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If you have been charged with certain crimes in the State of California your property may be seized and forfeitud under both the State of California Laws and the Federal Law.

This article deals with the State of California Law which is different from the Federal Law.  The Federal law of fofeiture is much more in the governments favor.  Many Attorneys think that all forfeiture is handed over to the Federal Government and the States only termporarily hold the seized assets.  This is not true. However, under the so called "equitable sharing" statutes the States can do an in run around the more stringent state laws even if the Federal Government has not taken the underlying case. For example you  will be tried in state court but the federal government handles part of the case for asset forfeiture purposes.   This is legal and does happen but not always. 

THE ITEMS SEIZED MUST be "directly traceable" to the illegality.  For example you are charged with a drug crime and there is unusual transaction in your bank account, or you drive an expensive vehicle and do not have source of income.  This may give the police probable cause to seize the assets and later do a forfeiture in State Court. 

Now this article is not meant to be legal advice as to your spefific case circumstances.  You should defenitely consult with an Attorney. Call our office I have represented many people under the same or similiar circumstances and can help you through this complex area of the law.

After seizing you property meaning taking your property in order to permantly take your property or have you forfeit the property you must be given notice of a hearing and an oppurtunity to show the legitimate source of the funds, or in the case of property that you obtained the property through legitimate means. 

The burden of proof is clear and convincing evidence not the proof beyond a reasonable doubt standard. And to seize your property the government needs is a Warrant.

 

In order to forfeit some assets under the California Law such as boats planes etc. you need a conviction or a plea. This is of course after you are served with notice of intent to seize assets, and then you file a response. At this point to seize certain assets the prosecution must get a conviction through plea or trial.

It should be noted that the timelines in asset forfeiture cases are very stringent you recieve notice of the hearing and must respond with form MC -220 and give notice to the District Attorney if you do not do this you could have waived your rights to a hearing.

Also if the government has seized less then $25,0000.  then there must be a plea or conviction.  However, if the government has taken over $25,000.00 then it needs a conviction or to prove in a hearing by clear and convincing evidence that the money was directly traceable to illegal activity of the crime. 

The state law of California are again very much more stringent than the Federal Law.  Which favors the government much more. 

This article was not meant to be exhaustive.  This is a very complex area of the law.  consult with an Attorney.  We would be glad to help you. 

559-441-1418.

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Gerald Schwab, Jr.

CRIMINAL DEFENSE ATTORNEY & DUI ATTORNEY SERVING ALL OF CALIFORNIA

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Fresno Criminal Defense Attorney
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Fresno, CA 93704
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