Two state senators who want to change Albuquerque’s DWI vehicle seizure program are going down the wrong road with their lawsuit.
Sens. Lisa Torraco, R-Albuquerque, and Daniel Ivey-Soto, D-Albuquerque, contend the city program in which cars driven by repeat drunken drivers are seized conflicts with changes made this year to state forfeiture law and are seeking a court order to stop the city from taking ownership of a vehicle until the driver has been convicted.
This year the Legislature passed and the governor signed into law a bill that abolished civil asset forfeiture but still allows for criminal forfeitures if the owner is convicted. Torraco and Ivey-Soto say they are not against criminal forfeitures but that ownership should only be transferred after a conviction.
For years, the city has been seizing vehicles when someone is arrested on suspicion of their second or subsequent DWI and for several other crimes. In some cases, the city takes ownership of the vehicle or imposes fines, fees and other restrictions before anyone is convicted, and under some circumstances even if the owner wasn’t driving. The ordinance does provide a process for the owner to contest the seizure and reclaim the vehicle.
Albuquerque’s program is based on a city ordinance that allows it to take action against a public nuisance – in the case of repeat DWIs, the continued use of a vehicle to endanger the public. From the city’s viewpoint, getting suspected repeat drunken drivers off the street is the priority.
And the city says the state Forfeiture Act does not apply to Albuquerque’s DWI vehicle seizure program.
Floor debate on the civil forfeiture legislation in the House of Representatives and a judge’s ruling would seem to back up the city’s position.
On March 17, shortly before the House voted to approve HB 560, an amendment to the state Forfeiture Act, sponsor Zachary Cook, R-Ruidoso, was asked if the changes would affect Santa Fe’s DWI vehicle seizure program. The answer: “This bill does not affect local government ordinances.”
In April, District Judge Clay Campbell ruled from the bench that the state Forfeiture Act does not preempt Albuquerque’s vehicle seizure ordinance, in part because state law allows cities to create their own ordinances or opt-in to the act. Albuquerque has not opted-in.
It should be pointed out that in DWI cases the state also may take action against a driver before a conviction. Once a person is arrested on a DWI, he or she is subject to a two-track system – a criminal case and an administrative one in which a driver can lose his or her license for a period of time regardless of whether they are later convicted in court.
City Attorney Jessica Hernandez argues that “unless the Legislature or a court says very clearly that we’re not allowed to do it, then we’re going to do everything we can to protect our city from repeat DWI offenders.”
Toracco and Ivey-Soto have a decent policy argument against the forfeiture mechanism. But their remedy appears to be in a local or state legislative body – not in the courts.
There is a delicate balance between maintaining public safety and respecting people’s property rights. In fact, other forfeiture practices banned by the changes in state law went too far and in some cases involved people who were never charged with anything.
But that’s not the case with the DWI seizure ordinance and, as long as there is a process for challenging the seizure, the city program should continue under a green light – at least until a court rules or the Legislature clearly says otherwise.
This editorial first appeared in the Albuquerque Journal. It was written by members of the editorial board and is unsigned as it represents the opinion of the newspaper rather than the writers.