Forfeiture Defense in Florida

The following article is republished with permission from the Florida law firm of Woodward & Reizenstein. You can contact the author at Philip@miamicriminallaw.net:

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The forfeiture of assets, like the forfeiture of cash, forfeiture of cars, forfeiture of cells phones and other personal electronics is a powerful tool in the government's arsenal against a person they have arrested.

Both federal and state prosecutors employ forfeiture procedures, and the rules about getting your property back and emplying a successful forfeiture defense are different for each entity that seized your property.

State Forfeitures and Forfeiture Defense in Florida.
Typically, the police and prosecutors will seek forfeiture of cash, jewelry, cars, and electronics. In order to obtain a forfeiture of the property, the seizing agency must provide notice of the forfeiture. Sometimes they will give the person notice of the forfeiture at the scene of the arrest and other times they will send notice of the forfeiture in the mail.

Your rights to fight forfeiture and get your property back:
Once you receive notice of the forfeiture, you have twenty days to file a notice requesting an Adversarial Preliminary Hearing (APH). The form of your request for a hearing must be in writing, must identify the property and the seizing agency and the date of the seizure, and most importantly- must be sent by certified mail to the agency seeking forfeiture. Upon receipt, the agency must schedule a hearing in court before a judge within ten days.

At the APH the seizing agency bears the burden of showing probable cause for forfeiture: a nexus between the criminal conduct and the property. If the court finds no probable cause, the property will be returned. If the court finds probable cause, then the forfeiture case will continue. The seizing agency will file a lawsuit against the property seeking forfeiture. One defense to this forfeiture lawsuit would be an "innocent owner" defense.

FEDERAL FORFEITURES:
While the law regarding forfeiture in Federal Court is similar to the laws in the State of Florida, the procedure to fight the forfeiture is different.

The agency seeking forfeiture will send a notice of seizure which requires the forfeiture claimant to file a response within 30 days.

There are several options about how you can respond to a federal forfeiture. They include making an immediate offer of settlement, requesting an administrative review of the forfeiture, and requesting an immediate court case on the forfeiture. Many times we will request an administrative review of the forfeiture as it still allows for us to request the filing of a court case at any time.

One of the overriding principles of forfeiture asset seizure law is that the laws allowing for forfeiture asset seizure are "strictly construed" against the seizing agency. This means that if at any time during the forfeiture process the seizing agency fails to provide proper notice or misses a statutory deadline, the property will be ordered returned.

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