There is no statute of limitations when it comes to Albuquerque’s DWI vehicle seizure program. At least not yet.
And that’s a problem, since it is based on the premise of nuisance.
In April, Albuquerque resident Arlene Harjo loaned her 2014 Nissan Versa to her son, Tino Harjo, under the impression that he was going to the gym with a friend.
But he didn’t. Instead, he drove to Clovis and was arrested on suspicion of drunken driving on his way back to Albuquerque. He had been arrested on DWI charges before, the last time in 2009.
The city impounded his mother’s car under an ordinance that allows it to seize vehicles driven by repeat drunken drivers, even if the owner isn’t driving at the time. The ordinance relies on the concept that the vehicle can be taken because it constitutes a nuisance and the suspected drunken driver a public safety threat.
No conviction is required, and although there are provisions for an owner to contest the seizure and get it back, it can be expensive and time-consuming.
Harjo said the city twice agreed to give her car back but only if she paid the city $4,000 and immobilized the car for 18 months. When she told the city she couldn’t afford that, the city took her car.
If that sounds like a shakedown, consider this: From 2010 through 2014, the city made more than $8 million from seizing cars and either selling them at auction or giving them back to owners who agree to pay hundreds or thousands of dollars, and fines and fees to the city.
Harjo wants her Versa back and the seizure program ended. So she went to court with the backing of a group of New Mexico lawyers and the national Institute for Justice, which advocates for protecting property rights and reforming civil asset forfeiture practices. The lawsuit argues that the city’s seizure program is unconstitutional and violates state law.
However, City Attorney Jessica Hernandez says the city’s ordinance is exempt from the state forfeiture law, amended in 2015 to abolish civil asset forfeiture while still allowing for criminal forfeitures if the owner is convicted. In April 2015, a state district judge ruled 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, which the city has not done.
“The city’s program is a narrowly tailored nuisance abatement law to protect the public from dangerous, repeat DWI offenders and the vehicles they use to commit DWI offenses, placing innocent citizens’ lives and property at risk,” Hernandez said in an email.
While the general concept is fine – keeping drunken drivers off the road is important – it’s hard to make the case that a nuisance has been stopped when Tino Harjo’s most recent prior DWI was seven years ago and he wasn’t required to have an interlock license at the time of his arrest in April.
Since the premise is nuisance, there should be some reasonable timeline – and the application of common sense – for when that should apply.
Right now, the city’s application of the ordinance smacks of revenue-chasing.
Whether the court knocks down the program or not, the city should revisit this ordinance and at the least tweak its mechanics.
Repeat drunken drivers are a nuisance, and more – but a DWI conviction should not be treated as a life sentence.
The underlying principle of this ordinance has merit, but not when it’s applied in a case like this.
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.
