A motor vehicle is hereby declared to be a nuisance and subject
to forfeiture pursuant to the provisions of this chapter if it is:
(1) Operated
in the unincorporated areas of the county by a person who has been
convicted of one prior driving while intoxicated offense and is arrested
for a second or subsequent offense of driving under the influence
of intoxicating liquor or drugs; or
(2) Operated
in the unincorporated areas of the county by a person whose license
is suspended or revoked as a result of one or more convictions for
driving while under the influence of intoxicating liquor or drugs
or suspended or revoked as a result of an arrest for driving while
under the influence of intoxicating liquor or drugs.
(Ordinance 2013-05, sec. 2, adopted 8/27/13)
Except as otherwise provided herein, any motor vehicle which
has been declared a vehicle nuisance as defined above shall be subject
to temporary seizure or permanent forfeiture.
(Ordinance 2006-05, sec. II, adopted 4/25/06)
(A) Motor
vehicles subject to forfeiture under this chapter may be temporarily
seized by the sheriff or any deputy sheriff of the county.
(B) Seizure
may be made if it is incident to an arrest of the driver of the vehicle
for either driving while intoxicated (second offense, one prior conviction)
or driving while his or her license is suspended or revoked as a result
of a driving while intoxicated arrest.
(C) A vehicle
temporarily seized under this chapter shall not be subject to replevin,
but is deemed to be in the custody of the sheriff or deputy sheriff
seizing it subject only to the orders and decrees of the district
court. The sheriff or deputy sheriff may take custody of the vehicle
and remove it to an appropriate and official location within the district
court’s jurisdiction for disposition in accordance with this
chapter. The sheriff shall establish reasonable towing and storage
fees for vehicles temporarily seized in accordance with this chapter.
Storage fees shall be charged for each full and/or partial day of
storage, including the day the vehicle is first taken to the storage
facility and the day the vehicle is released from storage.
(D) Immediately
after a vehicle is temporarily seized as provided above, the sheriff
or arresting deputy shall serve a copy of the notice of forfeiture
upon the individual from whom the vehicle was seized at the time of
arrest. A copy of the notice of forfeiture will be mailed postage
prepaid to the lawfully registered owner as verified by the state
motor vehicle division. The notice shall include the following:
(1) The license plate number, make, type and color of the vehicle;
(2) The location from which the vehicle was temporarily seized;
(3) A statement that the vehicle has been taken into custody and stored;
(4) The reason for temporary seizure;
(5) A name, phone number and title of the county employee from whom the
owner can obtain further information;
(6) A statement that daily storage charges will be assessed in addition
to a towing charge;
(7) A statement that the owner has the right to contest the validity
of the impoundment by requesting a hearing in writing within ten (10)
business days of the date of mailing of the notice of forfeiture;
and
(8) A copy of the ordinance from which this chapter derives.
(E) The
owner may request that a hearing be scheduled before a county hearing
officer, appointed by the county manager. The hearing shall be held
within ten (10) business days of receipt of the request unless the
hearing is continued with agreement of the parties. The hearing shall
be informal and not bound by the technical rules of evidence. The
county hearing officer shall only determine whether the law enforcement
officer had probable cause to seize the vehicle. The county hearing
officer shall mail written notice of his or her decision to the owner
within two (2) working days of the hearing. If the county hearing
officer finds that the law enforcement officer did not have probable
cause to seize the vehicle in question or that the vehicle should
otherwise be released, he or she shall issue and date a certificate
of release, a copy of which shall be given to the owner of the vehicle.
Upon receipt of the owner’s copy of such certificate, the county
shall release the vehicle to its owner or the owner’s agent
and storage fees shall be waived. If the owner fails to present such
certificate to the county employee having custody of the vehicle within
twenty-four (24) hours of its receipt, excluding days when the DWI
forfeiture office is not open for business, the owner shall assume
liability for all subsequent storage charges. The certificate shall
advise the owner of such requirement. If the county hearing officer
determines that the vehicle was properly seized, or if the owner fails
to request a hearing in writing within ten (10) business days of the
date of mailing the notice of forfeiture, proceedings for an order
for forfeiture from the district court shall be instituted promptly.
(F) Any
person who, pursuant to the records of the motor vehicle division
of the state taxation and revenue department, has an ownership or
security interest in the subject matter vehicle shall be served with
notice of the forfeiture proceedings.
(G) When
property is forfeited pursuant to this chapter, the sheriff shall
sell the motor vehicle, and the proceeds shall be used to carry out
the purpose and intent of this chapter. Any proceeds that exceed the
costs of administering this chapter shall be used for DWI enforcement,
prevention and education. Any vehicle not recovered by the owner within
thirty (30) days after being notified by the county that such vehicle
has been released by the county shall be deemed abandoned and disposed
of in accordance with the notice provisions of section 29-1-14, NMSA
1978. Any proceeds from the sale of abandoned vehicles seized pursuant
to this chapter shall be used to carry out the purpose and intent
of this chapter.
(H) A hearing
fee of $165.00 shall accompany each request for a hearing with the
county hearing officer made pursuant to this section.
(Ordinance 2006-05, sec. III, adopted 4/25/06; Ordinance 2013-05, sec. 3, adopted 8/27/13; Ordinance 2013-05, sec. 4, adopted 8/27/13; Ordinance 2013-05, sec. 5, adopted 8/27/13; Ordinance 2013-05, sec. 6, adopted 8/27/13)
Notwithstanding any other provision of this chapter, in the
interest of public safety and health, the sheriff may at any time
following seizure of a vehicle pursuant to this chapter, offer the
owner an opportunity to voluntarily request the alternative of: (1)
immobilization of the vehicle for a period of thirty (30) days; and/or
(2) installation, at the owner’s expense, of an ignition interlock
device for a period of one (1) year. If the owner elects to accept
an offered alternative(s), the owner shall agree to the voluntary
seizure/immobilization and/or installation of the ignition interlock
device in writing, on a form provided by the county. Such immobilization
may be accomplished by an immobilization device (boot) at the owner’s
designated location within the county, or by impoundment at a secure
facility, in accordance with procedures established by the sheriff.
The owner shall pay the sheriff a fee for any such voluntary, temporary
seizure/immobilization and sign an immobilization and/or ignition
interlock agreement with the county. Eligibility for the immobilization
or the installation of an ignition interlock device is only available
if the person arrested has no more than one (1) previous conviction
for driving under the influence of intoxicating liquor or drugs.
(Ordinance 2013-05, sec. 7, adopted 8/27/13)
Notwithstanding the provisions above, any forfeiture shall be
subject to the interest of:
(1) Any
owner or co-owner of the vehicle who did not have knowledge of, nor
consented to, the use of the vehicle by the driver who caused the
vehicle to become a nuisance, provided that upon establishment of
a prima facie case of lack of knowledge or consent by the owner or
co-owner, the burden of proving knowledge and consent shall be upon
the county.
(2) Any
secured party, to the extent of the security interest, if the secured
party establishes the security interest was acquired in good faith
with no knowledge or reason to believe that the vehicle would be used
by the driver arrested or whose license has been revoked. If the security
interest is greater than the value of the vehicle, title shall be
transferred to the secured party upon approval of the district court.
Any secured party acquiring an interest after the vehicle is in the
custody of the sheriff shall have the burden of intervening in the
forfeiture proceeding to protect such interest. Any interest in the
vehicle must be properly filed with the state motor vehicle department
in accordance with sections 66-3-201 and 66-3-202 NMSA 1978 before
the date of incident leading to the seizure.
(Ordinance 2006-05, sec. V, adopted 4/25/06; Ordinance 2013-05, sec. 8, adopted 8/27/13)