45th legislature - STATE OF NEW MEXICO - second session, 2002

RELATING TO FORFEITURE OF PROPERTY; ENACTING THE FORFEITURE ACT; PROVIDING PROCEDURES FOR THE SEIZURE, FORFEITURE AND DISPOSAL OF CERTAIN PROPERTY SUBJECT TO FORFEITURE; AMENDING, REPEALING AND ENACTING SECTIONS OF THE NMSA 1978.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 8 of this act may be cited as the "Forfeiture Act".

Section 2. [NEW MATERIAL] PURPOSE OF ACT--APPLICABILITY.--

A. The purposes of the Forfeiture Act are:

(1) to make uniform the standards and procedures for the seizure and forfeiture of property subject to forfeiture; and

(2) to protect the constitutional rights of persons accused of a crime and of innocent persons holding interests in property subject to forfeiture.

B. The Forfeiture Act applies to:

(1) seizures, forfeitures and dispositions of property subject to forfeiture pursuant to laws that specifically apply the Forfeiture Act; and

(2) seizures, forfeitures and dispositions of property subject to forfeiture pursuant to other laws; but only to the extent that the procedures in the Forfeiture Act for seizing, forfeiting or disposing of property are consistent with any procedures specified in those laws.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Forfeiture Act:

A. "conviction" or "convicted" means that a person has been found guilty of a crime 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 a violation of a criminal statute for which property of the offender is subject to seizure and forfeiture;

C. "law enforcement officer" means a state or municipal police officer, county sheriff, deputy sheriff, conservation officer, motor transportation enforcement officer or other state employee authorized by state law to enforce criminal statutes, but "law enforcement officer" does not include correctional officers;

D. "owner" means a person who has a legal or equitable ownership interest in property;

E. "property" means tangible or intangible personal property or real property;

F. "property subject to forfeiture" means property described and declared to be subject to forfeiture by a state law outside of the Forfeiture Act; and

G. "secured party" means a person with a security or other protected interest in property, whether arising by mortgage, 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] SEIZURE OF PROPERTY.--Property may be seized by a law enforcement officer:

A. pursuant to an order of seizure issued by a district court based on a sworn application of a law enforcement officer from which a determination is made by the court that:

(1) there is a substantial probability that:

(a) the property is subject to forfeiture;

(b) the state will prevail on the issue of forfeiture; and

(c) failure to enter the order will result in the property being destroyed, removed from the state or otherwise made unavailable for forfeiture; and

(2) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship to the owner and other parties known to be claiming interests in the property; and

B. without a prior court order, if the property alleged to be property subject to forfeiture is not a residence or a business, when:

(1) the seizure is incident to an arrest for a crime, a search conducted pursuant to a search warrant or an inspection conducted pursuant to an administrative inspection warrant and the law enforcement officer making the arrest or executing the search or inspection warrant has probable cause to believe the property to be property subject to forfeiture and that the subject of the arrest, search warrant or inspection warrant is an owner of the property; or

(2) the law enforcement officer making the seizure has probable cause to believe the property is property subject to forfeiture and that the delay occasioned by the need to obtain a court order would frustrate the seizure.

Section 5. [NEW MATERIAL] COMPLAINT OF FORFEITURE--SERVICE OF PROCESS.--

A. Within thirty days of making a seizure, the state shall file a complaint of forfeiture or return the property to the person from whom it was seized. A complaint of forfeiture shall include:

(1) a description of the property seized;

(2) the date and place of seizure of the property;

(3) the name and address of the law enforcement agency making the seizure;

(4) the specific statutory and factual grounds for the seizure;

(5) if the property was seized pursuant to an order of seizure, the sworn application of the law enforcement officer for the order, and if the property was seized without an order of seizure, an affidavit from a law enforcement officer stating the legal and factual grounds why an order of seizure was not required; and

(6) the names of persons known to the state who may claim an interest in the property set forth in both the caption and in the complaint and the basis for each person's alleged interest.

B. The complaint shall be served upon the person from whom the property was seized and all persons known or reasonably believed by the state to claim an interest in the property.

Section 6. [NEW MATERIAL] COURT HEARING AND DETERMINATION.--

A. Claims to the property 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. The district courts have jurisdiction over forfeiture proceedings, and venue for a forfeiture proceeding is in the same court in which venue lies for the criminal matter for which the property is alleged to be subject to forfeiture.

C. The forfeiture proceeding shall be brought in the same proceeding as the criminal matter and presented to the same trier of fact; provided:

(1) the two issues shall be bifurcated; and

(2) the rules of criminal procedure shall apply in the criminal matter and the rules of civil procedure shall apply in the forfeiture proceeding.

D. If the state fails to prove, by clear and convincing evidence, that the person charged with the crime for which the property is alleged to be property subject to forfeiture is the owner of the property:

(1) the forfeiture proceeding shall be dismissed and the property shall be delivered to the owner, unless possession of the property is illegal;

(2) the owner shall be awarded costs and reasonable attorney fees payable by the law enforcement agency that seized the property, unless possession of the property is illegal; and

(3) the owner shall not be subject to any charges by the state for storage of the property or expenses incurred in the preservation of the property.

E. The court shall enter a judgment of forfeiture and the property shall be forfeited to the state if the state proves by clear and convincing evidence that:

(1) the property is subject to forfeiture;

(2) the criminal prosecution of the owner has resulted in a conviction; and

(3) the value of the property to be forfeited does not unreasonably exceed:

(a) the pecuniary gain derived or sought to be derived by the crime;

(b) the pecuniary loss caused or sought to be caused by the crime; or

(c) the value of the convicted owner's interest in the property.

Section 7. [NEW MATERIAL] DISPOSITION OF FORFEITED PROPERTY.--

A. Unless possession of the property is illegal or a different disposition is specifically provided for by law and except as provided in Subsection C of this section, forfeited property, if it is not currency, shall be sold at public sale by the law enforcement agency in possession of the property. Forfeited currency and all sale proceeds of the sale of forfeited property shall be distributed:

(1) first, to pay reasonable expenses incurred for storage, protection and sale of the property;

(2) second, any remaining balance to pay restitution to or on behalf of victims, if any, of the crime related to the forfeiture; and

(3) third, any remaining balance to the general fund except:

(a) for forfeitures of property arising from Chapter 17 NMSA 1978, the balance shall be deposited in the game protection fund in an amount equal to the expenditures to prosecute the forfeiture and the crime, with the net balance to be deposited in the general fund; and

(b) for forfeiture of property arising from Chapter 18, Article 6 NMSA 1978, the balance shall be used for the restoration, stabilization, protection and preservation of the affected cultural property, with the net balance to be deposited in the general fund.

B. Any property interest forfeited to the state and disposed of pursuant to the Forfeiture Act is subject to the interest of a secured party unless, at the forfeiture proceeding, the state proves by clear and convincing evidence that the secured party knew or should have known of the crime.

C. If, at the forfeiture proceeding, the state proves, by clear and convincing evidence, that the person convicted of the crime for which the property is subject to forfeiture is a co-owner of the property but fails to prove that the other co-owner knew or should have known of the crime then, 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 pursuant to Paragraphs (1) through (3) of Subsection A of 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 becomes a co-owner with the co-owner not convicted of the crime.

D. The law enforcement agency shall notify all known co-owners of forfeited property that were not convicted of the crime not less than thirty days before a proposed public sale of the property. 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 8. [NEW MATERIAL] SAFEKEEPING OF SEIZED PROPERTY PENDING DISPOSITION.--

A. Seized currency alleged to be subject to forfeiture shall be deposited with the clerk of the district court in an interest-bearing account.

B. Seized property other than currency or real property, not required by federal or state law to be destroyed, shall be:

(1) placed under seal; and

(2) removed to a place designated by the district court; or

(3) held in the custody of a law enforcement agency.

C. Property 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 9. Section 17-2-20.1 NMSA 1978 (being Laws 1979, Chapter 321, Section 1, as amended) is amended to read:

"17-2-20.1. SEIZURE AND FORFEITURE--PROPERTY SUBJECT.--

A. All firearms and bows and arrows may be subject to seizure and forfeiture when used as instrumentalities in the commission of the following crimes:

(1) illegal possession or transportation of big game during closed season;

(2) taking big game during closed season;

(3) attempting to take big game by the use of spotlight or artificial light; and

(4) exceeding the bag limit on any big game species during open season.

[B. Provided that no firearms or bows and arrows shall be subject to forfeiture if the violation was without the knowledge or consent of the owner.

C.] B. Any motor vehicle shall be subject to seizure and forfeiture when operated in violation of the provisions of Section 17-2-31 NMSA 1978, regarding hunting by spotlight. [In the event of seizure and forfeiture under this subsection, the motor vehicle shall be disposed of in accordance with the provisions of Section 17-2-20.2 NMSA 1978.

D. No conveyance is subject to forfeiture under this section by reason of any act or omission established for the owner to have been committed or omitted without his knowledge or consent. A forfeiture of a conveyance encumbered by a bona fide security interest shall be subject to the interest of a secured party if the secured party neither had knowledge of nor consented to the act or omission.]

C. The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of property subject to forfeiture pursuant to Subsections A and B of this section."

Section 10. Section 18-6-9.3 NMSA 1978 (being Laws 1993, Chapter 176, Section 11) is amended to read:

"18-6-9.3. CULTURAL PROPERTY--FORFEITURE OF

INSTRUMENTS.--[A.] Any instrument, vehicle, tool or equipment used or intended to be used to violate the provisions of the Cultural Properties Act is subject to forfeiture, [except that no instrument, vehicle, tool or equipment shall be subject to forfeiture if the violation was without the knowledge or consent of the owner of the property subject to forfeiture.

B. Property subject to forfeiture pursuant to the provisions of this section may be seized by a conservation officer, sheriff, state police officer or law enforcement officer upon an order of the district court in the county having jurisdiction over the offense.

C. Seizure without a court order may occur if:

(1) the seizure is incident to an arrest or a search pursuant to a search warrant; or

(2) the enforcement officer has probable cause to believe that the property was used or intended for use to violate the Cultural Properties Act.

D. In the event of seizure pursuant to this section, proceedings shall be instituted within thirty days from the date of seizure. A proceeding brought pursuant to this section shall be in rem. The claim shall not be filed against the owner or any other person and shall be filed only as a civil case.

E. Property taken or detained pursuant to the provisions of this section shall not be subject to replevin, but is deemed to be in the custody of the state agency employing the enforcing officer, subject only to the orders and decrees of the district court. When property is seized pursuant to the Cultural Properties Act, the state agency seizing it shall remove the property to a place designated by the state agency for disposition in accordance with law.

F. Except as otherwise specifically provided by law, property forfeited due to a violation of the Cultural Properties Act shall be sold at public auction pursuant to a court order. The proceeds of the court-ordered sale of forfeited property are subject first to the claims, verified by the court, of innocent persons and the legitimate rights to restitution of actual victims of the criminal acts. Where proceeds are derived from violations:

(1) on lands controlled by the commissioner of public lands, one-half of the proceeds from the sale shall accrue to the state agency of which the law enforcement officer seizing that property is a member and one-half shall be deposited in the cultural properties restoration fund; and

(2) on any other state lands, one-half of the proceeds from the sale shall accrue to the state agency of which the law enforcement officer seizing that property is a member and one-half of the proceeds shall be deposited in the cultural properties restoration fund] and the provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of such property."

Section 11. Section 30-3-8.1 NMSA 1978 (being Laws 1993, Chapter 78, Section 2) is amended to read:

"30-3-8.1. SEIZURE AND FORFEITURE OF MOTOR VEHICLE--PROCEDURE [EXCEPTION].--

A. A motor vehicle shall be subject to seizure and forfeiture when the vehicle is used or intended for use in the commission of the offense of shooting at or from a motor vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978.

[B. A motor vehicle subject to seizure and forfeiture may be seized by a law enforcement officer:

(1) upon an order issued by the district court having jurisdiction;

(2) without an order if the seizure is incident to an arrest; or

(3) without an order if the seizure is incident to a search under a valid search warrant.

C. In the event of seizure pursuant to Subsection B of this section, proceedings under the Rules of Civil Procedure for the District Courts and Subsection D of this section shall be instituted promptly.

D. A motor vehicle seized under this section shall not be subject to replevin, but is deemed to be in the custody of the seizing law enforcement agency, subject only to the orders and decrees of the district court. When a motor vehicle is seized pursuant to the provisions of this section, a law enforcement officer may remove the property to a place designated by the district court or by the head of the officer's agency for disposition in accordance with the law.

E. When a vehicle is forfeited pursuant to this section, the seizing law enforcement agency shall sell the motor vehicle at a public auction, and the proceeds, after all costs for impoundment, forfeiture and sale are repaid, shall be forwarded to the state treasurer for credit to the crime victims reparation fund pursuant to Section 31-22-21 NMSA 1978 within thirty days. If the sale of the motor vehicle does not cover the cost of impounding, forfeiting and selling the motor vehicle, the law enforcement agency may deduct the uncovered portion of the cost from the proceeds of the next sale.

F. No motor vehicle shall be subject to forfeiture when the owner of the motor vehicle establishes that the offense of shooting at or from a motor vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978 was committed without his knowledge or consent. A forfeiture of a motor vehicle encumbered by a recorded bona fide security interest shall be subject to the interest of the secured party if the secured party did not have knowledge of or did not consent to the offense of shooting at or from a motor vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978.]

B. The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of a motor vehicle subject to forfeiture pursuant to Subsection A of this section."

Section 12. Section 30-7-2.3 NMSA 1978 (being Laws 1994, Chapter 22, Section 3) is amended to read:

"30-7-2.3. SEIZURE AND FORFEITURE OF A HANDGUN POSSESSED OR TRANSPORTED BY A PERSON IN VIOLATION OF UNLAWFUL POSSESSION OF A HANDGUN BY A PERSON [EXCEPTION].--

A. A handgun is subject to seizure and forfeiture by a law enforcement agency when the handgun is possessed or transported by a person in violation of the offense of unlawful possession of a handgun by a person.

[B. A handgun seized pursuant to a violation of unlawful possession of a handgun by a person shall not be subject to replevin, but is deemed to be in the custody of the law enforcement agency, subject only to orders and decrees of the district court.

C. When a handgun is seized pursuant to the provisions of this section, the handgun may be disposed of pursuant to the provisions of Section 29-1-14 NMSA 1978.

D. A handgun shall not be forfeited when the owner of the handgun establishes that the offense of unlawful possession of a handgun by a person was committed without the knowledge and consent of that owner. A forfeiture of a handgun encumbered by a bona fide security interest shall be subject to the interest of a secured party if the secured party did not have knowledge of or did not consent to the offense of unlawful possession of a handgun by a person.]

B. The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of a handgun subject to forfeiture pursuant to Subsection A of this section."

Section 13. Section 30-16B-9 NMSA 1978 (being Laws 1991, Chapter 112, Section 9) is amended to read:

"30-16B-9. FORFEITURE--PROCEDURE.--[A.] The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of property subject to forfeiture under the Unauthorized Recording Act. [may be seized by any enforcement officer upon an order issued by the district court having jurisdiction.

B. Seizure without such an order may be made if:

(1) the seizure is incident to an arrest or search under a valid search warrant or an inspection under an administrative inspection warrant;

(2) the property subject to seizure has been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding based upon the Unauthorized Recording Act; or

(3) the enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of the Unauthorized Recording Act.

C. In the event of seizure pursuant to Subsection A of this section, proceedings under Subsection D of this section and the Rules of Civil Procedure for the District Court shall be instituted promptly and not later than thirty days after seizure.

D. Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the seizing police department or agency subject only to the orders and decrees of the district court. When property is seized under the Unauthorized Recording Act, the enforcement officer may:

(1) place the property under seal; or

(2) remove the property to a place designated by the court or head of the officer's department or agency for disposition in accordance with law.

E. When property is forfeited under the Unauthorized Recording Act, the seizing police department or agency shall:

(1) sell that which is not required to be destroyed by law and the proceeds shall revert to the general fund;

(2) take custody of the property for use by law enforcement agencies in the enforcement of the Unauthorized Recording Act for disposition in accordance with law; or

(3) forward property, the proceeds from the sale of which are not required to revert to the general fund, to the property control division of the general services department for disposition.]"

Section 14. Section 30-19-10 NMSA 1978 (being Laws 1963, Chapter 303, Section 19-10) is amended to read:

"30-19-10. FORFEITURE OF [PRIZES AND] EQUIPMENT.--Any gambling device or other equipment of any type used in gambling [shall be seized by the law enforcement officers discovering such device or equipment, and it shall be the duty of such officers to retain custody of the property seized until such property is disposed of by order of the district court. Upon proper application by the district attorney to the judge of the district court, the judge of the district court may by proper order direct the destruction of any gambling device, paraphernalia or equipment of any kind or character seized by law enforcement officers] is subject to forfeiture, and the provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of such property."

Section 15. Section 30-31-35 NMSA 1978 (being Laws 1972, Chapter 84, Section 34, as amended) is amended to read:

"30-31-35. FORFEITURE--PROCEDURE.--[A.] The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of property subject to forfeiture and disposal under the Controlled Substances Act. [may be seized by any enforcement officer upon an order issued by the district court having jurisdiction.

B. Seizure without such an order may be made if:

(1) the seizure is incident to an arrest or search under a search warrant or an inspection under an administrative inspection warrant;

(2) the property subject to seizure has been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding based upon the Controlled Substances Act;

(3) the enforcement officer has probable cause to believe that the property, which is a controlled substance, is directly or indirectly dangerous to health or safety; or

(4) the enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of the Controlled Substances Act.

C. In the event of seizure pursuant to Subsection A or Subsection B of this section, proceedings under Subsection D of this section and the Rules of Civil Procedure for the District Courts of New Mexico shall be instituted promptly and not later than thirty days after seizure.

D. Property taken or detained under this section shall not be subject to replevin, but is deemed to be in the custody of the law enforcement agency seizing it subject only to the orders and decrees of the district court. When property is seized under the Controlled Substances Act, the enforcement officer may:

(1) place the property under seal;

(2) remove the property to a place designated by the enforcement officer; or

(3) require the law enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

E. When property is forfeited under the Controlled Substances Act, the law enforcement agency seizing it shall:

(1) sell that which is not required to be destroyed by law. The proceeds shall revert to the general fund of the state, county or municipality as the case may be;

(2) take custody of the property for use by law enforcement agencies in the enforcement of the Controlled Substances Act or remove it for disposition in accordance with law; provided that where a motor vehicle has been seized by a municipal police department or a county sheriff's department with its respective jurisdictional boundaries, such department shall institute forfeiture proceedings; or

(3) in case of property seized by the state police, forward property, the proceeds from the sale of which are not required to revert to the general fund, to the state police, bureau of narcotics for disposition; provided that motor vehicles seized by the state police may be loaned to the governor's organized crime prevention commission for use in undercover work, the entire cost of operating such vehicles to be borne by the governor's organized crime prevention commission.]"

Section 16. Section 30-31A-10 NMSA 1978 (being Laws 1983, Chapter 148, Section 10) is amended to read:

"30-31A-10. FORFEITURE--PROCEDURE.--[A.] The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of property subject to forfeiture and disposal under the Imitation Controlled Substances Act. [may be seized by any law enforcement officer upon an order issued by the district court having jurisdiction.

B. Seizure without such an order may be made if:

(1) the seizure is incident to an arrest or search under a search warrant; or

(2) the property subject to seizure has been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding based upon the Imitation Controlled Substances Act.

C. In the event of seizure pursuant to Subsection A or B of this section, proceedings under Subsection D of this section and the rules of civil procedure for the district courts of New Mexico shall be instituted promptly and not later than thirty days after seizure.

D. Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the law enforcement agency seizing it subject only to the orders and decrees of the district court. When property is seized under the Imitation Controlled Substances Act, the enforcement officer may:

(1) place the property under seal;

(2) remove the property to a place designated by the enforcement officer; or

(3) require the law enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

E. When property is forfeited under the Imitation Controlled Substances Act, the law enforcement agency seizing it shall take custody of the property for use by law enforcement agencies in the enforcement of the Imitation Controlled Substances Act and the Controlled Substances Act and remove it for disposition in accordance with law.]"

Section 17. Section 30-42-4 NMSA 1978 (being Laws 1980, Chapter 40, Section 4) is amended to read:

"30-42-4. PROHIBITED ACTIVITIES--PENALTIES.--

A. It is unlawful for any person who has received any proceeds derived, directly or indirectly, from a pattern of racketeering activity in which the person has participated, to use or invest, directly or indirectly, any part of the proceeds or the proceeds derived from the investment or use thereof in the acquisition of any interest in, or the establishment or operation of, any enterprise. Whoever violates this subsection is guilty of a second degree felony.

B. It is unlawful for any person to engage in a pattern of racketeering activity in order to acquire or maintain, directly or indirectly, any interest in or control of any enterprise. Whoever violates this subsection is guilty of a second degree felony.

C. It is unlawful for any person employed by or associated with any enterprise to conduct or participate, directly or indirectly, in the conduct of [such] the enterprise's affairs by engaging in a pattern of racketeering activity. Whoever violates this subsection is guilty of a second degree felony.

D. It is unlawful for any person to conspire to violate any of the provisions of Subsections A through C of this section. Whoever violates this subsection is guilty of a third degree felony.

E. Whoever violates Subsection A, B, C or D of this section in addition to the prescribed penalties shall forfeit to the state of New Mexico:

(1) any interest acquired or maintained in violation of the Racketeering Act; and

(2) any interest in, security of, claim against or property or contractual right of any kind affording a source of influence over any enterprise [which] that he has established, operated, controlled, conducted or participated in the conduct of in violation of the Racketeering Act.

[F. In any action brought by the state under the Racketeering Act, the district court shall have jurisdiction to enter such restraining orders or prohibitions, or to take such other actions, including but not limited to the acceptance of satisfactory performance bonds, in connection with any property or other interest subject to forfeiture under this section, as it shall deem proper.

G. Upon conviction of a person under this section, the court shall authorize the attorney general or the district attorney to seize all property or other interest declared forfeited under this section upon such terms and conditions as the court shall deem proper, making due provision for the rights of innocent persons. If a property right or other interest is not exercisable or transferable for value by the convicted person, it shall expire and shall not revert to the convicted person.]

F. The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of property described in Subsection E of this section."

Section 18. Section 30-45-7 NMSA 1978 (being Laws 1989, Chapter 215, Section 7) is amended to read:

"30-45-7. FORFEITURE OF PROPERTY.--

A. The following are subject to forfeiture:

(1) all computer property, equipment or products of any kind [which] that have been used, manufactured, acquired or distributed in violation of the Computer Crimes Act;

(2) all materials, products and equipment of any kind [which] that are used or intended for use in manufacturing, using, accessing, altering, disrupting, copying, concealing, destroying, transferring, delivering, importing or exporting any computer property or computer service in violation of the Computer Crimes Act;

(3) all books, records and research products and materials involving formulas, microfilm, tapes and data [which] that are used or intended for use in violation of the Computer Crimes Act;

(4) all conveyances, including aircraft, vehicles or vessels, [which] that are used or intended for use to transport or in any manner to facilitate the transportation of property described in this subsection [A, B or C of this section] for the purpose of violating the Computer Crimes Act;

(5) all property, real, personal or mixed, [which] that has been used or intended for use, maintained or acquired in violation of the Computer Crimes Act; and

(6) all money or proceeds that constitute an instrumentality or derive from a violation of the Computer Crimes Act.

[B. Notwithstanding the provisions of Paragraphs (1) through (6) of Subsection A of this section:

(1) no conveyance used by any person as a common carrier in the transaction of business as a common carrier is subject to forfeiture under this section unless it appears that the owner or other person in charge of the conveyance is a consenting party to a violation of the Computer Crimes Act;

(2) no conveyance, computer property, equipment or other material is subject to forfeiture under this section by reason of any act or omission established by the owner to have been committed or omitted without his knowledge or consent;

(3) a conveyance, computer property, equipment or other material is not subject to forfeiture for a violation of law the penalty for which is a misdemeanor or petty misdemeanor; and

(4) a forfeiture of a conveyance, computer property, equipment or material encumbered by a bona fide security interest shall be subject to the interest of a secured party if the secured party neither had knowledge of nor consented to the act or omission.

C. Property subject to forfeiture and disposal under the Computer Crimes Act may be seized by any law enforcement officer upon an order issued by the district court having jurisdiction.

D. Seizure without such an order may be made if:

(1) the seizure is incident to an arrest or search under a search warrant;

(2) the property subject to seizure had been the subject of a prior judgment in favor of the state in an injunction or forfeiture proceeding based upon the Computer Crimes Act; or

(3) the enforcement officer has probable cause to believe that the property, whether real, personal or mixed, was used or intended for use, maintained or acquired in violation of the Computer Crimes Act.

E. In the event of a seizure pursuant to Subsection C or Subsection D of this section, a proceeding under the Computer Crimes Act and the rules of civil procedure for the district courts shall be instituted promptly and not later than thirty days after seizure. The proceeding to forfeit property under the Computer Crimes Act is against the property and not against the owner or any other person. It is in rem wholly and not in personam. It is a civil case and not a criminal proceeding. The forfeiture proceeding is required, not to complete the forfeiture, but to prove the illegal use for which the forfeiture was suffered.

F. Except as otherwise specifically provided by law, whenever any property is forfeited to the state by reason of the violation of any law, the court by which the offender is convicted shall order the sale or other disposition of the property and the proceeds of any such sale as provided for in this section are subject to the court making due provisions for the rights of innocent persons and the legitimate rights to restitution on behalf of actual victims of the criminal acts.

G. Property taken or detained under this section shall not be subject to replevin but is deemed to be in the custody of the law enforcement agency seizing it, subject only to the orders and decrees of the district court. When property is seized under the Computer Crimes Act, the enforcement officer may:

(1) place the property under seal;

(2) remove the property to a place designated by the law enforcement officer or by the district court; or

(3) require the law enforcement agency to take custody of the property and remove it to an appropriate location for disposition in accordance with law.

H. When property is forfeited under the Computer Crimes Act, the law enforcement agency seizing it shall:

(1) deliver custody of the property to the information systems council attached to the general services department. The council, based upon a plan, shall advertise and make available the forfeited property to state agencies and political subdivisions of the state based upon a demonstrated need and plan of use for that property. The information systems council shall advertise and make the forfeited property available by bid for a minimum of one hundred twenty days and dispose of that property within another sixty days. All proceeds from the sale of forfeited property shall be deposited in the general fund; or

(2) where the court orders the property to be sold, the proceeds of the sale shall be paid into the general fund.]

B. The provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of property subject to forfeiture pursuant to Subsection A of this section."

Section 19. Section 60-7A-4.1 NMSA 1978 (being Laws 1985, Chapter 179, Section 1, as amended) is amended to read:

"60-7A-4.1. UNLAWFUL SALE OF ALCOHOLIC BEVERAGES--CRIMINAL PENALTY--FORFEITURE.--

A. It is unlawful for any person to sell or attempt to sell alcoholic beverages at any place other than a licensed premises or as otherwise provided by the Liquor Control Act.

B. Any person who violates the provisions of Subsection A of this section is guilty of a fourth degree felony.

C. Any conveyance used or intended to be used for the purpose of unlawful sale of alcoholic beverages or money which is the fruit or instrumentality of the crime [may be seized and upon conviction, in the discretion of the court, be forfeited and disposed of under the procedures set forth in Section 30-31-35 NMSA 1978] is subject to forfeiture, and the provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of such property."

Section 20. Section 60-7A-5 NMSA 1978 (being Laws 1981, Chapter 39, Section 51, as amended) is amended to read:

"60-7A-5. MANUFACTURE, SALE OR POSSESSION FOR SALE WHEN NOT PERMITTED BY LIQUOR CONTROL ACT--CRIMINAL PENALTY--FORFEITURE.--

A. It is unlawful for any person to manufacture for the purpose of sale, possess for the purpose of sale, offer for sale or sell any alcoholic beverages in the state except under the terms and conditions of the Liquor Control Act.

B. Any person who violates the provisions of Subsection A of this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Any conveyance used or intended to be used for the unlawful manufacture or sale of alcoholic beverages or any money that is the fruit or instrumentality of unlawful manufacture or sale of alcoholic beverages [may be seized and, upon conviction, in the discretion of the court, forfeited and disposed of pursuant to the provisions of Section 30-31-35 NMSA 1978] is subject to forfeiture, and the provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of such property."

Section 21. Section 60-7A-6 NMSA 1978 (being Laws 1981, Chapter 39, Section 52, as amended) is amended to read:

"60-7A-6. POSSESSION OF LIQUOR MANUFACTURED OR SHIPPED IN VIOLATION OF LAW--FOURTH DEGREE FELONY--PENALTY--FORFEITURE.--

A. It is unlawful for any person to have in his possession with the intent to sell or resell any alcoholic beverages which to that person's knowledge have been manufactured or transported into this state in violation of the laws of this state.

B. Any person who violates the provisions of Subsection A of this section is guilty of a fourth degree felony and shall be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978.

C. Any conveyance used or intended to be used for the unlawful manufacture or transportation of alcoholic beverages or any money that is the fruit or instrumentality of unlawful manufacture or transportation of alcoholic beverages [may be seized and, upon conviction, in the discretion of the court, forfeited or disposed of pursuant to the provisions of Section 30-31-35 NMSA 1978] is subject to forfeiture, and the provisions of the Forfeiture Act apply to the seizure, forfeiture and disposal of such property."

Section 22. REPEAL.--Section 17-2-20.2 NMSA 1978 (being Laws 1979, Chapter 321, Section 2) is repealed.

Section 23. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2002.