Who bears the burden of proof in a civil forfeiture case in Virginia?

If you were arrested or someone you know had your property seized and was charged with a crime, the prosecutor could try to seize and sell your assets through a civil asset forfeiture case.  In these cases, the Virginia forfeiture burden of proof is divided between the government and you, the property owner making a claim. 

The Commonwealth must establish the initial grounds for forfeiture. Then, if you’re an innocent owner, you bear the burden of proving your blamelessness to get your property back.

At the Wilson Law Firm, our experienced Manassas civil asset forfeiture lawyers understand how stressful it can be to have prosecutors attempt to seize your valuable property. We’re here to aggressively defend against any criminal charges you face and fight to get your assets back.

What Is Civil Asset Forfeiture in Virginia?

Civil asset forfeiture is a legal mechanism that empowers the government to seize property believed to be connected to criminal activity. In Virginia, law enforcement can take possession of assets like cash, vehicles, and even homes if they suspect the property is linked to crimes such as drug distribution or trafficking, felony DUI, prostitution, illegal gambling, or white collar crimes. 

The forfeiture process operates independently of criminal charges, meaning owners can lose their property even if they are not convicted or accused of a crime. Virginia Code § 19.2-386.1 outlines the procedures for these civil actions.

What Procedure Must the Prosecutor Follow in a Civil Asset Forfeiture Case? 

To permanently keep seized property, the government must follow a strict legal process to protect owners' due process rights. They must file a civil lawsuit to seize and sell your assets. Here are the steps they must take:

1. The prosecutor would file a Notice of Forfeiture in civil court, separate from any criminal case.
2. You must be personally served with the notice, or it must be posted at your last known address.
3. You would have a brief window—less than 30 days—to formally challenge the forfeiture.
4. A judge would hold a hearing to determine if your property is tied to criminal activity. 

Civil forfeiture laws pose significant risks to you by allowing the government to seize assets without securing a conviction. Understanding how the process works is the first step toward effectively fighting to reclaim property that has been wrongfully taken. Consulting with our skilled civil asset forfeiture lawyers immediately after receiving notice is critical to protecting your rights and interests.

What Is the Government's Burden of Proof in a Virginia Forfeiture Case?

The Virginia forfeiture burden of proof requires the government to prove by a preponderance of the evidence that the property is subject to forfeiture. The prosecutor must show it's more likely than not that a substantial connection exists between your property and illegal transactions. This standard is lower than the "beyond a reasonable doubt" threshold in criminal cases but higher than the “clear and convincing” standard of proof in civil lawsuits. 

The Commonwealth need not prove your involvement in or knowledge of the illegal activity. The government's burden focuses solely on demonstrating that the seized assets were involved in criminal activity and that it has the right to retain and sell the property.

How the Virginia Forfeiture Burden of Proof Shifts to You If You’re an Innocent Owner Trying to Recover Your Property

Even if the Commonwealth proves the property is subject to forfeiture, you may still be able to get your assets back by raising the innocent owner defense or other defenses. However, once the prosecution meets its initial Virginia forfeiture burden of proof, it would shift to you to prove you neither knew nor should have known of the conduct giving rise to the forfeiture.

Under Virginia's innocent owner defense, you must show by a preponderance of the evidence that you:

• Did not know of the conduct giving rise to the forfeiture, or
• Upon learning of the conduct, took reasonable steps to prevent the illegal use of the property

This burden often requires demonstrating a lack of actual knowledge through records, witness testimony, or evidence of your habits and practices regarding your property. Proving reasonable prevention efforts may involve detailing steps like:

• Communicating clear prohibitions on using the property illegally
• Monitoring the asset's location and condition
• Promptly reporting suspected wrongdoing to law enforcement

Let the Wilson Law Firm Help You Recover Your Assets

While having the government try to seize your property can be scary, understanding the burden of proof can empower you to fight back strategically. Our skilled civil forfeiture lawyers can raise your defenses and gather the documentation and testimony you need to meet your burden of proof and reclaim seized property. 

We can also poke holes in the prosecutor’s case to show that they haven’t met their burden of proof to keep and sell your assets. By holding the government to its evidentiary obligations and asserting a strong innocent owner defense when appropriate, our legal team can help you achieve a favorable outcome in your civil asset forfeiture case. We’ll also mount a vigorous defense strategy to have your criminal charges dismissed or reduced to a lesser offense if you’re facing criminal charges.