Jacksonville Attorney Explaining Burden of Proof for Forfeiture
Civil forfeiture is not automatic, and the Florida Contraband Forfeiture Act does require a showing that the property is subject to seizure by the State. For items that are illegal to possess, forfeiture is practically automatic. If the State is claiming that the property is an instrumentality of a crime, there are several factors that need to be considered:
1) whether the use of the property in the offense was deliberate and planed or merely incidental and fortuitous; 2) whether the property was important to the success of the illegal activity; 3) the time during which the property was illegally used and the spatial extent of its use; 4) whether its illegal use was an isolated event or had been repeated; and 5) whether the purpose of acquiring, maintaining, or using the property was to carry out the offense.
Austin v. United States, 509 U.S. 602, 628 (1993) (Scalia, J., concurring).
Each of these factors is important and an experienced attorney can challenge all of them. Essentially, in determining whether property is an instrumentality of a crime, it will require a showing that, but for the use of the property, the illegal activity could not have occurred. Phrased this way, it is easier to challenge forfeiture.
For the final seizure category -- property purchased with the proceeds of crime -- the State must prove by clear and convincing evidence that the property was acquired, at least in part, with the proceeds of a crime.
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