For those of you who didn’t get the memo, a new forfeiture law went into effect in July.  It’s got it’s own special chapter, RC 2981.  In fact, one of the major purposes of the law was to consolidate the varied provisions on forfeiture, and a number of the older provisions, like forfeiture for corrupt activity, gang activity, drugs, and Medicaid fraud have been repealed and folded into the new Chapter.

The changes aren’t purely cosmetic or organizational, however.  You can get a quick-and-dirty rundown of all the changes here. 

The major thrust of the law appears to be making the forfeiture process more intelligible.  “Contraband” used to be defined broadly, as including both substances which were illegal to possess, and “fruits” of crime.  If, for example, you grew marijuana plants and sold them for money, both the money and the plants would be considered contraband.  The new law makes a distinction between the two, defining the former as contraband and the latter as “proceeds.”

Instrumentalities of a crime — items which are used to commit the crime — are also subject to forfeiture, and are probably the area of forfeiture law most subject to abuse.  For example, I have a case where my client is accused of stealing a debit card, and the prosecution has filed a petition asking forfeiture of my client’s car.  Why?  Because he used the car to drive to the ATM to use the debit card.

The new law lays out a more concrete definition of the “instrumentality” test of forfeiture:  under 2981.02(B), the finder of fact has to decide

• Whether the offense could not have been committed or attempted but for the presence of the instrumentality;
• Whether the primary purpose in using the instrumentality was to commit or attempt to commit the offense;
• The extent to which the instrumentality furthered the commission of, or attempt to commit, the offense.

That’s still fairly elastic, although the “but for” test should provide some help.  In my case, for example, I can argue that while driving to the ATM was the easiest method of getting there, it most certainly wasn’t the exclusive one available.

There’s some basic stuff about forfeiture that you have to know here, though.  The “instrumentality” test is only general tests for determining whether an item in those circumstances should be forfeited. The other is the proportionality test, which essentially compares the value of the property sought to be forfeited with the gravity of the defendant’s crime, and gauges whether forfeiture would run afoul of the 8th Amendment’s proscription of excessive fines.  (This case gives an excellent, if slightly dated — it’s a 1995 decision – rundown of the differences in the theories, as well as a comparison of in rem versus in personam forfeiture.)

There are obviously circumstances where one test might be preferable to the other, and the nice thing with the new law is that you get to argue both.  The definition of the instrumentality test is quite helpful, but if you look at 2981.01(A)(2), you’ll see that one of the purposes of the new law is ”to ensure that seizures and forfeitures of instrumentalities are proportionate to the offense committed.”  So pick your battles wisely.