(Sidebar)Loy's forfeiture ordinance incorporates many of the quasi-legal proceedings that are found in many of the city's more detestable law/code enforcement gimmicks and is not surprisingly based on the concept of nuisance abatement. The idea is that if you run a red light, own a crack house, or now - thanks to the New Mexico Supremes - are accused of driving while intoxicated, your property is a nuisance and can be seized and sold with the profit going to the city.
We don't usually agree with the folks over at the American Civil Liberties Union. They're usually trying to strip someone of an explicit right or freedom in favor of their own interpretation of the code of political correctness. In this case, they actually took up for a right explicitly guaranteed by the Constitution and should be commended for their action. Doesn't mean we'll be joining any time soon, but we'll give credit where credit is due.
(End Sidebar)
Of course in an attempt to cover their... uh hind quarters, the ordinance provides for a semblance of due process through a provision for the vehicle owner to appeal the seizure and subsequent forfeiture order by appearing before one of Marty's Mini-Magistrates. Yep, the very same "hearing officers" we've all come to know and loath in the Red Light Scam-era proceedings.
In addition to appearing in the Almighty Alcalde's Kangaroo Court, these "hearings" are deemed "informal and not bound by the technical rules of evidence." Further, "the city hearing officer shall only determine whether the law enforcement officer had probable cause to seize the vehicle. (read the complete ordinance here)[emphasis added]"
PROBABLE CAUSE - A reasonable belief that a person has committed a crime. The test the court of appeals employs to determine whether probable cause existed for purposes of arrest is whether facts and circumstances within the officer's knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime. U.S. v. Puerta, 982 F.2d 1297, 1300 (9th Cir. 1992). In terms of seizure of items, probable cause merely requires that the facts available to the officer warrants a "man of reasonable caution" to conclude that certain items may be contraband or stolen property or useful as evidence of a crime. U.S. v. Dunn, 946 F.2d 615, 619 (9th Cir. 1991), cert. Denied, 112 S. Ct. 401 (1992).In other words, an officer can impose punishment (there's no other way to look at loosing thousands of dollars through a vehicle forfeiture) simply because a "prudent person" would believe that a "suspect has committed, is committing, or is about to commit a crime." This is precisely the type of limitless governmental power that the framers of the Constitution were worried about.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. [emphasis added]You might want to read the italicized portion again... "nor be deprived of life, liberty, or property, without due process of law." The Constitution doesn't give an exception for nuisance abatement or driving under the influence. Put simply, punishment cannot be meted out by government until after you are found guilty of an offense - until after you receive due process. It's simply laughable to believe that at the time of an arrest the accused has received any form of due process worthy of the name.
For those of you who were worried about providing access to U.S. Courts to unlawful combatants (a.k.a. terrorists) held in Guantanamo (who were not afforded the protection of our Constitution before their capture and certainly wouldn't extend similar protections to anyone under any circumstances), our city has passed an ordinance that deprives the accused of property upon issuance of an official accusation. Hell, under this ordinance it's not even important whether you're guilty or innocent. All that's required for you to be deprived of your vehicle - for you to receive punishment - is for an officer to have probable cause to accuse you!
(Sidebar)Granted, DWI is a serious problem in this state. However, it's hard to justify denying a fundamental and explicit Constitutional right even when addressing a serious problem. If the city wants to book the vehicle into evidence and return the vehicle to the owner upon a finding of not guilty or a case dismissal... fine, as long as the city bears the cost of storage and liability for damage. Stopping DWI should not come at the price of the forfeiture of our guaranteed Constitutional rights.
There's also an argument that the City of Albuquerque doesn't have the authority to seize anything valued over $1,000. New Mexico Statute 3-17-1 limits convictions under a municipal code for DWI to not more than $1,000 and/or 364 days in jail (read it here). These days, even the most heinous junker is worth a thousand bucks. As a result, forfeiture of most vehicles would exceed the maximum penalty allowed under state law.
(End Sidebar)
----- Post Script-----
Just in case we weren't clear above, we have no problem with the seizure of property for evidentiary purposes. What we have a problem with is forfeiture prior to adjudication. An administrative hearing officer cannot be considered impartial as he/she is employed by the executive branch of government. The hearing process is not bound to the rules of evidence and a hearing only determines probable cause not guilt or innocence.
Comparing seizing a vehicle to the seizure of illegal substances is an invalid comparison because in most cases the property in question was legally obtained and is in all cases legal to possess. Law enforcement regularly seize property associated with criminal investigations. Property is returned to its rightful owner following adjudication except in the case of illegal substances which are destroyed or upon conviction whereupon seized property is routinely deemed forfeit.
There's absolutely no justification for a misdemeanor offense to circumvent the Fifth Amendment. Property involved in DWI cases should be treated exactly like evidence from any other crime.
28 comments:
Under the eye's retarded logic, if someone has drugs on them the police cannot seize it until the defendant is convicted of a crime.
The DWI seizure program provides 2 layers of due process protection. First, there is a hearing with a city hearing officer within weeks of the seizure to determine if the vehcile was involved in a DWI. Almost all the cases are resolved without a hearing, as the car is given to the OWNER (not the defendant, because the case is brought against the car)by an agreement to not be involved in further DWIs.
If a hearing officer determines there was PC (never quote a 9th circuit opinion when you are talking about the 10th circuit-also why quote the feds when there are tons of state cases to work with) at a hearing, then the case moves to State District Court. There, the city is seeking title to the vehicle. So, the driver gets 2 bites at the apple, the most important of which is decided by a judge.
Now the eye, rather clumsily, would like the city to wait until the person is convicted then use that conviction against them. Well, if the eye knows of a way that the city can get past the evidentiary bar against using guilty pleas, see 11-410, it should let the city know.
So the only alternatives are seize the car after the conviction (which I think goes against the eye's libertarian beliefs-because at a criminal trial the defendant is getting the due process, but that doesn't mean the driver is the defendant) or have two trials, hope if the owner is found guilty he gives the city the car, and then hope the city can sell the car.
If the eye really has a problem with police over-using their discretion, then please point to a case where there was a bad seizure and the driver was not drunk. Otherwise, leave the hypothetical constitutional law issues to the lawyers and judges, because your analysis is wrong.
Hmmmm....Let me think.....Have there been any cases where the APD have over-reached on their authority???? Any recent ones, perhaps???? Let's for the moment substitute a professional video camera for a automobile....Does it ring a bell now??
The above poster is either a member of MADD with a Prohibionist agenda or a complete moron as it relates to Constitutional Rights. Or possibly Craig Loy himself, trying to put lipstick on this pig!
I agree with the Eye that this is plainly Unconstitutional but I don't think his complaint quite goes far enough. DWI/DUI hysteria has caused legislatures all over the country to ignore the Bill of rights in multiple ways, most notably by forcing suspects to testify against themselves (via breathalyzers and blood tests.)
DWI/DUI has become such a boogeyman in the American psyche that we ignore that driving while talking on a cellular phone (whether with the handset or with a hands-free kit, it doesn't make a difference) is actually much more impairing than driving with a .08 or even .10 blood alcohol level, yet half the people you see on the road are doing it at any given time and the police don't do anything about it (and largely do it themselves as well.)
To the person above comparing cars to drugs: I think maybe your analogy suffers somewhat when you stop to consider the fact that drugs are illegal to possess and cars are not.
Additionally:
"Now the eye, rather clumsily, would like the city to wait until the person is convicted then use that conviction against them."
Yes, that dastardly Eye, being in favor of due process of law and supporting our Constitutional right to be innocent until proven guilty. What a fascist commie pinko.
The way DWI/DUI is treated as guilty until proven innocent (and not even then in some cases) is terrifying for our Republic. What will be the next big scary minor crime that *may* but will *not necessarily* cause someone else pain and suffering that we'll start applying these rules to? After all, driving at all (particularly by the Albuquerque driving skills standard) *may* but will *not necessarily* cause someone's maiming or death.
I couldn't agree more. Some like to follow their interpretation of law rather than what a law actually says. Last month there was a split opinion in the Supreme Court regarding the Second Amendment and whether it is lawful to bear arms. Even though it was a close decision, I think the majority understood the words written and made the right ruling. Justice Antonin Scalia argued that the Constitution does not permit the absolute prohibition of handguns held and used for self-defense in the home. Even though the Second Amendment says nothing about self-defense in the home, we as people are guaranteed the right to keep and bear arms. Here is what the Second Amendment says: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." We all fall short, and at times are narrow-minded to see only our own analysis of law, but at the very least, there is always a standard we can re-examine without the aid of an interpreter, and by reading simple words, we can correct our imperfect, and sometimes poor understanding of what is being said!
The first poster on this blog is probably a member of the communist party, and a Nazi too. Any United States citizen has access to the laws of this nation and has the freedom to read, and understand it without the help of a commissioned, or appointed lawyer! If you don’t like what is written, Congress is able to amend it if needed. However, the law doesn’t give us that privilege to change it even when we think we should have the power to do so.
The existence of the National Institute of Alcoholism and Alcohol Abuse (NIAAA), the federal Center for Substance Abuse Prevention (CSAP), and state alcohol abuse agencies has been beneficial in many ways. But it has also "engendered bureaucratic incentive for convincing the people and members of Congress (who appropriate funds) of the perils and dangers of contemporary alcohol problems" (Mendelson and Mello, 1985, pp. 98-99). The welfare and survival of the alcohol agencies depends largely on promoting the widespread belief that alcohol problems are enormous, are growing, and are a serious burden on the economy.
While such agencies typically state as fact that alcohol is responsible for about 40% of all traffic deaths in the United States, this statistic has no solid foundation. That figure typically includes all traffic fatalities that involve anyone who has consumed any alcohol or is believed to have consumed any alcohol. However, the proportion of all drivers involved in fatal accidents who are known to be intoxicated according is about 15%, based on actual traffic accident reports of the National Highway Traffic Safety Administration. Similarly, estimates of the number of auto accidents that might involve alcohol in any way become transformed into statistics on the number of accidents that are actually caused by drunk drivers (Zylman, 1974, p. 64). This, in spite of estimates that "about one half of the fatal road accidents involving a drunk driver would have occurred even if all drivers had a zero blood alcohol level" (Room, 1985, p. 12).
The noble experiment of national prohibition began with the optimistic belief of temperance workers that it would bring about a dramatic reduction in the nation's poverty, crime, and other social problems. Unfortunately, it was not to be. To the contrary, prohibition brought about a dramatic increase in organized crime, the extensive consumption of dangerous bootleg alcohol, widespread corruption of public officials, general disrespect for law, and an increase in the rapid and excessive consumption alcohol beverages. Recognizing the disastrous problems caused by prohibition, the American people called for its repeal by a resounding three to one margin.
But repeal did not eliminate support for prohibition. A substantial minority of the population maintained its strongly anti-alcohol sentiments and many tried to use World War II as an excuse to re-impose prohibition to whatever degree possible.
While its goal was largely defeated, the temperance movement continued to exist and promote its cause. However, it was largely dormant for several decades. By 1980, temperance sentiment re-emerged in a new guise. Variously referred to as the new temperance, the neo-dry, the neo-prohibition, and similar terms, this most recent incarnation has modified its ideology and political strategy.
Many states and municipalities still use roadblocks. But they use them under the guise of looking for drunk drivers, then ticket motorists for a variety of infractions, only a small percentage of which involve driving while intoxicated. In other words, they've become revenue generators. A newspaper account of one recent North Carolina checkpoint, for example, found officers ticketing motorists for more than 45 infractions. Only three involved driving under the influence. That's actually high. Nationwide, less than .02 percent of motorists stopped at roadblocks are arrested for DWI.
More than once I have responded to an accident where a drunk driver was involved but not at fault; but hit by a sober Albuquerque driver. Scary that many of the long time officers I talk with have seen the same,,, our drivers are horrible, even sober. That said, there is no real constitutional basis to PERMANENTLY take someones property based on an allegation OF wrong doing.
The Supreme Court gave its OK to the road blocks in 1992, despite conceding that they may violate the Fourth Amendment. Former Chief Justice William Rehnquist wrote that the threat to public health posed by drunk drivers was reason enough to set aside concerns about searches without probable cause. Given that they're usually publicized, the primary effect of these roadblocks is to deter social drinkers. The hard-drinkers, the real threats to highway safety, know to avoid them.
Sure enough, after former President Clinton signed .08 into law in 2000, drunk driving fatalities began to inch upward again — after two decades of decline — suggesting that the real drunk drivers were successfully avoiding the roadblocks. Thankfully, fatalities fell again last year, but that hardly proves MADD correct — deaths continued to go up in those states that employ sobriety roadblocks. The corresponding fall in fatalities in states that refuse to use the roadblocks more than made up the difference, suggesting that, freed from roadblock duty, law enforcement was able to work more effectively to catch drunk drivers.
No one denies that some drinkers of adult libations habitually over consume, with tragic consequences for themselves, their families, and innocents unfortunate enough to cross their weaving path on the highway.
Drinking alcohol is not, as the New Prohibitionists assert, all bad. It is hard to name a freedom that carries no risk, or a product that human irresponsibility has not at some point turned into a weapon. Perspective is what balances the equation.
MADD and its allies oppose any “drinking and driving.” That certainly is their right. Yet the traditional role of alcohol as a social lubricant and host to conviviality cannot be denied. “The sun looks down on nothing half so good,” wrote C.S. Lewis, “as a household laughing together over a meal, or two friends talking over a pint of beer.” Today, tens of millions of Americans value those same experiences. They find camaraderie, cement friendship, and reaffirm love in restaurants where alcohol helps confirm these vital human ceremonies. Many must use a car to get there, and to return home. How great is the risk?
For the vast majority of these citizens—the responsible majority, who know when to stop—the risk is small. To eliminate it totally removes these people’s right to publicly celebrate the most fundamental human connections. The risk that such celebrations create is no more inordinate than that created when we allow drivers to go 65 mph on an interstate, knowing full well that a 25 mph cap would be safer. In a free society, the question is one of balancing competing goods.
The Prohibitionist—the Absolutist—impulse is always with us. Once its spokesmen alleged that drinkers might explode if they stood too close to an open flame. Today they charge that drinkers, however prudent and careful in consumption, are wreaking slaughter on other motorists and pedestrians. Folly then, folly now.
What’s needed is a new alliance of reason—a league of hardheaded realists that would preserve revered social rituals by tempering the New Temperance, yet champion safety by relentlessly targeting the reckless few.
To fight with each other while this menace barrels past, claiming new victims is to exacerbate the problem. It is not to behave with sobriety.
To all the people who can't or won't read, the hearing officer does not decide whether the city gets to have the car. The hearing officer only decides whether there is probable cause to continue the possession of the car while the city seeks its forfeiture.
The forfeiture hearing is done at the district court where the rules of evidence apply, where the city has a preponderance burden, and where the owner gets to argue (again) that he/she should get the car.
If you don't mention this , you misleading your readers and writing half the truth.
"What we have a problem with is forfeiture prior to adjudication."
The hearing office does not forfeit cars. It provides a pre-deprivation hearing prior to a civil complaint being filed in the district court, where a judge (elected by the public) makes the decision.
You don't mention this.
Possessing illegal drugs is just as illegal as driving a car drunk. What's the difference?
Bear in mind that MADD is now actively pushing to lower the legal limit to .04, which means that you will be considered legally drunk for two hours after drinking only one beer or glass of wine (or even cough syrup or other such alcohol-heavy products.)
The founder of MADD quit the organization several years ago when it was hijacked by neo-prohibitionists and transformed into a disguised temperance movement. Since then MADD has managed to insinuate itself into all levels of government and receives funding from such things as the sales of these same seized vehicles as well as direct taxpayer monies.
Until the day when politicians are held (by police) to the same standards of DUI as normal citizens are this is not going to stop. In recent years we've seen a crackdown on police letting firefighters, cops, and the rest of the favored few go after a DUI stop but city and government bigwigs are still being released (particularly Marty Chavez on at least two occasions in the last two years that I'm aware of.)
Bill Richardson avoids DUI by having a state trooper drive him around. I wish the rest of us had that option.
I'm constantly astonished that our state legislators are confused as to why we have higher than average DUI rates. Here are the two main reasons:
1) Severely limited liquor licenses - Have caused bars to concentrate in a few selected areas (such as downtown) and very few neighborhoods have local pubs they can walk to.
2) Complete lack of public transportation - Even the summer schedule for the Rapid Ride ends before the bars actually let out, and they stop at 9pm in the winter.
Both of these are exacerbated by Marty's encouragement of sprawl development which leads to neighborhoods ten miles away from the closest bar with no usable bus/other public transport routes even during the daytime, let alone at night.
I think taking the cars from drunk drivers is a fantastic idea. For years, I have had the belief that drunk drivers should be charged with Agg. Assault with a deadly weapon. I know those charges would be tossed in a heartbeat, so this is the next best thing. The City should be applauded for making people think about the consequences of driving while intoxicated. The threat of jail time for vehicular manslaughter has never been a deterant, probably because of liberal judges, giving people the minimum sentence and still holding a strong belief that they can be rehabilitated with love and kindness is the norm in this state. (In the Liberal mindset, maybe the think throwing a drunk into jail, while they go through withdrawals is cruel and unusual punishment.)
But the City is wrong in taking the car before someone has been found guilty. As DWI laws become stiffer and the threat of interlock or seizure, the "Drunks" are getting smarter. I have arrested many people for DWI, who are repeat offenders, that have gone out and bought $800 cars as their DWI car. NO interlock, no insurance and pretty much a safety hazard. If this car is seized, they go out and buy another $800 car. I fear that as the City tries to do the right thing, their effort will fall short. The city won't be seizing $40,000 cars that they will sell for a pretty penny. They will be be getting 1/2 dollar on an $800 safety hazard that they will be putting back on the road.
Here's a solution...make driving an automobile while under the influence of drugs or alcohol a felony. While we're at it make domestic violence a felony also. You will see folks leave Albuquerque and New Mexico in packs...to a state that has similiar weak laws that we currently have.
The problem here is not that taking drunks off the road is the right thing to do, it is that the means the city, and APD do it is un-constitutional. To me, that too is breaking the law and just as bad!
Hey ... I got it! .... For every leader or cop who breaks constitutional law, we should seize their automobiles or squad cars as punishment. We could sell them at an auction, and donate the procedes to the homeless or needy (They could use the help)! Maybe then everyone would be on the same page. We can set up a special phone number that citizens can call when they know of a violation of law. Everyone could walk around not trusting anyone (like we all seem to be doing now).
Hmmm, lets see: if someone shoots someone with a gun then that weapon gets taken (seized-as evidence of the crime) and placed into evidence until trial- and if said person is found quilty the firearm is destroyed or converted to Dept. use. Note* firearms and other weapons use to be auctioned off in order to raise money to further law enforcement initiatives but some liberals put an end to that.
If someone drives and demonstrates to be legally impaired (DWI)the weapon/vehicle is then seized and placed into impound (evidence-to show subject was indeed driving said vehicle).
I have been shown stats time after time that shows the average person caught for their first DWI on average has done the same offense/crime on average of 50 times before being caught for the first time.
Statewide we see repetitive DWI offenses committed by the same DWI offenders -time and time again, all done in the same vehicle before they even go to court on the first or second or third....DWI.
What makes you think that seizing a vehicle during the aledged crime of DWI is unconstitutional if done for evidentiary purposes in order to prove the act of driving while intoxicated??? Would you not want the cops to seize the firearm that shot you in the face, if you were to become an unlucky victim?
What about then the person driving while under the influence that wipes out your family or someone elses. I guess we should let them have there car back if it is still operable so that they can enjoy the instrument used to committ their crime(s).......
The one person who killed a family by not knowing when to stop drinking does not represent the larger percentage of folks who still like to enjoy a drink outside of their home, & know when to stop. The presumed level of intoxication is not the same for everyone, except for the ignorant perception by some (including some police officers, leaders, & law givers) ... A gun is normally kept to inflict harm (you probably wear one for the same reason and you probably seize a gun for your own protection, not mine. I would probably do the same if I were threatened and in a similar circumstance. I'm not a law officer, nor do I own or carry a gun) ... a vehicle is purchased for transportation (not as a weapon). An accident can happen at any time and take someone’s life whether alcohol is involved, or not (It’s an ACCIDENT, and we don't seize anyone's possessions in such a scenario!). This is a constitutional matter ... Obviously, if you seize a true criminal's vehicle, they manage to acquire another, and another again anyway ... They seem to repeat their crimes ... hmmmm ... It appears that someone might have dropped the ball and seem to be trying to catch the wind ... Perhaps spinning wheels and getting nowhere fast ... There has to be a better way to address the DWI/DUI question and stop the police harassment of "non-drunks" (drinkers & drunks are not the same as each other just like weapons and vehicles are not the same)... Also, whoever had the idea that closing drive up package windows to help stop the drinking & driving "problem" now know that it did not help at all ... What the current legislation offers to try and resolve this issue is not working!
The ordinance is poorly written. Would love to see its defenders actually try and defend it for real, keeping in mind that Albuquerque is still located in the U.S.
Follow the eye's link above and actually read the ordinance.
Once again, you have more rights if you run a whorehouse in NM than drive in Albuquerque, the abatement of which (the whorehouse, not ABQ) is explicitly defined in state law and I find it instructive:
http://law.justia.com/newmexico/codes/nmrc/jd_30-8-81-c66b.html
note the differences between convictions and arrests in the state law versus the ordinance.
Also, no one is pretending the vehicle is evidence, that's a non sequitur. Unless, perhaps, it's equipped with an interlock unit that could prove the innocence of the accused. Whatever happened to those anyway, and what necessitated this property grab?
One day you may hear, "You sure got a real purdy car there, Mister...step out of the vehicle."
In that instant, you'll "get it."
Nice excuses for illegal and potentially deadly behavior. Funny how so many are quick to pick apart the laws until they themselves (or family/friends) are victimized. Then they want to toss all the laws aside and kill the offender.
Don't frigg'n drive when you're impaired.
"Nice excuses for illegal and potentially deadly behavior." You are my hero! Very well put.
"potential" is the working verb ... you are no hero of mine .. you assume too much!
I would rather sleep and drive ..... then who's car will you steal?
The DWI seizure program provides 2 layers of due process protection. First, there is a hearing with a city hearing officer within weeks of the seizure to determine if the vehcile was involved in a DWI. Almost all the cases are resolved without a hearing, as the car is given to the OWNER (not the defendant, because the case is brought against the car)by an agreement to not be involved in further DWIs.
Max
Dui In California
The one person who killed a family by not knowing when to stop drinking does not represent the larger percentage of folks who still like to enjoy a drink outside of their home, & know when to stop. The presumed level of intoxication is not the same for everyone, except for the ignorant perception by some (including some police officers, leaders, & law givers) ... A gun is normally kept to inflict harm (you probably wear one for the same reason and you probably seize a gun for your own protection, not mine. I would probably do the same if I were threatened and in a similar circumstance. I'm not a law officer, nor do I own or carry a gun) ... a vehicle is purchased for transportation (not as a weapon). An accident can happen at any time and take someone’s life whether alcohol is involve.
Max
Dui In California
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