by Chris Rogers
Imagine you're breaking in your new SUV with a night out on the town. You show off the new ride to your friends, have some drinks, drive drunk, and get pulled over. You know you're in trouble, but you have more to lose than you might think. Because you're being accused of a DWI, your vehicle is subject to forfeiture. That means that law enforcement can take your car and sell it. To make matters worse, your friend riding shotgun had a baggie of marijuana. Now the police are seizing the $500 cash-back you got from the dealership that was found in the vehicle, claiming it might be connected to the drugs.
Last year, law enforcement agencies across the state brought in nearly seven million dollars in criminal forfeitures, property seized in connection to crimes. A 2010 law changed some of the rules for these forfeitures, helping to make them more fair and transparent.
Under the new statute, law enforcement officers must give owners a seizure notice and property receipt at the time of the seizure. Defendants have 60 days to respond to forfeit notices in all cases. In the past, defendants sometimes had only 30 days to respond, depending on the offense. The new law also increases the value limits of conciliation courts for forfeiture challenges, taking cases under $15,000 out of the hands of the district court. In addition, law enforcement agencies are now required to report their forfeitures to the state auditor; the Winona County Sheriff's Department and the Winona Police Department reported $11,302 and $7,878 in proceeds for 2011, respectively.
What can be seized?
Vehicles, firearms, money, and valuables connected to certain crimes can be seized. For DWIs, that means the vehicle. For drug busts, that can mean cash found nearby that is believed to be connected to the purchase or sale of those drugs. Whether or not the property is, in fact, associated with the crime can be argued by defendants, and, as explained below, this is one way they can get their belongings back.
DWIs and drug possession are the most common offenses in seizure cases, but property can be seized in a whole slew of crimes ranging from serious ones—such as murder, sex crimes, and assault—to things like burglary, prostitution, fraud, and fleeing law enforcement.
How do I get my property back?
Under the new law, when property is seized, the officer responsible is required to give the owner a "notice of seizure and intent to forfeit," as well as a receipt for that property. After that, owners have 60 days to respond to the notice, or the property is automatically forfeited. The easiest way to challenge a forfeiture is by making a "petition for mitigation or remission." Owners don't need a lawyer for that; all they have to do is give the prosecuting authority a good reason why it shouldn't forfeit the property (or at least not make the owner pay full price to buy it back).
That might sound like a tough sell, but out of the 23 forfeitures made in Winona County in 2011, nine were returned for half of their estimated value or less. Assistant Winona County Attorney Justin Wesley said that good arguments might include that your family depends on the vehicle seized in your DWI case, or that some of the cash seized from you in a drug bust just came in your tax return and so is not linked to the drugs. Ultimately the prosecutors decide how to respond to these petitions. Wesley points out that officers also have discretion in deciding what to seize in the first place. If the prosecutor denies your petition, you can still challenge the forfeiture before a judge.
Where does the
The money brought in from forfeitures is divided among law enforcement, prosecutors, and the state, depending on the offense. For most offenses, 70 percent goes to local law enforcement, 20 percent to local prosecutors, and ten percent to the state's general fund. In DWI cases, 70 percent is dedicated to DWI enforcement and the rest goes to prosecutors. There are unique breakdowns for the distribution of proceeds from prostitution and human trafficking, with large portions going to neighborhood crime prevention and state victims services.
Whether the city police or county sheriff will get those law enforcement dollars depends on which department has jurisdiction in a given case. Generally speaking, crimes that take place outside of the city, or which are more serious, belong to the county.