The Albuquerque s DWI vehicle forfeiture program has been around for 25 years.
The program has always been controversial, effective and does take vehicles out of the hands of drunk drivers and makes driving the streets of Albuquerque safer.
The city ordinance allows the city to seize and impound vehicles of individuals who are stopped and arrested for DWI.
The city also relies on the city’s nuisance abatement laws as part of the authority to seize the vehicles.
Under the existing ordinance, the Albuquerque Police Department can only seize the vehicle if the person arrested has at least one prior DWI conviction.
After the seizing and impounding of the vehicle, the city initiates civil administrative and civil court actions to take title to the vehicles and then sell the vehicles at auction.
In order to avoid the city from taking title to a vehicle involved with a DWI, the car owner can request a hearing with the city before an administrative law judge and enter into civil agreements for “booting” the vehicle for a period of time and pay costs of impoundment and rental costs of the boot.
A defense of “innocent owner” is also provided under the ordinance when a vehicle is used or driven by another who is arrested for DWI allowing the vehicle to be released back to the owner.
The proceeds from the sale of the cars at auction goes to pay to administer the program and other city anti DWI programs.
The biggest complaint made against the program is that it deprives people of their property without due process of law.
The biggest benefit of the program is that it takes the very object used to commit a crime out of the hands of people who intentionally violate the law and who at times seriously injure or even kill people and it reduces DWIs.
FEDERAL COURT RULING
Last year, a federal lawsuit was brought by a woman whose car was seized by the city after her son was arrested for driving it while intoxicated.
The vehicle owner had no prior conviction but the city seized her car.
On March 31, 2018, Federal Judge James Browning filed a ruling against the city’s vehicle forfeiture program saying the city could not seize vehicles without a conviction for the DWI offense the arrest was made for at the time of seizure.
Judge Browning found that the City of Albuquerque’s DWI vehicle seizure ordinance violates people’s rights to due process of law and that it also violates the state’s civil asset forfeiture law.
The state law requires a conviction before police can seize a person’s property.
The city has been arguing its vehicle seizure program does not violate a 2015 state law that bars property seizures by the government before a criminal conviction in that it requires a prior or history of DWI.
Judge Browning found otherwise, rejected the city position and refused to totally grant the city’s motion to dismiss the lawsuit.
Judge Browning’s decision reads in part:
“The 2015 Amendment [to the state forfeiture law requires a criminal conviction before governments can seize property.] This purpose limiting forfeitures to criminal actions is expressly at odds with the City of Albuquerque’s civil forfeiture ordinance. … The Court concludes that the 2015 Amendments new purpose is strong evidence of the New Mexico Legislature’s intent to preclude municipalities from creating a civil forfeiture scheme.
“Although the Court concludes that the NMFA [New Mexico Forfeiture Act] preempts the City of Albuquerque’s forfeiture ordinance, the Court also concludes that this issue is novel as it is both new and notable.”
Media outlets have reported Judge Browning’s decision merely allows the lawsuit to move forward.
The decision does much more and made specific findings that the city’s vehicle forfeiture violated the plaintiff’s due process rights in two ways:
A. By placing the burden of innocence on a vehicle’s owner, and
B. By the fact that the forfeiture program is funded by the revenues it generates and that the city has used seized vehicles for its own purposes.
In response to the federal court ruling, the Keller Administration announced it will no longer seize cars from suspected drunken drivers and others who have not been convicted.
It appears the Keller Administration announcement was not very well thought out and was a “knee jerk” reaction to the federal court order in a still pending case.
ALBUQUERQUE’S VEHICLE FORFEITURE PROGRAM
The city’s DWI Vehicle Forfeiture Program is administered and managed by the City Attorney’s Office.
I was the Deputy City Attorney who oversaw the vehicle forfeiture program for seven years and it was part of the Safe City Strike Force.
Assistant City Attorneys and para-legals are assigned to initiate administrative actions, court action and enter into settlements agreements and boot agreements.
Following are the actual number of DWI Seizure Reports reviewed for the past 3 years:
2018: 366 (Mid-year)
2019: 700 (Projected)
Following are the actual number of DWI Vehicle Forfeiture actions filed for the past 3 years:
2018: 32 (Mid-year)
2019: 100 (Projected)
Following are the actual number of DWI Vehicles Booted for the past 3 years:
2018: 114 (Mid-year)
2019: 200 (Projected)
Following are the actual number of vehicles released on agreement by the city to owners:
2018: 81 (Mid-year)
2019: 200 (Projected)
Following are the actual number of vehicle seizure hearings conducted for the last 3 years:
2018: 243 (Mid-year)
2019: 500 (Projected)
Following are the actual number of vehicles auctioned by the city for the last 3 years:
2018: 130 (Mid-year)
2019: 300 (Projected)
Following is a breakdown of the amount of money generated by the auctions:
2018: $100,000 (Mid-year)
2019: $300,000 (Projected)
The amount of projected proceeds from vehicle forfeiture auctions is projected to drop dramatically from $760,000 to $300,000 over three years.
The Keller Administration’s proposed 2018-2019 fiscal budget projects the city’s legal department will hold 500 vehicle seizure hearings in the upcoming fiscal year that starts July 1, 2018.
The 500-projected vehicle seizure hearings for the 2019 year is on par with the 522 number of hearings the city held in 2018 fiscal year.
Of those 500, the city is projecting to release 200 vehicles to owners with an agreement to boot the vehicle for a period of time and for the city to take ownership of 300 vehicles and sell them at auction.
FORFEITURE PROGRAM JUSTFIED BECAUSE OF DWI PROBLEM
It is no secret and very common knowledge that the city and the state have very serious DWI problems.
On December 1, 2016, it was reported that New Mexico has a high percentage of fatal drunken driving crashes and that New Mexico was ranked Number 1 in pedestrian and bicycling deaths involving drunk drivers.
In 2016, New Mexicans ranked among the top 10 worst drivers in the nation for the second year in a row.
There are repeated news stories about how defendants are being arrested 9, 10, 11, 12 times, and they serve very little time unless they wind up killing entire families in a car crash.
On November 21, 2017, a DWI court monitoring program by Mothers Against Drunk Driving (MADD) in the six counties with the highest DWI-related fatalities was released.
(See November 21, 2017 Albuquerque Journal, Metro & NM Section, page A6, “New report shows high DWI dismissal rates.”)
1,106 DWI cases were monitored in six counties and it was found that 36% of the DWI cases were dismissed, 35% resulted in guilty outcomes, 23% resulted in prosecutions; 4% of the charges were reduced or amended, and 1% were found not guilty.
The statistics from the MADD report in the six counties is nothing compared to what has been going on in Albuquerque and Bernalillo County for the last eight (8) years.
ALARMING DWI STATISTICS
The statistics from the Bernalillo County Metro Court are alarming and reveal just how bad things are with the Albuquerque Police Department (APD) being unable to patrol our streets, get drunks off the road, make DWI arrests, prosecute DWI cases and impound and seize vehicles.
In 2008, there were 633 felony DWI arraignments and the number steadily declined each year to 104 in 2015.
In 2008, there were 6,538 DWI/DUI misdemeanor arraignments and the number steadily declined each year to 2,942 in 2015.
According to the proposed 2018-2019 city budget, the Albuquerque Police Departments DWI arrests are declining by considerable numbers.
In fiscal year 2016, APD made 1,720 actual DWI arrests.
In fiscal year 2017, APD made 1,338 actual DWI arrests.
Mid fiscal year 2018, APD made 775 actual DWI arrests.
The 2018-2019 proposed fiscal budget is projecting and hoping for 1,500 DWI arrests.
A decade ago, APD was making more than 5,000 DWI arrests a year.
The Bernalillo County Metropolitan court handles cases for virtually all law enforcement agencies that make arrests in Bernalillo County, including the Albuquerque Police Department (APD), the Bernalillo County Sheriff’s Department (BCSO) and the New Mexico State Police.
The largest percentage of cases arraigned in the Bernalillo County Metropolitan court is for APD cases.
In 2009, there were 746 people arraigned for felony DWI and that number dropped to a mere 104 in 2015.
In 2008, there were 6,538 people arraigned for misdemeanor DWI and in 2015 that number dropped by close to 60% to 2,942.
ODDS ARE 50-50 BEATING DWI CHARGES
Sadly, the odds of beating DWI charges in Bernalillo County are about 50-50 when at one time the conviction rate was in the 85% to 90% range by the Bernalillo County District Attorney.
According to a January 29, 2018 news report, 42 percent of all DWI cases resolved in Metropolitan Court last year were dismissed either by judges or prosecutors while 58 percent ended with a guilty verdict or plea.
In 2016, the percentages favored defendants with 55 percent of drunken driving cases being dismissed compared to 45 percent ending in pleas or convictions.
The Keller Administration claims it will submit to the city council proposed changes to the vehicle forfeiture ordinance.
Ending the city’s DWI vehicle forfeiture program is ill advised given the city’s high DWI rates and the failure of our criminal justice system to deal with the city’s out of control DWI rates.
The changes proposed should be to the extent that the city’s existing forfeiture ordinance guarantees due process of law.
Repealing the ordinance will add to the number of people injured or killed on our roads from DWI crashes cause by drunks getting behind the wheel of their cars.
Another option would be to amend the city’s existing nuisance abatement ordinance to allow civil nuisance abatement actions against vehicles whose owners have a history of DWI convctions.
The current nuisance abatement ordinance allows civil actions to be filed against real property.
If drunks are not being held accountable for their actions criminally, then the city should be able to hold them accountable civilly and financially by taking away the very object, some would argue weapon, they used to violate the law and perhaps injure or kill someone.