When it comes to forfeiture, two procedures exist: civil and criminal. The most important difference between these two procedures is in the simplicity of the rules outlined for each forfeiture action.
Civil forfeitures are often easier for the state and federal government because no criminal prosecution or conviction is required. One does not have to have committed a crime to have their assets seized in a civil forfeiture. Rather, the government only needs to establish sufficient probable cause for the forfeiture of the property.
In a civil forfeiture proceeding, the owner of the property is a third party who asserts a claim to the property. In other words, civil forfeitures are argued against the property owned by a person, meaning that person’s guilt or innocence is does not at all influence the outcome of the proceeding.
In contrast, criminal forfeitures are different both in method and intent. Criminal forfeitures are dependent on a conviction and police must prove beyond a reasonable doubt that the seized property was used in connection with a crime or gained due to illegal activity.
One of the most common civil and criminal forfeitures are motor vehicles. Vehicle forfeitures are are often initiated by law enforcement officers. If you’ve ever been to or heard of police auctions selling dirt-cheap cars, this is how many of those cars get on the auction block.
Some of the conditions allowing for the forfeiture of vehicles under the Florida Contraband Forfeiture Act include:
- For any automobile used to transport drugs for any drug transaction.
- For any automobile purchased with the proceeds of an illegal act, such as a drug crime.
- For any automobile used in the course of a felony, such as a sexual assault, armed robbery, or burglary.
- If the vehicle was driven by a habitual traffic offender.
- If a vehicle was driven by an individual who is driving on a suspended or revoked driver licenses that resulted from a prior conviction for driving under the influence (“DUI”).
- If the automobile, vessel, boat, or aircraft was used to transport or conceal certain items of contraband.
The language on these rules does not stipulate that the owner of the vehicle needs to be involved in the commission of a crime. Even if a person allows someone else to use their vehicle, it can be subject to forfeiture under these rules.
Another way to think of civil versus criminal forfeiture is that in civil forfeiture, it is up to the owner to prove that the asset is clean. In civil forfeiture cases, the owner of the property is not provided a right to counsel because the owner is not the subject of the proceeding. In criminal forfeiture cases, since the owner of the property is typically the subject of the proceeding, the owner has a right to counsel and the forfeiture of the property is tied to the guilt or innocence of the owner.