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Forfeiture

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Forfeiture in Ohio

In Ohio, R.C. Chapter 2981 authorizes the state to obtain a forfeiture order in two types of proceedings:

  • a criminal proceeding as described in R.C. 2981.04; or
  • in a separate civil asset forfeiture proceeding described in R.C.2981.05.

After the seizure of money or other property for forfeiture, R.C. 2981.05(A) allows the prosecutor to file a civil complaint requesting the forfeiture of property alleged to be connected to an offense as contraband, proceeds, or an instrumentality as defined in R.C. 2981.02.

The term “property subject to forfeiture” is defined in R.C. 2981.01(B)(13) and 2981.02(A) to consists of “contraband,” “proceeds,” or “instrumentalities” used in the commission of a felony and certain misdemeanors. The types of property commonly seized for forfeiture proceedings in Columbus, OH, including U.S. Currency, jewelry, vehicles, vessels, and aircraft.

After the seizure, an attorney can help you file a petition for the immediate return of the property in the civil-forfeiture proceeding under R.C. 2981.05(C) or file a motion in the criminal case before the prosecuting attorney has filed a charging instrument containing a forfeiture specification under R.C. 2981.03(A)(4).

An attorney can represent you in a civil or criminal forfeiture proceeding while you fight for the return of your property at the initial hearing or trial.

Attorney for Forfeiture Actions in Columbus, Ohio

The civil asset forfeiture attorneys at Joslyn Law Firm can help you file and litigate a motion for the return of property seized incident to arrest, as well as a possible action for replevin or conversion.

If the state attempts to retain your property without complying with state or federal laws governing criminal or civil forfeiture, then we can help.

We understand the tactics used by officers in Columbus, OH, when they seize money and other types of property intended for forfeiture. If the state intends to pursue civil forfeiture of your money or other property, then act quickly by contacting an attorney at Joslyn Law Firm.

If a federal agent with the Drug Enforcement Administration (DEA), the Federal Bureau of Investigations (FBI), or Customs and Border Protection (CBP), seized your money or other property then we can help. We also represent clients after a seizure for forfeiture by officers at the local or state level including the Ohio High Intensity Drug Trafficking Area (HIDTA) or Ohio State Highway Patrol (OSHP).

In some of these cases, a seizure by a law enforcement officer at the local or state level will result in the forfeiture being adopted by a federal agency.

When it comes to state or federal forfeitures, Brian Joslyn represents individuals, innocent owners, innocent spouses, lien holders, and financial institutions with a security interest in the seized property.

Call (614) 444-1900 to discuss the case.


How to File a Claim and Petition for the Release of the Property

For civil and criminal forfeiture actions at the state level, Section 2981.05(G) allows any person with an interest in the property subject to forfeiture to petition the court to release the property pursuant to division (D) of section 2981.03 of the Revised Code.

Pursuant to section 2981.03(A)(4), a person aggrieved by an alleged unlawful seizure of property may seek relief from the seizure by filing a motion in the appropriate court that shows:

  • the person’s interest in the property;
  • states why the seizure was unlawful; and
  • requests the property’s return.

If the motion is filed before an indictment, information, or a complaint seeking forfeiture of the property is filed, the court shall schedule a hearing on the motion not later than twenty-one days after it is filed.

The court may extend the time for the hearing on the motion by consent of the parties or for good cause shown.

Section 2981.03(A)(4) further provides:

At the hearing, if the property seized is titled or registered under law, then the state or political subdivision shall demonstrate by a preponderance of the evidence that the seizure was lawful and that the person is not entitled to the property.

If the property seized is not titled or registered under law, the person shall demonstrate by a preponderance of the evidence that the seizure was unlawful and that the person is entitled to the property.

If the motion is filed by a defendant after an indictment, information, or a complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a motion to suppress evidence.

If the motion is filed by a third party after an indictment, information, or complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a petition of a person with an alleged interest in the subject property, pursuant to divisions (E) and (F) of section 2981.04 of the Revised Code.

The court shall consider the petition as provided in that section. If a timely petition for pretrial hardship release is not filed, or if a petition is filed but not granted, the person may file a claim for the release of the property under the Rules of Civil Procedure. The court shall dispose of any petitions timely filed under this division.

If the motion is filed before an indictment, information, or a complaint seeking forfeiture of the property is filed, the court shall schedule a hearing on the motion not later than twenty-one days after it is filed. The court may extend the time for the hearing on the motion by consent of the parties or for good cause shown.

Section 2981.03(A)(4) further provides:

At the hearing, if the property seized is titled or registered under law, then the state or political subdivision shall demonstrate by a preponderance of the evidence that the seizure was lawful and that the person is not entitled to the property.

If the property seized is not titled or registered under law, the person shall demonstrate by a preponderance of the evidence that the seizure was unlawful and that the person is entitled to the property.

If the motion is filed by a defendant after an indictment, information, or a complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a motion to suppress evidence.

If the motion is filed by a third party after an indictment, information, or complaint seeking forfeiture of the property has been filed, the court shall treat the motion as a petition of a person with an alleged interest in the subject property, pursuant to divisions (E) and (F) of section 2981.04 of the Revised Code.

The court shall consider the petition as provided in that section. If a timely petition for pretrial hardship release is not filed, or if a petition is filed but not granted, the person may file a claim for the release of the property under the Rules of Civil Procedure. The court shall dispose of any petitions timely filed under this division.


Sample Petition to Release Property

The language in a sample petition to release seized property in Ohio might include the following language:

Petition for Release of Seized Property and Verified Claim

Comes now, Claimant ________, through counsel, and files this petition for the release of property pursuant to division (D) of section 2981.03 of the Revised Code and Section 2981.05(G).

Pursuant to section 2981.03(A)(4), Claimant ______ shows that he or she is a person aggrieved by the unlawful seizure of property and seeks relief from the seizure by filing this motion.

In support of this petition, Claimant _______ shows:

  • On _[date and time]__, law enforcement officers with __[agency]__ detained Claimant at __[location]__ before seizing property from Claimant’s possession.
  • The property seized can be described as __________________.
  • Claimant has an interest, including a possessory interest, in the property because _____________.
  • The seizure was unlawful because:
    • The initial detention was without any legal basis;
    • The detention was illegally prolonged;
    • The Claimant was questioned withhout the benefit of Miranda warnings; and/or
    • No warrant was obtained and the detention, search and seizure were without free and voluntary consent.
  • Pursuant to Section 2981.03, Claimant is seeking conditional release of the property by requesting possession from the person with custody of the property.
  • Claimant meets the requirements specified in divisions (D)(3)(a), (b), and (c) of Section 2981.03 for conditional release of the property because Claimant has sufficient ties to the community to provide assurance that the property will be available at the time of trial.
  • Furthermore, the failure to conditionally release the property will cause a substantial hardship on the Claimant because withholding the property would:
    • prevent a legitimate business from functioning
    • prevent the claimant’s or an innocent person from maintaining employment; or
    • leave the claimant or an innocent person homeless or otherwise create a financial hardship.

Therefore, by filing this petition for the return of the seized property, Claimant is requesting the property’s immediate return.

I hereby sware or affirm, under penalty of perjury, that this petition for release of seize property is true and correct to the best of my knowledge and belief.

__________

Claimant

__________

Date


History of Forfeitures in Ohio

Prior to July 1, 2007, R.C. Chapter 2981 applied to the disposition and forfeiture of property seized by a law enforcement agency as set forth in R.C. 2933.41 et seq. Effective July 1, 2007, the Ohio General Assembly repealed R.C. 2933.41 et seq. and replaced those statutes with R.C. Chapter 2981. See 2006 Am.Sub.H.B. No. 241.

When enacting R.C. Chapter 2981, the Ohio General Assembly provided that “[i]f a criminal or civil forfeiture action… was… commenced before July 1, 2007, and is still pending on that date, the court in which the case is pending shall, to the extent practical, apply the provisions of Chapter 2981 of the Revised Code in the case.” 2006 Am.Sub.H.B. No. 241, Section 4.

The Ohio General Assembly made plain its intention that, “to the extent practical,” R.C. Chapter 2981 be applied to criminal cases pending on July 1, 2007. For this reason, those statutes govern the ultimate disposition of property seized incident to his arrest or based on probable cause of drug trafficking or money laundering.

R.C. Chapter 2981 unified and expanded the former specific forfeiture provisions. By enacting the legislation, the Ohio legislature sought “to balance punitive and remedial policies with the imperative of limiting the state’s exercise of police power in derogation of private property rights.” Id. at Section 129:2. See also R.C. 2981.01(A)(1)-(4).

Since the forfeiture statutes in Ohio are not favored in law or equity, forfeiture statutes operate “in derogation of private property rights, must be strictly construed…so as to avoid a forfeiture of property.” State v. Lilliock, 70 Ohio St.2d 23, 25-26, 434 N.E.2d 723 (1982).

“No forfeiture may be ordered unless the expression of the law is clear and the intent of the legislature manifest.” The legislative purpose of R.C. Chapter 2981 was to unify and expand the former forfeiture statutes and “to balance punitive and remedial policies with the imperative of limiting the state’s exercise of police power in derogation of private property rights.” See In re $449 United States Currency, 1st Dist. No. C-110176, 2012 Ohio 1701, ¶ 18 (quoting Katz, Martin, Lipton and Crocker, Baldwin’s Ohio Prac. Crim. L., Sections 129:1 and 129:2 [2011] and citing R.C. 2981.01[A][1]-[4]).


What are the Requirements for Criminal Forfeiture Proceedings in Ohio?

Where property is seized in accordance with R.C. 2981.03, that section mandates that if “a criminal forfeiture has not begun under section 2981.04 of the Revised Code, the prosecutor… shall commence a civil action to forfeit that property under section 2981.05[.]” R.C. 2981.03(F).

A criminal forfeiture action is initiated by including a specification in the charging instrument or by furnishing the defendant with “prompt notice” in a bill of particulars. R.C. 2981.04(A). A civil forfeiture action is initiated by filing “a complaint requesting an order that forfeits the property to the state or a political subdivision.” R.C. 2981.05(A).

Criminal forfeiture is initiated by including in the charging instrument a specification consistent with R.C. 2941.1417 or by providing the defendant with “prompt notice,” in conformity with Crim.R. 7(E), that the property is subject to forfeiture. R.C. 2981.04(A)(1) and (A)(2).

To comply with R.C. Chapter 2981 in criminal forfeiture cases, the prosecution attorney must provide notice that the property was subject to forfeiture, either by amending his indictment to add a forfeiture specification or by amending the bill of particulars.

In most criminal forfeiture cases, the forfeiture will also be mentioned in the plea form or broached at his plea or sentencing hearing. For example, in State v. Cruise, 185 Ohio App.3d 230, 2009 Ohio 6795, 923 N.E.2d 702 (9th Dist.), the court held that the defendant’s guilty plea to a forfeiture specification waived his right to a forfeiture proceeding.

In a criminal forfeiture case, the court will often be required to conduct a hearing, find that the property was subject to forfeiture, or place of record an order of forfeiture.

The forfeiture statutes in Ohio contemplate a post-conviction adjudication by providing for an extension of the time for filing a civil-forfeiture complaint by agreement of the parties or upon a showing of good cause as explained in R.C. 2981.03(F).

If the prosecutor elects to pursue criminal forfeiture, then under R.C. 2981.04, it must include in the charging instrument a specification of forfeiture that complies with R.C. 2941.1417 for all property foreseen to be subject to foreclosure.

The forfeiture specification gives notice to the defendant of the potential forfeiture penalty. State v. Brimacombe, 195 Ohio App.3d 524, 2011-Ohio-5032, ¶ 65, 960 N.E.2d 1042 (6th Dist.). As required by R.C. 2981.04(A), the specification must notify the defendant of:

  1. a description of the property;
  2. the nature and extent of the alleged offender’s or delinquent child’s interest in the property; and
  3. if the property is alleged to be an instrumentality, the alleged use or intended use of the property in the commission or facilitation of the offense.

R.C. 2981.05(B) explains the role of the prosecutor prior to filing any petition for forfeiture of seized property:

The prosecutor shall attempt to identify any person with an interest in the property subject to forfeiture by searching appropriate public records and making reasonably diligent inquiries.

The prosecutor shall give notice of the commencement of the civil action, together with a copy of the complaint, to each person who is reasonably known to have any interest in the property, by certified mail, return receipt requested, or by personal service.

The prosecutor shall cause a similar notice to be published once each week for two consecutive weeks in a newspaper of general circulation in the county in which the property is located.

Pursuant to R.C. 2981.05(D), the trial court shall issue a civil forfeiture order if:

“the prosecutor proved by a preponderance of the evidence that the property is subject to forfeiture under section 2981.02 and after a proportionality review under section 2981.09 of the Revised Code when relevant, the trier of fact specifically describes the extent of the property to be forfeited.”

Read more about cases involving seizures for forfeiture by the Columbus Police, including the seizure for forfeiture of vehicles in Columbus, OH.


What are the Requirements for Civil Asset Forfeiture in Ohio?

Civil forfeiture in Ohio is initiated by filing “a complaint requesting an order that forfeits the property to the state or a political subdivision.” R.C. 2981.05(A).

With few exceptions, a civil-forfeiture complaint must be filed within 60 days of the property’s seizure. Under R.C. 2981.03(F), the filing period may be extended by agreement of the parties or by the trial court upon a showing of good cause.

Forfeiture may be ordered only after the prosecuting attorney has identified and notified parties with an interest in the property, the trial court has conducted a hearing, and the trier of fact has found that the property is subject to forfeiture. See R.C. 2981.04(A) and (B), 2981.05(B) and (D), and 2981.03(A)(1).

Before the final forfeiture adjudication, the state or a political subdivision holds “provisional title to property subject to forfeiture,” permitting the state or political subdivision to seize, hold, and protect the property. “Title to the property vests with the state or political subdivision when the trier of fact renders a final forfeiture verdict or order.” R.C. 2981.03(A)(1); see also R.C. 2981.04(G) and 2981.05(E).

A person with an interest in the seized property may seek its return by either:

  • Filing a petition in the civil-forfeiture proceeding under R.C. 2981.05(C); or
  • Filing a motion in the criminal case before the prosecuting attorney has filed a charging instrument containing a forfeiture specification under R.C. 2981.03(A)(4).

In either a criminal or civil asset forfeiture case in Ohio, the trial court must conduct a hearing and must return the property upon proof of entitlement to the property. R.C. 2981.03(A)(4) and 2981.05(B) and (C).

In the absence of a final forfeiture adjudication, the state’s interest in the property seized remains “provisional.” See R.C. 2981.03(A)(1).

Read more about seizures for civil asset forfeitures by the Ohio State Highway Patrol.


Will the Court Appoint a Civil Asset Forfeiture Attorney to Represent Me?

Ohio law provides no right to counsel in a civil action. A forfeiture action, while instituted as a criminal penalty, is still classified as a civil proceeding. Id. at ¶ 31.

When a criminal defendant is subject to a forfeiture proceeding under R.C. 2981.04, the sole possible sanction is the state’s confiscation of property or contraband. In other words, the criminal proceeding and the forfeiture proceeding are separate and distinct events. R.C. 2981.04(B); State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008 Ohio 6634.

This means that the forfeiture proceeding cannot result in the imposition of an additional term of actual incarceration. Even though the forfeiture hearing in the underlying action was criminal in nature, the person whose property is seized is not constitutionally entitled to be represented by an attorney during that aspect of her criminal prosecution.

A defendant does not have a constitutional right to counsel for purposes of a forfeiture hearing and no separate constitutional right to effective assistance of counsel. Wainwright v. Torna, 455 U.S. 586, 587-588, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982).

Likewise, the federal courts have also held that there is no right to counsel in forfeiture cases, whether they be criminal or civil in nature. The federal courts have also found no Sixth Amendment right to counsel in a civil forfeiture proceeding.


Additional Resources

Forfeiture Unit of the Franklin County Prosecutors Office – Prosecutors in the forfeiture unit at the Franklin County Prosecutors Office enforce Ohio’s forfeiture laws after law enforcement officers seize property under the provisions of Ohio Revised Code Section 2981. To be lawful, the initial seizure must be based on probable cause that the property was derived from the commission of felony criminal activity or used in the commission of felony criminal activity.


This article was last updated on Thursday, April 8, 2021.

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