As unfair as it may sound, the government can confiscate property under criminal forfeiture or civil forfeiture. Civil forfeiture is to seize property used in criminal activity, although charges have not been filed. When civil forfeiture is executed, the property owner loses all right, title and interest in the property to the government. Property that can be confiscated under these rules include:
- Proceeds gained as part of illegal activity
- Tools or instruments used to commit crime
Civil forfeiture is based upon the basic establishment of probable cause that the property was used to commit a crime. When such an action is brought against you for your property, the time to contest the forfeiture is limited. Property may be seized through execution of a search warrant, whether there are criminal charges or convictions, or not.
Since 1985, over $7 billion dollars in property has been forfeited to the federal government. State governments also seize property for cases, with Arizona being frequently and heavily criticized in the media for having very aggressive forfeiture laws.
Having an experienced Arizona forfeiture attorney on your side will possibly enable you to gain the return of your property. The risk involved includes the possibility of having to pay attorney fees for the government, in addition to other costs, should you lose your case.
Arizona Forfeiture Laws
Arizona laws regarding forfeiture cases, ARS 13-4301 to ARS 13-4315, list forfeiture as occurring when a law enforcement officer seizes property under the permission of a lawyer or agency of the state. Legal forfeiture is permitted when the property being seized has been used in a criminal act. The state requires forfeiture so the evidence can be examined by the court.
The court also can seize assets obtained using proceeds in abetting a crime. This is done to recapture assets lost to criminal actions by the owner.
When you find yourself involved in a forfeiture case, it is important that you immediately gain the assistance and guidance of a skilled Mesa criminal defense attorney. By having an experienced forfeiture case attorney on your side, you can ensure the best possible outcome for your case.
How Assets May Be Seized in Forfeiture
According to ARS 13-4305, there are a few measures by which a law enforcement officer can seize assets:
- With a legal search warrant
- Before execution of a warrant
- Without court process prior to court but upon an arrest
- When the property was a subject of a judgement decided in the favor of the state, any other state or the federal government
- By a law enforcement officer when there is cause to believe that the property seized will be involved in the case
Notice of Pending Forfeiture
In Arizona and under A.R.S 13-4207, when forfeiture cases are about to occur, the state must provide a notice of pending forfeiture to the owner. Once property is seized, the attorney for the state has 60 days to begin a commencement of proceedings, according to ARS §13-4308. If the state fails to properly forfeit within the time limitation of those 60 days, the owner of the property can gain release of the property by request.
A restraining order or injunction may be requested by the state, thereby starting a judicial proceeding under Arizona Revised Statute §13-4310. This will prevent the owner of the property from disposing of it.
If applicable, the owner of the property can file for a hearing based upon seizure without a previous judicial determination of probable cause. This must be done within 15 days after the release of notice for seizure or when he becomes aware of the seizure, whichever is earlier. The attorney for the state must be served a notice for the hearing no less than five days before the hearing’s scheduled date.
Defenses in Forfeiture Cases
Forfeiture cases may be defended through several common means, as the examples below indicate:
- A vehicle cannot be seized unless the owner knew it was being used for criminal acts, according to the common carrier vehicle defense under A.R.S. §13-4304
- A vehicle cannot be seized after being used for drug transport for sale if the drug was not being transported for money and the drug weight is not above the following, according to substance transported by the vehicle:
- Nine grams of methamphetamine or powdered cocaine
- ¾ grams of rock cocaine
- A single gram of heroin
- Half-liter of liquid LSD
- 50 dose units of LSD
- Two pounds of marijuana
- Four grams or 50 ml of PCP
Forfeiture cases in Arizona can be very tricky. These issues require an experienced and skillful criminal defense attorney aware of the nuances of forfeiture cases. Having practiced criminal law in Arizona for over 25 years, David Michael Cantor is a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization.
To speak with an attorney who can help you with your forfeiture case, call DM Cantor now at (602) 307-0808 to schedule a free case review.