4 Tips for Defending a Civil Forfeiture in Alabama
This guide will briefly walk you through how to defend a civil forfeiture action in Alabama. Civil asset forfeiture occurs when a law enforcement agency takes personal assets from individuals suspected of a crime or illegal activity. I recommend that you hire an experienced attorney in this field.
Answer within 30 daysJust like with a debt collection lawsuit or a divorce, if the state has seized your stuff, you must answer the complaint filed by the State of Alabama within 30 days. If you do not answer within 30 days, you risk a default judgment. This would allow the State to keep the seized property.
File a "Motion to Stay Civil Forfeiture Case Pending Criminal Case"Current law as of 03/06/2018 allows the State of Alabama to forfeit the property before a conviction in a criminal case. However, pending legislation could change things. Pending legislation will require a conviction before a forfeiture. Filing a motion to stay may not always be in your best interest, however. Sometimes you may attempt to use the civil proceeding to receive discovery to benefit your case. For instance, you may want to depose the arresting officer or send the arresting officer interrogatories. At that point, the State of Alabama may file a motion for a stay to prevent you using the civil case as a way around the criminal discovery rules.
File a "Rule 3.13 Motion" in the pending criminal caseRule 3.13 of the Alabama Rules of Criminal Procedure provides:
"Rule 3.13. Unlawfully seized property.
(a) MOTION FOR RETURN OF PROPERTY. A person aggrieved by an unlawful search and seizure may move the court for the return of the property seized on the ground that he or she is entitled to lawful possession of the property which was illegally seized. The judge shall receive evidence on any issue of fact necessary to the decision of the motion. If the motion is granted, the property
shall be restored. If a motion of return of property is made or comes on for hearing after an indictment or information is filed, it shall be treated also as a motion to suppress evidence."
There are two prongs to this motion: 1) there must have been an unlawful search and seizure; and 2) You are entitled to lawful possession of the property. You must first prove that the search was illegal before you can get the property back. This is basically a motion to suppress. Then you must show that you are entitled to lawful possession. You can't have lawful possession to contraband. For instance, you can't have lawful possession of a firearm if you are a felon. You can't have lawful possession of cocaine.
If the property was not yours, have the true owner file a Petition to Intervene in the caseAn innocent owner's or bona fide lienholder's interest in any type of property shall not be forfeited under this article for any act or omission unless the state proves that the act or omission was committed or omitted with the knowledge or consent of that owner or lienholder.
The knowledge prong is important here. The innocent lienholder must not have known about the activity.