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