State Ex Rel. Rooney v. ONE 1977 SUBARU TWO DOOR, VIN A26L-910, 450

I agree with the majority that the trial court and parties misunderstood the applicable burden of proof. Under I.C. § 37-2744(d)(2), the trial court must find, as a condition precedent to forfeiture, that the property (here money) was used, or intended for use, in violation of the controlled substances act. Thus, there is no rebuttable presumption that money, simply found in proximity to drugs, is forfeitable.1

Unfortunately, and worse yet, improperly, the majority remands the case for the taking of new evidence. The government, as a result, will get yet another bite at the forfeiture apple.…