When you have to deal with asset forfeiture, you may encounter several challenges, especially when you have not received prior notice of the action. The forfeiture procedures may also happen quickly, leaving you little room to negotiate or determine why the seizure and forfeiture of your property.
While the government uses asset forfeitures as a strategy for upholding the law and limiting a wrongdoer's liberty in retaining property, you have a right to challenge the process on valid grounds. For example, if you rightfully obtained the property in question, it is necessary to work with an asset forfeiture lawyer who will help fight the procedure.
Understanding Asset Forfeiture
Learning about asset forfeitures, who is eligible to undergo them, and the rationale behind these processes is an essential foundation that will help you avoid facing the consequences it brings. Usually, the state government is responsible for commencing asset forfeitures against you.
Once the government reasonably suspects you of obtaining property illegally or retaining items that facilitated unlawful activities, it has the mandate to take possession of the items for further use, based on statutory provisions.
Consequently, if the government issues an asset forfeiture order for your property, you will lose possession and control of the items. You may also not have a chance to recover the property, especially if there are hearings or sufficient evidence to prove your property's invalidity. Despite the established outcomes in most asset forfeiture cases, the government officials leading your matter must follow several procedures to promote a lawful forfeiture process. The instructions provided in various asset forfeiture scenarios also exist to ensure that you meet the criteria to undergo the process before losing your property in unsure circumstances.
Under the divisions of law in California, asset forfeitures also occur in two different main categories. Firstly, you may undergo a criminal forfeiture for engaging in illegal activities and obtaining property unlawfully. The second option is civil asset forfeiture. The process may begin on any suspicion of unprocedural activities that may include criminal actions leading to the improper acquisition of property or financial profits.
Before the government issues asset forfeiture orders, investigating officers will go over your case facts and develop an elaborate plan to conduct the property and seizure appropriately. Your case's circumstances also provide relevant directives on the type of items or property for the government to seize in the forfeiture.
Therefore, the different ways you can avoid forfeitures will depend on whether you undergo a criminal or civil procedure. Consulting a lawyer will be beneficial for your matter, as he or she can advise you on the defenses and actions to undertake when fighting the forfeiture process.
Asset Forfeiture in Criminal Cases
The government has the right to possess your items, money, or other property types, including animals, for acquiring them illegally or using the items to promote criminal activities. Several requirements must be fulfilled before a criminal asset forfeiture, which can work for your benefit by preventing arbitrary operations.
The essential requirements are that you must undergo a criminal trial and be guilty of the charged offenses before the forfeiture. Hence, a criminal asset forfeiture functions as part of the penalties issued during sentencing. Therefore, the prosecutor handling your case must prove that you are guilty of all criminal elements related to the unlawful acquiring or use of the property.
Some of the items you could lose during a criminal asset forfeiture include:
- Machines you used to manufacture counterfeit products
- Computers and other gadgets used in conducting online fraudulent crimes
- A vehicle used in moving stolen goods or transporting illegal products
- Items obtained from profits linked to criminal activities, including houses, cars, and boats
- Items used as weapons in assault or grievous bodily harm cases, including firearms
- Narcotics and paraphernalia related to using illegal drugs
For each of these items, the prosecutor and other government authorities should adhere to the various provisions that guide the asset forfeiture process. The main criminal engagements that attract forfeitures are:
Possession of Illegal Drugs
After an arrest for having illegal drugs like cocaine, heroin, or methamphetamine, you must undergo a criminal trial process that includes the prosecutor's statements and your criminal defense lawyer's defenses. The prosecutor should prove a direct link between the illegal activity that leads to the orders of forfeiture. After the judge finds you guilty despite the legal defenses, you should then face a conviction before the process begins. Some of the properties available for seizure include money within a maximum range of $40,000, airplanes, vehicles, and buildings.
As discussed, there are various procedures for the government to observe when undertaking the asset forfeiture. You can therefore alert your lawyer in case of any unprocedural operations. Also, the procedures are divided into various categories depending on the property you are likely to lose. They are:
The procedure applies to your personal property and monetary funds below $25,000. The government ought to give prior notice of a pending asset forfeiture that includes the description of items on target forfeiture. Moreover, guidelines on how you can challenge the seizure and property forfeiture should accompany the notice. You should also expect written case facts that state the cause of the property seizure and forfeiture.
Hence, if one or all the requirements are unfulfilled, your asset forfeiture lawyer can challenge the entire procedure on improper practices. Despite the allowance to file a petition, you should observe the thirty days availed to you. If you do not take action within this time, you will have forfeited your chance to seek justiciable means of avoiding the asset forfeiture.
If you receive a summary forfeiture order, it means that the government can possess your goods without following any procedures. The charges mainly apply in cases where there is sufficient evidence pointing to drug possession. Since the government does not have to observe processes, in this case, you will need an attorney present to help you understand each step taken to forfeit your property.
Engagement in Organized Crimes
You may also be found guilty of partaking in organized crimes that result in possessing illegal material. For example, suppose you obtained property from theft. In that case, the forfeiture aims at restoring the stolen items by returning them to the crime victim or handing them over to the federal government. However, if you genuinely believe that the goods in question were lawfully obtained, your lawyer can help you challenge the forfeiture.
A time limit also applies in this case-thirty days, to prevent the seizure and foreclosure. If your attorney succeeds, the court may suspend the forfeiture orders and provide alternative penalties instead.
Asset Forfeiture in Civil Cases
When an action for asset forfeiture in civil cases begins, you may receive a notice before the actual forfeiture. However, in most cases, the procedure will occur without your knowledge, meaning that you will be unprepared for the following activities. Moreover, it is essential to understand that the government officials directing the asset forfeiture do not have to prove your unlawful activities that led to the deprivation. In most cases, when the officials show probable cause to suspect you of illegal activities that caused the asset forfeiture, they will receive the approval to proceed.
Subsequently, it would help if you remain alert, especially when you know there may be reasonable grounds to suspect you of acquiring money or property unlawfully. Usually, the government should prove that the property in question is connected to a criminal operation, based on collected facts. For example, before forfeiting your money, the government officials must prove that you obtained the cash from activities prohibited under statutory provisions.
The strategy applied by the officials in showing the relation of your property in the illegal activities involves preponderance related to the evidence. The bulk of your proof refers to the magnitude and significance of the collected information. Thus, the standard measure using such a system imposes a lower requirement to provide persuasive evidence on the government officers, as long as it is sufficient.
While the required measure using the evidence's preponderance is a lower standard than the usual, it also gives your asset forfeiture lawyer a fair chance to fight the orders by disqualifying the government's evidential sources. Coupled with other strategies, providing counterarguments to discredit the evidence brought against you is a necessary process that will help you evade the asset forfeiture.
Useful Actions and Defenses to Apply in Avoiding a Civil Asset Forfeiture
When speaking to your lawyer, you may have a reasonable apprehension about a looming civil asset forfeiture order against you. Subsequently, he/she will give you directives on what to avoid and the legal defenses to use when the government initiates the procedures. Some of the pointers you can follow before the government officials compile an official notice to proceed with the asset forfeiture:
Avoid Drawing Attention to Yourself
When investigations begin, government officers are likely to pay more attention to your whereabouts and wait on an opportunity to stop and question you. Thus, you want to maintain a low profile and avoid engaging in activities that attract additional scrutiny. For example, it would help if you did not make large bank transactions that may prompt the government to fast track your case, fear of you transferring the money in question to another person.
Observe Statutory Provisions
You also need to follow all statutory provisions applicable in your area to avoid facing arrest or a separate investigation leading to different charges. Thus, we recommend following traffic regulations and other laws that prohibit you from certain activities, as they would be detrimental to your chances of avoiding the asset forfeiture.
For example, violating DUI laws will lead to officers stopping you on the highway. You are also likely to face arrest and detention in a police station until posting bail. In the meantime, the government may proceed with the asset forfeiture, primarily because you cannot stop the process while in jail.
Use Non-cash Payment Options
In case you need to travel on or before the asset forfeiture process begins, it helps to use liquid modes of payment. This way, you will remove the risk of officers apprehending you and taking any cash you may have on you. Moreover, moving around with large amounts of money is an easy way to draw attention to yourself. Consequently, someone may tip the government officials to initiate plans to stop you in transit and seize your money.
Sometimes, you may have doubts about using credit cards, online payment platforms, or debit cards to process your transactions when traveling. The doubts may arise from your fear of being traceable. However, you do not need to worry about this factor, especially if you are already sure of a pending asset forfeiture order issued against you.
In these cases, your primary goal is to ensure that the officials stop you for the process, you will have control over most of your funds, as most transactions cannot proceed without a PIN authorization. In the meantime, you can contact your lawyer to prepare for a line of action in preventing the asset forfeiture from proceeding.
Travel at Convenient Times and in Familiar Locations
Additionally, you can avoid facing asset forfeiture officers by traveling regularly, often during the day. When moving around at night, police officers are more vigilant and alert to suspicious-looking activities or people. You are, therefore, likely to meet officers who will question you along the way.
Similarly, driving or traveling in unfamiliar locations may lead you to interact with aggressive officers who demand too much information. In adverse cases, such officers may even proceed to conduct the asset forfeiture on the spot based on the 'probable cause' provisions that allow them to do so.
Fighting the Asset Procedure Process After it Begins
If the asset forfeiture has already begun, you will have to file for a petition to pave the way for proceedings challenging the asset forfeiture. The prominent cases that warrant a petition are government officers initiating the forfeiture procedure where you did not commit any crime.
Moreover, you have a right to also file for a petition where no crime occurred in the first place despite asset forfeiture orders. The petition case will help you bring your grievances to a judge. If successful, the judge will overrule the operation, meaning that you will have avoided the foreclosure. There are strict timelines that you must follow after choosing to file a petition. Usually, you have to act within twenty days of receiving the asset forfeiture orders.
The court will also require you to post a bond that secures the government's hold on your property until the petition concludes. If you receive a favorable petition outcome, you can reclaim the bond amount. However, if you lose the petition, the asset forfeiture will proceed with little chances of recovering your bond payment.
Defenses to Present in Your Petition
Alternatively, suppose there is reasonable suspicion of your indulgence in unlawful activities that resulted in the illegal acquisition of money and property. In that case, your lawyer may elect to present the following defenses:
You are Unaware of Any Wrongful Activities Related to Your Property
You might succeed in averting an asset forfeiture by stating that you did not know of any unlawful activities linked to your property. However, the defense is only available where you lack even background information on possible illegalities or unauthorized actions. Thus, you may face some liability and lose your property if you lent items to a person with a known criminal record.
For example, if you lent your laptop to a friend who has a past criminal conviction in computer fraud, the court will have probable cause to issue orders against you. The rationale behind these decisions is that you assume the risk of giving your property out to the past convicted felon, knowing he/she was guilty of an offense related to the property you gave out.
You Did not Commit any Offense
Moreover, you can rely on the defense, removing you from any action line linked to unlawful activities. Your asset forfeiture lawyer must work to source sufficient proof that removes liability from your engagements. Thus, you want to provide your bank statements, receipts, and other documents that prove your innocence in any suspected unlawful transactions that provided your property or funds.
Your Property is Unrelated to Criminal Operations
You may be guilty of specific illegalities, and you can still avoid asset forfeiture by proving that the property in question is unrelated to the allegations. Your lawyer can therefore compile original documents to show that you obtained your property lawfully.
Usually, these defenses and strategies depend on the circumstances of your case. As a result, your asset forfeiture lawyer should apply versatile solutions that help you avoid losing your property to the government.
Contact an Asset Forfeiture Lawyer Near Me
Often, people find themselves in difficult situations arising from sudden notices on the asset forfeiture of their property. While most cases have a direct outcome, you can fight and prevent the asset forfeiture from proceeding with an experienced lawyer's help. At the Asset Forfeiture Attorney, we have worked with many clients in California and across the country to prevent forfeitures. With our service, you can contest an unfair imposition of civil or criminal asset forfeitures for a positive result. Call the Asset Forfeiture Attorney at 888-571-5590.