Virginia Civil Forfeiture

You’ve been arrested and charged with a crime, and to add insult to injury, the police took your stuff and won’t give it back – what do you do now??

The Constitutions of the United States and Virginia protect your property from being taken by the government without due process of law. That means that the police have to go through the court process to be able to keep your property, whether it’s cash, a car or truck, cell phones, computers, or anything else that they take. The Code of Virginia describes what the police can take, Va. Code Sec. 19.2-386.15 et seq. It also describes how the court process works, Va. Code Sec. 19.2-386.1 et seq.

The laws of Virginia allow law enforcement to seize money, property, and vehicles allegedly connected with terrorism (19.2-386.15); prostitution (19.2-386.16); transporting stolen property (19.2-386.16); money laundering (19.2-386.19); illegal gambling (19.2-386.30); exploitation of children (19.2-386.31, 19.2-386.32); and other offenses. But probably the most used category of forfeitures are those relating to drug crimes and crimes involving firearms (19.2-386.22, 19.2-386.27, 19.2-386.28, 19.2-386.29).

However, Virginia's powers are not unlimited. The Supreme Court of the United States has said that civil forfeitures are, at least in part, punishment against the criminal. Austin v. United States, 509 U.S. 602 (1993). Because it is partly a type of punishment, a civil forfeiture cannot be “excessive,” or it would violate United States Constitution, which applies to Virginia too. Timbs v. Indiana, No. 17-1091, (S. Ct., Feb. 20, 2019). This area of the law is constantly changing, as the government tries to seize citizens’ property when they’re accused of crimes, and their lawyers try to fight back to limit the government’s power. It is important that you hire a lawyer who is knowledgeable in this area of the law, and who is committed to fighting to protect your property rights against overzealous prosecutors and law enforcement agents.

If the police find “large” amounts of cash when they’re investigating certain types of crimes, they are able to take that cash too. This most often happens when they are investigating drug crimes, because the police think that “large” amounts of cash are an indication of dealing drugs, or doing some kind of other illegal business. Even as little as a couple hundred dollars can be considered a “large” amount of cash. If police suspect that you’ve been putting money from illegal activities into your bank account, then they can ask the bank to put a freeze on your account as well.

If the police and the prosecutor want to keep the cash or other things they took, then they have to file what is called a “forfeiture” case. It is a civil case where the prosecutor sues you and the money that they took. It’s not a criminal case, so you do not have a right to a court-appointed lawyer, and not every criminal defense lawyer will handle civil forfeitures, either. If you don’t tell your lawyer that you got the civil forfeiture paperwork, your lawyer may never know that the process is happening. It’s very important that you keep copies of all court papers that are delivered to your house, and that you show them to your lawyer. It’s also important that you talk to a lawyer who is experienced in handling both criminal charges and civil forfeiture cases, so that your rights and your property will be protected in both cases.

To get the court process started, the prosecutor has to file paperwork in court, and has to have the paperwork delivered to you, which is also called “serving” the papers on you. The papers that the prosecutor files in court is called an “information,” but it may also be titled Notice of Forfeiture (19.2-386.1). You have less than a month to respond to the papers from the time that they are served, so it is very important that you take them to a lawyer as soon as you get them! The paperwork might be delivered to you in person, or might be taped to the door of your last known address, like the address that you had when you got arrested. That can be good enough for the court to decide that you’ve had plenty of time to respond to the case, even if you’ve moved and never actually got the papers. Make sure the court has your current address so that you get any letters or important papers that they might want to send you. It’s also important to speak to a lawyer who is familiar with civil asset forfeiture cases as soon as possible so that your property rights are protected.

You get your money or other property back by fighting the case in court! Make sure you show up to all court dates if you want to get your stuff back. If you ignore the case, then the judge will just let the prosecutor keep the property. But when you show up to fight the case, the prosecutor has to prove to the court by clear and convincing evidence that the money or other property were used in, or earned by, some sort of illegal activity (19.2-386.10). This is called the burden of proof that the prosecutor has. They don’t have to show as much evidence to prove their case as they would in a criminal case, but they do have to be more convincing than somebody would in a regular lawsuit.

Sometimes it can be really hard for the prosecutor to prove that the stuff they took was connected to illegal activity, so they will wait until your criminal case is over before trying to get a court order to keep the property that they took. Even if the prosecutor can prove that the money or property was connected to something illegal, he or she may be willing to settle the case with you by splitting the money or property, if possible. A civil forfeiture lawyer can help you by speeding up the process to get some or all of your money back. Just because the prosecutor wants to wait to decide whether to give your money back does not mean that you have to wait to fight your case. You should discuss with your lawyer whether you should wait to fight the case, or whether it would be better to fight to get your stuff back right away.

If you weren’t charged in any criminal case, and the police don’t suspect that you were involved in any way, then you also have a right to get your property back. The laws set out specific exceptions to the forfeitures (19.2-386.8). Even if you’re not charged with a crime or suspected of criminal activity, you should still contact a lawyer to help you decide the best way to get your property back. Sometimes your lawyer can contact the police or the prosecutor directly, and convince them to agree to give the property back if they can show that you were not involved in the criminal activity. But in other cases, you might need to go to court and convince the judge that you weren’t connected to the criminal activity and that you are the rightful and innocent owner of the property. Whether you think you’re suspected of a crime or not, you should talk to a lawyer to help you decide the best way to protect your property rights in court.

A civil forfeiture lawyer can help you get some or all of your money back by fighting for you in court and negotiating with the prosecutor. The rules for these civil cases are very different from criminal cases, so it is important that you choose a lawyer who is familiar with these rules. A civil forfeiture lawyer can request documents from the prosecutor, issue interrogatories to the prosecutor that require police officers to provide written answers to questions under oath, and even conduct in-person interviews or depositions of the police officers involved in your case. Sometimes this information helps to convince the prosecutor that the money or property was not connected to anything illegal and that he or she should give it back, or it could even get information that can help you in your criminal case.

Your civil forfeiture lawyer will advise you that requesting this information from the prosecutor means that the prosecutor can request information from you. Any information that a prosecutor gets from you in the civil case can be used against you in a criminal case. But your civil forfeiture lawyer will know how to protect your rights through this process, and make sure that your criminal case is protected while you fight to get your property back. You may have to give some information or answer some questions, but you still have the constitutional right not to answer questions about things that might incriminate you.

Depending on what was seized by police, your lawyer may charge an hourly rate, a flat fee, or a contingent fee, or a combination of those types of fees. A contingent fee is where the lawyer gets paid out of the amount of money that she is able to get back from the police for you. This might be a good option, depending on the amount of money that was taken by the police, how likely the lawyer thinks it is that you’ll be able to get the money back, and how much work the lawyer thinks it will take to get the money back. You should talk to your lawyer about what kind of fee makes the most sense in your particular case.

If the police have taken any property from you, it is important that you contact a knowledgeable and experienced civil asset forfeiture lawyer right away. Your lawyer will help you defend against any criminal charges, and also fight to protect your property rights and keep what is rightfully yours.