Pubdate: Wed, 29 Apr 2015
Source: Albuquerque Journal (NM)
Copyright: 2015 Albuquerque Journal
Contact:  http://www.abqjournal.com/
Details: http://www.mapinc.org/media/10

KNOW RULES OF THE SEIZURE ROAD BEFORE TURNING A KEY

When Gov. Susana Martinez signed into law an amendment to the state 
Forfeiture Act that would prohibit the seizure of property unless the 
owner is convicted of a crime, the dual intent seemed clear: Protect 
innocent property owners and remove financial incentives for law enforcement.

Not so fast, says the city of Albuquerque, which has a civil 
forfeiture program that it wants to continue filling up city coffers 
unabated. Since 2010 the city has collected more than $8.3 million. 
The city plans to continue seizing civil assets under a city nuisance 
and abatement ordinance even after the state law takes effect in 
July. Other New Mexico cities and counties have a similar law in place.

Willard Davis, an administrative judge under contract with the city 
of Albuquerque, maintains the new law doesn't apply to vehicles 
seized under the city ordinance because the state law only applies to 
criminal cases. He contends city vehicle seizures are a "civil forfeiture."

However, Steven Robert Allen, policy director for the ACLU in New 
Mexico, says the intent of the law is clear. He cites a line that 
states the purpose is to "ensure that only criminal forfeiture is 
allowed in the state."

The city's ordinance allows it to seize a vehicle used by anyone 
arrested on suspicion of DWI if they have been charged with drunken 
driving before, or driven by anyone who has a revoked license because 
of a DWI. Vehicle licensing and operation is a privilege and there is 
a nexus between the seizure and the proscribed conduct. It's hard to 
fault the city removing the drunken driver's weapon of choice from 
his or her control.

The rub has been that if an owner was not driving or the vehicle was 
taken unbeknownst to the owner, he or she stands to lose the property 
or pay hefty fees to get it back. A provision exempts "innocent 
owners," but it's not clear when that applies and it doesn't seem to 
apply to administrative and storage fees.

Mayor Richard Berry says the goal is to keep repeat drunken drivers 
off the streets and to prevent future harm to innocent victims. But 
it should be noted that part of the millions of dollars the program 
brings in pays the salaries of attorneys and staff. One might look at 
it as a jobs program of sorts.

City Chief Administrative Officer Rob Perry says "there seems to be a 
good deal of ambiguity in the law." He has asked the city's legal 
department to analyze the new legislation, and that is exactly what 
needs to happen.

The bill the governor signed is a good law, and the city should be in 
line with that. If it takes some clarification to get there, then 
that discussion and determination needs to be made so everyone is 
operating from the same legal road map.
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MAP posted-by: Jay Bergstrom