In Utah, the government has the right to take away your property that was used in a crime in a process called asset forfeiture.
For example, if you are charged with trafficking drugs, the vehicle you used to transport illegal substances can be taken away. In most outcomes, that vehicle is no longer yours. It’s the government’s.
If you have a good understanding of how the legal system works, you might think that in order for the government to keep your property, the owner of the property would have to be found guilty of the crime. That is true–most of the time.
There are ways the government can take away property without a conviction, and it has to do with the type of forfeiture used.
Your property can be taken away through one of three types of forfeiture — criminal, civil, and administrative.
Criminal forfeiture proceedings allow the government to take away property as a defendant’s punishment for committing a crime. The government brings criminal forfeiture proceedings against a person, the defendant. In criminal forfeiture, the government must secure a conviction before they can permanently retain the property taken through criminal forfeiture. The government must also prove that the property was the defendant’s and was used in the commission of a crime.
Civil forfeiture proceedings allow the government to take property that was derived from or used to commit an offense. Because these proceedings are brought against the property itself rather than a person, the government does not have to obtain a conviction to seize the property. Instead, the government simply has to prove that the property was linked to criminal activity. Civil forfeiture proceedings allow the government to take property more easily than in criminal forfeiture. For instance, the government can take property that belonged to deceased defendants or when no defendant can be identified.
Administrative forfeiture proceedings allow the government to take property without setting a single court date. Under this type of forfeiture, if the government starts a seizure and no one contests it, the forfeiture goes through. To successfully take someone’s property through administrative forfeiture, the government must provide notice and adhere to time limitations.
If you look at a court case involving civil forfeiture, it is often named differently. You usually see one name or organization v. another name or organization. However, in civil forfeiture cases, it’s a name or organization v. property.
Here are a few examples Brown, Bradshaw & Moffatt won: State v. $171,800.00, U.S. v. $303,581.82, and State v. One 1998 Acura.
It would be reasonable to assume it’s better for the government to be against your property (through a civil or administrative forfeiture proceeding) than against you (through a criminal forfeiture proceeding). After all, you aren’t personally liable. A piece of land or equipment is. While you may not necessarily go to prison in a civil or administrative forfeiture proceeding, it is much easier for the government to take your property in these types of proceedings.
Let’s say you own a farm where cannabis was growing illegally. You are arrested and charged with marijuana cultivation. If this case involves criminal forfeiture, your farm will belong to the government only if you are found guilty. Because the case is against a person, the government’s burden of proof is “beyond a reasonable doubt.”
If this case involves civil forfeiture the process is a little different. You won’t necessarily get convicted of a crime, but the government can still take away your property. The fact that the farm was used to grow marijuana still needs to be proven to the court. However, since the farm is a property, not a person, the standard of proof is a “preponderance of evidence.” This means, the government only has to show that the chance the crime was committed is more than 50 percent.
This is much easier to prove, and your farm can very well be taken away even if you are acquitted of all charges.
If the case involves administrative forfeiture, your farm could be taken away without setting a single court date. Under this type of forfeiture, if the government starts a seizure and no one contests it, the government gets to keep the property. As long as the government provides notice and adheres to time limitations, they can keep the property.
An administrative forfeiture is the easiest path for the government to take your property, even if you aren’t convicted of a crime.
After the government takes away your assets, the burden of proof is yours if you want to get your possessions back. This can be a difficult process to navigate, especially if you are not experienced in the law.
That is why it would be beneficial to hire an attorney, and the ones at Brown, Bradshaw & Moffat are really good at forfeitures. In fact, James C. Bradshaw just won a big case in which he helped an individual get land back that was taken through civil forfeiture.
If you are trying to get your property back, call (801) 532-5297 for a free consultation.
