Demanding the Adversarial Preliminary Hearing under the Florida Contraband Forfeiture ActThe Department of Highway Safety and Motor Vehicles (DHSMV) Division of Florida Highway Patrol has increased the frequency in which is it seizing vehicles under the Florida Contraband Forfeiture Act. After the seizure it 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 seizure 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. For example, a recent form listed this address:
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 Adversarial Preliminary Hearing within the first 15 days. Not requesting an APH is essentially stipulating to the taking while the case is pending. The case could be pending for years.
The best way to negotiate the return of the property is AFTER the agency's attorney has received your request for the APH.
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]
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 because it would be a due process violation and must instead report in person with witnesses ready to testify.
2. Any "Verification Affidavit" need to be notarized or with an attesting seal and it is inadmissible if it is merely "sworn to and subscribed" before a sworn law enforcement officer or when otherwise not in compliance with F.S. 92.525 for verification of documents.
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
[92.50 provides: Oaths, affidavits, and acknowledgments; who may take or administer; requirements.—
(1) IN THIS STATE.—Oaths, affidavits, and acknowledgments required or authorized under the laws of this state (except oaths to jurors and witnesses in court and such other oaths, affidavits and acknowledgments as are required by law to be taken or administered by or before particular officers) may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state. The jurat, or certificate of proof or acknowledgment, shall be authenticated by the signature and official seal of such officer or person taking or administering the same; however, when taken or administered before any judge, clerk, or deputy clerk of a court of record, the seal of such court may be affixed as the seal of such officer or person. (emphasis added)]
(b) By the signing of the written declaration prescribed in subsection (2).3. It is a due process violation to not allow a person with standing to litigate the issue of probable cause which include the right to question witnesses and present evidence such as testimony or other evidence that shows a lack of probable cause.
(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.
4. The hearing was held in an untimely manner because Florida's forfeiture statute provides that an adversarial preliminary hearing is to be held within ten days after the request is received or as soon as practicable thereafter and the hearing was not held within that time period.
The Agency's Response to the Request for an Adversarial Preliminary Hearing
After the agency that seized the vehicle pursuant to the Florida Contraband Forfeiture Act, any person having a claim to the property can file a request for an Adversarial Preliminary Hearing regarding that seizure.
The agency 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.
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).
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.
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.
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 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.
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...