Know rules of the seizure road before turning a key
When Gov. Susana Martinez signed into law an amendment to the state Forfeiture Act that would prohibit the seizure of property unless the owner is convicted of a crime, the dual intent seemed clear: Protect innocent property owners and remove financial incentives for law enforcement.
Not so fast, says the city of Albuquerque, which has a civil forfeiture program that it wants to continue filling up city coffers unabated. Since 2010 the city has collected more than $8.3 million. The city plans to continue seizing civil assets under a city nuisance and abatement ordinance even after the state law takes effect in July. Other New Mexico cities and counties have a similar law in place.
Willard Davis, an administrative judge under contract with the city of Albuquerque, maintains the new law doesn’t apply to vehicles seized under the city ordinance because the state law only applies to criminal cases. He contends city vehicle seizures are a “civil forfeiture.”
However, Steven Robert Allen, policy director for the ACLU in New Mexico, says the intent of the law is clear. He cites a line that states the purpose is to “ensure that only criminal forfeiture is allowed in the state.”
The city’s ordinance allows it to seize a vehicle used by anyone arrested on suspicion of DWI if they have been charged with drunken driving before, or driven by anyone who has a revoked license because of a DWI. Vehicle licensing and operation is a privilege and there is a nexus between the seizure and the proscribed conduct. It’s hard to fault the city removing the drunken driver’s weapon of choice from his or her control.
The rub has been that if an owner was not driving or the vehicle was taken unbeknownst to the owner, he or she stands to lose the property or pay hefty fees to get it back. A provision exempts “innocent owners,” but it’s not clear when that applies and it doesn’t seem to apply to administrative and storage fees.
Mayor Richard Berry says the goal is to keep repeat drunken drivers off the streets and to prevent future harm to innocent victims. But it should be noted that part of the millions of dollars the program brings in pays the salaries of attorneys and staff. One might look at it as a jobs program of sorts.
City Chief Administrative Officer Rob Perry says “there seems to be a good deal of ambiguity in the law.” He has asked the city’s legal department to analyze the new legislation, and that is exactly what needs to happen.
The bill the governor signed is a good law, and the city should be in line with that. If it takes some clarification to get there, then that discussion and determination needs to be made so everyone is operating from the same legal road map.