Asset forfeiture is a ruthless legal process that can deprive you of your property and your financial means to defend your case. That's why you should be prepared for an asset forfeiture to avoid losing your property indefinitely. You cannot adequately prepare for an asset forfeiture unless you have an asset forfeiture attorney by your side. At Asset Forfeiture Attorney, we are ready to use our experience to fight for your property's possible seizure and restore your property rights.
How to Prepare for an Asset Forfeiture
You can recover some or all your assets, depending on the facts of your alleged crime. Sadly, most people lose their property to forfeiture since they are not aware of their rights. Therefore, if you are well-prepared, you might avoid losing your property and recover them. Here are a few ways you can prepare for asset forfeiture.
Understand What Asset Forfeiture is in California and the United States
Asset forfeiture is a legal process that involves the government taking a person's property when it suspects that the property was involved in a crime or was obtained through criminal activity. In California, asset forfeiture only occurs after a civil proceeding. A civil proceeding is a lawsuit filed against a property that the government wants to take. Therefore, the property becomes the defendant of the suit, making the owner a third-party claimant.
For the government to obtain the property, it has to prove that it is connected to criminal activity based on the "preponderance of the evidence" collected. The "preponderance of the evidence" is a slightly lower level of proof than the standard expected while proving a criminal case beyond a reasonable doubt.
In that matter, a property owner is convicted before his or her property is taken. However, forfeiture can be considered even without finding that the property owner guilty of the alleged crime or a crime was committed.
California's asset forfeiture laws allow law enforcement officers to prosecute most types of property. Some of these properties include:
- Weapons involved in assault with a deadly weapon case
- Computer equipment used to commit a crime such as internet fraud.
- Animals, if you are convicted for animal cruelty and abuse.
- A vehicle used to commit a crime such as transporting stolen property
- A machine such as counterfeit trademark
- Illegal drugs or machinery, building, or lands used to make drugs.
- Any property acquired through a criminal profiteering activity.
Equitable Sharing and The Senate Bill 443
Equitable sharing is a controversial practice that applies to California asset forfeiture law. Under this practice, California police can avoid specific state forfeiture laws by handling seized property to the federal police.
Once this has been done, the property is handled by federal forfeiture laws, which are usually relaxed compared to California laws. The federal agency can sell your property, and the local and state agency earns 80% of the money acquired, while the federal agency keeps 20%.
With the signing of Senate Bill 443 in 2016, a relatively new law was passed with several restrictions on equitable sharing practice and closed ways that California state police would get around state forfeiture laws while giving seized property to the feds.
Know Your Constitutional Rights
Knowing your constitutional rights is essential in preparing for asset forfeiture. Since most asset forfeiture occurs in connection with specific crimes, it is crucial to learn the conviction requirements to determine whether your asset fits to be seized. For instance, if your asset is taken based on a drug case, the government must first convict you for the drug offense before the asset forfeiture.
Please note, the government can seize your property even without convicting you, and ownership of the property is only passed to the government once you have been convicted. However, your property can be forfeited without conviction if you committed an underlying crime and failed to appear in court. In such an event, the only condition that the government should consider is that the property in question should be subjected to forfeiture under the law. This means that they should supply basic evidence to prove that the property is related to the crime.
The second conviction exception involves securities worth more than $40,00. The government can forfeit these properties even when there is no conviction connected to a drug crime. For such forfeiture to occur, the government should prove that the money was from a drug transaction or used in an unlawful drug transaction.
Two questions often arise in these cases if you have an impending asset forfeiture connected to an organized crime case. These questions include:
- The activity that leads to an asset forfeiture
- Procedures that the government should follow before it can forfeit the property
If the government intends to forfeit your property based on an organized crime case, there should be a conviction related to a specific criminal activity. An organized illegal activity means that your sentence involved a criminal behavior pattern, and the crime was done for financial gain. A "pattern" means that the defendant committed two or more crimes.
Know The Due Process Used in Asset Forfeiture
Both federal and state laws allow every offender to challenge the government when it seeks to take away their civil rights, such as in a situation where your asset is forfeited. When you challenge the government, you have the right to inspect the evidence presented against you, present your defense, question witnesses, and generally engage in every process intended to challenge the accusations. The government should allow their alleged offender to follow the due process despite the extent of evidence they have against them.
Due Process in California
In California, the government usually follows a specific procedure during an asset forfeiture process. These procedures involve summary, administrative, and judicial procedures. Let's have a closer look at these procedures.
In a summary forfeiture, the government can forfeit specific Schedule 1 drugs without any particular procedure. This subjects certain drugs such as ecstasy, LSD, marijuana, heroin, and peyote. As of marijuana, please note that the government can restore your right of possession if you legally possessed it under medical marijuana laws.
Administrative procedures involve an asset forfeiture in cases that involve personal property worth less than $250,000. In this case, the police must give a public notice with the following information before it forfeits a property:
- The property’s description
- The appraisal value of the property
- Location and date of the asset seizure
- Facts that justifies the seizure
- Instructions to challenge the taking
Once you have been given the notice, you only have thirty days to challenge the seizure. If you do not challenge it, the police will sell your property and keep the earnings. If you contest the seizure, the judicial procedure applies.
A judicial procedure is applied in a forfeiture case when you have challenged a seizure of your property. In this case, there must be a civil trial before the police forfeit the property. At trial, the prosecutor should prove that your property was used in criminal activities or was bought using illegal money, and the property owner agreed to the crime.
If your asset forfeiture is based on organized crime, the government must follow a particular procedure to forfeit your property legally. These procedures include filing a petition with the court by the prosecutor, giving notice of the property, and publishing it in the local newspaper. The notice should be published in the local newspaper in some cases.
You have to challenge the forfeiture within thirty days after receiving the notice. If you make a challenge, then a hearing should be made to determine whether to forfeit the property. Forfeiture should be allowed if the prosecutor proves that the property should be subjected to forfeiture beyond a reasonable doubt.
Hire a Professional Attorney
A healthy client-attorney relationship is paramount to your preparedness during an impending asset forfeiture. However, you cannot achieve this unless you hire a professional attorney. There are several steps you should consider while choosing the right attorney while challenging an asset forfeiture. Here is a detailed view of what you should do.
Look for Reference
The best approach to shortlist possible candidates for your choosing is looking for references. The best people to talk to are those who have gone through similar legal challenges and have managed to win back their properties. Ask them about their lawyers and what they think about their delivery of services. If you talk to half a dozen people who have gone through similar legal challenges as you, there would be a few promising leads.
However, it would be best if you did not decide on your lawyer solely based on someone else's recommendation. Every person has a different response to a lawyer's style and personality. Therefore, you should further investigate the references that you get to best an attorney who suits you best.
Evaluate the lawyers in Your List
It would help if you evaluated the attorney from your list to narrow down to a few who best suits you. You can quickly assess several attorneys without meeting them in person through online resources. You can rely on sources such as the local state's bar website, the attorney's firm directory, and social media. The local state's bar website will give you information about their code of conduct, while social media will provide insight into other clients' opinions about the attorneys.
Interview Your Prospective attorneys
Once you have narrowed to at least three prospective attorneys, you should schedule a meeting with each to evaluate their suitability. Most attorneys are willing to schedule a meeting with their potential clients for about half an hour at no charge to meet them up and make a reasonable decision. Therefore, you should not worry about consultation fees during the initial interview.
There are several aspects that you should pay attention to while interviewing prospective attorneys. These aspects are as follows.
The Attorney's Personality
You should be attentive to your relationship with the attorney. Despite how well-recommended a lawyer is, you can fail to achieve the perfect chemistry if you are uncomfortable with the attorney. You should trust your instincts and choose an attorney who has a likable and compatible personality. Ensure that the attorney is experienced, accessible, and can maintain a personal rapport.
Ensure that the Attorney is Prompt and Easy to Communicate
Ask all your prospective attorneys how to contact them and evaluate how long it takes before responding to your queries. Remember, the court only allows a short timeline to challenge an asset forfeiture, hence hiring an asset forfeiture attorney who can promptly respond to your questions.
Unfortunately, most complaint logs indicate that most attorneys are not good communicators. Therefore, you need to be careful with this aspect or have your case delayed beyond the recommended timeline. A reasonable attorney should utilize different communication means such as phone, emails, and social media avenues besides one-to-one appointments.
There is nothing more aggravating than a client leaving a case on an attorney's hand only to go for weeks and months without any contacts. You would want an attorney who is willing to work hard and achieve the best results within the shortest time possible.
Look for an Attorney Who Can Work with You
Of course, lawyers are a prime source of legal information and assistance, but their rates can range between $150 to $450 an hour. If you have to pay such an amount for the legal services that you need, you can quickly end up emptying your account. That's why you should find an attorney who is willing to help you gain knowledge about your situation rather than deal with the problem all alone at a higher fee. Choosing such an attorney will significantly help recover your forfeited asset at a reasonable price.
Understand the Civil Forfeiture Defense
You and your attorney should devise a way to defend yourself from potential asset forfeiture. In that case, you have to employ relevant legal defenses that would help you challenge the asset forfeiture. Remember, if the forfeiture is under California laws, you have thirty days to challenge the forfeiture and ninety days to challenge it if you are prosecuted under federal regulations.
Your attorney should either fight the criminal activity connected to the asset forfeiture or disassociate your property with the illegal activity to prevent the asset forfeiture. If your attorney decides to fight the criminal activity related to your property, they should use typical defenses that suit the case. If the attorney chooses to disassociate your property from your alleged illegal activity, they should consider several aspects. These aspects are as follows.
Whether you Owned the Property
There are chances that you might be involved in asset forfeiture, whereas you do not own the property that intends to be forfeited. This situation is common when you co-own a property with another person, possibly a business premises. If you are in such a situation, you have to disapprove of your property ownership by providing relevant documents that show your co-ownership.
Once you prove that several people own the property, the court will have to drop the asset forfeiture process as long as the other owners were not involved in the criminal activity linked to the property. Remember, you need to provide beyond a reasonable doubt that the property is not solely yours.
Prove that the Property was Lawfully Owned
If the property at risk of forfeiture is considered to be acquired through criminal activities, you should prove that it was legally owned as your defense. There are several ways that you can use to verify that the property was legally acquired. This includes:
- Providing a warranty deed that shows the property's previous owner and a brief description of the property. The document also indicates that the previous owner granted you ownership of the property by signing the warranty deed.
- Providing a quitclaim which proves ownership, although it shows that the current owner has rights to certain parts of the property
- Providing a copy of the recorder's office document that publicly show ownership of a property to a particular party
Innocent Owner Defense
You can use the innocent owner defense to prove that you are innocent of the crime, meaning that your property should not be forfeited. You have the burden of proving that you are innocent by a preponderance of the evidence. You can use this defense to demonstrate that you didn't know about any illegal activity or had not consented to unlawful activity.
Find an Asset Forfeiture Attorney Near Me
If the government is trying to make you forfeit your property, it is essential to seek legal advice as early as possible. There are crucial deadlines you must observe, and failing to respond promptly might limit your ability to react and take appropriate steps in your defense. At Asset Forfeiture Attorney, we are prepared to offer the best legal aid to anyone with your impending asset forfeiture in California and throughout the United States. Call us today at 888-571-5590 for a free and thorough evaluation of your case.