You can lose your property to the government even if you have not been convicted. Asset forfeiture is a complicated process where police can take your possessions if they suspect the property of being used in a crime. Understanding your rights and how civil and criminal forfeiture differ is very important.

If you are dealing with asset forfeiture, speak to the Asset Forfeiture Attorney team for a consultation. We have a team of experts in California and around the country ready to defend your property and your rights. Here is a look at the answers to the most frequently asked questions on asset forfeiture.

What Is the Distinction Between Civil and Criminal Forfeiture?

The government can use civil or criminal forfeiture actions, and each has distinct laws that regulate them and their implications. The main difference between the two is in the target of the action and the legal standard of proof required.

Civil forfeiture is a process where your property is the target of the legal action. This forfeiture is an "in rem" action, meaning "against the thing.” The government in this action will allege that your property was involved in criminal activity even if you are not convicted of a crime. For example, should there be cash with drugs in your possession, the government could claim that the cash is “drug money” and can be taken from you.

A criminal conviction is not required for civil forfeiture to proceed against your assets. Usually, civil forfeiture cases require the government to show by a preponderance of the evidence that the property is involved in a crime. It is enough for them to show that your property is most likely involved in the crime, which is easier than the proof needed in criminal cases. Because the standard is lower, law enforcement agencies often use civil forfeiture.

Alternatively, criminal forfeiture is an action taken against you as a person during your criminal case. You must be found guilty of a crime before criminal forfeiture occurs. The forfeiture becomes part of the legal consequences following your conviction, rather than a separate penalty. In these situations, the government must show that your property was involved in the offense without any doubt. As a result, you have stronger property rights during criminal trials than you do in civil forfeiture.

In short, civil forfeiture happens when your property is targeted, while criminal forfeiture only happens after you are convicted.

How Does Federal Forfeiture Differ from State Forfeiture?

Asset forfeiture becomes even more confusing because there are federal and state asset forfeiture laws, and each has its own set of agencies, rules, and levels of protection for your property.

The Drug Enforcement Administration (DEA), Federal Bureau of Investigation (FBI), and Department of Homeland Security (DHS) are some of the agencies that take on federal forfeiture actions. These cases usually concern substantial amounts of money, criminal networks that operate in several states, or crimes committed in more than one state. The Department of Justice's equitable sharing program is central to federal forfeiture. Through this program, federal agencies can take over assets and give some money to local and state police who helped in the investigation. As a result, local police want to join federal operations, since they can still receive money from federal forfeiture, even if their state’s rules are stricter.

On the other hand, each state sets its forfeiture laws, and there is a lot of variation from one state to another. In certain states, the forfeiture rules have been updated to give you more protection than the federal laws. California has become a model for these types of changes.

According to the asset forfeiture law in California, most cash and property worth less than $40,000 can only be seized after a criminal conviction. Because of this, you are better protected than you would be under federal law, because with federal law, civil forfeiture could occur even if no crime is proven. For this reason, the state where your property was taken away can significantly influence your rights and the procedures needed to reclaim your property.

Even if a state has tougher forfeiture rules, local agencies may collaborate with federal agencies to use equitable sharing to bypass those state-level protections.

My Property Was Seized, But I Was Not Charged. What Makes This Possible?

Many people find that the authorities can seize their property, even without them being accused of a crime, through civil asset forfeiture. This concept baffles many people because it goes against the idea that someone is innocent until proven otherwise.

When civil forfeiture is used, your property is considered the defendant in a court case. The government takes your assets to court, stating that they are involved in or helped commit a crime. Should a large sum of cash be found in your car, the government could claim it is “drug money” and take away your funds, even if you are not charged with a crime. As a result, law enforcement can take your assets and keep them if they suspect you are linked to a crime.

This is very different from how criminal cases are handled, where you are assumed not guilty until proven guilty by overwhelming evidence. In civil forfeiture, you are generally responsible for demonstrating that your property is not linked to a crime. Then you need to show that you are an "innocent owner" unaware of its alleged misuse or did not consent. When the burden of proof is placed on your property, assets can be forfeited even if you have not been found guilty of a crime. Even though it helps law enforcement, it could leave you in a difficult position since your assets will be seized without a conviction.

What Is the Procedure to Follow When Challenging Forfeiture?

If your property is taken, challenging the forfeiture can feel daunting, but there is a roadmap to help you. If you miss a deadline, the process could result in the automatic seizure of your property, so you must act immediately.

When the government seizes your property, the concerned government agency will send you a Notice of Seizure and Intent to Forfeit. The government communicates through this document that it plans to keep your assets permanently. The document will contain:

  • Information on the property

  • The alleged criminal activity linked to the property

  • The critical deadlines you have to follow

When you receive the notice, you must check its deadlines. The deadlines cannot be changed and are very short, usually only lasting 30 to 35 days after the notice is sent. This short deadline means you have little time to respond. If you miss it, the government will take your property without further objection. So, being aware of and meeting these deadlines is crucial.

When you have identified the deadlines, the next vital step is to file a Verified Claim with the seizing agency. This document asserts your ownership and disagrees with the seizure process, and you must sign it under oath. This declaration informs the government of your claim to the property and is required before they can initiate legal proceedings. The court has no reason to review the case if this claim is not made.

After your claim is verified, you must prepare for a civil lawsuit. When you file, it forces the government to bring a civil court case to demonstrate its right to the property. By doing this, the process shifts from being managed by the seizing agency to being overseen by a court. In the lawsuit, the government will explain why it seized your property and link it to criminal activity. On the other hand, you will have the opportunity to show that you are not guilty and should have your property back. There may be steps involved, like discovery and filing motions, and the case may even go to trial, revealing how complex it is to challenge a forfeiture.

What Is the Legal Meaning of the "Innocent Owner"Defense?

When facing an asset forfeiture case, you could use the "innocent owner" defense. With this defense, you can argue that you were not part of any crime and had no idea of the criminal activity that resulted in the forfeiture. This defense admits that some property owners may not be responsible for the offenses linked to their assets.

For instance, you could lend your car to a friend, and they go on to use it for an illegal drug deal, and you have no idea. If the police take your car because it was involved in the crime, your main option would be the innocent owner defense. You would stress that you did not know your friend was planning to use your property for a crime, so your property should not be confiscated. In civil forfeiture cases, this defense is key since your property might be taken even if you did not commit a crime.

This defense, however, is not easy to apply. Usually, you must prove in court that you did not commit the crime. Therefore, you should prove that you did not know about the illegal activity, or if you did, that you took reasonable steps to stop it. For example, you could:

  • Present evidence that you did not know about the misuse

  • Explain how you took reasonable measures to prevent it

  • Indicate that you got the property legally and not from illegal sources

To be considered an innocent owner, you must present substantial evidence.

What Types of Property Can the Government Seize?

Since asset forfeiture gives the government broad authority, it is important to know the types of property that could be taken. If the government claims your property as either money or assets gained illegally, or a tool used in a crime, it can be taken away and forfeited.

Some of the common types of seized property include:

  • Cash — Offenders often focus on stealing cash and bank accounts. If law enforcement suspects that some of your money is involved in crime, they can take it from your account or seize it if it is found during a home search. The main point is the direct link that the government tries to establish between the cash and any suspected unlawful gains.

  • Vehicles — Cars, trucks, motorcycles, and boats can also be seized. This may be the case if they are linked to moving illegal substances, facilitating criminal meetings, or as a means to escape after a crime. If your car is involved in a crime by someone else, you could still face problems even if you were not driving.

  • Real estate — You can lose your home, business property, or land through forfeiture. This is likely to happen if the crime is connected to the property, like having a drug lab on the site, or if the property was purchased with illegal money. Sometimes, the government can seize someone’s property, no matter how much it is worth compared to their crime.

Besides these, other items including jewellery, high-end electronics, artwork, luxury goods, and business equipment can also be seized. If the authorities believe these were used in connection with a crime, they can seize them. If the government believes that a tangible or intangible asset is tied to a crime, it may be considered forfeitable, which could put a large part of what you own at risk.

What Are the Benefits of Having an Attorney for an Asset Forfeiture Case?

Handling an asset forfeiture case alone is difficult, so having an experienced lawyer with you is important. The regulations for forfeiture are unique and not the same as those found in regular civil or criminal law. Without understanding the procedures, you could miss necessary steps or deadlines, possibly forfeiting your property.

Working with an attorney gives you a fair chance. Government prosecutors and agents will be your opponents, making these cases challenging. Attorneys understand the forfeiture laws and are prepared with considerable resources to secure your property. With an attorney, you have an expert to guide you and ensure the government’s strong legal team does not ignore your rights. They understand the strategies prosecutors use and can challenge them effectively.

Besides, an attorney helps ensure the burden of proof is met. Under civil forfeiture, it is often up to you to show that you or your property were not involved in any crime. An attorney understands which evidence is needed to prove that you are entitled to the property, that you are not involved in any crime, or that the property is not involved in any crime. They can assist you in:

  • Gathering the essential documents

  • Obtaining witness statements

  • Presenting your case to the judge

Moreover, an attorney can broker a deal to settle the case. Often, these cases are settled before they need to go to court for a lengthy and costly trial. An experienced lawyer can negotiate with government representatives and help you reclaim your property, in whole or in part. Because they know how the government works, they can support you in enjoying the best results, which could save you a lot of time, stress, and money.

Find an Asset Forfeiture Attorney Near Me

The government uses asset forfeiture regularly, leaving individuals bewildered and dispossessed of their rightful property even if they have not been convicted of a crime. You have noticed that these laws are detailed and different, from the distinction between civil and criminal forfeiture to the distinctions between federal and state laws and the difficulty of the innocent owner defense. The process imposes intense legal pressure and involves complex procedural requirements. When your assets are seized, you need expert legal help because the situation is dire.

If you want quick help and to safeguard your property in California and any other state, contact Asset Forfeiture Attorney today at 888-571-5590 for detailed advice.