Civil Asset Forfeiture
Civil asset forfeiture occurs when the state seizes property connected to a crime - often, a drug offense. It is a civil case separate from any related criminal prosecutions. The purpose of asset forfeiture is to take away the profits of crime, in order to deter criminal activity. If you have had any assets seized because of a supposed connection to criminal activity, you should contact a criminal defense attorney to help protect your rights.Property Subject to Forfeiture
If the government seizes property in a civil asset forfeiture proceeding, it must show that the property either:
- Was instrumental in committing a crime
- Was obtained with proceeds of a crime
Both personal and real property are subject to asset forfeiture. Commonly, vehicles and cash are the subject of forfeiture proceedings, but property may also include:
- Money obtained by fraud;
- Money obtained by drug trafficking;
- An automobile used as a getaway car after a robbery; and
- A home purchased with illegally obtained money.
Asset forfeiture proceedings begin when law enforcement seizes the property. This is generally because of a violation or an arrest. Once the property is taken, law enforcement has five days to provide written notice of the intent to begin forfeiture proceedings.Adversarial Preliminary Hearing
The owner of the property may then request an adversarial preliminary hearing within 15 days of receiving notice. At the hearing, the court will examine testimony from both the owner and the government to determine whether there was probable cause to seize the property. If the court determines that there was no probable cause to seize the assets, law enforcement must return the property to the owner, unless the property is evidence in a criminal case.
In some cases, the property owner may recover attorney’s fees from the government, up to $1000. The owner must show that law enforcement did not act in good faith at any step of the forfeiture proceedings, or that it grossly abused its discretion.Civil Forfeiture Trial
If the court finds that probable cause existed to seize the property, the government then files a civil complaint. The property owner then files an answer that includes any defenses to the forfeiture. Before trial, the parties may reach a settlement if they can come to an agreement.
At the civil forfeiture trial, the government has to prove by clear and convincing evidence that the property was used to commit a crime or was purchased with the proceeds of criminal activity. The clear and convincing evidence standard is significantly lower than the beyond a reasonable doubt standard used in criminal proceedings.
If the government proves its case and the property is forfeited, the state now owns the property. They may sell the property at auction, or can use it for their own purposes.
If your property has been seized in a civil asset forfeiture, an attorney can help you examine your legal options. Please contact West Palm Beach criminal defense attorney William Wallshein to schedule a free initial consultation.