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Appeals Court rules against ABQ seizure law

ALBUQUERQUE, N.M. — The New Mexico Court of Appeals last week ruled that the city of Albuquerque’s vehicle seizure ordinance “completely contradicts” the intent of the New Mexico Forfeiture Act, and that state law completely pre-empts it. The opinion reverses District Court Judge Valerie Huling’s order in Wilfredo Espinoza’s 2016 lawsuit against the city.

Albuquerque is not the only city affected. As a result of the ruling, Santa Fe city government announced Thursday that it was imposing a moratorium on its own ordinance that provides for seizure of vehicles in DWI cases, which is similar to Albuquerque’s.

The Court of Appeals determined that NMFA is a “general law” that applies statewide and that it denies municipalities the authority to enforce civil asset forfeiture programs because the Legislature intended to eliminate civil forfeiture with the law.

“While the language of the NMFA does not prohibit municipalities from enacting and enforcing criminal forfeiture proceedings, it restricts forfeiture to criminal proceedings, and imposes specific requirements on any criminal forfeiture proceedings that must comport with … the NMFA … .

“The (Albuquerque) Ordinance, however, allows the City to accomplish precisely what the Legislature intended the NMFA to eliminate: civil forfeiture,” the opinion states.

Albuquerque city government for years allowed police to take cars from anyone arrested on suspicion of a second or subsequent drunken driving offense or someone arrested for driving on a revoked license. Police could take the cars even if the driver wasn’t the owner.

A separate lawsuit about the city’s vehicle seizure program led a federal judge in July to rule it unconstitutional.

A civil asset forfeiture is an action brought against property itself – such as the car that belongs to someone charged with DWI – and doesn’t require a criminal case conviction. Criminal forfeiture is brought as a part of the criminal prosecution of a defendant on such charges as drug trafficking, money laundering or grand theft, and proceeds only after a conviction.

Civil forfeiture, as it has been used by Albuquerque and Santa Fe, is separate from the prosecution of DWIs in criminal court and can be accomplished with a lower standard of proof than is required in a criminal case.

Mayor Tim Keller’s office said in July that the city was working to update the seizure program. A spokeswoman said in a prepared statement Thursday that recent court rulings have “affirmed” Keller’s concerns, though the city has not yet formally changed the ordinance.

The Albuquerque Police Department “is evaluating whether this decision totally prohibits seizing vehicles when making arrests for certain offenses and, in the meantime, is ramping up other DWI prevention efforts,” spokeswoman Alicia Manzano said in a prepared statement.

Santa Fe announced it was putting its seizure law on hold with a news release that referred to the Court of Appeals ruling.

“Although the case was specific to Albuquerque, in a broad ruling the court held that state law was intended to allow only criminal – not civil – forfeiture in any jurisdiction in the state,” city spokesman Matt Ross said

According to data provided by the Santa Fe Police Department, the city has seized 1,587 vehicles under the forfeiture program since 2015, when the NMFA went into effect, and has auctioned 362 cars in that time frame.

Under the 2015 statute, municipalities and law enforcement agencies are supposed to submit detailed reports of all property and currency they seize to the Department of Public Safety. But State Police is the only agency to consistently file any kind of report since the law went into effect, according to data on DPS’s website.

The law also says property or currency that law enforcement agencies seize must be submitted to the State Treasurer’s Office for auction or put into the state general fund. The statute states that no law enforcement agency shall retain forfeited or abandoned property.

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