Asset Forfeiture Law

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My property got taken by Police and I want to get it back, NOW!

Asset forfeiture allows the government to legally take your illegal assets once you have been convicted (and sometimes not even convicted) of a crime; i.e. take your money from you and spend it themselves.  Asset forfeiture can occur after any crime in which one person makes some type of gain, however most asset forfeitures occur in drug and money crimes, like wire fraud and drug trafficking. Asset forfeiture does not only apply to money, the Government can also take real property, fixtures, and tangible and intangible personal property, including but not limited to currency, instruments, securities, or any other kind of privilege, interest, claim, or right. See O.C.G.A § 16-13-49 to read asset forfeiture statute.

 

In Georgia specifically, law enforcement can take the property of a person if they believe it to be connected with the crime. This means that they don’t necessarily need a conviction in order to confiscate the property, they can basically take all your money on a simple belief or probability.

 

Read what happened to Alda Gentile in Camden County, Georgia, via an article on Wabe.org:

“In 2012, Alda Gentile, her son and baby grandson had been traveling from Florida to New York when law enforcement stopped her and seized more than $11,500 in cash.

Gentile, who’d been working as a limo driver in New York, said she had wanted to scope out condos in Florida and took the cash with her. But after failing to find a place they liked at first, Gentile said she and her family decided to drive back home.

According to court documents, law enforcement stopped them across the Florida border in Camden County, Georgia, allegedly for speeding. Gentile said officers questioned why she had the money and asked if she was a drug dealer. Then law enforcement seized her cash, though she was not charged with a crime.

“I was so baffled at the whole thing, and I remember thinking that ‘You guys are not police officers – you’re just pirates with badges. That’s what you remind me of right now,’” Gentile said.

Attorneys for the officer who seized the cash said in court filings that there was probable cause from the alleged facts, including the amount of money being carried, the fact that Interstate-95 was a known drug corridor and that a drug dog had alerted them.

According to court records, Gentile got her money back a week later and eventually sued the police. The case was settled, according to her attorney.”

This is inexcusable, but this is what often happens in Georgia because of the very liberal asset forfeiture laws.

 

How Asset forfeiture works procedurally?

 

Although criminal asset forfeiture is tied to violations of a criminal code, criminal asset forfeiture is a civil proceeding in nature. It works just as other civil proceedings work.  After the government takes your property, the Government must file a civil forfeiture complaint against you, with notice. You then have 30 days to file an answer to the complaint. Once your answer has been filed, a hearing will be scheduled within 60 days.  It is important to timely file an answer to the complaint, because if not filed within the specified time period a default judgment will be issued against you in the State’s favor. Loveless v. State, 337 Ga. App. 250, 786 S.E.2d 899 (2016).

 

Not only is it important to timely file an answer, but it is also important that your answer is legally sufficicient. Your answer must include all relevant facts, for instance– you must specify why the asset is legally yours, how you procured the asset, affirmative defenses, and more. Under OCGA § 16–13–49 (o) (3) (D) (2014), the answer filed by an owner of property which asserts a claim against the property “must set forth: … [t]he date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property. …” Loveless v. State, 337 Ga. App. 250, 252, 786 S.E.2d 899, 901 (2016). If any of these facts are missing, you will lose your assets.

 

How to fight forfeiture?

 

At your hearing, you and your attorney will need to show the court proof that the asset in question was not associated with any illegal activity. The burden of proof is different in a civil proceeding than a criminal proceeding. Civilly the burden of proof is preponderance of evidence standard or probable cause, which means the State has to prove that more likely than not, the assets are associated with criminal activity.

 

Why chose Bixon Law?

 

We are a criminal defense only firm, however, we handle many asset forfeitures’ due to its crossover into the criminal section. Whether you have been charged with a crime or not, we can fight to keep what’s yours, YOURS! Don’t wait, give us a call today so we can timely file and answer to that Asset Forfeiture complaint!

 

 

 

 

 

 


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