(Code 1981, §16-12-32, enacted by Ga. L. 2015, p. 693, § 2-14/HB 233.)
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 L. 1990, p. 587, § 1, and was repealed by Ga.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 Ga. St. U.L. Rev. 241 (1994). For article on the 2015 enactment of this Code section, see 32 Ga. 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).
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).
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 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 O.C.G.A. § 16-12-32(d). Ridley v. State, 253 Ga. App. 896, 560 S.E.2d 769 (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).
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).
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).
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).
Cited in McFarland v. State, 134 Ga. App. 470, 214 S.E.2d 721 (1975); State v. Walls, 202 Ga. App. 899, 415 S.E.2d 921 (1992); Wilson v. State, 206 Ga. App. 599, 426 S.E.2d 192 (1992); Griffin v. State, 211 Ga. App. 750, 440 S.E.2d 483 (1994).
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 Op. Att'y Gen. p. 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 Op. Att'y Gen. p. 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.
- 16B Am. Jur. 2d, Constitutional Law, §§ 955, 961, 983 et seq. 38 Am. Jur. 2d, Gambling, § 134 et seq. 68 Am. Jur. 2d, Searches and Seizures, § 312 et seq.
C.J.S.- 38 C.J.S., Gaming, § 110 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.