Fairfax Criminal Defense Attorney Explains: Asset Forfeiture in Virginia
In addition to the penalties associated with a criminal conviction, the Commonwealth also has another powerful weapon that can be utilized against you - asset forfeiture. This occurs when the government seizes your property (real or personal, including money) and attempts to establish a forfeiture. That is to say, they seek prove that you forfeit your rights and interests in the property because you have used the property in substantial connection with specific crimes in the Commonwealth. Fairfax County Police and the Fairfax Commonwealth's Attorney's Office actively pursue forfeiture of citizens assets throughout the County.
What does this mean? Suppose a person drives to an agreed upon location and sells drugs to what turns out to be an undercover officer. The Commonwealth can seize not only the illegal drugs, but can also seize your cash and your vehicle. After the seizure, the government can file an Information alleging the property is forfeited because of your use of that property to facilitate or accomplish a particular crime. If certain criminal activity is ongoing at a residence, that too can be the subject of seizure and forfeiture. Essentially, any property (real or personal) that is alleged to be connected with or utilized for the purpose of criminality is subject to seizure by the government. Once the property is adjudicated forfeited by a Court, you no longer have an ownership or interest in the property.
There are specific statutes that dictate what crimes are subject to asset forfeiture. Not every criminal offense permits the seizure of property even if the property was used in connection with criminal conduct. For example, possession of cocaine is not covered, but possession with intent to distribute or actual distribution is covered. If you are not found guilty of an offense that operates as the basis for the Commonwealth's forfeiture action, the property is returnable upon a timely demand.
At trial for the forfeiture of your property, the standard of proof is "clear and convincing evidence." To give context, in a typical civil trial the standard of proof is "preponderance of the evidence" which simply means more likely than not or 50.1%. In a criminal case, the standard of proof is "beyond a reasonable doubt" which is the highest standard in the law. Clear and convincing evidence falls somewhere in between. This burden lies on the Commonwealth. This means the Commonwealth must prove by clear and convincing evidence that the property they seized is subject to forfeiture because it was used in substantial connection with an enumerated criminal act.
After the Commonwealth presents its case, the defendant may present evidence, the standard being a preponderance of the evidence, that he is exempt from the forfeiture. There are specific instances when a person or entity is exempt from a forfeiture of property.
Remember, even if you are not exempt from a forfeiture, you can still contest the matter and present evidence to defeat the Commonwealth's assertion. And, as in a criminal prosecution, the Commonwealth's evidence may be insufficient on its own, meaning they are unable to meet their burden.
If you are served with an Information, you must act quickly. An Answer must be given within a relatively short time period or you may be subject to a Default Judgment. This could mean the property is forfeited simply because you did not respond within the period mandated by statute. In Virginia, you are not entitled to court appointed counsel for a civil asset forfeiture proceeding. This means you must hire an attorney or represent yourself.
If you have received a Notice of Forfeiture or an Information from the Fairfax Commonwealth's Attorney's Office, or any other prosecutor's office, seeking to forfeit (or seize and keep) your personal or real property, contact us today. We will provide a free, in-person, consultation to discuss your options. An individual facing asset forfeiture should contact a skilled Fairfax Criminal Defense Lawyer today.