5.10 FORFEITURE

• Jurisdiction: Virginia
• Library: Defending Criminal Cases in Virginia (Virginia CLE) (2025 Ed.)

5.10 FORFEITURE

5.1001 In General.

In 1989, the General Assembly enacted a comprehensive forfeiture scheme ¹³¹⁰ for specified property associated with 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-related matters 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, (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. ¹³¹¹ 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 is also subject to potential forfeiture. ¹³¹² However, real property may not be seized and forfeited unless the minimum prescribed punishment for the offense is more than five years.

Notably, the drug forfeiture statutes are not the only forfeiture scheme available under the Virginia Code. Sections 19.2-386.15 through 19.2-386.34 enumerate several 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 ¹³¹³ as well as a forfeiture statute for alcoholic beverage violators. ¹³¹⁴

5.1002 Procedure.

Recent amendments require that any action for forfeiture be stayed until the defendant is found guilty of the underlying offense. ¹³¹⁵ If there is no finding of guilt, all property seized must be released from seizure not later than 21 days from the date the stay ends. ¹³¹⁶ Property may also be forfeited consistent with 19.2-386.1 et seq. without a finding of guilt if (i) a forfeiture is ordered pursuant to a plea agreement or (ii) the owner of the property or the person in whose custody the property was found has not submitted a written demand for the return of the property with the law enforcement agency that seized the property within 21 days from the date the stay terminates. ¹³¹⁷ Forfeitures resulting from illegal drug transactions, computer crimes, or acts of terrorism are instituted by an information, naming as parties all owners and lienholders, specifically describing the property, and setting forth the grounds for forfeiture. ¹³¹⁸ If the property was 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. ¹³¹⁹ However, the notice requirement is directional and not mandatory and therefore does not affect the jurisdiction of the circuit court. ¹³²⁰ The information must be filed within 90 days of the seizure or the property will be released to the owner or lienholder. ¹³²¹ If no seizure of property subject to forfeiture occurred before the information is filed, a warrant must issue for the seizure of the property specified in the information. ¹³²²

When a motor vehicle is seized, the Commonwealth's attorney must notify the Commissioner of the Department of Motor Vehicles of the seizure and the vehicle identification number of the vehicle at issue. The Commissioner must certify to the Commonwealth's attorney the identity and address of the registered owner and any lienholder, as well as the amount of any lien, and notify the owner and lienor, in writing, of the seizure. The Commissioner's certification may be received in evidence in any proceeding related to the seizure. ¹³²³

All parties must be served with a copy of the information and a notice to...