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If you have been charged with certain crimes, and your assets have been siezed including your bank accounts you need to act very quickly.  As an experienced  Criminal Defense Attorney with more than 14 years of experience I know the ins and outs of the system. 

 

WHEN CAN BANK ACCOUNTS BE SEIZED?   I want to state at the outset that seizure and forfeiture are two different things that are often mixed up.  Seizure happens when the government takes control over your possession, including boats rv's cars money, bank accounts etc.  There is one set of proof standards for seizure and one set for forfeiture each with there own complexities.  Also you have Federal versus State laws and to make things even more confusing to people accused of crimes there is even what is referred to as equitable sharing.  Which means the prosecution can get around the more stringent State laws of California and give the forfeiture portions to the Federal Goverment even if the Federal Government has not taken the underlying case.  I will go into that further in my next blog post dealing with asset forfeiture more generally this blog deals with specifically bank accounts.

Bank accounts can be seized upon probable cause.  Usually there will be an affidavit and a warrant from a Law Enforcement official.

For Example a person is pulled over the officer is suspicious and calls a drug dog to the scene.  The dog hits on the trunk giving the officer probable cause.  The officer then pops the trunk and finds two pounds of meth.  Because this is such a large amount the officer calls in the Narcotic cops who believe that the person may be selling.  The police then get a warrant for the persons home and find bank records.  They get a warrant for the bank records signed by the Judge and seize the bank account because they believe there are drug profits going into the account I.E. large amounts of money being deposited. 

This account will often be subject to a Warrant and seized.  This is based upon the Probable Cause contained in the search and seizure Warrant.  Usually the Narcotics Officer will state he believes there is money luandering happening in the bank account based upon large amounts of cash being deposited. 

At this point your account is seized no money coming in or out of the account and it will stay that way until certain things happen.

In state court the prosecutor has one year to do a noticed asset forfeiture hearing.  There based upon clear and convincing evidence starndard the prosecutor must prove that the cash put into the account was from the proceeds of drug sales.  If the prosecution is only  alleging one instance of Sales and there is evidence presented that you had just sold property resulting in you obtaining a large amount of cash then you could get the money back.

But remember the prosecutor has one year to bring the noticed action.  Many times they will wait to see if there is a conviction through plea bargaining in the case.  If there is a conviction in the underlying case then it will be much more difficult to get the money back if not impossible.  This is beause a conviction on the underlying case means the govt can keep the money.

So you must try to get the money back in the pendency of the case.  This may be difficult because the prosecutor has time to bring the forfeiture action 1 year. 

Some Attorneys will tell you to file for an injunction in Civil Court to get the money back.  However, you should definitely consult with an experienced Attorney before taking this action because you must have your ducks in a row and make sure you can show a legitimate source of the money before undertaking this aciton.

Some Attorneys believe that all cases will go to the Federal Government under Equitabe Sharing and that the State seizure of the money is only temporary because the state will give over all forfeiture cases to the Federal Government.  This is not true and many cases stay with the State Courts. 

Nothiing in this blog is meant to be Legal Advice as to your Specific Case you should defenitely consult with an experienced Attorney about the specifics of your case before taking action 559-441-1418.

 

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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