Criminal Property Forfeitures

“Unfortunately, I think I can say that our civil asset forfeiture laws are being used in terribly unjust ways, and are depriving innocent citizens of their property with nothing that can be called due process. This is wrong and it must be stopped.”
—Rep. Henry Hyde (R-Ill.) Chairman, House Judiciary Committee

If you are arrested on a felony charge, such as drug possession or even DUI, it is possible that the police may seize your car or other property under the Colorado law. This is happening with greater frequency throughout the state. If you are facing charges that have also caused property to be seized or forfeited, turn to attorney H. Michael Steinberg at Steinberg Colorado Criminal Defense Law Firm.

With 42 years of experience and a focus on handling exclusively criminal law issues, attorney Steinberg can help you understand your rights and determine the best way in which to seek the reinstatement of your property. To learn more about forfeiture and property seizure, contact our office today.

Given the highly penalizing nature of a seizure and short timeliness, it is important that you have a lawyer that is prepared to quickly contest these state actions. It is crucial that you be prepared to fight each step in the seizure and forfeiture process. While the likelihood of success in the adversarial preliminary hearing may be low, it is possible to prevail. Also, it is a key hearing in fighting the forfeiture and a good tool for gaining evidence in the pending criminal case.

Under Colorado laws that govern the seizure of property, personal property may be seized at the time of a violation or arrest or subsequent to the violation. Whether delivered in person or by certified mail, the notice must state that a person entitled to notice may request an adversarial preliminary hearing after receiving such notice.

There are time constraints under which you must file a motion to request an adversarial preliminary hearing. Contact our firm today to get started on your case.

An adversarial preliminary hearing is a hearing in which you request that the court determine whether there was probable cause to proceed with the seizure of your property as a result of your arrest or felony charges. To request an adversarial preliminary hearing, the claimant must make the request in a timely manner. There are no formal requirements for the form of the request for an adversarial preliminary hearing. Attorney Steinberg can explain the request and how it may be advantageous to request a hearing as soon as possible.

As an alternative to fighting the forfeiture, your attorney may ask the seizing agency if you can buy back their property prior to the preliminary adversarial hearing. Another solution may be an agreed upon plea in the associated criminal case predicated on the return of the vehicle. You may able to obtain a reduced price for buying back the property by entering into early negotiations.

The goal in fighting a fofeiture and to prevent unfair forfeitures will include:

• Require a criminal conviction before property can be forfeited (except in special cases, such as if the person jumped bail and fled).
• Protect innocent owners by raising the government’s burden of proof before it can take property.
• Make sure the seized property was used in committing the crime or was the direct proceeds of a crime.
• Make sure the value of the property to be forfeited is proportional to the severity of the crime.
• The Denver police recently seized $18,000 from a man simply because he possessed a small amount of marijuana (a “petty offense” under Colorado law).

Legislative Intent: Policy of general assembly that every public nuisance shall be restrained, prevented, abated and perpetually enjoined. Proceedings are intended to be remedial and equitable in nature not punitive.

Basis for Forfeiture: Permits the forfeiture of any (or part of a) building, the ground upon which it is situated, all fixtures and contents, vehicles, currency, or any real property deemed to be a

Class 1 public nuisance (There are Class 1,2,3, 4–only Class 1 allows for forfeiture)

Class 1 Public Nuisance when property is used for, intended for use, or are proceeds traceable to : (16-13-303)

1. prostitution
2. gambling
3. manufacture, cultivation, growth, production, sale, storage or possession of a controlled substance or any other drug for which the possession is an offense under the laws of this state, or any imitation controlled substance (except possession of less than 8 ounces of marijuana)
4. theft by receiving
5. manufacture, sale, distribution of drug paraphernalia
6. prostitution of a child
7. sexual exploitation of a child
8. used in the commission of any felony
9. used in the commission of felony vehicular eluding
10. used in commission of hit and run with serious bodily injury or death
11. used in commission of drive-by crime

Property Title: Upon seizure (probable cause), all rights, title, and interest in seized property shall immediately vest in the State

Affirmative Defense: If owner proves by preponderance of evidence that the person took all reasonable steps to avoid, prevent, abate improper use of property (16-13-303 (5.2)

Burden of Proof: Plaintiff- Preponderance of evidence that possession of property is unlawful or that the owner of the property or interest therein was involved in, knew of the subject act, or reasonably should have known of the subject act.

Evidentiary Presumption: Rebuttable presumption of “substantial connection” between currency and the acts specified if: currency in the amount of $1,000 or more was seized at or close to the time of the act and current was seized, or if traces of controlled substances were discovered on the currency or if animal indicates the presence of the odor of a controlled substance on the currency.

No right to counsel (can’t claim ineffective assistance of counsel People v. Cobb, 944 P.2d 574 (Colo.App.1996)

1. Sheriff sells property-is reimbursed for costs of sale, maintenance
2. plaintiff for costs of forfeiture action
3. balance to seizing agency/agencies substantially involved with court order finding that proceeds can be used by seizing agency (either cash from sale or property in lieu of sale)
4. Any person who suffers bodily injury or property damage as a result of action deemed a nuisance if person petitions the court.

Proceeds received are not considered part of normal operating budget

Disposition of proceeds: (in this order)

1. to sheriff for reasonable fees and costs of sale;
2. payment of the balance due on any lien
3. 10% to general fund for appropriation to judicial department for payment of costs of proceeding
4. 10% to general fund for appropriation to the department of public safety for law enforcement purposes (including, but not limited to administration of the Department of Corrections DOC)
5. 1.5% to district attorney as fees
6. Balance
   1. seizing agency for costs of storage, maintenance, security and forfeiture of such action
   2. to the seizing agency (cash or property in lieu of sale)
   3. to any person who suffers bodily injury or property damage as a result of subject acts which resulted in forfeiture if person petitions the court.

Receipt of federally forfeited property: authorizes state law enforcement to receive proceeds from any property forfeited by the federal government pursuant to 21 U.S.C. 881(e). Such revenues shall be in addition to moneys appropriated to law enforcement by general assembly. (16-13-601)

Legislative Intent: Proceedings are remedial in nature and designed to benefit the public good by appropriating contraband property for use by law enforcement.

Basis for Forfeiture: Permits the forfeiture of vehicle, currency, fixtures and contents of building, personal property or contraband property which is used, intended for use, or represent proceeds traceable to:

1. Any unlawful manufacture, cultivation, growth, production, possession, transportation, carrying, concealing, processing, or distribution for sale of, or sale of any controlled substance, imitation controlled substance or drug paraphernalia (except possession of less than 8 ounces of marijuana)

Property Title: Upon seizure (probable cause), all rights, title, and interest in seized property shall immediately vest in the state

Affirmative Defense: Property owner must prove by preponderance of evidence that the person took all reasonable steps to prevent the property from becoming involved in subject act.

Burden of Proof: Plaintiff- Preponderance of evidence that possession of property is unlawful or that the owner of the property or interest therein was involved in, knew of the subject act, or reasonably should have known of the subject act.

Evidentiary Presumption: Rebuttable presumption of “substantial connection” between currency and the acts specified if: currency in the amount of $1,000 or more was seized at or close to the time of the act and current was seized, or if traces of controlled substances were discovered on the currency or if animal indicates the presence of the odor of a controlled substance on the currency.

To further discuss your vehicle seizure, drug charge or forfeiture questions, contact The Steinberg Colorado Criminal Defense Law Firm today.