In Michigan, forfeiture is a civil process by which the State attempts to permanently seize property that is related to a criminal enterprise. Any property that was used to facilitate a crime or was purchased with the proceeds of a crime may be subject to forfeiture. Some of the government’s favorite items to seize are cash, video game systems, computers, cars, or even entire homes.
As an additional punishment
A forfeiture action can be brought on its own; however, because the property subject to forfeiture is property that is related to a crime, a forfeiture almost always follows criminal charges for that underlying crime. By far the most common source of forfeitures are drug crimes, such as marijuana or cocaine. This crime is also commonly found alongside charges of maintaining a drug house.
The criminal charges and the forfeiture action are entirely separate proceedings with different schedules and different standards. This can create a complicated and confusing situation, especially for someone already dealing with the possible threat of jail time for the underlying offense. Having a skilled attorney working for you is essential to navigating this difficult situation.
A Stacked Deck
When a person is charged with the crime, the prosecutor has the burden of proving that that person is guilty beyond a reasonable doubt. During a forfeiture, the prosecutor only has the burden of proving that there was a substantial connection between the property and the crime by a preponderance of the evidence. Because this is a fairly low burden, the police sometimes try to seize things with a very weak connection to the case.
For example, what if a person stored drugs in their home, transported those drugs to a buyer in their car, and used some of the money to buy a Playstation? You might find that the drug team claims there is a substantial connection between the crime of selling drugs and their home, car, Playstation, and the remaining cash. All of those items may end up being part of a forfeiture case.
It gets worse. If the property that has been seized is cash, then the burden is no longer on the prosecution. The burden is on you to prove that the cash was not substantially connected to a crime. In addition, you must prove it by clear and convincing evidence, a higher burden than the prosecutor has for property that is not cash.
A Ticking Clock
When the government seizes property for forfeiture, the window of opportunity to try and get that property back is very small. Once notice of the intended forfeiture is received, the owner has only 20 days to contest it or the property is forfeited by default. Contesting the forfeiture must be done in writing, and it requires posting a bond of 10% of the value of the property, with a minimum amount of $250.00 and a maximum amount of $5,000.00. 20 days is not a very long time to give written notice and come up with enough money to post a bond, especially for someone who is also facing criminal charges.
Get Your Stuff Back
Because time is so short and the challenges are so great, it is imperative that you consult with an attorney as soon as possible. If your property is being forfeited, or if you suspect that your property may be subject to forfeiture, call us at 616-773-2945 to see what options are available to you.