The Florida Contraband Forfeiture Act is defined under Fla. Stat. 932.701. Florida does not have criminal forfeiture like many other states do. In Florida, the forfeiture process is civil in nature and as such the Florida Rules of Civil Procedure dictate the process. During the civil forfeiture process, law enforcement can seize your property if they can establish probable cause that a nexus exists between the article seized and the crime committed in violation of the contraband act.
Contraband Article
A contraband article is defined as:
- Any controlled substance.
- Gambling paraphernalia.
- Equipment used to violate beverage or tobacco laws.
- Motor fuel when the motor fuel tax has not been paid.
- Personal property used to commit a felony, including but not limited to any vessel, aircraft, item, object, tool, substance, device, weapon, machine, vehicle of any kind, money, securities, books, records, research, negotiable instruments, or currency.
- Real property used to commit a felony.
STAGE I – SEIZURE
Notice of Seizure
Within five working days from the date of the seizure the law enforcement agency must provide you with a notice of the seizure. You will have fifteen days from receiving this notice to request an adversarial preliminary hearing. The hearing must be held within ten days after you have requested it. Providing you with notice and an opportunity to be heard are both part of your constitutional due process rights.
Probable Cause Determination
A judge will have to determine if law enforcement has probable cause to seize your property. If you request an adversarial hearing, you and law enforcement will both have an opportunity to present evidence and arguments. If you do not request an adversarial hearing, within ten business days after seizure a court must issue an order determining whether there was probable cause or not. If the property being seized is real property, law enforcement will also have to file a lis pendens, which is a formal notice indicating there is pending legal action against said property.
STAGE II – FORFEITURE
Complaint and Publication
In order for the civil forfeiture process to proceed law enforcement will have to file a civil complaint within forty-five days after the seizure. You will have to be properly served with the complaint within one-hundred-and-twenty-days. Law enforcement is also obligated to publish legal notice for a specific period of time.
Response to Complaint vs Judgment
Typically, you will have twenty days from the date you were served the complaint to file a response. It is imperative you contact an experienced forfeiture attorney immediately to assess your case and prepare a response. If a response is not filed, law enforcement can seek a clerk’s default and eventually get a judgment issued against you.
Discovery
The next step in the litigation, after your response is filed is to start the discovery process. During this process depositions will be conducted, subpoenas will be issued and evidence will be shared by the State with the defense.
Settlement vs Jury Trial
Depending on the strength of your case a settlement might be plausible if not a jury trial will be conducted.
MISCELLANEOUS TOPICS
Liens
Typically, if the property seized is secured by a lien law enforcement will release the property or proceeds from the sale of the property to the lien holder.
Motor Vehicles or Vessels
Law enforcement will typically seize these articles and impound them, meaning they are physically stored at the law enforcement agency impound lot.
Cash
Any cash seized from your person or property that is deemed to be a contraband article will most likely be kept at the law enforcement agencies evidence room for safekeeping. You should be given a property receipt at the time of seizure documenting how much cash was seized from you.
Bank Accounts
Law enforcement will typically have a court issue a warrant to seize bank accounts. The warrants are served on the financial institution and your accounts will be frozen until the resolution of the forfeiture case.
Contact an Experienced Forfeiture Attorney
If you are facing criminal conviction along with a civil forfeiture having an experienced attorney who is knowledgeable with both processes is crucial. Attorney Castro has experience with civil forfeitures from her experience as a Florida State Trooper and Florida Assistant Attorney General. Call us at call 561-408-0369, fill out our online contact form or send an email to [email protected].