How do i win my car back from police seizure have hearing

Asked over 4 years ago - Melbourne, FL

pulled over drugs found car owned free and clear only vehicle

Attorney answers (2)

  1. John Patrick Guidry II

    Contributor Level 15

    Answered . The Florida Contraband Forfeiture Act makes it tough to get your car back, but it can be done, with the right attorney. Really, your best shot is to negotiate with the sheriff's office. They will charge you for the return of your car, depending upon what it's worth. Every sheriff's office is different, some will discount Kelly Blue Book value by 50-75%, so if your car's Kelly Blue Book is $10,000, they may want $2,500-$5,000 for it's return (having a law firm take your case all the way to a civil jury trial may cost $10,000-$15,000....).

    Here's some procedural info. First of all, you should have received notice that you have the right to a Preliminary Adversarial Hearing, whereby the sheriff's office must prove by clear and convincing evidence that the car is subject to forfeiture. This is a pretty easy hearing for the Sheriff's office, so expect to lose that first hearing, unless you have a fourth amendment suppression issue. For example, if no probable cause existed to stop or search the car, you may get your car back at the preliminary hearing. The judge's ruling at the preliminary hearing will not effect your lawsuit.

    Once you've requested a preliminary hearing, the sheriff's office should set the hearing with a judge within 10 days. The sheriff's office must prove a 'nexus' between your car and illegal activity, creating a reasonable belief that the car was used or intended to be used in violation of the Contraband Forfeiture Act. For example, in one car seizure case, no drugs were ever found in the car, nor were drug deals made inside of the car, but because the defendant used the car to go to and from drug transactions, the car was subject to forfeiture. (See Duckham v. State, 478 So.2d 347 (1985)).

    A common defense is known as the "innocent owner". In this case, if you can prove that the owner of the vehicle did not know the car was being used in criminal activity, you may get the car back. If the owner 'should have known' the car was being used in criminal activity, the forfeiture may be upheld. Furthermore, the seizure of an expensive car may amount to an execessive fine, and this analysis involves both a 'proportionality test' and an 'instrumentality test'. Under a proportionality test, compare at the fines that could be imposed versus the value of the motor vehicle. The instrumentality test examines how the car was used. As a real life example, the court in In Re: 1990 Chevrolet Blazer (684 So.2d 197 (Fla. 2d DCA 1996)) held that a car's use to carry marijuana and to provide a private area to smoke marijuana was insufficient to meet the instrumentality test.

    So, as you can see, there are tons of legal issues here. Hire a local attorney to negotiate for the return of your car. Yes, it will cost you, but it's worth it....

    Good Luck,

  2. Ernest L. Chang

    Pro

    Contributor Level 10

    Answered . The Melbourne Police Department is usually amenable to settlements. Additionally, the "innocent owner" provisions may apply in your specific case. Consult an attorney who handles forfeiture matters to discuss your specific case.

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