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Forfeiture of both real and personal property is commonly connected to felony prosecutions

Brian L. Polinske
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Edwardsville Criminal Defense Trial Lawyer
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You are arrested for your second DUI.  You simply had a few too many after meeting some friends from school.  Your license is suspended still from the 1st DUI.  Not only is the criminal charge a main concern, but if you were charged with the felony version of DUI for committing the offense at a time when your license was suspended for DUI you now can face forfeiture of the vehicle you were operating. 

Forfeitures have skyrocketed in the recent past.  Forfeitures are created by statute and allow the forfeiture of both personal and real property.  Cars, houses, cash, and other valuables are all targeting by forfeiture actions filed by the State.  The statutes have various presumptions built into them that require the judge to presume certain facts based upon the connection each piece of property has with the alleged commission of the felony offense.  The presumptions are all weighed against the property owner(s).  You can contest the forfeiture actions but must follow the strict wording in the statute. 

Procedurally, the arresting agency must notify the property owner of the action they intend to file against the property itself.  The notice is typically served upon the presumed owner the day that person bonds out of jail.  The preliminary hearing (probable cause hearing) must be conducted within 14 days after the property is seized.  In the case wherein a car is being forfeited the owner may petition the court to release the vehicle due to the hardship it will create for them.  However, the court may require full bond be posted of the fair market value of the vehicle prior to its release.  If the conveyance is released under those conditions the car may still be forfeited at the case's conclusion.  Release of the vehicle is only a temporary means of relief afforded the owner. 

After the preliminary hearing the seizing police agency must notify the State's Attorney of its requesst for forfeiture within 52 days after the property was seized.  The State then has 45 days from its receipt of the forfeiture request from law enforcement to begin the formal forfeiture process.  Forfeitures can be either Non-Judicial or Judicial In Rem.  The nature of the property dictates what process is required under the law.  If the property is non-real and under $150k the State must begin the Non-Judicial process.  This means an impartial judge is not involved in that portion of the case.  The State's Attorney will handle the case themselves.  The owner must file a verified response to the State's Petition for Forfeiture or they can lose by default their property.  A cost bond in the amount of 10% the property's value must be filed with their verified response. 

If the case is not resolved via Non-Judicial Forfeiture, the State must then file a Judicial forfeiture.  Essentially, the preliminary hearing case is modified and reset on the judge's docket for a probable cause (standard) hearing. 

There are different fact scenarios that require immediate Judicial Forfeiture proceedings (versus Non-Judicial).  Consult an attorney to determine whether property process was complied with regarding your forfeiture actions.

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