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Criminal Forfeiture

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Notice: Please note that if you have been charged with a criminal offense, you will likely benefit from consulting a criminal defense lawyer. You may find this article on "How To Hire A Criminal Defense Lawyer" to be helpful.

What Is Criminal Forfeiture?

Criminal forfeiture is the taking of your property by the state, due to its relationship to criminal activity. Forfeiture laws vary from state to state, and can be broader or narrower depending upon the crime committed and the laws of your jurisdiciton. However, typically , criminal forfeiture may be sought when the property is used in the commission of a criminal offense, or was obtained through criminal activity.

When Does Criminal Forfeiture Occur?

Criminal forfeiture occurs when, after the owner is convicted of a crime, and where forfeiture is allowed under the laws of the prosecuting jurisdiction, it is demonstrated that the property has a sufficient relationship to the criminal activity to justify depriving the owner of his property rights. For example, your state may have a law that gives the judge the right to forfeit your car, if you are convicted of drunk driving or of soliciting a prostitute. The prosecutor's office may be able to seek forfeiture of your property -- even your business or home -- if you are convicted of certain offenses, such as drug trafficking or racketeering.

If you are facing a charge involving possible criminal forfeiture, you can include the issue of forfeiture (both criminal and civil) in any plea negotiations that may occur with the prosecutor.

What Are My Rights?

Your rights, and the procedure involved in criminal forfeiture, will vary significantly from state to state, and even depending upon the law you are accused of breaking. If you are facing criminal forfeiture of your property, you may be given notice in advance of your prosecution. Sometimes, criminal forfeiture proceedings will be commenced at the time of, or after conviction.

The manner in which forfeiture will be handled, and whether the proceedings are "criminal" or "civil" in nature, will vary significantly from state to state. It is usually advisable to seek assistance from an attorney, if you are facing any type of forfeiture action.

What Is "Civil Forfeiture"?

Civil forfeiture is similar in many ways to criminal forfeiture. However, while criminal forfeiture means to impose an additional penalty upon the owner of property for his wrongful conduct, a civil forfeiture action is brought against the property itself. (You will see funny case names arising from civil forfeiture cases, such as "United States v 336 Willow Street".) For criminal forfeiture to result, the owner of the property must be convicted of a crime, whereas civil forfeiture can occur even if the owner is acquitted. In some cases, the property owner won't even be charged with a crime. Civil forfeiture actions must demonstrate "beyond a reasonable doubt" that the property has a sufficient relationship to illegal activity to justify its forfeiture under the law. Criminal cases are tried under the much higher standard of, "Guilty beyond a reasonable doubt."