The provisions pertaining to exemptions from forfeiture are the primary protection for innocent owners. There are exemptions that must be requested in an administrative forfeiture or proved in a judicial forfeiture, and exemptions that are effective without request or that do not need to be proved as an affirmative defense. The state may prove that the latter category of exemptions are not valid, however. In the first category of exemptions are interests acquired by an innocent owner prior to the criminal conduct upon which forfeiture is based, interests acquired by an innocent owner after the criminal conduct, and spousal property. Obviously, a defendant charged with the underlying crime will not be an innocent owner.
Innocence is generally a question of knowledge and action.
If property was acquired before the criminal conduct, the owner has an exemption if he or she does not know about the criminal conduct or if he or she acts to prevent the conduct or assists the prosecution of the criminal defendants after learning of the illegal conduct. If property is acquired after the criminal conduct, the owner qualifies for an exemption if he or she does not know about the criminal conduct or the fact that the property is forfeitable, and has given value for the property. There is a variation on this rule for property acquired as consideration for future services, as well. A spouse's interest in a residence and a remaining automobile are also exempt, if the spouse did not know about the criminal conduct or know the fact that the property is subject to forfeiture. The spouse's interest is protected only to the extent of a dollar limit set in the statute.