Request By:
Hon. J. Bruce Miller
Jefferson County Attorney
1142 Kentucky Home Life Building
Louisville, Kentucky 40202Attn: Lawrence E. Osterhage
Opinion
Opinion By: Steven L. Beshear, Attorney General; James H. Barr, Assistant Attorney General
This is in response to your recent letter in which you request an opinion as to whether property should be forfeited under the recent amendment to KRS 500.090. You state that efforts have failed to ascertain the identity of the owner of the property in question and that the County Police Department wishes to have the property forfeited for its own use. You also state that the conviction of an individual for illegal possession of the property was obtained before the new amendment became law.
The prior statute states in part as follows:
KRS 500.090 (1) (d) "Property which is forfeited under any section of this code may, upon order of the trial court, be retained for official state use."
This statute was amended by the 1980 General Assembly to read in pertinent part as follows:
KRS 500.090 (1) (d) "Property which is forfeited under any section of this code may, upon order of the trial court, be retained for official use in the following manner. * * * Property which has been seized by an agency of county, city or urban-county government may be retained for official use by the government whose agency seized the property or for official state use. * * *"
From a reading of the two statutes it appears that the date of forfeiture is the critical date with regard to the required disposition of the property and not the date of seizure of the property or the date of conviction of an individual for illegal possession of it.
In construing the statutes we refer to KRS 446.110 which states in pertinent part as follows:
"No new law shall be construed to repeal a former law as to any . . . act done, or penalty, forfeiture or punishment incurred, or any right accrued or claim arising under the former law . . . except that the proceedings thereafter had shall conform so far as practicable to the laws in force at the time of such proceedings."
The initial inquiry is whether under the latter statute the state could be construed to have a claim to the property arising under the former law.
Before it can be said that the state has such a claim, it was, and still is, necessary under KRS 500.090 (6) for the trial court to determine if a lawful owner or claimant to the property has been identified or is identifiable. If the owner or claimant is identifiable, the court may order the property returned to him or else it is required to give him notice of the holding of the property and he is given a reasonable opportunity to claim the property. Until this determination is made by the court, we do not believe the state has a valid claim to the property.
According to the concluding provision of KRS 446.110, which we quoted above, we therefore find the applicable law to the forfeiture proceeding to be the law in effect at the time of the proceeding. In other words, the court should order the forfeiture of the property in accordance with the law in effect on the date of the court's order.