Civil Forfeiture in Criminal Cases
Most people have strong feelings for and against controversial law enforcement practices, like civil forfeiture. Civil liberties advocates believe this practice is policing for profit and point to federal court decisions questioning it. Law enforcement officers justify the practice and point out that forfeiture funds the criminal justice system and keeps taxes lower. Whatever your opinion, the law is the law, and this law adversely affects people who haven’t been convicted of a crime.
To a Leesburg criminal defense lawyer, forfeiture proceedings are just another component in the long criminal justice process which often includes non-criminal elements, like forfeiture proceedings and drivers’ license revocation hearings. Effective lawyers stand up for defendants in all these proceedings.
Property Subject to Forfeiture
If officers believe any property is related to criminal activity, they may seize it under Virginia’s forfeiture law. This property includes:
- Real estate, and
- Personal effects.
For example, if officers believe Sam used drug money to purchase firearms, they may seize those firearms. Technically, the law also allows officers to seize implements of crime, such as the vehicle Pau was driving when he was arrested for DUI. However, officers rarely take these steps, and the statute of limitations quickly eliminates their right to take such actions.
Since it’s a civil proceeding, the burden of proof in a forfeiture proceeding is only a preponderance of the evidence (more likely than not). That’s a much lower standard of evidence than beyond a reasonable doubt, which is the standard of proof at a criminal trial.
Let’s go back to the DUI example. In criminal court. Prosecutors must establish that Paul was intoxicated while he was behind the wheel. In a forfeiture proceeding, prosecutors must only prove Paul was driving that car at the time of his arrest.
Limits on Forfeiture
The Supreme Court recently held that forfeiture cannot restrict a defendant’s Sixth Amendment right to hire counsel of his/her choice.
Normally, this limit applies in large drug cases and other such situations. Authorities often seize hundreds of thousands of dollars in cash and property in such arrests. But the limit could also apply in much smaller cases, and in indirect ways. For example, if officers seize Paul’s car and as a result he loses his job, a Leesburg criminal defense lawyer could argue that the seizure was illegal under the Sixth Amendment.
Resolving Forfeiture Matters
The low burden of proof and broad forfeiture law makes it difficult to successfully resolve these matters. Furthermore, according to an informal presumption in the law, possession is nine-tenths of the law. If a law enforcement agency has possession of property, it’s very difficult to get it back.
Therefore, attorneys usually negotiate buybacks. Paul might agree to pay much less than the ascribed value to get his car out of the impound lot. An attorney could also challenge the forfeiture law head on, but this strategy is risky. Usually, although many defendants balk at the idea of buying their own property back from law enforcement agencies, a bird in the hand is worth two in the bush.
Work With a Zealous 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. We routinely handle matters throughout Northern Virginia.