How can you be punished for a crime? Most people would answer with prison, jail, or a steep fine. But what many people don’t know is that—when you use some kinds of property to commit a crime—the government can punish you by taking that too.
Both Virginia and the federal government have provisions for taking property used in “substantial connection” with a drug offense. The government need not prove the crime itself beyond a reasonable doubt—only to the level of “clear and convincing evidence” under Code § 19.2-386.10. You might be entirely innocent of distributing drugs and the government might still be able to take it.
What can they take? More than you might think: Code § 19.2-386.22 allows them to take “all money, medical equipment, office equipment, laboratory equipment, motor vehicles, and all other personal and real property…” That includes the money on your person, the car you were sitting in, or even your home itself!
Yesterday, the Supreme Court of Virginia ruled in Commonwealth v. Hall that “[a] substantial connection does not mean that ‘the property’s role in the crime is integral, essential or indispensable.’ Substantial simply means not insubstantial.” And it need only be used once they ruled. You can read the opinion for yourself here: http://www.courts.state.va.us/opinions/opnscvwp/1180322.pdf
Forfeitures like these are not limited to drugs either. The state can seize property used in connection with computer crimes, laundering money—even your gun if you carry it concealed without a permit.
The Supreme Court of the United States, however, is beginning to put some limits on how much property a state can seize. Yesterday, in Timbs v. Indiana, the Court said that the Eighth Amendment does not allow states to take something as expensive as a car worth four times the maximum fine the person could receive for the underlying crime. You can read that opinion for yourself here: https://www.supremecourt.gov/opinions/18pdf/17-1091_5536.pdf
Assert forfeitures are no laughing matter: there will be a prosecuting attorney on the other side seeking to take your property with a law enforcement agency ready to help investigate and gather evidence to take your property.
But, with an experienced attorney by your side, you stand a much better chance using discovery, motions, and even a jury trial to protect your property.
Our team here at Winslow & McCurry can help you—not only with your criminal charge, but with the asset forfeiture that may follow. Call us today at 804.423.1382 for a consultation, and don’t take a chance that your hard-earned property is taken away from you on anything less than enough evidence to show it was used in some illegal fashion.
