[Adopted 10-10-2007 by Ord. No. 232-07]
This article shall be referred to as the "Doña
Ana County DWI Vehicle Forfeiture Ordinance."
A.
Findings. The Board of Commissioners of Doña
Ana County finds that:
(1)
The problems caused by those in the community who
drive while under the influence of liquor or drugs are substantial,
including serious bodily injury and loss of life to innocent citizens
who are present upon public roads in the County, as well as considerable
property damage;
(2)
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)
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 article is to provide
for the safety, preserve the health, promote the prosperity and improve
the morals, order, comfort and convenience of the County 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. Forfeitures
authorized by this article 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.
The County Manager, the Legal Department and
the Sheriff's Department shall be responsible for administration of
this article. The Board of County Commissioners shall prescribe reasonable
fees necessary to implement and carry out the intent and purpose of
this article pursuant to the standards created herein.[1]
The following words, terms and phrases, when
used in this article, shall have the meanings ascribed to them in
this section except where the context clearly indicates a different
meaning:
An owner of a motor vehicle or a person claiming a security
interest in a motor vehicle.
A person has been found or adjudicated guilty of a violation
of NMSA § 66-8-102 or similar law of any other state, County
or municipality, whether by verdict at trial, a plea of guilty or
no contest or otherwise and whether the sentence is deferred or suspended
or rendered at all.
Driving under the influence of intoxicating liquor or drugs,
pursuant to NMSA § 66-8-102, or any similar law of any other
state, County or municipality.
A violation of a criminal law for which the vehicle operated
by the offender is subject to seizure and forfeiture.
A parent, stepparent, or guardian;
Any of the following persons related by blood,
marriage, or adoption: brother, sister, stepbrother, stepsister, first
cousin, aunt, uncle, nephew, niece, grandparent, great-grandparent,
great-uncle, great-aunt; or
Persons residing together or persons who regularly
associate and communicate with one another outside of a workplace
setting.
To render a vehicle incapable of normal operation by the
installation of a mechanical boot device on a wheel, thus preventing
the wheel's rotation.
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.
The employer of a law enforcement officer who has made a
seizure of a vehicle pursuant to this article.
A state or municipal police officer, County sheriff, deputy
sheriff, conservation officer, motor transportation enforcement officer
or other state employee authorized to enforce criminal laws, but "law
enforcement officer" does not include correctional officers.
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 article,
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.
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 §§ 312-11 and 312-12 of this article.
Doña Ana County.
A bona fide security interest perfected according to NMSA
§ 66-3-201 or similar law, based on a loan or other financing
that, if a vehicle is required to be registered under NMSA Chapter
66 or similar set of laws, is listed on the vehicle's title.
A person with a security interest as defined herein.
Every device in, upon or by which any person or property
is or may be transported 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.
A vehicle is hereby declared to be a nuisance
and subject to either administrative or judicial forfeiture, pursuant
to the provisions of this article, 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
or suspended or revoked as a result of an arrest for driving while
intoxicated.
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 article
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 article.
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 as a result of
a DWI arrest.
C.
Custody of vehicle. A vehicle seized under this article
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 may take custody of the vehicle and remove it to an appropriate
and official location within Doña Ana County for disposition
in accordance with this article.
A vehicle seized pursuant to this article 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 article, 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 article, 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 NMSA Chapter 66,
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 and the interest is listed on the vehicle's title. For motor vehicles
not required to be registered under Chapter 66, 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 Doña Ana County.
(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 Doña
Ana County Sheriff'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 proceeding under this article
may file a claim with the Doña Ana County Sheriff after the
seizure.
(2)
A claimant who has been served with written notice of seizure pursuant to Subsection A must file a claim under Subsection B(1) 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, 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; and
(d)
Be made under oath, subject to penalty of perjury.
(4)
A claim need not be made in any particular form. The
Doña Ana County Sheriff's Office shall make claim forms generally
available on request.
C.
Summary forfeiture and sale.
(1)
If no such claim is filed under Subsection B, 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 it for official use by the governing body or 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 County of Doña Ana free and clear
of any liens or encumbrances from the date of the seizure of the vehicle.
If a claimant contests the administrative forfeiture of a vehicle seized pursuant to this article by filing a claim under § 312-13B, 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 Doña 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), 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 article for the civil forfeiture of any vehicle:
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.
A.
Immobilization or impoundment. Notwithstanding any
other provision of this article, in the interest of public safety
and health, a law enforcement officer may seize a vehicle pursuant
to this article, and the prosecuting authority may, but is not required
to, offer the owner or secured party an opportunity to request the
alternative of immobilization or impoundment of the vehicle for a
temporary period in lieu of the civil forfeiture of the vehicle. Such
immobilization may be accomplished by an immobilization device (boot)
at the owner's designated location or by impoundment at a secure facility.
B.
Fees. Owners and secured parties 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 article. Said fees shall be established by
separate resolution of the Board of County Commissioners.
A.
Innocent owner. Notwithstanding § 312-11, 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 consent 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 § 312-11, 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 NMSA §§ 66-3-201 and 66-3-202.
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.
