SENATE BILL 532
51st legislature - STATE OF NEW MEXICO - first session, 2013
INTRODUCED BY
Mark Moores
AN ACT
RELATING TO DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; DECLARING MOTOR VEHICLES DRIVEN BY REPEAT OFFENDERS OF THE DRIVING UNDER THE INFLUENCE LAWS A PUBLIC NUISANCE; PROVIDING FOR SEIZURE OF CERTAIN VEHICLES; PROVIDING A HEARING PROCESS FOR VEHICLES IN CUSTODY; PROVIDING FOR FORFEITURE OF CERTAIN VEHICLES; PROVIDING FOR DISPOSITION OF FORFEITED VEHICLES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of this act may be cited as the "Motor Vehicle Nuisance Act".
SECTION 2. [NEW MATERIAL] PURPOSE OF ACT.--The purpose of the Motor Vehicle Nuisance Act is to reduce the risk of loss of life, serious bodily injury and emotional harm to innocent people on and near roadways when offenders of the driving while under the influence of intoxicating liquor or drugs laws who have not been deterred by lesser sanctions continue to drive while under the influence.
SECTION 3. [NEW MATERIAL] DEFINITIONS.--As used in the Motor Vehicle Nuisance Act:
A. "conviction" or "convicted" means that a person has been found guilty in the trial court whether by a plea of guilty or nolo contendere or otherwise and whether the sentence is deferred or suspended;
B. "crime" means driving under the influence of intoxicating liquor or drugs or aggravated driving under the influence of intoxicating liquor or drugs pursuant to Section 66-8-102 NMSA 1978 or a violation of the Implied Consent Act;
C. "law enforcement agency" means the employer of a law enforcement officer that has made a seizure of a motor vehicle;
D. "law enforcement officer" means a state or municipal police officer, county sheriff, deputy sheriff, conservation officer, motor transportation officer or other state employee authorized by state law to enforce criminal statutes, but excludes correctional officers;
E. "owner" means a person who has a legal or equitable ownership interest; and
F. "secured party" means a person with a security or other protected interest in property, whether arising by security agreement, lien, lease or otherwise; the purpose of which interest is to secure the payment of a debt or protect a potential debt owed to the secured party.
SECTION 4. [NEW MATERIAL] MOTOR VEHICLE NUISANCE.--A motor vehicle is a public nuisance when it is operated by a person who is arrested for driving under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act and that person has been previously convicted for driving under the influence of intoxicating liquor or drugs or aggravated driving while under the influence of intoxicating liquor or drugs pursuant to Section 66-8-102 NMSA 1978 or a violation of the Implied Consent Act.
SECTION 5. [NEW MATERIAL] MOTOR VEHICLES SUBJECT TO SEIZURE.--A law enforcement officer may temporarily seize a motor vehicle when that officer has probable cause to believe that it is a public nuisance.
SECTION 6. [NEW MATERIAL] CUSTODY OF VEHICLE--INTERMEDIARY HEARING.--
A. A law enforcement agency may retain custody of a motor vehicle seized by a law enforcement officer if:
(1) at the time the vehicle was seized, the law enforcement officer issued written notice of forfeiture and the right to a hearing; and either
(2) the right to a revocation hearing pursuant to Section 66-8-112 NMSA 1978 may be exercised; or
(3) a revocation hearing is pending.
B. The matter of probable cause that the motor vehicle is a public nuisance shall be addressed in a revocation hearing if the right to a hearing is exercised.
SECTION 7. [NEW MATERIAL] MOTOR VEHICLES SUBJECT TO FORFEITURE--COMPLAINT OF FORFEITURE--SERVICE OF PROCESS.--
A. A law enforcement agency may subject to forfeiture a motor vehicle that has been seized when probable cause that it is a public nuisance has been found in a revocation hearing pursuant to Section 66-8-102 NMSA 1978 or the person from whom it was seized fails to exercise the right to a hearing.
B. Within sixty days of making a seizure, the law enforcement agency shall file a complaint of forfeiture or return the motor vehicle to the person from whom it was seized. A complaint of forfeiture shall include:
(1) a description of the motor vehicle seized; (2) the date and place of seizure;
(3) the name and address of the law enforcement agency making the seizure;
(4) the specific statutory and factual grounds for the seizure; and
(5) the names of persons known to the law enforcement agency who may claim an interest in the motor vehicle set forth in both the caption and the complaint and the basis for each person's alleged interest.
C. The complaint shall be served upon the person from whom the motor vehicle was seized, the person's attorney of record and all persons known or reasonably believed by the law enforcement agency to claim an interest in the motor vehicle. A copy of the complaint shall be published no less than three times in a newspaper of general circulation in the district of the court having jurisdiction.
SECTION 8. [NEW MATERIAL] COURT HEARING AND DETERMINATION.--
A. A claim to the motor vehicle shall be filed by way of answer to the complaint of forfeiture and shall be filed within thirty days of the date of service of the complaint.
B. A forfeiture shall be subject to a civil in rem proceeding. The district courts have jurisdiction over forfeiture proceedings. Venue for a forfeiture proceeding is in the same jurisdiction in which venue lies for the charge of the crime that underlies the allegation that the motor vehicle is a public nuisance.
C. The court shall enter a judgment of forfeiture and the motor vehicle shall be forfeited to the state if the state proves by clear and convincing evidence that:
(1) the motor vehicle is a public nuisance; and
(2) the owner has been convicted of the crime that underlies the allegation that the motor vehicle is a public nuisance.
SECTION 9. [NEW MATERIAL] DISPOSITION OF FORFEITED PROPERTY.--
A. Unless the state's possession of a motor vehicle is illegal or a different disposition is specifically provided for by law and except as provided in Subsection C of this section, a forfeited motor vehicle shall be sold at public sale by the law enforcement agency in possession of the motor vehicle. All proceeds of the sale shall be distributed:
(1) first, to pay reasonable expenses incurred for storage, protection and sale of the motor vehicle;
(2) second, any remaining balance to pay restitution to or on behalf of victims, if any, of the crime; and
(3) third, any remaining balance to the general fund of the governing body of the seizing law enforcement agency to be used for drug and alcohol abuse treatment services, for drug and alcohol prevention and education programs, for other substance abuse demand-reduction initiatives or for enforcing driving under the influence of intoxicating liquor or drugs laws or narcotics law violations.
B. A motor vehicle shall not be forfeited to the state if a secured party has an ownership interest in the motor vehicle unless, at the forfeiture proceeding, the state proves by clear and convincing evidence that the secured party knew or should have known that the person from whom the motor vehicle was seized was under the influence of intoxicating liquor or drugs while driving.
C. If, at the forfeiture proceeding, the state proves by clear and convincing evidence that the person convicted of the crime is a co-owner of the motor vehicle but fails to prove that the other co-owner knew or should have known of the crime, at the option of the co-owner not convicted of the crime:
(1) the co-owner not convicted of the crime may buy the forfeited interest from the law enforcement agency at a private sale for the fair market value. Proceeds received by the state from the sale shall be disposed of in accordance with this section;
(2) the law enforcement agency shall sell the entire ownership interest at a public sale pursuant to Subsection A of this section except that the proceeds shall first be used to purchase the ownership interest, at fair market value, of the co-owner not convicted of the crime; or
(3) the law enforcement agency shall sell only the forfeited interest at a public sale pursuant to Subsection A of this section and the purchaser will become a co-owner with the co-owner not convicted of the crime.
D. The law enforcement agency shall notify all known co-owners of a forfeited motor vehicle that were not convicted of the crime not less than thirty days before a proposed public sale of the motor vehicle. If, within the thirty days, the co-owners notify the law enforcement agency of an option made pursuant to Subsection C of this section, the law enforcement agency shall make the sale pursuant to the option selected. If no option is selected by the co-owners or if all of the co-owners not convicted of the crime cannot agree on one option, then the sale shall be made pursuant to Paragraph (3) of Subsection C of this section.
SECTION 10. [NEW MATERIAL] SAFEKEEPING OF SEIZED MOTOR VEHICLES PENDING DISPOSITION.--
A. A seized motor vehicle shall be removed to a place designated by the district court or held in the custody of a law enforcement agency.
B. A seized motor vehicle shall be kept by the custodian in a manner to protect it from theft or damage and, if ordered by the district court, insured against those risks.
SECTION 11. [NEW MATERIAL] POLITICAL SUBDIVISION ELECTION TO ENFORCE.--Notwithstanding the provisions of the Motor Vehicle Nuisance Act, an ordinance of a home rule municipality or other political subdivision of the state that provides for the seizure or forfeiture of a motor vehicle in effect on the effective date of that act shall continue in force and effect until repealed.
SECTION 12. Section 66-8-111.1 NMSA 1978 (being Laws 1984, Chapter 72, Section 7, as amended by Laws 2003, Chapter 51, Section 14 and by Laws 2003, Chapter 90, Section 7) is amended to read:
"66-8-111.1. LAW ENFORCEMENT OFFICER AGENT FOR DEPARTMENT--WRITTEN NOTICE OF REVOCATION OR FORFEITURE AND RIGHT TO HEARING.--On behalf of the department, a law enforcement officer requesting a chemical test or directing the administration of a chemical test pursuant to Section 66-8-107 NMSA 1978 shall serve immediate written notice of revocation and, if applicable, forfeiture and of right to a hearing on a person who refuses to permit chemical testing or on a person who submits to a chemical test the results of which indicate an alcohol concentration in the person's blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age. Upon serving notice of revocation, the law enforcement officer shall take the license or permit of the driver, if any, and issue a temporary license valid for twenty days or, if the driver requests a hearing pursuant to Section 66-8-112 NMSA 1978, valid until the date the department issues the order following that hearing; provided that a temporary license shall not be issued to a driver without a valid license or permit. The law enforcement officer shall send the person's driver's license to the department along with the signed statement required pursuant to Section 66-8-111 NMSA 1978."
SECTION 13. Section 66-8-112 NMSA 1978 (being Laws 1978, Chapter 35, Section 520, as amended by Laws 2003, Chapter 51, Section 15 and by Laws 2003, Chapter 90, Section 8) is amended to read:
"66-8-112. REVOCATION OF LICENSE OR PRIVILEGE TO DRIVE--FORFEITURE OF A MOTOR VEHICLE--NOTICE--EFFECTIVE DATE--HEARING--HEARING COSTS--REVIEW.--
A. The effective date of revocation pursuant to Section 66-8-111 NMSA 1978 is twenty days after notice of revocation or, if the person whose driver's license or privilege to drive is being revoked or denied requests a hearing pursuant to this section, the date that the department issues the order following that hearing. The date of notice of revocation is:
(1) the date the law enforcement officer serves written notice of revocation and of right to a hearing pursuant to Section 66-8-111.1 NMSA 1978; or
(2) in the event the results of a chemical test cannot be obtained immediately, the date notice of revocation is served by mail by the department. This notice of revocation and of right to a hearing shall be sent by certified mail and shall be deemed to have been served on the date borne by the return receipt showing delivery, refusal of the addressee to accept delivery or attempted delivery of the notice at the address obtained by the arresting law enforcement officer or on file with the department.
B. Within ten days after receipt of notice of revocation pursuant to Subsection A of this section, a person whose license or privilege to drive is revoked or denied or the person's agent may request a hearing. The hearing request shall be made in writing and shall be accompanied by a payment of twenty-five dollars ($25.00) or a sworn statement of indigency on a form provided by the department. A standard for indigency shall be established pursuant to regulations adopted by the department. Failure to request a hearing within ten days shall result in forfeiture of the person's right to a hearing. Any person less than eighteen years of age who fails to request a hearing within ten days shall have notice of revocation sent to [his] the person's parent, guardian or custodian by the department. A date for the hearing shall be set by the department, if practical, within thirty days after receipt of notice of revocation. The hearing shall be held in the county in which the offense for which the person was arrested took place.
C. The department may postpone or continue any hearing on its own motion or upon application from the person and for good cause shown for a period not to exceed ninety days from the date of notice of revocation and provided that the department extends the validity of the temporary license for the period of the postponement or continuation.
D. At the hearing, the department or its agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers.
E. The hearing shall be limited to the following issues:
(1) whether the law enforcement officer had reasonable grounds to believe that the person had been driving a motor vehicle within this state while under the influence of intoxicating liquor or drugs;
(2) whether the person was arrested;
(3) whether the person has a prior conviction for driving while under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act;
[(3)] (4) whether this hearing is held no later than ninety days after notice of revocation; and either
[(4)] (5) whether:
(a) the person refused to submit to a test upon request of the law enforcement officer; and
(b) the law enforcement officer advised that the failure to submit to a test could result in revocation of the person's privilege to drive; or
[(5)] (6) whether:
(a) the chemical test was administered pursuant to the provisions of the Implied Consent Act; and
(b) the test results indicated an alcohol concentration in the person's blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.
F. The department shall enter an order sustaining the revocation or denial of the person's license or privilege to drive if the department finds that:
(1) the law enforcement officer had reasonable grounds to believe the driver was driving a motor vehicle while under the influence of intoxicating liquor or drugs;
(2) the person was arrested;
(3) this hearing is held no later than ninety days after notice of revocation; and
(4) either:
(a) the person refused to submit to the test upon request of the law enforcement officer after the law enforcement officer advised [him] the person that [his] the person's failure to submit to the test could result in the revocation of [his] the person's privilege to drive; or
(b) that a chemical test was administered pursuant to the provisions of the Implied Consent Act and the test results indicated an alcohol concentration in the person's blood or breath of eight one hundredths or more if the person is twenty-one years of age or older, four one hundredths or more if the person is driving a commercial motor vehicle or two one hundredths or more if the person is less than twenty-one years of age.
G. If one or more of the elements set forth in Paragraphs (1) through (4) of Subsection F of this section are not found by the department, the person's license shall not be revoked and the law enforcement agency shall return the motor vehicle, if seized.
H. The department may enter an order subjecting the motor vehicle to forfeiture if the department also enters an order sustaining the revocation or denial of the person's license or privilege to drive and finds that the person has a prior conviction for driving while under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act.
[H.] I. A person adversely affected by an order of the department may seek review within thirty days in the district court in the county in which the offense for which the person was arrested took place. The district court, upon thirty days' written notice to the department, shall hear the case. On review, it is for the court to determine only whether reasonable grounds exist for revocation or denial of the person's license or privilege to drive or for forfeiture of the motor vehicle, if applicable, based on the record of the administrative proceeding.
[I.] J. Any person less than eighteen years of age shall have results of [his] the person's hearing forwarded by the department to [his] the person's parent, guardian or custodian."
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