What is Forfeiture?

Whether in the Phoenix area, or anywhere in Arizona, per A.R.S. §13-4301 through A.R.S. §13-4315, “Forfeiture” involves a seizure of property by a peace officer coupled with an assertion by the seizing agency, or by an attorney for the State, that the property is subject to forfeiture. In general, the Court can attempt to seize any property which is the instrumentality of a crime, or related to the instrumentality of crimes. In addition, they can seize assets which were purchased with proceeds from an instrumentality of a crime (i.e., houses, cars, watches, etc.). They do this in an attempt to “recapture” the assets.

Per A.R.S. §13-4305, Officers are allowed to seize assets in one of several ways: by process issued pursuant to the Rules of Civil Procedure or by way of search warrant; during the execution of criminal search warrants; or seizure without Court process if the seizure of property is incident to an arrest, or the property subject to seizure for forfeiture has been the subject of a prior judgement in favor of the State or any other State or the Federal Government in a forfeiture proceeding; or the Police Officer has probable cause to believe that the property is subject to forfeiture. Many times the Officer can proceed under the theory that there is no likely source for the property other than the conduct giving rise to forfeiture.

When forfeiture occurs, the State is bound under A.R.S. §13-4207 to give a “Notice of Pending Forfeiture”, the State’s attorney then is bound to begin a “Commencement of Proceedings” under A.R.S. §13-4308 within sixty (60) days after the property was seized. If the State fails to initiate the forfeiture within the sixty (60) days, then the property shall be released to the owner upon request.

Per A.R.S. §13-4310, “Judicial Forfeiture Proceedings” can begin with the State asking for a Restraining Order or Injunction preventing the owner from disposing of the property. If the property was seized for forfeiture without a prior judicial determination of probable cause, then a Hearing can be scheduled upon application filed by the owner within fifteen (15) days after the Notice for Seizure for Forfeiture or actual knowledge of it (whichever is earlier). Notice of the Hearing must be served upon the Attorney for the State at least five (5) working days before the Hearing is held.

BEWARE: Any conviction for a criminal proceeding (including a plea of No Contest) shall preclude the Defendant from subsequently denying the essential allegations of the criminal offense of which he was convicted in any forfeiture proceeding.

Possible Defenses for Forfeiture

Pursuant to A.R.S. §13-4304 entitled “Property Subject to Forfeiture; Exemptions, several defenses apply. For example, no “common carrier” vehicle can be forfeited unless the owner’s had knowledge of its use in a criminal enterprise. This prevents UPS or Fed Ex trucks from being confiscated. In addition, no private vehicle may be forfeited if the actual owner did not know that the Defendant was utilizing the vehicle for criminal activity. Also, they cannot forfeit a vehicle regarding transportation of drugs for sale if the weight of the drugs did not exceed the statutory “threshold” amounts defined in A.R.S. §13-3401. Those amounts are nine (9) grams of methamphetamine; nine (9) grams of cocaine in powder form; three quarters (3/4) grams of cocaine in rock form; one (1) gram of heroine; one half (2) meter of LSD in liquid form; fifty (50) dosage units (or blotters) of LSD; two (2) pounds of marijuana; or four (4) grams or fifty (50) ml of PCP; and the crime was not committed for financial gain.

In addition, they cannot forfeit the owner’s property if the owner acquired the interest before or during the conduct giving rise to the forfeiture; and he did not empower any other person whose act gave rise to the forfeiture and he was not married to any such person (or if married, he held it as separate property); and he did not know and could have reasonably known of the act or that it was likely to occur. In addition, no owner has to have their property forfeited if they acquired interest after the conduct giving rise to the forfeiture; and he is a bonafide purchaser for value not knowingly taking part in an illegal transaction, and he was at all times before and after the purchase, but before the filing of the Notice of Forfeiture, reasonably without notice of the act giving rise to the forfeiture and reasonably without cause to believe that the property was subject to forfeiture.

Defenses to Forfeiture

The defenses to Forfeiture are quite complex, and require a law firm of Phoenix Attorneys who know the “ins and outs” of the civil forfeiture proceedings. A private office consultation is the best way to determine the defenses in each individual case.