HOUSE BILL 532
50th legislature - STATE OF NEW MEXICO - first session, 2011
INTRODUCED BY
Zachary J. Cook
AN ACT
RELATING TO FORFEITURES; PROVIDING FOR SEIZURE AND FORFEITURE OF A MOTOR VEHICLE DRIVEN BY A PERSON WHOSE DRIVER'S LICENSE IS REVOKED FOR DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; REQUIRING SEIZURE OF A MOTOR VEHICLE UPON ARREST FOR DWI WHEN THE DRIVER HAS PREVIOUSLY BEEN CONVICTED OF DWI; PROVIDING FOR THE FORFEITURE OF THE VEHICLE; ALLOWING LOCAL GOVERNMENTS TO USE PROCEEDS OF FORFEITED PROPERTY FOR ALCOHOL TREATMENT AND PREVENTION PROGRAMS AND FOR DWI ENFORCEMENT.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 31-27-1 NMSA 1978 (being Laws 2002, Chapter 4, Section 1) is amended to read:
"31-27-1. SHORT TITLE.--[Sections 1 through 8 of this act] Chapter 31, Article 27 NMSA 1978 may be cited as the "Forfeiture Act"."
SECTION 2. Section 31-27-7 NMSA 1978 (being Laws 2002, Chapter 4, Section 7) is amended to read:
"31-27-7. DISPOSITION OF FORFEITED PROPERTY.--
A. Unless possession of the property is illegal or a different disposition is specifically provided for by law and except as provided in Subsection C of this section, forfeited property, if it is not currency, shall be sold at public sale by the law enforcement agency in possession of the property. Forfeited currency and all sale proceeds of the sale of forfeited property shall be distributed:
(1) first, to pay reasonable expenses incurred for storage, protection and sale of the property;
(2) second, any remaining balance to pay restitution to or on behalf of victims, if any, of the crime related to the forfeiture; and
(3) third, any remaining balance to the general fund of the governing body of the seizing law enforcement agency to be used for drug and alcohol abuse treatment services, for drug and alcohol prevention and education programs, for other substance abuse demand-reduction initiatives or for [enforcing] DWI enforcement and enforcement of narcotics law violations, except:
(a) for [forfeitures] forfeiture of property arising from Chapter 17 NMSA 1978, the balance shall be deposited in the game protection fund in an amount equal to the expenditures to prosecute the forfeiture and the crime, with the net balance to be deposited in the general fund; and
(b) for forfeiture of property arising from Chapter 18, Article 6 NMSA 1978, the balance shall be used for the restoration, stabilization, protection and preservation of the affected cultural property, with the net balance to be deposited in the general fund.
B. [Any] A property interest forfeited to the state and disposed of pursuant to the Forfeiture Act is subject to the interest of a secured party unless, at the forfeiture proceeding, the state proves by clear and convincing evidence that the secured party knew or should have known of the crime.
C. If, at the forfeiture proceeding, the state proves, by clear and convincing evidence, that the person convicted of the crime for which the property is subject to forfeiture is a co-owner of the property but fails to prove that the other co-owner knew or should have known of the crime then, at the option of the co-owner not convicted of the crime:
(1) the co-owner not convicted of the crime may buy the forfeited interest from the law enforcement agency at a private sale for the fair market value. Proceeds received by the state from the sale shall be disposed of pursuant to Paragraphs (1) through (3) of Subsection A of this section;
(2) the law enforcement agency shall sell the entire ownership interest at a public sale pursuant to Subsection A of this section, except that the proceeds shall first be used to purchase the ownership interest, at fair market value, of the co-owner not convicted of the crime; or
(3) the law enforcement agency shall sell only the forfeited interest at a public sale pursuant to Subsection A of this section and the purchaser [becomes] will become a co-owner with the co-owner not convicted of the crime.
D. The law enforcement agency shall notify all known co-owners of forfeited property that were not convicted of the crime not less than thirty days before a proposed public sale of the property. If, within the thirty days, the co-owners notify the law enforcement agency of an option made pursuant to Subsection C of this section, the law enforcement agency shall make the sale pursuant to the option selected. If no option is selected by the co-owners or if all of the co-owners not convicted of the crime cannot agree on one option, then the sale shall be made pursuant to Paragraph (3) of Subsection C of this section."
SECTION 3. Section 66-5-39 NMSA 1978 (being Laws 1978, Chapter 35, Section 261, as amended) is amended to read:
"66-5-39. DRIVING WHILE LICENSE SUSPENDED OR REVOKED--PROVIDING PENALTIES.--
A. Any person who drives a motor vehicle on any public highway of this state at a time when [his] the person's privilege to do so is suspended or revoked and who knows or should have known that [his] the person's license was suspended or revoked is guilty of a misdemeanor and shall be charged with a violation of this section. Upon conviction, the person shall be punished, notwithstanding the provisions of Section 31-18-13 NMSA 1978, by imprisonment for not less than four days or more than three hundred sixty-four days or participation for an equivalent period of time in a certified alternative sentencing program, and there may be imposed in addition a fine of not more than one thousand dollars ($1,000). When a person pays any or all of the cost of participating in a certified alternative sentencing program, the court may apply that payment as a deduction to any fine imposed by the court. Notwithstanding any other provision of law for suspension or deferment of execution of a sentence, if the person's privilege to drive was revoked for driving while under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act, upon conviction under this section, that person shall be punished by imprisonment for not less than seven consecutive days and shall be fined not less than three hundred dollars ($300) or not more than one thousand dollars ($1,000) and the fine and imprisonment shall not be suspended, deferred or taken under advisement. No other disposition by plea of guilty to any other charge in satisfaction of a charge under this section shall be authorized if the person's privilege to drive was revoked for driving while under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act. Any municipal ordinance prohibiting driving with a suspended or revoked license shall provide penalties no less stringent than provided in this section.
B. [In addition to any other penalties imposed pursuant to the provisions of this section] When a person is arrested pursuant to the provisions of this section and the person's privilege to drive was revoked due to a conviction for driving under the influence of intoxicating liquor or drugs or a violation of the Implied Consent Act, the motor vehicle that the person was driving shall be seized and shall be subject to forfeiture pursuant to the provisions of the Forfeiture Act.
C. Except for a person whose license was revoked for driving under the influence of intoxicating liquor or drugs or for a violation of the Implied Consent Act, when a person is convicted pursuant to the provisions of this section or a municipal ordinance that prohibits driving on a suspended or revoked license, the motor vehicle that the person was driving shall be immobilized by an immobilization device for thirty days, unless immobilization of the motor vehicle poses an imminent danger to the health, safety or employment of the convicted person's immediate family or the family of the owner of the motor vehicle. The convicted person shall bear the cost of immobilizing the motor vehicle.
[C.] D. The division, upon receiving a record of the conviction of any person under this section upon a charge of driving a vehicle while the license of the person was suspended, shall extend the period of suspension for an additional like period, and if the conviction was upon a charge of driving while a license was revoked, the division shall not issue a new license for an additional period of one year from the date the person would otherwise have been entitled to apply for a new license."
SECTION 4. A new section of Chapter 66, Article 8 1978 NMSA is enacted to read:
"[NEW MATERIAL] SEIZURE OF MOTOR VEHICLE UPON ARREST OF PERSON PREVIOUSLY CONVICTED OF DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS--FORFEITURE OF VEHICLE.--A law enforcement officer who arrests a person for driving under the influence of intoxicating liquor or drugs shall seize the motor vehicle that the person was driving if the person has previously been convicted of driving under the influence of intoxicating liquor or drugs pursuant to state, federal or tribal law or a municipal ordinance, regardless of whether the person's sentence was suspended or deferred. The vehicle seized shall be subject to forfeiture pursuant to the provisions of the Forfeiture Act."
SECTION 5. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2011.
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