If you receive a Notice or a Petition regarding a Request to Release Property
A prosecuting attorney must send a Notice or a Petition regarding a Request to Release Property to anyone who has a claim to the property. The notice tells you that the prosecuting attorney has asked to transfer the property to another state or to the federal government. If the property is transferred, you will no longer have rights to have the property returned to you under Utah law.
When you receive the notice you have 10 days from the date the notice was mailed to you to file an objection to transfer the property. We don't have a form for that, but you can try filing an answer to the petition with the court. See our page on Answering a Complaint or Petition for more information. You must also send a copy of your answer to the prosecuting attorney. See our page on Serving Papers for more information.
When you file your answer the court will schedule a hearing. At the hearing the court will consider evidence regarding whether the property must be transferred to the other agency, including any hardship related to the transfer.
Utah Code 77-11a-205.
If you receive a Notice of Intent to Seek Forfeiture
A Notice of Intent to Seek Forfeiture tells you that the agency has asked for the property to be forfeited, meaning it will become the property of the state and you will no longer have rights to it. The agency holding the seized property will sends the notice to you, any interest holders, and any individual or entity who asserts a claim to any property seized for forfeiture. The agency holding the seized property must search public records for the names and addresses of those holding an interest in the property.
The property involved in the notice may not be sold or otherwise transferred until a court issues a final order to dismiss a forfeiture action or orders the property to be forfeited. The agency is required to send the Notice of Intent to Seek Forfeiture no later than 45 days after the property is seized.
Utah Code 77-11b-201.
The prosecuting attorney must review the notice and, within 75 days of when the property is seized, decline or accept the agency's written request for the prosecuting attorney to start a case for forfeiture. What happens next depends on what the prosecuting attorney does. If the prosecuting attorney:
- Starts a criminal case by filing an indictment or information, the property could be held as evidence.
- Files a complaint for civil asset forfeiture, you will be served with the complaint.
- Files a petition to transfer the property to another agency, you will be served with the petition.
- Files a petition to extend the deadline, they will have 21 more days to make a decision about what to do with the property.
Utah Code 77-11b-203.
If you receive a Complaint for Civil Asset Forfeiture
A complaint for civil asset forfeiture asks the court to terminate any legal claim or right you have to the seized property. You have 30 days to file an answer to the petition with the court. See our page on Answering a Complaint or Petition for more information. You must also send a copy of your answer to the prosecuting attorney. See our page on Serving Papers for more information.
After you file an answer, what happens next depends on the value of the property:
- If the property is valued at less than $10,000, the property must be returned to you if the prosecuting attorney has not filed a criminal case for the offense involving the property within 60 days of when the prosecuting attorney served the complaint or the prosecuting attorney has not asked the court for an extension.
- If the property is valued at more than $10,000, the case can involve discovery and a trial if necessary.
At a trial, your property will be forfeited if the prosecuting attorney can show by clear and convincing evidence that you:
- committed the offense involving the property or
- knew of the offense subjecting the property to forfeiture and allowed the property to be used in furtherance of the offense or
- acquired the property at the time of the offense involving the property or
- there is no likely source for the purchase or acquisition of the property other than the commission of the offense involving the property.
The court must also find that the forfeiture is proportionate. See the section on Proportionality
If you are acquitted of the offense involving the property then the property will be returned to you. If the property has been disposed of then you will be given money for the value of the property.
The civil forfeiture action can be transferred to a criminal forfeiture action at any time after a prosecuting attorney files a criminal case for an offense involving the property.
Utah Code 77-11b-302.
Asking for the release of the property due to hardship
You can ask the court to release the property to you and skip a trial if you can show a hardship. You can request this release by filing a motion. We do not have forms for this, but you can use our generic motion forms, available on our Motions page. You would file your motion with the court and send copies to the other parties in the case. See our page on Serving Papers for more information.
To show a hardship you must show the court that:
- You had a possessory interest in the property at the time of seizure, and
- Continued possession by the agency pending a forfeiture proceeding will cause substantial hardship to you, including:
- Preventing your legitimate business to function
- Preventing you from working
- Preventing any child from attending school
- Preventing or hindering an individual from receiving necessary medical care
- Preventing the care of a dependent child or adult who is elderly or disabled
- Leaving an individual homeless OR
- Any other condition that the court determines is a substantial hardship, and
- The hardship from continued possession of the property by the agency outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if the property is returned to the claimant during the pendency of the proceeding, and
- The property is not contraband - anything illegal to possess, such as a controlled substance under Utah Code Title 58, Chapter 37, the Utah Controlled Substances Act, and
- The property is not likely to be used to commit additional offenses if it is returned to you.
The determination of substantial hardship is based upon the property's use before it was seized.
When you file your motion the court will schedule a hearing within 14 days. After the hearing the court will issue a decision no more than 20 days after the hearing. If the court agrees with you the court will order that the property be released to you immediately. But the court can put limitations on the property to keep the property available.
Utah Code 77-11a-303.
Your options to ask for the return of your seized property
The agency that seized your property must return it to you within 75 days if they do not take any action. They might return your property sooner if the prosecuting attorney determines that keeping the property is not necessary or appropriate. You can also ask to have your property returned to you. Your options will depend on whether you are an innocent owner or an interest holder.
Are you an innocent owner? You must have been an owner of the property when the crime was committed. There are other requirements – answer the questions below to see if you qualify as an innocent owner.
