Know Your Rights - Civil Asset Forfeiture

When the police take your property with the intent to keep it that is what is known as civil asset forfeiture. Civil asset forfeiture laws allow the police to take your property that they believe was:

• used to commit a crime (like a car you drove),
• money that they think you made committing a crime, or
• something they think was purchased with money from a crime (like a house).

They can take your property even if you are not arrested for or convicted of a crime, or are not the one accused of committing a crime, you only have to own the property.

In Illinois, the laws have been improved in the last five years to make sure that you don’t have to prove your innocence, the government has to prove your guilt, and at a higher level of evidence than before. The new laws also include a faster process for property owners who are not accused of a crime, get rid of the requirement to pay before getting your case heard in court, and require that higher amounts of money and alleged criminal activity are necessary for the police to take your property.

Because this is a civil case, and not a criminal case, you will not be appointed a lawyer, even if you can’t afford one. If you need more information on how to navigate your court case or to find free or low-cost legal help please visit ILcourthelp.gov and the Illinois Legal Aid Online page for civil asset forfeiture cases.

If the property that was taken from you was your car, and you need it while the case is being decided in order to get to essential places such as work, childcare, or doctor’s appointments, you can file a “hardship motion” asking the court to temporarily return your car. You should file this motion within 28 days of the first court hearing. The court will then have a hearing to decide if you qualify to get your car back while the case is being decided.

If you are the owner of the property that was taken but you were not aware of, responsible for, or involved in the alleged crime, you have the right to an “innocent owner hearing” to try to get your property back more quickly.

To request an innocent owner hearing you will file a motion with a supporting affidavit. You do not have to wait for the criminal case to resolve to file a motion for this hearing but you do have to wait until after the case is started and you have filed your answer.

Your motion will need to include a supporting affidavit explaining that:

1. You are the true owner of the property,
   Example: Where and when you purchased your car; That you made your money through legal employment
2. You were not legally responsible for the conduct in question,
   Example: You lent your car to your grandchild, partner, friend for a legal purpose, like going to school, not for committing crimes.
3. You did not solicit or attempt to commit the conduct,
   Example: You did not give someone money for the purposes of buying drugs or other illegal activity, you gave them money for a legal reason.
4. You did not know about the conduct, and
   Example: Your car passenger had drugs in their pocket, but you did not know that they had drugs with them before the police discovered them.
5. You did not hold the property for the benefit of the person arrested.
   Example: You don’t own the car or hold onto money for someone in order to avoid them getting in trouble.

At the innocent owner hearing the judge will decide if the facts in your affidavit are likely true and, if the judge agrees, your property will be returned to you. If the judge does not agree, the case will continue through to the final hearing.

**The information listed in this document is not legal advice and does not create an attorney/client relationship.**