Nearly nine months later and it was all just a big mistake – or was it?
The city of Albuquerque recently returned Arlene Harjo’s 2014 Nissan Versa it had confiscated in April, when her son borrowed it and was arrested for DWI. The city took the car under an ordinance that allows seizing vehicles when the person driving has a second or subsequent DWI arrest or is driving on a suspended or revoked license.
The Albuquerque ordinance relies on the premise the vehicle represents a nuisance and the suspected drunken driver a danger to public safety. In a state with one of the highest DWI rates in the nation – 11th-worst for alcohol-involved fatalities, according to a new report by CarInsuranceComparison.com – keeping people from driving under the influence is a serious concern. That’s especially true of repeat drunken drivers.
That’s why a case can be made for confiscating property in select cases from those not convicted and sometimes not even charged with a crime.
Key on “select.” Because taking property from those not convicted and sometimes not even charged with a crime has been a real money-maker for the city and other agencies. From 2010 to 2014, the city collected $8 million by seizing cars and selling them at auction or charging the owners steep fees to get them back. The city contends innocent owners can contest the seizures.
But Harjo’s case shows that’s expensive and burdensome.
Rather than agreeing to have her car booted for 18 months and pay the city a hefty $4,000 fine she couldn’t afford, Harjo eventually went to court to try to get her car back and overturn the ordinance. She also continued to make car payments while the city kept the vehicle.
And now it turns out the city shouldn’t have taken her car at all because it wasn’t seized within the city’s limits. Oops! With more than a little egg on their faces, city officials returned her impounded car. City Attorney Jessica Hernandez said that after confirming information the seizure was in error, “the city promptly informed Ms. Harjo’s attorneys that we intend to release the vehicle to her.”
Whether one considers nine months “prompt” is up for discussion, but if Harjo, a group of New Mexico lawyers and the national Institute for Justice had not sued, it’s reasonable to ask whether the city would have returned the car. Harjo’s lawsuit to end the practice is proceeding.
A district court judge ruled in April 2015 that the state forfeiture act, amended in 2015 to abolish civil asset forfeiture while still allowing criminal forfeitures if the owner is convicted, doesn’t overrule the city’s nuisance ordinance. And there is precedent for taking action administratively against a suspected DWI driver prior to a criminal conviction – drivers can lose their licenses for a period of time.
What’s problematic is there is no statute of limitations or working mechanism to dispute a wrongful seizure – Harjo’s son’s previous DWI was seven years earlier, in 2009, and he had told his mom he was borrowing her car to go to the gym when in fact he drove to Clovis and back. He was arrested headed back into Albuquerque.
A Journal editorial in September called on the city to consider setting a reasonable timeline for when the ordinance should apply to a prior DWI arrest and to use common sense when reviewing cases instead of seizing revenue-generating opportunities.
The city still faces a court date on its ordinance. Until then, officials should consider adjusting the civil forfeiture program so it serves its stated purpose – deterring drunken drivers – instead of deterring cash into coffers.
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.
