Hey Rio Rancho! Don’t forget to check out this week’s Observer column on the proposed DWI Forfeiture law.

5There’s nothing in the proposed Rio Rancho to distinguish it from the Las Cruces ordinance.

You can’t sue the city if they wrongfully or unlawfully take your car. We’re not allowed to err in good faith, but the city is. The rules and regulations prescribed for administering the ordinance are to be determined by the City Manager. Those are not and will not be written into the ordinance and the city council will never get to vet them. How does this relate to Las Cruces? The Las Cruces city attorney made headlines last year for the advice he gave a DWI Forfeiture Conference last year in Santa Fe. I’ve heard a lot of promises about the Rio Rancho wouldn’t be administered in that manner, but I ask, where is the protection?! What assurance can the citizens of Rio Rancho that those abuses won’t happen here? To see what is so disconcerting about the was Las Cruces operates their program, watch this video.

4The City Attorney’s best defense can’t prove a direct causal connection between DWI forfeiture and the reduction of DWI incidents

If you watched the city council meeting, you saw the Chief of Police, the Deputy Chief, and the City Attorney give a presentation showing how DWI forfeiture resulted in a 5% recidivism rate in ABQ. What does this mean? Essentially that only 5% of drunk drivers turned out to be repeat offenders. Later in the meeting, while being questioned by Councilor Robinson, the city attorney admitted that no study done can actually prove a causal connection. In other words, that it can’t be proved that this legislation works. Yet, this is the “tool” they want to add.

The studies presented are what amount to circumstantial evidence. In a court room, circumstantial evidence is basically a series of circumstances and happenstance evidence to bring the jury to a particular conclusion. It’s one of the weaker forms of presenting evidence for a case. By comparison, direct evidence is a series of provable fact, that guarantee a particular conclusion. The difference between the two are a difference between inductive and deductive reasoning. Inductive reasoning goes something like this. I easily lose my keys. I am currently missing my keys. Therefore, I must have lost my keys. Inductive reasoning doesn’t guarantee the conclusion. In this case, it could be that my keys were stolen and I haven’t learned about it yet. By contrast, deductive reasoning goes like this: I am missing my keys. I know I had my keys when I got home. Therefore, they must be in the house. The conclusion is guaranteed because I have ruled out the possibility that my keys could have been stolen.

What does this mean for the city attorney? She’s asking the City Council to pass an ordinance based on the weakest form of reasoning. Don’t you think if our council is going to pass a controversial piece of legislation that it should have direct evidence, evidence in fact that it will work? The irony here is that there is direct evidence to prove that these programs can be abused and good that allegedly comes from it, doesn’t outweigh the bad that most assuredly will.

3Revenue generated by this ordinance is planned to finance another draconian ordinance.

One of the more disturbing things about this proposed ordinance is that one of the primary purposes of the revenue generated to for funding the enforcement a completely different nuisance ordinance. This has not yet been officially proposed, but at the Governing Body Work Session in July of last year, the city attorney discussed her hope and expectation that this new DWI forfeiture law would finance the nuisance abatement proposal being discussed at the work session. What was that proposal? To all the city to go into your home and do inspections of the home if you’re having a hard time paying your utility bills. As Councilor Smith put, “we’re going to help you, help yourself, or else.” So in short, under the name of “Neighborhood Quality,” if you’re struggling to pay your utility bills, the city wants the power to inspect your home and property, take you to court, and force to fix problems with money you probably don’t have, just so that the visual perception of your home is that all is well for those who dwell there. Aren’t they sweet! This was originally an idea for abandoned homes, but somehow morphed into something else.

So let’s break down the text in the ordinance:

revenue

A plain reading of the text here says that the first thing proceeds shall be used for is to a) carry out of the purpose and intent of this ordinance AND/OR b) to further abate declared nuisances that threaten the health, safety, and welfare of the city. That’s for vehicles successfully sold. For those not sold, the department can use them for just about anything they deem as providing education on substance abuse and DWI. Finally, “any other proceeds” are to be used for DWI enforcement, prevention, and education. This is highly disconcerting because the above nuisance program proposed above not only allows code enforcement into your home without your consent, but it has absolutely no funding source except this one.

Here’s a question for you: How can the city attorney claim that DWI forfeiture program will be self-sustaining (paid for through auctioned off vehicles) while reducing incidence of DWI (which means the program should shrink and become obsolete over time) only to make one of the primary purposes of the revenue created funding for an entirely different ordinance?

2DWI forfeiture has already been declared unconstitutional in ABQ, and they are ignoring the ruling

As much as the City Attorney wants us to believe that there is no Constitutional conundrum with regard to DWI forfeiture, she failed to mention one important point. While it’s true that in 2002 ABQ’s DWI forfeiture ordinance was declared constitutional for not being a violation of double jeopardy, she didn’t mention that District Court has ruled it unconstitutional “on it’s face” with regard to how the ordinance handles innocent owners. I’ll touch on that in a minute, but in short, ABQ treats owners claiming innocence the same as the proposed ordinance in Rio Rancho.

http://krqe.com/2014/02/24/despite-judges-ruling-city-presses-on-with-dwi-seizures-auctions/

The city of ABQ has tried to get the NM Supreme Court to overturn the District court’s ruling twice, and twice the NMSC has refused to overturn it. But ABQ refuses to stop operating their program. Why? That leads us to the second greatest problem with this ordinance: the severability clause.

severabiltyBasically this part at the end of the ordinance says that if for some reason any part of the ordinance is ruled to be “invalid, unlawful, or unenforceable” that such ruling will not effect the rest of the ordinance. In other words, it doesn’t matter that the District Court has ruled ABQ’s ordinance Constitutional, they’re going to ignore the ruling and continue doing what they’re doing. This would be a good time to mention that our city attorney helped draft ABQ’s DWI forfeiture ordinance and participated in their program for several years, and by her own statement’s at the council meeting, she’s has been itching to get this ordinance passed since she came to Rio Rancho in 2013.

1 The “Innocent Owner” clause is a farce!

According to this clause, IF you claim that you are an innocent owner, then the burden is on you to raise “any and all defenses.” And IF you claim such a defense, only then does the city have the burden of proving you that you’re not innocent. Let me paint a picture for you: If your brother takes your car without permission, drives drunk, and is caught. Are you, the owner, innocent? Probably ….. not.

innocent owner

At first blush, it seems okay … if you simply say, “I’m an innocent owner,” then the city must show that you had knowledge and consent of the driver’s use of the vehicle. How could she possibly prove consent? Your word against your brother’s, right? Wrong.

When the city can prove … that the owner … had actual or constructive knowledge that the individual arrested was a) previously arrested or cited for DWI or b) driving on a revoked license in a vehicle the owner owns, the owner … may not be considered an innocent owner.

What’s “constructive knowledge?”

It includes a) evidence of previous arrests or citations in the vehicle, b) evidence of free access, and c) evidence of knowledge of revoked license.

So, basically, if your brother has been pulled over in your car before for (not apparently for DWI if we use a plain reading of the text), and you left your keys in a place he had access to, and you aware that he had ever had a revoked license, EVEN IF YOU DID NOT GIVE EXPLICIT PERMISSION FOR HIM TO DRIVE THE VEHICLE, then YOU ARE NOT AN INNOCENT OWNER. And if you think is an impossible scenario consider the following video. A former Santa Fe county sheriff who helped pass their DWI forfeiture ordinance, suddenly found himself responsible for his daughter’s actions when she took his car without permission and drove drunk.

It’s also not entirely clear if you’d be considered innocent if the driver’s first DWI offense was in another vehicle and not yours, because the forfeiture doesn’t require that the driver be driving the same car he was caught in the first time. Furthermore, the fact there is a special paragraph dedicated with an italicized subheading reading “innocent owner” means nothing when the ABQ and Law Cruces ordinance don’t have the special designation, but have nearly identical wording. So if ABQ’s ordinance has been declared unconstitutional on it’s face because of how the ordinance treats innocent owners, and Rio Rancho’s wording is nearly identical, then how is Rio Rancho going to protect innocent owners and avoid going to District court for a similar constitutional conundrum? Yeah, I don’t know either. It’s creepy that the wording is also similar to Las Cruces’ ordinance written by a city attorney that should be deemed certifiably insane.