44TH LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1999

RELATING TO CIVIL LAW; ENACTING THE DRUG TRAFFICKER LIABILITY ACT; PROVIDING FOR LEGAL ACTIONS BY CERTAIN PERSONS TO RECOVER DAMAGES FROM DRUG TRAFFICKERS.

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

Section 1. SHORT TITLE.--This act may be cited as the "Drug Trafficker Liability Act".

Section 2. DEFINITIONS.--As used in the Drug Trafficker Liability Act:

A. "controlled substance" means a "controlled substance", a "counterfeit substance" or a "controlled substance analog" as defined in Section 30-31-2 NMSA 1978;

B. "illegal user" means a person who acquires a controlled substance from a person who traffics in controlled substances;

C. "traffic" means the illegal distribution, sale or possession with the intent to distribute a controlled substance; and

D. "trafficker" means a person who traffics.

Section 3. CAUSE OF ACTION--PRESUMPTION OF INJURY.--

A. A person other than an illegal user may recover damages from an illegal user's trafficker for an injury that is proximately caused by an illegal user's use of a controlled substance.

B. An illegal user may recover damages from a trafficker for an injury that is proximately caused by the illegal user's use of a controlled substance if:

(1) prior to filing the action, the illegal user discloses to a law enforcement authority the identity of the trafficker;

(2) prior to filing the action, the illegal user has not used a controlled substance for thirty days; and (3) the illegal user does not use a controlled substance during the pendency of the action. C. A trafficker is presumed to have injured the plaintiff and to have acted willfully and wantonly if the plaintiff is:

(1) a parent, legal guardian, child, spouse or sibling of the illegal user;

(2) a person whose mother was the illegal user while the person was in utero;

(3) the illegal user's employer;

(4) a person who financially supports or provides unreimbursed services to or on behalf of the illegal user; or

(5) a neighbor who proves the trafficker's trafficking caused a decline in the value of the neighbor's property in the neighborhood of the illegal user.

D. The cause of action established by the Drug Trafficker Liability Act is in addition to and not in lieu of any other cause of action available to a plaintiff.

Section 4. PRESUMPTIONS--EFFECT OF CRIMINAL DRUG CONVICTION.--

A. If a person has been convicted of trafficking in a controlled substance pursuant to Section 30-31-20 NMSA 1978, that person is presumed to have trafficked in a controlled substance pursuant to the Drug Trafficker Liability Act. This presumption is rebuttable.

B. A person convicted of violating the Controlled Substances Act or the federal Comprehensive Drug Abuse Prevention and Control Act of 1970 by trafficking in a controlled substance to an illegal user is estopped from denying trafficking in a controlled substance. The conviction is also prima facie evidence of the person's trafficking in a controlled substance during the two years preceding the date of an act giving rise to the conviction.

C. The absence of a conviction of a person against whom recovery is sought does not bar an action against that person.

Section 5. DAMAGES--INSURANCE EXCLUSION.--

A. A person, other than an illegal user, who is entitled to a recovery pursuant to the Drug Trafficker Liability Act may recover the following:

(1) economic or noneconomic and exemplary damages;

(2) any pecuniary or nonpecuniary loss proximately caused by an illegal user's use of a controlled substance; and

(3) reasonable attorney fees and costs.

B. An illegal user entitled to recovery under the Drug Trafficker Liability Act may recover the following:

(1) economic damages;

(2) any pecuniary loss proximately caused by an illegal user's use of a controlled substance; and

(3) reasonable attorney fees and costs.

C. No damages, including those based on vicarious liability or parental responsibility, that are assessed pursuant to the Drug Trafficker Liability Act shall be payable or claimed under any insurance policy, and no duty to defend or indemnify shall be required for any civil complaint brought pursuant to the Drug Trafficker Liability Act.

Section 6. COMPARATIVE NEGLIGENCE.--An action by an illegal user pursuant to the Drug Trafficker Liability Act is governed by the principles of comparative negligence. Negligence shall not be attributed to a plaintiff who is not an illegal user, unless that plaintiff willfully and knowingly gave the illegal user the controlled substance or money for its purchase.

Section 7. ATTACHMENT--PROPERTY SUBJECT TO LEVY.--

A. After commencing an action under the Drug Trafficker Liability Act, a plaintiff may seek a writ of attachment by filing a motion supported by an affidavit setting forth specific facts showing all of the following:

(1) a description of the injury claimed and a statement that the affiant in good faith believes that the defendant is liable in a stated amount;

(2) the defendant is subject to the judicial jurisdiction of the state; and

(3) after diligent effort, the plaintiff cannot serve the defendant with process.

B. If an attachment action is instituted, a defendant is entitled to an immediate hearing. Attachment may be lifted if the defendant demonstrates that the assets will be available for a potential award or if the defendant posts a bond sufficient to cover a potential award.

C. A person against whom a judgment has been rendered under the Drug Trafficker Liability Act is not eligible to exempt any property from process to levy or process to execute on the judgment. Unless the jury, or the court if there is no jury, specifically finds otherwise, the actions for which a person is found liable under the Drug Trafficker Liability Act are willful and malicious, and the judgment is not subject to discharge under federal bankruptcy law.

D. An asset shall not be used to satisfy a judgment under the Drug Trafficker Liability Act if that asset is named in or has been seized for a forfeiture action by the state or the United States before a plaintiff commences an action under that act unless the asset is released after the forfeiture action or is released by the agency that seized the asset.

Section 8. ACCRUAL OF CAUSE OF ACTION--TOLLING OF STATUTE OF LIMITATIONS.--

A. Except as otherwise provided in this section, a cause of action accrues under the Drug Trafficker Liability Act when a person who may recover has reason to know of the harm and that trafficking in a controlled substance is the cause of the harm.

B. The statute of limitations is tolled while the person is incapacitated by the use of a controlled substance to the extent that the person cannot reasonably be expected to seek recovery under the Drug Trafficker Liability Act or as otherwise provided by law.

C. A person may bring an action for an injury pursuant to the Drug Trafficker Liability Act within six years of the date the action accrues.

Section 9. PROSECUTIONS--STAYS.--

A. A prosecuting attorney may represent the state or a political subdivision of the state in an action brought pursuant to the provisions of the Drug Trafficker Liability Act.

B. On motion by a governmental agency involved in a controlled substance investigation or prosecution, an action brought pursuant to the Drug Trafficker Liability Act shall be stayed until the completion of the criminal investigation or prosecution that gave rise to the motion for a stay of the action.

C. An action shall not be brought pursuant to the Drug Trafficker Liability Act against a law enforcement officer or agency, or a person acting in good faith at the direction of a law enforcement officer or agency, for participation in illegal marketing of a controlled substance, if that participation is in the furtherance of an official investigation.

Section 10. SEVERABILITY.--If any part of the Drug Trafficker Liability Act is held invalid, the remainder or its application to other situations or persons shall not be affected.

Section 11. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 1999.