Posted to FEAR-List by John Paff, 3-11-95
Following is the text of sections 1 through 12 and section 23 of a forfeiture
reform bill pending in the New Mexico state legislature.
I have not included sections 13 through 22 of the bill for the sake
of brevity. Each of those 10 sections addresses an existing state forfeiture
statute, as shown on the following table:
Section Statute No. Subject Matter
13 17-2.20.1 Firearms
14 18-6-9.3 Cultural Property
15 30-3-8.1 Shooting from motor vehicle
16 30-16B-9 Unauthorized Recording Act
17 30-19-10 Gambling Devices
18 30-31-35 Controlled Dangerous Substances
19 30-31A-10 Imitation CD Substances
20 30-42-4 State RICO statute
21 30-45-7 Computer Crimes Act
22 60-7A-4.1 Alcoholic Beverages
In each case, the existing forfeiture provisions are deleted and replaced with a mandate subjecting seizures and forfeiture under those acts to the "Forfeiture Act" below.
SENATE JUDICIARY COMMITTEE SUBSTITUTE FOR
SENATE BILL 521
42ND LEGISLATURE - STATE OF NEW MEXICO - FIRST SESSION, 1995
AN ACT
RELATING TO FORFEITURE OF PROPERTY; ENACTING THE FORFEITURE ACT;
AMENDING AND ENACTING SECTIONS OF THE NMSA 1978; MAKING AN
APPROPRIATION.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
Section 1. A new section of the Criminal Code is enacted to read:
SHORT TITLE.--Sections 1 through 12 of this act may be cited
as the "Forfeiture Act".
Section 2. A new section of the Criminal code is enacted to read:
PURPOSE OF ACT.--The purpose of the Forfeiture Act is to provide uniform standards and procedures for law enforcement officers and agencies for the seizure and forfeiture of property used or intended to be used in the commission of a crime.
Section 3. A new section of the Criminal Code is enacted to read:
DEFINITIONS.--As used in the Forfeiture Act:
A. "conviction" means a final adjudication of guilt by a district or magistrate court or, if the court decision is appealed, a final adjudication of guilt by an appellate court;
B. "crime" means an offense punishable by imprisonment for one year or more, a violation of laws or regulations regarding hunting or fishing or a violation of laws regarding gambling;
C. "law enforcement officer" means a state or municipal police officer, county sheriff, deputy sheriff, conservation officer, motor transportation enforcement officer or other state employee authorized by state law to enforce criminal statutes; provided that the term does not include correctional officers;
D. "owner" means an individual who possesses a legal or equitable ownership in property, or if title to the property is held in the name of a partnership, trust, corporation or other legal entity, an individual who possesses a substantial legal or equitable ownership interest in the partnership, trust, corporation or other legal entity; and
E. "property" means tangible or intangible personal property, real property or an interest in tangible or intangible personal property or real property.
Section 4. A new section of the Criminal Code is enacted to read:
FORFEITURE REQUIREMENTS.--
A. A judgment for the forfeiture of property shall be entered only upon:
(1) conviction of an owner of the property for a crime related to the forfeiture; provided that a forfeiture proceeding may be commenced prior to the conclusion of the criminal prosecution in the trial court; and
(2) proof by clear and convincing evidence that the property is forfeitable under state law and that a person convicted of a crime related to the forfeiture is an owner of the property.
B. The value of the property forfeited shall not unreasonably exceed the pecuniary gain derived or sought to be derived by the crime, the pecuniary loss caused or sought to be caused by the crime or the value of the convicted owner's interest in the property.
Section 5. A new section of the Criminal Code is enacted to read:
SEIZURE--COURT ORDER--EXCEPTIONS.--
A. Property subject to forfeiture may be seized by a law enforcement officer upon an order issued by the district court having jurisdiction.
B. The court may issue an order pursuant to Subsection A of this section if it determines that:
(1) there is a substantial probability that the state will prevail on the issue of forfeiture and that failure to enter the order will result in the property being destroyed, removed from the jurisdiction of the court or otherwise made unavailable for forfeiture; and
(2) the need to preserve the availability of the property through the entry of the requested order outweighs the hardship to a party of interest.
C. A seizure of property other than a residence or business may be made without a court order when:
(1) the seizure is incident to an arrest or a search pursuant to a search warrant or an inspection pursuant to an administrative inspection warrant;
(2) the property subject to seizure has been the subject of a prior judgment in favor of the state or a political subdivision in A criminal injunction or forfeiture proceeding;
(3) there is probable cause to believe that the property is directly or indirectly dangerous to health or safety; or
(4) there is probable cause to believe that the property is forfeitable under state law and that the delay occasioned by the need to secure an order will frustrate the seizure; provided, however, that an officer having made a seizure pursuant to this paragraph shall, within ten days of the seizure, apply for an order pursuant to Subsection A of this section; and provided further that the property shall be released to the owner immediately if the order is denied. The officer making the seizure shall make a reasonable effort to notify the person from whom the property was seized of the location, date and time of the hearing on the application for an order allowing seizure, so the person has a reasonable opportunity to appear at the hearing and oppose the order.
D. The seizure of a residence or business shall occur only after a pre-seizure hearing, with notice provided in accordance with the provisions of Section 6 of the Forfeiture Act.
E. The owner shall be given a receipt whenever practicable for the property seized.
Section 6. A new section of the Criminal Code is enacted to read:
SEIZURE--NOTICE--CLAIMS.--
A. All forfeiture proceedings shall be brought in the name of the state. All forfeiture proceedings shall be initiated in district court in the county in which the property was seized; provided, that for good cause shown upon application of any interested party, the court may consolidate proceedings filed in different counties or allow transfer of proceedings to another county.
B. All forfeiture proceedings shall be initiated by the issuance of a notice of pending forfeiture issued by the prosecuting attorney. The notice shall be issued within twenty days from the date the property was seized. The notice shall include a description of the property sought to be forfeited, date and place of the seizure of the property, the name and address of the seizing agency, the reason the property is alleged to be forfeitable, a summary of the procedures and the procedural rights applicable to the forfeiture action and a notification alerting a trustee of the state's obligations under the Forfeiture Act.
C. The notice shall be given to the person from whom the property was seized and to each owner and secured interest holder and is effective upon personal service.
D. If personal service of the notice is not possible after good-faith attempts at all known residences and places of business, the seizing law enforcement agency shall publish a notice of seizure, including a list of seized property, in five consecutive editions of a newspaper of general circulation in the county in which the property has been seized. The notice shall include a statement of the rights of an owner to claim return of the property.
E. Any person claiming seized property shall file with the appropriate law enforcement agency a claim stating his interest in the property. All claims shall be filed within sixty days of the date of personal service on the claimant or, if personal service was not effected, within sixty days of the last date of publication.
F. Within twenty days of receipt by a law enforcement agency of any claim to property, a complaint seeking forfeiture of the property shall be filed in district court and copies of the complaint shall be served on all claimants. If additional claims to the property are made in a timely manner after the complaint is filed, those additional claimants shall be made parties to the action by amendment of the complaint. The Rules of Civil Procedure for the District Courts shall apply to all forfeiture proceedings. The district court shall determine the extent and priority of interest for all claimants to property.
G. No bond of any kind shall be required as a prerequisite to making a claim for the return of seized property.
H. Reasonable attorneys' fees and costs shall be awarded to a claimant who prevails in a forfeiture proceeding. The attorneys' fees and costs shall be paid by the state.
I. If there is opposition to the forfeiture, the claimant shall have the right to a jury trial in determining the propriety of a forfeiture of any property valued in excess of one thousand dollars $1,000.
J. If the owner of the seized property is financially unable to obtain representation of counsel, the court may appoint appropriate counsel to represent that person with respect to the claim. The court shall set compensation for that representation as appropriate. Compensation for appointed counsel shall be paid by the state.
K. The district court shall file a decision regarding a forfeiture complaint within sixty days of the filing of an answer by a claimant or, if there is more than one claimant, within sixty days of the filing of an answer by the last claimant. The sixty-day time limitation may be extended by a consent of the parties or by the district court for good cause shown. Good cause includes the pendency of related criminal proceedings. Upon agreement of the parties, the court may render a decision regarding whether, and to what extent, the property is forfeitable, prior to the time that related criminal proceedings become final. When related criminal proceedings become final, a final order regarding the forfeiture action shall be entered.
L. When no claims to property are filed in a timely manner, the property shall be forfeited. Forfeited property, if it is not currency, shall be sold or otherwise disposed with in accordance with law, and all sale proceeds and forfeited currency shall be deposited in the general fund or, if forfeited under Chapter 17, the proceeds shall be deposited in the game protection fund in an amount equal to the amount expended from the game protection fund to prosecute the case, and the case, and the surplus shall be deposited in the general fund. Notwithstanding the provisions of this subsection, proceeds from the sale of forfeited property or forfeited currency shall be applied first as restitution to or on behalf of actual victims of the criminal acts related to the forfeiture proceedings.
Section 7. A new section of the Criminal Code is enacted to read:
RETURN OF PROPERTY TO NONDEFENDANT.--If the ownership interest of a
person convicted for a crime related to the seizure of property cannot
be proved by clear and convincing evidence, the court shall order the property
returned to its claimants.
Section 8. A new section of the Criminal Code is enacted to read:
REAL PROPERTY AND MOTOR VEHICLES--TITLE SEARCH--NOTICE.--
A. In addition to the procedures set forth in Section 6 of the Forfeiture Act, when the seized property is real property or a motor vehicle, the seizing law enforcement agency shall perform a title search on the property. Subsequent to the title search, the seizing law enforcement agency shall give a notice of seizure as provided in Section 6 of the Forfeiture Act to all persons whom the agency knows or reasonably should know to have an interest in the property.
B. When the seizing law enforcement agency determines that the seized real property or motor vehicle does not belong to a person charged with a crime related to the seizure of the property or motor vehicle, the agency shall return the real property or motor vehicle to the owner of the property.
Section 9. A new section of the Criminal Code is enacted to read:
ACTIONS--TIME LIMITS--BURDEN OF PROOF.--
A. No action to forfeit property shall be brought more than one year from the date of the conviction of a person for a crime related to the proposed forfeiture of the property.
B. The burden of proof is on the prosecution to establish, by clear and convincing evidence, that the property is subject to forfeiture.
Section 10. A new section of the Criminal Code is enacted to read:
PROPERTY IMMUNE FROM FORFEITURE--EXCEPTION.--
A. No property shall be forfeited under the provisions of the Forfeiture Act to the extent of the interest of any owner or lienholder who is not convicted of a crime related to the forfeiture or by reason of a criminal act committed without the knowledge or consent of that owner or lienholder.
B. No property shall be forfeited that has been paid or pledged as bona fide attorneys' fees.
C. Notwithstanding other provisions of this section, if the court determines that property was transferred by the owner or otherwise disposed of to circumvent the provisions of the Forfeiture Act or other state law that provides for forfeiture or limits use or disposal of property, that property shall be subject to forfeiture as if the person convicted of the crime were the sole owner.
Section 11. A new section of the Criminal Code is enacted to read:
SAFEKEEPING OF SEIZED PROPERTY PRIOR TO FORFEITURE--RETURN TO
DEFENDANT.--
A. All currency seized pursuant to the provisions of the Forfeiture Act shall be remitted to the state treasurer or the clerk of the court for deposit in an interest- bearing trust account.
B. Other property not required by state or federal law to be destroyed may be:
(1) placed under seal;
(2) removed to a place designated by the law enforcement agency or
the district court;
(3) removed to the custody of the law enforcement agency;
(4) sold or disposed of pursuant to Subsection L of Section 6 of the
Forfeiture Act, when no claims are filed in a timely manner; or
(5) otherwise disposed of as provided by court order.
C. Property shall be kept by the law enforcement agency in such a manner as to protect it from theft or damage.
D. If an owner whose property was seized is not convicted of the crime for which his property was seized, the property shall be returned to him, including interest accrued on escrow accounts.
E. Notwithstanding the immunity provided in the Tort Claims Act, an owner of seized property that is returned pursuant to the Forfeiture Act shall have a cause of action against the law enforcement agency.
Section 12. A new section of the Criminal Code is enacted to read:
DISPOSAL OF FORFEITED PROPERTY.--
A. Whenever property is forfeited to the state pursuant to a court order under the Forfeiture Act, the court shall provide for the sale or other disposition of the property. Forfeited currency and proceeds from the sale of forfeited property shall be applied first to restitution to or on behalf of actual victims of the criminal acts of the convicted owner, related to the forfeiture proceedings.
B. After payments pursuant to the provisions of Subsection A of this section have been provided for, the court shall order the balance deposited in the general fund.
C. If forfeited property consists of a partial interest in property, the court may, at its discretion and to the benefit of the state's taxpayers, allow the other owners to purchase the state's share at the current market value.
Section 23. EFFECTIVE DATE.--The effective date of the provisions
of this act is July 1, 1995.