- 257 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

State of Nebraska, appellee, v. 

Jacob Edward Dolinar, appellant.

___ N.W.2d ___

Filed September 15, 2023. No. S-22-612.

1. Pleadings. Issues regarding the grant or denial of a plea in bar are questions of law.

2. Penalties and Forfeitures. Forfeiture under Neb. Rev. Stat. § 28-431 

(Reissue 2016), as amended by 2016 Neb. Laws, L.B. 1106, is civil 

in nature.

3. Criminal Law: Double Jeopardy. One of the abuses the Double 

Jeopardy Clause protects against is multiple criminal punishments in 

separate proceedings for the same offense.

4. Double Jeopardy. The Double Jeopardy Clause does not prohibit the 

imposition of all additional sanctions that could, in common parlance, 

be described as punishment.

5. Constitutional Law: Criminal Law: Double Jeopardy. In the constitutional sense, jeopardy describes the risk that is traditionally associated 

with a criminal prosecution, including criminal punishment.

6. Criminal Law: Double Jeopardy. The preliminary question in a double 

jeopardy analysis is whether a sanction can be fairly regarded as criminal in the first instance.

7. Constitutional Law: Criminal Law: Double Jeopardy. What will 

be considered criminal for purposes of double jeopardy is a constitutional question.

8. Statutes. Whether a particular sanction is criminal or civil is initially a 

matter of statutory construction.

9. Legislature: Statutes. A court must look to a statute on its face 

and determine whether, in establishing the penalizing mechanism, the 

Legislature either expressly or impliedly indicated a preference for one 

label or the other.

10. Legislature: Statutes: Intent: Controlled Substances: Proof. A court 

will reject the Legislature’s manifest intent for a civil label only if 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

09/15/2023 08:06 AM CDT
- 258 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

the party challenging the Uniform Controlled Substances Act provides 

the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate its intention.

11. Penalties and Forfeitures. Forfeiture in rem is distinguished from 

potentially punitive penalties such as fines that are in personam.

12. ____. Forfeiture in rem has a long tradition of being viewed as a 

civil sanction.

13. ____. Under the plain language of the statutory scheme as amended 

by 2016 Neb. Laws, L.B. 1106, the State has the option of pursuing 

forfeiture either through a separate civil proceeding under Neb. Rev. 

Stat. § 28-431 (Reissue 2016) or through sentencing in the underlying 

criminal proceeding as provided in Neb. Rev. Stat. § 28-416(18) (Cum. 

Supp. 2022).

14. Criminal Law: Double Jeopardy: Legislature: Intent. The Legislature 

has manifested its intent that proceedings under Neb. Rev. Stat. § 28-431 

(Reissue 2016) shall no longer be considered criminal for purposes of a 

double jeopardy analysis.

15. Statutes: Intent. The nonexhaustive factors to be considered in determining if the actual punitive effects of a statute negate the intended 

nature of the sanction are: (1) whether the sanction involves an affirmative disability or restraint; (2) whether it has historically been regarded 

as a punishment; (3) whether it comes into play only on a finding of 

scienter; (4) whether its operation will promote the traditional aims of 

punishment—retribution and deterrence; (5) whether the behavior to 

which it applies is already a crime; (6) whether an alternative purpose to 

which it may rationally be connected is assignable for it; and (7) whether 

it appears excessive in relation to the alternative purpose assigned.

16. Double Jeopardy: Legislature: Intent: Penalties and Forfeiture.

Because the procedural mechanisms of forfeiture under Neb. Rev. Stat. 

§ 28-431 (Reissue 2016) manifest the Legislature’s intent that it be civil, 

and the forfeiture scheme under § 28-431 is not so punitive as to negate 

that intent, forfeiture under § 28-431 is not criminal punishment for 

purposes of the Double Jeopardy Clause.

17. Criminal Law: Double Jeopardy. No double jeopardy arises from a 

civil forfeiture proceeding and a criminal prosecution for the same act.

18. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not needed to adjudicate the controversy before it.

Appeal from the District Court for Buffalo County: John H. 

Marsh, Judge. Affirmed.

Renee L. Mathias, of Berry Law, for appellant.
- 259 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

Michael T. Hilgers, Attorney General, and Austin N. Relph 

for appellee.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

Papik, and Freudenberg, JJ.

Freudenberg, J.

INTRODUCTION

The appellant filed an appeal from the denial of his plea in 

bar alleging that a trial on the pending charges for violations of 

the Uniform Controlled Substances Act (Act) 1 would subject 

him to Double Jeopardy. The appellant claimed he was already 

criminally punished for the same crime through a judgment in 

a separate forfeiture action brought pursuant to § 28-431. The 

claim for forfeiture was brought against money seized from 

a vehicle in which the appellant was a passenger. Although 

served with a copy of the petition, the appellant did not appear 

to contest the forfeiture. In denying the plea in bar, the district 

court reasoned that the appellant had failed to demonstrate he 

was punished by the forfeiture because he had failed to show 

he had an ownership interest in the forfeited money. Because 

forfeiture under § 28-431 as amended in 2016 is civil in 

nature, we affirm the district court’s order denying the appellant’s plea in bar.

BACKGROUND

Charges

A criminal complaint was filed in county court against 

Jacob Edward Dolinar on October 25, 2021, charging him 

with distribution of a controlled substance and possession of 

drug paraphernalia in violation of the Act. The information 

against Dolinar was filed in district court on November 16, 

charging him with two counts of distribution of a controlled 

substance in violation of § 28-416(1)(a), a Class IIA felony. 

1 See Neb. Rev. Stat. §§ 28-401 to 28-456.01 and 28-458 to 28-476 (Reissue 

2016 & Cum. Supp. 2022).
- 260 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

He was also charged with one count of possessing money used 

or intended to be used to obtain possession of a controlled 

substance or to facilitate the manufacture, distribution, delivery, or dispensing of a controlled substance in violation of 

§ 28-416(17), a Class IV felony.

The probable cause affidavit in support of Dolinar’s arrest 

described that Dolinar was a passenger of a vehicle subject to 

a traffic stop due to an expired registration. A search of the car 

found numerous tetrahydrocannabinol products, six receipts 

totaling $1,949.97 in marijuana purchased in dispensaries in 

Colorado, and $12,865 of mixed U.S. currency packaged in 

several rubberbands and located “under the passenger seat, 

driver’s door, and in a backpack in the trunk.”

Forfeiture Action Under § 28-431

After the criminal complaint was filed in county court and 

before the information was filed in district court, the State 

filed in district court a separate petition for forfeiture under 

§ 28-431, in case No. CI 21-673. The State alleged in the petition that “[b]ased on numerous indicators of criminal activity, criminal investigation, and other factors, Troopers believe 

. . . the subject currency was used or intended to be used to 

facilitate a violation of the . . . Act by potential claimants, [the 

driver] and . . . Dolinar.” Dolinar was listed, along with the 

driver, as a person “with interest in this subject currency” and 

was served with the petition for forfeiture, a notice of hearing, 

and a summons. Dolinar did not file an answer or demurrer 

and did not otherwise participate in the forfeiture action. On 

December 15, 2021, the district court ordered the cash forfeited 

to the State.

Plea in Bar

The charges from the November 16, 2021, information 

were still pending when the forfeiture order was entered. 

Dolinar filed a plea in bar against the information, arguing 

jeopardy had attached in the forfeiture action. He requested 

that the court dismiss the State’s information with prejudice 
- 261 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

pursuant to the Double Jeopardy Clause of the 5th and 14th 

Amendments to the U.S. Constitution and article I, § 12, of the 

Nebraska Constitution.

At the hearing on the plea in bar, the State argued that 

proceedings under § 28-431 are civil in nature, but, even 

if criminal in nature, Dolinar was not subjected to double 

jeopardy because he had failed to prove he had an ownership interest in the forfeited money. The State argued that 

Dolinar had only presented evidence he was a person entitled 

to notice of the forfeiture action pursuant to Neb. Rev. Stat. 

§ 25-21,302 (Reissue 2016) and that he was the “possessor” 

of the money.

The court overruled the plea in bar. It did not reach the 

question of whether proceedings under § 28-431 are criminal 

versus civil in nature. Instead, the court reasoned there was 

nothing in the record establishing the money—subject of the 

separate forfeiture proceedings under § 28-431—belonged to 

Dolinar. The court explained that despite § 28-431(4)’s requiring the State to list in the complaint the owner of the property 

if known, the complaint filed in November listed no owner, 

and Dolinar made no claim to the money.

ASSIGNMENT OF ERROR

Dolinar assigns that the trial court erred in overruling his 

plea in bar.

STANDARD OF REVIEW

[1] Issues regarding the grant or denial of a plea in bar are 

questions of law. 2

ANALYSIS

[2] Dolinar asserts a trial on the charges in the November 

16, 2021, information would violate the Double Jeopardy 

Clauses of the state and federal Constitutions because he was 

already subjected to criminal punishment for the same offense 

2 State v. Muhannad, 290 Neb. 59, 858 N.W.2d 598 (2015).
- 262 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

through the judgment in the forfeiture action brought under 

§ 28-431. We have held that forfeiture proceedings under 

§ 28-431 are criminal in nature, and thus, prosecution in a separate proceeding for the underlying violation of the Act would 

subject the defendant to Double Jeopardy. 3 Subsequently to 

such holdings, however, the Legislature amended § 28-431 

to change the State’s burden of proof to show the property 

was subject to forfeiture from “beyond a reasonable doubt” 

to “clear and convincing evidence.” In State v. $18,000,

 4 we 

rejected the argument that under this amendment the State still 

had to prove beyond a reasonable doubt that the property was 

subject to forfeiture. Because the question was not squarely 

before us, we left for another day whether forfeiture proceedings under § 28-431 remain criminal in nature. This appeal 

is the proper time to finally address that question. For the 

following reasons, we hold that forfeiture under § 28-431, as 

amended by 2016 Neb. Laws, L.B. 1106, is civil in nature.

[3] The Fifth Amendment to the U.S. Constitution provides 

in relevant part that no person shall be “subject for the same 

offence to be twice put in jeopardy of life or limb.” Similarly, 

article I, § 12, of the Nebraska constitution provides, “No person shall be . . . twice put in jeopardy for the same offense.” 

One of the abuses the Double Jeopardy Clause protects against 

is multiple criminal punishments in separate proceedings for 

the same offense. 5

3 See, State v. Spotts, 257 Neb. 44, 595 N.W.2d 259 (1999); State v. Franco, 

257 Neb. 15, 594 N.W.2d 633 (1999) (superseded by statute on other 

grounds as stated in State v. $18,000, 311 Neb. 621, 974 N.W.2d 290 

(2022)); State v. One 1985 Mercedes 190D Automobile, 247 Neb. 335, 526 

N.W.2d 657 (1995).

4 State v. $18,000, supra note 3.

5 See, Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 139 L. Ed. 2d 

450 (1997); United States v. Ursery, 518 U.S. 267, 116 S. Ct. 2135, 135 

L. Ed. 2d 549 (1996); State v. Dragoo, 277 Neb. 858, 765 N.W.2d 666 

(2009); State v. Franco, supra note 3.
- 263 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

[4-7] The Double Jeopardy Clause does not prohibit the 

imposition of “all additional sanctions that could, in common 

parlance, be described as punishment.” 6 Rather, in the constitutional sense, “jeopardy describes the risk that is traditionally 

associated with a criminal prosecution,” 7 including criminal 

punishment. 8 Thus, the preliminary question in a double jeopardy analysis is whether a sanction can be fairly regarded as 

criminal in the first instance. 9 What will be considered criminal 

for purposes of double jeopardy is a constitutional question. 10

[8-10] Whether a particular sanction is criminal or civil is 

initially a matter of statutory construction. 11 A court must look 

to a statute on its face 12 and determine whether, in establishing 

the penalizing mechanism, the Legislature either expressly or 

impliedly indicated a preference for one label or the other. 13

A court will reject the Legislature’s manifest intent for a civil 

label only if the party challenging the Act provides the “clearest proof” that the statutory scheme is “so punitive in either 

purpose or effect as to negate [its] intention.” 14

6 Hudson v. United States, supra note 5, 522 U.S. at 99 (internal quotation 

marks omitted).

7 Breed v. Jones, 421 U.S. 519, 528, 95 S. Ct. 1779, 44 L. Ed. 2d 346 (1975) 

(internal quotation marks omitted).

8 See Hudson v. United States, supra note 5.

9 See, id.; Garrity v. State Bd. of Plumbing, 447 Md. 359, 383, 135 A.3d 

452, 467 (2016).

10 6 Wayne R. LaFave et al., Criminal Procedure § 25.1(c) (4th ed. 2015).

11 See, Seling v. Young, 531 U.S. 250, 121 S. Ct. 727, 148 L. Ed. 2d 734 

(2001); Hudson v. United States, supra note 5; Kansas v. Hendricks, 521 

U.S. 346, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). See, also, State v. 

Franco, supra note 3.

12 See, Seling v. Young, supra note 11; Students for Sensible Drug Policy v. 

Spellings, 523 F.3d 896 (8th Cir. 2008).

13 United States v. Ward, 448 U.S. 242, 100 S. Ct. 2636, 65 L. Ed. 2d 742 

(1980).

14 Seling v. Young, supra note 11, 531 U.S. at 261.
- 264 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

In United States v. Ursery,

 15 the U.S. Supreme Court found 

that the sanction under two different forfeiture laws was 

intended to be civil and was not so punitive in purpose or 

effect to negate Congress’ intent. Ursery is particularly apposite to the case at bar.

[11,12] The Court in Ursery found Congress’ intent that the 

sanctions be civil was most clearly demonstrated by structuring the laws to operate in rem. The Court explained that forfeiture in rem seeks to disgorge the fruits of illegal conduct 

by resorting to a legal fiction that the physical property held 

is guilty and condemned. 16 Forfeiture in rem is distinguished 

from potentially punitive penalties such as fines that are in 

personam. 17 The laws at issue were structured to be in rem by 

targeting the property itself rather than a person, 18 providing 

that laws “relating to the seizure, summary and judicial forfeiture, and condemnation of property for violation of the customs laws . . . shall apply to seizures and forfeitures incurred” 

thereunder. 19 Forfeiture in rem, observed the Court, has a long 

tradition of being viewed as civil. 20

The Court found other procedural mechanisms of the forfeiture laws further manifested Congress’ intent that they be 

civil rather than criminal. 21 Under the two laws at issue, actual 

notice of the impending forfeitures was unnecessary when 

the government could not identify any party with an interest 

in the seized articles. The property was subject to forfeiture 

through a summary administrative procedure if no party filed 

a claim. 22 If a claimant appeared, the burden of proof was 

15 United States v. Ursery, supra note 5.

16 See id.

17 See id.

18 See id.

19 Id., 518 U.S. at 288 (internal quotation marks omitted).

20 See United States v. Ursery, supra note 5.

21 See id.

22 See id.
- 265 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

on the claimant to show an innocent ownership interest. The 

government had the burden of showing probable cause that 

the property was subject to forfeiture. 23 The Court reasoned 

that all these “distinctly civil procedures” 24 clearly expressed 

Congress’ intent that the laws imposed a civil, not a criminal, sanction.

Section 28-431 has always shared many of the attributes the 

Supreme Court in Ursery found manifested a legislative preference for a civil label. Section 28-431 is structured as a proceeding in rem. It targets the seized property itself rather than 

the owner of the property, describing the seizure with or without a warrant of items violative of the Act or used or intended 

to be used to facilitate a violation of the Act. 25 Pursuant to 

§ 28-431(4), actual notice of the impending forfeiture is unnecessary when the government cannot identify any party with 

an interest in the seized article. The petition must only state 

the name of the “owner if known.” 26 Under § 28-431(6), if a 

claimant appears in the forfeiture action, the burden is on that 

claimant to prove the claimant is an innocent owner by showing the claimant 

(a) has not used or intended to use the property to facilitate an offense in violation of the act, (b) has an interest 

in such property as owner or lienor or otherwise, acquired 

by him or her in good faith, and (c) at no time had any 

actual knowledge that such property was being or would 

be used in, or to facilitate, the violation of the act.

Until amendments passed by L.B. 1106 in 2016, § 28-431 

was dissimilar to the forfeiture laws addressed in Ursery

in one notable way. Instead of a burden on the government 

to show probable cause that the property was subject to 

23 See id.

24 Id., 518 U.S. at 289 (internal quotation marks omitted).

25 See, § 28-431(1); State v. $ 15,518, 239 Neb. 100, 474 N.W.2d 659 (1991).

26 § 28-431(4).
- 266 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

forfeiture, the prior version of § 28-431 required the State to 

show “beyond a reasonable doubt” that the property was used 

in violation of the Act. Proof beyond a reasonable doubt is the 

standard necessary for procuring a criminal conviction. 27 This 

requirement does not apply to civil forfeiture proceedings. 28

In several cases, we held that forfeiture under the prior version of § 28-431 was criminal punishment and that it subjects 

a defendant to Double Jeopardy when the State pursues both 

forfeiture under § 28-431 and a separate criminal prosecution 

of the owner of the forfeited property. 29

Pursuant to L.B. 1106, § 28-431(6) now provides in part 

that “[i]f there are no claims, if all claims are denied, or if 

the value of the property exceeds all claims granted and it is 

shown by clear and convincing evidence that such property 

was used in violation of the act,” the court shall grant the petition for forfeiture. The State now has a civil burden of proof 

to show the property is subject to forfeiture.

Our reasoning that § 28-431 was criminal was based primarily on the fact that the Legislature set forth a criminal 

burden of proof rather than a civil burden of proof respecting the use of the property that subjected it to forfeiture. 

Thus, in State v. One 1985 Mercedes 190D Automobile,

 30 we 

found forfeiture under § 28-431 was meaningfully different 

from forfeiture of gambling devices under Neb. Rev. Stat. 

§ 28-1111 (Reissue 2016). Section 28-1111, which is civil in 

nature, 31 requires the State to prove by clear and convincing 

27 See, e.g., In re Winship, 397 U.S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 

(1970).

28 Austin v. United States, 509 U.S. 602, 113 S. Ct. 2801, 125 L. Ed. 2d 488 

(1993).

29 See, State v. Spotts, supra note 3; State v. Franco, supra note 3; State v. 

One 1985 Mercedes 190D Automobile, supra note 3.

30 State v. One 1985 Mercedes 190D Automobile, supra note 3.

31 See, id.; State v. $3,067.65 in U.S. Currency, 4 Neb. App. 443, 545 

N.W.2d 129 (1996).
- 267 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

evidence that the seized devices were used for gambling. 

We observed that § 28-431 required proof beyond a reasonable doubt, while § 28-1111 requires something “less than 

the State’s ‘beyond a reasonable doubt’ burden of proof in 

a criminal trial.” 32 Likewise, in State v. Franco 33 and State 

v. Spotts,

 34 both decided before the 2016 amendment, we 

emphasized the beyond-a-reasonable-doubt standard of proof 

that was set forth in § 28-431.

In Franco, we also reasoned that by failing to amend 

§ 28-431 in response to case law holding forfeiture under 

§ 28-431 to be criminal punishment for purposes of Double 

Jeopardy, the Legislature had acquiesced to that determination. We said that in the absence of a legislative amendment 

to § 28-431, we could not conclude the Legislature’s intent 

had changed. 35

Because of L.B. 1106, we can no longer rely on the doctrine of legislative acquiescence to hold that forfeiture under 

§ 28-431 is criminal punishment. Still, Dolinar suggests an 

amendment to § 28-416, which was also passed through 

L.B. 1106, shows the Legislature intended to maintain the 

criminal nature of § 28-431. Section 28-416 generally sets 

forth the illegal acts pertaining to controlled substances and 

their penalties. The Legislature amended § 28-416 to add subsection (18), allowing the sentencing court to order, in addition 

to the other punishment authorized for violating the Act, forfeiture of items the sentencing court finds by clear and convincing evidence were derived from, used, or intended to be used 

to facilitate a controlled substances violation. Dolinar points 

32 State v. One 1985 Mercedes 190D Automobile, supra note 3, 247 Neb. at 

342, 526 N.W.2d at 663.

33 State v. Franco, supra note 3. See, also, State v. Bishop, 263 Neb. 266, 639 

N.W.2d 409 (2022); State v. Spotts, supra note 3.

34 State v. Spotts, supra note 3.

35 State v. Franco, supra note 3.
- 268 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

out that we discussed in Spotts and Franco that it would not 

violate the Double Jeopardy Clause to impose, in a single proceeding, both the punishments authorized under § 28-416 and 

forfeiture under § 28-431, and the addition of subsection (18) 

to § 28-416 codifies that arrangement. He argues it follows 

that the Legislature intended forfeiture will only be pursued 

in conjunction with a criminal conviction for violating the Act 

when imposed under § 28-416(18) as part of the sentencing in 

the single criminal proceeding.

[13] While we agree the Legislature clearly expressed its 

intent that forfeiture may be part of a defendant’s sentence for 

violating the Act, we disagree with Dolinar’s argument that 

this embodies an intention that sentencing under § 28-416(18) 

is the exclusive means of pursuing both sanctions in relation 

to the same underlying crime. Nothing in either § 28-416 

or § 28-431, read individually or in pari materia, suggests 

§ 28-416(18) is the exclusive avenue for pursuing both criminal punishment under the sentencing provisions of § 28-416 

and the forfeiture of items derived from, used, or intended to 

be used to facilitate the violation of the Act. Furthermore, we 

note that § 28-427 provides, “Any penalty imposed for violation of the . . . Act shall be in addition to, and not in lieu of, 

any civil or administrative penalty or sanction authorized by 

law.” Under the plain language of the statutory scheme as 

amended by L.B. 1106, the State has the option of pursuing 

forfeiture either through a separate civil proceeding under 

§ 28-431 or through sentencing in the underlying criminal 

proceeding as provided in § 28-416(18). The availability 

of forfeiture as part of a defendant’s sentence pursuant to 

§ 28-416(18) has no bearing on the civil nature of forfeiture 

under § 28-431.

[14] Instead, we look to the language of § 28-431 to 

determine if it is civil or criminal. We find that by amending 

§ 28-431 to eliminate the beyond-a-reasonable-doubt standard 

in favor of clear and convincing evidence, the Legislature 
- 269 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

brought § 28-431 in line with other civil in rem proceedings. 36

The Legislature thereby manifested its intent that proceedings 

under § 28-431 shall no longer be considered criminal for purposes of a double jeopardy analysis.

[15] Looking to the factors set forth by the U.S. Supreme 

Court, we find no constitutional reason to negate this manifest 

intent. The nonexhaustive factors to be considered in determining if the actual punitive effects of a statute negate its 

intended civil nature are: (1) “[w]hether the sanction involves 

an affirmative disability or restraint”; (2) “whether it has 

historically been regarded as a punishment”; (3) “whether it 

comes into play only on a finding of scienter”; (4) “whether its 

operation will promote the traditional aims of punishment—

retribution and deterrence”; (5) “whether the behavior to 

which it applies is already a crime”; (6) “whether an alternative purpose to which it may rationally be connected is assignable for it”; and (7) “whether it appears excessive in relation 

to the alternative purpose assigned.” 37 “[T]hese factors must 

be considered in relation to the statute on its face,” 38 and not 

by reference to the effect the law has on a single individual. 

No single factor is dispositive. 39

We have already discussed that in rem forfeiture has not 

historically been regarded as criminal punishment. Section 

28-431 serves the same important nonpunitive goals as the 

forfeiture laws addressed in Ursery, such as encouraging property owners to take care in managing their property, ensuring 

that individuals do not permit their property to be used for 

illegal purposes, and ensuring that individuals do not profit 

36 See Charles Basler, Reforming Civil Asset Forfeiture: Ensuring Fairness 

and Due Process for Property Owners in Massachusetts, 49 New Eng. L. 

Rev. 665 (2015).

37 Hudson v. United States, supra note 5, 522 U.S. at 99-100 (internal 

quotation marks omitted)(emphasis omitted).

38 Id., 522 U.S. at 100 (internal quotation marks omitted).

39 Hudson v. United States, supra note 5.
- 270 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

from their illegal acts. Also, like the forfeiture statutes in 

Ursery, § 28-431 does not require the State to prove scienter 

to establish that the property is subject to forfeiture. 40 The 

“innocent owner” exception does not require the government 

to demonstrate scienter because a connection between the 

property and a particular person is not a necessary element of 

the State’s prima facie case. 41 Although the State must show 

that the property was used in violation of the Act, “the fact 

that a forfeiture statute has some connection to a criminal 

violation is far from the clearest proof necessary to show that 

a proceeding is criminal.” 42 There are no other factors that 

weigh in favor of negating the State’s manifest intent.

[16] Because the procedural mechanisms of forfeiture 

under § 28-431, as amended by L.B. 1106, manifest the 

Legislature’s intent that it be civil, and the forfeiture scheme 

under § 28-431 as amended is not so punitive as to negate that 

intent, forfeiture under § 28-431 as amended by L.B. 1106 is 

not criminal punishment for purposes of the Double Jeopardy 

Clause. Our holding that forfeiture under the prior version 

of § 28-431 is criminal punishment for purposes of Double 

Jeopardy has been superseded by the amendment to § 28-431, 

which changed the State’s burden of proof to clear and convincing evidence.

[17,18] It is well established that no double jeopardy 

arises from a civil forfeiture proceeding and a criminal 

prosecution for the same act. 43 As a result, even assuming 

Dolinar was a party to the forfeiture action and had an ownership interest in the forfeited money, he was not subjected 

to jeopardy through the forfeiture of that money in the civil 

action brought under § 28-431. We affirm the district court’s 

40 See 28-431(6).

41 See United States v. Ursery, supra note 5.

42 Id., 518 U.S. at 292 (internal quotation marks omitted).

43 See, United States v. Ursery, supra note 5; 15A Cyclopedia of Federal 

Procedure § 88:18 (3d ed. July 2023 update).
- 271 -

Nebraska Supreme Court Advance Sheets

315 Nebraska Reports

STATE V. DOLINAR

Cite as 315 Neb. 257

order on the grounds that § 28-431 is civil for purposes of a 

double jeopardy analysis. We do not address the correctness 

of the district court’s reasoning that Dolinar failed to show 

he was subjected to a prior punishment because he failed to 

demonstrate an ownership interest in the cash, as we are not 

obligated to engage in an analysis that is not needed to adjudicate the controversy before us. 44 Further, we do not address 

the constitutionality of the portion of § 28-431 imposing a 

burden of proof upon a property owner or claimant to avoid 

forfeiture, as such issue was not raised in this appeal.

CONCLUSION

Because the sanction imposed by a forfeiture under § 28-431 

is civil and not criminal for purposes of a double jeopardy 

analysis, the district court did not err in denying Dolinar’s plea 

in bar based on a prior forfeiture pursuant to § 28-431.

Affirmed.

44 State v. Draper, 289 Neb. 777, 857 N.W.2d 334 (2015).