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How Virginia law sets people up to lose their property to police

When a police officer pulls you over for a traffic stop in Virginia, you probably expect temporary inconvenience and maybe a ticket. What you might not realize is that if the stop goes poorly, the officer could arrest you and possibly take your vehicle.

Civil asset forfeiture laws give police officers the legal authority to take a person’s property if they suspect that property played a role in criminal activity. Cars, electronics, large amounts of cash and even houses are subject to civil asset forfeiture.

While these laws aim to curtail the financial incentives for criminal enterprise, civil asset forfeiture can also affect those who aren’t involved in any kind of organized criminal activity. The way the law works in Virginia is particularly disadvantageous to individuals trying to fight against the forfeiture of their property, earning the state a D- rating from national watchdog groups on the issue. 

In civil asset forfeiture cases, the burden of proof falls to the victim

Usually, when the state wants to allege criminal activity on the part of an individual, they have a burden to prove beyond a reasonable doubt that the accused person engaged in unlawful acts. Unfortunately, the burden of proof shifts from the state to the individual in civil asset forfeiture cases.

In fact, the standard for proof is also lower in these cases. Police don’t have to prove beyond a reasonable doubt that a crime occurred and you played a role. They only have to show that the preponderance of evidence supports their claims.

This lower standard of evidence is universal in civil cases but especially damaging for those fighting a forfeiture. It means that the individual who had their property taken by the police will have to somehow prove that the property was not the result of or used for criminal activity.

Police departments get to keep what they take from people

As if shifting the burden of proof to the person whose property gets taken wasn’t bad enough, the Virginia civil asset forfeiture system allows police departments to directly profit from the possessions that they take from citizens. This creates a financial incentive to conduct civil asset forfeiture against possibly innocent people or against property that played no role in criminal activity.

If you have had your property seized and want to get back, partnering with an attorney who is familiar with this intersection of civil and criminal law can help you.

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