2021 New Mexico Statutes
Chapter 31 - Criminal Procedure
Article 27 - Forfeiture
Section 31-27-4 - Forfeiture; conviction required; seizure of property; with process; without process.

Universal Citation: NM Stat § 31-27-4 (2021)

A. A person's property is subject to forfeiture pursuant to state law if:

(1) the person was arrested for an offense to which forfeiture applies;

(2) the person is convicted by a criminal court of the offense; and

(3) the state establishes by clear and convincing evidence that the property is subject to forfeiture as provided in Subsection B of this section.

B. Following a person's conviction for an offense to which forfeiture applies, a court may order the person to forfeit:

(1) property the person acquired through commission of the offense;

(2) property directly traceable to property acquired through the commission of the offense; and

(3) any instrumentality the person used in the commission of the offense.

C. Nothing in this section shall prevent property from being forfeited by the terms of a plea agreement to a felony that is approved by a court or by other agreement of the parties to a criminal proceeding.

D. Subject to the provisions of Section 31-27-5 NMSA 1978, at any time, at the request of the state, a court may issue an ex parte preliminary order to seize property that is subject to forfeiture and for which forfeiture is sought and to provide for the custody of the property. The execution on the order to seize the property and the return of the property, if applicable, are subject to the Forfeiture Act and other applicable state laws. Before issuing an order pursuant to this subsection, the court shall make a determination that:

(1) there is a substantial probability that:

(a) the property is subject to forfeiture;

(b) the state will prevail on the issue of forfeiture; and

(c) failure to enter the order will result in the property being destroyed, removed from the state 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 the owner and other parties known to be claiming interests in the property.

E. Property subject to forfeiture may be seized at any time, without a prior court order, if:

(1) the seizure is incident to a lawful arrest for a crime or a search lawfully conducted pursuant to a search warrant and the law enforcement officer making the arrest or executing the search has probable cause to believe the property is subject to forfeiture and that the subject of the arrest or search warrant is an owner of the property;

(2) the property subject to seizure is the subject of a previous judgment in favor of the state; or

(3) the law enforcement officer making the seizure has probable cause to believe the property is subject to forfeiture and that the delay occasioned by the need to obtain a court order would result in the removal or destruction of the property or otherwise frustrate the seizure.

History: Laws 2002, ch. 4, § 4; 2015, ch. 152, § 4; 2019, ch. 133, § 3.

ANNOTATIONS

The 2019 amendment, effective April 2, 2019, clarified that the purposes of the Forfeiture Act are to ensure that only criminal forfeiture is allowed in this state and only pursuant to state law, and clarified that nothing in this section prohibits forfeitures by the terms of a plea agreement to a felony that is approved by a court or by other agreement of the parties to a criminal proceeding; in Subsection A, in the introductory clause, after "subject to forfeiture", added "pursuant to state law"; and in Subsection C, after "plea agreement", added "to a felony".

Applicability. — Laws 2019, ch. 133, § 13 provided that the provisions of the Forfeiture Act apply to seized and abandoned property in the possession of a law enforcement agency or the state treasurer on and after April 2, 2019.

Temporary provisions. — Laws 2019, ch. 133, § 11 provided that the New Mexico supreme court shall issue procedural court rules to implement the provisions of this act.

Laws 2019, ch. 133, § 12 provided that abandoned property in the possession of a law enforcement agency or the state treasurer on April 2, 2019 shall be disposed of pursuant to Section 29-1-14 NMSA 1978.

The 2015 amendment, effective July 1, 2015, provided that a conviction of a criminal offense is required before property is subject to forfeiture; in the catchline, added "Forfeiture; conviction required", and "with process; without process"; at the beginning of the section, deleted "Property may be seized by a law enforcement officer:"; in former Subsection A, deleted "pursuant to an order of seizure issued by a district court based on a sworn application of a law enforcement officer from which a determination is made by the court"; added new Subsections A through C; added Subsection D with an introductory paragraph; designated Paragraphs (1) and (2) of former Subsection A as Paragraphs (1) and (2) of Subsection D; designated former Subsection B as Subsection E and added "Property subject to forfeiture may be seized at any time", after "court order, if", deleted "the property alleged to be property subject to forfeiture is not a residence or a business, when"; in Paragraph (1) of Subsection E, after "incident to", deleted "an" and added "a lawful", after "arrest for a crime", added "or", after "search", added "lawfully", after "search warrant", deleted "or an inspection conducted pursuant to an administrative inspection warrant", after "executing the search", deleted "or inspection warrant" in two places, after "believe the property", deleted "to be property" and added "is", after "subject to arrest", added "or", after "search warrant", deleted "or inspection warrant", after the semicolon, deleted "or"; added a new Paragraph (2) of Subsection E and redesignated the succeeding paragraph accordingly; and in Paragraph (3) of Subsection E, after "property is", deleted "property", and after "court order would", added "result in the removal or destruction of the property or otherwise".

Civil forfeiture ordinance preempted by New Mexico Forfeiture Act. — Where the City of Santa Fe (City) appealed the district court's order directing the return of claimant's car, which was seized pursuant to the City's forfeiture ordinance, which provides that a motor vehicle is declared to be a nuisance and subject to immediate forfeiture if the vehicle is operated by a person in the commission of a DWI offense or by a person whose license is suspended or revoked as a result of a DWI arrest, the New Mexico Forfeiture Act (NMFA), NMSA 1978, §§ 31-27-1 to -11, a general law that is intended to ensure that only criminal forfeiture is allowed in this state, expressly denies municipalities' authority to enforce civil asset forfeiture proceedings. The NMFA comprehensively addresses asset forfeiture, and because the City's civil forfeiture ordinance is at odds with the NMFA, the NMFA preempts the ordinance. City of Santa Fe ex rel. Santa Fe Police Dep't v. 1989 Black Saab Sedan, 2019-NMCA-028, cert. denied.

Municipal civil forfeiture ordinance preempted by New Mexico Forfeiture Act. — Where the city of Albuquerque (city) seized plaintiff's vehicle pursuant to the city's civil forfeiture ordinance, which provides that a motor vehicle is declared to be a nuisance and subject to immediate forfeiture if the vehicle is operated by a person in the commission of a DWI offense or by a person whose license is suspended or revoked as a result of a DWI conviction or arrest, the district court erred in dismissing plaintiff's complaint for declaratory and injunctive relief, because the New Mexico Forfeiture Act (NMFA), 31-27-1 to -11 NMSA 1978, a general law that is intended to ensure that only criminal forfeiture is allowed in this state, expressly denies home-rule municipalities' authority to enforce civil asset forfeiture proceedings. The NMFA comprehensively addresses asset forfeiture, and because the City's civil forfeiture ordinance is at odds with the NMFA, the NMFA preempts the ordinance. Espinoza v. City of Albuquerque, 2019-NMCA-014.

New Mexico Forfeiture Act preempts municipal forfeiture ordinance. — A state law preempts a local ordinance if the local ordinance interferes with the state law's objectives or purposes, and one of the New Mexico Forfeiture Act's (NMFA) stated purposes is to ensure that only criminal forfeiture is allowed in New Mexico. This purpose limiting forfeitures to criminal actions is expressly at odds with the city of Albuquerque's civil forfeiture ordinance. The NMFA also states that one of its purposes is to make uniform the standards and procedures for the seizure and forfeiture of property subject to forfeiture. The New Mexico legislature's desire for uniformity in the standards and procedures also suggests that it intends to supplant local forfeiture laws, which might have different standards and procedures. Harjo v. City of Albuquerque, 307 F.Supp.3d 1163 (D. N.M. 2018).

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