5.10 Forfeiture

• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2018 Ed.)

5.10 FORFEITURE

5.1001 In General. In 1989, the General Assembly enacted a detailed and comprehensive scheme ⁴⁷⁹ for forfeiture of specified property used with or derived from illegal drug transactions. In 2012, the scheme was expanded to apply to the enforcement of all forfeitures. Property subject to seizure and forfeiture in drug cases includes all money, medical equipment, office equipment, laboratory equipment, motor vehicles, and all other personal and real property used in substantial connection with (i) the illegal manufacture, sale or distribution of controlled substances or possession with intent to sell or distribute controlled substances in violation of section 18.2-248 of the Virginia Code, (ii) the sale or distribution of marijuana or possession with intent to distribute marijuana in violation of section 18.2-248.1(a)(2), (a)(3), and (c), or (iii) a drug-related offense in violation of section 18.2-474.1. ⁴⁸⁰ Also subject to seizure and forfeiture is everything of value furnished or intended to be furnished in exchange for a controlled substance or marijuana and all money or other property, real or personal, traceable to that exchange, plus any interest or profit derived from the investment of that money or other property. ⁴⁸¹ Real property, however, may not be seized and forfeited unless the minimum prescribed punishment for the offense is more than five years.

The drug forfeiture statute is not the only forfeiture scheme available under the Virginia Code. Sections 19.2-386.15 through 19.2-386.34 of the Virginia Code set forth numerous other offenses for which forfeiture is available, including terrorism, motor vehicle offenses, computer crimes, money laundering, illegal or counterfeit cigarette possession or sales, weapons offenses, gambling, child pornography, child abduction, and corrupt conduct by public officials. Virginia also has a forfeiture statute for those who seek to profit from crime by selling their stories, ⁴⁸² and a forfeiture statute for alcoholic beverage violators. ⁴⁸³

5.1002 Procedure. Forfeitures resulting from illegal drug transactions, computer crimes, or acts of terrorism are instituted by an information,

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naming as parties all owners and lienholders, specifically describing the property, and setting forth the grounds for forfeiture. ⁴⁸⁴ If the property has been seized before the forfeiture, the agency seizing the property must immediately notify the commonwealth's attorney, who must file with the clerk of court a notice of seizure within 21 days of being notified. ⁴⁸⁵ The notice requirement is directional and not mandatory; thus, it does not affect the jurisdiction of the circuit court. ⁴⁸⁶ The information must be filed...