Upcoming Changes to North Dakota’s Civil Asset Forfeiture Law

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Civil asset forfeiture has been a popular topic across the country, with many seeking to reform laws.  The basic premise of civil asset forfeiture is that if money or property is used in the commission of a crime or constitutes the proceeds of criminal activity, law enforcement may seize the property or proceeds.  A common asset seized is money which law enforcement believes is related to the sale of controlled substances.  Law enforcement may, under certain circumstances, keep that money under civil asset forfeiture laws.

In May 2019, Governor Burgum signed House Bill 1286 into law.  This new law will modify the requirements and burden for the State of North Dakota to pursue civil asset forfeitures, effective August 1, 2019.  Proponents of civil forfeiture reform have been working for several years to institute changes to North Dakota’s civil forfeiture laws, and have successfully modified the existing law.

New Burden

One modification to North Dakota Century Code Chapter 19-03.1 places a slightly higher burden on the State to prove their case. The burden in the previous version of N.D.C.C. § 19-03.1-36.2 provided that the State needs to prove its case by a preponderance of the evidence.  This was a relatively low burden to meet, and it means a court must find there is a greater than 50% chance the State’s claim is true to forfeit property.

The burden under the new law will now require the State to prove its case by clear and convincing evidence, meaning the evidence leads to a firm belief or conviction the allegations are true and the property was related to a crime.

Another significant change is that any forfeiture may now be initiated after a conviction or guilty plea to a criminal offense.  Assets may also be forfeited if the State can establish, beyond a reasonable doubt, that the property was used in the commission of a crime or constituted the proceeds of criminal activity. Again, proving this similarly requires the State to meet a higher burden of proof in asset forfeitures than before.  There is also a provision for forfeiture when an individual flees, dies, is deported, or otherwise abandons the property.  Altogether, this limits the circumstances under which the State can move to forfeit property.

New Fund

The new law also remedies a concern that many people had about civil asset forfeiture regarding where the forfeiture assets wind up.  Previously, local law enforcement could keep those assets, which caused concern about possible corruption.  The new provision requires that local cities and counties may only keep the forfeited property or proceeds from the sale of forfeited property if they have created a specialized civil asset forfeiture fund.  This fund may then only be appropriated upon application from law enforcement agencies.  At the very least, this provides additional structure to the forfeiture process.

No Excessive Forfeitures

In light of a recent United States Supreme Court decision relating to civil asset forfeitures, the new statute also includes a provision on excessive forfeitures.  Under the new N.D.C.C. § 19-03.1-36.7, there is a process which allows a property owner or individual with a legal interest in the subject property to petition the court to determine whether a forfeiture is unconstitutionally excessive.  This provision provides that vehicles valued under $2,000 and homesteads should not be forfeited.  Further, if a petition to consider the excessiveness of the forfeiture is made, the court must consider (1) the fair market value of the property,  (2) the extent to which the owner or person with a legal interest participated in the offense, (3) the extent to which the property was used or received in the offense, and (4) the penalty that could be imposed for the alleged or committed offense.  This new process provides property owners an important opportunity to have a court consider the validity of the forfeiture.

If you need assistance with a civil asset forfeiture proceeding and/or the related criminal charge, do not hesitate to call 701-235-8000 or 877-235-8002 to contact attorney Tatum O’Brien at O’Keeffe O’Brien Lyson Foss today.

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