0001| AN ACT | 0002| RELATING TO FORFEITURE OF PROPERTY; ENACTING THE FORFEITURE ACT; | 0003| AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN | 0004| APPROPRIATION. | 0005| | 0006| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: Section 1. A new section of the Criminal Code is enacted to read: | 0007| "SHORT TITLE.--Sections 1 through 12 of this act may be cited as the "Forfeiture | 0008| Act"." | 0009| Section 2. A new section of the Criminal Code is enacted to read: | 0010| "PURPOSE OF ACT.--The purpose of the Forfeiture Act is to provide uniform standards | 0011| and procedures for law enforcement officers and agencies for the seizure and forfeiture of | 0012| property used or intended to be used in the commission of a crime." | 0013| Section 3. A new section of the Criminal Code is enacted to read: | 0014| "DEFINITIONS.--As used in the Forfeiture Act: | 0015| A. "conviction" means a final adjudication of guilt by a district or magistrate | 0016| court or, if the court decision is appealed, a final adjudication of guilt by an appellate court; | 0017| B. "crime" means an offense punishable by imprisonment for one year or more, a | 0018| violation of laws or regulations regarding hunting or fishing or a violation of laws regarding | 0019| gambling; | 0020| C. "law enforcement officer" means a state or municipal police officer, county | 0021| sheriff, deputy sheriff, conservation officer, motor transportation enforcement officer or other | 0022| state employee authorized by state law to enforce criminal statutes; provided, "law enforcement | 0023| officer" does not include correctional officers; | 0024| D. "owner" means an individual who possesses a legal or equitable ownership in | 0025| property, or if title to the property is held in the name of a partnership, trust, corporation or other | 0001| legal entity, an individual who possesses a substantial legal or equitable ownership interest in the | 0002| partnership, trust, corporation or other legal entity; and | 0003| E. "property" means tangible or intangible personal property, real property or an | 0004| interest in tangible or intangible personal property or real property." | 0005| Section 4. A new section of the Criminal Code is enacted to read: | 0006| "FORFEITURE REQUIREMENTS.-- | 0007| A. A judgment for the forfeiture of property shall be entered only upon: | 0008| (1) conviction of an owner of the property for a crime related to the | 0009| forfeiture; provided that a forfeiture proceeding may be commenced prior to the conclusion of | 0010| the criminal prosecution in the trial court; and | 0011| (2) proof by clear and convincing evidence that the property is forfeitable | 0012| under state law and that a person convicted of a crime related to the forfeiture is an owner of the | 0013| property. | 0014| B. The value of the property forfeited shall not unreasonably exceed the | 0015| pecuniary gain derived or sought to be derived by the crime, the pecuniary loss caused or sought | 0016| to be caused by the crime or the value of the convicted owner's interest in the property." | 0017| Section 5. A new section of the Criminal Code is enacted to read: | 0018| "SEIZURE--COURT ORDER--EXCEPTIONS.-- | 0019| A. Property subject to forfeiture may be seized by a law enforcement officer | 0020| upon an order issued by the district court having jurisdiction. | 0021| B. The court may issue an order pursuant to Subsection A of this section if it | 0022| determines that: | 0023| (1) there is a substantial probability that the state will prevail on the issue | 0024| of forfeiture and that failure to enter the order will result in the property's being destroyed, | 0025| removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and | 0001| (2) the need to preserve the availability of the property through the entry | 0002| of the requested order outweighs the hardship to a party of interest. | 0003| C. A seizure of property other than a residence or business may be made without | 0004| a court order when: | 0005| (1) the seizure is incident to an arrest or a search pursuant to a search | 0006| warrant or an inspection pursuant to an administrative inspection warrant; | 0007| (2) the property subject to seizure has been the subject of a prior | 0008| judgment in favor of the state or a political subdivision in a criminal injunction or forfeiture | 0009| proceeding; | 0010| (3) there is probable cause to believe that the property is directly or | 0011| indirectly dangerous to health or safety; or | 0012| (4) there is probable cause to believe that the property is forfeitable under | 0013| state law and that the delay occasioned by the need to secure an order will frustrate the seizure; | 0014| provided, however, that a law enforcement agency making a seizure pursuant to this paragraph | 0015| shall, within thirty days of the seizure, apply for an order pursuant to Subsection A of this | 0016| section; and provided further that the property shall be released to the owner immediately if the | 0017| order is denied. The law enforcement agency making the seizure shall make a reasonable effort | 0018| to notify the person from whom the property was seized of the location, date and time of the | 0019| hearing on the application for an order allowing seizure, so the person has a reasonable | 0020| opportunity to appear at the hearing and oppose the order. | 0021| D. The seizure of a residence or business shall occur only after a pre-seizure | 0022| hearing, with notice provided in accordance with the provisions of Section 6 of the Forfeiture | 0023| Act. | 0024| E. The owner shall be given a receipt whenever practicable for the property | 0025| seized." | 0001| Section 6. A new section of the Criminal Code is enacted to read: | 0002| "SEIZURE--NOTICE--CLAIMS.-- | 0003| A. All forfeiture proceedings shall be brought in the name of the state. All | 0004| forfeiture proceedings shall be initiated in district court in the county in which the property was | 0005| seized; provided that, for good cause shown upon application of any interested party, the court | 0006| may consolidate proceedings filed in different counties or allow transfer of proceedings to | 0007| another county. | 0008| B. All forfeiture proceedings shall be initiated by the issuance of a notice of | 0009| pending forfeiture by the prosecuting attorney. The notice shall be issued within twenty days | 0010| from the date the property was seized. The notice shall include a description of the property | 0011| sought to be forfeited, date and place of the seizure of the property, the name and address of the | 0012| seizing agency, the reason the property is alleged to be forfeitable, a summary of the procedures | 0013| and the procedural rights applicable to the forfeiture action and a notification alerting a trustee of | 0014| the state's obligations under the Forfeiture Act. | 0015| C. The notice shall be given to the person from whom the property was seized | 0016| and to each owner and secured interest holder and is effective upon personal service. | 0017| D. If personal service of the notice is not possible after good-faith attempts at all | 0018| known residences and places of business, the seizing law enforcement agency shall publish a | 0019| notice of seizure, including a list of seized property, in five consecutive editions of a newspaper | 0020| of general circulation in the county in which the property has been seized. The notice shall | 0021| include a statement of the rights of an owner to claim return of the property. | 0022| E. Any person claiming seized property shall file with the appropriate law | 0023| enforcement agency a claim stating his interest in the property. All claims shall be filed within | 0024| sixty days of the date of personal service on the claimant or, if personal service was not effected, | 0025| within sixty days of the last date of publication in the newspaper of the notice of seizure. | 0001| F. Within twenty days of receipt by a law enforcement agency of any claim to | 0002| property, a complaint seeking forfeiture of the property shall be filed in district court, and copies | 0003| of the complaint shall be served on all claimants. If additional claims to the property are made | 0004| in a timely manner after the complaint is filed, those additional claimants shall be made parties | 0005| to the action by amendment of the complaint. The Rules of Civil Procedure for the District | 0006| Courts shall apply to all forfeiture proceedings. The district court shall determine the extent and | 0007| priority of interest for all claimants to property. | 0008| G. No bond of any kind shall be required as a prerequisite to making a claim for | 0009| the return of seized property. | 0010| H. Reasonable attorneys' fees and costs shall be awarded to a claimant who | 0011| prevails in a forfeiture proceeding. The attorneys' fees and costs shall be paid by the state. | 0012| I. If there is opposition to the forfeiture, the claimant shall have the right to a | 0013| jury trial in determining the propriety of a forfeiture of any property valued in excess of ten | 0014| thousand dollars ($10,000). | 0015| J. If the owner of the seized property is financially unable to obtain | 0016| representation of counsel, the court may appoint appropriate counsel to represent that person | 0017| with respect to the claim. The court shall set compensation for that representation as | 0018| appropriate. Compensation for appointed counsel shall be paid by the state. | 0019| K. The district court shall file a decision regarding a forfeiture complaint within | 0020| sixty days of the filing of an answer by a claimant or, if there is more than one claimant, within | 0021| sixty days of the filing of an answer by the last claimant. The sixty-day time limitation may be | 0022| extended by a consent of the parties or by the district court for good cause shown. Good cause | 0023| includes the pendency of related criminal proceedings. Upon agreement of the parties, the court | 0024| may render a decision regarding whether and to what extent the property is forfeitable prior to | 0025| the time that related criminal proceedings become final. When related criminal proceedings | 0001| become final, a final order regarding the forfeiture action shall be entered. | 0002| L. When no claims to property are filed in a timely manner, the property shall be | 0003| forfeited. Forfeited property, if it is not currency, shall be sold or otherwise disposed of in | 0004| accordance with law, and all sale proceeds and forfeited currency shall be deposited in the | 0005| general fund, or, if forfeited under Chapter 17 NMSA 1978, the proceeds shall be deposited in | 0006| the game protection fund, in an amount equal to the amount expended from the game protection | 0007| fund to prosecute the case, and the surplus shall be deposited in the general fund. | 0008| Notwithstanding the provisions of this subsection, proceeds from the sale of forfeited property or | 0009| forfeited currency shall be applied first as restitution to or on behalf of actual victims of the | 0010| criminal acts related to the forfeiture proceedings." | 0011| Section 7. A new section of the Criminal Code is enacted to read: | 0012| "RETURN OF PROPERTY TO NONDEFENDANT.--If the ownership interest of a | 0013| person convicted for a crime related to the seizure of property cannot be proven by clear and | 0014| convincing evidence, the court shall order the property returned to its claimants." | 0015| Section 8. A new section of the Criminal Code is enacted to read: | 0016| "REAL PROPERTY AND MOTOR VEHICLES--TITLE SEARCH--NOTICE.-- | 0017| A. In addition to the procedures set forth in Section 6 of the Forfeiture Act, | 0018| when the seized property is real property or a motor vehicle, the seizing law enforcement | 0019| agency shall perform a title search on the property. Subsequent to the title search, the | 0020| seizing law enforcement agency shall give a notice of seizure as provided in Section 6 of | 0021| the Forfeiture Act to all persons whom the agency knows or reasonably should know to | 0022| have an interest in the property. | 0023| B. When the seizing law enforcement agency determines that the seized real | 0024| property or motor vehicle does not belong to a person charged with a crime related to the | 0025| seizure of the property or motor vehicle, the agency shall return the real property or motor | 0001| vehicle to the owner of the property." | 0002| Section 9. A new section of the Criminal Code is enacted to read: | 0003| "ACTIONS--TIME LIMITS--BURDEN OF PROOF.-- | 0004| A. No action to forfeit property shall be brought more than one year from | 0005| the date of the conviction of a person for a crime related to the proposed forfeiture of the | 0006| property. | 0007| B. The burden of proof is on the prosecution to establish, by clear and | 0008| convincing evidence, that the property is subject to forfeiture." | 0009| Section 10. A new section of the Criminal Code is enacted to read: | 0010| "PROPERTY IMMUNE FROM FORFEITURE--EXCEPTION.-- | 0011| A. No property shall be forfeited under the provisions of the Forfeiture Act | 0012| to the extent of the interest of any owner or lienholder who is not convicted of a crime | 0013| related to the forfeiture or by reason of a criminal act committed without the knowledge or | 0014| consent of that owner or lienholder. | 0015| B. Notwithstanding other provisions of this section, if the court determines | 0016| that property was transferred by the owner or otherwise disposed of to circumvent the | 0017| provisions of the Forfeiture Act or other state law that provides for forfeiture or limits use | 0018| or disposal of property, that property shall be subject to forfeiture as if the person convicted | 0019| of the crime were the sole owner." | 0020| Section 11. A new section of the Criminal Code is enacted to read: | 0021| "SAFEKEEPING OF SEIZED PROPERTY PRIOR TO FORFEITURE--RETURN | 0022| TO DEFENDANT.-- | 0023| A. All currency seized pursuant to the provisions of the Forfeiture Act shall | 0024| be remitted to the state treasurer or the clerk of the court for deposit in an interest-bearing | 0025| trust account. | 0001| B. Other property not required by state or federal law to be destroyed may | 0002| be: | 0003| (1) placed under seal; | 0004| (2) removed to a place designated by the law enforcement agency or | 0005| the district court; | 0006| (3) removed to the custody of the law enforcement agency; | 0007| (4) sold or disposed of pursuant to Subsection L of Section 6 of the | 0008| Forfeiture Act, when no claims are filed in a timely manner; or | 0009| (5) otherwise disposed of as provided by court order. | 0010| C. Property shall be kept by the law enforcement agency in such a manner | 0011| as to protect it from theft or damage. | 0012| D. If an owner whose property was seized is not convicted of the crime for | 0013| which his property was seized, the property shall be returned to him, including interest | 0014| accrued on escrow accounts. | 0015| E. Notwithstanding the immunity provided in the Tort Claims Act, an | 0016| owner of seized property that is returned pursuant to the Forfeiture Act may have a cause of | 0017| action against the law enforcement agency." | 0018| Section 12. A new section of the Criminal Code is enacted to read: | 0019| "DISPOSAL OF FORFEITED PROPERTY.-- | 0020| A. Whenever property is forfeited to the state pursuant to a court order | 0021| under the Forfeiture Act, the court shall provide for the sale or other disposition of the | 0022| property. Forfeited currency and proceeds from the sale of forfeited property shall be | 0023| applied first to restitution to or on behalf of actual victims of the criminal acts of the | 0024| convicted owner related to the forfeiture proceedings. | 0025| B. After payments have been made pursuant to the provisions of Subsection | 0001| A of this section, the court shall order the balance deposited in the general fund. | 0002| C. If forfeited property consists of a partial interest in property, the court | 0003| may, at its discretion and to the benefit of the state's taxpayers, allow the other owners to | 0004| purchase the state's share at the current market value." | 0005| Section 13. Section 17-2-20.1 NMSA 1978 (being Laws 1979, Chapter 321, | 0006| Section 1, as amended) is amended to read: | 0007| "17-2-20.1. SEIZURE AND FORFEITURE--PROPERTY SUBJECT.-- | 0008| A. All firearms and bows and arrows may be subject to seizure and | 0009| forfeiture when used as instrumentalities in the commission of the following crimes: | 0010| (1) illegal possession or transportation of big game during closed | 0011| season; | 0012| (2) taking big game during closed season; | 0013| (3) attempting to take big game by the use of spotlight or artificial | 0014| light; and | 0015| (4) exceeding the bag limit on any big game species during open | 0016| season. | 0017| B. Any motor vehicle shall be subject to seizure and forfeiture when | 0018| operated in violation of the provisions of Section 17-2-31 NMSA 1978 regarding hunting | 0019| by spotlight. | 0020| C. Seizure and forfeiture proceedings shall be conducted pursuant to the | 0021| provisions of the Forfeiture Act." | 0022| Section 14. Section 18-6-9.3 NMSA 1978 (being Laws 1993, Chapter 176, Section | 0023| 11) is amended to read: | 0024| "18-6-9.3. CULTURAL PROPERTY--SEIZURE AND FORFEITURE OF | 0025| INSTRUMENTS.--Any instrument, vehicle, tool or equipment used or intended to be used | 0001| to violate the provisions of the Cultural Properties Act is subject to seizure and forfeiture | 0002| pursuant to the provisions of the Forfeiture Act. Notwithstanding the provisions of the | 0003| Forfeiture Act regarding the disposition of forfeited property, when proceeds from a court-ordered sale of forfeited property are derived from a violation of cultural property, the | 0004| proceeds from the sale shall be used for restoration, stabilization, protection and | 0005| preservation of the cultural property. Any proceeds remaining shall be deposited in the | 0006| general fund." | 0007| Section 15. Section 30-3-8.1 NMSA 1978 (being Laws 1993, Chapter 78, Section | 0008| 2) is amended to read: | 0009| "30-3-8.1. SEIZURE AND FORFEITURE OF MOTOR VEHICLE--PROCEDURE.-- | 0010| A. A motor vehicle shall be subject to seizure and forfeiture when the | 0011| vehicle is used or intended for use in the commission of the offense of shooting at or from a | 0012| motor vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978. | 0013| B. A motor vehicle subject to seizure and forfeiture shall be seized and | 0014| forfeited pursuant to the provisions of the Forfeiture Act." | 0015| Section 16. Section 30-16B-9 NMSA 1978 (being Laws 1991, Chapter 112, | 0016| Section 9) is amended to read: | 0017| "30-16B-9. SEIZURE AND FORFEITURE--PROCEDURE.--Property subject to | 0018| forfeiture under the Unauthorized Recording Act may be seized and forfeited pursuant to | 0019| the provisions of the Forfeiture Act." | 0020| Section 17. Section 30-19-10 NMSA 1978 (being Laws 1963, Chapter 303, Section | 0021| 19-10) is amended to read: | 0022| "30-19-10. SEIZURE AND FORFEITURE OF PRIZES AND EQUIPMENT.--Any illegal gambling device or other illegal equipment of any type used in gambling may | 0023| be seized and forfeited pursuant to the provisions of the Forfeiture Act." | 0024| Section 18. Section 30-31-35 NMSA 1978 (being Laws 1972, Chapter 84, Section | 0025| 34, as amended) is amended to read: | 0001| "30-31-35. SEIZURE AND FORFEITURE--PROCEDURE.--Property subject to | 0002| forfeiture and disposal under the Controlled Substances Act may be seized and forfeited | 0003| pursuant to the provisions of the Forfeiture Act." | 0004| Section 19. Section 30-31A-10 NMSA 1978 (being Laws 1983, Chapter 148, | 0005| Section 10) is amended to read: | 0006| "30-31A-10. SEIZURE AND FORFEITURE--PROCEDURE.--Property subject to | 0007| forfeiture and disposal under the Imitation Controlled Substances Act may be seized and | 0008| forfeited pursuant to the provisions of the Forfeiture Act." | 0009| Section 20. Section 30-42-4 NMSA 1978 (being Laws 1980, Chapter 40, Section | 0010| 4) is amended to read: | 0011| "30-42-4. PROHIBITED ACTIVITIES--PENALTIES--SEIZURE AND | 0012| FORFEITURE.-- | 0013| A. It is unlawful for any person who has received any proceeds derived, | 0014| directly or indirectly, from a pattern of racketeering activity in which the person has | 0015| participated, to use or invest, directly or indirectly, any part of the proceeds or the proceeds | 0016| derived from the investment or use thereof in the acquisition of any interest in, or the | 0017| establishment or operation of, any enterprise. Whoever violates this subsection is guilty of | 0018| a second degree felony. | 0019| B. It is unlawful for any person to engage in a pattern of racketeering | 0020| activity in order to acquire or maintain, directly or indirectly, any interest in or control of | 0021| any enterprise. Whoever violates this subsection is guilty of a second degree felony. | 0022| C. It is unlawful for any person employed by or associated with any | 0023| enterprise to conduct or participate, directly or indirectly, in the conduct of the enterprise's | 0024| affairs by engaging in a pattern of racketeering activity. Whoever violates this subsection | 0025| is guilty of a second degree felony. | 0001| D. It is unlawful for any person to conspire to violate any of the provisions | 0002| of Subsections A through C of this section. Whoever violates this subsection is guilty of a | 0003| third degree felony. | 0004| E. Whoever violates Subsection A, B, C or D of this section in addition to | 0005| the prescribed penalties shall forfeit to the state of New Mexico: | 0006| (1) any interest acquired or maintained in violation of the | 0007| Racketeering Act; and | 0008| (2) any interest in, security of, claim against or property or | 0009| contractual right of any kind affording a source of influence over any enterprise that he has | 0010| established, operated, controlled, conducted or participated in the conduct of in violation of | 0011| the Racketeering Act. | 0012| F. In any action brought by the state under the Racketeering Act, seizure | 0013| and forfeiture of property shall be in accordance with the provisions of the Forfeiture Act." | 0014| Section 21. Section 30-45-7 NMSA 1978 (being Laws 1989, Chapter 215, Section | 0015| 7) is amended to read: | 0016| "30-45-7. SEIZURE AND FORFEITURE OF PROPERTY.-- | 0017| A. The following are subject to seizure and forfeiture: | 0018| (1) all computer property, equipment or products of any kind that | 0019| have been used, manufactured, acquired or distributed in violation of the Computer Crimes | 0020| Act; | 0021| (2) all books, records and research products and materials involving | 0022| formulas, microfilm, tapes and data that are used or intended for use in violation of the | 0023| Computer Crimes Act; and | 0024| (3) all money or proceeds that constitute an instrumentality or derive | 0025| from a violation of the Computer Crimes Act. | 0001| B. Property subject to seizure and forfeiture under the Computer Crimes | 0002| Act may be seized and forfeited pursuant to the provisions of the Forfeiture Act." | 0003| Section 22. Section 60-7A-4.1 NMSA 1978 (being Laws 1985, Chapter 179, | 0004| Section 1, as amended) is amended to read: | 0005| "60-7A-4.1. UNLAWFUL SALE OF ALCOHOLIC BEVERAGES--CRIMINAL | 0006| PENALTY--SEIZURE AND FORFEITURE.-- | 0007| A. It is unlawful for any person to sell or attempt to sell alcoholic beverages | 0008| at any place other than a licensed premises or as otherwise provided by the Liquor Control | 0009| Act. | 0010| B. Any person who violates the provisions of Subsection A of this section is | 0011| guilty of a fourth degree felony. | 0012| C. Any conveyance used or intended to be used for the purpose of unlawful | 0013| sale of alcoholic beverages or money that is the fruit or instrumentality of the crime may be | 0014| seized and forfeited pursuant to the provisions of the Forfeiture Act." | 0015| Section 23. EFFECTIVE DATE.--The effective date of the provisions of this act | 0016| is July 1, 1996. |