0001| SENATE BILL 379 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| INTRODUCED BY | 0004| CISCO MCSORLEY | 0005| | 0006| | 0007| | 0008| FOR THE COURTS, CORRECTIONS AND CRIMINAL JUSTICE COMMITTEE | 0009| | 0010| AN ACT | 0011| RELATING TO FORFEITURE OF PROPERTY; ENACTING THE FORFEITURE | 0012| ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN | 0013| APPROPRIATION. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. A new section of the Criminal Code is enacted | 0017| to read: | 0018| "[NEW MATERIAL] SHORT TITLE.--Sections 1 through 12 of | 0019| this act may be cited as the "Forfeiture Act"." | 0020| Section 2. A new section of the Criminal Code is enacted | 0021| to read: | 0022| "[NEW MATERIAL] PURPOSE OF ACT.--The purpose of the | 0023| Forfeiture Act is to provide uniform standards and procedures | 0024| for law enforcement officers and agencies for the seizure and | 0025| forfeiture of property used or intended to be used in the | 0001| commission of a crime." | 0002| Section 3. A new section of the Criminal Code is enacted | 0003| to read: | 0004| "[NEW MATERIAL] DEFINITIONS.--As used in the Forfeiture | 0005| Act: | 0006| A. "conviction" means a final adjudication of guilt | 0007| by a district or magistrate court or, if the court decision is | 0008| appealed, a final adjudication of guilt by an appellate court; | 0009| B. "crime" means an offense punishable by | 0010| imprisonment for one year or more, a violation of laws or | 0011| regulations regarding hunting or fishing or a violation of laws | 0012| regarding gambling; | 0013| C. "law enforcement officer" means a state or | 0014| municipal police officer, county sheriff, deputy sheriff, | 0015| conservation officer, motor transportation enforcement officer | 0016| or other state employee authorized by state law to enforce | 0017| criminal statutes; provided that "law enforcement officer" does | 0018| not include correctional officers; | 0019| D. "owner" means an individual who possesses a | 0020| legal or equitable ownership in property or, if title to the | 0021| property is held in the name of a partnership, trust, | 0022| corporation or other legal entity, an individual who possesses | 0023| a substantial legal or equitable ownership interest in the | 0024| partnership, trust, corporation or other legal entity; and | 0025| E. "property" means tangible or intangible personal | 0001| property, real property or an interest in tangible or | 0002| intangible personal property or real property." | 0003| Section 4. A new section of the Criminal Code is enacted | 0004| to read: | 0005| "[NEW MATERIAL] FORFEITURE REQUIREMENTS.-- | 0006| A. A judgment for the forfeiture of property shall | 0007| be entered only upon: | 0008| (1) conviction of an owner of the property for | 0009| a crime related to the forfeiture; provided that a forfeiture | 0010| proceeding may be commenced prior to the conclusion of the | 0011| criminal prosecution in the trial court; and | 0012| (2) proof by clear and convincing evidence | 0013| that the property is forfeitable under state law and that a | 0014| person convicted of a crime related to the forfeiture is an | 0015| owner of the property. | 0016| B. The value of the property forfeited shall not | 0017| unreasonably exceed the pecuniary gain derived or sought to be | 0018| derived by the crime, the pecuniary loss caused or sought to be | 0019| caused by the crime or the value of the convicted owner's | 0020| interest in the property." | 0021| Section 5. A new section of the Criminal Code is enacted | 0022| to read: | 0023| "[NEW MATERIAL] SEIZURE--COURT ORDER--EXCEPTIONS.-- | 0024| A. Property subject to forfeiture may be seized by | 0025| a law enforcement officer upon an order issued by the district | 0001| court having jurisdiction. | 0002| B. The court may issue an order pursuant to | 0003| Subsection A of this section if it determines that: | 0004| (1) there is a substantial probability that | 0005| the state will prevail on the issue of forfeiture and that | 0006| failure to enter the order will result in the property's being | 0007| destroyed, removed from the jurisdiction of the court or | 0008| otherwise made unavailable for forfeiture; and | 0009| (2) the need to preserve the availability of | 0010| the property through the entry of the requested order outweighs | 0011| the hardship to a party of interest. | 0012| C. A seizure of property other than a residence or | 0013| business may be made without a court order when: | 0014| (1) the seizure is incident to an arrest or a | 0015| search pursuant to a search warrant or an inspection pursuant | 0016| to an administrative inspection warrant; | 0017| (2) the property subject to seizure has been | 0018| the subject of a prior judgment in favor of the state or a | 0019| political subdivision in a criminal injunction or forfeiture | 0020| proceeding; | 0021| (3) there is probable cause to believe that | 0022| the property is directly or indirectly dangerous to health or | 0023| safety; or | 0024| (4) there is probable cause to believe that | 0025| the property is forfeitable under state law and that the delay | 0001| occasioned by the need to secure an order will frustrate the | 0002| seizure; provided, however, that a law enforcement agency | 0003| making a seizure pursuant to this paragraph shall, within ten | 0004| days of the seizure, apply for an order pursuant to Subsection | 0005| A of this section; and provided further that the property shall | 0006| be released to the owner immediately if the order is denied. | 0007| The law enforcement agency making the seizure shall make a | 0008| reasonable effort to notify the person from whom the property | 0009| was seized of the location, date and time of the hearing on the | 0010| application for an order allowing seizure, so the person has a | 0011| reasonable opportunity to appear at the hearing and oppose the | 0012| order. | 0013| D. The seizure of a residence or business shall | 0014| occur only after a pre-seizure hearing, with notice provided in | 0015| accordance with the provisions of Section 6 of the Forfeiture | 0016| Act. | 0017| E. The owner shall be given a receipt whenever | 0018| practicable for the property seized." | 0019| Section 6. A new section of the Criminal Code is enacted | 0020| to read: | 0021| "[NEW MATERIAL] SEIZURE--NOTICE--CLAIMS.-- | 0022| A. All forfeiture proceedings shall be brought in | 0023| the name of the state. All forfeiture proceedings shall be | 0024| initiated in district court in the county in which the property | 0025| was seized; provided that, for good cause shown upon | 0001| application of any interested party, the court may consolidate | 0002| proceedings filed in different counties or allow transfer of | 0003| proceedings to another county. | 0004| B. All forfeiture proceedings shall be initiated by | 0005| the issuance of a notice of pending forfeiture by the | 0006| prosecuting attorney. The notice shall be issued within twenty | 0007| days from the date the property was seized. The notice shall | 0008| include a description of the property sought to be forfeited, | 0009| the date and place of the seizure of the property, the name and | 0010| address of the seizing law enforcement agency, the reason the | 0011| property is alleged to be forfeitable, a summary of the | 0012| procedures and the procedural rights applicable to the | 0013| forfeiture action and a notification alerting a trustee of the | 0014| state's obligations under the Forfeiture Act. | 0015| C. The notice shall be given to the person from | 0016| whom the property was seized and to each owner and secured | 0017| interest holder and is effective upon personal service. | 0018| D. If personal service of the notice is not | 0019| possible after good-faith attempts at all known residences and | 0020| places of business, the seizing law enforcement agency shall | 0021| publish a notice of pending forfeiture, including a list of | 0022| seized property, in five consecutive editions of a newspaper of | 0023| general circulation in the county in which the property has | 0024| been seized. The notice shall include a statement of the | 0025| rights of an owner or secured interest holder to claim return | 0001| of the property. | 0002| E. Any person claiming seized property shall file | 0003| with the seizing law enforcement agency a claim stating his | 0004| interest in the property. All claims shall be filed within | 0005| sixty days of the date of personal service on the claimant of | 0006| the notice of pending forfeiture or, if personal service was | 0007| not effected, within sixty days of the last date of publication | 0008| in the newspaper of the notice of seizure. | 0009| F. Within twenty days of receipt by a seizing law | 0010| enforcement agency of any claim to property, a complaint | 0011| seeking forfeiture of the property shall be filed in district | 0012| court, and copies of the complaint shall be served on all | 0013| claimants. If additional claims to the property are made in a | 0014| timely manner after the complaint is filed, those additional | 0015| claimants shall be made parties to the action by amendment of | 0016| the complaint. The Rules of Civil Procedure for the District | 0017| Courts shall apply to all forfeiture proceedings. The district | 0018| court shall determine the extent and priority of interest for | 0019| all claimants to property. | 0020| G. No bond of any kind shall be required as a | 0021| prerequisite to making a claim for the return of seized | 0022| property. | 0023| H. Reasonable attorney fees and costs shall be | 0024| awarded to a claimant who prevails in a forfeiture proceeding. | 0025| The attorneys' fees and costs shall be paid by the seizing law | 0001| enforcement agency. | 0002| I. If there is opposition to the forfeiture, the | 0003| claimant shall have the right to a jury trial in determining | 0004| the propriety of a forfeiture of any property valued in excess | 0005| of ten thousand dollars ($10,000). | 0006| J. If the owner of the seized property is | 0007| financially unable to obtain representation of counsel, the | 0008| court may appoint appropriate counsel to represent that person | 0009| with respect to the claim. The court shall set compensation | 0010| for that representation as appropriate. Compensation for | 0011| appointed counsel shall be paid by the seizing law enforcement | 0012| agency. | 0013| K. The district court shall file a decision | 0014| regarding a forfeiture complaint within sixty days of the | 0015| filing of an answer by a claimant or, if there is more than one | 0016| claimant, within sixty days of the filing of an answer by the | 0017| last claimant. The sixty-day time limitation may be extended | 0018| by consent of the parties or by the district court for good | 0019| cause shown. Good cause includes the pendency of related | 0020| criminal proceedings. Upon agreement of the parties, the court | 0021| may render a decision regarding whether and to what extent the | 0022| property is forfeitable prior to the time that related criminal | 0023| proceedings become final. When related criminal proceedings | 0024| become final, a final order regarding the forfeiture action | 0025| shall be entered. | 0001| L. When no claims to property are filed in a timely | 0002| manner, the property shall be forfeited. Forfeited property, | 0003| if it is not currency, may be sold or otherwise disposed of in | 0004| accordance with law, and all sale proceeds and forfeited | 0005| currency shall be deposited in the general fund of the state, | 0006| county or municipality served by the law enforcement agency | 0007| that seized the forfeited property or currency, or, if | 0008| forfeited under Chapter 17 NMSA 1978, the proceeds shall be | 0009| deposited in the game protection fund, in an amount equal to | 0010| the amount expended from the game protection fund to prosecute | 0011| the case, and the surplus shall be deposited in the general | 0012| fund. Notwithstanding the provisions of this subsection, | 0013| proceeds from the sale of forfeited property or forfeited | 0014| currency shall be applied first as restitution to or on behalf | 0015| of actual victims of the criminal acts related to the | 0016| forfeiture proceedings." | 0017| Section 7. A new section of the Criminal Code is enacted | 0018| to read: | 0019| "[NEW MATERIAL] RETURN OF PROPERTY TO NONDEFENDANT.--If | 0020| the ownership interest of a person convicted of a crime related | 0021| to the seizure of property cannot be proven by clear and | 0022| convincing evidence, the court shall order the property | 0023| returned to its other claimants." | 0024| Section 8. A new section of the Criminal Code is enacted | 0025| to read: | 0001| "[NEW MATERIAL] REAL PROPERTY AND MOTOR VEHICLES--TITLE | 0002| SEARCH--NOTICE.-- | 0003| A. In addition to the procedures set forth in | 0004| Section 6 of the Forfeiture Act, when the seized property is | 0005| real property or a motor vehicle, the seizing law enforcement | 0006| agency shall perform a title search on the property. | 0007| Subsequent to the title search, the seizing law enforcement | 0008| agency shall give a notice of pending forfeiture as provided in | 0009| Section 6 of the Forfeiture Act to all persons whom the law | 0010| enforcement agency knows or reasonably should know to have an | 0011| interest in the property. | 0012| B. If the seizing law enforcement agency determines | 0013| that the seized real property or motor vehicle does not belong | 0014| to a person charged with a crime related to the seizure of the | 0015| real property or motor vehicle, the law enforcement agency | 0016| shall return the real property or motor vehicle to the owner of | 0017| the property." | 0018| Section 9. A new section of the Criminal Code is enacted | 0019| to read: | 0020| "[NEW MATERIAL] ACTIONS--TIME LIMITS--BURDEN OF PROOF.- | 0021| - | 0022| A. No action to forfeit property shall be brought | 0023| more than one year from the date of the conviction of a person | 0024| for a crime related to the proposed forfeiture of the property. | 0025| B. The burden of proof is on the prosecution to | 0001| establish, by clear and convincing evidence, that the property | 0002| is subject to forfeiture." | 0003| Section 10. A new section of the Criminal Code is enacted | 0004| to read: | 0005| "[NEW MATERIAL] PROPERTY IMMUNE FROM FORFEITURE-- | 0006| EXCEPTION.-- | 0007| A. No property shall be forfeited under the | 0008| provisions of the Forfeiture Act to the extent of the interest | 0009| of any owner or secured interest holder who is not convicted of | 0010| a crime related to the forfeiture or by reason of a criminal | 0011| act committed without the knowledge or consent of that owner or | 0012| secured interest holder. | 0013| B. Notwithstanding other provisions of this | 0014| section, if the court determines that property was transferred | 0015| by the owner or otherwise disposed of to circumvent the | 0016| provisions of the Forfeiture Act or other state law that | 0017| provides for forfeiture or limits use or disposal of property, | 0018| that property shall be subject to forfeiture as if the person | 0019| convicted of the crime were the sole owner." | 0020| Section 11. A new section of the Criminal Code is enacted | 0021| to read: | 0022| "[NEW MATERIAL] SAFEKEEPING OF SEIZED PROPERTY PRIOR TO | 0023| FORFEITURE--RETURN TO DEFENDANT.-- | 0024| A. All currency seized pursuant to the provisions | 0025| of the Forfeiture Act shall be remitted to the state treasurer | 0001| or the clerk of the court for deposit in an interest-bearing | 0002| trust account. | 0003| B. Other seized property not required by state or | 0004| federal law to be destroyed may be: | 0005| (1) placed under seal; | 0006| (2) removed to a place designated by the law | 0007| enforcement agency or the district court; | 0008| (3) removed to the custody of the law | 0009| enforcement agency; | 0010| (4) sold or disposed of pursuant to Subsection | 0011| L of Section 6 of the Forfeiture Act, when no claims are filed | 0012| in a timely manner; or | 0013| (5) otherwise disposed of as provided by court | 0014| order. | 0015| C. Seized property shall be kept by the law | 0016| enforcement agency in such a manner as to protect it from theft | 0017| or damage. | 0018| D. If an owner whose property was seized is not | 0019| convicted of the crime for which his property was seized, the | 0020| property shall be returned to him, including interest accrued | 0021| on trust accounts. | 0022| E. Notwithstanding the immunity provided in the | 0023| Tort Claims Act, an owner of seized property that is returned | 0024| pursuant to the Forfeiture Act may have a cause of action | 0025| against the law enforcement agency." | 0001| Section 12. A new section of the Criminal Code is enacted | 0002| to read: | 0003| "[NEW MATERIAL] DISPOSAL OF FORFEITED PROPERTY.-- | 0004| A. Whenever property is forfeited to the state | 0005| pursuant to a court order under the Forfeiture Act, the court | 0006| shall provide for the sale or other disposition of the | 0007| property. Forfeited currency and proceeds from the sale of | 0008| forfeited property shall be applied first to restitution to or | 0009| on behalf of actual victims of the criminal acts of the | 0010| convicted owner. B. After payments have been made | 0011| pursuant to the provisions of Subsection A of this section, the | 0012| court shall order the balance deposited in the general fund of | 0013| the state, county or municipality served by the law enforcement | 0014| agency that seized the forfeited property. | 0015| C. If forfeited property consists of a partial | 0016| interest in property, the court may, at its discretion and to | 0017| the benefit of the state's taxpayers, allow the other owners to | 0018| purchase the forfeited share of the property at the current | 0019| market value." | 0020| Section 13. Section 17-2-20.1 NMSA 1978 (being Laws 1979, | 0021| Chapter 321, Section 1, as amended) is amended to read: | 0022| "17-2-20.1. SEIZURE AND FORFEITURE--PROPERTY SUBJECT.-- | 0023| A. All firearms and bows and arrows may be subject | 0024| to seizure and forfeiture when used as instrumentalities in the | 0025| commission of the following crimes: | 0001| (1) illegal possession or transportation of | 0002| big game during closed season; | 0003| (2) taking big game during closed season; | 0004| (3) attempting to take big game by the use of | 0005| spotlight or other artificial light; and | 0006| (4) exceeding the bag limit on any big game | 0007| species during open season. | 0008| [B. Provided that no firearms or bows and arrows | 0009| shall be subject to forfeiture if the violation was without the | 0010| knowledge or consent of the owner. | 0011| C.] B. Any motor vehicle shall be subject to | 0012| seizure and forfeiture when operated in violation of the | 0013| provisions of Section 17-2-31 NMSA 1978, regarding hunting by | 0014| spotlight [In the event of seizure and forfeiture under this | 0015| subsection, the motor vehicle shall be disposed of in | 0016| accordance with the provisions of Section 17-2-20.2 NMSA 1978. | 0017| D. No conveyance is subject to forfeiture under | 0018| this section by reason of any act or omission established for | 0019| the owner to have been committed or omitted without his | 0020| knowledge or consent. A forfeiture of a conveyance encumbered | 0021| by a bona fide security interest shall be subject to the | 0022| interest of a secured party if the secured party neither had | 0023| knowledge of nor consented to the act or omission.] or other | 0024| artificial light. | 0025| C. Seizure and forfeiture proceedings shall be | 0001| conducted pursuant to the provisions of the Forfeiture Act." | 0002| Section 14. Section 18-6-9.3 NMSA 1978 (being Laws 1993, | 0003| Chapter 176, Section 11) is amended to read: | 0004| "18-6-9.3. CULTURAL PROPERTY--SEIZURE AND FORFEITURE OF | 0005| INSTRUMENTS.--[A.] Any instrument, vehicle, tool or | 0006| equipment used or intended to be used to violate the provisions | 0007| of the Cultural Properties Act is subject to seizure and | 0008| forfeiture | 0009| [except that no instrument, vehicle, tool or equipment shall | 0010| be subject to forfeiture if the violation was without the | 0011| knowledge or consent of the owner of the property subject to | 0012| forfeiture. | 0013| B. Property subject to forfeiture pursuant to the | 0014| provisions of this section may be seized by a conservation | 0015| officer, sheriff, state police officer or law enforcement | 0016| officer upon an order of the district court in the county | 0017| having jurisdiction over the offense. | 0018| C. Seizure without a court order may occur if: | 0019| (1) the seizure is incident to an arrest or a | 0020| search pursuant to a search warrant; or | 0021| (2) the enforcement officer has probable cause | 0022| to believe that the property was used or intended for use to | 0023| violate the Cultural Properties Act. | 0024| D. In the event of seizure pursuant to this | 0025| section, proceedings shall be instituted within thirty days | 0001| from the date of seizure. A proceeding brought pursuant to | 0002| this section shall be in rem. The claim shall not be filed | 0003| against the owner or any other person and shall be filed only | 0004| as a civil case. | 0005| E. Property taken or detained pursuant to the | 0006| provisions of this section shall not be subject to replevin, | 0007| but is deemed to be in the custody of the state agency | 0008| employing the enforcing officer, subject only to the orders and | 0009| decrees of the district court. When property is seized | 0010| pursuant to the Cultural Properties Act, the state agency | 0011| seizing it shall remove the property to a place designated by | 0012| the state agency for disposition in accordance with law. | 0013| F. Except as otherwise specifically provided by | 0014| law, property forfeited due to a violation of the Cultural | 0015| Properties Act shall be sold at public auction pursuant to a | 0016| court order. The proceeds of the court-ordered sale of | 0017| forfeited property are subject first to the claims, verified by | 0018| the court, of innocent persons and the legitimate rights to | 0019| restitution of actual victims of the criminal acts. Where | 0020| proceeds are derived from violations: | 0021| (1) on lands controlled by the commissioner of | 0022| public lands, one-half of the proceeds from the sale shall | 0023| accrue to the state agency of which the law enforcement officer | 0024| seizing that property is a member and one-half shall be | 0025| deposited in the cultural properties restoration fund; and | 0001| (2) on any other state lands, one-half of the | 0002| proceeds from the sale shall accrue to the state agency of | 0003| which the law enforcement officer seizing that property is a | 0004| member and one-half of the proceeds shall be deposited in the | 0005| cultural properties restoration fund.] pursuant to the | 0006| provisions of the Forfeiture Act. Notwithstanding the | 0007| provisions of the Forfeiture Act regarding the disposition of | 0008| forfeited property, when proceeds from a court-ordered sale of | 0009| forfeited property are derived from a violation of cultural | 0010| property, the proceeds from the sale shall be used for | 0011| restoration, stabilization, protection and preservation of the | 0012| cultural property. Any proceeds remaining shall be deposited | 0013| in the general fund." | 0014| Section 15. Section 30-3-8.1 NMSA 1978 (being Laws 1993, | 0015| Chapter 78, Section 2) is amended to read: | 0016| "30-3-8.1. SEIZURE AND FORFEITURE OF MOTOR VEHICLE-- | 0017| PROCEDURE[--EXCEPTION].-- | 0018| A. A motor vehicle shall be subject to seizure and | 0019| forfeiture when the motor vehicle is used or intended for use | 0020| in the commission of the offense of shooting at or from a motor | 0021| vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978. | 0022| B. A motor vehicle subject to seizure and | 0023| forfeiture may be seized [by a law enforcement officer: | 0024| (1) upon an order issued by the district court | 0025| having jurisdiction; | 0001| (2) without an order if the seizure is | 0002| incident to an arrest; or | 0003| (3) without an order if the seizure is | 0004| incident to a search under a valid search warrant. | 0005| C. In the event of seizure pursuant to Subsection B | 0006| of this section, proceedings under the Rules of Civil Procedure | 0007| for the District Courts and Subsection D of this section shall | 0008| be instituted promptly. | 0009| D. A motor vehicle seized under this section shall | 0010| not be subject to replevin, but is deemed to be in the custody | 0011| of the seizing law enforcement agency, subject only to the | 0012| orders and decrees of the district court. When a motor vehicle | 0013| is seized pursuant to the provisions of this section, a law | 0014| enforcement officer may remove the property to a place | 0015| designated by the district court or by the head of the | 0016| officer's agency for disposition in accordance with the law. | 0017| E. When a vehicle is forfeited pursuant to this | 0018| section, the seizing law enforcement agency shall sell the | 0019| motor vehicle at a public auction, and the proceeds, after all | 0020| costs for impoundment, forfeiture and sale are repaid, shall be | 0021| forwarded to the state treasurer for credit to the crime | 0022| victims reparation fund pursuant to Section 31-22-21 NMSA 1978 | 0023| within thirty days. If the sale of the motor vehicle does not | 0024| cover the cost of impounding, forfeiting and selling the motor | 0025| vehicle, the law enforcement agency may deduct the uncovered | 0001| portion of the cost from the proceeds of the next sale. | 0002| F. No motor vehicle shall be subject to forfeiture | 0003| when the owner of the motor vehicle establishes that the | 0004| offense of shooting at or from a motor vehicle pursuant to | 0005| Subsection B of Section 30-3-8 NMSA 1978 was committed without | 0006| his knowledge or consent. A forfeiture of a motor vehicle | 0007| encumbered by a recorded bona fide security interest shall be | 0008| subject to the interest of the secured party if the secured | 0009| party did not have knowledge of or did not consent to the | 0010| offense of shooting at or from a motor vehicle pursuant to | 0011| Subsection B of Section 30-3-8 NMSA 1978] and forfeited | 0012| pursuant to the provisions of the Forfeiture Act." | 0013| Section 16. Section 30-16B-9 NMSA 1978 (being Laws 1991, | 0014| Chapter 112, Section 9) is amended to read: | 0015| "30-16B-9. SEIZURE AND FORFEITURE--PROCEDURE.--[A.] | 0016| Property subject to forfeiture under the Unauthorized Recording | 0017| Act may be seized [by any enforcement officer upon an order | 0018| issued by the district court having jurisdiction. | 0019| B. Seizure without such an order may be made if: | 0020| (1) the seizure is incident to an arrest or | 0021| search under a valid search warrant or an inspection under an | 0022| administrative inspection warrant; | 0023| (2) the property subject to seizure has been | 0024| the subject of a prior judgment in favor of the state in an | 0025| injunction or forfeiture proceeding based upon the Unauthorized | 0001| Recording Act; or | 0002| (3) the enforcement officer has probable cause | 0003| to believe that the property was used or is intended to be used | 0004| in violation of the Unauthorized Recording Act. | 0005| C. In the event of seizure pursuant to Subsection A | 0006| of this section, proceedings under Subsection D of this section | 0007| and the Rules of Civil Procedure for the District Court shall | 0008| be instituted promptly and not later than thirty days after | 0009| seizure. | 0010| D. Property taken or detained under this section | 0011| shall not be subject to replevin but is deemed to be in the | 0012| custody of the seizing police department or agency subject only | 0013| to the orders and decrees of the district court. When property | 0014| is seized under the Unauthorized Recording Act, the enforcement | 0015| officer may: | 0016| (1) place the property under seal; or | 0017| (2) remove the property to a place designated | 0018| by the court or head of the officer's department or agency for | 0019| disposition in accordance with law. | 0020| E. When property is forfeited under the | 0021| Unauthorized Recording Act, the seizing police department or | 0022| agency shall: | 0023| (1) sell that which is not required to be | 0024| destroyed by law and the proceeds shall revert to the general | 0025| fund; | 0001| (2) take custody of the property for use by | 0002| law enforcement agencies in the enforcement of the Unauthorized | 0003| Recording Act for disposition in accordance with law; or | 0004| (3) forward property, the proceeds from the | 0005| sale of which are not required to revert to the general fund, | 0006| to the property control division of the general services | 0007| department for disposition] and forfeited pursuant to the | 0008| provisions of the Forfeiture Act." | 0009| Section 17. Section 30-19-10 NMSA 1978 (being Laws 1963, | 0010| Chapter 303, Section 19-10) is amended to read: | 0011| "30-19-10. SEIZURE AND FORFEITURE OF PRIZES AND | 0012| EQUIPMENT.--Any illegal gambling device or other illegal | 0013| equipment of any type used in gambling [shall be seized by the | 0014| law enforcement officers discovering such device or equipment, | 0015| and it shall be the duty of such officers to retain custody of | 0016| the property seized until such property is disposed of by order | 0017| of the district court. Upon proper application by the district | 0018| attorney to the judge of the district court, the judge of the | 0019| district court may by proper order direct the destruction of | 0020| any gambling device, paraphernalia or equipment of any kind or | 0021| character seized by law enforcement officers] may be seized | 0022| and forfeited pursuant to the provisions of the Forfeiture | 0023| Act." | 0024| Section 18. Section 30-31-35 NMSA 1978 (being Laws 1972, | 0025| Chapter 84, Section 34, as amended) is amended to read: | 0001| "30-31-35. SEIZURE AND FORFEITURE--PROCEDURE.--[A.] | 0002| Property subject to forfeiture and disposal under the | 0003| Controlled Substances Act may be seized [by any enforcement | 0004| officer upon an order issued by the district court having | 0005| jurisdiction. | 0006| B. Seizure without such an order may be made if: | 0007| (1) the seizure is incident to an arrest or | 0008| search under a search warrant or an inspection under an | 0009| administrative inspection warrant; | 0010| (2) the property subject to seizure has been | 0011| the subject of a prior judgment in favor of the state in an | 0012| injunction or forfeiture proceeding based upon the Controlled | 0013| Substances Act; | 0014| (3) the enforcement officer has probable cause | 0015| to believe that the property, which is a controlled substance, | 0016| is directly or indirectly dangerous to health or safety; or | 0017| (4) the enforcement officer has probable cause | 0018| to believe that the property was used or is intended to be used | 0019| in violation of the Controlled Substances Act. | 0020| C. In the event of seizure pursuant to Subsection A | 0021| or Subsection B of this section, proceedings under Subsection D | 0022| of this section and the Rules of Civil Procedure for the | 0023| District Courts of New Mexico shall be instituted promptly and | 0024| not later than thirty days after seizure. | 0025| D. Property taken or detained under this section | 0001| shall not be subject to replevin, but is deemed to be in the | 0002| custody of the law enforcement agency seizing it subject only | 0003| to the orders and decrees of the district court. When property | 0004| is seized under the Controlled Substances Act, the enforcement | 0005| officer may: | 0006| (1) place the property under seal; | 0007| (2) remove the property to a place designated | 0008| by the enforcement officer; or | 0009| (3) require the law enforcement agency to take | 0010| custody of the property and remove it to an appropriate | 0011| location for disposition in accordance with law. | 0012| E. When property is forfeited under the Controlled | 0013| Substances Act, the law enforcement agency seizing it shall: | 0014| (1) sell that which is not required to be | 0015| destroyed by law. The proceeds shall revert to the general | 0016| fund of the state, county or municipality as the case may be; | 0017| (2) take custody of the property for use by | 0018| law enforcement agencies in the enforcement of the Controlled | 0019| Substances Act or remove it for disposition in accordance with | 0020| law; provided that where a motor vehicle has been seized by a | 0021| municipal police department or a county sheriff's department | 0022| with its respective jurisdictional boundaries, such department | 0023| shall institute forfeiture proceedings; or | 0024| (3) in case of property seized by the state | 0025| police, forward property, the proceeds from the sale of which | 0001| are not required to revert to the general fund, to the state | 0002| police, bureau of narcotics for disposition; provided that | 0003| motor vehicles seized by the state police may be loaned to the | 0004| governor's organized crime prevention commission for use in | 0005| undercover work, the entire cost of operating such vehicles to | 0006| be borne by the governor's organized crime prevention | 0007| commission] and forfeited pursuant to the provisions of the | 0008| Forfeiture Act." | 0009| Section 19. Section 30-31A-10 NMSA 1978 (being Laws 1983, | 0010| Chapter 148, Section 10) is amended to read: | 0011| "30-31A-10. SEIZURE AND FORFEITURE--PROCEDURE.--[A.] | 0012| Property subject to forfeiture and disposal under the Imitation | 0013| Controlled Substances Act may be seized [by any law enforce- | 0014| | 0015| ment officer upon an order issued by the district court having | 0016| jurisdiction. | 0017| B. Seizure without such an order may be made if: | 0018| (1) the seizure is incident to an arrest or | 0019| search under a search warrant; or | 0020| (2) the property subject to seizure has been | 0021| the subject of a prior judgment in favor of the state in an | 0022| injunction or forfeiture proceeding based upon the Imitation | 0023| Controlled Substances Act. | 0024| C. In the event of seizure pursuant to Subsection A | 0025| or B of this section, proceedings under Subsection D of this | 0001| section and the rules of civil procedure for the district | 0002| courts of New Mexico shall be instituted promptly and not later | 0003| than thirty days after seizure. | 0004| D. Property taken or detained under this section | 0005| shall not be subject to replevin but is deemed to be in the | 0006| custody of the law enforcement agency seizing it subject only | 0007| to the orders and decrees of the district court. When property | 0008| is seized under the Imitation Controlled Substances Act, the | 0009| enforcement officer may: | 0010| (1) place the property under seal; | 0011| (2) remove the property to a place designated | 0012| by the enforcement officer; or | 0013| (3) require the law enforcement agency to take | 0014| custody of the property and remove it to an appropriate | 0015| location for disposition in accordance with law. | 0016| E. When property is forfeited under the Imitation | 0017| Controlled Substances Act, the law enforcement agency seizing | 0018| it shall take custody of the property for use by law | 0019| enforcement agencies in the enforcement of the Imitation | 0020| Controlled Substances Act and the Controlled Substances Act and | 0021| remove it for disposition in accordance with law] and | 0022| forfeited pursuant to the provisions of the Forfeiture Act." | 0023| Section 20. Section 30-42-4 NMSA 1978 (being Laws 1980, | 0024| Chapter 40, Section 4) is amended to read: | 0025| "30-42-4. PROHIBITED ACTIVITIES--PENALTIES--SEIZURE AND | 0001| FORFEITURE PROCEDURE.-- | 0002| A. It is unlawful for any person who has received | 0003| any proceeds derived, directly or indirectly, from a pattern of | 0004| racketeering activity in which the person has participated, to | 0005| use or invest, directly or indirectly, any part of the proceeds | 0006| or the proceeds derived from the investment or use thereof in | 0007| the acquisition of any interest in, or the establishment or | 0008| operation of, any enterprise. Whoever violates this subsection | 0009| is guilty of a second degree felony. | 0010| B. It is unlawful for any person to engage in a | 0011| pattern of racketeering activity in order to acquire or | 0012| maintain, directly or indirectly, any interest in or control of | 0013| any enterprise. Whoever violates this subsection is guilty of | 0014| a second degree felony. | 0015| C. It is unlawful for any person employed by or | 0016| associated with any enterprise to conduct or participate, | 0017| directly or indirectly, in the conduct of [such] the | 0018| enterprise's affairs by engaging in a pattern of racketeering | 0019| activity. Whoever violates this subsection is guilty of a | 0020| second degree felony. | 0021| D. It is unlawful for any person to conspire to | 0022| violate any of the provisions of Subsections A through C of | 0023| this section. Whoever violates this subsection is guilty of a | 0024| third degree felony. | 0025| E. Whoever violates Subsection A, B, C or D of this | 0001| section in addition to the prescribed penalties shall forfeit | 0002| to the state [of New Mexico]: | 0003| (1) any interest acquired or maintained in | 0004| violation of the Racketeering Act; and | 0005| (2) any interest in, security of, claim | 0006| against or property or contractual right of any kind affording | 0007| a source of influence over any enterprise [which] that he | 0008| has established, operated, controlled, conducted or | 0009| participated in the conduct of in violation of the Racketeering | 0010| Act. | 0011| F. In any action brought by the state [under] | 0012| pursuant to the provisions of the Racketeering Act, [the | 0013| district court shall have jurisdiction to enter such restrain- | 0014| | 0015| ing orders or prohibitions, or to take such other actions, | 0016| including but not limited to the acceptance of satisfactory | 0017| performance bonds, in connection with any property or other | 0018| interest subject to forfeiture under this section, as it shall | 0019| deem proper. | 0020| G. Upon conviction of a person under this section, | 0021| the court shall authorize the attorney general or the district | 0022| attorney to seize all property or other interest declared | 0023| forfeited under this section upon such terms and conditions as | 0024| the court shall deem proper, making due provision for the | 0025| rights of innocent persons. If a property right or other | 0001| interest is not exercisable or transferable for value by the | 0002| convicted person, it shall expire and shall not revert to the | 0003| convicted person] seizure and forfeiture of property shall be | 0004| in accordance with the provisions of the Forfeiture Act." | 0005| Section 21. Section 30-45-7 NMSA 1978 (being Laws 1989, | 0006| Chapter 215, Section 7) is amended to read: | 0007| "30-45-7. SEIZURE AND FORFEITURE OF PROPERTY.-- | 0008| A. The following are subject to seizure and | 0009| forfeiture: | 0010| (1) all computer property, equipment or | 0011| products of any kind [which] that have been used, | 0012| manufactured, acquired or distributed in violation of the | 0013| Computer Crimes Act; | 0014| [(2) all materials, products and equipment of | 0015| any kind which are used or intended for use in manufacturing, | 0016| using, accessing, altering, disrupting, copying, concealing, | 0017| destroying, transferring, delivering, importing or exporting | 0018| any computer property or computer service in violation of the | 0019| Computer Crimes Act; | 0020| (3)] (2) all books, records and research | 0021| products and materials involving formulas, microfilm, tapes and | 0022| data [which] that are used or intended for use in violation | 0023| of the Computer Crimes Act; and | 0024| [(4) all conveyances, including aircraft, | 0025| vehicles or vessels, which are used or intended for use to | 0001| transport or in any manner to facilitate the transportation of | 0002| property described in Subsection A, B or C of this section for | 0003| the purpose of violating the Computer Crimes Act; | 0004| (5) all property, real, personal or mixed, | 0005| which has been used or intended for use, maintained or acquired | 0006| in violation of the Computer Crimes Act; and | 0007| (6)] (3) all money or proceeds that | 0008| constitute an instrumentality or derive from a violation of the | 0009| Computer Crimes Act. | 0010| [B. Notwithstanding the provisions of Paragraphs | 0011| (1) through (6) of Subsection A of this section: | 0012| (1) no conveyance used by any person as a | 0013| common carrier in the transaction of business as a common | 0014| carrier is subject to forfeiture under this section unless it | 0015| appears that the owner or other person in charge of the | 0016| conveyance is a consenting party to a violation of the Computer | 0017| Crimes Act; | 0018| (2) no conveyance, computer property, | 0019| equipment or other material is subject to forfeiture under this | 0020| section by reason of any act or omission established by the | 0021| owner to have been committed or omitted without his knowledge | 0022| or consent; | 0023| (3) a conveyance, computer property, equipment | 0024| or other material is not subject to forfeiture for a violation | 0025| of law the penalty for which is a misdemeanor or petty | 0001| misdemeanor; and | 0002| (4) a forfeiture of a conveyance, computer | 0003| property, equipment or material encumbered by a bona fide | 0004| security interest shall be subject to the interest of a secured | 0005| party if the secured party neither had knowledge of nor | 0006| consented to the act or omission. | 0007| C.] B. Property subject to seizure and | 0008| forfeiture [and disposal] under the Computer Crimes Act may | 0009| be seized [by any law enforcement officer upon an order issued | 0010| by the district court having jurisdiction. | 0011| D. Seizure without such an order may be made if: | 0012| (1) the seizure is incident to an arrest or | 0013| search under a search warrant; | 0014| (2) the property subject to seizure had been | 0015| the subject of a prior judgment in favor of the state in an | 0016| injunction or forfeiture proceeding based upon the Computer | 0017| Crimes Act; or | 0018| (3) the enforcement officer has probable cause | 0019| to believe that the property, whether real, personal or mixed, | 0020| was used or intended for use, maintained or acquired in | 0021| violation of the Computer Crimes Act. | 0022| E. In the event of a seizure pursuant to Subsection | 0023| C or Subsection D of this section, a proceeding under the | 0024| Computer Crimes Act and the rules of civil procedure for the | 0025| district courts shall be instituted promptly and not later than | 0001| thirty days after seizure. The proceeding to forfeit property | 0002| under the Computer Crimes Act is against the property and not | 0003| against the owner or any other person. It is in rem wholly and | 0004| not in personam. It is a civil case and not a criminal | 0005| proceeding. The forfeiture proceeding is required, not to | 0006| complete the forfeiture, but to prove the illegal use for which | 0007| the forfeiture was suffered. | 0008| F. Except as otherwise specifically provided by | 0009| law, whenever any property is forfeited to the state by reason | 0010| of the violation of any law, the court by which the offender is | 0011| convicted shall order the sale or other disposition of the | 0012| property and the proceeds of any such sale as provided for in | 0013| this section are subject to the court making due provisions for | 0014| the rights of innocent persons and the legitimate rights to | 0015| restitution on behalf of actual victims of the criminal acts. | 0016| G. Property taken or detained under this section | 0017| shall not be subject to replevin but is deemed to be in the | 0018| custody of the law enforcement agency seizing it, subject only | 0019| to the orders and decrees of the district court. When property | 0020| is seized under the Computer Crimes Act, the enforcement | 0021| officer may: | 0022| (1) place the property under seal; | 0023| (2) remove the property to a place designated | 0024| by the law enforcement officer or by the district court; or | 0025| (3) require the law enforcement agency to take | 0001| custody of the property and remove it to an appropriate | 0002| location for disposition in accordance with law. | 0003| H. When property is forfeited under the Computer | 0004| Crimes Act, the law enforcement agency seizing it shall: | 0005| (1) deliver custody of the property to the | 0006| information systems council attached to the general services | 0007| department. The council, based upon a plan, shall advertise | 0008| and make available the forfeited property to state agencies and | 0009| political subdivisions of the state based upon a demonstrated | 0010| need and plan of use for that property. The information systems | 0011| council shall advertise and make the forfeited property | 0012| available by bid for a minimum of one hundred twenty days and | 0013| dispose of that property within another sixty days. All | 0014| proceeds from the sale of forfeited property shall be deposited | 0015| in the general fund; or | 0016| (2) where the court orders the property to be | 0017| sold, the proceeds of the sale shall be paid into the general | 0018| fund] and forfeited pursuant to the provisions of the | 0019| Forfeiture Act." | 0020| Section 22. Section 60-7A-4.1 NMSA 1978 (being Laws 1985, | 0021| Chapter 179, Section 1, as amended) is amended to read: | 0022| "60-7A-4.1. UNLAWFUL SALE OF ALCOHOLIC BEVERAGES-- | 0023| CRIMINAL PENALTY--SEIZURE AND FORFEITURE.-- | 0024| A. It is unlawful for any person to sell or attempt | 0025| to sell alcoholic beverages at any place other than a licensed | 0001| premises or as otherwise provided by the Liquor Control Act. | 0002| B. Any person who violates the provisions of | 0003| Subsection A of this section is guilty of a fourth degree | 0004| felony. | 0005| C. Any conveyance used or intended to be used for | 0006| the purpose of unlawful sale of alcoholic beverages or money | 0007| [which] that is the fruit or instrumentality of the crime | 0008| may be seized and [upon conviction, in the discretion of the | 0009| court, be forfeited and disposed of under the procedures set | 0010| forth in Section 30-31-35 NMSA 1978] forfeited pursuant to | 0011| the provisions of the Forfeiture Act." | 0012| Section 23. EFFECTIVE DATE.--The effective date of the | 0013| provisions of this act is July 1, 1997. | 0014| - 32 - | 0015| | 0016| | 0017| | 0018| | 0019| | 0020| | 0021| | 0022| | 0023| | 0024| | 0025| | 0001| | 0002| | 0003| | 0004| | 0005| | 0006| | 0007| FORTY-THIRD LEGISLATURE | 0008| FIRST SESSION, 1997 | 0009| | 0010| | 0011| February 21, 1997 | 0012| Mr. President: | 0013| | 0014| | 0015| Your JUDICIARY COMMITTEE, to whom has been referred | 0016| | 0017| SENATE BILL 379 | 0018| | 0019| has had it under consideration and reports same with | 0020| recommendation that it DO NOT PASS, but that | 0021| | 0022| | 0023| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR | 0024| SENATE BILL 379 | 0025| | 0001| | 0002| DO PASS, and thence referred to the FINANCE COMMITTEE. | 0003| | 0004| | 0005| Respectfully submitted, | 0006| | 0007| | 0008| | 0009| __________________________________ | 0010| Fernando R. Macias, Chairman | 0011| | 0012| | 0013| Adopted_______________________ Not Adopted_______________________ | 0014| (Chief Clerk) (Chief Clerk) | 0015| | 0016| Date ________________________ | 0017| | 0018| | 0019| The roll call vote was 8 For 0 Against | 0020| Yes: 8 | 0021| No: None | 0022| Excused: 0 | 0023| Absent: None | 0024| | 0025| S0379JU1 SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR | 0001| SENATE BILL 379 | 0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997 | 0003| | 0004| | 0005| | 0006| | 0007| | 0008| | 0009| | 0010| AN ACT | 0011| RELATING TO FORFEITURE OF PROPERTY; ENACTING THE FORFEITURE | 0012| ACT; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN | 0013| APPROPRIATION. | 0014| | 0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO: | 0016| Section 1. A new section of the Criminal Code is enacted | 0017| to read: | 0018| "[NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of | 0019| this act may be cited as the "Forfeiture Act"." | 0020| Section 2. A new section of the Criminal Code is enacted | 0021| to read: | 0022| "[NEW MATERIAL] PURPOSE OF ACT.--The purpose of the | 0023| Forfeiture Act is to provide uniform standards and procedures | 0024| for law enforcement officers and agencies for the seizure and | 0025| forfeiture of property used or intended to be used in the | 0001| commission of a crime." | 0002| Section 3. A new section of the Criminal Code is enacted | 0003| to read: | 0004| "[NEW MATERIAL] DEFINITIONS.--As used in the Forfeiture | 0005| Act: | 0006| A. "crime" means an offense punishable by | 0007| imprisonment for one year or more, a violation of laws or | 0008| regulations regarding hunting or fishing or a violation of laws | 0009| regarding gambling; | 0010| B. "law enforcement officer" means a state or | 0011| municipal police officer, county sheriff, deputy sheriff, | 0012| conservation officer, motor transportation enforcement officer | 0013| or other state employee authorized by state law to enforce | 0014| criminal statutes; provided that "law enforcement officer" does | 0015| not include correctional officers; | 0016| C. "owner" means an individual who possesses a legal | 0017| or equitable ownership in property or, if title to the property | 0018| is held in the name of a partnership, trust, corporation or | 0019| other legal entity, an individual who possesses a substantial | 0020| legal or equitable ownership interest in the partnership, | 0021| trust, corporation or other legal entity; and | 0022| D. "property" means tangible or intangible personal | 0023| property, real property or an interest in tangible or | 0024| intangible personal property or real property." | 0025| Section 4. A new section of the Criminal Code is enacted | 0001| to read: | 0002| "[NEW MATERIAL] FORFEITURE REQUIREMENTS.--A judgment for | 0003| the forfeiture of property shall be entered only upon proof by | 0004| clear and convincing evidence that the property is forfeitable | 0005| under state law and that the forfeiture is based upon the | 0006| commission of a crime or an attempt to commit a crime." | 0007| Section 5. A new section of the Criminal Code is enacted to | 0008| read: | 0009| "[NEW MATERIAL] SEIZURE--COURT ORDER--EXCEPTIONS.-- | 0010| A. Property subject to forfeiture may be seized by a law | 0011| enforcement officer upon an order issued by the district court | 0012| having jurisdiction. | 0013| B. The court may issue an order pursuant to Subsection A | 0014| of this section if it determines that there is probable cause to | 0015| believe that the law enforcement agency seeking forfeiture will | 0016| prevail on the issue of forfeiture and that failure to enter the | 0017| order will result in the property's being destroyed, removed from | 0018| the jurisdiction of the court or otherwise made unavailable for | 0019| forfeiture, unless the hardship caused to a party of interest by | 0020| entry of the order outweighs the need to preserve the availability | 0021| of the property through the entry of the order. | 0022| C. A seizure of property other than a residence or | 0023| business may be made without a court order when: | 0024| (1) the seizure is incident to an arrest or a | 0025| search pursuant to a search warrant or an inspection pursuant to | 0001| an administrative inspection warrant; | 0002| (2) the property subject to seizure has been the | 0003| subject of a prior judgment in favor of the state or a political | 0004| subdivision in a criminal injunction or forfeiture proceeding; | 0005| (3) there is probable cause to believe that the | 0006| property is directly or indirectly dangerous to health or safety; | 0007| or | 0008| (4) there is probable cause to believe that the | 0009| property is forfeitable under state law and that the delay | 0010| occasioned by the need to secure an order will frustrate the | 0011| seizure; provided, however, that a law enforcement agency making a | 0012| seizure pursuant to this paragraph shall, within ten days of the | 0013| seizure, apply for an order pursuant to Subsection A of this | 0014| section; and provided further that the property shall be released | 0015| to the owner immediately if the order is denied. The law | 0016| enforcement agency making the seizure shall make a reasonable | 0017| effort to notify the person from whom the property was seized of | 0018| the location, date and time of the hearing on the application for | 0019| 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 | 0022| only after a pre-seizure hearing, with notice provided in | 0023| accordance with the provisions of Section 6 of the Forfeiture Act. | 0024| E. The owner shall be given a receipt whenever | 0025| practicable for the property seized." | 0001| Section 6. A new section of the Criminal Code is enacted to | 0002| read: | 0003| "[NEW MATERIAL] SEIZURE--NOTICE--CLAIMS.-- | 0004| A. All forfeiture proceedings shall be brought in the | 0005| name of the law enforcement agency that seized the property. All | 0006| forfeiture proceedings shall be initiated in district court in the | 0007| county in which the property was seized; provided that, for good | 0008| cause shown upon application of any interested party, the court | 0009| may consolidate proceedings filed in different counties or allow | 0010| transfer of proceedings to another county. | 0011| B. All forfeiture proceedings shall be initiated by the | 0012| issuance of a notice of pending forfeiture by the law enforcement | 0013| agency that seized the property. The notice shall be issued | 0014| within twenty days from the date the property was seized and in | 0015| the case of real property, the notice shall be recorded in the | 0016| county clerk's office for the county in which the real property is | 0017| located. The notice shall include a description of the property | 0018| sought to be forfeited, the date and place of the seizure of the | 0019| property, the name and address of the seizing law enforcement | 0020| agency, the reason the property is alleged to be forfeitable, a | 0021| summary of the procedures and the procedural rights applicable to | 0022| the forfeiture action and a notification alerting a trustee of the | 0023| law enforcement agency's obligations under the Forfeiture Act. | 0024| C. The notice shall be given to the person from whom the | 0025| property was seized and to each owner and secured interest holder | 0001| and is effective upon personal service. | 0002| D. If personal service of the notice is not possible | 0003| after good-faith attempts at all known residences and places of | 0004| business, the seizing law enforcement agency shall publish a | 0005| notice of pending forfeiture, including a list of seized property, | 0006| once a week for four consecutive weeks in a newspaper of general | 0007| circulation in the county in which the property has been seized. | 0008| The notice shall include a statement of the rights of an owner or | 0009| secured interest holder to claim return of the property. | 0010| E. Any person claiming seized property shall file with | 0011| the seizing law enforcement agency a claim stating his interest in | 0012| the property. All claims shall be filed within sixty days of the | 0013| date of personal service on the claimant of the notice of pending | 0014| forfeiture or, if personal service was not effected, within forty | 0015| days of the last date of publication in the newspaper of the | 0016| notice of seizure. | 0017| F. Within twenty days of receipt by a seizing law | 0018| enforcement agency of any claim to property, a complaint seeking | 0019| forfeiture of the property shall be filed in district court, and | 0020| copies of the complaint shall be served on all claimants. If | 0021| additional claims to the property are made in a timely manner | 0022| after the complaint is filed, those additional claimants shall be | 0023| made parties to the action by amendment of the complaint. The | 0024| Rules of Civil Procedure for the District Courts shall apply to | 0025| all forfeiture proceedings. The district court shall determine | 0001| the extent and priority of interest for all claimants to property. | 0002| G. No bond of any kind shall be required as a | 0003| prerequisite to making a claim for the return of seized property. | 0004| H. Reasonable attorney fees and costs may be awarded to | 0005| a claimant who prevails in a forfeiture proceeding. Any attorney | 0006| fees and costs awarded by the court shall be paid by the state, | 0007| county or municipality served by the seizing law enforcement | 0008| agency. | 0009| I. If there is opposition to the forfeiture, the parties | 0010| shall have the right to a jury trial in determining the propriety | 0011| of a forfeiture of any property valued in excess of ten thousand | 0012| dollars ($10,000). | 0013| J. The district court shall file a decision regarding a | 0014| forfeiture complaint within one hundred eighty days of the filing | 0015| of an answer by a claimant or, if there is more than one claimant, | 0016| within one hundred eighty days of the filing of an answer by the | 0017| last claimant. The one hundred eighty-day time limitation may be | 0018| extended by consent of the parties or by the district court for | 0019| good cause shown. | 0020| K. When no claims to property are filed in a timely | 0021| manner, the property shall be forfeited. Forfeited property, if | 0022| it is not currency, may be sold or otherwise disposed of in | 0023| accordance with law, and all sale proceeds and forfeited currency | 0024| shall be deposited in the general fund of the state, county or | 0025| municipality served by the law enforcement agency that seized the | 0001| forfeited property or currency, or, if forfeited under Chapter 17 | 0002| NMSA 1978, the proceeds shall be deposited in the game protection | 0003| fund, in an amount equal to the amount expended from the game | 0004| protection fund to prosecute the case, and the surplus shall be | 0005| deposited in the general fund. Notwithstanding the provisions of | 0006| this subsection, proceeds from the sale of forfeited property or | 0007| forfeited currency shall be applied first as restitution to or on | 0008| behalf of actual victims of the criminal acts related to the | 0009| forfeiture proceedings." | 0010| Section 7. A new section of the Criminal Code is enacted to | 0011| read: | 0012| "[NEW MATERIAL] REAL PROPERTY AND MOTOR VEHICLES--TITLE | 0013| SEARCH--NOTICE.-- | 0014| A. In addition to the procedures set forth in Section 6 | 0015| of the Forfeiture Act, when the seized property is real property | 0016| or a motor vehicle, the seizing law enforcement agency shall | 0017| perform a title search on the property. Subsequent to the title | 0018| search, the seizing law enforcement agency shall give a notice of | 0019| pending forfeiture as provided in Section 6 of the Forfeiture Act | 0020| to all persons whom the law enforcement agency knows or reasonably | 0021| should know to have an interest in the property and in the case of | 0022| real property, the notice shall be recorded in the county clerk's | 0023| office for the county in which the real property is located. | 0024| B. If the seizing law enforcement agency determines that | 0025| the seized real property or motor vehicle is owned by a person who | 0001| is not charged with a crime related to the seizure and there is no | 0002| probable cause to believe that the owner of the real property or | 0003| motor vehicle consented to or had knowledge of the criminal act on | 0004| which the seizure was based, the law enforcement agency shall | 0005| return the real property or motor vehicle to the owner." | 0006| Section 8. A new section of the Criminal Code is enacted to | 0007| read: | 0008| "[NEW MATERIAL] ACTIONS--TIME LIMITS--BURDEN OF PROOF.-- | 0009| A. No action to forfeit property shall be brought more | 0010| than three years from the date of the last criminal act on which | 0011| the proposed forfeiture is based. | 0012| B. The burden of proof is on the prosecution to | 0013| establish, by clear and convincing evidence, that the property is | 0014| subject to forfeiture." | 0015| Section 9. A new section of the Criminal Code is enacted to | 0016| read: | 0017| "[NEW MATERIAL] PROPERTY IMMUNE FROM FORFEITURE-- | 0018| EXCEPTION.--No property shall be forfeited under the provisions of | 0019| the Forfeiture Act to the extent of the interest of any owner or | 0020| secured interest holder who the prosecution cannot prove, by clear | 0021| and convincing evidence, consented to or had knowledge of the last | 0022| criminal act on which the proposed forfeiture is based." | 0023| Section 10. A new section of the Criminal Code is enacted to | 0024| read: | 0025| "[NEW MATERIAL] SAFEKEEPING OF SEIZED PROPERTY PRIOR TO | 0001| FORFEITURE--RETURN TO OWNER.-- | 0002| A. All currency seized pursuant to the provisions of the | 0003| Forfeiture Act shall be remitted to the state, county or municipal | 0004| treasurer or the clerk of the court for deposit in an interest- | 0005| bearing trust account. | 0006| B. Other seized property not required by state or | 0007| federal law to be destroyed may be: | 0008| (1) placed under seal; | 0009| (2) removed to a place designated by the law | 0010| enforcement agency or the district court; | 0011| (3) removed to the custody of the law enforcement | 0012| agency; | 0013| (4) sold or disposed of pursuant to Subsection K of | 0014| Section 6 of the Forfeiture Act, when no claims are filed in a | 0015| timely manner; or | 0016| (5) otherwise disposed of as provided by court | 0017| order. | 0018| C. Seized property shall be kept by the law enforcement | 0019| agency in such a manner as to protect it from theft or damage. | 0020| D. If property is not forfeited or if notice of seizure | 0021| is not provided in a timely manner or if the forfeiture complaint | 0022| is not filed in a timely manner, as provided in the Forfeiture | 0023| Act, the seized property shall be returned to the owner of the | 0024| property, including all interest accrued on seized currency placed | 0025| in a trust account. | 0001| E. Notwithstanding the immunity provided in the Tort | 0002| Claims Act, an owner of seized property that is returned pursuant | 0003| to the Forfeiture Act may have a cause of action against the law | 0004| enforcement agency." | 0005| Section 11. A new section of the Criminal Code is enacted to | 0006| read: | 0007| "[NEW MATERIAL] DISPOSAL OF FORFEITED PROPERTY.-- | 0008| A. Whenever property is forfeited pursuant to a court | 0009| order under the Forfeiture Act, the court shall provide for the | 0010| sale or other disposition of the property. Forfeited currency and | 0011| proceeds from the sale of forfeited property shall be applied | 0012| first to restitution to or on behalf of actual victims of the | 0013| criminal acts of the convicted owner. | 0014| B. After payments have been made pursuant to the | 0015| provisions of Subsection A of this section, the court shall order | 0016| the balance deposited in the general fund of the state, county or | 0017| municipality served by the law enforcement agency that seized the | 0018| forfeited property; provided, if the property was forfeited | 0019| pursuant to the provisions of Chapter 17 NMSA 1978, the court | 0020| shall order a deposit of money in the game protection fund in an | 0021| amount equal to the amount expended from the game protection fund | 0022| to prosecute the crime that led to the forfeiture and any balance | 0023| remaining shall be deposited in the general fund. | 0024| C. If forfeited property consists of a partial interest | 0025| in property, the court may, at its discretion and to the benefit | 0001| of the taxpayers, allow the other owners whose interests have not | 0002| been forfeited to purchase the forfeited share of the property at | 0003| the current market value. Proceeds of the purchase shall be | 0004| disposed of in accordance with the provisions of Subsections A and | 0005| B of this section." | 0006| Section 12. Section 17-2-20.1 NMSA 1978 (being Laws 1979, | 0007| Chapter 321, Section 1, as amended) is amended to read: | 0008| "17-2-20.1. SEIZURE AND FORFEITURE--PROPERTY SUBJECT.-- | 0009| A. All firearms and bows and arrows may be subject to | 0010| seizure and forfeiture when used as instrumentalities in the | 0011| commission of the following crimes: | 0012| (1) illegal possession or transportation of big | 0013| game during closed season; | 0014| (2) taking big game during closed season; | 0015| (3) attempting to take big game by the use of | 0016| spotlight or other artificial light; and | 0017| (4) exceeding the bag limit on any big game species | 0018| during open season. | 0019| [B. Provided that no firearms or bows and arrows shall | 0020| be subject to forfeiture if the violation was without the | 0021| knowledge or consent of the owner. | 0022| C.] B. Any motor vehicle shall be subject to seizure | 0023| and forfeiture when operated in violation of the provisions of | 0024| Section 17-2-31 NMSA 1978, regarding hunting by spotlight [In the | 0025| event of seizure and forfeiture under this subsection, the motor | 0001| vehicle shall be disposed of in accordance with the provisions of | 0002| Section 17-2-20.2 NMSA 1978. | 0003| D. No conveyance is subject to forfeiture under this | 0004| section by reason of any act or omission established for the owner | 0005| to have been committed or omitted without his knowledge or | 0006| consent. A forfeiture of a conveyance encumbered by a bona fide | 0007| security interest shall be subject to the interest of a secured | 0008| party if the secured party neither had knowledge of nor consented | 0009| to the act or omission] or other artificial light. | 0010| C. Seizure and forfeiture proceedings shall be | 0011| conducted pursuant to the provisions of the Forfeiture Act." | 0012| Section 13. Section 18-6-9.3 NMSA 1978 (being Laws 1993, | 0013| Chapter 176, Section 11) is amended to read: | 0014| "18-6-9.3. CULTURAL PROPERTY--SEIZURE AND FORFEITURE OF | 0015| INSTRUMENTS.--[A.] Any instrument, vehicle, tool or equipment | 0016| used or intended to be used to violate the provisions of the | 0017| Cultural Properties Act is subject to seizure and forfeiture | 0018| [except that no instrument, vehicle, tool or equipment shall be | 0019| subject to forfeiture if the violation was without the knowledge | 0020| or consent of the owner of the property subject to forfeiture. | 0021| B. Property subject to forfeiture pursuant to the | 0022| provisions of this section may be seized by a conservation | 0023| officer, sheriff, state police officer or law enforcement officer | 0024| upon an order of the district court in the county having | 0025| jurisdiction over the offense. | 0001| C. Seizure without a court order may occur if: | 0002| (1) the seizure is incident to an arrest or a | 0003| search pursuant to a search warrant; or | 0004| (2) the enforcement officer has probable cause to | 0005| believe that the property was used or intended for use to violate | 0006| the Cultural Properties Act. | 0007| D. In the event of seizure pursuant to this section, | 0008| proceedings shall be instituted within thirty days from the date | 0009| of seizure. A proceeding brought pursuant to this section shall | 0010| be in rem. The claim shall not be filed against the owner or any | 0011| other person and shall be filed only as a civil case. | 0012| E. Property taken or detained pursuant to the provisions | 0013| of this section shall not be subject to replevin, but is deemed to | 0014| be in the custody of the state agency employing the enforcing | 0015| officer, subject only to the orders and decrees of the district | 0016| court. When property is seized pursuant to the Cultural | 0017| Properties Act, the state agency seizing it shall remove the | 0018| property to a place designated by the state agency for disposition | 0019| in accordance with law. | 0020| F. Except as otherwise specifically provided by law, | 0021| property forfeited due to a violation of the Cultural Properties | 0022| Act shall be sold at public auction pursuant to a court order. | 0023| The proceeds of the court-ordered sale of forfeited property are | 0024| subject first to the claims, verified by the court, of innocent | 0025| persons and the legitimate rights to restitution of actual victims | 0001| of the criminal acts. Where proceeds are derived from violations: | 0002| (1) on lands controlled by the commissioner of | 0003| public lands, one-half of the proceeds from the sale shall accrue | 0004| to the state agency of which the law enforcement officer seizing | 0005| that property is a member and one-half shall be deposited in the | 0006| cultural properties restoration fund; and | 0007| (2) on any other state lands, one-half of the | 0008| proceeds from the sale shall accrue to the state agency of which | 0009| the law enforcement officer seizing that property is a member and | 0010| one-half of the proceeds shall be deposited in the cultural | 0011| properties restoration fund] pursuant to the provisions of the | 0012| Forfeiture Act. Notwithstanding the provisions of the Forfeiture | 0013| Act regarding the disposition of forfeited property, when proceeds | 0014| from a court-ordered sale of forfeited property are derived from a | 0015| violation of cultural property, the proceeds from the sale shall | 0016| be used for restoration, stabilization, protection and | 0017| preservation of the cultural property. Any proceeds remaining | 0018| shall be deposited in the general fund." | 0019| Section 14. Section 30-3-8.1 NMSA 1978 (being Laws 1993, | 0020| Chapter 78, Section 2) is amended to read: | 0021| "30-3-8.1. SEIZURE AND FORFEITURE OF MOTOR VEHICLE-- | 0022| PROCEDURE[--EXCEPTION].-- | 0023| A. A motor vehicle shall be subject to seizure and | 0024| forfeiture when the motor vehicle is used or intended for use in | 0025| the commission of the offense of shooting at or from a motor | 0001| vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978. | 0002| B. A motor vehicle subject to seizure and forfeiture may | 0003| be seized [by a law enforcement officer: | 0004| (1) upon an order issued by the district court | 0005| having jurisdiction; | 0006| (2) without an order if the seizure is incident to | 0007| an arrest; or | 0008| (3) without an order if the seizure is incident to | 0009| a search under a valid search warrant. | 0010| C. In the event of seizure pursuant to Subsection B of | 0011| this section, proceedings under the Rules of Civil Procedure for | 0012| the District Courts and Subsection D of this section shall be | 0013| instituted promptly. | 0014| D. A motor vehicle seized under this section shall not | 0015| be subject to replevin, but is deemed to be in the custody of the | 0016| seizing law enforcement agency, subject only to the orders and | 0017| decrees of the district court. When a motor vehicle is seized | 0018| pursuant to the provisions of this section, a law enforcement | 0019| officer may remove the property to a place designated by the | 0020| district court or by the head of the officer's agency for | 0021| disposition in accordance with the law. | 0022| E. When a vehicle is forfeited pursuant to this section, | 0023| the seizing law enforcement agency shall sell the motor vehicle at | 0024| a public auction, and the proceeds, after all costs for | 0025| impoundment, forfeiture and sale are repaid, shall be forwarded to | 0001| the state treasurer for credit to the crime victims reparation | 0002| fund pursuant to Section 31-22-21 NMSA 1978 within thirty days. | 0003| If the sale of the motor vehicle does not cover the cost of | 0004| impounding, forfeiting and selling the motor vehicle, the law | 0005| enforcement agency may deduct the uncovered portion of the cost | 0006| from the proceeds of the next sale. | 0007| F. No motor vehicle shall be subject to forfeiture when | 0008| the owner of the motor vehicle establishes that the offense of | 0009| shooting at or from a motor vehicle pursuant to Subsection B of | 0010| Section 30-3-8 NMSA 1978 was committed without his knowledge or | 0011| consent. A forfeiture of a motor vehicle encumbered by a recorded | 0012| bona fide security interest shall be subject to the interest of | 0013| the secured party if the secured party did not have knowledge of | 0014| or did not consent to the offense of shooting at or from a motor | 0015| vehicle pursuant to Subsection B of Section 30-3-8 NMSA 1978] | 0016| and forfeited pursuant to the provisions of the Forfeiture Act." | 0017| Section 15. Section 30-16B-9 NMSA 1978 (being Laws 1991, | 0018| Chapter 112, Section 9) is amended to read: | 0019| "30-16B-9. SEIZURE AND FORFEITURE--PROCEDURE.--[A.] | 0020| Property subject to forfeiture under the Unauthorized Recording | 0021| Act may be seized [by any enforcement officer upon an order | 0022| issued by the district court having jurisdiction. | 0023| B. Seizure without such an order may be made if: | 0024| (1) the seizure is incident to an arrest or search | 0025| under a valid search warrant or an inspection under an | 0001| administrative inspection warrant; | 0002| (2) the property subject to seizure has been the | 0003| subject of a prior judgment in favor of the state in an injunction | 0004| or forfeiture proceeding based upon the Unauthorized Recording | 0005| Act; or | 0006| (3) the enforcement officer has probable cause to | 0007| believe that the property was used or is intended to be used in | 0008| violation of the Unauthorized Recording Act. | 0009| C. In the event of seizure pursuant to Subsection A of | 0010| this section, proceedings under Subsection D of this section and | 0011| the Rules of Civil Procedure for the District Court shall be | 0012| instituted promptly and not later than thirty days after seizure. | 0013| D. Property taken or detained under this section shall | 0014| not be subject to replevin but is deemed to be in the custody of | 0015| the seizing police department or agency subject only to the orders | 0016| and decrees of the district court. When property is seized under | 0017| the Unauthorized Recording Act, the enforcement officer may: | 0018| (1) place the property under seal; or | 0019| (2) remove the property to a place designated by | 0020| the court or head of the officer's department or agency for | 0021| disposition in accordance with law. | 0022| E. When property is forfeited under the Unauthorized | 0023| Recording Act, the seizing police department or agency shall: | 0024| (1) sell that which is not required to be destroyed | 0025| by law and the proceeds shall revert to the general fund; | 0001| (2) take custody of the property for use by law | 0002| enforcement agencies in the enforcement of the Unauthorized | 0003| Recording Act for disposition in accordance with law; or | 0004| (3) forward property, the proceeds from the sale of | 0005| which are not required to revert to the general fund, to the | 0006| property control division of the general services department for | 0007| disposition] and forfeited pursuant to the provisions of the | 0008| Forfeiture Act." | 0009| Section 16. Section 30-19-10 NMSA 1978 (being Laws 1963, | 0010| Chapter 303, Section 19-10) is amended to read: | 0011| "30-19-10. SEIZURE AND FORFEITURE OF PRIZES AND | 0012| EQUIPMENT.--Any illegal gambling device or other illegal | 0013| equipment of any type used in gambling [shall be seized by the | 0014| law enforcement officers discovering such device or equipment, and | 0015| it shall be the duty of such officers to retain custody of the | 0016| property seized until such property is disposed of by order of the | 0017| district court. Upon proper application by the district attorney | 0018| to the judge of the district court, the judge of the district | 0019| court may by proper order direct the destruction of any gambling | 0020| device, paraphernalia or equipment of any kind or character seized | 0021| by law enforcement officers] may be seized and forfeited | 0022| pursuant to the provisions of the Forfeiture Act." | 0023| Section 17. Section 30-31-35 NMSA 1978 (being Laws 1972, | 0024| Chapter 84, Section 34, as amended) is amended to read: | 0025| "30-31-35. SEIZURE AND FORFEITURE--PROCEDURE.--[A.] | 0001| Property subject to forfeiture and disposal under the Controlled | 0002| Substances Act may be seized [by any enforcement officer upon an | 0003| order issued by the district court having jurisdiction. | 0004| B. Seizure without such an order may be made if: | 0005| (1) the seizure is incident to an arrest or search | 0006| under a search warrant or an inspection under an administrative | 0007| inspection warrant; | 0008| (2) the property subject to seizure has been the | 0009| subject of a prior judgment in favor of the state in an injunction | 0010| or forfeiture proceeding based upon the Controlled Substances Act; | 0011| (3) the enforcement officer has probable cause to | 0012| believe that the property, which is a controlled substance, is | 0013| directly or indirectly dangerous to health or safety; or | 0014| (4) the enforcement officer has probable cause to | 0015| believe that the property was used or is intended to be used in | 0016| violation of the Controlled Substances Act. | 0017| C. In the event of seizure pursuant to Subsection A or | 0018| Subsection B of this section, proceedings under Subsection D of | 0019| this section and the Rules of Civil Procedure for the District | 0020| Courts of New Mexico shall be instituted promptly and not later | 0021| than thirty days after seizure. | 0022| D. Property taken or detained under this section shall | 0023| not be subject to replevin, but is deemed to be in the custody of | 0024| the law enforcement agency seizing it subject only to the orders | 0025| and decrees of the district court. When property is seized under | 0001| the Controlled Substances Act, the enforcement officer may: | 0002| (1) place the property under seal; | 0003| (2) remove the property to a place designated by | 0004| the enforcement officer; or | 0005| (3) require the law enforcement agency to take cus- | 0006| | 0007| tody of the property and remove it to an appropriate location for | 0008| disposition in accordance with law. | 0009| E. When property is forfeited under the Controlled Sub- | 0010| | 0011| stances Act, the law enforcement agency seizing it shall: | 0012| (1) sell that which is not required to be destroyed | 0013| by law. The proceeds shall revert to the general fund of the | 0014| state, county or municipality as the case may be; | 0015| (2) take custody of the property for use by law en- | 0016| | 0017| forcement agencies in the enforcement of the Controlled Substances | 0018| Act or remove it for disposition in accordance with law; provided | 0019| that where a motor vehicle has been seized by a municipal police | 0020| department or a county sheriff's department with its respective | 0021| jurisdictional boundaries, such department shall institute | 0022| forfeiture proceedings; or | 0023| (3) in case of property seized by the state police, | 0024| forward property, the proceeds from the sale of which are not re- | 0025| | 0001| quired to revert to the general fund, to the state police, bureau | 0002| of narcotics for disposition; provided that motor vehicles seized | 0003| by the state police may be loaned to the governor's organized | 0004| crime prevention commission for use in undercover work, the entire | 0005| cost of operating such vehicles to be borne by the governor's | 0006| organized crime prevention commission] and forfeited pursuant to | 0007| the provisions of the Forfeiture Act." | 0008| Section 18. Section 30-31A-10 NMSA 1978 (being Laws 1983, | 0009| Chapter 148, Section 10) is amended to read: | 0010| "30-31A-10. SEIZURE AND FORFEITURE--PROCEDURE.--[A.] | 0011| Property subject to forfeiture and disposal under the Imitation | 0012| Controlled Substances Act may be seized [by any law enforcement | 0013| officer upon an order issued by the district court having | 0014| jurisdiction. | 0015| B. Seizure without such an order may be made if: | 0016| (1) the seizure is incident to an arrest or search | 0017| under a search warrant; or | 0018| (2) the property subject to seizure has been the | 0019| subject of a prior judgment in favor of the state in an injunction | 0020| or forfeiture proceeding based upon the Imitation Controlled | 0021| Substances Act. | 0022| C. In the event of seizure pursuant to Subsection A or B | 0023| of this section, proceedings under Subsection D of this section | 0024| and the rules of civil procedure for the district courts of New | 0025| Mexico shall be instituted promptly and not later than thirty days | 0001| after seizure. | 0002| D. Property taken or detained under this section shall | 0003| not be subject to replevin but is deemed to be in the custody of | 0004| the law enforcement agency seizing it subject only to the orders | 0005| and decrees of the district court. When property is seized under | 0006| the Imitation Controlled Substances Act, the enforcement officer | 0007| may: | 0008| (1) place the property under seal; | 0009| (2) remove the property to a place designated by | 0010| the enforcement officer; or | 0011| (3) require the law enforcement agency to take | 0012| custody of the property and remove it to an appropriate location | 0013| for disposition in accordance with law. | 0014| E. When property is forfeited under the Imitation | 0015| Controlled Substances Act, the law enforcement agency seizing it | 0016| shall take custody of the property for use by law enforcement | 0017| agencies in the enforcement of the Imitation Controlled Substances | 0018| Act and the Controlled Substances Act and remove it for | 0019| disposition in accordance with law] and forfeited pursuant to | 0020| the provisions of the Forfeiture Act." | 0021| Section 19. Section 30-42-4 NMSA 1978 (being Laws 1980, | 0022| Chapter 40, Section 4) is amended to read: | 0023| "30-42-4. PROHIBITED ACTIVITIES--PENALTIES--SEIZURE AND | 0024| FORFEITURE PROCEDURE.-- | 0025| A. It is unlawful for any person who has received any | 0001| proceeds derived, directly or indirectly, from a pattern of | 0002| racketeering activity in which the person has participated, to use | 0003| or invest, directly or indirectly, any part of the proceeds or the | 0004| proceeds derived from the investment or use thereof in the | 0005| acquisition of any interest in, or the establishment or operation | 0006| of, any enterprise. Whoever violates this subsection is guilty of | 0007| a second degree felony. | 0008| B. It is unlawful for any person to engage in a pattern | 0009| of racketeering activity in order to acquire or maintain, directly | 0010| or indirectly, any interest in or control of any enterprise. | 0011| Whoever violates this subsection is guilty of a second degree | 0012| felony. | 0013| C. It is unlawful for any person employed by or | 0014| associated with any enterprise to conduct or participate, directly | 0015| or indirectly, in the conduct of [such] the enterprise's | 0016| affairs by engaging in a pattern of racketeering activity. | 0017| Whoever violates this subsection is guilty of a second degree | 0018| felony. | 0019| D. It is unlawful for any person to conspire to violate | 0020| any of the provisions of Subsections A through C of this section. | 0021| Whoever violates this subsection is guilty of a third degree | 0022| felony. | 0023| E. Whoever violates Subsection A, B, C or D of this | 0024| section in addition to the prescribed penalties shall forfeit to | 0025| the state [of New Mexico]: | 0001| (1) any interest acquired or maintained in | 0002| violation of the Racketeering Act; and | 0003| (2) any interest in, security of, claim against or | 0004| property or contractual right of any kind affording a source of | 0005| influence over any enterprise [which] that he has established, | 0006| operated, controlled, conducted or participated in the conduct of | 0007| in violation of the Racketeering Act. | 0008| F. In any action brought by the state [under] | 0009| pursuant to the provisions of the Racketeering Act, [the | 0010| district court shall have jurisdiction to enter such restraining | 0011| orders or prohibitions, or to take such other actions, including | 0012| but not limited to the acceptance of satisfactory performance | 0013| bonds, in connection with any property or other interest subject | 0014| to forfeiture under this section, as it shall deem proper. | 0015| G. Upon conviction of a person under this section, the | 0016| court shall authorize the attorney general or the district | 0017| attorney to seize all property or other interest declared | 0018| forfeited under this section upon such terms and conditions as the | 0019| court shall deem proper, making due provision for the rights of | 0020| innocent persons. If a property right or other interest is not | 0021| exercisable or transferable for value by the convicted person, it | 0022| shall expire and shall not revert to the convicted person] | 0023| seizure and forfeiture of property shall be in accordance with | 0024| the provisions of the Forfeiture Act." | 0025| Section 20. Section 30-45-7 NMSA 1978 (being Laws 1989, | 0001| Chapter 215, Section 7) is amended to read: | 0002| "30-45-7. SEIZURE AND FORFEITURE OF PROPERTY.-- | 0003| A. The following are subject to seizure and | 0004| forfeiture: | 0005| (1) all computer property, equipment or products of | 0006| any kind [which] that have been used, manufactured, acquired | 0007| or distributed in violation of the Computer Crimes Act; | 0008| [(2) all materials, products and equipment of any | 0009| kind which are used or intended for use in manufacturing, using, | 0010| accessing, altering, disrupting, copying, concealing, destroying, | 0011| transferring, delivering, importing or exporting any computer | 0012| property or computer service in violation of the Computer Crimes | 0013| Act; | 0014| (3)] (2) all books, records and research | 0015| products and materials involving formulas, microfilm, tapes and | 0016| data [which] that are used or intended for use in violation of | 0017| the Computer Crimes Act; and | 0018| [(4) all conveyances, including aircraft, vehicles | 0019| or vessels, which are used or intended for use to transport or in | 0020| any manner to facilitate the transportation of property described | 0021| in Subsection A, B or C of this section for the purpose of | 0022| violating the Computer Crimes Act; | 0023| (5) all property, real, personal or mixed, which | 0024| has been used or intended for use, maintained or acquired in | 0025| violation of the Computer Crimes Act; and | 0001| (6)] (3) all money or proceeds that constitute | 0002| an instrumentality or derive from a violation of the Computer | 0003| Crimes Act. | 0004| [B. Notwithstanding the provisions of Paragraphs (1) | 0005| through (6) of Subsection A of this section: | 0006| (1) no conveyance used by any person as a common | 0007| carrier in the transaction of business as a common carrier is | 0008| subject to forfeiture under this section unless it appears that | 0009| the owner or other person in charge of the conveyance is a | 0010| consenting party to a violation of the Computer Crimes Act; | 0011| (2) no conveyance, computer property, equipment or | 0012| other material is subject to forfeiture under this section by | 0013| reason of any act or omission established by the owner to have | 0014| been committed or omitted without his knowledge or consent; | 0015| (3) a conveyance, computer property, equipment or | 0016| other material is not subject to forfeiture for a violation of law | 0017| the penalty for which is a misdemeanor or petty misdemeanor; and | 0018| (4) a forfeiture of a conveyance, computer | 0019| property, equipment or material encumbered by a bona fide security | 0020| interest shall be subject to the interest of a secured party if | 0021| the secured party neither had knowledge of nor consented to the | 0022| act or omission. | 0023| C.] B. Property subject to seizure and forfeiture | 0024| [and disposal] under the Computer Crimes Act may be seized [by | 0025| any law enforcement officer upon an order issued by the district | 0001| court having jurisdiction. | 0002| D. Seizure without such an order may be made if: | 0003| (1) the seizure is incident to an arrest or search | 0004| under a search warrant; | 0005| (2) the property subject to seizure had been the | 0006| subject of a prior judgment in favor of the state in an injunction | 0007| or forfeiture proceeding based upon the Computer Crimes Act; or | 0008| (3) the enforcement officer has probable cause to | 0009| believe that the property, whether real, personal or mixed, was | 0010| used or intended for use, maintained or acquired in violation of | 0011| the Computer Crimes Act. | 0012| E. In the event of a seizure pursuant to Subsection C or | 0013| Subsection D of this section, a proceeding under the Computer | 0014| Crimes Act and the rules of civil procedure for the district | 0015| courts shall be instituted promptly and not later than thirty days | 0016| after seizure. The proceeding to forfeit property under the | 0017| Computer Crimes Act is against the property and not against the | 0018| owner or any other person. It is in rem wholly and not in | 0019| personam. It is a civil case and not a criminal proceeding. The | 0020| forfeiture proceeding is required, not to complete the forfeiture, | 0021| but to prove the illegal use for which the forfeiture was | 0022| suffered. | 0023| F. Except as otherwise specifically provided by law, | 0024| whenever any property is forfeited to the state by reason of the | 0025| violation of any law, the court by which the offender is convicted | 0001| shall order the sale or other disposition of the property and the | 0002| proceeds of any such sale as provided for in this section are | 0003| subject to the court making due provisions for the rights of | 0004| innocent persons and the legitimate rights to restitution on | 0005| behalf of actual victims of the criminal acts. | 0006| G. Property taken or detained under this section shall | 0007| not be subject to replevin but is deemed to be in the custody of | 0008| the law enforcement agency seizing it, subject only to the orders | 0009| and decrees of the district court. When property is seized under | 0010| the Computer Crimes Act, the enforcement officer may: | 0011| (1) place the property under seal; | 0012| (2) remove the property to a place designated by | 0013| the law enforcement officer or by the district court; or | 0014| (3) require the law enforcement agency to take | 0015| custody of the property and remove it to an appropriate location | 0016| for disposition in accordance with law. | 0017| H. When property is forfeited under the Computer Crimes | 0018| Act, the law enforcement agency seizing it shall: | 0019| (1) deliver custody of the property to the | 0020| information systems council attached to the general services | 0021| department. The council, based upon a plan, shall advertise and | 0022| make available the forfeited property to state agencies and | 0023| political subdivisions of the state based upon a demonstrated need | 0024| and plan of use for that property. The information systems council | 0025| shall advertise and make the forfeited property available by bid | 0001| for a minimum of one hundred twenty days and dispose of that | 0002| property within another sixty days. All proceeds from the sale of | 0003| forfeited property shall be deposited in the general fund; or | 0004| (2) where the court orders the property to be sold, | 0005| the proceeds of the sale shall be paid into the general fund] | 0006| and forfeited pursuant to the provisions of the Forfeiture Act." | 0007| Section 21. Section 60-7A-4.1 NMSA 1978 (being Laws 1985, | 0008| Chapter 179, Section 1, as amended) is amended to read: | 0009| "60-7A-4.1. UNLAWFUL SALE OF ALCOHOLIC BEVERAGES--CRIMINAL | 0010| PENALTY--SEIZURE AND FORFEITURE.-- | 0011| A. It is unlawful for any person to sell or attempt to | 0012| sell alcoholic beverages at any place other than a licensed | 0013| premises or as otherwise provided by the Liquor Control Act. | 0014| B. Any person who violates the provisions of Subsection | 0015| A of this section is guilty of a fourth degree felony. | 0016| C. Any conveyance used or intended to be used for the | 0017| purpose of unlawful sale of alcoholic beverages or money [which] | 0018| that is the fruit or instrumentality of the crime may be seized | 0019| and [upon conviction, in the discretion of the court, be | 0020| forfeited and disposed of under the procedures set forth in | 0021| Section 30-31-35 NMSA 1978] forfeited pursuant to the provisions | 0022| of the Forfeiture Act." | 0023| Section 22. EFFECTIVE DATE.--The effective date of the | 0024| provisions of this act is July 1, 1997. | 0025|  | 0001| | 0002| FORTY-THIRD LEGISLATURE | 0003| FIRST SESSION, 1997 | 0004| | 0005| | 0006| March 5, 1997 | 0007| | 0008| Mr. President: | 0009| | 0010| Your FINANCE COMMITTEE, to whom has been referred | 0011| | 0012| SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR | 0013| SENATE BILL 379 | 0014| | 0015| has had it under consideration and reports same with recommendation | 0016| that it DO PASS, amended as follows: | 0017| | 0018| 1. On page 7, line 5, strike "a claimant" and insert "the | 0019| party". | 0020| | 0021| 2. On page 7, lines 11 and 12 strike "ten thousand dollars | 0022| ($10,000)" and insert "twenty five thousand dollars (25,000)". | 0023| | 0024| Respectfully submitted, | 0025| | 0001| | 0002| | 0003| __________________________________ | 0004| Ben D. Altamirano, Chairman | 0005| | 0006| | 0007| | 0008| Adopted_______________________ Not Adopted_______________________ | 0009| (Chief Clerk) (Chief Clerk) | 0010| | 0011| | 0012| Date ________________________ | 0013| | 0014| | 0015| The roll call vote was 7 For 0 Against | 0016| Yes: 7 | 0017| No: None | 0018| Excused: Aragon, Campos, Ingle, Smith | 0019| Absent: None | 0020| | 0021| | 0022| S0379FC1 | 0023| |