Under state or federal laws, the government may seize property obtained through a drug crime or used to perpetrate a drug crime. Asset forfeiture is the process by which an asset’s legal ownership is transferred to the government or another authority. Property may be held for an indeterminate period of time or auctioned off. Seized property may be returned to the owners if they successfully contest the forfeiture. If you are concerned about asset forfeiture in drug crime cases, you should consult Phoenix drug crime attorney James E. Novak.
Asset Forfeiture in Drug Crime CasesArizona can confiscate property related to a drug crime through application of asset forfeiture laws. Under Arizona Revised Statutes (A.R.S.) section 13-3413, items related to drugs or drug crime evidence that are subject to forfeiture include property, chemicals, books, materials, containers, vapor-releasing materials that include toxins, and vehicles to transport drugs. Proceeds that are traceable to certain crimes that were perpetrated for financial gain may also be seized. Proceeds can also be seized if traceable to a crime that’s chargeable or indictable under Arizona laws. If a drug crime occurred somewhere other than Arizona, but would be indictable or chargeable if it occurred in Arizona, proceeds traceable to it may be forfeited.
Proceeds and assets can be seized if a drug crime is punishable by imprisonment for over a year, involves prohibited drugs, or is perpetrated for financial gain. Additionally dangerous drugs, narcotics, prescription drugs, and peyote, which are seized in connection with certain violations, or that come into the possession of a law enforcement agency will be summarily forfeited.
When more than 10 pounds of marijuana or certain other drugs are seized, the police can keep 10 pounds of the marijuana or a pound of the other drugs for representation purposes as evidence. The rest may be destroyed. The law enforcement agency responsible for the seizure should provide written notice to the property owner at least 24 hours in advance of the destruction of the remaining marijuana. Photographs document the destruction and either the property owners or their lawyer may be present. When law enforcement seizes chemicals used to manufacture narcotics or dangerous drugs, the seizing agency may apply for an order permitting destruction or disposal of the substances by providing the judge with an affidavit stating that the substances present a particular danger to property or life due to their toxic nature and the agency lacks an adequate facility to safely store the chemicals.
Property that is exempt from being seized is set forth in Arizona Revised Statute section 13-4304. For instance, no property owner’s interest can be forfeited if the owner or interest holder shows he’s a bona fide purchaser for value not knowingly engaging in an illegal transaction.
Seizure of Property Subject to ForfeitureUnder A.R.S. section 13-4305, a peace officer may seize property subject to forfeiture in a few different ways. For instance, assets can be seized based on process issued under the Arizona rules of procedure such as a seizure warrant. Assets could also be seized without court process if the seizure is made incident to search or arrest. Assets could be seized without process if the property was the subject of a previous judgment in favor of the state or federal government in a forfeiture proceeding. It could also be seized without court process if a peace officer has probable cause to believe it is subject to forfeiture.
Probable CauseProbable cause for seizure must be established by clear and convincing evidence. There is a rebuttable presumption that any person’s assets are subject to forfeiture if the state can show: (1) actions giving rise to forfeiture happened, (2) you acquired the property during the period of actions giving rise to forfeiture or within a reasonable time after that period, (3) there’s no likely source for the assets other than the actions giving rise to forfeiture.
Defenses Against Asset ForfeiturePolice officers are supposed to provide a notice of pending forfeiture when assets are seized. The state should start forfeiture proceedings within 60 days of a seizure. It might be appropriate to contest the forfeiture during this the narrow window of time available within which to fight it. You may be able to argue that no crime was committed or that the connection between the crime and the asset was too weak for the government to show that it was used to commit or obtained through a drug crime. Alternatively, you may be able to show that the asset was exempt from forfeiture by statute.
Retain a Seasoned Phoenix AttorneyAsset forfeiture in drug crime cases presents an additional challenge. You should talk to experienced criminal defense lawyer James E. Novak. Mr. Novak has years of experience fighting drug crimes and related charges in Phoenix, as well as Gilbert, Scottsdale, Tempe, Chandler, Mesa, and Maricopa County. Contact him at (480) 413-1499 or complete our online form.