Civil Forfeiture Part 3: How California Laws Differ From Federal Laws

This is the third essay in a series devoted to civil forfeiture issues in the US and California. You can read an introductory explanation of the law, theory, and legal process and a summary of the changes in the law due to Constitutional challenges in these two articles.

This article will focus on how California’s forfeiture laws are different from federal laws, the process required in California to seize someone’s property, and the different burden of proof required to win a forfeiture case.

California’s Seizure and Forfeiture Process

Most forfeitures take place pursuant to California’s Uniform Controlled Substances Act (the Act). Under the Act, controlled substances, property, cash, and other valuable items can be seized and eventually forfeited if these items were used in connection with the sale or trade of controlled substances. Using this process, money can be seized if it:
• • was intended to be exchanged for an illegal substance
• • is directly traceable to an exchange for an illegal substance
• • was used, or intended to be used, to facilitate the manufacture or sale of an illegal substance.

After the assets are seized, the Attorney General or District Attorney can file a petition for forfeiture in the country where the defendant was charged with a crime or arrested. Under certain circumstances, forfeiture does not require a conviction of a crime.

If you have a legal interest in the seized property, you may be able to file a motion requesting the return of the property. The person seeking to retrieve the property is called the “claimant.”

To establish standing in a forfeiture case, you must be able to prove you had a legal interest in the property before the seizure and before the forfeiture petition was filed. In other words, the person from whom the property was seized cannot sell it to you after the seizure and let you attempt to get it back. If you are a defendant in a criminal case, you could file a motion to return your property on the ground that no probable cause exists to believe the property is forfeitable.

Differing Burdens of Proof

Under the federal rules, if the federal government can show probable cause to believe the property is legally subject to forfeiture the burden then shifts to the claimant (property owner) to prove the property is not forfeitable. California has established a different burden of proof in forfeiture cases

In California, the State bears the burden of proving the seized property is forfeitable. Also, in California, the value of the seized property affects the type of burden of proof the State must meet.

If the seized property is valued at less than $40,000, the criminal burden of proof applies. In other words, the State has the burden to show beyond a reasonable doubt that the property meets the criteria for forfeiture. Also, the judgment of forfeiture must be based upon a criminal conviction for an offense that occurred within five years of the seizure or notice of the petition for forfeiture.

If the seized property is valued greater than $40,000, a civil burden of proof applies. The State must prove by clear and convincing evidence that the property is forfeitable. No criminal conviction is required.

The Principle Purpose of California Forfeiture Actions

The California statutes specifically state that the main objective of civil forfeiture is law enforcement. In other words, forfeiture is intended to act as a penalty for a drug violation. Property seizure and forfeiture have no dollar limits and are not contingent upon the conviction of any crime. As a result, California’s civil forfeiture statutes are simply another way to impose a fine.

Because forfeiture constitutes a fine, recent court decisions, including from the United States Supreme Court, have begun to recognize that civil forfeiture laws may violate the constitutional prohibition against excessive fines, depending on how they are applied. The United States Constitution prohibits the State from imposing fines that are excessive compared to the behavior being punished.

Forfeiture laws also have other inherent problems. In addition to the lower burden of proof and the fact that property may be forfeited even absent a criminal conviction, governmental entities that seize property are financially motivated to use forfeiture actions. Under the Act, law enforcement agencies may receive up to 65% of the forfeited assets.

Civil forfeiture laws therefore incentivize law enforcement agencies to prioritize forfeiture actions over criminal actions because they don’t need evidence of a crime, and the assets seized may be disproportionate to the alleged violations. A claimant might have to pay more to litigate against a forfeiture petition than the property is worth.

Forfeiture actions carry little downsides, but huge potential benefits for the enforcing agency.

Complicated Laws Require Experienced Civil Law Attorneys

At Evans Kingsbury LLP we are civil law attorneys with decades of appellate experience including civil forfeiture law challenges. If your property has been seized as part of a civil forfeiture action, call us today at (707) 596-6090 or fill out our easy contact form to discuss your case.