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How to Avoid Civil Forfeiture

In the first two articles, we discussed what Georgia civil forfeiture is and who forfeiture affects and how to fight it. In this final blog article of the series, we’re going to discuss how to avoid it.

As we said in or previous articles, in Georgia, civil forfeiture is the legal process by which law enforcement agencies can confiscate personal property including cash, automobiles, homes, and land when the property is used in the furtherance of criminal activity. We also said anyone can be subject to forfeiture. But, it can be avoided.

The main way to avoid forfeiture is to make sure that you or your property is not used in the furtherance of criminal activity. More specifically, to avoid forfeiture, make sure that your property is not connected to any drug activity. With the government actively fighting the “war on drugs” any time property is even remotely connected to drugs it will be subject to forfeiture.

The next way to avoid forfeiture is to be careful who you loan your property to, who you allow in your house, and who you hang around. For example, if you loan your car to a friend who uses it go buy drugs, or uses it to transport drugs, your car could then be subject to forfeiture.  Another example, you allow a cousin to stay at your house because they are having some hard times. Unknown to you, while you are at work, your cousin is selling drugs out of your house. Not only could your house possibly be subject to forfeiture, but also cash found inside your house and your car that you allow your cousin to use. You have to be very careful whom you allow in your home and whom you allow to borrow your property.

Although you have defenses available to you, and it is possible to regain your property by navigating the legal process, it is not easy so it is best to avoid it if at all possible. Local, state, and federal government agencies all make it pretty hard to get your property back. The rules concerning forfeiture are not simple to comprehend, and the overall process is not an easy one. Most people will not be able to navigate the process on their own.

One reason for the complicated process could be that government agencies who confiscate property through forfeiture get to do what they want with the property.  They can sell it and keep the proceeds or even use it for their agency.  State agencies that participate in forfeitures are supposed to report what and how much they seize to the state, but most do not comply with the requirement.

Finally, as we stated in our previous article, forfeiture can affect anyone. If you are facing forfeiture contact an attorney right away because you do not have a lot of time to regain your property. In fact, you may call The Boddie Law Firm, LLC at (404) 287-2393 with your questions about forfeiture, particularly if you or someone you know is facing a forfeiture proceeding. We will provide you with a full consultation.

(c) 2012. The Boddie Law Firm. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated and subject to editing, removal or deletion at the discretion of the owner.

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Who Does Civil Forfeiture Effect and How Do I Fight It?

Last week, we talked about what civil forfeiture was. This week, we discuss who it effects and how you can fight back.

Forfeiture can affect anyone. Law enforcement agencies can confiscate personal property including cash, automobiles, homes, and land when they say that the property has been used in furthering of a criminal activity. So what happens if you loan your property to someone and you had no idea that they were going to use it in criminal activity? Or what happens if you rent out your house and your tenants use it to grow marijuana in the basement? The property is still subject to forfeiture but you have a defense available to you.

The defense is called “innocent owner’s defense.” To be successful in the innocent owner’s defense, there are some things that the “innocent” owner must prove. First they have to show are proof that they are not accountable for the conduct, did not agree to it, and did not know or should have known that the property would be used in criminal activity. Next an innocent owner can not be in a position where they profit or benefit from the proceeds of the criminal conduct. These are just a couple of the things an innocent owner will have to prove. Forfeiture is a very intricate process.

Whether through the innocent owner’s defense or just by fighting to get your property back because you feel it was wrongly taken, forfeiture is a very time sensitive process. You must respond within 30 days of receiving notice that your property is subject to forfeiture. Not only must you respond within 30 days, but your response has to be very specific and follow a specific procedure.

The response has to be sent by certified mail with return receipt requested or statutory overnight delivery. The response has to be signed by the owner or interest holder of the property under the penalty of perjury; additionally, the response has to be sent to the law enforcement agency that seized the property and the District Attorney who would be presiding over the forfeiture. Finally, the response has to have details about your interest in the property along with supporting details.

Again, forfeiture can affect anyone. If you are facing forfeiture, contact an attorney right away because you do not have a lot of time to regain your property. In fact, please feel free to contact The Boddie Law Firm, LLC (404) 287-2393 with your questions about forfeiture, particularly if you or someone you know is facing a forfeiture proceeding. We will provide you with a full consultation.

(c) 2012. The Boddie Law Firm. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated and subject to editing, removal or deletion at the discretion of the owner.

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What is Forfeiture in Georgia?

There are several different types of forfeiture, but the focus of this article will be civil forfeiture in Georgia. In Georgia, civil forfeiture is the legal process by which law enforcement agencies can confiscate personal property including cash, automobiles, homes and land when the property is used in the furtherance of criminal activity.

Civil forfeiture proceedings are separate from the criminal proceedings, which may have initialized them in the first place. That said, it is important to note that the outcome of the criminal proceeding against a person has no direct impact on the forfeiture proceeding against the property. A person can be found not guilty of the criminal charge from which the forfeiture arises, but still lose their property to forfeiture.

Civil forfeiture proceedings are against the property itself, not the person. So, it is possible you will see case titles like “United States v. 123 Main St” or “United States v. $300,000”. The theory behind forfeiture is that the property has done wrong and committed a crime and, once the property has committed a crime, the government can take it. It may sound a little silly, but when it comes to forfeiture, the property is the “criminal” and needs to be punished. So, while it sounds odd, forfeiture is a long standing legal concept that has lasted for centuries. In fact, it comes from Roman and medieval English law.

Moreover, unlike criminal proceedings in which the burden of proof for the state is “guilty beyond a reasonable doubt,” in civil forfeiture proceedings the burden of proof shifts from the state to the property owner. The property owner then has to prove that their property was not used in furtherance of criminal activity or assert some other defense.

In many instances the forfeiture process is used to fight the “war on drugs.” A lot of forfeitures arise out of cases involving narcotics or the suspicion of transporting or dealing narcotics. An example of a case where forfeiture arises is when police find marijuana growing in the basement of a house. Afterwards, the state, county, city, or other agency with jurisdiction would be able to bring forfeiture proceedings against the house. And if successful, they will be able to assume possession of the house and sell it or do whatever else they see fit with the house.

Another example where forfeiture can arise would be if you loaned your car to a friend who used it to deliver drugs. The state could initiate forfeiture proceedings alleging that the car had been used in violation of drug laws.

But, just because the state or other local agencies initiate forfeiture proceedings does not mean that the property is automatically lost. Check back next week for more about who forfeiture affects and what defenses and other options are available when faced with forfeiture. If you would like learn the legal basis of Georgia forfeiture, check out GA Annotated Code, Section 16-13-49.

If you or someone you know has questions about your legal rights in a Georgia civil forfeiture case, please call The Boddie Law Firm at 404-287-2393.

(c) 2012. The Boddie Law Firm. All rights reserved. The information contained in this post is subject to our Disclaimer. Comments to this blog are moderated and subject to editing, removal or deletion at the discretion of the owner.

 

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