Forefeiture Defense Attorney – McHenry County

Evan Randall Forfeiture

Criminal Defense Attorney – Evan E. Randall

Property can be taken by the State if used in the commission of certain offenses. There are two types of forfeitures: Section 36 forfeitures and Drug Asset forfeitures.

Section 36 Asset Forfeitures 

Most commonly, the following offenses may result in Section 36 a forfeiture of assets:

In the vast majority of cases, the asset being seized by the State is a vehicle. After giving notice of the preceedings to the owner, a hearing will be scheduled. Due to the complexity of forfeiture actions, it is highly recommended that a trained attorney be consulted.

Rights of Owners and Lienholders

After getting notice of the action, an owner or lienholder has 20 days to respond to the request. A verified answer must be filed with the court and the party has a right to be present at all future court dates. A legal basis must be established to prove the ownership interest. Failure to timely raise such an interest will result in the issue being waived.

Upon showing a bona fide ownership interest, the State’s Attorney must release the property to any lienholder (720 ILCS 5/36). The key here is that the interest must be proven bona fide, meaning that the lien was established without knowledge that the property was going to be used for an illegal purpose.

Drug Asset Forfeitures

These forfeitures are governed by 725 ILCS 150/ et seq. They are separate from the Section 36 actions and different rules apply. The statute allows the State to seize any property that is connected with the use or sale of illegal drugs. While there are a number of exceptions, mos tof them apply to property owners who have no connection to the illegal activity.

Instead of the usual proof beyond a reasonable doubt standard, forfeiture actions use the by the preponderance of the evidence standard. Practically speaking, the burden of proof required is lower than what is required in criminal courts.

Innocent Owner Defense – Personal Property

In order to avoid forfeiture, the owner must establish that they:

  • Were not legally responsbile for the defendant’s illegal conduct;
  • Did not conassist with the illegal activity; and
  • Did not know of the illegal activity.

Once an owner establishes each of these facts, the State has the burden of proving tha tthe owner lacks standing to challenge the forfeiture.

Innocent Owners Defense – Real Estate

In order to avoid forfeiture of a house or parcel of real estate, the owner must establish that they:

  • Were not legally responsbile for the defendant’s illegal conduct;
  • Did not solicit or conspire or attempt to join in t he criminal activity;
  • Did not share in the benefits of the criminal acticity.

Asset forfeiture can have a huge impact and cause undue hardship. It is often the family of a defendant who pays the price. Contact Evan E. Randall to ensure that the State doesn’t overstep the boundaries. Reach out to an experienced criminal defense attorney by calling (815) 880-4529 or emailing [email protected]