¶1concurring in part/dissenting in part.
¶2I concur in the Majority Opinion as to the result in Part II to reverse and remand on forfeiture of the currency.
¶3Respectfully, I dissent as to Part I affirming the order of forfeiture as to the motor vehicle. I dissent as to both Parts I and II in the reasoning of the Majority Opinion addressing the effect of the presumptions stated in the forfeiture statute.
¶4Consistent with the Kentucky Constitution, the General Assembly has the power to create law, but not to create facts. Here the forfeiture provisions of KRS 218A.410(j) and (h), under the pretext of presumptions, substitute law for facts.
¶5First, we address subparagraph (j). The General Assembly mandates that “currency found in close proximity to controlled substances, ... are presumed to be forfei-table.” Such a presumption would not be offensive when judicially construed, as the Majority does, to mean “that any property subject to forfeiture under (j) must be traceable to the exchange or intended violation,” if the law stopped here.
¶6But the statute then makes the presumption a conclusive fact rather than a mere rational presumption by posing an insurmountable, and therefore constitutionally impermissible, burden on the victim of the forfeiture, stating:
“The burden of proof shall be upon claimants of personal property to rebut this presumption by clear and convincing evidence.”
¶7Thus the victim of the forfeiture is required to prove a negative, not only to the satisfaction of the trier of fact, but “by clear and convincing evidence.” Whether the property is traceable to the drug transaction may well be inferable from the totality of the circumstances, but the General Assembly has no power to make the mere fact of proximity, standing alone, conclusive proof that the money is drug-related unless the victim of the forfeiture can persuade the trier of fact to the contrary by “clear and convincing evidence.”
¶8In sum, the statute can create a prima fade case, but the burden of persuasion remains with the Commonwealth. We should adopt a substantial connection test, meaning that if the Commonwealth fails to prove to the satisfaction of the trier of fact that there is a substantial connection between the property seized and a drug offense, forfeiture is not permissible. A decent respect for the constitutional rights of persons suspected of complicity in drug violations, and punished by forfeiture, requires no less.
¶9Next, subparagraph (2) of KRS 218A.410(h) is only slightly less offensive. This subsection provides that vehicles “used, or intended for use, to transport, or in any manner to facilitate the transportation” of illegal drugs shall be subject to seizure and forfeiture, and then in subsection (2) states:
“No conveyance is subject to forfeiture under this section by reason of any act or omission established by the owner thereof to have been committed or omitted without his knowledge or consent.” [Emphasis added.]
¶10Once again, the statute substitutes law for facts. Certainly, the trier of fact may infer the owner’s knowledge of the use of his vehicle from the manner in which it is used, and is free to disbelieve the owner’s *286protestations to the contrary. In the present case there was ample evidence from which to believe the owner knew her vehicle was being used in the drug traffic, even though she denied it. But, once again, the law goes too far when it shifts the burden of proof to the owner to establish a lack of knowledge, to prove a negative. The burden must remain upon the Commonwealth, as the party seeking the forfeiture and thus bearing the burden of proof, to establish to the satisfaction of the trier of fact the owner’s knowledge that the vehicle was being used for an unlawful purpose. Obviously, direct evidence, or a confession, is not required, and such knowledge may be inferred from the circumstances, when such circumstances give rise to a reasonable inference.
¶11A statutory presumption is an evidentia-ry device which is constitutionally permissible “which allows — but does not require— the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and that places no burden of any kind on the defendant.” County Court of Ulster County v. Allen, 442 U.S. 140, 157, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 792 (1979). The forfeiture statute at issue fails this basic, two-pronged test.
¶12A statutory presumption must be grounded in fact like the blood alcohol level presumption, KRS 189.520, before it is an appropriate exercise of legislative authority. Fact-finding in a court of law is part of the judicial process, not of the legislative process, under the separation of powers doctrine. Ky. Const., Sec. 27, 28.
¶13I would reverse and remand on all issues, with directions to the trial court to reconsider the forfeiture questions free from any ultimate facts established by statutory presumptions rather than by reasonable inferences from the evidence.
¶14COMBS, J., concurs in the reasoning stated in this Opinion and so much of this Opinion as would reverse and remand on the issue regarding forfeiture of currency.