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Local governments generate revenue through forfeitures

November 14, 2011

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The Florida Contraband Forfeiture Act allows local governments to seize and seek the forfeiture of private property it they can prove that items taken are contraband articles. Contraband articles include controlled substances or drug paraphernalia possessed in contravention of the Florida drug laws, motor vehicles, real property, monies or currencies, or other personal items. Attorneys representing the local governments are responsible for filing the forfeiture actions. These lawyers must be able to prove that the items being forfeited must have been used as an instrumentality in the commission of; or in aiding or abetting in the commission of a felony; or were a acquired as a result of a criminal act. Anyone who is the subject of a forfeiture actions is entitled to retain a Miami lawyer to represent their interests and defend the action. Failure to timely respond to a forfeiture action will cause someone to lose their interest in the property.

Asset forfeiture cases routinely arise from criminal arrests, however, these cases are civil and not criminal in nature. While the forfeiture laws seem unfair, the Florida Contraband Forfeiture Acts provides many safeguards which help protect an individual's right to their property. Personal property may be seized at the time of the arrest. The government lawyers must notify the person whose property was seized of their intent to forfeit the property within five days of the seizure. The notice must be sent by certified mail. Once the individual has received the notice by certified mail, they are entitled to request an adversarial preliminary hearing, as long as the request is made within 15 days of receipt of the notice. Once a request for an adversarial preliminary hearing is made, the seizing agency must ensure that the hearing is held within 10 days. If the hearing is not held within 10 days, and the agency is at fault, the interest in the property will be returned to the owner. It should be noted that the arresting agency may attempt to hold the property as evidence of the crime. If this is the cases, the issue is litigated in criminal court.

If the seizing agency cannot prove at the preliminary hearing that the items seized were contraband under Florida law, the items must be returned. If the property holder loses the preliminary hearing, all hope is not lost, as the case may proceed to trial at a later date when a jury would determine whether or not the seized property was contraband under the letter of the law. Many of the local governments or police agencies will try to settle the cases early on as they have an incentive to close out the cases as soon as possible. A lot of this depends on the property they have seized. In general, the agencies will agree to return 40% of any money taken to avoid protracted lawsuits. When it comes to automobiles, boats or aircraft, an agency's position will be determined on whether or not they have some use for the property. Individuals who have had personal property seized can often purchase their property back at an agreed amount.

Many cash strapped jurisdictions in and around South Florida have upped their involvement in asset forfeitures to increase their revenues. For example, Boynton Beach, Florida has been seeking the forfeiture of automobiles and cash to pay their bills. Lawyers from the American Civil Liberties Union think that the Florida forfeiture laws may be unconstitutional, but have yet to challenge the law. Either way, individuals who have property seized do not have to rollover and see their assets taken from them. To fight the system, a qualified attorney experienced in defending forfeiture actions should be hired as the seizing agency has a lawyer working for them.

Confiscations after Crimes Pays Off for Boynton Beach, The Palm Beach, November 14, 2011.
Categories: Asset Forfeitures
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