Asset forfeiture is the legal process where property which has previously been seized may permanently be confiscated.

When faced with a potential forfeiture issue it is important to understand some basic principles:

First, a forfeiture action is civil in nature, not criminal. This is important for two reasons: 1), the burden of proof is much lower in a civil action and 2), there is no right to appointed counsel.

Second, under certain statutes in Illinois, you do not have to be convicted of, or even charged with, a criminal offense in order to have your seized personal property subject to civil asset forfeiture litigation.

Civil asset forfeiture litigation is very procedure-driven in nature. Too many times, we have clients consult with us only to discover certain deadlines were missed and unfortunately, they were too late to contest the forfeiture and property was already forfeited. For example, forfeiture actions under the Illinois Drug Asset Forfeiture Act and Illinois money laundering laws require you to file a verified answer within 45 days of the State sending notice of the action and posting a cash bond equal to 10 percent of the value of the seized property. If either requirement is not met, the property is forfeited.

Under the Illinois Drug Forfeiture Act and Article 36 of the Illinois Criminal Code (watercraft, vehicle or aircraft) a preliminary hearing must be held within fourteen (14) days of the seizure. At the preliminary hearing the state must show there was probable cause for the seizure. If the judge finds there was probable cause for the seizure, the forfeiture action will proceed.

The most common question the attorneys at McNamara · Phelan · McSteen, LLC, are presented with is when a vehicle is seized due to drug related arrest, but the person who was arrested was not the legal owner of the vehicle. In these cases, the innocent owner of the seized property has the burden of proving he/she “ is not legally accountable for the conduct giving rise to the forfeiture, did not acquiesce in it, and did not know and could not reasonably have known of the conduct or that conduct was likely to occur.” Effective July 1, 2018, the law is changing and the burden is on the State to show the owner of the vehicle “was at the time of the alleged illegal act a consenting party or privy to that knowledge.” In layman’s terms, the State must now show the owner of the vehicle knew, or should have known, the vehicle was being used for illegal purposes.

If a vehicle is seized and subject to a civil forfeiture action due to Driving on a Suspended License, DUI or Reckless Homicide with a vehicle, the innocent spouse or family member of the defendant, may contest the forfeiture as an innocent owner. The spouse or family member must show “the seized vehicle is the only source of transportation and it is determined that the financial hardship to the family as a result of the seizure outweighs the benefit to the State from the seizure…”

1) 725 ILCS 150/8(A)(i)
2) P.A. 100-512 amending 725 ILCS 150/8 (effective July 1, 2018)
3) 720 ICLS 5/36-1(d) (emphasis added)

Successfully contesting a civil forfeiture action is a difficult process, which demands a thorough understanding of the relevant Illinois civil and criminal laws. Call us immediately for a consultation if you find yourself dealing with these complicated issues.

Attorney Todd J. Polito has years of experience representing defendants and innocent owners in civil asset forfeiture actions in DuPage County, Will County, Cook County, Kendall County and Grundy County. He and the attorneys of McNamara · Phelan · McSteen, LLC are ready to help you now. Please contact us for a complimentary consultation to review your case.

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