There is no "innocent owner" defense to a forfeiture proceeding under the Fifth or Fourteenth Amendments. E.g., Bennis, 516 U.S. 442. Certainly if lack of consent or knowledge is to constitute a gratuitious "defense" under state law, the burden of proof should remain on the party asserting same. If the State has to dispel defensive theories as part of its proof, then it may well become impossible to successfully forfeit property used in facilitation of crimes. You will necessarily have to prove a nexus not only between the drug transaction and the possessor but also as to someone not present. Obviously the owner will also always become a necessary witness, since the bill does not even specify the "defense" must first be raised by a pleading.

This bill has an interesting aspect though. It appears to add a provision making the possessor the presumed owner of the property. Is this a rebuttable presumption? How would such presumption affects one's duty under subsection (h)(2) of the statute?

Anyone who shares these concerns may wish to provide testimony to the Criminal Jurisprudence Committee on April 8. (Unfortunately I will be in trial).