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F I S C A L I M P A C T R E P O R T

SPONSOR Griego

ORIGINAL DATE

LAST UPDATED

02/17/07

HB

SHORT TITLE Seizure of Vehicles upon DWI Arrests

SB 770

ANALYST Hanika Ortiz

ESTIMATED ADDITIONAL OPERATING BUDGET IMPACT (dollars in thousands)

FY07

FY08

FY09 3 Year

Total Cost

Recurring

or Non-Rec

Fund

Affected

Total

$0.1

recurring

local

governments

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates SB 273

Companion to SB 690

SOURCES OF INFORMATION

LFC Files

Responses Received From

Public Defender Department (PDD)

Department of Public Safety (DPS)

Administrative Office of the Courts (AOC)

Taxation and Revenue Department (TRD)

SUMMARY

Synopsis of Bill

Senate Bill 770 will allow vehicles of people arrested for driving while under the influence of

intoxicating liquor or drugs to be towed to towing facilities or immobilized at a location

specified by their owners. If the driver that was arrested owned the vehicle, the vehicle will not

be released until an ignition interlock device was installed on the vehicle. If no interlock device

is installed within sixty days of the arrest, the vehicle will be forfeited as prescribed by the

Forfeiture Act (Section 31-27-1 to 31-27-8 NMSA 1978). In cases where the person arrested did

not own the vehicle, the owner will be allowed to obtain the vehicle without installing an

interlock device after submitting a statement that the owner will not allow the person arrested to

drive the vehicle. However, if the driver arrested for DUI is found driving the vehicle in the

future, the vehicle will be forfeited pursuant to the Forfeiture Act.

Senate Bill 770 – Page

2

FISCAL IMPLICATIONS

TRD reports the proposed measure will generate insignificant impacts on state and local revenue

sources because in most cases drivers will install ignition interlock devices rather than allow

their vehicles to be seized and sold.

DPS further reflects that the bill should make it clear that offenders are required to pay fees

associated with seizure, interlock and forfeiture.

There will be a minimal administrative cost for statewide update, distribution and documentation

of statutory changes. Any additional fiscal impact on the judiciary would be proportional to

challenges to seizures and forfeitures under this law. New laws, amendments to existing laws

and new hearings have the potential to increase caseloads in the courts, thus requiring additional

resources to handle the increase.

SIGNIFICANT ISSUES

The bill attempts to provide an additional tool in helping to keep intoxicated drivers off the road

by seizing the vehicle they are operating.

The PDD note that should the vehicle be forfeited, pursuant to the Forfeiture Act, because the

driver is the owner and fails to have the ignition interlock device installed, the State should

follow the principals enunciated in State v. Nuñez, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264,

to avoid double jeopardy concerns.

The PDD further notes that the purpose of the Forfeiture Act, in part, is “to protect the

constitutional rights of persons accused of a crime and of innocent persons holding interests in

property subject to forfeiture." NMSA 1978, § 31-27-2(A)(2). There is a presumption in the

Forfeiture Act that the driver is the owner or has interest in the vehicle. The Forfeiture Act does

not speak to property owned in whole by someone other than the driver. See NMSA 1978, § 31-

27-6(D) (providing that the State must 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). This particular provision in the bill runs afoul of basic constitutional

principles.

PERFORMANCE IMPLICATIONS

The bill may assist in performance measures of various departments and help to reduce DWI

driving, repeat offenders, and subsequent related deaths.

ADMINISTRATIVE IMPLICATIONS

TRD reports that this bill will result in substantial administrative costs to the Department.

Computer system impacts will include development of a new web application for entering and

handling DWI forfeiture of vehicle data (estimated at approximately 1,000 hours of

programming time). TRD further reports that implementation will also require rewriting the

driver and vehicle system to link vehicle and driver information and automate the sweep of DWI

citations on a driver and the vehicle that was used and if any statements of forfeiture are present

(3000 hours). The Motor Vehicle Division will be required to keep the non-DWI-driver owner’s

Senate Bill 770 – Page

3

statement with the vehicle's registration records. It will also be necessary for MVD to work with

law enforcement agencies to develop a system for tracking and making that information

available, presumably as an automatic records check on any vehicle driven by an individual with

a history of DWI.

The courts report this bill will place an additional burden on staff and resources at many levels of

government relating to legal issues; including, providing documentation/discovery.

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Companion SB690 Seizure/Forfeiture of vehicle driven by subject arrested for Driving on a

Revoked License

Duplicate of SB 273

TECHNICAL ISSUES

The AOC requests clarification of the following:

•

What coordination is there with the Ignition Interlock Licensing Act, Section 66-5-501 et.

seq. NMSA 1978, requiring a person to apply for an ignition interlock license.

•

How long is the person required to use the ignition interlock device.

•

What provisions are there for indigent individuals. Section 66-8-102 requires an

offender, upon conviction of DWI, to pay all costs associated with installation of an

ignition interlock, unless the court determines that the offender is indigent.

TRD has the following comments about the bill:

•

The bill may generate legal problems concerning responsibilities of tow companies.

Provisions of the statute are unclear whether, when a car is impounded, if towing

companies will be responsible for releasing it and what evidence will base decisions to

release. And, although towing firms will be responsible for sending statements by owners

to MVD, the bill does not indicate when this is to occur, or what happens if a towing

company fails to comply. The bill should set forth towing firms obligations and provide

some type of sanction in cases where towing firms fail to follow the law.

•

It might be appropriate to require the MVD to develop affidavit forms for owners of

impounded vehicle to use when retrieving their vehicles.

•

Provisions of the proposal are unclear regarding how drivers arrested will get interlocks

installed.

•

The proposed statute does not define the term “immobilized".

•

The proposal does not specify how or who will determine if interlock devices are

installed within sixty days, who notifies the owner, and who conducts the forfeiture of the

vehicle to the State (page 2, lines 4-9).

Senate Bill 770 – Page

4

DPS notes that storage of vehicles may pose a problem for most law enforcement agencies.

OTHER SUBSTANTIVE ISSUES

DPS comments that this bill will result in additional legal proceedings as offenders potentially

fight to retain their vehicles using the court system that is already bogged down by legal red tape

and loopholes. This bill will also impact the officers with court time on the civil side in addition

to the normal criminal court associated with arrests.

Statistics published by the New Mexico Department of Transportation indicate 12,411 New

Mexico drivers were convicted for driving while under the influence of alcohol in 2005. Of this

group, 4,711 were for repeat offenders. The number of DWI convictions statewide fell from

about 14,600 in 1996 to 13,000 in 2001, and has remained relatively stable since then.

AHO/nt