[1]
Code reviser’s note: Ordinance 2012-01 adds these provisions as Chapter 11.10. The chapter has been editorially renumbered to place it with other vehicle and traffic provisions in the code.
A. 
Findings. The board of trustees finds:
1. 
That the problems caused by those in the community who drive while under the influence of liquor or drugs are substantial, including serious offenders, bodily injury, loss of life to innocent citizens who are present upon public roads in the town, as well as considerable property damage;
2. 
That to allow access to motor vehicles by persons in the following categories increases the likelihood that such persons will repeat a DWI-related offense:
a. 
Persons who are arrested for a second or subsequent offense of driving under the influence of intoxicating liquor or drugs; or
b. 
Persons whose licenses are suspended or revoked for driving under the influence of intoxicating liquor or drugs, and who are operating a vehicle without a valid license;
3. 
That motor vehicles which are used by drivers who are arrested for a second or subsequent offense of driving under the influence of intoxicating liquor or drugs, or whose driving privileges have been suspended or revoked for driving under the influence of intoxicating liquor or drugs, and who are subsequently operating a vehicle without a valid license, constitute a nuisance and are dangerous to the health and safety of the general public.
B. 
Purpose. The purpose of this chapter is to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of the town and its inhabitants, by abating such nuisances as are caused by the operation of motor vehicles by persons who are arrested for a second or subsequent offense of driving while intoxicated following one or more prior DWI convictions, or persons whose licenses are suspended or revoked as a result of a conviction or an arrest for driving while intoxicated. Seizures and forfeitures authorized by this chapter will protect the public and provide it with safe roads by eliminating the instrumentality of the offenses upon which the forfeiture is based and by preventing the vehicle’s use in further offenses.
(Ord. 2012-01)
The town mayor and the Mesilla marshal’s office shall be responsible for administration of this chapter. The board of trustees shall prescribe reasonable fees necessary to implement and carry out the intent and purpose of this chapter pursuant to the standards created herein.
(Ord. 2012-01)
The following words, terms and phrases, when used in this chapter, shall have the meanings ascribed to them in this section except where the context clearly indicates a different meaning:
A. 
“Claimant”
means an owner of a motor vehicle or a person claiming a security interest in a motor vehicle.
B. 
“Conviction” or “convicted”
means that a person has been found or adjudicated guilty of a violation of Section 66-8-102 NMSA or similar law of any other state, county or municipality, whether by verdict at trial, a plea of guilty or no contest and whether the sentence is deferred, suspended, or rendered at all.
C. 
“DWI” or “driving while intoxicated”
means driving under the influence of intoxicating liquor or drugs, pursuant to Section 66-8-102 NMSA, or any similar law of any other state, county, or municipality.
D. 
“Crime”
means a violation of a criminal law for which the vehicle operated by the offender is subject to seizure and forfeiture.
E. 
“Family or household member”
means:
1. 
A parent, stepparent, or guardian;
2. 
Any of the following persons related by blood, marriage, or adoption, need to cohabitate: brother, sister, stepbrother, stepsister, first cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent, great-uncle, or great-aunt.
F. 
“Impoundment”
means to retain physical custody and control of a vehicle by, or at the direction of, the law enforcement agency on a secured lot or other premises.
G. 
“Law enforcement agency”
means the employer of a law enforcement officer that has made a seizure of a vehicle pursuant to the town of Mesilla DWI vehicle forfeiture ordinance.
H. 
“Law enforcement officer”
means a Mesilla marshal authorized to enforce criminal laws, but “law enforcement officer” does not include correctional officers.
I. 
“Vehicle”
means every device in, upon or by which any person or property is or may be trans-ported or drawn upon a highway, including any frame, chassis, body or unitized frame and body of any vehicle or motor vehicle, except devices moved exclusively by human power or used exclusively upon stationary rails or tracks. “Vehicle” does not include a vehicle which is stolen or taken in violation of the law.
J. 
“Owner”
means a person legally entitled to possession, use, and control of a vehicle, including a lessee of a vehicle if the lease agreement has a term of 180 days or more. There is a rebuttable presumption that a person registered as the owner of a motor vehicle according to the records of the Motor Vehicle Division or similar agency is the legal owner. Such registration shall not preclude a spouse’s claim of ownership under community property laws. For purposes of this section, if a vehicle is owned jointly by two or more people, each owner’s interest extends to the whole of the vehicle and is not subject to apportionment.
K. 
“Probable cause”
means facts and circumstances within the law enforcement officer’s knowledge, or about which the officer has reasonably trustworthy information, which are sufficient to warrant an officer of reasonable caution to believe that a vehicle is subject to seizure and civil forfeiture under MTC §§ 10.10.050 and 10.10.060.
L. 
“Prosecuting authority”
means town of Mesilla.
M. 
“Security interest”
means a bona fide security interest perfected according to Section 66-3-201 NMSA or similar law, based on a loan or other financing that, if a vehicle is required to be registered under Chapter 66 NMSA or similar set of laws, is listed on the vehicle’s title.
N. 
“Secured party”
means a person with a security interest as defined herein.
(Ord. 2012-01)
A vehicle is hereby declared to be a nuisance and subject to either administrative or judicial for-feiture, pursuant to the provisions of this chapter, if it is:
A. 
Operated by a person who, having been convicted of or pled guilty or no contest to one prior offense of driving while intoxicated, is lawfully arrested for a second or subsequent offense of driving under the influence of intoxicating liquor or drugs; or
B. 
Operated by a person whose license is suspended or revoked as a result of a conviction for driving while intoxicated.
(Ord. 2012-01)
Except as otherwise provided herein, any vehicle constituting a nuisance and subject to forfeiture may be seized by a law enforcement officer pursuant to the provisions of this chapter and shall be subject to forfeiture as provided hereinafter.
A. 
Seizure Pursuant to Court Order. Upon an order issued by court of competent jurisdiction, a law enforcement officer may seize motor vehicles subject to forfeiture under this chapter.
B. 
Seizure Incident to Arrest. Seizure without a court order may be made if such seizure is incident to a lawful arrest of the operator of the vehicle for either driving while intoxicated (second or subsequent offense with at least one prior conviction) or driving while the operator’s license is suspended or revoked.
C. 
Custody of Vehicle. A vehicle seized under this chapter shall not be subject to replevin, but is deemed to be in the custody of the law enforcement agency seizing it subject only to the orders and decrees of a court of competent jurisdiction. The law enforcement officer or agents of may take custody of the vehicle and remove it to an appropriate and secure location within Dona Ana county for disposition in accordance with this chapter.
(Ord. 2012-01)
A vehicle seized pursuant to this chapter may be administratively forfeited under this section without a judicial hearing. Nothing herein shall preclude a claimant from initiating a proceeding in court to contest the seizure and intended forfeiture of a vehicle.
A. 
Notice.
1. 
In any administrative forfeiture proceeding under this chapter, the seizing agency or the prosecuting authority shall send written notice of the seizure and intent to forfeit the vehicle together with information on the applicable procedures to all persons known to have an ownership or security interest in the vehicle. Such notice shall be sent as soon as practicable, and in no case more than 30 calendar days after the date of the seizure. Immediately after a vehicle is seized for forfeiture under this chapter, the arresting officer will serve a copy of the notice to the individual from whom the vehicle was seized at the time of arrest.
2. 
Notice mailed to the address shown in New Mexico Motor Vehicle Division records, or a similar agency’s records, is sufficient notice to the registered owner of the vehicle and any secured party. For those vehicles required to be registered under Chapter 66 NMSA, or other state’s similar law, the notification to a person known to have a security interest in the vehicle is required only if the vehicle is registered under Chapter 66 NMSA and the interest is listed on the vehicle’s title. For motor vehicles not required to be registered under Chapter 66 NMSA, notice mailed to the address shown in the applicable filing or registration for the vehicle is sufficient notice to a person known to have an ownership or security interest in the vehicle.
3. 
A notice of the seizure and the intention to forfeit shall be published once each week for two successive weeks in a newspaper of general circulation in Dona Ana County.
4. 
If notice of a vehicle seizure is not served in accordance with subsections (A)(1) and (2) of this section, the law enforcement agency shall promptly release the vehicle and may not take any further action to effect the civil forfeiture of such vehicle in connection with the underlying offense.
5. 
The notice must be in writing and contain:
a. 
A description of the vehicle seized;
b. 
The date of seizure; and
c. 
Notice of the right to obtain judicial review of the forfeiture and of the procedure for obtaining that judicial review, printed in English and Spanish. Substantially the following language must appear conspicuously:
IF YOU DO NOT DEMAND JUDICIAL REVIEW WITHIN 35 CALENDAR DAYS FROM THE DATE THIS NOTICE WAS MAILED BY FILING A CLAIM FOR THE ABOVE-DESCRIBED VEHICLE WITH THE TOWN OF MESILLA MARSHAL’S OFFICE OR FILING SUIT IN COURT, YOU LOSE THE RIGHT TO A JUDICIAL DETERMINATION OF THIS FORFEITURE AND YOU LOSE ANY RIGHT YOU MAY HAVE TO THE ABOVE-DESCRIBED VEHICLE.
B. 
Assertion of Claims.
1. 
Any person claiming an interest in a vehicle seized in an administrative civil forfeiture pro-ceeding under this chapter may file a claim with the Mesilla marshal’s office after the seizure.
2. 
A claimant who has been served with written notice of seizure pursuant to subsection (A) of this section must file a claim under subsection (B)(1) of this section not later than 35 calendar days after the date the notice was served. All other claims must be filed not later than 30 calendar days after the date of final publication of notice of seizure.
3. 
A claim shall:
a. 
Identify the specific vehicle being claimed, including year, make, model, color, vehicle identification number (VIN), license plate number and date seized; the written notice served pursuant to subsection (A) of this section, or a copy thereof, shall satisfy the requirements of this subsection if it is attached to the claim;
b. 
State the claimant’s interest in such vehicle;
c. 
Include the claimant’s name, mailing address and telephone number if available; and
d. 
Be made under oath, subject to penalty of perjury.
4. 
A claim need not be made in any particular form. The Mesilla marshal’s office shall make claim forms generally available upon request.
C. 
Summary Forfeiture and Sale.
1. 
If no such claim is filed under subsection (B) of this section, the appropriate law enforcement agency official or prosecuting authority shall declare the vehicle forfeited, and shall sell the same at public auction, otherwise dispose of the same according to law, or retain for official use by the governing body of the law enforcement agency.
2. 
A declaration of forfeiture under this section shall have the same force and effect as a final decree and order of forfeiture in a judicial forfeiture proceeding in a court of law. Title shall be deemed to vest in the town of Mesilla free and clear of any liens or encumbrances from the date of the seizure of the vehicle.
(Ord. 2012-01)
If a claimant contests the administrative forfeiture of a vehicle seized pursuant to this chapter by filing a claim under MTC § 10.10.070(B), the prosecuting authority may pursue judicial forfeiture of the vehicle by court order under this section.
A. 
Complaint.
1. 
Not later than 30 calendar days after a claim has been filed, the prosecuting authority shall file a complaint for forfeiture in court or return the property pending the filing of a complaint, except that a court in Dona Ana County may extend the period for filing a complaint for good cause shown or upon agreement of the parties.
2. 
If the prosecuting authority does not file a complaint for forfeiture or return the property, in accordance with subsection (A)(1) of this section, the law enforcement agency shall promptly release the vehicle and may not take any further action to effect the civil forfeiture of such vehicle in connection with the underlying offense.
B. 
Claims of Interested Persons. In any case in which the prosecuting authority files a complaint for judicial forfeiture of a vehicle, any person not named in the complaint who claims an interest in the vehicle may seek to intervene and assert such interest in the vehicle.
C. 
Burden of Proof. In a suit or action brought under this chapter for the civil forfeiture of any vehicle:
1. 
The burden of proof is on the prosecuting authority to establish, by a preponderance of the evidence, that the vehicle is subject to forfeiture; and
2. 
Any party asserting an innocent owner defense or a secured party defense shall have the burden of pleading and proving such defenses.
D. 
Probable Cause Hearing. If a vehicle was seized incident to arrest, any claimant may request that the court conduct a hearing to determine whether the arresting officer had probable cause to seize the vehicle. If appropriate, the court shall hold a timely hearing in a manner set out by court rules promulgated for similar proceedings.
E. 
Stay of Proceedings. If a criminal case is filed alleging the same conduct as the conduct giving rise to forfeiture in a civil forfeiture proceeding, the court in the civil proceeding may stay the civil proceeding until the criminal trial is completed.
F. 
Evidence.
1. 
Certified copies of court records and motor vehicle and driver’s license records concerning prior DWI incidents or license suspensions or revocations may be offered as substantive evidence where necessary to prove the commission of a criminal offense or the occurrence of a license suspension or revocation.
2. 
A certified copy of a conviction in a criminal case arising out of the same conduct as the conduct giving rise to the forfeiture claim shall be considered as conclusive proof of the essential elements common to the criminal charges, including sentence enhancements, and the civil forfeiture claim.
(Ord. 2012-01)
A. 
Impoundment. Notwithstanding any other provision of this chapter, in the interest of public safety and health, a law enforcement officer may seize a vehicle pursuant to this chapter, and the prosecuting authority may, but is not required to, impound the vehicle for a temporary period in lieu of the civil forfeiture of the vehicle.
B. 
Fees. Owner(s) and secured party(s) shall pay a fee for this voluntary, temporary immobilization or impoundment and sign an agreement with the law enforcement agency. An owner or secured party who agrees to temporary immobilization or impoundment in lieu of forfeiture shall pay a fee commensurate with the administrative costs associated with seizure, towing, immobilization or impoundment, and forfeiture proceedings under this chapter. Said fees shall be established by separate resolution of the board of trustees.
(Ord. 2012-01)
A. 
Innocent Owner. Notwithstanding MTC § 10.10.050, any forfeiture shall be subject to the interest of any owner or co-owner of the vehicle who did not have actual or constructive knowledge of, nor consented to, the use of the vehicle by the driver who caused the vehicle to become a nuisance. 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 prosecuting authority.
B. 
Secured Party. Notwithstanding MTC § 10.10.050, any forfeiture shall be subject to the interest of any secured party, to the extent of the security interest, if the secured party proves that the security interest was acquired in good faith with no knowledge or reason to believe that the vehicle would be used by the driver whose license has been suspended or revoked or who has two or more prior DWI convictions. If the security interest is greater than the value of the vehicle, title shall be transferred to the secured party upon motion to the court. Any secured party acquiring an interest after the vehicle is in the custody of the law enforcement agency shall have the burden of intervening in the forfeiture proceeding to protect such interest. Any security interest in the vehicle must be properly filed with the New Mexico Motor Vehicle Division in accordance with Sections 66-3-201 and 66-3-202 NMSA 1978.
C. 
Constructive Knowledge. If the driver who caused the vehicle to become a nuisance is a family or household member of the owner or co-owner, and the driver has two or more prior DWI convictions, then the owner or co-owner is presumed to know of and consent to any vehicle use by the driver that causes the vehicle to become a nuisance.
(Ord. 2012-01)
If any section, paragraph, sentence, or clause of this chapter is held to be invalid or unenforceable by any court of competent jurisdiction, such decision shall not affect the validity of the remaining provisions of this chapter. The board of trustees hereby declares that it would have passed the ordinance codified in this chapter irrespective of any provision being declared unconstitutional or otherwise invalid. Additionally, should any provision of this chapter conflict with a provision of another applicable civil law or regulation relating to forfeiture of vehicles, the stricter provision shall apply, unless more specifically preempted, in which case the severability provision above will govern.
(Ord. 2012-01)
The ordinance codified in this chapter shall take effect 30 days after it has been recorded by the town of Mesilla clerk, pursuant to Section 4-37-9 NMSA 1978.
(Ord. 2012-01)