Request By:
Mr. Morris Lowe
Commonwealth's Attorney
1032 College Street
Bowling Green, Kentucky 42101
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Reid C. James, Assistant Attorney General
Our office is in receipt of your letter of 21 November 1977, in which you requested an opinion as to whether, upon conviction, money obtained or conferred in violation of Chapter 218A of the Kentucky Revised Statutes is subject to forfeiture for the use of the state by reason of KRS 500.090.
As you have indicated, KRS 500.090 sets out the forfeiture provisions applicable to the Kentucky Penal Code. Each reference under this provision specifically limits itself to the Penal Code. The scope of this section is therefore only applicable to the forfeiture of property used or possessed in violation of the Code. The Commentary to this section provides that existing statutes governing forfeiture of regulated items (e.g., KRS 244.180-244-200, alcoholic beverages; KRS 138.165, untaxpaid cigaretts) are unaffected by this provision. While KRS 500.090(2) provides that money which has been obtained or conferred in violation of any section of this code shall, upon conviction, be forfeited, it is clear that Chapter 218A, dealing with controlled substances, is not considered a part of the code.
KRS 218A.270 establishes the forfeiture provisions specifically applicable to this chapter. While many types of property used or possessed in violation of the provisions may be forfeited, no language of this provision has been construed to include money.
Brickey's Kentucky Criminal Law, General Provisions, § 1.06(2), provides,
"KRS 500.090 specifies alternatives and procedures for disposition of property which is subject to forfeiture under any provision of the Kentucky Penal Code. It should be noted at the outset that the Code limits this unusual remedy to relatively few types of contraband: forgery and eavesdropping devices; weapons unlawfully possessed, used or displayed; gambling devices and records; and money which has been obtained or conferred in violation of any Penal Code provision. This does not, however, affect in any manner statutes outside the Penal Code which govern forfeiture of regulated items such as alcoholic beverages, untaxpaid cigarettes, or controlled substances and related property. (Emphasis ours).
Forfeiture is not a part of the common law. It exists only by statute. The absence of a provision providing for the forfeiture of money used to further a violation of Chapter 218A, is therefore disallowed. KRS 500.090 cannot be used to justify such a forfeiture.
I am in sympathy with your predicament, and am sorry that this opinion could not have been more favorable. If this office can be of any further assistance please do not hesitate to contact me.