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Judge throws out challenge to DWI seizure program

ALBUQUERQUE, N.M. — An attempt by two state senators to rein in the city of Albuquerque’s DWI vehicle seizure program crashed Thursday when a district judge threw out the lawsuit they filed against the city.

Second Judicial District Judge Clay Campbell said Sen. Lisa Torraco, R-Albuquerque, and Sen. Daniel Ivey-Soto, D-Albuquerque, lacked standing to challenge the ordinance because they hadn’t been directly affected by the seizure program.

“The judge didn’t say we weren’t right with our arguments, he just said we weren’t the right people to bring them,” Ivey-Soto said.

The senators in their lawsuit said that because of the changes lawmakers made last year to the New Mexico Forfeiture Act, the city could no longer seize cars from accused repeat drunken drivers, or people driving with a license that was revoked because of a DWI conviction, or driving without an interlock when one was required because of a DWI conviction.

Torraco and Ivy-Soto were seeking a court order to stop the city from taking possession of the vehicles until the owners are convicted.

A law that prohibited civil asset forfeiture and only allowed criminal forfeiture received unanimous support from the Legislature and was signed into law by the governor.

“He ruled on the standing without addressing how the state law and the city ordinance interact,” City Attorney Jessica Hernandez said after the hearing. “We do still believe the state law left room for programs like this, and that municipalities do have the ability to pass ordinances to address public nuisance issues like repeat drunk drivers.”

Albuquerque police use a city nuisance ordinance to take the vehicles of accused repeat drunken drivers at the time of arrest. The vehicles are towed to a lot managed by the city, and some of them are sold.

A car can be seized even if the owner wasn’t the person driving drunk and there have been cases in which the owner claimed not to even know someone else was driving their car when it was confiscated.

Owners who believe their vehicles were wrongfully seized, such as in a case where a vehicle was taken without permission, are forced to pay administrative and storage fees and often a fine of about $1,000 set by a hearing officer in a closed-door meeting if they want the car back.

The Bernalillo County Sheriff’s Office and a handful of other law enforcement agencies in the state take vehicles under similar ordinances.

City records show police take more than 1,000 vehicles every year and collect more than $1 million from the practice.

Several people who had been affected by vehicle seizures attended the hearing.

Ken Starr, the president of Sunstar Capital Inc., said the ordinance may force him to shut down his business.

The company finances cars for people with poor credit. He said about five times a year one of the cars is seized and the company has to pay to get it back.

“What the judge didn’t understand or didn’t appreciate is that when the city takes these vehicles from our customers, they are taking their groceries, they’re taking their job, they’re taking everything,” Starr said.

Attorneys for the Institute for Justice, a national law firm that advocates for limited government and personal freedoms, and Brad Cates, who formerly was the director of the Justice Department’s Asset Forfeiture Office but has since become a critic of the practice, litigated the case for the senators.

They argued that the senators had standing because of the public import of the issue.

“These are the people who wrote the law … and they are trying to enforce the law that they wrote,” said Robert Everett Johnson, an attorney with the Institute for Justice. “There’s nobody more appropriate than them.”

Johnson said the group still plans to use Albuquerque as an example to spur changes to vehicle seizure programs in New Mexico. He said they likely will appeal the judge’s decision to the Court of Appeals or bring another lawsuit on behalf of plaintiffs who have had their vehicles seized.

“The city is taking people’s cars without convicting them of any crime, it’s taking them in hearings where they’re adjudicated by hearing officer who is not at all impartial, and people even if they get the car back, (the city) charges them storage and other fees that swamp the value of their car,” he said. “This municipal forfeiture program is contrary to state law, and it’s also deeply unconstitutional.”

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