O.C.G.A.
O.C.G.A.

O.C.G.A. § 16-12-32 (2019)

Civil forfeiture

✓ O.C.G.A. — 2019 edition (Public.Resource.Org Release 73)
Code text and O.C.G.A. statutory annotations on this page reflect the 2019 Official Code of Georgia Annotated (Public.Resource.Org Release 73, 2019-08-21; public domain per Georgia v. Public.Resource.Org, 2020). The Syfert case-law annotations in Notes of Decisions, below, are current.
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(a) As used in this Code section, the terms “proceeds,” “property,” and “United States” shall have the same meanings as set forth in Code Section 9-16-2, and “enterprise” means any person, sole proprietorship, partnership, corporation, trust, association, or other legal entity created under the laws 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. (b) The following are declared to be contraband, and no person shall have a property right in them: (1) Every gambling device except antique slot machines as provided for in subsection (b) of Code Section 16-12-24; (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 of the laws of the United States relating to gambling and any proceeds;

OFFENSES/HEALTH & MORALS

(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 any of the laws of the United States relating to gambling and any proceeds; and (5) Any property found in close proximity to any gambling device or other property subject to forfeiture under this Code section. (c) Any property declared as contraband pursuant to subsection (b) of this Code section shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9.

History

Code 1981, § 16-12-32, enacted by Ga. L. 2015, p. 693, § 2-14/HB 233.

Annotations

Editor’s notes. This Code section formerly pertained to seizure and disposition of property used in or derived from violation of this article. The former Code section was based on Ga. L. 1945, p. 351, § 2; Code 1933, §§ 26-2709, 26-2710, enacted by Ga. L. 1968, p. 1249, § 1; Code 1981, §§ 16-12-31, 16-12-32; Ga. L. 1982, p. 2325, § 1; Ga. L. 1983, p. 3, § 13; Ga. L. 1990, p. 587, § 1, and was repealed by Ga. L. 2015, p. 693, § 2-14/HB 233, effective July 1, 2015. 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.” Law reviews. For article, “Criminal Forfeiture: An Appropriate Solution to the Civil Forfeiture Debate,” see 10 Georgia St. U.L. Rev. 241 (1994). For article on the 2015 enactment of this Code section, see 32 Georgia St. U. L. Rev. 1 (2015).

JUDICIAL DECISIONS Constitutionality. - O.C.G.A. § 16-12-32(b) was not unconstitutionally vague as applied to gambling club patrons whose funds were seized when police raided a club. Izzo v. State, 257 Ga. 109, 356 S.E.2d 204, 1987 Ga. LEXIS 758 (1987). Cash admittedly from gambling. - An individual’s uncorroborated admission to a police officer that cash the individual voluntarily took from the individual’s pocket the individual had earned gambling was sufficient to support forfeiture. Hall v. State, 226 Ga. App. 486, 486 S.E.2d 710, 1997 Ga. App. LEXIS 669 (1997). Failure to prove that seizure was reported within time period allowed by statute. - Trial court erred in ordering a forfeiture because the state did not prove that the seizure of money used

in commercial gambling was reported to the district attorney within the time period allowed by former O.C.G.A. § 16-12-32(d); as the state failed to present evidence of the notice date, there was no evidence that the state complied with former O.C.G.A. § 16-12-32(d). Ridley v. State, 253 Ga. App. 896, 560 S.E.2d 769, 2002 Ga. App. LEXIS 238 (2002). Prior conviction not required. - Showing that the owner or user of the property sought to be condemned was convicted of a crime is not required. Defendant should not be faced with the Hobson’s choice of leaving the petition unanswered, thereby conceding the condemnation by default, or answering and having the defendant’s first offender record used against the defendant. Jones v. State, 212 Ga. App. 682, 442 S.E.2d 880,

1994 Ga. App. LEXIS 392 (1994), cert. dismissed, No. S94C1150, 1994 Ga. LEXIS 795 (Ga. June 27, 1994). Van used to transport fighting dogs may be condemned. - Van used to transport two fighting dogs to the scene of dogfights and which was thus used to facilitate a dogfight in violation of O.C.G.A. § 16-12-37 may be condemned as provided in O.C.G.A. § 16-12-32. Macon Auto Cleaners v. State, 175 Ga. App. 13, 332 S.E.2d 324, 1985 Ga. App. LEXIS 2001 (1985). Gas station employees paying out cash and lottery tickets. - Judgment approving forfeiture was affirmed because by giving players cash and lottery tickets as rewards for winning games on the amusement machines, the gas station employees effectively converted the machines into gambling devices under O.C.G.A. § 16-12-32(b)(4), which clearly

violated the gambling laws of Georgia prohibiting cash payouts for winning games on machines when the winnings are determined by chance even if the games involve an element of skill. Patel v. State of Ga., 341 Ga. App. 419, 801 S.E.2d 551, 2017 Ga. App. LEXIS 214 (2017), cert. dismissed, No. S17C1777, 2017 Ga. LEXIS 903 (Ga. Oct. 16, 2017). Determining if penalty is proportionate to offense. - In determining whether forfeiture of property was constitutionally permissible, the court failed to address whether the harshness of the penalty was proportional to the gravity of the offense giving rise to the forfeiture; therefore, remand was required for determination of that issue. Mayes v. State, 230 Ga. App. 172, 495 S.E.2d 640, 1998 Ga. App. LEXIS 71 (1998).

OPINIONS OF THE ATTORNEY GENERAL Editor’s notes. - In light of the similarity of the statutory provisions, opinions under former Code 1933, §§ 26-6507 and 26-6508 are included in the annotations for this Code section. Manufacturing gambling devices. - If gambling devices are contraband when transported, it follows logically that they may not be manufactured; thus, companies manufacturing gambling devices may not be established in the State of Georgia. 1963-65 Ga. Op. Att’y Gen. 319 (decided under former Code 1933, § 26-6507).

It is illegal to transport gambling devices within this state in intrastate commerce; however, this state does not attempt to exercise jurisdiction over the transportation of gambling devices in interstate commerce. 1960-61 Ga. Op. Att’y Gen. 113 (decided under former Code 1933, §§ 26-6507, 26-6508). Office of the district attorney is not a “law enforcement agency” within the meaning of O.C.G.A. § 16-12-32(h)(1). 1985 Op. Att’y Gen. No. U85-22.

RESEARCH REFERENCES Am. Jur. 2d. 16A Am. Jur. 2d, Constitutional Law, §§ 350, 390, 507. 38 Am. Jur. 2d, Gambling, § 133 et seq. 68 Am. Jur. 2d, Searches and Seizures, § 320 et seq. C.J.S. 38 C.J.S., Gaming, § 113 et seq. ALR. Right to jury trial in case of seizure of

property alleged to be illegally used, 17 A.L.R. 568; 50 A.L.R. 97. Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.

Notes of Decisions
Cited in 16 cases, 1985–2017 · leading case: Izzo v. State, 356 S.E.2d 204 (Ga. 1987).
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Izzo v. State, 356 S.E.2d 204 (Ga. 1987). · cites it 21× “This appeal involves an attack on the constitutionality of OCGA § 16-12-32 (b). The trial court held the statute constitutional, and we affirm.”
Jones v. State, 442 S.E.2d 880 (Ga. Ct. App. 1994). · cites it 16× “The petition alleged that the truck was used by Jones to transport gambling paraphernalia, facilitating a violation of OCGA § 16-12-22, and that the check was used in, derived from, or realized through Jones's commercial gambling operation.”
Swails v. State of Ga., 431 S.E.2d 101 (Ga. 1993). · cites it 4× “See OCGA § 16-12-32 (f) (gambling devices) in which proceedings in the superior court "shall proceed as other civil cases in said court"; former Ga.”
Ultra Telecom, Inc. v. State, 701 S.E.2d 144 (Ga. 2010). · cites it 4× “See also OCGA § 16-12-32. I therefore respectfully dissent from the majority.”
Griffin v. State, 440 S.E.2d 483 (Ga. Ct. App. 1994). · cites it 6× “Appellants assert the trial court should have dismissed the condemnation petitions because they recited that the State was proceeding under the controlled substances forfeiture statute (OCGA § 16-13-49), instead of the gambling forfeiture statute (OCGA § 16-12-32). We disagree.…”
Walker v. State, 636 S.E.2d 705 (Ga. Ct. App. 2006). · cites it 2× “5 (civil forfeiture under OCGA § 16-12-32 — forfeiture statute for property used in conjunction with illegal gambling — did not require criminal charges let alone conviction).”
Patel Et Al. v. State of Georgia, 801 S.E.2d 551 (Ga. Ct. App. 2017). · cites it 4× “The State then filed a complaint for forfeiture in rem pursuant to OCGA § 16-12-32. Following a hearing, the trial court approved the forfeiture, concluding that by paying out cash and lottery tickets as winnings for customers using the amusement machines, the appellants…”
Hall v. State, 486 S.E.2d 710 (Ga. Ct. App. 1997). · cites it 4× “” Pursuant to OCGA § 16-12-32, the officer seized the money as contraband derived from gambling but did not charge Hall with any offense.”
State v. Walls, 415 S.E.2d 921 (Ga. Ct. App. 1992). · cites it 7× “However, paragraph three of each action recited that the seized property was used to facilitate a gambling offense and was derived from a gambling offense, which is the basis for condemnation actions brought pursuant to OCGA § 16-12-32. Both OCGA §§ 16-13-49 and 16-12-32 require…”
Williams v. State, 492 S.E.2d 290 (Ga. Ct. App. 1997). · cites it 2× “In Jones , which involved a condemnation proceeding under OCGA § 16-12-32, we held that the proper procedure was to present evidence regarding the defendant’s underlying behavior rather than relying on the first offender plea and record.”
Ridley v. State, 560 S.E.2d 769 (Ga. Ct. App. 2002). · cites it 20× “On November 21, 2000, the State of Georgia filed this in rem forfeiture action under OCGA § 16-12-32, seeking to condemn $1,166 owned by Weems and $944 owned by Ridley.”
Mayes v. State, 495 S.E.2d 640 (Ga. Ct. App. 1998). · cites it 10× “Eddie Mayes appeals the judgment in this civil forfeiture action under Georgia’s gambling forfeiture statute, OCGA § 16-12-32. Based on the following facts, we vacate the judgment and remand the case with direction.”
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