Albuquerque and New Mexico have some of the highest DWI rates in the country.
The media regularly reports upon drunk drivers with 9, 10, 11 and 12 convictions who are still driving and then arrested again for DWI after killing someone and at times having killed entire families.
The statistics from the Bernalillo County Metro Court on DWI arrests and convictions are alarming.
The Metro Court statistics reveal just how bad things are with APD being unable to patrol our streets, get drunks off the road, make DWI arrests and impound and seize vehicles of DWI offenders.
Further, there is a significant decline in the number of DWI vehicle forfeiture actions by the city attorney’s office with the program now in question as a result of a recent federal court ruling.
Statistics also reveal an alarming and the steady decline in the successful criminal prosecutions in DWI cases by the Bernalillo County District Attorney’s Office.
SOBERING STATISTICS FOR DWI
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 are APD cases.
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 misdemeanor arraignments and the number steadily declined each year to 2,942 in 2015.
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.
In 2016, there were 171 fatalities in this state due to crashes involving alcohol.
51 of those fatalities occurred in Bernalillo County, which is one short of a death a week attributed to DWI.
In 2017, there were 146 alcohol-related crash fatalities in New Mexico.
37 of those fatalities occurred in Bernalillo County.
APD ARRESTS FOR DWI
According to the proposed 2018-2019 city budget, the Albuquerque Police Department’s DWI arrests are declining by considerable numbers.
In fiscal year 2016, APD made 1,720 DWI arrests.
In fiscal year 2017, APD made 1,338 DWI arrests.
Mid fiscal year 2018, APD made 775 DWI arrests.
The 2018-2019 proposed fiscal budget is projecting 1,500 DWI arrests by APD.
A decade ago, APD was making more than 5,000 DWI arrests a year.
ODDS ARE 50-50 BEATING DWI CHARGES
The odds of beating DWI charges in Bernalillo County are about 50-50.
At one time the conviction rate was in the 85% to 95% range by the Bernalillo County District Attorney’s Office.
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 Assistant Bernalillo County District Attorneys while 58 percent ended with a guilty verdict or plea.
The same report published by the Albuquerque Journal reported that the odds of beating criminal DWI charges in Bernalillo County are about 50-50.
In 2016, the percentages favored DWI defendants with 55 percent of drunken driving cases being dismissed compared to 45 percent ending in pleas or convictions.
According to the Journal report, 42 percent of all DWI cases resolved in Metropolitan Court last year were dismissed either by judges or Assistant Bernalillo County District Attorneys while 58 percent ended with a guilty verdict or plea.
In 2016, the percentages favored DWI defendants with 55 percent of drunken driving cases being dismissed compared to 45 percent ending in pleas or convictions.
There is a direct correlation between the dramatic decline in the number of DWI arrests and arraignments and the severe decline in APD personnel.
Fewer APD sworn officers patrolling our streets results in fewer DWI arrests.
The number of APD sworn officers has fallen from 1,100 officers in 2009 to 878 at the beginning of 2018.
In 2009, APD had 1,100 police officers with approximately 700 assigned to field services, patrolling our streets over three shifts.
In 2009, APD had a DWI and traffic unit that had upwards of 30 patrol officers.
In 2018, APD has less than 10 full time sworn officers assigned to the traffic unit and DWI unit.
CITY’S DWI VEHICLE FOREFEITURE PROGRAM
The DWI Vehicle Forfeiture program is a unit of the City Attorney’s office.
The city attorney’s office employs three attorneys and two paralegals.
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 number of DWI Vehicle Forfeiture actions filed by the city for the past 3 years were 109 in 2016, 82 in 2017, and 32 mid-year 2018 with 100 projected in 2019.
The number of DWI Vehicles Booted for the past 3 years by the city were 230 in 2016, 208 in 2017, 114 mid-year 2018 and 200 projected for 2019.
The number of vehicles released by settlement agreement by the city to owners was 237 in 2016, 232 in 2017, 81 mid-year 2018 and 200 projected for 2019.
The breakdown of the amount of money generated by vehicle auctions was $760,00 in 2016, $242,000 in 2017, $100,000 mid-year 2018 and $300,000 projected for 2019.
The amount of projected proceeds from vehicle forfeiture auctions is projected to drop dramatically from $760,000 to $300,000 over three years.
Currently, the city has 354 vehicles in its seizure lot, and 72 vehicle owners have pending seizure cases.
CITY DWI FORFEITURE PROGRAM IN JEOPARDY
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.
On March 31, 2018, the federal judge in the case found that the city’s 26-year-old civil vehicle forfeiture ordinance violated the woman’s right to due process of law and the state’s property forfeiture law requiring a criminal conviction before government seizure.
The federal court found the state’s 2015 amended forfeiture law “was strong evidence of the New Mexico Legislature’s intent to preclude municipalities from creating a civil forfeiture scheme.”
Initially, Keller Administration had a knee jerk reaction to the court ruling in the pending federal case and announced within a week after the order was filed it would no longer seize cars from suspected drunken drivers who have not been convicted of a pending DWI charge.
The city needs to ask the federal court to reconsider or appeal the ruling on the grounds that the court is denying the city of its authority given to it by the New Mexico legislature to define, abate, and impose penalties for nuisance abatement.
POLICY CHANGES TO CITY’S VEHICLE FOREFEITUR PROTOCOL
The city attorney’s office has temporarily suspended vehicle seizure proceedings while it crafts a new policy for dealing with people who have had their cars seized.
The Keller administration has announced policy changes to the City’s DWI vehicle forfeiture program that must be approved by the Albuquerque City Council.
APD will continue to continue taking cars from repeat drunken drivers.
Under the new policy, more protections will be given those who were not driving when their vehicle was seized after their car is seized.
Under the current policy, owners of seized vehicles are required to prove they did not know someone was going to drive, or was driving, their cars illegally.
The new policy is proposing to shift the burden of proof to the city to prove an owner knew the driver was going to a break the law while driving the vehicle.
What the changes in the new policy means is that unless the actual owner is sitting in the front seat of a their car drunk, the city will probably not be initiating vehicle forfeiture proceeding nor seeking boot agreements from the car owner.
APD will continue seize and impound vehicles at the time of arrest as they do now with repeat drunken drivers arrested in their own cars.
A major change in policy is that the city will not seek to take ownership of the vehicle and sell it at auction unless the suspect is convicted.
The city has also enacted a nuisance abatement ordinance that allows civil actions to be filed for injunctive relief against owners of real property which is used to commit, conduct, promote, facilitate, or aide in the commission of crime. (City Nuisance Abatement Ordinance, Section 11-1-1-1 et seq.)
An option the city should consider is to amend the city’s existing nuisance abatement ordinance to add civil nuisance abatement actions against vehicles and owners who have a history of prior DWI convictions without relying on the conviction of a pending DWI charge.
NEW MEXICO NUISANCE ABATEMENT STATUTES
The New Mexico legislature has granted municipalities with broad powers including “the power to sue or be sued, protect generally the property of its municipality and it inhabitants and to preserve peace and order within the municipality.” (3-18-1, NMSA, 1978, General Powers of Municipality)
New Mexico statute defines a “public nuisance” as consisting “of knowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is either:
A. Injurious to public health, safety and welfare; or
B. Interferes with the exercise and enjoyment of public rights, including the right to use public property. (30-8-1, NMSA 1978, Public Nuisance defined).”
A drunk driver behind the wheel of a car is clearly a threat to the public health, safety and welfare.
A drunk driver behind the wheel of a car interferes with the general public’s right to use public city streets free from any threat of great bodily harm or lethal bodily injury caused by a drunk driver.
CITY DEFINES DWI VEHICLES AS A NUISANCE
The New Mexico legislature has specifically empowered municipalities with broad authority when it comes to “nuisance abatement”.
Under New Mexico statutory law, a municipality may by ordinance “define a nuisance, abate a nuisance and impose penalties upon a person who creates or allows a nuisance to exist.” (3-18-17, NMSA, 1978, Nuisances and Offenses; Regulation or prohibition)
In 1993, the city council exercised its authority granted to it by the New Mexico legislature to define and abate a nuisance and impose penalties to abate a nuisance by declaring any motor vehicle to be a nuisance and subject to immediate seizure and forfeiture when an arrest is made for driving while intoxicated (DWI). (Article 6: Motor Vehicle Seizure; Forfeiture, section 7-6-1 City of Albuquerque Ordinances, 1992)
The forfeiture of an asset by court order is a penalty when dealing with the abatement of a nuisance that is affecting public health, safety and welfare.
The city specifically defines vehicles used by arrested drunk drivers with prior convictions a nuisance endangering public health, safety and welfare and interfering with the public’s right to public rights of way. (Article 6: Motor Vehicle Seizure; Forfeiture, section 7-6-1 City of Albuquerque Ordinances, 1992)
Penalties to abate a nuisance include the inherent authority to exercise civil forfeiture authority with court orders to eliminate a nuisance.
Under the city ordinance, a vehicle is subject to immediate seizure and forfeiture by the city if the vehicle is operated by a person in the commission of a DWI offense and has, on at least one prior occasion, been arrested or convicted of a previous DWI, or has a suspended or revoked driver’s license for DWI.
A vehicle owner can request a hearing before an administrative hearing officer for return of their vehicle or enter into civil settlement agreements for “booting” the vehicle for a period of time and pay costs associated with impoundment, storage and seizure.
Assistant City Attorneys are public officials and are assigned to initiate administrative actions and enter into settlements agreements and boot agreements or file civil court actions in state district court.
NEW MEXICO LAW ON NUISANCE ABATEMENT
New Mexico statutory law provides that any action for the abatement of a public nuisance shall be governed by the general rules of Civil Procedure. (30-8-8, NMSA 1978 Abatement of a public nuisance.)
Under New Mexico law, “a civil action to abate a public nuisance may be brought, by verified complaint by any public officer or private citizen, in state district court of the county where the public nuisance exists, against any person, corporation or association of persons who shall create, perform or maintain a public nuisance.” (30-8-8, B, NMSA 1978, Abatement of a public nuisance, emphasis added)
The Bernalillo County District Attorney is a public officer and can and should make the commitment to initiate civil vehicle forfeiture actions in State District Court to assist the city in seizing the vehicles of repeat DWI offenders based upon state nuisance laws.
BERNALILLO COUNTY DISTRICT ATTORNEY METROPOLITAN COURT DIVSION
The Bernalillo County District Attorney’s Office employs 300 full time personnel which includes approximately 118 full time attorney positions.
The Bernalillo County District Attorney’s Office has upwards of 20 Assistant District Attorneys assigned to its Metropolitan Court Division who prosecute DWI cases and misdemeanor cases that are “record cases” with the right of appeal.
During the 2018 legislative session, Bernalillo County District Attorney Raul Torrez asked the state Legislature for a 30 percent increase to his budget of $18.2 million, or a $5.4 million increase.
Torrez wanted the 30% increase in his budget to hire an additional 34 attorneys.
Torrez to his credit was very successful in lobbying to increase his budget by $4.2 million.
The Bernalillo County District Attorney Office budget went from $18.2 million to $21.5 million-dollar budget to run his office.
On July 1, 2018, the 2018-2019 fiscal year will begin and the Bernalillo County District Attorney will have the necessary funding to aggressively make the prosecution of chronic, repeat DWI offenders a priority including initiating vehicle forfeiture actions based on nuisance law in DWI cases.
The Albuquerque city council should approve the proposed changes being made by the Keller Administration to the vehicle forfeiture ordinance.
Bernalillo County District Attorney Raul Torrez should consider creating a “civil division” within the District Attorney’s office and dedicate prosecutorial resources to identify and prosecute repeat DWI offenders and to also initiate civil actions for DWI vehicle forfeitures in cooperation with the City Attorney’s Office.
The city needs to amend the city’s existing nuisance abatement ordinance to add civil nuisance abatement actions against vehicles and owners who have a history of prior DWI convictions without relying on the conviction of a pending DWI charge.
Too many drunk drivers are not being held criminally or civilly responsible for their actions.
The New Mexico legislature should grant statutory authority to District Courts, Metro Courts, magistrate courts and municipalities to take away from DWI defendants the very instrument they have used to violate the law and perhaps injure or even kill someone.
The message now is you drink, you drive, you walk away from being held accountable.
The message needs to be you drink, you drive, you lose your vehicle.