Asset forfeiture is a big business in Tennessee.
by Bob Vogel, AttorneyThe Vogel Law Firm
Knoxville, TN
rlvogel@robertvogellaw.com
865-357-4315
It's easy revenue for the county and the state. And, it's easy for them to do. All of the laws are set up to favor the State. There is no public trial. There is no public hearing. There is no jury. You have to hire your own lawyer. The State gets their own lawyer.
You then get to go to a hearing in some basement in some building that is not a courthouse. You talk to the State's attorney and the officer who took your stuff, like they'll ever say they were wrong. They want to make a deal with you. They want you to agree to let them keep your stuff. Or, they want you to agree to pay for it, or, if it's cash, split it with them. Bottom line, they want your stuff.
If you did this, by the way, you would go to jail for theft.
Or, you can have a hearing. An administrative law judge, not an elected one, but one appointed by the State, will hear your argument against the State. You have to prove that they don't have probable cause to keep your stuff. Otherwise, they keep your stuff.
Oh, and you have to post a $350 bond in order to even get a hearing. Unless you are indigent in which case they mostly don't believe you and make you post the bond, anyway. The same people who took your stuff get to decide if you have to post a bond.
Has this started to make you angry yet?
How can they do that? The legislature said they could.
Is it constitutional? I don't think so. I think it is a flaming violation of your rights under both the State and Federal Constitution. Unfortunately, so far, the Tennessee Supreme Court doesn't agree with me. You see, this action generally applies to people who society thinks of as criminals. So, it's okay to violate criminal's rights, isn't it? I believe it is a violation of your right to a trial and a violation of your due process rights.
Do you have to be convicted first? No. Surprisingly, simply being arrested or simply having an office believe there is probable cause you did something wrong can permit them to take your car.
So, how does it work? They can take your car, your property and your money if you committing a crime or, if the police officer has probable cause to believe you are committing a crime.
What crimes?
Any of the following activities subject you to possible forfeiture of your car or other assets:
- Stuff you use to commit arson (burning down something you shouldn't burn down);
- Violation of someone's personal rights as regulated by trade practices (you put Smokey's picture on a bunch of T shirts and sell them without permission);
- Drugs - pretty much any crime related to drugs - possession, sale, delivery, manufacture - and that can be prescription drugs as well as meth;
- Driving after you lost your license for a DUI;
- they can take alcohol sold by an unlicensed dealer;
- they can take untaxed alcohol;
- they can take untaxed tobacco products;
- they can take your car and equipment for storing or transporting illegally captured game, specifically, bear and deer.
What if I owe money on the car, or boat etc.? You still owe the money. The lender can make a claim against the asset, but if you don't and the lender doesn't, you still owe. You still have to make your payments. I had a client whose car was seized and he made payments for over a year before he got it back.
What can I do? Get a lawyer - they have one. If you want your asset back, then you have to either fight for it or buy it back.
What can I do to fix this horrible law? Write to your State representatives and get all of your friends and family to do it. Tell them you won't vote for them unless they fix this unconstitutional crap.
Here's some more information from the State website and from the code.
Contact me if you have questions or have had an asset seized by the State - don't take too long - time is your enemy here.
Bob Vogel
rlvogel@robertvogellaw.com
865-357-1949
www.robertvogellaw.com
Asset Forfeiture Division of the State of Tennessee
Asset Forfeiture Statute: T.C.A. 40-33-201 et seq.
Local agencies responsible for direct law enforcement seize property consisting of vehicles, money, real property, and other miscellaneous property. The agency then sends the paperwork to the Legal Division to process as jurisdiction has been given to the Commissioner of Safety for the disposition of this property. Property may be seized for possession of narcotics, illegal or prescription. Vehicles may be seized for driving on a driver’s license which has been revoked for driving under the influence and for driving under the influence for a second or subsequent time. Both DUI charges must have occurred within five years of each other.
The Notice of Seizure and Forfeiture of Conveyances form is completed by the Officer at the time the property is seized. He gives this to the person in possession of the property being seized as a receipt to show that the property is, in fact, being seized. He is then responsible for taking this Notice of Seizure and a completed Forfeiture Warrant to a local Judge to show probable cause for the seizure. If the Judge finds probable cause for the seizure, he signs the Warrant.
Once the Warrant is signed, the Notice of Seizure form and the signed Warrant are submitted to the Legal Division. Notice that a Forfeiture Warrant has been signed is sent by certified mail to anyone reasonably located who may have an interest in this property. They are responsible for filing a petition requesting a hearing within thirty (30) days of receiving the letter and signing the certified mail receipt.
Once a petition is filed, the case is set for hearing to determine the disposition of the property. Notice of the hearing date is sent to all parties who have filed a petition about thirty (30) days before the hearing is set. This hearing will be presided over by an Administrative Law Judge out of the Secretary of State Administrative Procedures Division. The State has prosecuting attorneys for these hearings. Claimants may hire their own defense attorney, at their expense, or may choose to represent themselves.
If a lien holder is listed on the title of a seized vehicle and a claim is filed by this lien holder only, there is not a hearing set. The State’s Attorney will review the case and verify the lien. An Order will be then be issued forfeiting the property to the seizing agency subject to the lien. This allows the vehicle to be returned to the lien holder to satisfy the lien, or for the Agency which seized the vehicle to keep the vehicle and pay the lien holder their respective lien (being the lien at time of seizure less any payments made).
On the hearing date, the State’s Prosecuting Attorney and the Officer who seized the property will first try to negotiate an out of court settlement for the case with the claimants. If no settlement can be reached or if all parties are not present, the case will be continued to a new hearing date, probably about three months in the future. If a settlement is reached, the State’s Attorney will prepare a Proposed Civil Settlement Form. The parties will all sign showing agreement with the settlement, and an Order will be prepared in accordance with the civil settlement agreement.
At a second date, if no settlement can be reached and all parties are present, the case will proceed to a hearing before the Administrative Law Judge. The Judge will normally take a case under advisement and render his decision at a later date, usually in sixty (60) to ninety (90) days. It is possible that a case may be continued for cause by agreement at any stage of the hearing; however, most continuances will require a motion to continue and a determination by the Administrative Law Judge.
The Judge’s ruling is normally for the property to be sold at public auction, put into service, or returned to the claimant. Public auctions are the responsibility of the law enforcement agency that seized the vehicle.
If either party chooses to appeal an adverse decision of the Judge, they may do so by filing an initial appeal with the Commissioner of Safety in Nashville.
Further appeals may be had by moving the case into the Chancery Court of Davidson County, in Nashville, only.
40-33-201. Application.
All personal property, including conveyances, subject to forfeiture under § 39-14-307, § 47-25-1105, § 53-11-451, § 55-50-504(h), § 55-10-414, § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020 or § 70-6-202, shall be seized and forfeited in accordance with the procedure set out in this part.
Warrant Requirement:
Tenn. Code Ann. § 40-33-204 (2013)
First of 2 versions of this section
40-33-204. Forfeiture warrant. [Effective until January 1, 2014. See the version effective on January 1, 2014.]
(a) Once personal property is seized pursuant to an applicable provision of law, no forfeiture action shall proceed unless a forfeiture warrant is issued in accordance with this section by a general sessions, circuit, criminal court or popularly elected city judge. The forfeiture warrant shall authorize the institution of a forfeiture proceeding under this part. As used in this subsection (a), "popularly elected city judge" means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
(b) The officer making the seizure shall apply for a forfeiture warrant by filing a sworn affidavit within five (5) working days following the property seizure. The forfeiture warrant shall be based upon proof by affidavit and shall have attached to it a copy of the notice of seizure. The hearing on the application for a forfeiture warrant shall be ex parte and shall be recorded. It is the duty of the court to maintain the recording. Certified copies of the proceeding shall be made available to any party requesting them, and the same shall be admissible as evidence. The affidavit in support of a forfeiture warrant shall be sworn to and state the following:
(1) The legal and factual basis making the property subject to forfeiture;
(2) If the owner or co-owner of the property was not the person in possession of the property at the time of seizure and can be determined from public records of titles, registrations or other recorded documents, the affidavit shall state with particular specificity the officer's probable cause for believing that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture as well as the legal, and factual basis for forfeiture of the interest; and
(3) If the interest of a secured party with a duly perfected security interest as reflected in the public records of titles, registrations or other recorded documents, is sought to be forfeited, the affidavit shall state with particular specificity the officer's probable cause that the secured party's interest in the property is nevertheless subject to forfeiture as well as the legal and factual basis for forfeiture of the interest.
(c) (1) The judge shall issue the forfeiture warrant if the judge finds that the offered proof establishes probable cause to believe that:
(A) The property is subject to forfeiture; and
(B) If the property is owned by one whose interest is described in public records of titles, registrations or other recorded documents, that the owner's interest is subject to forfeiture under the applicable provision of law.
(2) If the seizing officer asserts to the judge that the officer was unable to determine the owner of the seized property or whether the owner's interest is subject to forfeiture within the required five-day period, the judge may grant up to ten (10) additional days to seek a forfeiture warrant if the judge finds that the seizing officer has:
(A) Exercised due diligence and good faith in attempting to determine the owner of the property or whether the owner's interest is subject to forfeiture; and
(B) Made a factual showing that because of the existence of extraordinary and unusual circumstances an exception to the five-day forfeiture warrant requirement is justified.
(3) General sessions judges may authorize magistrates or judicial commissioners to issue forfeiture warrants. Prior to the authorization, the judges shall train and certify that the magistrates or judicial commissioners understand the procedure and requirements relative to the issuance of a forfeiture warrant.
(d) If the person in possession of the property is not the registered owner as determined from public records of titles, registrations or other recorded documents, the judge may consider other indicia of ownership that proves that the possessor is nonetheless an owner of the property. Other indicia of ownership shall include, but is not limited to, the following:
(1) How the parties involved regarded ownership of the property in question;
(2) The intentions of the parties relative to ownership of the property;
(3) Who was responsible for originally purchasing the property;
(4) Who pays any insurance, license or fees required to possess or operate the property;
(5) Who maintains and repairs the property;
(6) Who uses or operates the property;
(7) Who has access to use of the property; and
(8) Who acts as if they have a proprietary interest in the property.
(e) If the owner or co-owner of the property was not the person in possession of the property at the time of the seizure and can be determined from public records of titles, registrations or other recorded documents, the judge shall put the seizing officer under oath and ask the following questions:
(1) What is the officer's probable cause that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture;
(2) What is the officer's probable cause that the co-owner or co-owners who are not in possession of the property at the time it was seized were co-conspirators to the activity making the property subject to forfeiture; and
(3) Any other questions necessary to determine the legal and factual basis for forfeiture.
(f) If a secured party's interest is sought to be forfeited, the judge shall put the seizing officer under oath and ask the following questions:
(1) What is the officer's probable cause that the secured party is a co-conspirator to the activity making the property subject to forfeiture;
(2) Did the secured party at the time the interest attached, have actual knowledge of the intended illegal use of the property; and
(3) Any other question deemed necessary to determine the legal and factual basis for forfeiture of the secured party's interest.
(g) Upon issuance of the forfeiture warrant, the judge shall retain the affidavit relied upon in support of the warrant and the officer shall, within seven (7) working days, send the warrant, a copy of the affidavit and the notice of seizure to the applicable agency. By signing and issuing the forfeiture warrant, the judge is affirming that the required finding of probable cause necessary to issue the warrant has been made. Upon receipt of the documents, the applicable agency shall notify any other owner, as may be determined from public records of titles, registrations or other recorded documents, or secured party that a forfeiture warrant has been issued. Upon receipt of the notice of seizure and forfeiture warrant and after interviewing any witnesses, the applicable agency shall release the property if there is no legal and factual basis for forfeiture. The seizing agency shall maintain a copy of the notice of seizure for all property seized at its main office and the notices and receipts shall be public records.
(h) If no forfeiture warrant is issued, and the property is not needed for evidence in a criminal proceeding, the seizing agency shall immediately return the property to the owner, as determined from public records of titles, registrations or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure.
(i) Upon the request of any general sessions, circuit, criminal court or popularly elected city judge, the administrative office of the courts shall provide a cassette tape recorder for the purpose of recording the hearing on the application for a forfeiture warrant. As used in this subsection (i), "popularly elected city judge" means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
Driving on suspended, revoked license due to DUI conviction
55-50-504(h) (1) The vehicle used in the commission of a person's violation of § 55-50-504, when the original suspension or revocation was made for a violation of § 55-10-401, or a statute in another state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, part 2. The department is designated as the applicable agency, as defined by § 40-33-202, for all forfeitures authorized by this subsection (h).
(2) For purposes of clarifying this subsection (h) and consistent with the overall remedial purpose of the asset forfeiture procedure, a vehicle is subject to seizure and forfeiture upon the arrest or citation of a person for driving while the person's driving privileges are cancelled, suspended or revoked. A conviction for the criminal offense of driving while the person's driving privileges are cancelled, suspended or revoked is not required.
Local agencies responsible for direct law enforcement seize property consisting of vehicles, money, real property, and other miscellaneous property. The agency then sends the paperwork to the Legal Division to process as jurisdiction has been given to the Commissioner of Safety for the disposition of this property. Property may be seized for possession of narcotics, illegal or prescription. Vehicles may be seized for driving on a driver’s license which has been revoked for driving under the influence and for driving under the influence for a second or subsequent time. Both DUI charges must have occurred within five years of each other.
The Notice of Seizure and Forfeiture of Conveyances form is completed by the Officer at the time the property is seized. He gives this to the person in possession of the property being seized as a receipt to show that the property is, in fact, being seized. He is then responsible for taking this Notice of Seizure and a completed Forfeiture Warrant to a local Judge to show probable cause for the seizure. If the Judge finds probable cause for the seizure, he signs the Warrant.
Once the Warrant is signed, the Notice of Seizure form and the signed Warrant are submitted to the Legal Division. Notice that a Forfeiture Warrant has been signed is sent by certified mail to anyone reasonably located who may have an interest in this property. They are responsible for filing a petition requesting a hearing within thirty (30) days of receiving the letter and signing the certified mail receipt.
Once a petition is filed, the case is set for hearing to determine the disposition of the property. Notice of the hearing date is sent to all parties who have filed a petition about thirty (30) days before the hearing is set. This hearing will be presided over by an Administrative Law Judge out of the Secretary of State Administrative Procedures Division. The State has prosecuting attorneys for these hearings. Claimants may hire their own defense attorney, at their expense, or may choose to represent themselves.
If a lien holder is listed on the title of a seized vehicle and a claim is filed by this lien holder only, there is not a hearing set. The State’s Attorney will review the case and verify the lien. An Order will be then be issued forfeiting the property to the seizing agency subject to the lien. This allows the vehicle to be returned to the lien holder to satisfy the lien, or for the Agency which seized the vehicle to keep the vehicle and pay the lien holder their respective lien (being the lien at time of seizure less any payments made).
On the hearing date, the State’s Prosecuting Attorney and the Officer who seized the property will first try to negotiate an out of court settlement for the case with the claimants. If no settlement can be reached or if all parties are not present, the case will be continued to a new hearing date, probably about three months in the future. If a settlement is reached, the State’s Attorney will prepare a Proposed Civil Settlement Form. The parties will all sign showing agreement with the settlement, and an Order will be prepared in accordance with the civil settlement agreement.
At a second date, if no settlement can be reached and all parties are present, the case will proceed to a hearing before the Administrative Law Judge. The Judge will normally take a case under advisement and render his decision at a later date, usually in sixty (60) to ninety (90) days. It is possible that a case may be continued for cause by agreement at any stage of the hearing; however, most continuances will require a motion to continue and a determination by the Administrative Law Judge.
The Judge’s ruling is normally for the property to be sold at public auction, put into service, or returned to the claimant. Public auctions are the responsibility of the law enforcement agency that seized the vehicle.
If either party chooses to appeal an adverse decision of the Judge, they may do so by filing an initial appeal with the Commissioner of Safety in Nashville.
Further appeals may be had by moving the case into the Chancery Court of Davidson County, in Nashville, only.
40-33-201. Application.
All personal property, including conveyances, subject to forfeiture under § 39-14-307, § 47-25-1105, § 53-11-451, § 55-50-504(h), § 55-10-414, § 57-3-411, § 57-5-409, § 57-9-201, § 67-4-1020 or § 70-6-202, shall be seized and forfeited in accordance with the procedure set out in this part.
Warrant Requirement:
Tenn. Code Ann. § 40-33-204 (2013)
First of 2 versions of this section
40-33-204. Forfeiture warrant. [Effective until January 1, 2014. See the version effective on January 1, 2014.]
(a) Once personal property is seized pursuant to an applicable provision of law, no forfeiture action shall proceed unless a forfeiture warrant is issued in accordance with this section by a general sessions, circuit, criminal court or popularly elected city judge. The forfeiture warrant shall authorize the institution of a forfeiture proceeding under this part. As used in this subsection (a), "popularly elected city judge" means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
(b) The officer making the seizure shall apply for a forfeiture warrant by filing a sworn affidavit within five (5) working days following the property seizure. The forfeiture warrant shall be based upon proof by affidavit and shall have attached to it a copy of the notice of seizure. The hearing on the application for a forfeiture warrant shall be ex parte and shall be recorded. It is the duty of the court to maintain the recording. Certified copies of the proceeding shall be made available to any party requesting them, and the same shall be admissible as evidence. The affidavit in support of a forfeiture warrant shall be sworn to and state the following:
(1) The legal and factual basis making the property subject to forfeiture;
(2) If the owner or co-owner of the property was not the person in possession of the property at the time of seizure and can be determined from public records of titles, registrations or other recorded documents, the affidavit shall state with particular specificity the officer's probable cause for believing that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture as well as the legal, and factual basis for forfeiture of the interest; and
(3) If the interest of a secured party with a duly perfected security interest as reflected in the public records of titles, registrations or other recorded documents, is sought to be forfeited, the affidavit shall state with particular specificity the officer's probable cause that the secured party's interest in the property is nevertheless subject to forfeiture as well as the legal and factual basis for forfeiture of the interest.
(c) (1) The judge shall issue the forfeiture warrant if the judge finds that the offered proof establishes probable cause to believe that:
(A) The property is subject to forfeiture; and
(B) If the property is owned by one whose interest is described in public records of titles, registrations or other recorded documents, that the owner's interest is subject to forfeiture under the applicable provision of law.
(2) If the seizing officer asserts to the judge that the officer was unable to determine the owner of the seized property or whether the owner's interest is subject to forfeiture within the required five-day period, the judge may grant up to ten (10) additional days to seek a forfeiture warrant if the judge finds that the seizing officer has:
(A) Exercised due diligence and good faith in attempting to determine the owner of the property or whether the owner's interest is subject to forfeiture; and
(B) Made a factual showing that because of the existence of extraordinary and unusual circumstances an exception to the five-day forfeiture warrant requirement is justified.
(3) General sessions judges may authorize magistrates or judicial commissioners to issue forfeiture warrants. Prior to the authorization, the judges shall train and certify that the magistrates or judicial commissioners understand the procedure and requirements relative to the issuance of a forfeiture warrant.
(d) If the person in possession of the property is not the registered owner as determined from public records of titles, registrations or other recorded documents, the judge may consider other indicia of ownership that proves that the possessor is nonetheless an owner of the property. Other indicia of ownership shall include, but is not limited to, the following:
(1) How the parties involved regarded ownership of the property in question;
(2) The intentions of the parties relative to ownership of the property;
(3) Who was responsible for originally purchasing the property;
(4) Who pays any insurance, license or fees required to possess or operate the property;
(5) Who maintains and repairs the property;
(6) Who uses or operates the property;
(7) Who has access to use of the property; and
(8) Who acts as if they have a proprietary interest in the property.
(e) If the owner or co-owner of the property was not the person in possession of the property at the time of the seizure and can be determined from public records of titles, registrations or other recorded documents, the judge shall put the seizing officer under oath and ask the following questions:
(1) What is the officer's probable cause that the owner or co-owner of the property knew that the property was of a nature making its possession illegal or was being used in a manner making it subject to forfeiture;
(2) What is the officer's probable cause that the co-owner or co-owners who are not in possession of the property at the time it was seized were co-conspirators to the activity making the property subject to forfeiture; and
(3) Any other questions necessary to determine the legal and factual basis for forfeiture.
(f) If a secured party's interest is sought to be forfeited, the judge shall put the seizing officer under oath and ask the following questions:
(1) What is the officer's probable cause that the secured party is a co-conspirator to the activity making the property subject to forfeiture;
(2) Did the secured party at the time the interest attached, have actual knowledge of the intended illegal use of the property; and
(3) Any other question deemed necessary to determine the legal and factual basis for forfeiture of the secured party's interest.
(g) Upon issuance of the forfeiture warrant, the judge shall retain the affidavit relied upon in support of the warrant and the officer shall, within seven (7) working days, send the warrant, a copy of the affidavit and the notice of seizure to the applicable agency. By signing and issuing the forfeiture warrant, the judge is affirming that the required finding of probable cause necessary to issue the warrant has been made. Upon receipt of the documents, the applicable agency shall notify any other owner, as may be determined from public records of titles, registrations or other recorded documents, or secured party that a forfeiture warrant has been issued. Upon receipt of the notice of seizure and forfeiture warrant and after interviewing any witnesses, the applicable agency shall release the property if there is no legal and factual basis for forfeiture. The seizing agency shall maintain a copy of the notice of seizure for all property seized at its main office and the notices and receipts shall be public records.
(h) If no forfeiture warrant is issued, and the property is not needed for evidence in a criminal proceeding, the seizing agency shall immediately return the property to the owner, as determined from public records of titles, registrations or other recorded documents, or if the owner cannot be determined, to the person in possession of the property at the time of seizure.
(i) Upon the request of any general sessions, circuit, criminal court or popularly elected city judge, the administrative office of the courts shall provide a cassette tape recorder for the purpose of recording the hearing on the application for a forfeiture warrant. As used in this subsection (i), "popularly elected city judge" means a licensed attorney who is elected to the office of city judge pursuant to title 16, chapter 18, part 2.
Driving on suspended, revoked license due to DUI conviction
55-50-504(h) (1) The vehicle used in the commission of a person's violation of § 55-50-504, when the original suspension or revocation was made for a violation of § 55-10-401, or a statute in another state prohibiting driving under the influence of an intoxicant, is subject to seizure and forfeiture in accordance with the procedure established in title 40, chapter 33, part 2. The department is designated as the applicable agency, as defined by § 40-33-202, for all forfeitures authorized by this subsection (h).
(2) For purposes of clarifying this subsection (h) and consistent with the overall remedial purpose of the asset forfeiture procedure, a vehicle is subject to seizure and forfeiture upon the arrest or citation of a person for driving while the person's driving privileges are cancelled, suspended or revoked. A conviction for the criminal offense of driving while the person's driving privileges are cancelled, suspended or revoked is not required.
1. Abolition of property in land and application of all rents of land to public purposes. 2. A heavy progressive or graduated income tax. 3. Abolition of all right of inheritance. 4. Confiscation of the property of all emigrants and rebels.
ReplyDeleteThats the US Constitution as amended by the Communist Manifesto. My sister is a law professor from Yale and Webb. She calls herself a "proud Marxist Communist. As a public defender she handled, 1000s of cases but only won 1 when her "guilty" client told her what to do. She had zero interest in reading textbooks on DUI defense by lawyers such as Lawrence Taylor. She joined an army of millions who want a totalitarian police state to keep her safe and employed regardless of her own lack of performance.