Criminal forfeiture is an action taken against the property of someone accused of a crime. When an individual carries out or attempts to carry out an offense, they may have used some instrument or derived proceeds from it. For instance, the person might have used a gun during a robbery or profited from a drug crime. Whether the property or proceeds were directly or indirectly involved in the crime, it may be subject to forfeiture – meaning the government takes control over it and the individual is permanently relieved of it.
The purposes of criminal forfeiture are many. It serves as a deterrent, as it deprives those involved in crimes of the instruments for carrying out further offenses and takes away money used to finance criminal conduct. Additionally, it allows third parties to recover property they may have lost because of the crime.
Who Is Subject to Forfeiture?
Under Ohio law, a person’s property – allegedly used for, intended to be used for, or derived from a misdemeanor or felony – may only be subject to forfeiture if they are convicted of the offense. A conviction includes a guilty plea or entering an intervention program instead of a conviction.
For property to be forfeited, the prosecuting attorney must specify in the criminal complaint that certain instruments or proceeds were used or intended to be used for the offense. However, forfeiture proceedings may also commence if the prosecutor later identifies property derived from or used to facilitate a crime and promptly notifies the trier of fact that such may be considered for forfeiture.
What Property Is Subject to Forfeiture?
Ohio law specifies that contraband, proceeds, and instrumentalities used to commit, attempt to commit, or facilitate an offense can be forfeited. Contraband includes illegal items. Proceeds are anything derived from an offense. And instrumentalities are lawful items that were used to further a crime.
Property subject to forfeiture includes, but is not limited to:
- Aircraft
- Computers
- Computer systems
- Controlled substances
- Firearms
- Money
- Phones
- Vehicles
- Watercraft
The trier of fact will determine whether the property should be forfeited. The burden rests on the prosecution to prove by clear and convincing evidence that the item was used or intended to be used for criminal activity.
Factors the trier of fact will consider when making their decision include:
- Whether the property was necessary to commit or attempt to commit the offense (could it have been done without using the property?)
- Whether the sole purpose of the property was to commit or attempt to commit the offense
- Whether the property was instrumental in furthering the commission of the crime
If the trier of fact decides that the property should be forfeit, the court will order that law enforcement officials seize it or the defendant surrender it to the law enforcement agency. Depending on what the item was, the prosecutor will make a good faith attempt to locate any third party with interest in the property and notify them that it may be subject to disposal. This gives any person with a valid claim on the property the chance to recover the item.
What Happens to Forfeited Property?
The fate of forfeited property depends on what it was.
Actions that can be taken include the following:
- Drugs: Disposed of or used for scientific or medical purposes
- Firearms: Used by police, sold at auctions, or sold to federally licensed firearm dealers
- Obscene materials: Destroyed
- Alcohol: Sold or used for law enforcement training
- Vehicles and vehicle parts: Given to law enforcement for use or sold
- Computers and computer systems: Given to law enforcement for use or disposed of
- Money: Placed in a fund
What Are the Consequences for Removing, Destroying, or Transferring Forfeited Property?
If a defendant learns that their property was determined to be part of criminal activity, they might be tempted to damage or transfer it to prevent the government from taking control of it or to reduce its value. However, doing such is a crime, and the individual can face incarceration and/or fines for this type of action.
The specific penalties that can be imposed depend on the value of the item:
- Under $1,000:
- First-degree misdemeanor
- Up to 180 days in jail and/or
- Up to $1,000 in fines
- $1,000 or more but under $7,500:
- Fifth-degree felony
- Up to 12 months in prison and/or
- Up to $2,500 in fines
- $7,500 or more but under $150,000:
- Fourth-degree felony
- Up to 18 months in prison and/or
- Up to $5,000 in fines
- $150,000 or more:
- Third-degree felony
- Up to 36 months in prison and/or
- Up to $10,000 in fines
You can face various consequences for being convicted of a crime, including losing your personal property. If you have been charged with a misdemeanor or felony in Cleveland, seek to avoid or minimize penalties by aggressively fighting your charge.
At Patituce & Associates, we are prepared to vigorously defend you. Schedule a consultation by calling us at (440) 471-7784 or contacting us online today.