§ 9-16-17.Burden of proof and presumptions

The burden of proof in a Georgia civil forfeiture case is the ordinary civil standard: preponderance of the evidence. The state doesn’t need clear and convincing evidence, and it never has to meet the criminal standard of proof beyond a reasonable doubt — subsection (a)(1) sets the bar at showing it’s more likely than not that the seized property is subject to forfeiture.

Even when the state clears that bar, a property interest can still escape forfeiture through what’s commonly called an innocent-owner defense. Subsection (a)(2) lists what an owner or interest holder must establish: they weren’t privy to the criminal conduct, didn’t consent to it, didn’t know about it, didn’t know it was likely to happen and shouldn’t reasonably have known either, and didn’t acquire or stand to acquire substantial proceeds from it beyond what they earned as an interest holder in an arm’s length commercial transaction. For a conveyance used only for transportation, the owner also can’t have held the property jointly with the person whose conduct caused the forfeiture. And the owner can’t be holding the property as a front for that person — unless the owner acquired the interest as a bona fide purchaser without knowingly taking part in an illegal transaction.

The timing of how the interest was acquired matters too. An owner who got the interest before the underlying conduct was complete is protected if the wrongdoer didn’t have authority at that point to convey it to a bona fide purchaser. An owner who acquired it afterward is protected only as a bona fide purchaser who bought in before any forfeiture lien or notice of pending forfeiture, without notice of the seizure, and without reasonable cause at the time to believe the property was or was likely to become subject to forfeiture.

Subsection (b) works from the other direction, giving the state a shortcut. If the state shows by a preponderance of the evidence that a person engaged in the conduct giving rise to forfeiture, that the property was acquired during that conduct or within a reasonable time afterward, and that there was no other likely source for the property, a rebuttable presumption arises that the property is subject to forfeiture. The claimant can still overcome that presumption — including through the innocent-owner showing in subsection (a) — but the presumption shifts the practical burden onto the property once those three facts are shown.