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Colorado Criminal Law – The Forfeiture of Personal Property Under Colorado’s Civil Forfeiture – Public Nuisance Laws

The Colorado Criminal Defense Law Firm – for Civil Forfeiture/Public Nuisance Lawyer – H. Michael Steinberg

Certain laws in Colorado permit the government to attempt to seize and forfeit to the State of Colorado – property used in the commission of a crime:

Here is the Text of Each Law- The First is:

Colorado Public Nuisance Abatement Act (CRS 16-13-302 et seq.)

Legislative Intent: Policy of general assembly that every public nuisance shall be restrained, prevented, abated and perpetually enjoined. Proceedings are intended to be remedial and equitable in nature not punitive.

Basis for Forfeiture: Permits the forfeiture of any (or part of a) building, the ground upon which it is situated, all fixtures and contents, vehicles, currency, or any real property deemed to be a Class 1 public nuisance (There are Class 1,2,3, 4–only Class 1 allows for forfeiture)

Class 1 Public Nuisance when property is used for, intended for use, or are proceeds traceable to (16-13-303)

(a) prostitution (b) gambling (c) manufacture, cultivation, growth, production, sale, storage or possession of a controlled substance or any other drug for which the possession is an offense under the laws of this state, or any imitation controlled substance (except possession of less than 8 ounces of marijuana) (e) theft by receiving (f) manufacture, sale, distribution of drug paraphernalia (g) prostitution of a child (h) sexual exploitation of a child (i) used in the commission of any felony (j) used in the commission of felony vehicular eluding (k) used in commission of hit and run with serious bodily injury or death (l) used in commission of drive-by crime

Property Title: Upon seizure (probable cause), all rights, title, and interest in seized property shall immediately vest in the state

Affirmative Defense: If owner proves by preponderance of evidence that the person took all reasonable steps to avoid, prevent, abate improper use of property (16-13-303 (5.2)

Burden of Proof: Plaintiff- Preponderance of evidence that possession of property is unlawful or that the owner of the property or interest therein was involved in, knew of the subject act, or reasonably should have known of the subject act.

Evidentiary Presumption: Rebuttable presumption of “substantial connection” between currency and the acts specified if: currency in the amount of $1,000 or more was seized at or close to the time of the act and current was seized, or if traces of controlled substances were discovered on the currency or if animal indicates the presence of the odor of a controlled substance on the currency.

Trial to court–no jury (16-13-307)

No right to counsel (can’t claim ineffective assistance of counsel People v. Cobb, 944 P.2d 574 (Colo.App.1996)

Forfeiture does not require criminal conviction Sandstrom v. District Court (884 P.2d 707 Colo.1996)

Disposition of proceeds: (16-13-311)

(a) Sheriff sells property-is reimbursed for costs of sale, maintenance

(b) plaintiff for costs of forfeiture action

(c) balance to seizing agency/agencies substantially involved with court order finding that proceeds can be used by seizing agency (either cash from sale or property in lieu of sale)

(d) Any person who suffers bodily injury or property damage as a result of action deemed a nuisance if person petitions the court.

Proceeds received are not considered part of normal operating budget

Reporting of Forfeited Property:

16-13-302 “each seizing agency which receives forfeiture proceeds shall conform with reporting, audit, and disposition procedures enumerated in this article.” (16-13-701)

16-13-701 went into effect 7/1/92

Here is the Second Law:

The Colorado Contraband Forfeiture Act (CRS 16-13-501, et seq.)

Legislative Intent: Proceedings are remedial in nature and designed to benefit the public good by appropriating contraband property for use by law enforcement.

Basis for Forfeiture: Permits the forfeiture of vehicle, currency, fixtures and contents of building, personal property or contraband property which is used, intended for use, or represent proceeds traceable to:

(a) Any unlawful manufacture, cultivation, growth, production, possession, transportation, carrying, concealing, processing, or distribution for sale of, or sale of any controlled substance, imitation controlled substance or drug paraphernalia (except possession of less than 8 ounces of marijuana)

Property Title: Upon seizure (probable cause), all rights, title, and interest in seized property shall immediately vest in the state

Affirmative Defense: Property owner must prove by preponderance of evidence that the person took all reasonable steps to prevent the property from becoming involved in subject act

Burden of Proof: Plaintiff- Preponderance of evidence that possession of property is unlawful or that the owner of the property or interest therein was involved in, knew of the subject act, or reasonably should have known of the subject act.

Evidentiary Presumption: Rebuttable presumption of “substantial connection” between currency and the acts specified if: currency in the amount of $1,000 or more was seized at or close to the time of the act and current was seized, or if traces of controlled substances were discovered on the currency or if animal indicates the presence of the odor of a controlled substance on the currency.

Trial to court-no jury

No right to counsel (can’t claim ineffective assistance of counsel People v. Cobb, 944 P.2d 574 (Colo.App.1996)

Forfeiture does not require criminal conviction Sandstrom v. District Court (884 P.2d 707 Colo.1996)

Disposition of proceeds: (in this order)

(a) to sheriff for reasonable fees and costs of sale;

(b) payment of the balance due on any lien

(c) 10% to general fund for appropriation to judicial department for payment of costs of proceeding

(d) 10% to general fund for appropriation to the department of public safety for law enforcement purposes (including, but not limited to administration of the Department of Corrections DOC)

(e) 1.5% to district attorney as fees

(f) Balance

(1) seizing agency for costs of storage, maintenance, security and forfeiture of such action

(2) to the seizing agency (cash or property in lieu of sale)

(3) to any person who suffers bodily injury or property damage as a result of subject acts which resulted in forfeiture if person petitions the court.

Receipt of federally forfeited property: authorizes state law enforcement to receive proceeds from any property forfeited by the federal government pursuant to 21 U.S.C. 881(e). Such revenues shall be in addition to moneys appropriated to law enforcement by general assembly. (16-13-601)

Reporting of Forfeited Property: Each seizing agency which receives any property or proceeds which have been forfeited under state or federal law shall submit a written report to the governmental body which has approval authority over the budget of such seizing agency and to the Colorado Department of Local Affairs. Such report shall include an accounting of how any forfeited moneys were expended in the fiscal year. Such information is subject to audit in accordance with 29-1-6-CRS (16-13-701)

Reporting requirement does not apply to the attorney general, the Colorado state patrol, or CBI.

Summary of Colorado Civil Forfeiture Laws:

Local forfeiture operations such as Oakland’s are contrary to basic principles of due process and fundamental fairness, in the following ways:

• Punishment without conviction. Under these Colorado laws, a vehicle can be seized and sold without anyone being convicted, or even arrested, for the underlying criminal offense. In fact, the eventual dismissal or even acquittal of the criminal charge does not result in the return of the vehicle.

• No presumption of innocence. The bedrock principle of our justice system — that persons accused of crime are innocent until proven guilty — is violated by this Laws. If you are accused of buying drugs or soliciting a prostitute, your car can be seized by the police without a warrant or any prior judicial hearing. Once your car is seized, the burden is on the owner to get back the car back, even if the owner had no knowledge that it was used for illegal activity. This disregard for the norms of our justice system would continue in the courts, where the traditional requirements of a right to a jury trial and that the government prove its case beyond a reasonable doubt are denied under these laws.

• Punishment of the innocent. Under federal and state forfeiture laws, the vehicles of innocent owners that are used for illegal purposes without their knowledge or consent are not subject to forfeiture. In Colorado while there is an “innocent owner” defense – (that is -loaning your car to your teenager or your spouse for example) – which may be sufficient grounds defend this kind of action – your car may still be subjected to government confiscation and loss of title if it is used for illegal purposes. A family could lose its only car, even if it were needed for transportation to school or jobs.

• Disproportionate punishment. The United States Supreme Court has held that the Eighth Amendment’s prohibition against excessive fines applies to civil forfeitures where the property forfeited is grossly disproportional to the gravity of the offense. The forfeiture of a vehicle based on the purchase of a small amount of marijuana (an offense with a maximum fine of $100) constitutes disproportionate punishment, particularly if the vehicle owner was innocent of any involvement in the illegal activity.

The irresistible attraction of forfeiture as a law enforcement weapon is that it provides an end run around the procedural safeguards of the criminal justice system. Thus, it is not surprising that police and prosecutors will choose to punish persons accused of these offenses by forfeiting their property rather than through the criminal courts.

The basic unfairness is heightened by one overwhelming practical reality – very few vehicle owners whose cars have been seized will have an attorney to represent them. Indigent persons are entitled to a public defender in a proceeding labeled “civil,” and in most cases a retained attorney costs more than the property is worth. Thus, very few people are in a position to contest a forfeiture in court and raise their innocent owner defense or their disproportionate punishment claim.

The absence of representation means that the implementation of the forfeiture system takes place without the public scrutiny that comes from court review.

This is a real problem for a law that is implemented by the police setting up sting operations where police officers pose as prostitutes and drug dealers to attract motorists, and where the proceeds from the forfeiture sale go directly to the coffers of the police and prosecutors. Abusive enforcement of the law – such as illegal entrapment or racial profiling – take place out of sight, given the practical impediments to contesting a forfeiture in court. This direct link between the absence of representation and the potential for abuses in forfeiture laws was recently recognized by Congress in the Reform Act of 2000, which authorizes appointment of counsel for those who cannot afford representation.

In addition to the criminal penalties associated with some crimes, the police can also execute a civil forfeiture, which allows them to seize property before a conviction, and in some cases before charges are filed. This is completely separate from the criminal proceeding, and one does not necessarily have bearing on the other. Unfortunately the civil forfeiture has a lower standard and the police can keep a car, property, or money with very little evidence of a crime. There are time limits on when they must have a hearing and how long they can seize the property. You should contact an experienced attorney today to help you through the civil forfeiture action.

The government is allowed to seize the property under a theory that your continued possession of the item is a public nuisance. They can then seize it, and in many cases hold onto it for a long time without a hearing or any ability to challenge its seizure and impending forfeiture.

Reaching the Detective can be difficult and many times they will try and push you off until the hearing date.

These obstacles can make this a very difficult situation. Having an attorney can help you navigate the process. It can also create a buffer between you and the police which can, in some cases, lead to a quicker resolution of the situation.


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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