In Phoenix, or anywhere else in the state of Arizona, as per A.R.S. §13-4301 to A.R.S. §13-4315, Forfeiture occurs when a peace officer seizes property with the permission of an agency or a lawyer for the state. A piece of property can be legally forfeited when it has been used in the commission of a crime so that the court can examine it. Additionally, the court can seize assets that were purchased using proceeds in abetting a crime. In general, this is done to recapture assets.
As per A.R.S. §13-4305, an officer is permitted to seize assets by a few different means. One is with a legal “search warrant”, before the execution of a warrant or without a court process prior to a court but upon an arrest. In addition, property can be seized for forfeit when it was previously the subject of a judgment in favor of the state, another state or the federal government in such a case. An officer can also seize property if he has cause to think it is going to be involved in such a case.
When forfeiture cases in Arizona are about to take place, under A.R.S. §13-4207, the state is required to provide a “notice of pending forfeiture”. Afterward, the attorney for the state will begin a commencement of proceedings as per A.R.S. §13-4308 within 60 days after seizure of property. If there is a failure by the state to forfeit within those 60 days, the property is released back to the owner at his or her request.
Per A.R.S. §13-4310, a judicial proceeding involving these types of cases can start with the state requesting a “restraining order” or an “injunction” to prevent the owner from disposing of the property. In the case of the property being seized without a previous judicial determination of probable cause, a hearing can subsequently be filed by the owner within 15 days following the release of a notice for seizure or knowledge thereof, whichever occurs sooner. A notice for a hearing has to be served on the attorney for the state no less than five days prior to the date on which the hearing is scheduled.
There are defenses that can be used in these types of cases. One of the most common, per A.R.S. §13-4304 allows for the common carrier vehicle defense, which means the vehicle cannot be seized unless the owner had knowledge that it was being used to fulfill criminal activity. Per A.R.S. §13-3401, a vehicle also cannot be seized if it was used to transport drugs for sale if the weight doesn’t exceed the general threshold amount of nine grams of methamphetamine or powder form cocaine, three-quarter grams of rock cocaine, one gram of heroin, half a liter of LSD in liquid form, 50 dosage units of LSD, two pounds of marijuana or four grams or 50 milliliters of PCP. This also stands if the crime was not committed for money.
Generally speaking, forfeiture cases in Arizona are tricky and require the skills of a criminal lawyer who knows everything that such a case entails. David Michael Cantor is a Certified Criminal Law Specialist per the Arizona Board of Legal Specialization and has practiced criminal law in Arizona for over 25 years. To speak with an attorney, please call (or email) our offices at (602) 737-2812 to schedule a free case review.