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In The News

Thursday, April 22, 2010

Overview of Michigan’s Drug Forfeiture Statute

By Michael Nichols
Categories: Drug Crimes

When law enforcement officials execute a search warrant pursuant to an investigation of the illegal possession, delivery, or manufacture of controlled substances, this is often times followed with a seizure of property. Property seized under Michigan’s Controlled Substance Act (MCL 333.7101 et seq.), which has a value of $50,000 or less, falls under this Act’s forfeiture provisions (MCL 333.7521 to 333.7533). Specifically, MCL 333.7521(f) broadly defines what property may be seized:

Any thing of value that is furnished or intended to be furnished in exchange for a controlled substance…that is traceable to an exchange for a controlled substance…or that is used or intended to be used to facilitate any violation of this article.
 In other words, the law gives officials wide latitude to determine what property to seize. There are circumstances where officials do not need a court order to seize property. MCL 333.7522 allows the police to seize property:
(a) Incident to a lawful arrest…(c)There is probable cause to believe that the property is directly or indirectly dangerous to health or safety. (d) There is probable cause to believe that the property was used or is intended to be used in violation of this article or section 17766a.
          Challenging the seizure is an often over-looked process in criminal cases. The procedure is outlined in MCL 333.7523(c). Above all else, time is critical. After receiving a forfeiture notice, the person challenging the forfeiture only has 20 days to file a written claim in the property and post the required bond. The bond has to be 10% of the value of the claimed property, but not less than $250 or more than $5,000. What if the property is only worth $1000? A bond of $250 must still be posted. Both the written claim and the bond have to be posted with the “local unit of government or the state”. In Ingham County, generally, both have to be filed with the Ingham County Prosecutor’s Office. Once the claim and bond have been posted, the Prosecutor must “promptly” bring the forfeiture proceedings before the trial court.
          During the forfeiture proceedings, the prosecutor must prove that the property seized was related to the “exchange” of controlled substances by “preponderance of the evidence”. (In re Forfeiture of $25,505; 220 Mich.App. 572; 560 NW2d 341 (1996)). A clearer definition of this standard says that “Anything of value that can be traced to an exchange for a controlled substance is subject to forfeiture.” (In re Forfeiture of $1,159,420; 194 Mich.App. 134; 486 NW2d 326 (1992)). Later cases have stated that there must be “A substantial connection between [property] seized from claimant and exchange of controlled substance”. (In re Forfeiture of $275; 227 Mich.App 462; 576 NW2d 431 (1998)). In other words, there has to be a strong connection and the prosecutor cannot simply rely on a cop’s “Mere suspicion” to prove their case. (See id).  
          If a person’s cash is seized, the reverse becomes true. It is then up to the person who filed a forfeiture claim and bond – not the prosecutor – to prove that the cash seized was not related to the “exchange” of controlled substances. There is a strong presumption that “Any money that is found in close proximity to any property that is subject to forfeiture…is presumed to be subject to forfeiture [as well]”. (MCL 333.7521(f)). When it comes to cash, the person challenging the money forfeiture has an even higher standard to meet. Specifically that person must rebut this presumption “by clear and convincing evidence”. (MCL 333.7521(f)). 
          While some of the forfeiture provisions may be confusion, at least one thing is clear: “If no claim is filed or bond given within the 20-day period…the property is forfeited and [the prosecutor] shall dispose of the property.” (MCL 333.7523(d). 

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Mike Nichols is a national leader in drunk driving defense. He is a member of the Forensic Committee and Michigan delegate to the National College for DUI Defense. He is also a Sustaining Member of the College. Nichols is also a founding member of the Michigan Association of OWI Attorneys; a member of the American Chemical Society; an associate member of he American Academy of Forensic Science, Adjunct Professor of Forensic Evidence in Criminal Law and OWI Law and Practice at Cooley Law School. He is also author of the West OWI Practice book and several chapters in other books on science and the law.

Mike Nichols is recognized by his peers in Michigan as a “SuperLawyer” in DUI/Criminal Defense. Nichols has also been asked to speak at conferences by groups such as the NCDD; Various Bar Associations in other states.