(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.
