On Wednesday, April 18, 2018, the President and Vice President of Federal Reserve Bank of Kansas City, Esther George and Alison Felix respectively, spoke in Albuquerque to a business and banking group.

The topic of their presentation was recent economic trends in New Mexico.

https://www.pressreader.com/usa/albuquerque-journal/20180419/281861529099809

Needless to say, the outlook for New Mexico’s economy remains less than stellar and there were very few bright spots seen by both Federal Reserve officials.

Federal Reserve Bank of Kansas City President Esther George reported three economic trends were worth noting:

1. State and local government comprise approximately one fourth of all employment and this creates a “drag” on the economy when government is reduced in size.

DINELLI COMMNETARY: Reliance on federal government spending, including the national labs and the military bases, has always been part of New Mexico’s problem in failing to diversify our economy.

2. The number of adults ages 25 to 54 has declined in New Mexico over the past decade, which could challenge growth prospects for the state economy.

DINELLI COMMENTARY: The United States Census has reported consistently for the last 8 years that New Mexico is losing population while virtually all the surrounding states are increasing in population and have pulled out of the great recession. A year ago, Albuquerque Business First reported how Wallet Hub found that New Mexico ranked fourth worst in the country for millennials (people born roughly between 1980 and 2000) for employment opportunities.

3. Employment demands in New Mexico appear to be shifting to low skill jobs, while the demand for high-skill jobs is holding steady.

DINELLI COMMENTARY: Economic studies preformed by the University of New Mexico have consistently reported that over the last four years, the service and tourist industry, including call centers, has grown. Further, New Mexico institutions of higher learning or training such as our community colleges are capable of meeting training demands, but simply put, there are no jobs being generated because of flat economic development.

Federal Reserve Bank of Kansas City Vice President Alison Felix reported other economic trends worth noting:

1. New Mexico’s employment growth over the past year has picked up. Employment growth has gone from a negative 1.1% over the past ten years to a 1.4% growth over the past year.

DINELLI COMMENTARY: Although this is positive news, the reality is all surrounding states have been experiencing incredible job growth. According to an August 11, 2017 US News and World report, New Mexico’s economy continues to grow, but the working population has decided to leave the state. According to the report, those between the ages of 30 and 59 “are fleeing by the masses, taking kids with them who researchers say are unlikely to return.” People are leaving New Mexico for a number of reasons, including the lack of jobs. Nearby states are offering better job opportunities.

2. Most industries in New Mexico have added jobs over the past year, particularly in the construction, financial activities, natural resources, mining and oil and gas industries.

3. Oil production has reached record levels and oil prices are expected to remain around $60 per barrel for the next two years.

DINELLI COMMENTARY: The increase in oil production and prices is considered by many as the number one reason New Mexico government is no longer faced with a deficit and now has a surplus.

4. The migration of people leaving the state appears to be slowing.

5. The good news is that home prices are now approaching previous peak levels, but the bad news is that new residential construction remains at pre-recession levels.

6. The tourist industry in New Mexico continues to be a bright spot as far as growth and a key component for the growth in our economy.

7. Farming is a major industry in New Mexico and farm income is now projected to decrease slightly this year due to decreases in revenues for some commodities that offset others.

The most discouraging news is that New Mexico’s 5.8% unemployment rate is the second worst in the nation.

DINELLI COMMENTARY

During the last eight years, Albuquerque has fallen to the bottom and in many cases dead last of every meaningful ranking in the country, including economy, jobs, crime, education, real estate, desirability, and traffic.

Even though Albuquerque is the largest city economy in the State, New Mexico is number one in unemployment and number one in children living in poverty.

It has been reported that Albuquerque lost 14,900 jobs during the last 10 years, which is roughly 4 jobs a day.

According to one Brookings Institution report, the Albuquerque metro area’s economy was so bad between 2009 and 2014 that it almost fell off the charts of three measures of economic health.

Of the largest 100 metro areas in the U.S., Albuquerque ranked 100th, 99th and 83rd in the three areas measured by the Brookings Institute: Growth, Prosperity and Inclusion.

According to the same Bookings Institute report, economically hobbled cities like Jackson, Miss., and Rochester, New York, fared better than Albuquerque. Albuquerque ranked 99th for economic growth, 83rd for prosperity and 100th for inclusion, which measures how an area’s poorest residents are doing in the economy.

According to US Census reports, more people are leaving the State than moving in, and our youth are leaving Albuquerque in droves to seek employment with a future elsewhere even after they get their college education at our universities.

On October 1, 2017 Wallet Hub, a personal fiancé website, published the story “Fastest Growing Cities In America”.

https://wallethub.com/edu/fastest-growing-cities/7010/#city

Albuquerque ranked 450th in economic growth among 515 cities in the United States according to the Wallet Hub report.

Wallet Hub ranked the cities using 15 metrics, including population growth, unemployment and poverty rate decrease, job growth and other measures.
Among large cities, Albuquerque ranked 60th out of 64.

Among all cities, Albuquerque fared especially poorly on unemployment rate decrease (481); job growth (446); growth in number of businesses (443); median house price growth (433), and regional gross domestic product growth (433).

According to US Census reports, more people are leaving the State than moving in, and our youth are leaving Albuquerque in droves to seek employment with a future elsewhere even after they get their college education at our universities.

The truth is, Albuquerque recovery is well over four years behind the national economy in terms of reaching post-recession employment levels.

Government employment limits growth, with private sector employment growth exceeding total employment growth from FY/12 through FY/21.

CONCLUSION

Construction has improved somewhat and is now helping the economy according to the Federal Reserve Officials.

The unemployment rate is expected to slowly decline to 5.3% in FY/20 and FY/21.

City hall’s Economic Development Department need pay far more attention to Albuquerque’s growth industries if the city is going to have any chance of turning our economy around.

Our next Governor, who will be elected in November, with a little luck will be dealing with an improving economy and a surplus in tax revenues thanks to oil and gas production.

Notwithstanding, our New Governor and our new Albuquerque Mayor need to work together as much as possible and come up with a viable solution to diversifying our economy with less reliance on federal government spending.

Federal Reserve Vice President Alison Felix closed by saying “Things are improving. We are seeing a lot of substantial gains, but New Mexico has a long way to go”.

New Mexico and Albuquerque do do indeed have a long way to go, let’s hope we can really get there.

Media stories have covered the city’s actions under “nuisance abatement” ordinances and state laws without much of any explanation what constitutes a “nuisance” or a “public nuisance”.

The two major city programs that enforce nuisance abatement laws are the city’s attorney’s DWI Vehicle Forfeiture program and the Safe City Strike Force.

The media gives very little explanation on how the two major programs enforce nuisance abatement laws.

One involves vehicles, while the other deals with real property that has become magnets for crime.

At the risk of reading too much like a legal brief, following is a short summation of state law and city ordinances and the two city programs.

DISCLAIMER NOTE: Anyone who reads this blog article needs to keep in mind that free legal advice, free legal opinions and free legal commentary are only worth what you pay for them and any reliance on the article and content is at your own risk. (Being a retired lawyer does have its advantages.)

NEW MEXICO STATUTES ON NUISANCE ABATEMENT

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.
Whoever commits a public nuisance for which the act or penalty is not otherwise prescribed by law is guilty of a petty misdemeanor.”

(30-8-1, NMSA 1978, Public Nuisance defined).

The New Mexico legislature has also empowered municipalities very broad authority to define a nuisance, abate the nuisance and impose penalties and initiate civil causes of action.

State statute provides that “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 Nuisances and Offenses; Regulation or prohibition)

State statute also grants municipalities with broad powers and provides that:

“A municipality may:
A. sue or be sued; ….
F. protect generally the property of its municipality and it inhabitants;
G. preserve peace and order within the municipality; …”

(3-18-1 General Powers (of Municipality)”

Note that the creating, performing or maintaining a public nuisance is a crime under state law, which would be prosecuted in a magistrate court or metropolitan court.

Under New Mexico law, a petty misdemeanor is the very least serious crime for which a person can be sentenced to time in jail.

The sentence for a petty misdemeanor in New Mexico can never be more than six months in jail or a fine up to $500, is usually up to 30 days in jail and a $100 fine or both, depending on the offense and the penalties can also be suspended by the court.

Notwithstanding being a criminal charge, actions to abate a nuisance are civil actions that must be filed in state district court.

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)

When a plaintiff prevails and proves that a nuisance exists and a judgment is given against a defendant in an action to abate a public nuisance, the district court can order the defendant responsible for the nuisance to pay all court costs and attorney fees for the plaintiff’s attorney.

(30-8-8, C, NMSA 1978, Abatement of a public nuisance, emphasis added)

The huge significance is that both public officials as well as private citizens can bring an action for nuisance abatement.

Another major distinction is the burden of proof between a criminal charge and a civil cause of action.

A criminal charge requires the state to prove a defendant is guilty “beyond a reasonable doubt”.

A civil case requires proof by “preponderance of the evidence” by a plaintiff.

In general, with few exceptions, only law enforcement or state prosecutors can bring petty misdemeanor charges for public nuisance.

However, any private citizen or public official, such as a District Attorney or City Attorney, or any lay person with money for the court filing fee, can initiate a civil nuisance abatement action for injunctive relief and if they prevail can be awarded attorney’s fees and costs.

NEW MEXICO CASE LAW ON DEFINING A NUISANCE

The New Mexico Supreme Court and the Court of Appeals has issued opinions and rulings on what constitutes a nuisance.

Under New Mexico court case law nuisances are classified as nuisances per se and nuisances in fact.

“A nuisance per se is generally defined as an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings … [A] nuisance in fact is commonly defined as an act, occupation, or structure not a nuisance per se, but one which may become a nuisance by reason of circumstances, location, or surroundings.” (Koeber v. Apex-Albug Phoenix Express, 72 N.M. 4; 380 P.2d 14; 1963, New Mexico Supreme Court).

Further, it is well settled that a court may enjoin a threatened or anticipated nuisance, public or private, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin. (Koeber v. Apex-Albug Phoenix Express, 72 N.M. 4; 380 P.2d 14; 1963, New Mexico Supreme Court).

A public nuisance must affect a considerable number of people or an entire community or neighborhood. (Environmental Improvement Div. v. Bloomfield Irrigation Dist., 108 N.M. 691, 778 P2d 438, New Mexico Court of Appeals 1989).

A common law “public nuisance” which is similar to the public nuisance statute, is the unreasonable interference with the right common to the general public, belonging to all members of the general public. It is not necessary that the entire community be affected by a public nuisance. If the nuisance will interfere with those coming in contact with the exercise of a public right or if the nuisance otherwise affects interests of the community at large. (State, ex rel, Village of Los Ranchos de Albuquerque v. City of Albuquerque, 889 P.2d 185, 119 NM 150.)

A public nuisance is a wrong that arises by virtue of unreasonable interference with the rights common to the general public. The Public nuisance statute applies to anything affecting “any number of citizens” meaning a considerable number of people or an entire community or neighborhood. (NMSA 1978, 30-8-1 and State, ex rel, Village of Los Ranchos de Albuquerque v. City of Albuquerque, 889 P.2d 185, 119 NM 150.

Public nuisance is one which adversely affects public health, welfare, or safety. A public nuisance affects the rights of citizens as part of the public and must affect a considerable number of people or an entire community or neighborhood. A continuing nuisance is one which occurs so often that it can fairly be said to be continuing although it is not constant and unceasing. (Padilla v. Lawrence, 101 NM 556, cert. denied 683 P.2d 1341, 101 NM 419.

The fact that acts constituting a public nuisance are punishable criminally does not deprive a court of its power to enjoin a public nuisance where there is ample proof of irreparable injury to public health, welfare, or safety. (Town of Clayton v. Mayfield. 82 NM 596, (involved operation of a junk yard that was unfenced and contained old cars). See also, State, ex rel, Marron v. Compere, 103 P.2d 273, 44 NM 414.

CITY’S DWI VEHICLE FOREFEITURE ORDINANCE

In 1993, the Albuquerque 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 would include the authority to exercise civil forfeiture authority with court orders to eliminate the 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.

CITY ATTORNEY VEHICLE FORFEITURE DIVISION

The city’s DWI Vehicle Forfeiture Program is administered and managed by the City Attorney’s Office and at one time was a part of the Safe City Strike Force.

Assistant City Attorneys and paralegals are assigned to initiate administrative actions, court action and enter into settlements agreements and boot vehicles.

The amount of projected proceeds from vehicle forfeiture auctions is projected to drop dramatically from $760,000 to $300,000 over three years.

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.

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.

ALBUQUERQUE CITY ORDINANCES DEFINING NUISANCE

In 1994, exercising the authority granted to it by the state, the City of Albuquerque enacted its nuisance abatement ordinance and then amended it 2006 to add offenses under the state criminal code and city housing and construction codes.

The city’s nuisance abatement ordinance defines nuisance as:

“Any parcel of real property, commercial or residential, … on which
any of the following illegal activities occurs, or which is used to commit
conduct, promote, facilitate, or aide the commission of … any of
the following activities: …

At this point, the ordinance lists crimes in the state’s criminal code as well as the city’s building and construction codes.

(City of Albuquerque Nuisance Abatement Ordinance, Section 11-1-1-1, Section 11-1-1-3 of ordinance defining “Public Nuisance”)

The city’s nuisance abatement ordinance prohibits “public nuisances” as follows:

“It shall be unlawful for any owner, manager, tenant, lessee, occupant, or other person having any legal or equitable interest or right of possession in real property …or other personal property to intentionally, knowingly, recklessly, or negligently commit, conduct , promote, facilitate, permit, fail to prevent, or otherwise let happen, any public nuisance in, on or using any property in which they hold any legal or equitable interest or right of possession.”

(11-1-1-10 PUBLIC NUISANCES PROHIBITED, City of Albuquerque.)

The City of Albuquerque’s Uniform Housing Code also defines “nuisance” as:

“(1) Any nuisance known at common law …
(2) Any attractive nuisance which may prove detrimental to children whether in a building, on the premises of a building, or upon an unoccupied lot. This includes any abandoned wells, shafts, basements or excavations; abandoned refrigerators; or any structurally unsound fences or structures; or any lumber, trash, fences or debris which may prove a hazard for inquisitive minors.
(3) Whatever is dangerous to human life or is detrimental to health, as determined by the health officer.
(4) Overcrowding a room with occupants.
(5) Insufficient ventilation or illumination.
(6) Inadequate or unsanitary sewage or plumbing facilities
(7) Any violation of the housing standards set forth in this code.”

(14-3-1-4 ROA 1994 of Housing Code, Definitions)

SAFE CITY STRIKE FORCE

In 2002, the Safe City Strike Force was created by an executive order of the Mayor and a Memorandum of Understanding was executed between various city departments.

The Safe City Strike Force was formed to combat blighted commercial and residential properties.

Originally, thirty to forty-five representatives from the Albuquerque Police Department, the Albuquerque Fire Department, the Fire Marshal’s Office, the Planning Department Code residential and commercial code inspectors, Family Community Services and the Bernalillo County District Attorney’s Office participated comprised the strike force.

From 2002 to 2010, the Safe City Strike Force was a division of the City Attorney’s Office with an attorney in charge as Director.

For the first 8 years of its existence, seventy to one hundred fifty properties a week, both residential and commercial properties would be reviewed by the Strike Force.

The Safe City Strike Force would handle referrals from the general public, neighborhood associations, the Mayor and the Albuquerque City Council.

The Albuquerque City Council would be given weekly updates on the progress made in their districts on the nuisance properties found.

The Safe City Strike Force routinely prepared condemnation resolutions for enactment by the Albuquerque City Council to tear down substandard buildings.

From 2002 to 2010 civil enforcement action against some 6,500 properties, both commercial and residential were taken by the Safe City Strike Force.

Actions taken by the Strike Force included actions against central motels, violent bars, flea markets, convenience stores and slumlord properties.

The Safe City Strike Force took civil action against substandard properties that had become magnets for crime.

A magnet for crime property is one that has an extensive history of calls for service to the Albuquerque Police Department and where crime occurs.

The Strike Force took actions against residential and commercial properties that were used for prostitution and drug activity such as meth labs and crack houses.

A review of the total number of calls for service a year is what is used in part to determine if a property is a public nuisance or a nuisance under city ordinances.

Calls for service to the Albuquerque Police Department to deal with properties that have become “magnets for crime” result in a drain on police resources and costs millions of dollars a year in taxpayer funds.

Currently there are estimated to be between 3,000 to 4,000 vacant, substandard buildings, both residential and commercial, within the Albuquerque area.

From 2010 to the present, the Safe City Strike Force has been a division of the Planning Department and has only 3 employees, the Director and 2 code inspectors.

Beginning in 2018, the Safe City Strike Force has 3 employees, its director and 2 inspectors, and the Safe City Strike Force exists in name only.

Review of the Keller Administration 2018-2019 proposed budget, a $3.9 million appropriation is being made as commitment to reinstate the Safe City Strike Force.

Further, $102,000 is being proposed for board ups of blighted properties, but significantly more will be needed to address the approximate 3,000 substandard properties throughout Albuquerque.

Eight years ago, the Safe City Strike had $1 million in funding for board ups, tear downs and condemnations.

CONCLUSION

The City of Albuquerque and the State of New Mexico have some of the strongest nuisance abatement laws in the county.

Crime rates can be brought down with civil nuisance abatement actions that protect the public health, safety and welfare of the public.

Both the city and the state need to ensure that sufficient resources are dedicated to enforce existing nuisance abatement laws.

The Albuquerque Police Department (APD) has released the city’s crime statistics for the first quarter of 2018 (January to March) comparing them to the first quarter of 2017, (January to March).

Looking at the numbers, property crime is down, but it’s the homicide rate that continues to be alarming.

Here’s a look at the crime stats for the first quarter of 2018 compared to the same period last year:

Traffic Stops

2017: 7,940
2018: 13,586
Change: +71%

Auto Burglary

2017: 3,256
2018: 2,234
Change: -31%

Auto Theft

2017: 1,904
2018: 1,668
Change: -12 percent

Commercial Burglary

2017: 56
2018: 477
Change: -6%

Residential Burglary

2017: 1,102
2018: 1,022
Change: -7%

Robbery

2017: 722
2018: 393
Change: -46%

Aggravated Assault:

2017: 926
2018: 840
Change: -9%

Non Fatal Shootings:

2017:27
2018: 27
Change: 0%

Rape:

2017: 111
2018: 96
Change: -12%

Homicides:

2017: 12
2018: 18
Change: +50%

MURDER RATE IS ALARMING

There were 6 more murders in the first quarter of 2018 compared with 2017 which is a 50% increase.

Property crimes by far are more common than murders.

The fact is, murders do not drive property crime trends, but it is the other way around.

A murder is usually committed when another crime is being committed such as armed robbery or domestic violence or it’s a crime committed in the heat of anger and a gun is readily available.

It’s difficult at best to bring down homicide rates, but it can be done when you bring down other violent crime such as armed robbery, aggravated assaults, illicit drug offenses and domestic violence.

In March of this year, 5 homicides were reported in six days!

Albuquerque has had twenty (21) homicides reported in 4 months thus far and counting! Albuquerque had 12 murders in the first quarter last year.

In 2017, violent crime rose by 18% over the previous year.

Since 2012, violent crime has dramatically increased in Albuquerque by 77%. The 77% increase in violent crime in 2017 was still significantly less than “nonfatal shootings” which increased by a whopping 148%.

According to APD statistics released for 2017, homicides increased by 23%, robberies increase by 43%, rapes increased by 21% and aggravated assaults increased 4.2%.

The dramatic increase in crime in 2017 followed a 15.5 percent increase in violent crime in 2016.

CONCLUSION

The good news is that Albuquerque’s property crime rates for the first time in a number of years are declining.

The bad news is that our violent crime rates are still way too high.

In other words, your property may be safe, but you may want to carry a gun.

QWorks stands for “how Albuquerque works” as in how our city government works and what is going on around the city and its neighborhoods.

On Sunday, April 22, 2018, Qworks will have its official launch party at the Kosmos Restaurant , 1715 5th street, NW, Albuquerque, New Mexico, 87102, from 6:00 pm to 8:00 pm.

I encourage readers to click on the link below and view the video published on FACEBOOK that explains what QWorks is all about, who is behind it and what it wants to do.

www.facebook.com/qworks.abq/videos/1851712481792464/

A few weeks ago, I attended a focus group meeting for QWorks.

The QWorks group was originally organized to elect Gus Pedrotty Mayor of Albuquerque, but after the election, the group met and wanted to continue to advocate and make a contribution to Albuquerque.

The organizers of QWorks are all in their twenties with each having a deep commitment to making Albuquerque a better place to live, work and raise a family.

The group includes Gus Pedrotty, A. J. Hedrich, Joshua Romero, Sara Collins, Alexa Ogunsanya, Timothy Carlton McQueen, Brendon Gray and Gabe Gallegos and at least twelve other highly motivated millennials.

In a real sense, each one of these young adults reflect Albuquerque’s future.

Each and every one of these “millennials” bring different talents and experiences to the group, including writing skills, video production skills, marketing skills and the understanding how social media works.

All of them bring to the table energy, sense of love and commitment to Albuquerque and ideas on the city’s real potential.

According to QWorks organizers “[QWorks] comes out of a reflection on how communities organize, what motivates engagement, and how to create more passive opportunities to inspire action, all while increasing the level of knowledge on civic engagement, how the city works across our city’s electorate”.

Gus Pedrotty says “Over the last four months, we’ve worked on building a team and structure that requires itself to be inclusive, distributed, and growing. It’s all too long for a post — the ideas behind this, the trial and error, the opportunity for growth, and what we’ll need along the way — so please come to [our launch party] on Sunday, 4/22, at The Kosmos Restaurant from 6-8PM to meet us, engage with us, and join us on this next adventure!”

The immediate goal of QWorks is to start by producing 30 to 60 second social network media messages to inform the public how city government programs work and what is going on in Albuquerque socially, culturally and politically.

Pod casts are also being contemplated by the group.

QWorks has already produced 60 second preliminary public information messages that are slick and impressive.

Many would call them “public service” announcements, but the videos are far from that and are entertaining and very informative.

All the work on QWorks so far has been strictly voluntary by the group members.

QWorks wants to eventually become a “nonprofit” corporation.

CONCLUSION

I have found that my generation (over 60) has a real bad habit of underestimating the talents, abilities and wisdom of millennials that QWorks represents, and we do so at our own peril and loss.

QWorks has the real potential of being a refreshing voice advocating solutions to our cities problems.

This is one group of millennials that need to be encourage and helped by all.

If you are interested in Albuquerque’s future generation who in no time be responsible for solving many of our problems, I encourage you to attend the April 22, 2018 Launch Party for Qworks to be held at the Kosmos Restaurant, 1715 5th street, NW, Albuquerque, New Mexico, 87102 from 6:00 pm to 8:00 pm.

You can reach QWorks at their email: qworks.abq@gmail.com

And please remember, QWorks is how Albuquerque works!

If you live in Albuquerque and drive the streets of Albuquerque for any length of time on any given day you will enjoy and experience of the unsafe and insane driving practices of Albuquerque drivers.

I have had visitors to Albuquerque ask me what is wrong with Albuquerque drivers?

I tell them it is a disease we call the “Burque Traffic Madness” and that some of us are just born with it, but you eventually catch it anyway.

It is common to be driving the streets of Albuquerque and see speeding, be cut off by another driver, see someone run a red light, watch drivers barrel through school zones, use corner businesses to drive into as a shortcut to avoid a red light, vehicles with cracked windshields or broken taillights, people using their cell phones while driving ignoring traffic in front or on the side of them, people driving without their seat belts on, drivers swerving in and out of lanes at high speeds and engaging in careless driving, driver’s looking in their rearview mirror checking out their teeth, hair or makeup, drivers yelling at each other in road rage or drivers being totally oblivious to pedestrians and people on bikes or motorcycles, drivers that are obviously in a haze or driving under the influence based on their weaving in and out of traffic, drivers that have been in a car accident patiently waiting lengthy periods of time for a police officer to show up to take an accident report, just to mention a few.

What you do not see very often at all are Albuquerque Police Officers (APD) making traffic stops, issuing citations and changing people’s driving habits by their sure presence on the road.

It seems that the only time you hear or see an APD mark unit on the streets of Albuquerque is when they are traveling far in excess of the speed limit with their red lights on and sirens blazing no doubt to get to the next violent crime scene.

If you think APD has no traffic patrols, you would be absolutely right when you look at the dramatic decline in traffic citations issued by APD.

TRAFFIC COURT ARRAIGNMENT PROGRAM

In 2006, the Metropolitan Traffic Court Arraignment Program was created by agreement of the City Attorney, the Bernalillo County District Attorney and the Bernalillo County Metropolitan Court.

Despite the historical and designated role of the Bernalillo County District Attorney’s office as the chief law enforcement office for the prosecution of criminal cases, misdemeanor or felony cases, then Mayor Martin Chavez directed the City Attorney’s Office to organize, staff and participate in the traffic arraignment program.

A Metropolitan Judge is assigned on a rotating basis to approve the plea agreements negotiated.

The Metropolitan court provides a designated courtroom.

Assistant City Attorneys are cross deputized or appointed “special prosecutors” by the Bernalillo County District Attorney with the sole authority to negotiate plea agreements in traffic cases at the time of arraignments, thereby negating the needs for sworn APD personnel to appear at arraignments.

The Bernalillo County District Attorney’s Office employs 300 full time personnel which includes approximately 120 full time attorney positions, and has upwards of 20 Assistant District Attorneys assigned to the Metro Court, one for each judge.

However the District Attorney’s office does not designate any personnel to the traffic arraignment program.

Other than appointing Assistant City Attorney’s as special prosecutors, the Bernalillo County District Attorney provides virtually no funding, no personnel nor assistance to the traffic arraignment program.

The City Attorney has 59 full time personnel which includes 34 full time Assistant City Attorneys.

Two assistant City Attorneys and four paralegals are assigned to the traffic arraignment program to negotiate plea agreements and the City Attorney’s Office absorbs the personnel costs.

The rationale for the city attorney’s office to be involved traffic arraignments is twofold:

1. to provide a major accommodation to the Metropolitan Court
2. to eliminate the need of sworn APD officers to go to court for arraignments on traffic offenses.

Traffic cases are “officer prosecuted”, meaning sworn police officers on their own have to present the case to the court.

The traffic court arraignment program reduces police overtime where APD sworn personnel are entitled to a minimum of 2 hours of overtime charged at time and a half under the union contract.

HOW IT WORKS

When a person is stopped and issued traffic citation, the citing sworn officer determines if the driver will contest the citations and if the driver wants to contest the citations an arraignment date and time is immediately scheduled.

The Metropolitan Traffic arraignment program streamlines the process, saves time and money and negates the appearance of police officers at the arraignments.

There are upwards of 170 different traffic violation citations that can be issued by sworn law enforcement.

The most common traffic citations include speeding, reckless driving, careless driving, failing to stop, improper lane change, no registration, no insurance, suspended driver’s license, failing to yield, and open container.

Fines for traffic citations carry civil penalties as low as $5.00 to as much as $1,000 in fines.

Failure to have insurance for example is a $1,000 fine.

The average Metropolitan Traffic Court arraignment case results in court fees and fines anywhere from $65 to upwards of $250.

DECLINE IN TRAFFIC CITATIONS

City Attorney statistics show a significant decrease in the number traffic citations being handled by the city.

On any given day, between 250 and as many as 500 cases can be negotiated, resolved and approved by the Metro Court.

In 2009, there were 86,75 traffic arraignment cases in Metro Court and in 2015 traffic cases dropped to 31,163, or over 55,000 fewer traffic citations.

In 2016, the total number of traffic cases going to arraignment and handled by the City Attorney’s office was 34,077. (2018-2019 proposed City of Albuquerque budget, page 113).

In 2017, the total number of traffic cases going to arraignment and handled by the City Attorney office was 28,643. (2018-2019 proposed City of Albuquerque budget, page 113).

Mid-year for the 2017-2018, 13,053 traffic cases went to arraignment and were handled by the city attorney’s office.

30,000 cases are projected for the new fiscal year 2018-2019 to be handled by the city attorney’s office.

TRAFFIC STOPS CAN BE DANGEROUS FOR LAW ENFORCEMENT

When a police officer stops someone for traffic violations, such as speeding, running a red light, improper lane change, broken tail light, the police officer making the traffic stop takes the driver’s license of the driver, goes back to their patrol car and runs a criminal background check on the driver.

The police officer is able to determine within seconds whether or not there are any outstanding arrest warrants, bench warrants and felony convictions.

The police officer also looks up the driver’s vehicle registration and vehicle identification number (VIN) to determine if the vehicle stopped is a stolen vehicle.

Simple traffic stops can be extremely dangerous and result in law enforcement being killed as anyone who has lived in Albuquerque for any length of time knows full well with the killing of APD Police Officer Daniel Webster and the shooting of APD Police Officer Police Lou Golson.

APD SWORN PERSONNEL SHORTAGE

There is a direct correlation between the dramatic decline in the number of traffic citations and arraignments and the severe decline in APD personnel.

The number of APD sworn officers has fallen from 1,100 officers to 850 over the past eight years.

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 traffic unit that had upwards of 40 patrol officers and today it is at less than 10.

Fewer APD sworn officers patrolling our streets results in fewer traffic citations.

Compounding the decline in the number of traffic citations is the fact that the “red light” camera program was abolished seven years ago.

The “red light” camera program was highly effective in reducing the number of traffic accidents at major intersections, but it was highly controversial, angered too many voters which resulted in its demise and the New Mexico legislature got involved.

Fewer cases results in fewer fines and it has a direct fiscal impact on court programs such as DWI education programs.

At the beginning of 2018, APD has 878 sworn police officers with only 435 assigned to the field services patrolling and responding to 69,000 priority one 911 emergency calls a year.

It takes an average of 15 minutes to dispatch a police officer to 911 emergency calls, which endangers public safety.

CONCLUSION

Based on review of the statistics, traffic code enforcement is a very low priority of APD, not out of desire, but out of necessity.

With APD field officers responding to over 69,000 priority one calls a year, not to mention thousands of lower priority calls, it is surprising the statistics are not worse at Metropolitan Court.

APD can no longer be proactive traffic enforcement.

The net result is that Albuquerque streets are dangerous to drive and we all will be subject to becoming the victims of “Burque Traffic Madness” unless we get more cops patrolling our streets.

Until then, if you suffer from “Burque Traffic Madness” please get the hell off the roads until you are cured of it.

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.

(Source: http://www.nmcourts.gov/reports-and-policies.aspx)

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.

(Source: http://www.nmcourts.gov/reports-and-policies.aspx)

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.

www.usnews.com/news/best-states/new-mexico/articles/2018-01-29/odds-of-beating-dwi-charges-in-bernalillo-county-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.

APD STAFFING

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.

https://www.abqjournal.com/1159270/cases-in-limbo-as-city-changes-auto-confiscation-policy.html

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.

CONCLUSION

The Albuquerque city council should approve the proposed changes being made by the Keller Administration to the vehicle forfeiture ordinance.

https://www.abqjournal.com/1159353/theres-a-middle-ground-to-booting-dwi-seizures.html

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.