The following are subject to forfeiture pursuant to the provisions of the Forfeiture Act:
A. all raw materials, products and equipment of any kind, including firearms that are used or intended for use in manufacturing, compounding, processing, delivering, importing or exporting any controlled substance or controlled substance analog in violation of the Controlled Substances Act;
B. all property that is used or intended for use as a container for property described in Subsection A of this section;
C. all conveyances, including aircraft, vehicles or vessels that are used or intended for use to transport or in any manner to facilitate the transportation for the purpose of sale of property described in Subsection A of this section;
D. all books, records and research products and materials, including formulas, microfilm, tapes and data that are used or intended for use in violation of the Controlled Substances Act;
E. narcotics paraphernalia or money that is a fruit or instrumentality of the crime;
F. notwithstanding Subsection C of this section and the provisions of the Forfeiture Act:
(1) a conveyance used by a person as a common carrier in the transaction of business as a common carrier shall not be subject to forfeiture pursuant to this section unless it appears that the owner or other person in charge of the conveyance is a consenting party or privy to a violation of the Controlled Substances Act;
(2) a conveyance shall not be subject to forfeiture pursuant to this section by reason of an act or omission established for the owner to have been committed or omitted without the owner’s knowledge or consent;
(3) a conveyance is not subject to forfeiture for a violation of law the penalty for which is a misdemeanor; and
(4) a forfeiture of a conveyance encumbered by a bona fide security interest shall be subject to the interest of a secured party if the secured party neither had knowledge of nor consented to the act or omission; and
G. all drug paraphernalia as defined by Subsection V of Section 30-31-2 NMSA 1978.
HISTORY:
1953 54-11-33, enacted by Laws 1972, ch. 84, § 33; 1975, ch. 231, § 1; 1981, ch. 31, § 3; 1987, ch. 68, § 6; 1989, ch. 196, § 1; 2015, ch. 152, § 17.
Amendment Notes.
The 2015 amendment , effective July 1, 2015, substituted “that” for “which” throughout the section; added “pursuant to the provisions of the Forfeiture Act” in the introductory language; deleted former A, which read: “all controlled substances and all controlled substance analogs which have been manufactured, distributed, dispensed or acquired in violation of the Controlled Substances Act”; redesignated former B through H as A through G; substituted “Subsection A” for “Subsection A or B” in B and C; in the introductory language of F, substituted “Subsection C” for “Subsection D” and added “and the provisions of the Forfeiture Act”; in F(1), substituted “a conveyance used by a” for “no conveyance used by any” and “shall not be subject to forfeiture pursuant to” for “is subject to forfeiture under”; in F(2), substituted “a conveyance shall not be” for “no conveyance is”, “pursuant to this section by reason of an” for “under this section by reason of any” and “the owner’s” for “his”; and substituted “Subsection V” for “Subsection W” in G.
Notes to Decisions
Generally.
New Mexico forfeiture statute, 30-31-34 NMSA 1978, is modeled after Section 505 of the Uniform Controlled Substances Act and is worded almost identically to it. Albuquerque Police Dep't v. Martinez (In re Fourteen Thousand Six Hundred Thirty Nine Dollars), 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563, 1995 N.M. App. LEXIS 86 (N.M. Ct. App.), cert. denied, 120 N.M. 213, 900 P.2d 962, 1995 N.M. LEXIS 304 (N.M. 1995).
Applicability.
Section 30-31-34D NMSA 1978 permits forfeiture of conveyances or methods of transport only if the controlled substances in question are possessed for the purpose of sale. Albuquerque Police Dep't v. Martinez (In re Fourteen Thousand Six Hundred Thirty Nine Dollars), 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563, 1995 N.M. App. LEXIS 86 (N.M. Ct. App.), cert. denied, 120 N.M. 213, 900 P.2d 962, 1995 N.M. LEXIS 304 (N.M. 1995).
“Innocent owner” exception to 30-31-34D NMSA 1978, whereby the forfeiture of aircraft, vehicles, or vessels used for the transportation of controlled substances or related raw materials, products, and equipment is prohibited if such use was without the owner’s knowledge or consent, demonstrates the legislature’s intent to punish only those persons involved in drug trafficking. Albuquerque Police Dep't v. Martinez (In re Fourteen Thousand Six Hundred Thirty Nine Dollars), 1995-NMCA-088, 120 N.M. 408, 902 P.2d 563, 1995 N.M. App. LEXIS 86 (N.M. Ct. App.), cert. denied, 120 N.M. 213, 900 P.2d 962, 1995 N.M. LEXIS 304 (N.M. 1995).
Ruling in favor of a state to seize and foreclose on an airplane discovered to contain 580 pounds of marijuana under the Controlled Substances Act, former 54-11-33G(4), 1953 Comp., was reversed as to appellant finance company, which claimed a security interest in the plane, because the forfeiture of a vehicle under the Act was subject to the security interests of an innocent third party. The secured creditor admitted in its answer and introduced documentary and testamentary evidence of its security interest. In re One Cessna Aircraft, 1977-NMSC-007, 90 N.M. 40, 559 P.2d 417, 1977 N.M. LEXIS 1122 (N.M. 1977).
Burden of proof.
Judgment ordering forfeiture of a car under former 54-11-33, 1953 Comp. (now 30-31-34 NMSA 1978) and 54-11-34G, 1953 Comp. (now 30-31-35 NMSA 1978) was improperly entered when the owner met his burden of going forward by testifying that he neither consented to nor had any knowledge that his car would be used to transport controlled substances. State v. Ozarek, 1978-NMSC-001, 91 N.M. 275, 573 P.2d 209, 1978 N.M. LEXIS 892 (N.M. 1978).
Elements.
For forfeitures, the “crime” set forth in 30-31-34F NMSA 1978 refers to a crime that is covered under the N.M. Controlled Substances Act, 30-31-1 NMSA 1978 et seq.; thus, unless a defendant or his agents committed a crime in violation of the Act in the state, his property is not subject to forfeiture under the Act. State ex rel. Tucumcari Police Dep't v. $104,999.00 in U.S. Currency, 2000-NMCA-084, 129 N.M. 552, 10 P.3d 876, 2000 N.M. App. LEXIS 70 (N.M. Ct. App.), cert. denied, 129 N.M. 519, 10 P.3d 843, 2000 N.M. LEXIS 330 (N.M. 2000).
Findings.
—Insufficient.
Construed together, the court determined that 30-31-34D and 30-31-34G(3) NMSA 1978 allowed for forfeiture in trafficking and distribution cases where the crime involved constituted a felony, but forfeiture was not authorized for misdemeanor drug trafficking cases. State ex rel. Dep't of Pub. Safety, State Police Div. v. One 1990 Chevrolet Pickup, 1993-NMCA-068, 115 N.M. 644, 857 P.2d 44, 1993 N.M. App. LEXIS 60 (N.M. Ct. App.), cert. denied, 115 N.M. 602, 856 P.2d 250, 1993 N.M. LEXIS 196 (N.M. 1993).
Under 30-31-34D NMSA 1978, the court concluded that two individuals in two different cases that possessed small quantities of controlled substances with no indication that they intended to sell the substances could not have their vehicles taken under the forfeiture statute since forfeiture was allowed only in those instances where an individual possessed a controlled a substance for the purpose of selling it. State ex rel. Dep't of Pub. Safety, State Police Div. v. One 1990 Chevrolet Pickup, 1993-NMCA-068, 115 N.M. 644, 857 P.2d 44, 1993 N.M. App. LEXIS 60 (N.M. Ct. App.), cert. denied, 115 N.M. 602, 856 P.2d 250, 1993 N.M. LEXIS 196 (N.M. 1993).
Jurisdiction.
In consolidated cases involving forfeiture proceedings initiated pursuant to the Controlled Substances Act, 30-31-34, 30-31-35 NMSA 1978, executions on forfeiture judgments did not divest the appellate court of its jurisdiction to consider appeals from the judgments; the failure of the claimant to post a supersedeas bond to stay execution of the judgment, pursuant to Rule 1-062 NMRA, did not affect appellate jurisdiction. In re Forfeiture of Two Thousand Seven Hundred Thirty Dollars & No Cents in Cash, 1991-NMSC-035, 111 N.M. 746, 809 P.2d 1274, 1991 N.M. LEXIS 148 (N.M. 1991).
In a forfeiture action, the State’s retitling of an automobile without notice to claimant afterP-laimant had filed a timely notice of appeal and motion for stay of execution and supersedeas bond was an improper attempt to remove the res from the jurisdiction of the trial court and did not divest the trial court of its in rem jurisdiction over the case, because summary removal of the res from the jurisdiction of the trial court was not permitted by 30-31-34 and 30-31-35 NMSA 1978. Devlin v. State, 1988-NMSC-102, 108 N.M. 72, 766 P.2d 916, 1988 N.M. LEXIS 332 (N.M. 1988).
Remedies.
Forfeitures under 30-31-34 NMSA 1978 were not designed, and indeed could never be designed, to serve the remedial objective of compensating the government or society for the incalculable costs of the illegal drug trade. 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.
All forfeitures of property under 30-31-34 NMSA 1978 are expressly predicated on the fact that defendant was in violation of the N.M. Controlled Substances Act, 30-31-1 et seq. NMSA 1978. State ex rel. Tucumcari Police Dep't v. $104,999.00 in U.S. Currency, 2000-NMCA-084, 129 N.M. 552, 10 P.3d 876, 2000 N.M. App. LEXIS 70 (N.M. Ct. App.), cert. denied, 129 N.M. 519, 10 P.3d 843, 2000 N.M. LEXIS 330 (N.M. 2000).
Sentence.
—Excessive.
Pursuant to 30-31-34 NMSA 1978, the forfeiture of vehicles and other property was not proper when the owner of the property was in possession of a small amount of controlled substances designated solely for personal use and not for the purpose of sale. State ex rel. Dep't of Pub. Safety, State Police Div. v. One 1990 Chevrolet Pickup, 1993-NMCA-068, 115 N.M. 644, 857 P.2d 44, 1993 N.M. App. LEXIS 60 (N.M. Ct. App.), cert. denied, 115 N.M. 602, 856 P.2d 250, 1993 N.M. LEXIS 196 (N.M. 1993).
Subsection G.
Mother of a son who used a jointly owned truck to transport marijuana for the purpose of sale, without her knowledge or consent, was an innocent owner within the meaning of 30-31-34G(2) NMSA 1978; the statute allowed forfeiture of the property interest of the son, who knew of the criminal use of the property, but provided protection to the mother to the extent of her property interest in the truck. In re Forfeiture of One 1970 Ford Pickup Truck, 1991-NMCA-124, 113 N.M. 97, 823 P.2d 339, 1991 N.M. App. LEXIS 228 (N.M. Ct. App. 1991).
Research References and Practice Aids
New Mexico Law Review.
Note: Criminal Procedure — Civil Forfeiture And Double Jeopardy: State v. Nunez, Laurel A. Carrier, 31 N.M. L. Rev. 401 (2001).
Civil Forfeiture — New Mexico Restricts The Use Of Civil Forfeiture: State v. One 1990 Chevrolet Pickup, Patrick J. Martinez, 24 N.M. L. Rev. 377 (1994).