CITY OF RIO RANCHO ORDINANCE NO.

CITY OF RIO RANCHO ORDINANCE ORDINANCE NO. ENACTMENT NO. 1 1 1 1 1 1 1 1 1 0 1 AN ORDINANCE AMENDING THE UNIFORM TRAFFIC CODE TO PROVIDE FOR VEHICLE SEIZURE AND FORFEITURE UPON SECOND OR SUBSEQUENT ARREST FOR A DRIVING WHILE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS OR FOR DRIVING ON A REVOKED DRIVER S LICENSE THAT WAS THE RESULT OF A DWI CONVICTION OR ARREST WHEREAS: the Governing Body finds that Driving While Under the Influence of Intoxicating Liquor or Drugs (DWI) presents a persistent danger and threat to the Rio Rancho community; and WHEREAS: those who commit the crime of DWI are likely to cause harm and considerable property damage while driving; and WHEREAS: to allow those who are arrested for a second or subsequent offense of DWI, or have had their driver s license suspended or revoked as a result of an arrest or conviction for DWI, access to motor vehicles increases the likelihood that such persons will repeat the offense; and WHEREAS: motor vehicles that are used by drivers who are arrested for a second or subsequent offense of DWI and whose driving privileges have been revoked or suspended as a result of an arrest or conviction for DWI constitute a nuisance to the general public and are dangerous to the general health and safety of the general public; NOW THEREFORE, BE IT ORDAINED BY THE GOVERNING BODY OF THE CITY OF RIO RANCHO: Section 1. The Uniform Traffic Code Article X Vehicle Regulation, be amended to include Section 1--0 Vehicle Seizure and Forfeiture as follows: (A) Findings of fact. The Governing Body finds that: 1. the problems caused by those driving within the city limits while under the influence of intoxicating liquor or drugs (DWI) are substantial; and. those who drive under the influence of intoxicating liquor or drugs are likely to cause considerable property damage while driving; and. to allow those who are arrested for a second or subsequent offense of DWI, or have had their driver s license suspended or revoked as a result of an arrest or conviction for DWI access to motor vehicles increases the likelihood that such persons will repeat the offense; and

1 1 1 1 1 1 1 1 0 1 0. motor vehicles that are used by drivers who are arrested for a second or subsequent offense of DWI and/or whose driving privileges have been revoked or suspended as a result of an arrest or conviction for DWI constitute a nuisance to the general public and are dangerous to the general health and safety of the general public; (B) Purpose of section. It is the purpose of this section to protect the health and safety of the citizens within the city limits by abating such motor vehicle nuisances. (C) Vehicles declared nuisances; forfeiture seizure. Any Motor vehicle operated by a person who is arrested for a second or greater offense of Driving While Under the Influence of Intoxicating Liquor or Drugs (DWI), pursuant to state statute or local ordinance, or for driving on a revoked driver s license as a result of an arrest or conviction for DWI, pursuant to state statute or local ordinance, is hereby declared to be a nuisance and subject to forfeiture seizure pursuant to the provisions of this section. (D) Administration of section. The Rio Rancho Police Department shall be responsible for administration of this section. The City Manager, and/or his designee, and the City Attorney s Office may make reasonable recommendations as to the rules and regulations to carry out the intent and purpose of this section. Any and all administrative rules and regulations to carry out the intent and purpose of this section must come before the governing body for approval by majority vote. (E) Seizure and forfeiture proceedings. 1. Motor vehicles subject to forfeiture seizure under this section may be seized by any Rio Rancho Police Officer upon an order issued by the district court.. Seizure without such an order may be made if the seizure is incident to an arrest of the driver of the vehicle for DWI and the driver has a previous conviction for DWI, or for driving with a revoked or suspended driver s license that was the result of a DWI conviction or arrest within the last ten () years.. A vehicle seized under this section shall not be subject to replevin, but is deemed to be in the custody of the Rio Rancho Police department, subject only to the orders and decrees of the district court. The Rio Rancho Police department may take custody of the vehicle and remove it to an appropriate and official location within the city limits for disposition in accordance with this section.. Any sworn law enforcement officer lawfully exercising jurisdiction within the Rio Rancho city limits may take possession of a motor vehicle pursuant to this article. Immediately after a vehicle is towed

1 1 1 1 1 1 1 1 0 1 0 for forfeiture seizure under section (C) Vehicles Declared Nuisances, the arresting officer will serve a copy of a Notice of Vehicle Seizure to the individual from whom the vehicle was seized at the time of the arrest. A copy of the Notice of Seizure will be mailed postage pre-paid to the lawfully registered owner as verified on the date of the seizure by the New Mexico Motor Vehicle Division by the city employee who is retaining the vehicle in order to notify the owner of the pending forfeiture. The notice shall contain the following information: a. the license plate number, make, type and color of vehicle; b. the location from which the vehicle was seized; c. a statement that the vehicle has been taken into custody and stored; d. the basis for the seizure; e. a name and phone number or title of a city employee from whom the owner can obtain further information; f. a statement that daily storage and towing charges will be assessed; g. a statement that the owner has the right to contest the validity of the seizure by requesting a hearing in writing within days of the mailing of the Notice of Seizure; h. a copy of this ordinance. The lawfully registered owner of the vehicle may request an administrative hearing to be conducted by a hearing officer authorized by the City Manager. The hearing, if requested within the period set forth above, shall be held and the hearing officer shall prepare a written decision within 0 working days (excluding weekends and holidays) of receipt of the request unless the hearing is continued with the agreement of the parties and/or the authorized hearing officer. The hearing shall be informal and not bound by the technical rules of evidence. The hearing officer shall only determine whether the law enforcement officer had probable cause to seize the vehicle. The hearing officer shall mail written notice of the decision to the owner within five working days of the hearing. If the hearing officer finds that the law enforcement officer did not have probable cause to seize the vehicle in question or that the vehicle in question should otherwise be released in accordance with this ordinance, the hearing officer shall issue and date a Certificate of Release, a copy of which shall be given to the owner of the vehicle. Upon a showing of the owner s copy of the certificate, the city shall release the vehicle to its owner or the owner s legal agent and storage fees shall be waived. The owner will be responsible for towing fees incurred by the city as a result of the driver s arrest and shall be credited the administrative hearing fee actually paid. If the owner fails to present such certificate to the city employee having custody of the vehicle within hours of its receipt, excluding days when the city seizure office is not open for business, the owner shall assume liability for all subsequent storage charges. The certificate shall advise the owner

1 1 1 1 1 1 1 1 0 1 0 of such requirement. If the hearing officer determines that the vehicle was properly seized, proceedings for an order for forfeiture shall be instituted within a reasonable period of time. (F.) When property is forfeited pursuant to this section the Rio Rancho Police Department shall sell the motor vehicle at public auction and the proceeds shall be used to carry out the purpose and intent of this ordinance. If a vehicle is abandoned, in accordance with state law, after being lawfully seized forfeited pursuant to this ordinance and the vehicle is not sold, the Police Department may employ such vehicle to be utilized by law enforcement for purposes that will serve the community, including for DWI and/or drug and substance abuse prevention and education. The Rio Rancho Police Department shall maintain and operate a seizure fund consistent with this provision. The finance committee shall be responsible for oversight of the seizure fund and shall provide the governing body detailed semiannual reports of the use of any and all proceeds received. The City Manager may make recommendations to the Chief of Police for the utilization of funds. (G.) Property interest not subject to forfeiture seizure. Notwithstanding subsection (E) of this section any forfeiture seizure shall be subject to the interest of: 1. Innocent Owner. It is the burden of the owner or co-owner of the vehicle to raise any and all defenses. Any owner or co-owner may present evidence that he or she did not have knowledge of, nor consented to, the use of the vehicle by the driver who caused the vehicle to be seized. If such evidence is presented, the burden of proving knowledge and consent shall be upon the city. When the city can prove by a preponderance of the evidence that the owner or coowner had actual or constructive knowledge that the individual arrested was been previously arrested or cited for DWI or driving on a revoked license in a vehicle that the owner owns, the owner or coowner may not be considered an innocent owner. Constructive knowledge may include, but is not limited to, evidence of previous arrests or citations in the vehicle, evidence of free access to the vehicle and evidence of knowledge of revoked license. Any owner or co-owner who is physically present inside the vehicle when the offender is arrested for DWI may not be considered an innocent owner.. Any secured party, to the extent of the security interest, if the secured party proves that the security interest was acquired in good faith with no knowledge or reason to believe that the vehicle would be used by a driver who would be arrested for DWI or by the driver whose license has been suspended or revoked. If the security interest is greater than the value of the vehicle, title shall be transferred to the secured party upon motion and order of the district court. Any secured party acquiring an interest after the vehicle is in custody of the police

1 1 1 1 1 1 1 1 0 1 0 department shall have the burden of intervening in the forfeiture proceeding to protect such interest. Any interest in the vehicle must be properly filed with the New Mexico Motor Vehicle Division in accordance with sections --01 and --0 NMSA 1 before the date of incident leading to the seizure. (H.) Temporary Seizure Immobilization. Notwithstanding any other provision of this ordinance, in the interest of public safety and health, the police department may seize a vehicle at the time of an arrest of a person for DWI if that person only has one (1) previous conviction of record, or has a current driver s license revocation, and shall offer the owner the opportunity to temporarily immobilize the vehicle for a period not less than thirty () days, if the driver was not charged with a felony offense and the incident did not involve bodily injury or death. Such immobilization may be accomplished by an immobilization device (boot) at the owner s designated location within the city limits, or by impoundment at a secure facility, in accordance with the procedures established by the police department. The owner shall pay the police department a fee for this voluntary, temporary seizure/immobilization and sign an immobilization agreement with the City. The period of immobilization shall begin on the date the immobilization fee is paid. Such temporary seizure/immobilization shall be imposed after the opportunity for a probable cause hearing as provided in this ordinance unless such hearing is waived in writing by the registered owner. Any immobilization period shall be consistent and based upon the number of DWI and/or driver s license revocation convictions as verified by the New Mexico Motor Vehicle Division. Section. Severability Clause. If any section, paragraph, clause, or provision of this Ordinance, or any section, paragraph, clause, or provision of any regulation promulgated hereunder shall for any reason be held to be invalid, unlawful, or enforceable, the invalidity, illegality, or unenforceability of such section, paragraph, clause, or provision shall not affect the validity of the remaining portions of this Ordinance or the regulation so challenged. Section. Compiling Clause. This Ordinance shall be incorporated in and compiled as part of the Revised Ordinances of the City of Rio Rancho, (R.O. 00). Section. Effective Date. This Ordinance shall become effective days after adoption. ADOPTED THIS TH DAY OF MAY FEBRUARY, 01. Greggory D. Hull, Mayor ATTEST:

Stephen J. Ruger, City Clerk (SEAL)