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 25-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 forfeiture law “was strong evidence of the New Mexico Legislature’s intent to preclude municipalities from creating a civil forfeiture scheme.”

The City Attorney’s Office needs to ask the court to reconsider the ruling or appeal it.

Forfeiture of a vehicle is a legitimate and effective penalty for DWI that the New Mexico legislature has not precluded but actaully allows cities to impose penalties.

The New Mexico Legislature has empowered municipalities to enact ordinances to “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)

The city vehicle forfeiture ordinance relies upon the city’s authority under state law to declare as a nuisance vehicles used by individuals arrested for a second DWI.

The city initiates civil administrative and civil court actions to secure legal title to the vehicles and then sells the vehicles at auction.

The civil vehicle forfeiture ordinance does have an “innocent owners” defense provision which allows the owner to show they were not driving the vehicle at the time of the DWI arrest in order have the vehicle released back to them.

A car owner can request a hearing before an administrative law judge for return of their vehicle and enter into civil settlement agreements for “booting” the vehicle for a period of time and pay costs of seizure and impoundment.

The 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 will no longer seize cars from suspected drunk drivers who have not been convicted of a pending DWI charge.

The Keller Administration initial reaction to the forfeiture program was 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 statistics from the Bernalillo County Metro Court on DWI arrests and convictions are alarming and reveal just how bad things are with APD being unable to patrol our streets, get drunks off the road, make DWI arrests, prosecute DWI cases and impound and seize vehicles.

Albuquerque and New Mexico have some of the highest DWI rates in the country.

According to a January 29, 2018 report published by the Albuquerque Journal, the odds of beating criminal DWI charges in Bernalillo County are about 50-50.

According to the 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.

At one time the DWI conviction rate were in the 85% to 90% range by the Bernalillo County District Attorney Office.

The Keller Administration claims it will submit to the city council proposed changes to the vehicle forfeiture ordinance.

APD will continue seize and impound vehicles at the time of arrest as they do now with repeat drunk drivers arrested in their own cars.

Proposed changes to the policy were announced that will provide more protections to those who were not driving when their vehicle was seized.

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.

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.

The current nuisance abatement ordinance allows civil actions to be filed against real property to secure injunctive relief.

A viable 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 prior DWI convictions without relying on the conviction of pending DWI charges.

Another option is to seek a change in State DWI penalty laws and allow judges to order a convicted DWI offenders car be forfeited.

Too many drunk drivers are not being held criminally accountable for their actions.

The city needs to be allowed to take civil actions to take away the very object they have used to violate the law and perhaps injure or kill someone.