HOUSE BILL 316
56th legislature - STATE OF NEW MEXICO - first session, 2023
Meredith A. Dixon and Art De La Cruz and Mark Duncan
and Martin Hickey and Alan T. Martinez
RELATING TO FORFEITURE; ALLOWING CERTAIN SEIZURES OF PROPERTY BY A LAW ENFORCEMENT AGENCY THAT PARTICIPATES IN FEDERAL EQUITABLE SHARING PROGRAMS.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. Section 31-27-2 NMSA 1978 (being Laws 2002, Chapter 4, Section 2, as amended) is amended to read:
"31-27-2. PURPOSE OF ACT--APPLICABILITY--NO ADDITIONAL REMEDIES.--
A. The purposes of the Forfeiture Act are to:
(1) make uniform the standards and procedures for the seizure and forfeiture of property subject to forfeiture;
(2) protect the constitutional rights of persons whose property is subject to forfeiture and of innocent owners holding interests in property subject to forfeiture;
(3) deter criminal activity by reducing its economic incentives;
(4) increase the pecuniary loss from criminal activity;
(5) protect against the wrongful forfeiture of property; and
(6) ensure that only criminal forfeiture is allowed in this state and only pursuant to state law.
B. Except as provided in Section 31-27-11 NMSA 1978, the Forfeiture Act:
(1) applies to all seizures, forfeitures and dispositions of property subject to forfeiture pursuant to laws that specifically apply the Forfeiture Act in this state; and
(2) does not apply to:
(a) contraband, which is subject to seizure pursuant to applicable state laws, but is not subject to forfeiture pursuant to the Forfeiture Act;
(b) animals that are subject to seizure, impoundment, alteration, permanent removal from custody or destruction for animal welfare, public health and safety or compliance and enforcement purposes pursuant to applicable state and local laws;
(c) real property or personal property that is located on that real property that is subject to destruction pursuant to state and local laws to protect public health and safety; and
(d) forfeiture that results from a lien for charges or assessments that are provided for or fixed by state or local laws."
SECTION 2. Section 31-27-7 NMSA 1978 (being Laws 2002, Chapter 4, Section 7, as amended) is amended to read:
"31-27-7. TITLE TO SEIZED PROPERTY--DISPOSITION OF FORFEITED PROPERTY AND ABANDONED PROPERTY--PROCEEDS.--
A. Except as provided in Section 31-27-11 NMSA 1978 when a law enforcement agency in New Mexico seizes property for a federal law enforcement authority as a participant in a federal equitable sharing program, the state acquires provisional title to seized property at the time the property was used or acquired in connection with an offense that subjects the property to forfeiture. Provisional title authorizes the state to hold and protect the property. Title to the property shall vest with the state when a trier of fact renders a final forfeiture verdict and the title relates back to the time when the state acquired provisional title; provided that the title is not subject to claims by third parties that are adjudicated pursuant to the Forfeiture Act.
B. Unless possession of the property is illegal or a different disposition is specifically provided for by law and except as provided in this section, forfeited property that is not currency shall be delivered along with any abandoned property to the state treasurer or the state treasurer's designee for disposition at a public auction. Forfeited currency and all proceeds of the sale of forfeited or abandoned property shall be distributed by the state treasurer as follows:
(1) first, to reimburse the reasonable expenses related to the storage, protection and transfer of the property incurred by a law enforcement agency or the state treasurer;
(2) second, to pay any reasonable expenses incurred to dispose of the property by a law enforcement agency or the state treasurer; and
(3) third, any remaining balance shall be deposited in the general fund.
C. Except as provided in Section 31-27-11 NMSA 1978, proceeds from the sale of forfeited property received by the state from another jurisdiction shall be deposited in the general fund.
D. A law enforcement agency or public body that receives reimbursement pursuant to Subsection B of this section shall inform the state auditor of that fact at the time of the agency's or body's annual audit.
E. A forfeited property interest is subject to the interest of a secured party unless, in the forfeiture proceeding, the state proves by clear and convincing evidence that the secured party had actual knowledge of the crime that relates to the seizure of the property.
F. Abandoned property shall be disposed of in the same manner as provided in Subsection B of this section.
G. Property subject to forfeiture that is in a law enforcement agency's possession becomes abandoned property and may be disposed of as such without a conviction if:
(1) there is no innocent owner; and
(2) the criminal prosecution of the owner of the seized property cannot proceed because for a period in excess of one year and one day:
(a) a bench warrant has been pending as a result of the defendant failing to appear; or
(b) the owner [fugitates] was fugitated."
SECTION 3. Section 31-27-11 NMSA 1978 (being Laws 2015, Chapter 152, Section 13) is amended to read:
"31-27-11. TRANSFER OF FORFEITABLE PROPERTY TO THE FEDERAL GOVERNMENT--EXPENDITURE OF MONEY DISBURSED BY FEDERAL EQUITABLE SHARING PROGRAMS.--
A. A law enforcement agency shall not directly or indirectly transfer seized property to a federal law enforcement authority or other federal agency unless:
(1) the value of the seized property exceeds fifty thousand dollars ($50,000), excluding the potential value of the sale of contraband; and
[(2) the law enforcement agency determines that the criminal conduct that gave rise to the seizure is interstate in nature and sufficiently complex to justify the transfer of the property; or
(3) the seized property may only be forfeited under federal law]
(2) the federal government has filed criminal charges against the owner of the seized property, there is no innocent owner and the seized property is required as evidence in the federal prosecution.
B. [The] A law enforcement agency shall not transfer property to the federal government if the transfer would circumvent the protections of the Forfeiture Act that would otherwise be available to a putative interest holder in the property. A law enforcement agency may share information and cooperate with the federal government.
C. A law enforcement agency may participate in federal equitable sharing programs as authorized by Section 29-1-10.1 NMSA 1978 and allowed in this section; provided that no equitable sharing money shall be accepted by the law enforcement agency unless the owner of the property is convicted in federal court.
D. A law enforcement agency participating in federal equitable sharing programs shall spend money received from a program on drug prevention or awareness programs, including costs associated with conducting law enforcement agency awareness programs."
SECTION 4. APPLICABILITY.--The provisions of this act apply to seized and disclaimed property in the possession of a law enforcement agency or the state treasurer on and after the effective date of this act.
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