The Law Office of Brian J. Mirandola


47 DuPage Court, Elgin, IL 60120

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civil forfeiture, Elgin criminal defense attorneyMost people understand that in the United States you cannot be sentenced for a crime until you have either entered a guilty plea or been convicted after a trial. However, in the case of civil forfeiture, you can be punished, even if you are not convicted or formally charged.

Losing Your Assets Before Your First Court Date

Civil forfeiture laws allow law enforcement to seize property suspected to have been used in the commission of a crime. It is called civil forfeiture because the process is independent of the criminal justice system. While under criminal law, a prosecutor must demonstrate guilt beyond a reasonable doubt, all law enforcement has to do to keep property it has seized is to show that the property was used in the commission of a crime by a preponderance of the evidence.

A preponderance of the evidence is a much lower standard of proof than "beyond reasonable doubt." In effect, this means that you can actually be found not guilty of a crime, but still lose your assets to civil forfeiture.

Under civil forfeiture you could lose your assets before you even have your first court date. Civil forfeiture in Illinois is not available for all crimes. Most of the applicable offenses are felonies. But, in some circumstances if you are arrested for a DUI or for driving with a suspended license, you could lose the car you are driving under civil forfeiture laws. The car does not even have to belong to you for it to be seized.

Picking Your Battles

After you have been arrested, you have many serious issues to consider, especially if your assets were also seized. You have the right to fight the civil forfeiture, but you also have to consider how fighting for your assets will affect your criminal defense. Do you have the resources to fight both at the same time?

You will need to speak with a criminal defense lawyer who also understands the impact civil forfeiture can have on a case. It may be in your best interest to focus on your criminal defense. The status of your assets may not matter as much if you are sentenced to a long prison term.

If you have been charged with a crime, or police have seized any of your assets, contact an experienced Kane County criminal defense lawyer.  Call 847-488-0889 to schedule a free consultation at the The Law Office of Brian J. Mirandola today. We are ready to help protect your rights.

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Posted on in Criminal Defense
civil forfeitureMany people assume that financial penalties for crimes, like fines, cannot take effect until after a person has been convicted of a crime, but that is not necessarily the case. This is because of a new technique police departments are using known as civil forfeiture, which allows police to seize assets, such as cash, that they believe were used for a criminal purpose. Civil forfeiture is not technically a punishment for a crime, and police may seize assets under it without even having to press criminal charges.

This seizure process was developed in the 1980s as a method of combating drug cartels by depriving them of funds and assets, without having to go through a formal criminal process. However, following 9/11 and the increased police authority that came with it, civil forfeitures have been on the rise. In fact, according to a Washington Post report relayed by the Chicago Tribune, police have seized over $2.5 billion in cash since September 11th , 2001, often during traffic stops. With civil forfeitures becoming a more common issue, it is important for people to understand how to protect themselves and how to challenge a forfeiture should one occur.

Preventing Civil Forfeiture

Police report that one of the major triggers for a civil forfeiture is a person's carrying more cash than seems reasonable for a law-abiding citizen. Police are trained to look for indicators of criminal activity during traffic stops, such as nervousness, the use of car air fresheners, trash in the car, or the use of radar detectors. These can trigger a police request to search the vehicle, or the police may attempt to find probable cause to search the vehicle without consent. If such a search turns up an amount of money that the police officer considers unreasonably large, and consequently an indicator of illicit activity, they may seize the funds.

Challenging a Forfeiture

People who have had their assets wrongly seized by civil forfeiture do have an option to recover it. They can bring an action challenging the seizure. These actions often involve either attempting to prove that the cash was not being used for an illicit purpose or attempting to show that the person was an "innocent owner," someone who had no knowledge of the criminal use of the assets. Unfortunately, this formal process is not the best option for everyone. At their longest, these hearings can last over a year, which may make informal negotiations with the state a swifter and easier option.

If you have recently lost assets to civil forfeiture or have had criminal charges leveled against you, seek help from a dedicated Kane County criminal defense attorney. Our firm stands ready to ensure that you and your rights are fully represented in a court of law.
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