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House Bill Passed. Burden of Proof will be Changed Once the Governor Signs the Bill

Brian L. Polinske
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Edwardsville Criminal Defense Trial Lawyer
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Civil forfeiture law has always had built in presumptions and burdens.  For example the drug forfeiture act bore a burden of proof wherein property sought to be forfeited located near drugs was presumed to be utilized to further the illegal possesion of the drug.  There were many presumptions that were heavily weighted against the property owner.  The House Bill that has been passed (only one representative voted against it) is awaiting the Governor's signature.  I anticipate he will sign it within the next few months.

The changed law will make a significant impact when fighting against a forfeiture action brought by the State.  I have multiple forfeiture cases that I am defending wherein the facts are that drugs were found in the back seat of a vehicle.  Now, the claimant can avoid the presumption that he/she as the owner of the car knew drugs were inside the vehicle.  Without direct knowledge and without the presumption it will be much more difficult for the State to convince a judge that the driver knew the drugs were inside and that the vehicle was used to facilitate possession of the drugs.

This change of law is exciting and I will update this blog once we get the final form of law signed by Governor Rauner.

 

UPDATE: 9 21 17

Governor Rauner signed the bill.  The changes as outlined above are now in effect.  The important changes from previous forfeiture law are the reversal of the presumption and the change to the burden of proof.  This will drastically change the way forfeitures are decided.  One point that is still being sought is to deprive each municipality of a certain direct percentage of the forfeiture proceeds.  In other words, if $10,000 is forfeited, the old manner of distribution would result in 35% going directly to the police department.  If the disbursement change is enacted the money simply goes to a general fund.  This would disincentivize police from aggressively pursing many forfeitures.  I imagine the effort to forfeit motor vehicles worth very little would come to an end.

 

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