Michigan Forfeiture Defense Attorney

When you must protect your money and property in a forfeiture action, you need attorneys who are not afraid to win!

When can the police seize property?

Police can seize and attempt to forfeit “anything of value” allegedly derived from an illegal source, such as drug trafficking. They can also seize property and money derived from so-called “racketeering enterprises.” Racketeering enterprises are any organized criminal activity engaged in profiting from illegal activities. This document concerns only drug forfeitures, and a future page will focus on racketeering and other kinds of forfeitures. Your best hope of retaining or getting any seized assets back is with an experienced, reputable Michigan forfeiture defense attorney.

Changes to the forfeiture laws

In August 2019, Michigan adopted amendments to change some of the forfeiture law provisions to make it fairer for people who had property seized and require the police or prosecutor to serve forfeiture notices on a person charged with a crime and the owner. Notably, forfeiture requires a criminal conviction in drug cases. A conviction as a prerequisite to forfeiture is contrary to the prior law when it was unnecessary. These amendments to the forfeiture law go into effect for forfeitures pending or started on or after January 1, 2020. If you call the Michigan forfeiture defense attorneys with LEWIS & DICKSTEIN, P.L.L.C., we can review your case and work with you to develop the best strategy for keeping your assets intact.

What types of property are forfeitable in Michigan?

Anything of value can be subject to a forfeiture case. This includes money or any property that has marketable value. The property does not have to be the proceeds of the crime. It can be any of the following:

Raw materials or equipment used in the manufacturing, processing, or delivering illegal controlled substances;

Containers used to hold illegal controlled substances (cars are considered containers);

Conveyances such as cars, boats, trucks, airplanes, or anything else used to facilitate the transportation of illegal controlled substances;

Anything of value given or intended to be provided in exchange for illegal controlled substances or traceable to such an exchange or used to facilitate the violation of the controlled substances laws. This provision includes money.

“Substitute Assets”

A criminal court judge has jurisdiction over the defendant; in personal jurisdiction, the Court can order the defendant to pay monetary fines and restitution that must be satisfied from any assets in their possession. Because defendants used to dissipate the proceeds of criminal activity to avoid forfeiture, Congress passed the substitute asset provision. This provision provides that if the property, assets, or money from the crime is unavailable to satisfy a forfeiture judgment, the Court can forfeit a defendant’s other assets up to the value of the judgment.

After a forfeiture judgment is entered, the defendant’s untainted assets have some protection. The United States Supreme Court ruled that forfeiture efforts must focus on the tainted property unless the defendant’s other property meets the substitute asset requirements of 21 USC 853(p). The government often finds ways around these limitations when they have sufficient motivation. Generally, if the government obtains a forfeiture money judgment, it can collect on it as if it were a civil judgment.

The Basics of Michigan Forfeiture Defense

There are four basic things you need to know regarding Michigan forfeiture law. The process is complex, and you risk losing your right to assets if you overlook a step or miss a deadline. A Michigan forfeiture defense attorney gives you the best odds of retrieving money or other things of value.

1. Seizure, Notice of Intent to Forfeit, and Claim

If the seized property’s value is less than $50,000.00, the police must serve a Notice of Seizure and Intent to Forfeit on the property owner and the person it was seized from (even if they are not the owner). Anyone wanting to challenge the forfeiture must file a notarized Claim of Interest with the seizing police agency within 20 days of getting the Notice of Seizure.

2. No claim filed within 20 days

The property is declared forfeited and disposed of according to the forfeiture statute upon the county prosecutor’s or attorney general’s approval. The law strictly details how the government is to dispose of the property. Any property, money, or proceeds from the sale of such property can only be:

a) used to pay expenses incurred in the seizure and forfeiture action;

b) donated to nonprofit organizations whose “primary activity” is to assist in drug-related investigations;

c) used for any other law enforcement purposes, such as buying police equipment, training, and education of police personnel.

3. Claim filed; criminal conviction required

A Michigan Forfeiture Defense Attorney files the claim with the prosecuting attorney or the Michigan Attorney General. The property may not be forfeited and disposed of unless the related criminal case is resolved with a conviction, plea, or dismissal once a claimant files a claim. The forfeiture case will be “stayed” until the criminal case concludes. The criminal conviction rule is not applicable if (a) the claim is not filed, (b) the claim is withdrawn, (c) the property owner waives the conviction requirement, or (d) the defendant in the criminal case remains a fugitive after reasonable efforts to locate them by the government.

4. The forfeiture hearing

The forfeiture action may proceed if the claimant files a timely claim and the criminal case is over. At the hearing, the prosecutor has the burden of proving a) the claimant had prior knowledge, committed the crime, or consented to the crime which money or property came from, and b) the property or money is derived from illegal drug sales or in some way facilitated illegal drug sales. The burden of proof on the prosecutor is a “preponderance of the evidence.” Preponderance means 51% or more. It is a much lower burden than in criminal cases, where the burden is “beyond a reasonable doubt.” Forfeiture cases are civil litigation over property rights, not criminal litigation.

The Criminal Case and Michigan Forfeiture Defense Attorneys

Typically, civil forfeiture cases spring from an underlying criminal case. It is logical and good sense for one attorney or firm to handle both the criminal case and the civil forfeiture. If you work with our team, we will coordinate defense tactics. We will organize the most effective strategies. There is no good reason to have two different defense teams. Clients must ensure that the firm they hire is very astute in criminal and civil law. Forfeiture law can be complicated, and many criminal defense lawyers do not handle forfeiture. Because the government must achieve a conviction in most cases to secure a forfeiture, the stakes are higher than ever when trying to avoid a felony or misdemeanor conviction.

Forfeiture v. Restitution

Forfeiture is a penalty intended to strip defendants of their illegally obtained proceeds or assets. Restitution is remedial and created to compensate the victim for any losses. These amounts can be the same or different. Defendants, particularly in federal cases, are often ordered to pay both forfeiture and restitution judgments. For example, a judge can order a defendant who obtained $1,000,000 from the victim to pay $1,000,000 in restitution to the victim and a $1,000,000 forfeiture judgment to the government, equalling a total payment of $2,000,000 or twice the proceeds of the crime. A skilled defense lawyer can negotiate for reduced forfeiture and restitution or an offset of one against the other.

Transfer of Tainted Assets to Third-Party “Straw Owners”

If a defendant transfers tainted assets to a third party to evade forfeiture, the government can continue to proceed against the disposed or transferred assets. If the third party can demonstrate they were a legitimate purchaser for good, fair value and did not know about the forfeiture or criminal activity, they have significant protection from the government’s claim.

Michigan’s Premier Criminal Defense and Drug Forfeiture Law Firm

The attorneys at LEWIS & DICKSTEIN are highly respected and at the top of the criminal defense profession. As stated above, we also have the forfeiture law credentials you want in your forfeiture attorney, which is a perfect combination. When there is no room for errors or false promises, you need the best lawyer you can get by your side. No lawyer can guarantee or promise a particular result; however, your lawyer should do everything possible to help you.

The dedicated, experienced, and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on felony and misdemeanor charges in Oakland, Macomb, Wayne, Washtenaw, and Livingston Counties, and throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.