2021 Georgia Code
Title 16 - Crimes and Offenses
Chapter 13 - Controlled Substances
Article 2 - Regulation of Controlled Substances
Part 1 - Schedules, Offenses, and Penalties
§ 16-13-49. Declared Items of Contraband; Forfeiture

1. As used in this Code section, the term:
   1. "Controlled substance" shall have the same meaning as set forth in Code Section 16-13-21 and shall include marijuana, as such term is defined in Code Section 16-13-21.
   2. "Enterprise" means any person, sole proprietorship, partnership, corporation, trust, association, or other legal entity created under the laws of the United States or 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.
   3. "Proceeds" shall have the same meaning as set forth in Code Section 9-16-2.
   4. "Property" shall have the same meaning as set forth in Code Section 9-16-2.
   5. "United States" shall have the same meaning as set forth in Code Section 9-16-2.
2. Except as provided in subsection (d) of this Code section, the following are declared to be contraband and no person shall have a property right in them:
   1. Any controlled substances, raw materials, or controlled substance analogs that have been manufactured, distributed, dispensed, possessed, or acquired in violation of this article;
   2. Any property which is, directly or indirectly, used or intended for use in any manner to facilitate a violation of this article and any proceeds;
   3. Any 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 the laws of the United States relating to controlled substances that is punishable by imprisonment for more than one year and any proceeds;
   4. 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 the laws of the United States relating to controlled substances that is punishable by imprisonment for more than one year and any proceeds;
   5. Any property found in close proximity to any controlled substance or other property subject to forfeiture under this Code section; and
   6. Any weapon available for any use in any manner to facilitate a violation of this article.
3. Any property subject to forfeiture pursuant to subsection (b) of this Code section shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.
4. Property shall not be subject to forfeiture under this Code section for a violation involving only one gram or less of a mixture containing cocaine or four ounces or less of marijuana unless such property was used to facilitate a transaction in or a purchase of or sale of a controlled substance.
5. In addition to persons authorized to seize property pursuant to Code Section 9-16-6, property which is subject to forfeiture under this Code section may be seized by the director of the Georgia Drugs and Narcotics Agency or by any drug agent of this state or 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.
6. Controlled substances included in Schedule I which are contraband and any controlled substance whose owners are unknown shall be 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.

(Code 1981, §16-13-49, enacted by Ga. L. 2015, p. 693, § 2-22/HB 233.)

- Forfeiture of pimping proceeds, § 16-6-13.3.

Land bank authority established, § 48-4-61.

- Ga. L. 2015, p. 693, § 2-22/HB 233, repealed former Code Section 16-13-49, pertaining to forfeiture, and enacted the present Code section. The former Code section was based on Code 1933, § 79A-828, enacted by Ga. L. 1974, p. 221, § 1; Ga. L. 1975, p. 919, §§ 1, 2; Ga. L. 1979, p. 879, §§ 1-3; Ga. L. 1981, p. 180, § 3; Ga. L. 1982, p. 3, § 16; Ga. L. 1982, p. 2273, § 1; Ga. L. 1982, p. 2325, § 2; Ga. L. 1983, p. 469, § 1; Ga. L. 1986, p. 451, § 1; Ga. L. 1988, p. 958, § 1; Ga. L. 1991, p. 886, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 1993, p. 1434, § 1; Ga. L. 2000, p. 1225, § 5; Ga. L. 2000, p. 1589, § 3; Ga. L. 2001, p. 362, § 30; Ga. L. 2002, p. 1039, §§ 1A-1C; Ga. L. 2002, p. 1286, § 1; Ga. L. 2003, p. 191, § 7; Ga. L. 2004, p. 488, § 3.

Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides that: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."

- For article on the 2015 enactment of this Code section, see 32 Ga. St. U.L. Rev. 1 (2015). For note, "Crime and Offense: Controlled Substances: Provide for the Distribution of Forfeited Real Property; Authorize the Acquisition of Forfeited Real Property by Land Bank Authorities," see 19 Ga. St. U.L. Rev. 92 (2002). For note, "Crime and Offense: Relating to Forfeiture of Certain Contraband Property; Change Provisions Relating to Exemptions; Change Certain Provisions Relating to Forfeiture of Certain Contraband Property Relative to Controlled Substances; To Provide for Specific Repeal of Certain Related Provisions," see 19 Ga. St. U.L. Rev. 115 (2002).

ANALYSIS

• General Consideration
• Constitutionality
• Procedure
• Seizure

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions rendered under former O.C.G.A. § 16-13-49 are included in the opinions under this Code section.

- Full-time peace officer who, while acting within the scope of the officer's official duties, played a part in the seizure of property which was later forfeited under former O.C.G.A. § 16-13-49 was not entitled to receive a portion from the proceeds of the sale of such property pursuant to former O.C.G.A. § 16-13-49(j). 1983 Op. Att'y Gen. No. U83-14 (decided under former O.C.G.A. § 16-13-49).

- Former O.C.G.A. § 16-13-49(u)(4)(D)(i) and (ii) prohibited the use of the proceeds of forfeited and condemned property to pay the salary of the Executive Director/Prosecuting Attorney of the Multi-Agency Narcotics Squad in a circuit. 1992 Op. Att'y Gen. No. U92-22 (decided under former O.C.G.A. § 16-13-49).

National Guard was eligible to share in proceeds of drug-related forfeitures with respect to statutorily authorized activities. 1995 Op. Att'y Gen. No. 95-29 (decided under former O.C.G.A. § 16-13-49).

Georgia Aviation Authority was not a law enforcement agency within the meaning of former O.C.G.A. § 16-13-49 for the purpose of sharing in forfeiture funds. 2011 Op. Att'y Gen. No. 11-3 (decided under former O.C.G.A. § 16-13-49).

- Even under the new Georgia Uniform Civil Forfeiture Procedure Act, O.C.G.A. § 9-16-1 et seq., the analysis of whether the Georgia National Guard may be designated as a "law enforcement agency" for purposes of sharing in proceeds of drug related property forfeitures made available under federal and state law remains unchanged; thus, the Georgia National Guard is a law enforcement agency eligible to share in proceeds of drug related forfeitures. 2018 Op. Att'y Gen. No. 18-2.

RESEARCH REFERENCES

Am. Jur. 2d.

- 25 Am. Jur. 2d, Drugs and Controlled Substances, § 221 et seq.

- 28 C.J.S., Drugs and Narcotics, §§ 233, 235 et seq. 79 C.J.S., Searches and Seizures, § 226.

- Uniform Controlled Substances Act (U.L.A.) § 505.

- Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Forfeiture of money to state or local authorities based on its association with or proximity to other contraband, 38 A.L.R.4th 496.

Necessity of conviction of offense associated with property seized in order to support forfeiture of property to state or local authorities, 38 A.L.R.4th 515.

Forfeitability of property held in marital estate under Uniform Controlled Substances Act or similar statute, 84 A.L.R.4th 620.

Validity and construction of provisions of Uniform Controlled Substances Act providing for forfeiture hearing before law enforcement officer, 84 A.L.R.4th 637.

Real property as subject of forfeiture under Uniform Controlled Substances Act or similar statutes, 86 A.L.R.4th 995.

Timeliness of institution of proceedings for forfeiture under Uniform Controlled Substances Act or similar statute, 90 A.L.R.4th 493.

Effect of forfeiture proceedings under Uniform Controlled Substances Act or similar statute on lien against property subject to forfeiture, 1 A.L.R.5th 317.

Forfeitability of property, under Uniform Controlled Substances Act or similar statute, where property or evidence supporting forfeiture was illegally seized, 1 A.L.R.5th 346.

Application of forfeiture provisions of Uniform Controlled Substances Act or similar statute where drugs were possessed for personal use, 1 A.L.R.5th 375.

Forfeitability of property under Uniform Controlled Substances Act or similar statute where amount of controlled substances seized is small, 6 A.L.R.5th 652.

Delay in setting hearing date or in holding hearing as affecting forfeitability under Uniform Controlled Substances Act or similar statute, 6 A.L.R.5th 711.

Validity, construction, and application of state or local law prohibiting maintenance of vehicle for purpose of keeping or selling controlled substances, 31 A.L.R.5th 760.

Propriety of civil or criminal forfeiture of computer hardware or software, 39 A.L.R.5th 87.

Burden of proof and presumptions in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law, 104 A.L.R.5th 229.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - Proximity of asset to drugs, paraphernalia, or records, 115 A.L.R.5th 403.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - Odor of drugs, 116 A.L.R.5th 325.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - Explanation or lack thereof, 4 A.L.R.6th 113.

Evidence considered in tracing currency, bank account, or cash equivalent to illegal drug trafficking so as to permit forfeiture, or declaration as contraband, under state law - factors other than proximity, explanation, amount, packaging, and odor, 101 A.L.R.6th 1.

Validity, construction, and application of criminal forfeiture provisions of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS § 853), 88 A.L.R. Fed. 189.

Seizure or forfeiture of real property used in illegal possession, manufacture, processing, purchase, or sale of controlled substances under § 511(a)(7) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCS § 881(a)(7)), 104 A.L.R. Fed. 288.

Who is exempt from forfeiture of drug proceeds under "innocent owner" provision of 21 USCS § 881(a)(6), 109 A.L.R. Fed. 322.

What constitutes establishment of prima facie case for forfeiture of real property traceable to proceeds from sale of controlled substances under § 511(a)(6) of Comprehensive Drug Abuse Prevention and Control Act of 1970 (21 USCA § 881(a)(6)), 146 A.L.R. Fed. 597.