State v. Dolinar, 995 N.W.2d 18

Dolinar was charged with distribution of a controlled substance and with possessing money allegedly used to facilitate drug offenses after a traffic stop revealed THC products, Colorado dispensary receipts, and $12,865 in cash.\
While criminal charges were pending, the State filed a separate in rem forfeiture petition under Neb. Rev. Stat. § 28-431 seeking the seized cash; Dolinar was served but did not appear or file a claim.\
The district court granted forfeiture of the cash on December 15, 2021. Dolinar then filed a plea in bar claiming the forfeiture subjected him to double jeopardy and asking to dismiss the criminal information.\
The district court denied the plea in bar, reasoning Dolinar had not shown an ownership interest in the forfeited money; it did not decide whether § 28-431 is civil or criminal.\
The Nebraska Supreme Court held that, after the 2016 amendment (L.B. 1106) replacing the beyond-a-reasonable-doubt standard with clear and convincing evidence, § 28-431 forfeitures are civil in nature and therefore do not trigger double jeopardy; it affirmed the denial of the plea in bar and declined to reach the ownership question.\

Issue	Dolinar's Argument	State's Argument	Held
Whether forfeiture under § 28-431 (as amended) is criminal for double jeopardy purposes	Forfeiture is criminal punishment (previous case law) and bars a later criminal prosecution	§ 28-431 is an in rem civil forfeiture (procedures, burden now clear and convincing) and not criminal punishment	§ 28-431, as amended by L.B. 1106, is civil; no double jeopardy from a civil forfeiture and subsequent prosecution
Whether § 28-416(18) (allowing forfeiture at sentencing) shows legislative intent that forfeiture remain criminal	Addition of § 28-416(18) indicates Legislature meant forfeiture to be part of criminal sentencing only	§ 28-416(18) permits forfeiture as part of sentencing but does not make § 28-431 forfeitures exclusively criminal	The availability of forfeiture at sentencing does not negate § 28-431’s civil character
Whether Dolinar’s failure to show ownership of the cash precludes his double jeopardy claim	He argues jeopardy attached via the prior forfeiture judgment	State argues Dolinar never proved an ownership interest and thus was not punished by the forfeiture	Supreme Court did not decide ownership because it resolved the case on the civil nature of § 28-431; district court’s ownership rationale left undisturbed but not reached on appeal

United States v. Ursery, 518 U.S. 267 (1996) (in rem civil forfeiture can be nonpunitive; procedures can show civil intent)\
Hudson v. United States, 522 U.S. 93 (1997) (Double Jeopardy does not bar all sanctions that may be described as punishment)\
Breed v. Jones, 421 U.S. 519 (1975) (definition of jeopardy in criminal context)\
Seling v. Young, 531 U.S. 250 (2001) (clearest proof standard to overcome legislative label; civil/criminal distinction analysis)\
State v. Franco, 257 Neb. 15 (1999) (prior Nebraska ruling treating § 28-431 forfeitures as criminal)\
State v. Spotts, 257 Neb. 44 (1999) (prior Nebraska ruling treating § 28-431 forfeitures as criminal)\
State v. One 1985 Mercedes 190D Automobile, 247 Neb. 335 (1995) (comparison of forfeiture statutes; burden of proof significant to civil/criminal analysis)\
State v. $18,000, 311 Neb. 621 (2022) (addressed burden of proof change under L.B. 1106)