Defenses to Federal and State Asset Forfeiture
Asset forfeiture is where the police or a law enforcement unit confiscates assets or property that is alleged to have been used in a crime, or it is going to be used to commit one. The purpose of asset forfeiture is to interrupt criminal activities. However, the law still protects citizens from unlawful property confiscation.
Mostly, this form of crime prevention is used to make the accused bend to the will of the law enforcers. Anyone faced with property confiscation should, therefore, be willing to hire an attorney who is well versed the in such matters. Explained in this article are the various defenses that can be used in such a case.
Illegal Search and Confiscation of Property
A legal document must be provided before searching or confiscating any private property. The legal document is proof that the state is aware of the search and has authorized forfeiture. Such a document must be signed by a recognized judge, and he must be provided with enough evidence that links the property to illegal activity or crime.
The hired attorney must do a thorough investigation. If there is no connection between the seized property and the crime, the lawyer should be able to prove it and have the charges dropped. Also, if no legal papers were provided during the confiscation, then this could also serve as a reason for having the charges dropped.
Failure to Provide Notice within Sixty Days of the Seizure
It is a law under asset forfeiture that a notice of confiscation must be submitted within sixty days of the seizure itself. The purpose of this is to return the property owner ample time to file a claim and protect their money or assets. During this period, the defendant should make sure they hire an attorney who can work relentlessly to stop the property forfeiture.
If such notice was not provided, it can be used in court as a defense. Failure to provide such a notice is regarded as breaking the law, and the seized property should be returned to its owner.
Innocent Owner Defense
According to assetforfeituredefender.com, an attorney can use the innocent third party defense in a court of law. They prove to the judge that their client was not aware of their property being used to commit a crime, or that consent was not given for the illegal use of their assets. A lawyer, however, has to work hard to prove this. That means looking into all the holes that can be found in the charges and provide evidence to show the accused is in, no way, connected to the alleged crimes. If the attorney can be able to prove this, the property will be returned to the owner and all the charges dropped.
Unreasonable Delay Defense
There is a limited time when it comes to a government holding someone’s property without taking the case to court. When the delay is too long, it makes it impossible for the asset owner to fight for their property. At such a point, it is advisable for the accused to file a case themselves. They can then use the opportunity to challenge the delay, hence turning it into a good defense to have all the forfeiture charges dropped. An excellent attorney can use this argument to prove to the court that the accusers do not have enough evidence to link the seized assets to the alleged crime.
The law protects people from being left utterly helpless due to the seizure of property. It, therefore, means that the government cannot subject the accused to disproportional fines. Doing so would be regarded as breaking the law and violating the rights of the property owner. In case the owner of the forfeited assets is asked to pay an unreasonable fine, his or her lawyer can use this as a defense in a court of law. If the attorney brings out this point well, the charges can be dropped, and the seized property returned.
Statutory and Other Defenses
There are other defenses that can be used in court. For example, there are some bank accounts that are exempted from state or federal forfeiture. In case the government seizes assets from such an account, an attorney can bring the court’s attention to the nature of the matter and have the assets returned.
Another case that can be used as a defense is when the seized property is linked to a misdemeanor offense.
Although law approves all the discussed defenses, their success can only be determined by an attorney’s ability to prove them. It is, therefore, crucial for one to carefully choose a lawyer. One who is experienced in such matters is always the best choice. Another way of selecting an exemplary attorney is by getting referrals.
May 17, 2018
Spodek Law is a great firm. They are super pragmatic