Breaking Down Forfeiture Proceedings in Virginia
Depending on your perspective, civil forfeiture, which is covered in Section 18.2-46.3 of the Virginia Code, may be the most essential or most oppressive law enforcement tool in the state. Essentially, this provision allows law enforcement to seize and sell any property related to criminal activity, such as a bank account associated with money laundering, a yacht bought with drug money, or a car used in a DUI. Forfeiture defenders claim the money raised reduces taxes. Forfeiture opponents decry the practice as policing for profit.
Since forfeiture proceedings aren’t criminal proceedings, most constitutional protections don’t apply. As a result, most procedural defenses are unavailable. Furthermore, as outlined below, the burden of proof is lower in these proceedings. As a result, the substantive defense of a lack of evidence is usually unavailable as well. Nevertheless, a well-prepared and dedicated Leesburg criminal defense lawyer often successfully resolves even the most complex forfeiture matter.
As mentioned, most Constitutional protections don’t apply in forfeiture proceedings. The Fifth Amendment’s takings clause is one of the rare exceptions. This provision states that the government cannot take private property without paying just compensation. The Fifth Amendment also contains a due process of law clause, which was applied to the states in the Fourteenth Amendment.
Due process begins with the filing of a forfeiture notice. Prosecutors must file this civil action in the county where the property is located or in the county of the owner’s residence. Usually, the state may serve notice via personal delivery or nail-and-mail (leaving a copy at the residence and sending a copy by regular mail) service.
When prosecutors file criminal cases, the initial court date is usually several months away. But when they file a notice of forfeiture, owners have less than thirty days to respond in writing. Therefore, if you receive such a notice, immediately contact a Leesburg criminal defense lawyer.
Sometimes, the notice blindsides the owner. For example, if prosecutors believe Ray used a bank account to launder money, the bank probably receives the forfeiture notice, even though it had no idea Ray had been arrested.
At a subsequent hearing, prosecutors must prove, by clear and convincing evidence, that the Commonwealth has the legal right to seize and sell the property at issue.
Clear and convincing evidence is a standard of proof between beyond a reasonable doubt (criminal court) and a preponderance of the evidence (civil court). Usually, C&C proof is the standard of evidence in juvenile court child custody cases, when the state tries to take children from their parents. The state may keep the property if it was earned by, or used in, criminal activity.
This requirement brings up one possible defense. The judge will probably throw the forfeiture proceeding out of court unless the state proves primary purpose (illegal activity or use). Alternatively, the judge could reduce the property’s value for forfeiture purposes.
Additionally, although the burden of proof is lower in forfeiture matters, the state must at least make a basic case and provide evidence to support its allegations. This evidence must be admissible under the law.
Any such possible defense usually allows a Leesburg criminal defense lawyer to settle the matter out of court, usually with a buyback agreement. Usually, if the defendant pays a few pennies on the dollar of the alleged forfeiture value, prosecutors drop the matter.
Work With a Strong-Willed Loudoun County Lawyer
There’s a big difference between an arrest and a conviction in criminal law. For a free consultation with an experienced criminal defense attorney in Leesburg, contact Simms Showers, LLP, Attorneys at Law. Convenient payment plans are available.