§ 13A-12-200.8 — Property Subject to Forfeiture for Violation of This Division; Procedures; Hearing; Forfeiture Action; Action for Money Judgment

Alabama § 13A-12-200.8

• Jurisdiction: Alabama
• Title 13A: Criminal Code
• Ch. 12: Offenses Against Public Health and Morals
• Art. 4: Obscenity and Related Offenses
• Div. 5: Alabama Anti-obscenity Enforcement Act

Text

(a) The following property is subject to forfeiture:
(1) All obscene material and material which is harmful to minors used, intended to be used or obtained in violation of the provisions of this division;
(2) All moneys, negotiable instruments, and funds used, intended to be used, or obtained in any violation of the provisions of this division;
(3) All proceeds or receipts derived from property which is subject to forfeiture pursuant to subdivisions (a)(1) and (a)(2) of this section.
(b) 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 division, 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; and
(3) In the case of real property or fixtures, post notice of the seizure on the property, and file and record notice of seizure in the probate office.
(c) The following is the procedure regarding the seizure of property subject to forfeiture under subsection (a) of this section:
(1) Property subject to forfeiture may be seized by state, county or municipal law enforcement agencies upon process issued by any court having jurisdiction over the property upon a showing of probable cause; provided, however, that not more than one copy of each expressive material may be seized prior to a judicial determination, after a hearing at which all proper parties have an opportunity to be heard and present evidence, that the expressive material is obscene material or material which is harmful to minors and, in either case, subject to forfeiture under this division.
(2) In the event of seizure, a forfeiture action pursuant to subdivision (c)(4) of this section shall be instituted promptly and within time limits mandated by the United States Constitution.
(3) At any time after seizure, and prior to trial, the state, defendant, owner, or other proper party, may file with the appropriate circuit court, a written demand for an adversary hearing for the purpose of obtaining with regard to expressive material only a preliminary determination of obscenity, harmfulness to minors, and whether the property is subject to forfeiture. Such adversary hearing shall be held as soon as possible. At such adversary hearing, all proper parties shall be given the opportunity to present evidence. It shall be the duty of the State of Alabama at the hearing to prove by clear and convincing evidence that the seized property is subject to forfeiture under subsection (a) herein. The court shall render a decision within time limits mandated by the United States Constitution and, if the court does not find the property to be subject to forfeiture, it shall immediately order the property to be returned. Should the court find the property to be subject to forfeiture, it shall order the property to be retained as evidence. A finding by the court that the property is subject to forfeiture shall not be binding at the trial on the merits.
(4) The Attorney General or district attorney may initiate a forfeiture action in the name of the State of Alabama in the circuit court. The action shall be heard and determined within time limits mandated by the United States Constitution. It shall be the duty of the State of Alabama at the hearing to prove by clear and convincing evidence that the property should be forfeited. It shall be an affirmative defense to the forfeiture action to the extent of the owner’s interest that the owner of the obscene material, material which is harmful to minors, moneys, negotiable instruments, funds, proceeds or receipts, neither consented to nor had knowledge of the acts which would otherwise result in forfeiture. It shall be an affirmative defense to any bona fide lienholder to the extent of the lienholder’s interest that the lienholder neither consented to nor had knowledge of the acts which would otherwise result in forfeiture. The defendant shall be given the opportunity to present evidence.
(d) Nothing in this section shall be deemed to authorize a prior restraint of speech in violation of the United States Constitution. All hearings and determinations required pursuant to this section shall be heard and determined within time limits mandated by the United States Constitution.
(e) After trial on the merits, the court shall issue such forfeiture and seizure orders as are proper under the law and facts. The court shall order obscene material and material which is harmful to minors which is forfeited to be destroyed or retained for official law enforcement use. Where the court orders the forfeiture of one copy of an expressive material, it may also order the seizure and forfeiture of all other copies of such expressive material of the defendant which is subject to forfeiture. The court shall further order such moneys, negotiable instruments, funds, proceeds, or receipts, which are forfeited to be (1) distributed directly to the general fund of the state, county or municipality whose enforcement agencies investigated the acts resulting in forfeiture or (2) sold and distributed, after payment of all proper expenses relating to the forfeiture and sale, to the general fund of the state or any county or municipality whose department, office, or agency contributed to the investigation of the acts resulting in forfeiture, based upon the contribution, including expenses, of the department, office, or agency, or agency as determined by the court.
(f) Where any property owned or possessed by a person is subject to forfeiture pursuant to this section but because of any act, omission, or consent by such person the property (1) cannot be located upon the exercise of due diligence, (2) has been transferred or sold to, or deposited with, a third party, (3) has been placed beyond the jurisdiction of the court, (4) has been substantially diminished in value or, (5) has been commingled with other property which cannot be divided without difficulty, and such person knowingly participated either as a principal, aider and abettor, or conspirator in the acts subjecting the property to forfeiture, the Attorney General or district attorney may initiate a civil action in the name of the State of Alabama against such person for forfeiture of a money judgment amount up to the value of and in lieu of the property described in (1) through (5) of this subsection. Such judgment upon satisfaction shall be distributed as provided in subsection (e) of this section.

Legislative History

(Acts 1989, No. 89-402, p. 791, §10.)