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Albuquerque won’t seize cars in DWI cases until conviction

These vehicles were seized by APD in 2014 from people whose DWI cases hadn’t gone to court. (Roberto E. Rosales/Albuquerque Journal)

CORRECTION: This story has been updated to reflect the city’s response to Journal questions seeking details about the seizure policy.

Copyright © 2018 Albuquerque Journal

Albuquerque Mayor Tim Keller’s administration has announced it will no longer seize cars from suspected drunken drivers and others who haven’t been convicted, marking a major shift in how the city has handled the policy.

The vehicles previously were seized upon arrest, not conviction.

For years, the city seized vehicles under a nearly 25-year-old ordinance that allowed police to confiscate vehicles driven by people arrested on suspicion of a second or subsequent drunken driving offense or by anyone caught driving with a suspended or revoked license. And the city often took cars from owners, even if they weren’t the ones driving or arrested.

The change is not expected to affect a federal lawsuit against the city that seeks to end the seizure program, and questions remain about what happens to the seized vehicles currently in the city’s possession.

The city of Albuquerque passed the state’s first DWI-seizure ordinance in 1992 and it has been modified and amended several times over the years. Proceeds from the program, which totaled nearly $600,000 in the 2017 fiscal year, go to the APD’s car seizure program and efforts to fight DWI. From 2010 and 2014, the city collected $8.7 million from the program.

The Journal has reported about cases in which owners had their cars seized after a relative or acquaintance was picked up driving the vehicle, sometimes without the owner’s permission. Yet the owners ended up losing their vehicles or paying hundreds or thousands of dollars to get the car returned.

In a statement Monday, Keller said he is asking the City Council to change the city’s ordinance to match his new policy. His office declined to comment or provide additional details about the policy changes.

The mayor’s proposed budget for the 2019 fiscal year anticipated the city’s legal department would hold 500 vehicle seizure hearings, which is about on par with how many hearings the city is expected to hold during the current fiscal year. Of those 500, it planned for the city to release 200 vehicles to owners with an agreement to boot the vehicle for a period of time and for the city to take ownership of 300 vehicles and sell them at auction.

Keller had said during his mayoral campaign that he disagreed with aspects of the seizure policy, and the Journal sought an interview Friday about the city’s ongoing vehicle seizures. The city canceled the interview and on Friday evening said the mayor was changing the policy. Followup calls were not returned.

On Monday, the mayor issued a statement that said: “Given changes in state law and recent court rulings, it’s time to update the city’s policy on vehicle seizures. As part of constitutional policing, APD can continue to seize assets in cases where there has been a conviction. I directed APD to implement this change and have requested City Council to update the ordinance.”

The ordinance says that a vehicle is subject to forfeiture if it is driven by someone who is arrested on suspicion of their second or subsequent drunken driving offense or driving on a suspended license for a drunken driving arrest.

One of Keller’s top aides said on a Facebook page Friday that Keller changed the policy “earlier this week” to require a conviction. But it was unclear when the policy was changed.

Ladrene Wandick reviews the paperwork involved after a DWI vehicle seizure hearing. Her car was seized after her husband was caught driving on a revoked license. (Adolphe Pierre-Louis/Albuquerque Journal)

Just last Wednesday, the city required Ladrene Wandick to pay $500 for the return of her 2006 Mercury Marquis. Wandick, a grandmother who lives off Social Security Disability, was asleep on March 14 when her husband, Kurtis Williams, took her car without permission.

He was then pulled over by a police officer around 3 a.m. for driving just 15 miles an hour on Montgomery, according to a criminal complaint. Because his license was revoked, the city seized the car and later made Wandick pay to get it back.

“Basically, I stole the car,” Williams told the Journal. “This is my fault. I take full responsibility for what I’ve done. But they shouldn’t charge her for it.”

Wandick said she is using a title loan company to get her car back from the city.

“What do I have to do, sleep with my keys in my pillow? I didn’t think I needed to do that,” she said. “($500) means a lot. I have two grandchildren and I raise them.”

In another case last week, the city took ownership of Tanya McWilliam’s 2010 Toyota Corolla, and can now sell it at auction.

McWilliam, a phlebotomist, doesn’t have a traffic ticket on her record, but her boyfriend, Derek Toohey, has multiple drunken driving arrests and convictions.

McWilliam said she was in the shower when Toohey took her keys, which she said he had never done before. Toohey was arrested on suspicion of felony drunken driving. When she met with a city attorney last week, she was told she had to pay about $3,000 and keep her car booted for nine months if she wanted it back. She couldn’t afford that so she signed ownership of her car over to the city.

“I work at the VA and I live far from it. So it’s been pretty hard,” McWilliam said. “I thought they took cars that drunk drivers were driving. I had no idea that they would take my car. I have a super-clean record.”

Late last month, U.S. District Judge James Browning denied the city’s request to dismiss the vehicle-seizure lawsuit. Browning said the plaintiff in that case, Arlene Harjo – a mother whose car was seized after her son took the car without permission and got arrested for drunken driving – had “plausibly alleged an unlawful profit incentive” and that making vehicle owners prove their innocence violates due process.

The lawsuit is ongoing.

The announcement about Keller’s policy change came a few hours after the city canceled an interview with the Journal on the topic.

Robert Frommer, Harjo’s attorney, said Monday that despite the announcement, questions remain about the new policy the city plans to adopt. For example, will the city allow the police to use seizure proceeds, which creates a policing-for-profit incentive? And will the city continue to seize cars after an arrest, even if the person arrested is not the owner of the car?

“It’s heartening to hear that the city has decided to obey state law after having refused to do so for years,” Frommer said. “But until such time as they cease policing for profit, by keeping and holding these forfeiture funds for (police’s) own use, we’re going to push forward.”

Paul Gessing, the president of the Rio Grande Foundation, has advocated for changing seizure laws throughout the state, including Albuquerque. He said that Keller had said during the campaign that he would end the program but hadn’t taken action since taking office.

“We welcome the mayor taking a stance and ending the program,” he said.

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