Wallace v. State, [Ms. 2150967, Feb. 10, 2017] __ So. 3d __ (Ala. Civ. App. 2017). The Court of Civil Appeals reverses a judgment entered by the Shelby Circuit Court ordering the forfeiture of an automobile based upon its use in a sale of marijuana. The court notes that innocent owners of property subject to forfeiture have an affirmative defense pursuant to § 20-2-93(h) which states:
“An owner’s or bona fide lienholder’s interest in any type of property other than real property and fixtures shall be forfeited under this section unless the owner or bona fide lienholder proves both that the act or omission subjecting the property to forfeiture was committed or omitted without the owner’s or lienholder’s knowledge or consent and that the owner or lienholder could not have obtained by the exercise of reasonable diligence knowledge of the intended illegal use of the property so as to have prevented such use.”
Ms. *7. Under this statute, “lack of knowledge or consent is an affirmative defense, available after the state has made a prima facie case for forfeiture.” Id., quoting State ex rel. Williams v. One Glastron Boat, 411 So. 2d 795, 796 (Ala. Civ. App. 1982) and Kuykendall v. State, 955 So. 2d 442, 445 (Ala. Civ. App. 2006).
Here, as in Kuykendall v. State, there was no evidence supporting any conclusion that the owner knew or should have known that his son was using the automobile illegally. Thus, the trial court’s judgment was not supported by the evidence.