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Civil Forfeitures


What is a Civil Forfeiture?

Your car, your money, your boat, maybe even your house-if law enforcement claims that you have used your property to commit a crime, the prosecutor may ask a civil court in a Civil Forfeiture Action to declare that the property be forfeited to the State. And, if you profited from a crime and then bought property (say, an expensive car) with that cash, it's the same result-the State may file a civil lawsuit to try to take that property away from you. This process is called a Civil Forfeiture.

What Type of Property is Subject to Forfeiture in New Jersey?

New Jersey's Civil Forfeiture statute covers several classes of property:

  • property used (or meant to be used) to further a crime, such as a car used to transport cocaine;
  • property which forms an integral part of illegal activity, such as money that finances illegal gambling; and
  • the proceeds of illegal activity, such as cash from a drug deal or prostitution.

Generally, unless the property is by definition illegal to possess to begin with (illegal controlled dangerous substances, illegal firearms, illegal gambling devices, etc.) once the property has been seized, the State has 90 days to file a civil lawsuit explaining the reasons that the item is contraband, that is, how it is connected to a crime. The Civil Forfeiture complaint is generally brought in the name of the property. The caption might read, for example, State v. $4,000 and One 2011 Mercedes Benz. The State files a lawsuit just like any other civil litigant and has to serve this complaint on all persons known to have an ownership interest or claim on the property. Thus, in a Civil Forfeiture Action the State of New Jersey actually files a lawsuit against the property. The purpose of the lawsuit is to legally take permanent possession of the seized property. The property can be cash, a car, a house or virtually any type of physical property seized by law enforcement.

What is the Difference Between a Civil Forfeiture Action and a Criminal Action?

The simple answer to this question is that a Civil Forfeiture Action is handled in a civil court by a civil judge applying the rules and law applicable to civil cases. A Criminal Action is handled in a criminal court by a criminal judge applying the rules and law applicable to criminal cases.

In the typical case, the police arrest an individual and seize his property at the same time. He is charged with a crime and the police reports are sent to the Prosecutor's Office. Generally, one prosecutor pursues criminal charges before a Grand Jury in order to seek an indictment. Meanwhile, based on the same incident, another prosecutor generally prepares and files a civil lawsuit against the property. The two prosecutors will generally coordinate with each other so that both of them are aware of the status of the case. As you can see, one action is criminal and the other is civil, but the two are obviously connected.

Because the Civil Forfeiture Action and the Criminal Action are related, the defense attorney hired to represent the defendant on the criminal charges is often the same attorney who responds to the complaint. That lawyer will generally prepare and file an answer to the Civil Forfeiture complaint, stating the defendant's interest in the property (for example, the defendant might hold title to the car) and the basis on which he defends against the forfeiture (for example, the defendant's car is not sufficiently connected to illegal activity).

Strong Negotiation Skills are Critical in Defending a Civil Forfeiture Action.

Very frequently, the defense attorney negotiates with the prosecutor to see if both the criminal charges and the civil lawsuit can be settled. Strong negotiation skills as well as a keen understanding of both the civil courts and the criminal courts are required to accomplish a favorable settlement that resolves both cases.

If the attorney doesn't manage to dispose of both cases at once, problems can arise. For example, if the defendant is convicted of the crime without resolving the forfeiture action, the property is presumed to be contraband and the civil case becomes much more difficult to defend. And, even if the defendant is acquitted of the crime altogether, that does not stop the forfeiture action from going ahead. For these reasons, it is important to have an attorney who is knowledgeable about negotiating a resolution to both the criminal charges and the Civil Forfeiture case.

Can Civil Forfeiture Actions be Successfully Defended

Yes they can. Civil Forfeitures are not always straightforward. Property such as an automobile may be seized even when its owner has not been arrested. If, for example, a car dealer becomes suspicious when an individual buys an expensive vehicle with cash, that dealer might report the transaction to the police. Law enforcement may then investigate and discover that the owner has a long criminal record and no legitimate employment to account for the money-and file a Civil Forfeiture Action against the car.

Cases can also be complicated by the fact that the property may or may not have a sufficient relationship to criminal activity. What about a car that is driven to a stadium where the driver gets out and vandalizes the walls? Is there a causal connection between the car and the crime? An attorney may be able to successfully argue that the connection is too casual to warrant forfeiture.

Or, an innocent owner may be involved. Sometimes, a parent claims to be the real owner of a car, even if it is in the criminal defendant's name. Sometimes a defendant with a criminal record uses the name of a friend when registering a car he has purchased, hoping that if he is caught doing something illegal the police won't discover the deception and try to seize the car.

Civil forfeiture cases that aren't resolved can quickly become complicated, with civil discovery motions-interrogatories and depositions-demanded by the State. The sooner an attorney is involved to help you with a Civil Forfeiture case, the better your chances of a favorable outcome.

Keep in mind that nothing contained in this article should be considered legal advice The law is constantly changing and cases are often fact sensitive. If you have a specific legal issue or problem, consult an attorney. If you have been arrested for any criminal charge or if your property has been seized in New Jersey and you need professional advice, call the Law Offices of Joseph R. Donahue, LLC at (201) 574-7919 to set up a free case evaluation and consultation.

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