Copyright © 2018 Albuquerque Journal
The timing was unfortunate for Janet Olivas.
Last week on Tuesday, the 29-year-old caregiver was a passenger in her own car – unable to drive because of a leg injury she suffered during a workout – when she became one of the last vehicle owners to have her car seized by the city using a policy that the mayor has said is changing.
Albuquerque Mayor Tim Keller, also last week, announced that the city will change the way police take vehicles driven by anyone who is arrested on suspicion of drunken driving a second or subsequent time, or someone who is stopped while driving with a license that is suspended because of a DWI.
Sarita Nair, the chief administrative officer for the city, said the policy change will give people like Olivas – those who were not driving when their vehicle was seized – more protections after their car is seized. But she said the city plans to continue taking cars from repeat drunken drivers.
The city has temporarily suspended vehicle seizure proceedings while it crafts a new policy for dealing with people who have had their cars seized.
Under the policy that is now under review, it was up to owners of seized vehicles to prove they didn’t know someone was going to drive their cars illegally. The new policy, Nair said, will shift that burden of proof and the city will have to prove an owner knew the driver was going to a break the law while driving the vehicle.
“Unless the actual owner is sitting in the front seat and also drunk, you are probably not going to be forfeiting a car that is owned by someone other than the drunk driver,” she said.
But for repeat drunken drivers arrested in their own cars, the city will continue to take their cars on the spot, as they do now. What is changing, Nair said, is that the city won’t officially take ownership of the vehicle and sell it at auction unless the suspect is convicted.
“If somebody is found not guilty … they should be able to get their vehicles back pretty quickly,” she said. “But by the same token, if they are convicted, we should be able to complete the forfeiture pretty quickly.”
The city’s legal department is working out all the details about the city’s new vehicle seizure protocols and how to reshape the city’s ordinance, which will have to be voted on by the City Council.
In the meantime, the city has rescheduled seizure hearings and meetings with vehicle owners to review cases and figure out what to do with people like Olivas, who have pending cases.
Her case was also an example of people who have never had a drunken driving arrest and were affected by the city’s DWI seizure ordinance.
Olivas’ boyfriend, Isaac Hernandez, was driving her to a pharmacy on April 3 so she could pick up prescriptions for her elderly clients when a police officer stopped them. Olivas’ car had a cracked windshield and a check of her license plate came back with a suspended registration, though Olivas said her registration was up to date.
Hernandez had a suspended license, and although Olivas told the officer that she “thought he had fixed it,” the police seized the vehicle, according to a criminal complaint.
The next day, April 4, prosecutors dropped the charges against Hernandez in exchange for a guilty plea in a different pending case, and Olivas tried to schedule a hearing to find out how she could get the vehicle back from the city.
The city has for years charged people hundreds to a few thousand dollars to get their vehicles back and makes the owner agree to boot the vehicle for a period of time. That has happened in cases in which the vehicle owner wasn’t driving when the car was taken.
Originally, the city gave Olivas an April 18 hearing date, but that has since been rescheduled for May 2.
“I’ve been trying to call (the city) and all I get is a voicemail. I haven’t been able to talk to anybody over the phone, and it’s kind of hard to get around without a vehicle,” Olivas told the Journal this week. “I need my vehicle, because I’m a caregiver for my clients, and I need to take them to their appointments and what they need to do.”
The city has 354 vehicles in its seizure lot, and 72 vehicle owners have pending seizure cases.
Albuquerque in 1992 became the first city in the state to pass a DWI seizure ordinance, which has been amended and adjusted several times over the years.
The effort to change the way the city seizes vehicles was spurred by a recent ruling in a federal lawsuit, which is seeking to end the program, brought by Arlene Harjo against the city.
Harjo’s car was seized after her son was arrested on suspicion of driving it while intoxicated, his third such arrest in New Mexico.
As part of the case, U.S. District Judge James Browning issued an order last month that says, in part, the city’s seizure ordinance appears to be at odds with a state law banning forfeiture without first convicting someone of a crime.
The order also questioned why “innocent owners” have to prove their innocence at seizure hearings and it raised concerns about how the city budgets for the number of cars they will seize and sell from owners every year.
“The writing was sort of on the wall with which direction the courts were going to take with the city’s seizure ordinance,” Nair said of Browning’s ruling. “Our city ordinance isn’t going to stand up in court and we don’t want to spend any money … defending that ordinance and we don’t want to create claims under an ordinance that may be unconstitutional.”
Nair said the mayor plans to change the city’s vehicle seizure practices by using directives to city departments and by working with city councilors to amend the city’s ordinance.
“We want to be really careful with the implementation so we do it correctly and fairly and in accordance with state law,” she said. “The mayor’s directive to APD was point forward, but we are aware that we also have to look back and make sure we’re treating anyone who is in the process fairly.”