On July 28, 2018, U.S. District Judge James Browning’s filed his expected and highly anticipated ruling relating to the city’s 26-year-old DWI vehicle forfeiture ordinance where the city seizes vehicles used in DWI incidents.
The ruling should have come as no surprise to anyone given a prior ruling.
The Judge found unconstitutional the city’s policy of making vehicle owners prove their innocence when their car was seized after being driven by someone else.
The court wrote: “The forfeiture program … violates procedural due process, because owners have to prove that their cars are not subject to civil forfeiture.”
The Court further ruled that it was improper that the money the city collected from the program was used to pay the salaries of employees who work in the program.
The 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 same 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.”
The Keller Administration issued the following press release in response to the recent court ruling:
“This ruling confirms our concerns with the past approach and the need to protect the constitutional rights of people in our community. … At the Mayor’s direction, the City’s Legal department has been working to update the program, including limiting it to cases where there has been a conviction based on the new state law. … The City’s legal team will analyze the impact the ruling will have … Meanwhile, APD is focusing efforts on effectively combating drunk driving by doubling the number of traffic stops and increasing DWI checkpoints and saturation patrols.”
POLICY CHANGES TO CITY’S VEHICLE FORFEITURE PROTOCOL
It is clear from the ruling that the city DWI vehicle forfeiture ordinance needs to be updated and modified to provide innocent owners a quick way to get their vehicles back if they were seized when being driven by somebody else and with no costs to the innocent owner.
On April 16, 2018, city attorney’s office temporarily suspended vehicle seizure program while it started to craft a new policy for dealing with people who have had their cars seized.
The Keller administration originally announced policy changes to the City’s DWI vehicle forfeiture program but changes to the ordinance have yet to be approved by the Albuquerque City Council.
Under the new policy, more protections will be given those who were not driving when their vehicle was seized after a DWI incident.
The new policy is proposing to shift the burden of proof to the city to prove an owner knew the driver was going to 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 their car drunk, the city will probably not be initiating vehicle forfeiture proceeding nor seeking boot agreements from the car owner.
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.
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).”
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)
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.
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
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.
The “one prior conviction rule before seizure” will probably have to be changed to require a DWI conviction after the most recent arrest.
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)
Under the existing ordinance, 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)
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.
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.
Penalties to abate a nuisance include the inherent authority to exercise civil forfeiture authority with court orders to eliminate a nuisance.
Robert Frommer an attorney for the Institute for Justice that brought the lawsuit said in a statement:
“Civil forfeiture is one of the most serious assaults on private property rights in the nation today. … For decades, civil forfeiture has lured officials away from impartial enforcement of the law and toward policing for profit. Today’s ruling striking down Albuquerque’s forfeiture program is a major step towards ending forfeiture across not only New Mexico, but throughout the United States.”
Fair enough in light of the court ruling
A much bigger and far more serious assault occurs when a person who is seriously injured or killed by a drunk driver who is a danger to public safety.
The victim of any DWI is deprived of ultimate rights that overshadow property rights.
The media regularly reports about 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.
Albuquerque and New Mexico have some of the highest DWI rates and alcohol-related crash fatalities in the country.
In 2016, there were 171 alcohol-related crash fatalities in this state due to crashes involving alcohol with 51 of the fatalities occurring in Bernalillo County.
In 2017, there were 146 alcohol-related crash fatalities in New Mexico with 37 of the fatalities occurring in Bernalillo County.
Its painfully obvious that our DWI criminal penalties are having little effect.
Too many drunk drivers are not being held criminally or for that matter civilly responsible for their actions and all too often are cut free to offend or even kill.
The city needs to request 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.
Another option is to work with the Plaintiffs attorneys and rewrite the ordinance subject to the Federal Court’s final approval.
The Albuquerque City Council should approve the proposed changes being made by the Keller Administration to the vehicle forfeiture ordinance.
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.
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.
For more information on the ruling and DWI statistics see: