Request By:
Mr. William H. Pickett
Administrative Assistant
Urban County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question relating in part to the interpretation of KRS 218A.270(4)(a) as it relates to the use, by the local law enforcement agency, of forfeited property (automobiles).
You state that the Urban County Government has been awarded several forfeited vehicles by the Circuit Court. These vehicles were involved in controlled substances cases and were confiscated, forfeited and awarded to the local government for official use pursuant to KRS 218A.270. Many of the forfeited vehicles are old and in poor mechanical condition. They either cannot be repaired or the cost of repairs is prohibitive.
You ask whether the Urban County Government may legally trade the forfeited vehicles which are not in working order for usable vehicles. A trade arrangement has been proposed because it is realized that if the forfeited vehicles are sold the net proceeds must go to the state treasurer for deposit to the general fund. If the proposed trade arrangement is not legally permissible and the vehicles must be sold, you ask whether the local government may charge for storage at government facilities and deduct such storage charges from the proceeds received from the sale of the vehicles.
KRS 218A.270(4) provides as follows:
"When property is forfeited under this chapter the law enforcement agency may:
(a) Retain it for official use;
(b) Sell that which is not required to be destroyed by law and which is not harmful to the public. The proceeds shall be used for payment of all proper expenses of the proceedings for forfeiture and sale, including expenses of seizure, maintenance of custody, advertising and court costs. The balance shall be paid to the state treasurer for deposit to the general fund. "
As you can see, the statute provides two alternatives for legal disposition of property forfeited thereunder by the law enforcement agency. Other than the provision, "Retain it for official use," the statute contains no further directions in regard to use of forfeited vehicles retained by a law enforcement agency. Since under the proposed arrangement you have submitted, vehicles will be used for official purposes, the key word is probably "retain."
In Black's Law Dictionary (4th Ed.), at page 1479, the word "retain" is defined as, "To continue to hold, have, use, recognize, etc. and to keep." Webster's New Collegiate Dictionary (1976) defines "retain" as follows:
"la: to keep in possession or use b: to keep in one's pay or service; specif.: to employ by paying a retainer c: to keep in mind or memory: remember 2: to hold secure or intact"
In
Kane v. McDaniel, 407 F.Supp. 1239, 1242 (U.S. Dist. Ct., W.D. Ky. 1975), the Court said in part:
". . . Therefore, forfeiture statutes are strictly construed against forfeiture and in favor of the person whose property rights are affected.
Bratcher v. Ashley, 243 S.W.2d 1011 (Ky. 1952) and every element of the forfeiture must be clearly shown and the rules of procedure are to be construed so as to narrowly circumscribe the remedy of forfeiture. . . ."
See also 37 C.J.S. Forfeitures § 4, where the following appears:
". . . On the other hand, a statute imposing a forfeiture should be construed strictly and in a manner as favorable to the person whose property is to be seized as is consistent with the fair principles of interpretation. . . ."
Therefore, in our opinion, where a law enforcement agency has retained a forfeited vehicle for its official use pursuant to KRS 218A.270(4)(a), it cannot trade that vehicle for another vehicle as it would not be retaining the forfeited vehicle as required by the statute and within the commonly accepted definitions of the word "retain." While a law enforcement agency has several alternatives in connection with the disposition of forfeitted vehicles, trading such vehicles for other vehicles is not authorized by the statute. If the law enforcement agency sells a forfeited vehicle pursuant to KRS 218A.270(4)(b), it may charge for storage of the vehicle and deduct such storage charges from the proceeds received from the sale of the vehicle.