Section 16-8-85. Forfeiture of personal property seized

   (a) The following are subject to forfeiture unless obtained by theft, fraud, or conspiracy to defraud and the rightful owner is known or can be identified and located:

   (1) Any tool;

   (2) Any implement; or

   (3) Any instrumentality, including, but not limited to, any motor vehicle or motor vehicle part, whether or not owned by the person from whose possession or control it was seized, which is used or possessed either in violation of Code Section 16-8-83 or to promote or facilitate a violation of Code Section 16-8-83.

(b) Any motor vehicle, other conveyance, or motor vehicle part used by any person as a common carrier is subject to forfeiture under this Code section where the owner or other person in charge of the motor vehicle, other conveyance, or motor vehicle part is a consenting party to a violation of Code Section 16-8-83.
   (c)(1) Any motor vehicle, motor vehicle part, other conveyance, tool, implement, or instrumentality is not subject to forfeiture under this Code section by reason of any act or omission which the owner proves to have been committed or omitted without the owner's knowledge or consent.

   (2) Seizing agencies shall utilize their best efforts to identify any seized motor vehicle or motor vehicle part to determine ownership or the identity of any other person having a right or interest in a seized motor vehicle or motor vehicle part. In its reasonable identification and owner location attempts, the seizing agency shall cause the stolen motor vehicle files of the Georgia Bureau of Investigation to be searched for stolen or wanted information on motor vehicles similar to the seized motor vehicle or consistent with the seized motor vehicle part.

   (3) Where a motor vehicle part has an apparent value in excess of $1,000.00:

      (A) The seizing agency shall consult with an expert of the type specified in paragraph (4) of Code Section 16-8-82; and

      (B) The seizing agency shall also request searches of the on-line and off-line files of the National Crime Information Center and the National Automobile Theft Bureau when the Georgia Bureau of Investigation and Georgia Crime Information Center files have been searched with negative results.

(d) A forfeiture of a motor vehicle, motor vehicle part, or other conveyance encumbered by a bona fide security interest is subject to the interest of the secured party where the secured party neither had knowledge of nor consented to the act or omission forming the ground for the forfeiture.

(e) Property, as described in subsection (a) of this Code section, which is seized and held for forfeiture shall not be subject to replevin and is subject only to the order and judgments of a court of competent jurisdiction hearing the forfeiture proceedings.
   (f)(1) A prosecutor in the county where the seizure occurs shall bring an action for forfeiture in a court of competent jurisdiction. The forfeiture action shall be brought within 60 days from the date of seizure except where the prosecutor in the sound exercise of discretion determines that no forfeiture action should be brought because of the rights of property owners, lienholders, or secured creditors or because of exculpatory, exonerating, or mitigating facts and circumstances.

   (2) The prosecutor shall give notice of the forfeiture proceeding by mailing a copy of the complaint in the forfeiture proceeding to each person whose right, title, or interest is of record in the Department of Revenue, the Department of Transportation, the Federal Aviation Agency, or any other department or agency of this state, any other state or territory of the United States, or of the federal government if such property is required to be registered with any such department or agency.

   (3) Notice of the forfeiture proceeding shall be given to any other such person as may appear, from the facts and circumstances, to have any right, title, or interest in or to the property.

   (4) The owner of the property or any person having or claiming right, title, or interest in the property may within 60 days after the mailing of such notice file a verified answer to the complaint and may appear at the hearing on the action for forfeiture.

   (5) The prosecutor shall show at a forfeiture hearing, by a preponderance of the evidence, that such property was used in the commission of a violation of Code Section 16-8-83 or was used or possessed to facilitate such violation.

   (6) The owner of such property may show by a preponderance of the evidence that the owner did not know, and did not have reason to know, that the property was to be used or possessed in the commission of any violation or that any of the exceptions to forfeiture are applicable.

   (7) Unless the prosecutor shall make the showing required of it, the court shall order the property released to the owner. Where the prosecutor has made such a showing, the court may order that:

      (A) The property be destroyed by the agency which seized it or some other agency designated by the court;

      (B) The property be delivered and retained for use by the agency which seized it or some other agency designated by the court; or

      (C) The property be sold at public sale.

(g) A copy of a forfeiture order shall be filed with the sheriff of the county in which the forfeiture occurs and with each federal or state department or agency with which such property is required to be registered. Such order, when filed, constitutes authority for the issuance to the agency to whom the property is delivered and retained for use or to any purchaser of the property of a certificate of title, registration certificate, or other special certificate as may be required by law in consideration of the condition of the property.

(h) Proceeds from sale at public auction, after payment of all reasonable charges and expenses incurred by the agency designated by the court to conduct the sale in storing and selling the property, shall be paid into the general fund of the county of seizure.

(i) No motor vehicle, either seized under Code Section 16-8-84 or forfeited under this Code section, shall be released by the seizing agency or used or sold by an agency designated by the court unless any altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed vehicle identification number is corrected by the issuance and affixing of either an assigned or replacement vehicle identification number plate as may be appropriate under laws or regulations of this state.

(j) No motor vehicle part having any altered, counterfeited, defaced, destroyed, disguised, falsified, forged, obliterated, or removed vehicle identification number may be disposed of upon forfeiture except by destruction thereof, except that this subsection shall not apply to any such motor vehicle part which is assembled with and constitutes part of a motor vehicle.

(k) No motor vehicle or motor vehicle part shall be forfeited under this Code section solely on the basis that it is unidentifiable. Instead of forfeiture, any seized motor vehicle or motor vehicle part which is unidentifiable shall be the subject of a written report sent by the seizing agency to the Department of Revenue, which report shall include a description of the motor vehicle or motor vehicle part, including its color, if any; the date, time, and place of its seizure; the name of the person from whose possession or control it was seized; the grounds for its seizure; and the location where the same is held or stored.

(l) When a seized unidentifiable motor vehicle or motor vehicle part has been held for 60 days or more after the notice to the Department of Revenue specified in subsection (k) of this Code section has been given, the seizing agency, or its agent, shall cause the motor vehicle or motor vehicle part to be sold at a public sale to the highest bidder. Notice of the time and place of sale shall be posted in a conspicuous place for at least 30 days prior to the sale on the premises where the motor vehicle or motor vehicle part has been stored.

(m) When a seized unidentifiable motor vehicle or motor vehicle part has an apparent value of $1,000.00 or less, the seizing agency shall authorize the disposal of the motor vehicle or motor vehicle part, provided that no such disposition shall be made sooner than 60 days after the date of seizure.

(n) The proceeds of the public sale of an unidentifiable motor vehicle or motor vehicle part shall be deposited into the general fund of the state, county, or municipal corporation employing the seizing agency after deduction of any reasonable and necessary towing and storage charges.

(o) Seizing agencies shall utilize their best efforts to arrange for the towing and storing of motor vehicles and motor vehicle parts in the most economical manner possible. In no event shall the owner of a motor vehicle or a motor vehicle part be required to pay more than the minimum reasonable costs of towing and storage.

(p) A seized motor vehicle or motor vehicle part that is neither forfeited nor unidentifiable shall be held subject to the order of the court in which the criminal action is pending or, if a request for its release from such custody is made, until the prosecutor has notified the defendant or the defendant's attorney of such request and both the prosecution and defense have been afforded a reasonable opportunity for an examination of the property to determine its true value and to produce or reproduce, by photographs or other identifying techniques, legally sufficient evidence for introduction at trial or other criminal proceedings. Upon expiration of a reasonable time for the completion of the examination, which in no event shall exceed 14 days from the date of service upon the defense of the notice of request for return of property as provided in this subsection, the property shall be released to the person making such request after satisfactory proof of such person's entitlement to the possession thereof. Notwithstanding the foregoing, upon application by either party with notice to the other, the court may order retention of the property if it determines that retention is necessary in the furtherance of justice.

(q) When a seized vehicle is forfeited, restored to its owner, or disposed of as unidentifiable, the seizing agency shall retain a report of the transaction for a period of at least one year from the date of the transaction.

(r) When an applicant for a certificate of title or salvage certificate of title presents to the Department of Revenue proof that the applicant purchased or acquired a motor vehicle at public sale conducted pursuant to this Code section and such fact is attested to by the seizing agency, the Department of Revenue shall issue a certificate of title or a salvage certificate of title, as determined by the state revenue commissioner, for such motor vehicle upon receipt of the statutory fee, a properly executed application for a certificate of title or other certificate of ownership, and the affidavit of the seizing agency that a state assigned number was applied for and affixed to the motor vehicle prior to the time that the motor vehicle was released by the seizing agency to the purchaser.

Code 1981, § 16-8-85, enacted by Ga. L. 1991, p. 1805, § 1; Ga. L. 1992, p. 6, § 16; Ga. L. 2000, p. 951, § 12-2; Ga. L. 2005, p. 334, § 6-2/HB 501.