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City claims it can still seize DWI vehicles

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The city of Albuquerque can continue seizing the vehicles of suspected drunken drivers, despite a court ruling last month that declared the practice unconstitutional, city attorneys say.

David Tourek, who heads the city Legal Department, said a state Supreme Court order issued last week makes it clear that the earlier ruling applied only to the vehicle in that particular case.

The city, then, isn’t barred from seizing or pursuing the permanent forfeiture of vehicles in other cases, he said.

Colin Hunter, the attorney who won the earlier case, disagrees.

The city continues to take vehicles at its “own peril,” Hunter said. It’s unwise, he said, to operate the program “in the face of a clear ruling that the ordinance is unconstitutional on its face.”

Tourek’s argument is rooted in a petition the city filed with the state Supreme Court last week, asking the justices to take up the legality of the city’s DWI vehicle-forfeiture ordinance.

The Supreme Court rejected the petition but did say the lower-court ruling was “limited to the constitutionality of the automobile seizure in this one case.”

That means the city can continue with the forfeiture program, Tourek said.

About 10 days ago, state District Judge Clay Campbell found the forfeiture ordinance unconstitutional because it didn’t provide a meaningful appeals process that would allow “innocent owners” to get their cars back.

“Judge Campbell’s ruling is clear: The ordinance is … invalid,” Hunter said in an interview.

Campbell said in an eight-page ruling that the city ordinance directs the hearing officer – the person considering appeals – to look only at whether the police “had probable cause to seize the vehicle.”

There’s no mention in that section of the ordinance, the judge said, that an owner can claim innocence – in other words, that someone else was driving the vehicle and the owner didn’t know the driver would be drunk.

The “ordinance violates due process and is thus unconstitutional,” the judge said.

Tourek argues that ordinance does allow for an “innocent owner” defense.

A Santa Fe vehicle seizure ordinance, enacted in 2007, contains language protecting innocent owners. Those who unknowingly lend their vehicles to someone who drove drunk can sign an affidavit to that effect and have the right to a hearing before a city hearing officer, Santa Fe Assistant City Attorney Alfred Walker said.

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