Demanding the Adversarial Preliminary Hearing under the Florida Contraband Forfeiture Act
The Department of Highway Safety and Motor Vehicles (DHSMV) Division of Florida Highway Patrol is seizing vehicle under the Florida Contraband Forfeiture Act at an alarming rate. This policy of "policing for profit" works because so many people are too scared to assert their rights to a fair hearing and trial. For those who properly assert their rights, the agency will often attempt to negotiate a quick settlement.
Any type of property (including a car, boat, weapon, gun, firearm, cash or currency) can be seized, although this article is primarily focused on the seizure of a vehicle by the Florida Highway Patrol.
If FHP or another law enforcement agency in Florida seized your property, consider hiring an attorney to do the following:
- Serve a "Demand for an Adversarial Preliminary Hearing" on the agency that took your vehicle within 15 days (and do it as soon as possible within those 15 days). The rule is 10 days in federal court. The demand will list a description of the property (for example, the year, make, model and VIN number).
- Attach a copy of the notice of seizure that you received (if you received a notice).
- Send the demand Certified Mail with Return Receipt Requested to the address listed in the notice.
- Wait for an immediate phone call from the attorney asking you nicely to "Please waive the 10 day requirement."
- If you do not waive the 10 day requirement, expect the attorney to suddenly be willing to talk about a fair settlement.
An attorney can also represent the "innocent owner" of the property. For example, if you loan your vehicle to a friend, and the vehicle is seized because your friend had marijuana in the vehicle that you didn't know about, then you would qualify as an "innocent owner." The innocent owner may still have to pay towing and storage, but the innocent owner should not be required to pay anything else. Also, the innocent owner will be asked to sign an agreement not allowing the wrongdoer to possess the property again.
As a general rule, don't even think about trying to negotiate the return of the vehicle until after you have filed the Demand for an Adversarial Preliminary Hearing. Once you file the demand, the agency attorney has to set up a hearing within 10 days. That often creates a strong motivation on the attorney's part to negotiate a much better settlement.
If an acceptable negotiation isn't completed within 10 days, then it is unlikely it will be completed at all. Often the best deal is reached in the hours or moments before the hearing.
Therefore, filing that Demand for an Adversarial Preliminary Hearing might save you thousands of dollars and get your property back much faster. Plus, you just might win the hearing which is the best possible result. In that case, your property might be returned immediately.
What Can Be Negotiated?
As a general rule of thumb, the agency's attorney will often figure out an inflated estimate of the fair market value of the property and ask for a settlement amount that is half of that value. If there is a lien on the property then the lien amount should be subtracted from the fair market value as well. Be sure to include any other expenses into that number including towing and storage fees so there are no surprises.
That is generally the top end of the range. After filing for the Adversarial Preliminary Hearing, that number might drop quickly. If the property has little value, the agency's administrative expenses to fight for the forfeiture will quickly exceed the value of the property. For some reason, that reality often becomes much clearer to the agency attorney right before the APH hearing.
Of course, theoretically, the agency could refuse to make any settlement offer if they really want to keep the property and didn't mind litigating all of the issues in a APH hearing and then in a jury trial. If all else fails, have the hearing and then set the case for trial as quickly as possible.
Objections Often Raised at the Hearing:
1. The Petitioner (the agency that seized the property) should not be permitted to appear at the Adversarial Preliminary Hearing telephonically and must instead report in person with witnesses ready to testify to establish the legality of the stop and probable cause for the forfeiture.
2. Any "Verification Affidavit" need to be notarized or signed with an attesting seal and it is inadmissible if it is merely "sworn to and subscribed" before a law enforcement officer or when otherwise not in compliance with F.S. 92.525. Otherwise, object to the admission of those documents into the record as hearsay, irrelevant and lacking any foundation (then list the foundational issued that are missing).
92.525. Verification of documents; perjury by false written declaration, penalty
(1) When it is authorized or required by law, by rule of an administrative agency, or by rule or order of court that a document be verified by a person, the verification may be accomplished in the following manner:
(a) Under oath or affirmation taken or administered before an officer authorized under s. 92.50 to administer oaths; or
(b) By the signing of the written declaration prescribed in subsection (2).
(2) A written declaration means the following statement: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true,” followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words “to the best of my knowledge and belief” may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.
(3) A person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. It is a due process violation to not allow a person with standing to "litigate" the issue of probable cause which includes the right to call witnesses, question the officers, present evidence concerning the illegality of the stop or detention (and the exclusion of evidence gained from that illegality) and other evidence or testimony showing a lack of probable cause. In many of these cases, the person with standing should take the stand to confirm proof that they have an ownership interest in the property and that it was taken without a warrant. Alternatively, the other side might stipulate to those issues. The person may decide to take the 5th instead of answering any questions that might tend to incriminate the person.
4. In addition to the issue of probable cause, the issue of an illegal stop or detention can be litigated at the Adversarial Preliminary Hearing, although the innocent owner's lack of knowledge is not generally an issue to be determined at the APH.
5. The hearing must be held (fully litigated) within 10 days of the day that the agency received your demand or the motion for the return of property should be granted.
What Happens After the Seizure?
After the seizure the agency must provide a Notice of Seizure and Right to Adversarial Preliminary Hearing to any person entitled to receive notice under F.S. 932.701(2)(e).
When the seizing agency, the DHSMV (through its Division of Florida Highway Patrol) seizes the vehicle it must list a description of the vehicle by year, make and model along with the VIN number. The notice must also state that the vehicle is being seized pursuant to the Florida Contraband Forfeiture Act (F.S. 932.701-707, F.S.).
The notice must also state that a forfeiture action "may be filed against the property." All persons entitled to notice of the leisure of the property, as defined in s. 932.701(2)(e), F. S., may send a request for an Adversarial Preliminary Hearing (APH). Use the address listed in the notice. The address listed on the form is often listed as:
Office of General Counsel Department of Highway Safety and Motor Vehicle (DHSMV) 2900 Apalachee Parkway, Room A-432 Tallahassee, Florida 32399-0504The request for an Adversarial Preliminary Hearing under the Florida Contraband Forfeiture Act must be made in writing and must be sent by Certified Mail, Return Receipt Requested, within fifteen (15) days of receipt of this Notice.
The notice states that "[i]f you do not request an APH, you may still contest the forfeiture action at a later time." Always request an Adversarial Preliminary Hearing within the first 15 days (preferably on the day of the taking). Not requesting an APH is essentially stipulating to the taking while the case is pending. The case could be pending for years.
So it is easy - just write up a request for an Adversarial Preliminary Hearing and send it by Certified Mail, Return Receipt Requested within fifteen (15) days of receipt of the Notice to the address listed in the notice.
[Sample Form for the Request for an Adversarial Preliminary Hearing]
The Agency's Response to the Request for an Adversarial Preliminary Hearing
After receiving the request for the APH, the agency has a lot of work to do. It will then file an “Emergency Request for Adversarial Preliminary Hearing Pursuant to the Florida Contraband Forfeiture Act.”
In the motion, the Petitioner (the law enforcement agency) will request that an Adversarial Preliminary hearing be scheduled in this case, on an emergency basis, no later than a date 10 days after the request was received, to determine whether probable cause exists to believe that the seized property in the case was used in violation of the Florida Contraband Forfeiture Act, section 932.701-932.706, Florida Statute (2014).
Pursuant to section 932.703(2)(a), Florida Statutes, when an Adversarial Preliminary Hearing is requested, the seizing agency “… shall set and notice the hearing, which must be held within 10 days after the request is received or as soon as practicable thereafter…
Additionally, Fla. R. Civ. P. 1.090(d) and Florida case law have established a Claimant requesting an Adversarial Preliminary Hearing is entitled to notice that “…shall be served a reasonable time before the time specified for the hearing.” See Crepage v. City of Lauderhill, 774 So.2d 61 (Fla. 4th DCA 2000), holding that twenty-four (24) hours notice of the Adversarial Preliminary Hearing was not sufficient notice and violated the Claimant’s due process rights.
Verified Complaint for Probable Cause and for Final Order of Forfeiture
The agency will then file a “Verified Complaint for Probable Cause and for Final Order of Forfeiture.” The certified complaint is for an action for forfeiture pursuant to the Florida Contraband Forfeiture Act, Section 932.701-932.706, Florida Statute. The jurisdictional requirements are set out in Section 932.704, Florida Statutes.
In these actions, the Department of Highway Safety and Motor Vehicles, acts through its Division of the Florida Highway Patrol, is a Law Enforcement agency as set forth in Section 932.704(1), Florida Statutes. The complaint will include a description of the property and the events leading up to the seizure.
The owner of the property can also file a verified complaint to contest any of those issues raised by the other side. The owner of the property can also testify to those facts at the hearing.
Forfeiture for Driving While License Suspended . HTO Revocation
Many of these cases involve allegations that the property was used in violation of Section 932.701-706, Florida Statutes, based on a felony violation of:
- Section 322.34(2)(c), Florida Statutes (Driving While License Suspended / Revoked - 3rd or Subsequent Offense);
- Section 322.34(5), Florida Statutes (Driving While License Suspended / Revoked as a Habitual Traffic Offender); and / or
- the vehicle is alleged to be “contraband articles” as defined by Section 932.701(2)(a).
Financial Safe Harbor Provisions of Section 322.43(10)
The complaint will often alleged that the owner of the seized property is not eligible to claim the financial safe harbor provisions of Section 322.34(10), Florida Statutes. If your client does not have a conviction for a prior forcible felony, then check to see if any of the prior suspensions are because of the listed financial reasons. If so, 322.43(1) triggers the prohibition against prosecuting the case as a felony. [But see Wyrick v. State, 50 So.3d 674, 676 (Fla. Dist. Ct. App. 2010).]
Diligent Search for All Owners
Prior to filing the complaint, the Petitioner must conduct a reasonably diligent search for all owners who may have an interest in the Vehicle and disclose which persons or entities may have standing to challenge the forfeiture of the Vehicle pursuant to Section 932.701(2)(h), Florida Statutes, prior to its seizure by the Florida Highway Patrol.
If an owner was not notified properly then that owner can file for their own Adversarial Preliminary Hearing within 10 days of discovering the taking or within 10 days of receiving notice of the seizure.
Service of the Verified Complaint
When filing of the Verified Complaint, the Petitioner (the law enforcement agency that made the seizure) must comply with the service requirements of Section 932.703(2)(a), and 932.704(6)(a), Florida Statutes.
The Petitioner (the agency that seized the property) will request that the Court issue an Order Finding Probable Cause and Directing Claimant to Respond, require any person who may claim a proprietary interest in the Vehicle to show cause why the Vehicle should not be forfeited to the use of, or to be sold by, Petitioner, and after hearing or upon default pursuant to Rule 1.500(a), Florida Rules of Civil Procedure, to enter a Final Order of Forfeiture, perfecting all rights, title and interest in the Vehicle to Petitioner.
The Respondent (the owner of the property) will request that the Court issue an Order Finding a Lack of Probable Cause and Directing the Petitioner to Return the Property to the Rightful Owner.
Rules for the Adversarial Preliminary Hearing
The trial court will then hold a hearing pursuant to section 932.703(2)(c) and (d), for the purpose of determining whether there was probable cause to believe the property had been or was being used in violation of the Act.
(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.
(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.
Burden of Proof in a Forfeiture Adversarial Preliminary Hearing
If the state succeeds and the trial court determines that probable cause exists, then the burden shifts to the claimant to rebut the probable cause showing or, by a preponderance of the evidence, to establish that the forfeiture statute was not violated.” In re Forfeiture of One Hundred Seventy One Thousand Nine Hundred Dollars ($171,900) in U.S. Currency, 711 So.2d at 1274 n. 7 (citing United States v. Motor Yacht Named Tahuna, 702 F.2d 1276, 1281 (9th Cir.1983)); Lobo v. Metro Dade Police Dep't, 505 So.2d 621, 623 (Fla. 3d DCA 1987).
If you requested an Adversarial Preliminary Hearing or jury trial in a forfeiture case under Florida Contraband Forfeiture Act tell us about your experience below...