Court affirmed the finding that the New Mexico Drug Paraphernalia Act, 30-31-1 NMSA 1978 was constitutional because the Act was not vague, as it provided reasonable notice of what was prohibited and guidelines that would aid law enforcement officers in its enforcement. General Stores, Inc. v. Bingaman, 695 F.2d 502, 1982 U.S. App. LEXIS 23300 (10th Cir. N.M. 1982).

Generally.

Motor vehicle owners were entitled to summary judgment against the State in its action under the Controlled Substances Act, 30-31-1 NMSA 1978, to forfeit their vehicle where the State had not charged one owner and where the other owner had pled guilty to one change but all other charges were dismissed because the State was not allowed under Rule 1-055C NMRA and Rule 1-060B NMRA to reopen the criminal case and attach the forfeiture case. State ex rel. Task Force v. 1990 Ford Truck, 2001-NMCA-064, 130 N.M. 767, 32 P.3d 210, 2001 N.M. App. LEXIS 56 (N.M. Ct. App. 2001).

Public policy of the state is expressed in the Controlled Substances Act, 30-31-1 NMSA 1978 et seq. That policy is to control substances with a potential for abuse. State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, 1985 N.M. App. LEXIS 631 (N.M. Ct. App. 1985).

Burden of proof.

Applying the civil burden of proof to forfeitures under the Controlled Substances Act, 30-31-1 to 30-31-41 NMSA 1978, places an unfair burden on defendants. Therefore, in the forfeiture portion of a trial, the burden of proof will be on the State to prove by clear and convincing evidence that the property in question is subject to forfeiture. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Civil forfeiture.

Civil forfeiture under the Controlled Substances Act, 30-31-1 to 30-31-41 NMSA 1978, is punishment for the purposes of New Mexico’s protections against double jeopardy, N.M. Const. art II § 15, and the double-jeopardy statute, 30-1-10 NMSA 1978. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Discovery.

—Right not to respond.

Where a suspect was arrested on charges of trafficking cocaine and his van was seized pursuant to the Controlled Substances Act, 30-31-1 to 30-31-40 NMSA 1978, a default judgment entered against him, as a sanction in a civil forfeiture for refusing to answer discovery requests, was reversed because he had a right under the U.S. Const. amends. V not to respond. State ex rel. Albuquerque Police Dep't v. One Black 1983 Chevrolet Van, 1995-NMCA-082, 120 N.M. 280, 901 P.2d 211, 1995 N.M. App. LEXIS 79 (N.M. Ct. App. 1995).

Double jeopardy.

In a cocaine trafficking case, the trial court properly found that jeopardy attached in the city’s prior civil forfeiture proceeding against defendants’ vehicle when a stipulated order of dismissal was filed returning the vehicle to the manufacturer’s credit agency as the city conditioned its dismissal of the forfeiture proceeding on the prohibition of the return of the vehicle to defendants. State v. Tijerino, 2004-NMCA-039, 135 N.M. 313, 87 P.3d 1095, 2004 N.M. App. LEXIS 13 (N.M. Ct. App. 2004).

Double jeopardy clause of the New Mexico Constitution does not prohibit the legislature from assessing both civil and criminal penalties for violations of the controlled substances act, 30-31-1 NMSA 1978. However, if the State elects to seek both criminal conviction and the forfeiture of assets, the penalties must be pursued in a single, bifurcated proceeding. State v. Esparza, 2003-NMCA-075, 133 N.M. 772, 70 P.3d 762, 2003 N.M. App. LEXIS 32 (N.M. Ct. App.), cert. denied, 133 N.M. 771, 70 P.3d 761, 2003 N.M. LEXIS 146 (N.M. 2003), cert. denied sub. nom., State v. Booth, 133 N.M. 771, 70 P.3d 761, 2003 N.M. LEXIS 165 (N.M. 2003).

Civil forfeiture under the New Mexico Controlled Substances Act, 30-31-1 NMSA 1978 constitutes punishment for purposes of New Mexico’s protections against double jeopardy, N.M. Const. art II § 15, and 30-1-10 NMSA 1978; thus, dismissal of criminal charges against defendants for possession and sale of drugs was in order where the state elected to obtain forfeiture prior to seeking criminal punishment. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Defendant’s conviction for possession of marijuana with intent to distribute contrary to 30-31-22A(1)(a) NMSA 1978 was reversed under N.M. Const. art II § 15 where his motor vehicle had been civilly forfeited under the Controlled Substances Act. State v. Antillon, 2000-NMSC-014, 2000-NMSC-014, 129 N.M. 114, 2 P.3d 315, 1999 N.M. LEXIS 389 (N.M. 1999).

—Burden of proof.

In the case of forfeitures under the Controlled Substances Act, 30-31-1 to 30-31-41 NMSA 1978, there is a presumption that when a forfeiture action and a criminal action are directed at the same defendant and rely on the same general evidence, then both proceedings concern the same offense. The State will bear the burden of proving otherwise for double jeopardy purposes; specifically, the State will have to prove with clear and convincing evidence that the criminal action and forfeiture action are unquestionably directed at completely distinct and unrelated offenses. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Due process.

Sentencing court committed plain error and violated defendant’s right to due process when, without prior notice, having brought out the fact of defendant’s prior foreign conviction for possession of marijuana seed, it enhanced his sentence under the Narcotic Drug Statute, former 54-7-15, 1953 Comp.; some form of notice, whether by charge, motion, or otherwise, was required before an enhancement could be lawfully imposed. State v. Rhodes, 1966-NMSC-064, 76 N.M. 177, 413 P.2d 214, 1966 N.M. LEXIS 2622 (N.M. 1966).

Interstate commerce.

Under the standard of review provided by 67-26-31C NMS 1978, the Court of Appeals of New Mexico determined that regulations adopted after a public hearing, 67-26-29 NMSA 1978, by the New Mexico Board of Pharmacy pursuant to the Drug and Cosmetic Act, 54-6-26 NMSA 1978 et seq., and the Controlled Substances Act, 54-11-1 NMSA 1978 et seq., did not violate the Commerce Clause, because the burden imposed on interstate commerce by the regulations was not clearly excessive in relation to the putative local benefits and that the regulations did not violate the Due Process Clause, because the state had a legitimate interest in the control of dangerous drugs sold or distributed within its borders and the mere fact that state action had repercussions beyond state lines was of no judicial significance. There was no factual basis for a claim by appellants, a pharmaceutical manufacturers association and others, that 54-6-41A(1) NMSA 1978 denied equal protection to residents of New Mexico. Pharmaceutical Mfrs. Ass'n v. New Mexico Bd. of Pharmacy, 1974-NMCA-038, 86 N.M. 571, 525 P.2d 931, 1974 N.M. App. LEXIS 696 (N.M. Ct. App.), writ quashed, 86 N.M. 657, 526 P.2d 799, 1974 N.M. LEXIS 1449 (N.M. 1974).

Jeopardy attachment.

Jeopardy attaches in a civil forfeiture proceeding under the Controlled Substances Act, 30-31-1 to 30-31-41 NMSA 1978, at the time the court enters its final judgment, either at the conclusion of a trial or upon entering a default judgment. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Law enforcement officer.

Under 30-31-1 to 30-31-41 NMSA 1978, special agents of the New Mexico Attorney General’s office are law enforcement officers with respect to the enforcement of the Controlled Substances Act. State v. Elam, 1989-NMCA-006, 108 N.M. 268, 771 P.2d 597, 1989 N.M. App. LEXIS 68 (N.M. Ct. App.), cert. denied, 493 U.S. 832, 110 S. Ct. 105, 107 L. Ed. 2d 68, 1989 U.S. LEXIS 4049 (U.S. 1989).

Retroactivity.

Under U.S. Const. art I § 10, and N.M. Const. art II § 19, it was permissible for the court to apply its decision that civil forfeiture under the New Mexico Controlled Substances Act, 30-31-1 NMSA 1978, constituted punishment for purposes of New Mexico’s protections against double jeopardy to all cases pending as of the date of the court’s decision. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Search and seizure.

Contraband found by police at defendant’s residence while conducting a search within the scope of the consent given by defendant was admissible at defendant’s criminal trial. The officers could lawfully seize amphetamines and methadone when their search was pursuant to the defendant’s consent to search for heroin. State v. Alderete, 1976-NMCA-001, 88 N.M. 619, 544 P.2d 1184, 1976 N.M. App. LEXIS 533 (N.M. Ct. App. 1976).

Sentencing.

Defendant’s sentence for his second sequential drug trafficking offense and conviction was properly enhanced under the authority of the Controlled Substances Act, 30-31-1 NMSA 1978 et seq., and the Criminal Sentencing Act, 31-18-12 NMSA 1978 et seq., and did not violate equal protection. State v. Bejar, 1985-NMCA-093, 104 N.M. 138, 717 P.2d 591, 1985 N.M. App. LEXIS 631 (N.M. Ct. App. 1985).

Summary forfeiture.

Summary forfeiture of contraband under 30-31-36 NMSA 1978 does not implicate double jeopardy, as contraband is property that is illegal in itself, regardless of how it was acquired, how it was used, or whether or not anyone even owns. No one has the right, under N.M. Const. art II § 4, to acquire, possess, or protect contraband. However, in the forfeiture of all other types of property under the Controlled Substances Act, 30-31-1 to 30-31-41 NMSA 1978, jeopardy attaches. State v. Nunez, 2000-NMSC-013, 2000-NMSC-013, 129 N.M. 63, 2 P.3d 264, 1999 N.M. LEXIS 388 (N.M. 1999).

Research References and Practice Aids

New Mexico Law Review.

Note: Complying with Nunez: The Necessary Procedure for Obtaining Forfeiture of Property and Avoiding Double Jeopardy after State v. Esparza, Michelle R. Haubert-Barela, 34 N.M. L. Rev. 561 (2004).

Note: Criminal Procedure — Civil Forfeiture And Double Jeopardy: State v. Nunez, Laurel A. Carrier, 31 N.M. L. Rev. 401 (2001).

Trends In New Mexico Law: 1993-94 Note: State Constitutional Law-New Mexico Requires Exigent Circumstances For Warrantless Public Arrests: Campos v. State, Wendy F. Jones, 25 N.M. L. Rev. 315 (1995).

30-31-1. Short title.

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History

Annotations