2) that money was used or intended for use in a transaction which would be in violation of the Alabama Controlled Substances Act. $9,886.0 United States Currency v. State, 541 So. 2d 27 (Ala. Civ. App. 1989).

The state is required to establish by the evidence a prima facie case for the seizure, condemnation, and forfeiture of property, under this section, and that standard of proof is reasonable satisfaction; before an order of condemnation could have been rendered and entered, the trial court must have been reasonably satisfied from the evidence that the items in question, an automobile and the currency, were used, or were intended to be used, in a transaction which would be a violation of the Alabama Uniform Controlled Substances Act. Moynes v. State, 555 So. 2d 1086 (Ala. Civ. App. 1989).

Under this section the state must establish a prima facie case for the seizure, condemnation, and forfeiture of the property. The standard of proof is reasonable satisfaction. State v. Smith, 578 So. 2d 1374 (Ala. Civ. App. 1991).

Defendant cannot defeat the intent of the forfeiture statute by having the cocaine on his person rather than on the seat beside him. State v. Pudzis, 507 So. 2d 531 (Ala. Civ. App. 1987).

As to the meaning of the phrase "for the purpose of sale or receipt," see Reeder v. State, 294 Ala. 260, 314 So. 2d 853 (1975). State ex rel. Williams v. One Glastron Boat, 411 So. 2d 795 (Ala. Civ. App. 1982).

Receipt does not mean possession merely. Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So. 2d 853 (1975).

Where the express inclusion of a specific act or acts, here "sale or receipt," evidences an intent to exclude those acts not so carried over from a preexisting statute, here "possession," no attempt should be made to read into the new statute such acts. Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So. 2d 853 (1975).

"Receipt" as used in this section means receiving for the purpose of sale. It does not mean mere possession. State ex rel. Williams v. One Glastron Boat, 411 So. 2d 795 (Ala. Civ. App. 1982).

The word "receipt," as used in this statute means receiving for the purpose of sale or in some way to facilitate the sale of drugs. It does not mean possession merely. Hayden v. State ex rel. Galanos, 513 So. 2d 638 (Ala. Civ. App. 1987).

"Receipt," as it is used in drug forfeiture statutes, has been defined as "receiving for the purpose of sale or in some way to facilitate the sale of drugs; it does not mean possession merely." Miller v. State, 567 So. 2d 331 (Ala. Civ. App. 1990).

But it means receiving for purpose of sale or in some way to facilitate sale of drugs. Reeder v. State ex rel. Myers, 294 Ala. 260, 314 So. 2d 853 (1975).

Evidence must link substance to sale or receipt of substance. It takes more than just the existence of small amounts of a controlled substance to condemn under this statute, since there needs to be evidence linking the substance to a sale or receipt of that substance. Felder v. State, 515 So. 2d 17 (Ala. Civ. App. 1987).

Section requires that currency be in room where person has been found in act of selling or receiving or attempting to sell or receive drugs. Hayden v. State ex rel. Galanos, 513 So. 2d 638 (Ala. Civ. App. 1987).

Mere possession of cash fails to establish that currency was received as result of drug sales. Hayden v. State ex rel. Galanos, 513 So. 2d 638 (Ala. Civ. App. 1987).

This section is not so penal as to provide for forfeiture of property used in the commission of a crime regardless of the innocence of the owner or lienholder. Thus, it is recognized that a lienholder has an interest in the property sought to be forfeited to the state. National Bank v. State, 403 So. 2d 258 (Ala. Civ. App. 1981).

The forfeiture provisions are clearly intended to be a deterrent to illegal drug dealing, and to aid the objectives of criminal law enforcement. Nicaud v. State ex rel. Hendrix, 401 So. 2d 43 (Ala. 1981).

Equity will not sanction the forfeiture of property based upon evidence obtained in violation of fundamental constitutional rights. Nicaud v. State ex rel. Hendrix, 401 So. 2d 43 (Ala. 1981).

Therefore when evidence is obtained by an illegal search and seizure, it is properly excluded from a subsequent forfeiture proceeding. Nicaud v. State ex rel. Hendrix, 401 So. 2d 43 (Ala. 1981).

Section protects bona fide lienholders. -- The clear language of this section evidences a legislative intent to protect bona fide lienholders without destroying the right of the state to condemn a vehicle used in violation of the Controlled Substances Act. Singleton v. State, 396 So. 2d 1050 (Ala. 1981).

No conveyance is subject to forfeiture under this section by reason of any act or omission committed without the knowledge or consent of the owner. However, where the person to whom such conveyance is made is known to the community and law enforcement officials as a criminal offender, forfeiture is justified. Pugh v. State ex rel. Galanos, 441 So. 2d 931 (Ala. Civ. App. 1983).

State was not required to pay filing fee in order to invoke jurisdiction of trial court; the state is liable for filing fees and court costs in condemnation cases only after a judgment has been rendered in favor of the state, and only where the statute under which the forfeiture is made specifies that the state is to pay such costs. This section provides for the payment of costs involved in seizure and forfeiture, including court costs, from the proceeds of the sale of the property. Metcalfe v. State ex rel. Johnson, 562 So. 2d 276 (Ala. Civ. App. 1990).

Judicial proceedings required in all forfeiture actions. -- Judicial proceedings are required constitutionally in all forfeiture actions initiated pursuant to this section. Kirkland v. State ex rel. Baxley, 340 So. 2d 1121 (Ala. Civ. App. 1976), cert. denied, 340 So. 2d 1127 (Ala. 1977).

The legislative intent, as manifested by a joint reading of subsections (c) and (d), was to require judicial proceedings in all forfeiture proceedings under this section, even though subsection (d) does not expressly state the requirement. Kirkland v. State ex rel. Baxley, 340 So. 2d 1121 (Ala. Civ. App. 1976), cert. denied, 340 So. 2d 1127 (Ala. 1977).

And must be instituted promptly. -- The judicial proceedings required constitutionally in all forfeiture proceedings pursuant to this section must be instituted promptly. Kirkland v. State ex rel. Baxley, 340 So. 2d 1121 (Ala. Civ. App. 1976), cert. denied, 340 So. 2d 1127 (Ala. 1977).

Subsection (c) does not provide for any date when hearings on petitions for forfeiture are to be held; rather, the section requires that proceedings be instituted promptly. Eleven Autos v. State ex rel. Graddick, 384 So. 2d 1129 (Ala. Civ. App. 1980).

It is required that forfeiture proceedings be instituted promptly. Tucker v. State, 445 So. 2d 311 (Ala. Civ. App. 1984).

Defendant had no statutory duty to request the release of his vehicles since the statute places an affirmative duty on the state to institute a forfeiture proceeding promptly. Reach v. State, 530 So. 2d 40 (Ala. 1988).

Where the state instituted forfeiture proceeding approximately eight months after seizing defendant's vehicles, it denied defendant due process of law, since during those eight months, defendant had no way of knowing whether the seizure would eventually be upheld, he could not post a bond to obtain the temporary use of his vehicles pending a determination concerning the validity of the seizure, and his one demand of record that the vehicles be released was ineffectual. Reach v. State, 530 So. 2d 40 (Ala. 1988).

Proceedings instituted approximately three and one-half weeks after service are permissible. Winstead v. State, 375 So. 2d 1207 (Ala. Civ. App.), cert. denied, 375 So. 2d 1209 (Ala. 1979).

Proceedings instituted three and one-half weeks after seizure were prompt under this section. Eleven Autos v. State ex rel. Graddick, 384 So. 2d 1129 (Ala. Civ. App. 1980).

Proceedings instituted approximately four weeks after seizure are permissible. Eleven Autos v. State ex rel. Graddick, 384 So. 2d 1129 (Ala. Civ. App. 1980).

A forfeiture proceeding under this section instituted approximately four weeks after seizure meets the promptness requirement, but a proceeding brought after eight months does not. Reach v. State, 530 So. 2d 40 (Ala. 1988).

Where defendant made no motion for speedy hearing. -- Where the record did not contain any motion by the defendant for a speedy hearing or any other attempt whatsoever to have the hearing prosecuted, hearing held eight months from the date of the filing of the petition seeking forfeiture did not violate the defendant's due process. Eleven Autos v. State ex rel. Graddick, 384 So. 2d 1129 (Ala. Civ. App. 1980).

Reference in subdivision (4) of subsection (a) of this section to property described in subdivisions (1) or (2) is to controlled substances. Kirkland v. State ex rel. Baxley, 340 So. 2d 1121 (Ala. Civ. App. 1976), cert. denied, 340 So. 2d 1127 (Ala. 1977).

The lack of knowledge or consent is an affirmative defense, available after the state has made a prima facie case for forfeiture by showing that the vehicle in question was used or intended for use in the transportation of a controlled substance for the purpose of sale or receipt. The issue of knowledge or consent is therefore irrelevant until the state proves a "purpose of sale or receipt." State ex rel. Williams v. One Glastron Boat, 411 So. 2d 795 (Ala. Civ. App. 1982).

The state is not required to prove actual movement of the vehicle for this section to be operative. The state is only required to prove the controlled substance was loaded for movement. Winstead v. State, 375 So. 2d 1207 (Ala. Civ. App.), cert. denied, 375 So. 2d 1209 (Ala. 1979).

Prima facie case by state. -- It is the law of Alabama that once the state makes out a prima facie case to show violation of this section, the seizure, condemnation, and forfeiture of the vehicle used is permitted. When that prima facie case is made, it becomes incumbent upon the claimants to show that they had no knowledge or notice of the illegal use proved, and could not by reasonable diligence have obtained knowledge of the intended illegal use so as to prevent it. Air Shipping Int'l v. State, 392 So. 2d 828 (Ala. 1981).

When the state has met its burden of proving that a vehicle was used in violation of this section, it has established a prima facie case for the seizure, condemnation and forfeiture of the vehicle. Singleton v. State, 396 So. 2d 1050 (Ala. 1981).

The state must establish a prima facie case for the seizure, condemnation and forfeiture of property under this section. After the prima facie case is established, it is incumbent upon any claimants to show that they had no knowledge or notice of the intended illegal use and could not have obtained knowledge by reasonable diligence. Pickron v. State ex rel. Johnston, 443 So. 2d 905 (Ala. 1983).

Failure of state to establish prima facie case. -- In condemnation action under this section, in view of the definition of receipt and the strict construction that must apply to a forfeiture statute, the state failed to establish a prima facie case to support the trial court's determination to condemn the vehicle where no sale of drugs took place. Miller v. State, 567 So. 2d 331 (Ala. Civ. App. 1990).

When the question is whether the holder of the security interest is entitled to allowance of its claim, the burden is upon the intervener (1) to establish its superior claim and (2) that it had no knowledge or notice of the illegal use and could not by reasonable diligence have obtained notice of the intended illegal use so as to prevent such use. Air Shipping Int'l v. State, 392 So. 2d 828 (Ala. 1981).

Money does not fall within any of the categories of forfeiture. Jackson v. Evans, 379 So. 2d 1236 (Ala. 1979).

Evidence required for condemnation of lawful currency. -- Before lawful currency of the United States which is seized on the person of a defendant can be condemned under this section, there must be evidence as to both of the following: first, that the defendant was found in the act of selling or receiving, or attempting to sell or receive, a controlled substance and, second, that the money was used, or intended for use, in a transaction which would be a violation of the Alabama Controlled Substances Act. The trier of fact must be reasonably satisfied from the evidence and reasonable inferences attendant thereto as to both of those elements before an order of condemnation can be made in such a case. $3,976.00 U.S. Currency v. State, 484 So. 2d 1088 (Ala. Civ. App. 1985).

Forfeiture of money found in defendant's bedroom "within 72 hours" after police had arranged "controlled buy" of marihuana at his home could not be sustained, where the seizure was not made while defendant was "found in the act of selling or receiving, or attempting to sell or receive" marihuana. Bohannon v. State ex rel. Lanos, 510 So. 2d 193 (Ala. 1987).

The standard of proof required under this section is reasonable satisfaction. Pickron v. State ex rel. Johnston, 443 So. 2d 905 (Ala. 1983).

Burden of proof not met. -- Where record devoid of any evidence that money was found in room where a person was found in the act of selling or receiving, or attempting to sell or receive, the state failed to meet its burden of proof under subdivision (a)(4) of this section, and the judgment of the trial court condemning the money was reversed. Cumbie v. State, 515 So. 2d 973 (Ala. Civ. App. 1987).

Testimony of law enforcement officer was sufficient proof that plaintiff used his 1975 Thunderbird to transport a controlled substance for the purpose of the sale by him of that substance. Accordingly, the vehicle was subject to forfeiture under subdivision (a)(5) of this section. Tucker v. State, 445 So. 2d 311 (Ala. Civ. App. 1984).

Evidence which showed only that defendant was coming out of a bathroom in which the toilet was running, there was a white powder residue around the toilet lid, and there was a razor blade in the toilet bowl, was insufficient to meet the requirement that defendant be found in the act of either selling or attempting to sell a controlled substance, and thus the state could not properly seize and condemn currency found in defendant's apartment. $9,886.00 United States Currency v. State, 541 So. 2d 27 (Ala. Civ. App. 1989).

Vehicle subject to forfeiture. -- Vehicle owned by the defendant, used to effectuate the illegal sale of 2.5 grams of cocaine by transporting the defendant and his cocaine to the place where the sale was consummated, was subject to forfeiture under this section. State v. Pudzis, 507 So. 2d 531 (Ala. Civ. App. 1987).

Use of vehicle pending a hearing. -- This section contains no provision whereby the owner of a seized vehicle may post a bond and secure the use of his vehicle pending a hearing on the merits concerning the seizure. Reach v. State, 530 So. 2d 40 (Ala. 1988).

Ownership of seized vehicle can be inferentially established in the defendant, as by evidence that the vehicle was a gift to the defendant from his mother or that the defendant exerted virtually complete dominion and control over the vehicle. Winstead v. State, 375 So. 2d 1207 (Ala. Civ. App.), cert. denied, 375 So. 2d 1209 (Ala. 1979).

In automobile condemnation case involving alleged drug transactions, an inference could not be drawn from witness's testimony involving the alleged drug transaction since such an inference would be sufficient evidence for condemnation to show the use or intended use for sale or receipt. Felder v. State, 515 So. 2d 17 (Ala. Civ. App. 1987).

Condemnation and forfeiture of $750 under this section would be affirmed where it could be reasonably inferred from the evidence that, immediately before the defendant was arrested, he had just sold marijuana for $550 in marked bills and that he already possessed the $750 at that time, and where the $750 could have been kept on hand by defendant for the purpose of making change in drug sales, the $750 and $550 were intermingled, and the $1,300 was hidden at an unusual and abnormal location upon defendant's person. Houze v. State ex rel. Galanos, 531 So. 2d 916 (Ala. Civ. App. 1988).

Evidence sufficient to support defendant as vehicle owner. -- In a proceeding pursuant to this section where the defendant admitted that the defendant's mother "sold" the automobile to him for $500, but contended that only $200 was ever paid to the defendant's mother and that he thus "abandoned his contract" and the defendant's mother still owns the vehicle and that title to the vehicle was in the defendant's mother's name and that title was never transferred from the defendant's mother to the defendant pursuant to s 32-8-44, the undisputed fact of a "sale" of the vehicle to the defendant, his control and dominion of the vehicle on at least two occasions to make illicit controlled substance transactions, and the lack of any evidence to support the contention that he was not the owner of the automobile was sufficient to support the trial court's finding that the defendant was the owner of the automobile. Eleven Autos v. State ex rel. Graddick, 384 So. 2d 1129 (Ala. Civ. App. 1980).

There is no statute or rule of court which establishes the procedure for court proceedings for condemnation of property seized subject to forfeiture. National Bank v. State, 403 So. 2d 258 (Ala. Civ. App. 1981).

Wife could have obtained knowledge of illegal use through reasonable diligence. -- Evidence supported the trial court's finding that wife could have obtained knowledge of husband's illegal use of automobile had she exercised reasonable diligence; the evidence at trial revealed that the wife had known for over seven years that the husband smoked marijuana; she knew that he kept marijuana in their home; she also knew that people would come to their home, but never come in; futhermore, the wife testifed that she knew that the husband was getting marijuana from somewhere, but never inquired into his source and never asked if he was selling marijuana. Edwards v. State, 550 So. 2d 1035 (Ala. Civ. App. 1989).

Cited in Kendrick v. State, 356 So. 2d 1222 (Ala. Crim. App. 1977); Walker v. State, 358 So. 2d 800 (Ala. Crim. App. 1978); United States v. Martin, 600 F.2d 1175 (5th Cir. 1979); Carter v. State, 465 So. 2d 1156 (Ala. Civ. App. 1984); State v. Johnston, 565 So. 2d 262 (Ala. Civ. App. 1990); $4,320.00 United States Currency in Possession of Bulger v. State, 567 So. 2d 352 (Ala. Civ. App. 1990).

Collateral References. -- 28 C.J.S., Drugs & Narcotics, ss 138-141.

Forfeiture of money to state or local authorities based on its association with or proximity to other contraband. 38 ALR4th 496.

Necessity of conviction of offense associated with property seized in order to support forfeiture of property to state or local authorities. 38 ALR4th 515.

Consumption or destruction of physical evidence due to testing or analysis by prosecution's expert as warranting suppression of evidence or dismissal of case against accused in state court. 40 ALR4th 594.

Forfeitability of property held in marital estate under uniform controlled substances act or similar statute. 84 ALR4th 620.

Real property as subject of forfeiture under Uniform Controlled Substances Act or similar statutes. 86 ALR4th 995.

Code 1975 s 20-2-93

AL ST s 20-2-93